Victoria Legal Aid funding rally
If it is true that Victoria Legal Aid lawyers have been told not to attend the rally on Tuesday morning then that is very disappointing .
Access to justice and funding issues are as much in the interest of Victoria Legal Aid lawyers as private practitioners and the independent bar.
We are being told that this campaign is internally being portrayed as an attack by private practitioners on Victoria Legal Aid and its lawyers.
Again that may just be idle gossip but it is a long way from the truth of what is going on. There are many legal aid lawyers who are really good lawyers and there are many of the public defenders who are good lawyers who we used to brief when they were at the bar. We are happy to brief the ones we think are good again and have no issue with that.
We almost all are lawyers who have come to criminal law because we are interested in social justice.
That is the underlying common attribute of legal aid lawyer and private practitioners who handle legal aid matters. Sure there are shonky lawyers who back up lots of legal aid pleas and do a terrible job. If they are reading this then they know who they are as much as the rest of us do. Personally I have always felt that legal aid should use the audits to get rid of these practitioners (I can hear the howls already). They have never been targeted as far as I can see.
We received one $74000 cheque from legal aid in the last month. After Barrister fees were paid we were highly amused to see we received under $100. For obvious reasons it is not uncommon that a large proportion of the money we receive from legal aid goes to Barristers.
For a number of years we have had a discussion about whether to do Legal Aid work which is not a large proportion of our professional fees. We meet up regularly with interstate criminal lawyers none of whom do legal aid work. They regularly chastise us about doing legal aid work and the fact that it does not financially make sense.
Which all may be true but our conclusion has been that you continue doing legal aid work because you want to. Often the most interesting cases are legally aided. The various terrorism trials we did for Nacer Benbrika were legally aided. Hugo Rich’s murder trial was legally aided (and you don’t get a much more interesting client than Hugo).
I am sure that inside legal aid it is the same. There are cases that interest you and you would not want to be excluded from them. Magee is one example of a case that is being bandied around . Lawyers there obviously thought it was worth running. That a Judge disagreed with us can not be the bottom line of how we assess merit or we would never do anything.
We are running the Dupas appeal which no-one is funding and no-one thinks we will win. So be it. We think there is a real argument and that he should not have been convicted. When was the last time anyone reading this (if there is anyone) spent 100s of hours outside their work doing something for free? Good on you. I am not claiming the high moral ground (as anyone who knows me would be aware) but I think my point is pretty obvious.
For us the problem is that we have been doing this for a long time. Back in the days when we used to write to legal aid and set out grounds for legal assistance . At the time it was eventually realized that legal aid spent as much administering a grant as they paid out to private practitioners.
So we moved to a situation where the administration of the grant has been pushed onto the private practitioners. Fair enough because the quid pro quo was that that the client retained their right to choose their lawyer.
Atlas came along and that added further issues for us. Fair enough. We can see the assistance it gives.
Then in a very short period of time there has been a substantial change to;
1. the guidelines on traffic cases (two weeks notice). Knocking out almost all practitioner applications.
2. proposals that there be only two 1/2 days in funding for instructing at trials and all the other changes ( couple of weeks notice that the decision was being made by Board).
3. a change of payment systems that left many small practises without cashflow to pay staff (I am not sure if that was two weeks or four weeks notice).
We would never spring surprises on our employees with those sort of timeframes.
We are not foolish and have long foreseen that the public defender unit inevitably means that legal aid will need to funnel in work to make it work. That will come at the expense of the client choosing and, in my opinion, competition underpins quality of service.
That choice will be taken away is disappointing. Clients chose their lawyer and more than half chose private practitioners. Block briefing is clearly what is being modelled for the future but seems regrettable. None of us would necessarily brief the same barrister for a sex matter as compared to a violence matter. As much as the punishment should fit the crime so should the Barrister.
I tell my private clients that they should vote with their feet if they lose confidence in us. I have never opposed a client being transferred and always try to deliver their file to a new lawyer on the same day I receive a file authority. Who wants or needs a client who is not choosing to use you?
A number of us were proposing that we take a 10% cut to help legal aid if the guidelines remained as they were before the recent changes and proposed changes. That was disagreed with strongly at the recent meeting. We did not expect legal aid to jump up and down with gratitude, or even accept it, but the point was it was a gesture of goodwill and the start of a negotiation. To be franker than that some might like, there were a number of us that thought the percentage offered should be higher.
However Victoria Legal Aid are saying even if they get more money it may not be put into summary legal aid or instructors as they have other priorities.
So the effect of the rally may be that Victoria Legal Aid will get more money none of which will come to us.
I am still going to attend knowing that to be the case. Why wouldn’t the legal aid lawyers?
But putting our squabbles to the side should not everyone’s focus be on the fact that the Commonwealth has reduced funding from 50% down to about 33% over the years.
The Federal Government are not shouldering their responsibility and that is what really underpins the problems with legal aid funding.