18 Nov 2021

Fears new duty lawyer fee plan has 'appearance of incentivising guilty pleas'

8:41 am on 18 November 2021

Lawyers who often act for vulnerable and low-income people could be paid extra if their clients enter an early plea under a new Ministry of Justice scheme to speed up the court process.

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File image. Photo: RNZ / Dan Cook

Official documents leaked to RNZ show legal groups consulted on the design of the scheme are highly concerned, saying it has "the appearance of incentivising guilty pleas".

They say it could allow "unscrupulous lawyers to game the system" and damage the credibility of the justice system.

The Criminal Process Improvement Programme, developed by Police, Corrections and the Ministry of Justice, seeks to streamline the court process.

The Ministry of Justice says court delays were a problem even before the pandemic, with an average of nearly four court 'events' required between charges being laid and a plea being entered.

The new policy, to be piloted at Hamilton District Court in early December, with Gisborne and Manukau to follow, offers financial incentives to duty lawyers - who are on hand at courts to provide free legal services for people who don't have a lawyer.

The scheme will pay duty lawyers a 'higher duties allowance' of $50 for a plea, $90 for a plea and sentencing on the same day, $50 for sentencing and $90 for a bail application.

But the New Zealand Law Society, the Criminal Bar Association, the Auckland District Law Society and the South Auckland Bar Association have grave concerns about the scheme.

The documents show those groups say the payments "have the appearance of incentivising guilty pleas" and could "provide scope for unscrupulous lawyers to game the system" to increase their incomes.

They say although the scheme aims to produce a more efficient court system, it may actually create more work if defendants later appeal after regretting an early plea. That would increase the load on the justice system, "undermining the purpose of the policy".

Ministry of Justice officials, responding to those concerns in the documents, say the fees are not only to encourage guilty pleas. "Where a plea is entered an additional fee is payable for a guilty or a not guilty plea."

But Auckland District Law Society President Marie Dyhrberg QC told RNZ the new scheme was a "disaster" because vulnerable clients could be pushed into pleading guilty without the time for proper consideration.

Marie Dhyrberg

Marie Dyhrberg QC. Photo: SUPPLIED

"Unscrupulous lawyers are going to completely ride over that and they're just going to be in there and they're going to milk the system - they are going to rort it."

The scheme would not deliver the efficiencies sought if defendants appealed after they were given poor advice by a lawyer acting on financial incentives, Dyhrberg said.

"The system will be fraught with appeals and extra costs. It will be fraught with people dissatisfied with the system," she said. "There will be rorts. There will be cheating of the system."

The majority of lawyers were honest and hard working but the new system could create the impression they were just in it for the money, Dyhrberg said.

"The reputational damage that those good lawyers in the profession are going to suffer is going to be so costly for us."

In documents outlining the proposal, Ministry of Justice officials said those fears were unlikely to eventuate because duty lawyers had a "fundamental professional obligation to protect the interests of their client".

They said the new system would include increased monitoring, supervision and auditing.

In addition to the incentives for speeding up the court process, hourly rates for duty lawyers would increase from $88 to $98 per hour on weekdays and $108 to $120 on weekends, in return for an expansion of the role.

But there was no new money in the system to fund either the pay rates or the financial incentives and they depended on the new scheme creating efficiencies and saving money.

"There is no new funding for either of these remuneration adjustments. However they are possible if the duty lawyer's expanded scope of responsibilities avoids equivalent legal aid costs," the documents said.

The legal groups consulted on the design of the scheme said it would be better to provide a more substantial increase in general rates for duty lawyers but justice ministry officials said there was no money to do so.

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