Fairbrother Russell: Legal Services Amendment Bill (No 2) — In Committee 
Fairbrother Russell: Legal Services Amendment Bill (No 2) — In Committee 
[Volume:630;Page:2037] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I was sitting in my office listening to the debate and I heard my good friend Mr Christopher Finlayson demonstrate that the move from skilled lawyer to cant-uttering politician can be rapid in some cases. The law reports are redolent of Mr Finlayson’s cases of finely argued matters of law based on evidence. As I sat in my office in my jeans and open-necked shirt ready to go home I listened for evidence in his dissertation on the problems facing the legal aid scheme. Then he mentioned the blaming of counsel as a cause for retrial. I thought that was interesting because recently I heard Mr Finlayson say that the Court of Appeal dealt with about 490 criminal cases a year. I thought back—I did not have time to refer to the law reports—and I could think of just one case in the last year when the decision has been overturned for that reason. There may be more but we are looking at 0.1 percent at the most. Given that the criminal courts handle tens of thousands—perhaps hundreds of thousands—of cases a year his argument in fact justifies the system we have at present whereby legal aid is delivering competent counsel to accused people. 
Before we take the broad brush of criticism to the bill we must ask what the debate is about. The debate is not about the adequacy of the legal aid rates; it is about the thirst of the profession to earn a higher and higher fee which drags up the level of legal aid remuneration. If someone tells any motor mechanic that the lawyer who acts for his or her spouse is grizzling that he or she is being paid $140 an hour and can barely afford to run the case the motor mechanic may forget to put oil in the engine of that person’s vehicle. Quite simply $140 an hour is a large sum to be paid. Someone might say to a Crown prosecutor that he or she does not deserve to earn more than the defence lawyer because he or she can act for the Crown all the time on Crown solicitors’ rates. But the defence lawyer if he or she is competent may do a legal aid trial one week and the following month earn three times the amount by way of private instruction. The Crown prosecutor will wonder where the parity of arms is in this case when the defence counsel appears in court and earns three times what he or she earns without having to prove a thing. Where is the parity of arms and where is the equal basis on which the law is practised? So if one compares apples and oranges one will get different results. 
The Legal Services Amendment Bill (No 2) is about rationalising a process that has emerged. One of the first things the bill does is widen the eligibility criteria so that a greater number of people can qualify for State-funded aid. It is up to the law profession to try to determine how much public good is left in the practice of law. If the law profession departs any further from the concept of public good then that may see the encroachment of the State into more provision of legal services and that would be a sad thing. 
In addition my friend Mr Finlayson lamented the number of people who are now appearing in court. I thought back to the days when I started doing legal aid. Then one was paid $13 for a plea mitigation; now it is $300. People were saying: “Why do you bother doing this? You can earn more in other areas of law.” That is so true. Back in 1978 there was a paucity of lawyers at the criminal bar which has been a factor right through. Now of course the major law firms do not train their lawyers in advocacy. We have reached the stage that when someone takes an associate lawyer in a large firm head-on and says: “We’ll go to court on this.” that person will find that the lawyer will start to talk about a settlement because many of those so-called senior litigators are gun-shy. The reason is that the process in their firms takes lawyers out of court. They are very good at arguing the case in telephone conferences at writing pleadings and at preparing briefs of evidence but when it comes to the threat of a cross-examination or of having their case tested in court they talk settlement. So that is not legal aid; that is the private system failing its clients by training lawyers to earn more money rather than to provide good advocacy. 
The problems that Mr Finlayson speaks about are not an indication of the failure of the Legal Services Amendment Bill (No 2); they are an indication of the abrogation of the Law Society in its public-good obligations to the public at large. No longer is it adequate for us to say that the State is not providing enough legal aid. We should be asking the law profession whether the new lawyers and conveyancers legislation will take lawyers back to the public-good element that 5 years of study warrants. 
 So I stand here acknowledging that although the Legal Services Amendment Bill (No 2) may not be perfect it does provide a level of remuneration that most people in New Zealand would consider adequate for a person to earn per hour. Sure if one wants to have a lot of secretaries a flash office and sweets that have the name of one’s firm on their wrapping paper then one cannot do it on legal services rates. But if one wants to provide good honest service this bill will do it.