Fairbrother Russell: Legal Services Amendment Bill (No 2) — Third Reading 
Fairbrother Russell: Legal Services Amendment Bill (No 2) — Third Reading 
[Volume:630;Page:2377] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I listened with care to the speech from Judith Collins and I find I have to agree with many of the points she makes having been a lawyer who has practised in the legal aid field in both criminal and civil law and having a spouse who practises in the civil area. But the points she makes are really for a different debate and the National members have fallen short in this Chamber and in the course of debating this bill by deflecting the argument away from the issues in the bill to an issue of more money for lawyers. 
This bill is not about fees; it is about widening the access to justice about widening the eligibility for legal aid and about regaining for taxpayers some of the money spent on the large legal aid bill. And this House should debate those matters because it has never set the level of fees—certainly not since Geoffrey Palmer came in in 1982 and by regulation increased the amount payable in legal aid at that time. Subsequent to that the setting of fees moved away from the House to the Legal Services Agency or its various predecessors. That was during the time of the National Government as well. It is well to remember that eligibility for legal aid has not been widened since 1987. It was not touched by National when it was in Government. What National did in fact was to reduce the legal aid rate in 1996. If we reflect on that history we see the reason for some of the mess we are left with. 
The emphasis that National speakers gave in deflecting this debate to one of fees rather than of widening the access to justice is a sad reflection on lawyers themselves. To argue in this House that an hourly rate of $121 net exclusive of GST is not enough for a sole practitioner to operate on is to illustrate the avarice and grandiose attitudes that many lawyers have. I had the misfortune to be invited to speak to a lawyers’ function before Christmas last year in Auckland. I went thinking it would be a convivial meal among legal aid lawyers. It was held at the Northern Club with suited men offering their services to wait on tables and it was the height of luxury. I became angry at what I saw as an abuse of the public purse by those people who were complaining at their impecuniosity. One of my critics who it turned out was a legal aid lawyer happens to be the spouse of a judge so the combined household income of that family would be close to half a million dollars. Yet his complaint was of inadequate income for the household. 
The legal profession suffers from a greed attitude and if the profession continues to deflect the arguments from access to legal aid on to the issue of fees and forgets that it also has a public-good element then this Government or any successive Government may be forced one day to step into the gap and take responsibility for the legal services the profession is failing to provide. No one can tell me that $130 an hour is not enough for a reasonable person to run a practice on and live off. A practice does not require buying expensive stock in trade; no hardware is required in the cupboard in order to practise law. It is a matter of intellectual property and a little knowledge of information technology. Law can be practised out of one room of a house or a garage. Many lawyers practise law out of the back seat of their car because it is such a fluid profession when it comes to servicing the legal aid community. So no one can stand here and tell me that $130 an hour is not enough to live off. It is not enough though when the profession is ratcheting out of the private industry hourly fees of $500-plus. Every lawyer wants to live like his or her peers and as many very competent lawyers choose to practise legal aid they look with some envy at the high rate of income that less competent lawyers drag from the private sector. 
The level of remuneration is an issue for the profession to address. It is an issue as to the public good associated with practising law and if the profession forgets its public-good obligations then this House may have to move to replace that aspect by further legislation. I would regret that day but while members of this House stand up here and cry “More for me! More for me!” and there are people in our community working for $12 an hour then those members have no sympathy from me. 
The instances given to this House by Judith Collins are true in one part but not true in another. An experienced lawyer who is competent in the area can negotiate with the Legal Services Agency for a rate that is appropriate to the particular trial and there are reports of that in the  
New Zealand Law Reports 
. For example the lawyers of Paul Darvell negotiated fees of something like $320000 over a long trial but that was for both a senior and a junior lawyer. One of the lawyers rejected that because it was not enough. So it is possible to negotiate with the Legal Services Agency for a fee above the guideline rate and it is possible to negotiate with the agency for a longer preparation time. 
The analogy between defence lawyers and Crown lawyers is basically flawed. The Crown must accept every instruction that comes from the police to the Crown. A defence lawyer or any other lawyer in private practice can choose the areas in which to market his or her services. If lawyers choose to do solely legal aid work then they do so in the knowledge that they will not have flash offices or the lifestyle of their more affluent colleagues who go into the private sector. Or defence lawyers can choose to mix legal aid with private instructions—a choice not available to Crown solicitors. To run that comparison of defence lawyers with Crown solicitors and then say Crown solicitors are backed by the resources of the State is to ignore the choice that is available and to ignore the different standards and obligations that apply. A Crown lawyer has to prove every aspect of a case; a defence lawyer has to pick one weakness and home in on that. Defence lawyers can sit tight on a long trial make only one speech and win a case. Those are different responsibilities—it is to compare apples with bananas rather than apples and apples. 
It is time we addressed the issue of fees front on. I simply say to the Bar that unless the legal profession revisits its public-good aspects there will continue to be “more for me” debates as we have heard in the House from the National members and successive Governments will be left with the obligation to move further to replace the public-good aspect neglected by the profession as reflected in the National Party’s arguments in this debate. This is a good bill and the country will be fortunate in its passing.