Henry Cecil (the nom de plume of a judge who wrote humorous legal novels) described the plight of the unrepresented pauper in one of his books. In those days, there was no legal aid provided by the state. Rather, the poverty-stricken were represented by lawyers who were equally poverty-stricken. These lawyers could not get more lucrative work, so they hung around the courts hoping to get some lag to engage them for a pittance, which was better than being unemployed. These were called dock briefs. And the lags paid whatever they could.
One of the Cecil’s lags, charged with his fifth or six break and enter, was advising a younger lag on how to select a lawyer to do a dock brief. Always take the young ones, he said. The old ones were proven to be no good at the law, otherwise they would be applying their learning to more lucrative cases. With a young one you had a 50-50 chance of getting of getting someone bright but yet to move on to bigger and better things.
Now we have legal aid.
Legal aid is restricted mainly to criminal cases where jail or job loss is likely, family law (provided the parties have done everything to settle) and personal injury.
The plight of the ACT’s Legal Aid Office gained prominence recently over the incident at the Iranian Embassy. Providing legal aid to all those charged would gut the aid budget unless the Commonwealth came to the party, which it did.
High profile cases like that will attract top lawyers despite the lower fees paid by legal aid, no doubt because such cases provide great professional challenge.
But what of the run-of-the mill cases?
The ACT Legal Aid Office recently updated its guidelines. It remains the case that you have to be desperately poor to get legal aid. Grants of aid depend on income (making allowance for housing and dependants), net assets (making allowance for housing, furniture, clothes, tools of trade and car) and the estimate cost of the case. Applicants always have to make some contribution to costs.
If the case is under $3000, aid cuts out at $360 a week. For bigger cases, those on $350-$360 a week have to contribute the first $5550 and a further $410 for every $10 of weekly income thereafter.
All the applicants’ assets over $3000 have to go to the case. Usually, about a third of the assets under that have to be applied to the case.
Clearly, you have to be skint to get legal aid, or if you are not, you certainly will be afterwards.
It means, of course, that hundreds of moderately poor people are denied legal aid. They either go unrepresented or have to beg or borrow from friends and relatives.
In 1991, 3798 people applied for aid and 2448 got it, about half of those were handled in house and the rest contracted out to the private profession (the latter-day dock brief).
The total budget is $4.3 million. This means the case average is $1720, including all the overheads of the central office. Now, we all know that you can’t get a top-end-of-town lawyer to sneeze for $1720 these days.
The tradition has been for counsel to charge about 20 per cent less than the standard mark, but the Legal Aid Office is paying less than this. Its own staff is clearly overworked and underpaid.
It must therefore be the case that those on legal aid being represented by the private profession are either being represented by the altruistic or by those who are not getting or cannot get the more lucrative work. It must also be the case that those being represented by salaried staff are being represented by people with a very heavy workload and that must affect the time available for each case and therefore the overall quality of the service.
There can be no doubt that people on legal aid are being represented by competent, diligent lawyers. Many lawyers choose to go do legal aid work for the experience and out of a sense of public duty.
However, as the funding squeeze on legal aid gets tighter, it must affect the quantity and quality of representation: one representation for the rich; another for the poor.
An even worse off group are those who do not qualify for legal aid, but are by no means well-off. Many must abandon their rights in the face of the cost onslaught.
That said, the office always provides one free interview to applicants. This alone can go a long way to crystalising issues.
What can be done? Experience tells us that making the law cheaper and simpler is a hopeless cause; the trend is the other way. Perhaps we should teach more law in schools to demystify it and to provide the last resort of self-representation (at least in simpler cases) as legal-aid budgets shrink and the cost of running a case privately gets more prohibitive.