Equal Justice Project Report to ADLSi Family Law Committee...

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Report to ADLSi Family Law Committee

Analysis of Results of Family Fixed Fee Survey

Prepared by the Equal Justice Project

The Equal Justice Project (EJP) is a youth-run pro bono initiative

empowering communities to seek equal access to justice through

education, service, and advocacy. It is entirely run and led by students from

the University of Auckland, Faculty of Law.

EJP promotes human rights discourse through legal research and writing. It

provides support to practitioners, interest organisations, and community

groups who share its goals of promoting equality, inclusivity, and respect

for human dignity. Our volunteers are generally final and penultimate year

law students who have demonstrated a capacity for high quality legal

research and a dedication to protecting human rights.

Researchers

Jarinda Engelbrecht Gayathiri Ganeshan Rosemary Judd

Michelle Kim Christine Lee Joanne Lee

Sally Wu Helen Thompson

Editors

Gayathiri Ganeshan Rosemary Judd

Ian Ko Helen Thompson




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Introduction This report aims to give ADLSi a better understanding of:

1. The impact of fixed fees on family legal aid providers; 2. The impact of fixed fees on family legal aid practice/s; and 3. The impact of family fixed fees on the family justice system.




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1 The Impact of Fixed Fees on Family Legal Aid Providers 1.1 Provision of legal aid services by those designated as providers

Although 72.90% of survey respondents (78 out of 107) were designated Legal Aid Providers under the Family Fixed Fee Schedules,1 only 60.75% (65) of respondents provide legal services for which they are designated.2 Written comments explained this discrepancy: ten written comments were received from practitioners providing services for which they are designated. These comments may be categorised as follows:

Alternatively, eight written comments (excluding one duplicate comment) were received from practitioners providing services for which they are not designated. These comments may be categorised as follows:

1 Results of Question 1: see Appendix.

2 Results of Question 2: see Appendix.

0 1 2 3 4 5 6 7 8

Have limited the number of clients taken on

No apparent change

Finishing off outstanding files/not taking on new legal aidfiles

Q1: Are you providing the legal services for which you are designated as a provider? Comments accompanying "yes" responses

1. Are you a designated Legal Aid Provider of legal services under the Family Fixed Fee Schedules? 2. Are you providing the legal services for which you are designated as a provider?




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Accordingly, the reason why 50% (four) of respondents provide services for which they are not designated is because it is no longer financially viable for them to do so. Of those four, profile information was available about two of the respondents who practised in two of New Zealand’s busiest Family Court Clusters. The first had practised for twenty years. The second had practised for ten years. 1.2 Types of legal aid services provided

Out of the 107 total respondents, 70 (65.42%) answered Question 4. However, five of the 70 respondents indicated that they have not provided legal services in relation to any of the Schedules. This means only 65 of the 107 respondents have provided legal services in relation to the Family Fixed Fees Schedules (60.75%).

Schedule Raw Raw % of Q4 responses

Actual Actual % of Q4 responses

Any 70 100% 65 100%

Adoption 16 22.86% 16 24.62%

Children and Young Persons 46 65.71% 46 70.77%

Care of Children/Guardianship 64 91.43% 64 98.46%

Domestic Violence 54 77.14% 54 83.08%

Maintenance 9 12.86% 9 13.85%

Paternity 41 58.57% 41 63.08%

0 1 2 3 4 5

No longer financially viable

No position on mental health roster

Fixed fees undermines effective delivery ofprofessional and ethical obligations

No explanation given

Q2: Are you providing the legal services for which you are designated as a provider? Comments accompanying "no" responses

4. Which of the Family Fixed Fees Schedules have you provided legal services in relation to?




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Protection of Personal and Property Rights 12 17.14% 12 18.46%

Relationship Property 41 58.57% 41 63.08%

Interim Grant 9 12.86% 9 13.85%

Pre-Proceedings Settlements 14 20% 14 21.54%

Other (please specify) 13 18.57% 10 15.38%

Care of children/guardianship (98.46%; 64), domestic violence (83.08%; 54), children and young persons (70.77%, 46), paternity (63.08%; 41), and relationship property (63.08%; 41) are the Schedules mostly used by practitioners. This is especially the case in matters concerning care of children/guardianship, which comprised 98.46% of responses (64 out of 65 affirmative responses). From the chart below, it can be seen that of those who have used the Schedules, most practitioners have used between three to six. This seems to indicate a varied practice environment.

The majority of those who used at least half of the listed Schedules practise within the Auckland or Manukau court clusters, and have also been practising in the medium to long term. There were 13 open-ended responses to Question 4. Five indicated a nil response to the provision of legal services according to the mentioned Schedules. The other eight contained elaborations upon one of the options selected (Pre-Proceedings Settlements, Interim Grants, or Care of Children/Guardianship). There were no discernible trends from the latter group of responses.

0

2

4

6

8

10

12

14

1 2 3 4 5 6 7 8 9 10

Q4: How many Fixed Fees Schedules has each respondent used?

No. of respondents




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73 (68.22%) participants responded to Question 5 regarding Fixed Fees Plus cases. 42 (57.53%) of the 73 participants answered in the affirmative, while 31 (42.47%) answered in the negative. In relation to the 107 total survey responses, 39.25% answered in the affirmative; 28.97% answered in the negative; and 31.77% did not respond to the question (34 participants).

Have you provided legal services in “Fixed Fees Plus” Cases? % of 73 responses

Yes 42 39.25% 57.53%

No 31 28.97% 42.47%

No Response 34 31.77% -

Total 107 100% 100%

Out of the 73 responses received for this question, 43 listed the types of “Fixed Fee Plus” proceedings that they have provided legal services for. This included the 42 respondents who answered in the affirmative to Question 5 and one who provided an answer but skipped over Question 5 (respondent #48). The response rate of this question in relation to all the responses is 40.19%. Almost all of the respondents to Question 6 have provided legal services in Care of Children/Guardianship proceedings (90.70%). Large majorities have also provided legal services for Children and Young Persons (41.86%), Domestic Violence (48.84%), and Relationship Property (38.53%).

Types of proceedings Responses

Adoption 2 4.65%

Children & Young Persons 18 41.86%

Care of Children/Guardianship 39* 90.70%

Domestic Violence 21* 48.84%

Maintenance 2 4.65%

Paternity 5 11.63%

Protection of Personal & Property Rights 3 6.98%

Relationship Property 17* 39.53%

Interim Grant 2 4.65%

Pre-Proceedings Settlements 1 2.33%

Total Responses to Question 6 43* 100%

*This includes respondent #48 who did not answer Question 5.

5. Have you provided legal services in “Fixed Fees Plus” cases?

6. If you answered “yes” in the question above, in what types of proceedings?




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Most respondents have therefore provided services in two or three different types of proceedings. The 43 responses show that most respondents do not provide legal services for more than three types of proceedings: 25.59% (11 respondents) have provided legal services for one type of proceeding, 30.23% (13 respondents) have provided two service types, and 30.23% have provided three service types. Only 13.94% (six respondents) have provided four or more different types of proceedings in Fixed Fees Plus cases.

The question received six written responses. There were two respondents who specified interim grants (Responses 27 and 72). Of these two, Response 72 specified that the interim grant dealt with children and young persons, while Response 28 did not provide any clarification. There was one respondent who indicated they had provided legal services for pre-proceedings settlements (Response 6) in relationship property and care of children/guardianship. The rest of the comments highlighted the inadequate amount of time given and the inadequacy of the rates paid for Fixed Fees Plus legal services. 1.3 Provision of legal aid services before and after the introduction of fixed fees Respondents were asked whether they were providers of legal aid services before the introduction of fixed fees. 81% were, 11% were not, and the remaining 8% gave no response to this question. There was a range of experience among respondents who were providers of legal aid before the introduction of fixed fees, as shown in the chart below:

0

2

4

6

8

10

12

14

1 2 3 4 5 6 7

nu

mb

er

of

resp

on

de

nts

Amount of different proceedings

Q6: How many Fixed Fees Plus Schedules has each respondent used?




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0

5

10

15

20

25

30

35

40

45

1 3 5 7 9

11

13

15

17

19

21

23

25

27

29

31

33

Number of Practitioners

Number of Years Providing Legal Aid

Practitioners providing legal services before introduction of fixed fees

Respondents were asked if they were considering stopping or reducing family legal aid work, and to explain why. The responses may be analysed by reference to the practitioner’s experience.

Long-term providers of family legal aid Of those surveyed, only 46 people provided details about the length of time they had provided legal aid. From this group, there were 38 practitioners who had provided family legal aid services for over 10 years. Of those long-term providers, 71% (27 respondents) were considering stopping legal aid work.

11. If you are considering reducing or stopping family legal aid work, please tell us why.




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The reasons given fall into eight broad categories:

1. Low fixed fees

This is the major complaint. The low fees do not incentivise providers to provide a high quality of work. They are also not enough to cover complex cases. Fixed fees create budgeting difficulties and low fixed fees are often economically unviable, as the fees do not cover basic overheads needed to support a legal practice.

2. Fees are disproportionate to work and time commitments A related complaint is that the fixed fees are unrealistic and do not reflect the amount of work involved in a particular case. Practitioners end up doing many unpaid hours in meetings, court time, and mediation.

3. Administrative burden The administrative processes are too time consuming and unpaid. The invoicing process is burdensome. Problems were reported with invoicing, the inability to make amendments to grants, and with the disbursement policy.

4. Unrealistic expectations of clients and the Ministry of Justice Clients and the Ministry have unrealistic expectations about how much work can be done under the fixed fee scheme. A few providers commented that access to justice for all was a myth under the current system.

5. High maintenance clients Legal Aid clients tend to be very high maintenance and cause providers to write off significant time for free. Repeat litigants are a problem. Under the legal aid system, there is no financial incentive to make the solutions work or take court orders seriously. As a result, they re-litigate the orders.

6. System does not work A few reported that the system just does not work with their business model.

39%

16%

18%

3%

4%

7%

9%

4%

Q11: Reasons why long-term providers are considering stopping

Low Fixed Fees

Fees Disproportionate toWork/Time

Administrative Burden

Unrealistic Expectations

High Maintenance Clients




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7. Poor performance of Grant Officers

Special advisors and grant officers often give inconsistent application of policy from case to case and do not know how to interpret the legislation. Many recounted unjustified refusal of disbursements or aid. Some stated that the grant officers do not understand the realities of practising family law.

8. Incompatible with ethical and legal obligations Some providers wanted to stop because they are unable to meet their legal and ethical obligations to the courts and to clients under this scheme, or unable to perform to a standard that they are happy with.

Short to mid-term providers of legal aid Of those surveyed, eight providers could be identified as being short to mid-term providers of legal aid (0-10 years). Of those, seven were considering stopping legal aid. The graph below outlines their reasons:

50%

33%

17%

Q11: Reasons why short to mid-term providers are considering stopping

Low Fees

Administrative Burden

Bad Performance of GrantOfficers




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2 The Impact of Fixed Fees on Family Legal Aid Practice(s)

Respondents were asked whether they provide the same services under the fixed fees scheme as they did prior to its introduction. Of the 107 respondents, 30 responded that they provided the same services, 50 responded that they were no longer providing the same services, whilst 27 did not respond. Those who responded that they were no longer providing the same services were asked to further explain why. The 42 respondents who provided further qualitative responses fell into the following categories:

No longer do legal aid work or reduced amount of legal aid workload;

Uneconomical;

Chose not to offer fixed fees services; and

Other. No longer do legal aid work or reduced amount of legal aid workload Several of the responses from practitioners indicated that they were no longer doing any legal aid work and were not taking on any new cases. One practitioner indicated that they found the system too difficult with all of the paperwork, and thus did not renew their legal services contract. Some stated that once they finish off their current cases, they will not take on any further legal aid work. A number of practitioners also indicated that they have reduced the amount of legal aid work taken on. One respondent noted their concern that other lawyers have “bet the system” by making unnecessary applications and then withdrawing them when clients are hard to contact. They state that in doing so, lawyers are paying the price for the cuts to legal aid now, and this is an issue that needs to be addressed. Uneconomical A vast majority of the respondents commented that it is not economical for them to accept legal aid clients under the fixed fees scheme. The main issue is that practitioners are getting paid at low rates, and are unable to justify the loss of time for which they are not remunerated. Practitioners are not prepared to run their practice if they are not being compensated for the work they undertake for clients. It is simply not economical, and they cannot go the extra mile for clients any more. As a result, one of the respondents notes how they have had to refuse client appointments and calls, and have restricted communication due to the fixed fees constraints, even if they are a high need client. Chose not to do fixed fees Another reason is that practitioners have elected not to provide fixed fee services. Some view that it is not possible to undertake relationship property work on a fixed fee, or fixed fee plus basis.

8. Are you providing the same family legal aid service/s under fixed fees as you provided under the former scheme?




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Other One practitioner noted they believed the new scheme is unworkable. Similarly, another did not renew their legal aid rating for family work because of this new scheme. Another individual was dismantling their family practice. It was also stated by one practitioner that they felt they could not justify to the partner of their firm why they were spending a large portion of their time on legal aid work. The negative response from the legal aid offices is another factor why respondents are unenthusiastic about continuing with legal aid. Further still, one respondent stated that they only accepted reassignments on a case-by-case basis, as they are not being paid anymore. This is due to the work undertaken not being classified as “legal work” by Legal Aid Services. One respondent did note, however, that they still provided the same family legal aid services and continued to work with community agencies in the area as they recognised their professional responsibility. Though realising that they cannot claim all the time spent helping clients, they felt that they had no choice but to do so. Another respondent noted similarly that they charge their work at their usual charge out rate.

The overall response rate for Question 9 was 50.5%. Of those 54 practitioners who responded, approximately:

9% said they have stopped doing family legal aid work or will stop working in the near future;

44% said they are no longer undertaking as much family legal aid work;

9% of the responses highlighted that communication to and with clients was inevitably reduced due to financial reasons;

3.7% commented that a lot more work is done by secretarial or support staff; and

15% said that the scope of their service delivery has not changed since the introduction of fixed fees.

Further detail regarding each category of respondents is provided below. No longer doing legal aid work Several practitioners who provided family legal aid services for 10–40 years prior to the introduction of fixed fees indicated that they are no longer doing legal aid work, and have given up practising as a barrister sole or have withdrawn as a senior legal aid provider. Some of the reasons were that it was no longer economically viable to undertake complex work and the system is “in shambles”. One practitioner said they were looking at other employment options.

9. If the scope of your service delivery has changed, please tell us how and why.




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No longer undertaking as much legal aid work 44% of those who responded said they have limited or reduced legal aid work, especially in relationship property and CYP cases. This was mainly due to financial necessity, and a lot of the responses have indicated that they now focus more on other areas of law. Other comments were that the administration is off-putting, that it is too difficult to do a proper job for clients, and that fixed fees do not contemplate how time-consuming the cases are. Approximately half of these responses were from lawyers who practise in the Auckland, North Shore, Waitakere and Manukau Family Courts. Less communication with clients 9% of the responses commented that there was less communication with clients since the introduction of fixed fees. The reduced forms of communication include reporting in writing, meetings, personal attendances and telephone contacts. Other responses noted that practitioners could not respond to clients as much, correspondence is minimised, clients are not as regularly informed and there is less room for negotiation. More work done by secretarial/support staff A couple of responses raised this point. Administrative work such as filling in the legal aid forms and drafting documents was now done by secretarial or support staff under their supervision, rather than the practitioners themselves. No change to service delivery 15% of the responses said that they still offer the same services and their workload was not reduced. Some practitioners said they had a duty to the client and the court, and will not compromise the standard of service. One practitioner said he/she was working in a low socio-economic area and just could not turn down clients. Such comments were made by practitioners who had around 10–20 years of experience in family legal aid services prior to the introduction of fixed fees, and who practice in the Auckland, Waitakere, Manukau, Whangarei, North Shore, Tauranga, Rotorua and Hamilton Family Courts. Other One of the practitioners responded that within the fixed fee grants, they did not believe that they could act professionally and safely to achieve the very best outcome for the client and their children. A similar response voiced concerns about compromising the degree of service while having to deal with the bureaucracy with legal aid, which is “exhausting, costly and time consuming”. Another response said that refusing to act for all clients who contact them for assistance is a necessary part of the control that has to be exercised. It was noted by one of the practitioners that unless the matter was simple, it is very difficult to justify from a business perspective why one would do legal aid work. While the work is seen as rewarding, it does not pay the bills because they have to spend time fighting for extra funding instead of doing substantive work.




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3 The Impact of Fixed Fees on the Family Justice System This question was not expressly addressed in the survey. However, some participants raised concerns about this in their answers to other questions. A response to Question 6:

Even with the fixed fee plus cases there is not adequate time given. Our Firm has noticed numerous rejection letters from legal aid not willing to pay for work already undertaken and querying numerous bills. The administrative time it takes to respond to such letters does not justify the expense so we simply have come to accept the outcome (rather than dispute it) and are instead left with not taking on more legal aid clients. I have discussed my serious concerns about fixed fees with other practitioners around New Zealand at a Stepping Up programme I did two weeks ago. The Regional Offices of Legal Aid appear to be more lenient in some regions than others, specifically Taranaki brilliant, Tauranga reasonable, Wellington okay, North Shore very difficult to deal with. The general public are losing access to justice just so the government can say they are saving money. (Emphasis added)

A response to Question 8:

Of necessity, we must refuse client appointments, phone calls, and attendances, such as we might have allowed in the past, due to the fixed fee constraints. We now encourage clients who have email access to strictly communicate with us in this fashion, rather than by phone, or in person, if at all possible, to save time. We also communicate with counsel and the court by email for the same reason. For the same reasons, we must now do what we can within the fixed fee guidelines, so remain largely inaccessible to the high need clients, even though they have legitimate claims. We also avoid extra cost such as calling by mobile phone, faxing, etc, so as to keep the disbursements to a minimum. (Emphasis added)


Quite frankly, the cost of doing legal aid work now is beyond a joke. Write offs, probono work, charity - call it what you will - we do this day in, day out if we run a legal aid practice. Our abilities, skills and expertise have been reduced to a meaningless level due to the Governments approach and lack of understanding in what we do. There are now two very distinct and different classes of clients - those who can pay who get access to us when/as they feel is necessary or required, and those whose are on legal aid, who get access to us only if absolutely necessary , which issue we decide, not the client. Our Code of Ethics and Professional Conduct does not recognise this fact - same standards are required for both classes of clients - yet we would be bankrupt as a firm if we did not strictly control legal aid clients, and their access to us. Refusing to act for all clients who contact us for assistance is a necessary part of the control we have to exercise, as less members of the profession are willing to undertake legal aid work under the current tight constraints. (Emphasis added)





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I had always been committed to providing legal aid on the basis of ensuring access to justice. However, because I do not believe that I can act professionally and safely, or in the best interests of the client to achieve the very best outcome for the client and their children within the fixed fee grants.


As already stated no longer economically viable. Private rate is now $330 per hour plus GST. I don't even know what the legal aid rate is but assume it's still hovering around $151 inclusive of GST. I cannot generate the same level of fees as my partners by undertaking legal aid work. The reality is that legal aid clients tend to be very high maintenance and you generally write of significant time even before you get to the invoice. Sadly there are anecdotally a swathe of senior family practitioners who no longer undertake legal aid work. I have previously predicted that within the next five years there will be a crisis with access to justice as there will be so few lawyers doing legal aid work. This is already happening in provincial centres. (Emphasis added)


(…) The idea that all people in NZ are entitled to access to justice is now only a myth. I for one am tired of people (politicians) saying that the current system provides for all clients’ legal needs to be met - it does not. (…) Yet the level of work I do is at the higher level (ie complex RP matters in particular eg trusts, companies, partnerships, injunctions, regular interlocutory applications, etc) which type of work does not get recognised under the current grants, as it’s a one hat fits all mentality. It also seems to be irrelevant that the entire crown charge will be paid back upon settlement with the type of work I do - getting to an upper tier for fees is still a mission beyond compare, despite the obvious advantages in allowing us sufficient aid to press on with the matter to achieve resolution ASAP. No point in being proactive - there's no money allowed to take or show initiative, even though the client’s needs may require this to be done - practitioners are now simply going with the flow, as there is no funding to do anything else. It's a ghastly way to practise and goes against all my deeply instilled ethics that every person, regardless of gender, race or creed, is entitled to be represented and to have access to a lawyer to assist with their issues. We now are very discerning about who we take on as clients - we turn many away despite there being fewer lawyers now willing to do legal aid work. We have to, to survive as a firm, and to keep some degree of professional respectability intact. (Emphasis added)


Fixed Fees are just another way for the Government to try to get rid of legal aid providers and to save money. No access to justice for my clients. (Emphasis added)


Let the general public know that their child, mother, grandfather, sister, niece, newborn baby cousin, etc will all be affected if access to justice is not available. Forewarn the damage that could come from waiting one year before a Judge will become available to decide on a child's care arrangements. (Emphasis added)




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Keep informing the government of the ongoing lack of access to justice now for anyone who is eligible for legal aid! Even if you are eligible you probably won't get it. Also on most files the lawyer is not paid the amount owed!!! (Emphasis added)

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