Steven Zindel, principal of Zindels, Nelson, warns what could happen if fixed fees for legal aid cases is adopted:
”Cherry picking ” cases
There are fixed fees now for guilty pleas in the Judge alone criminal court but if they get rolled out, at minimal levels, to jury trials, family cases and appeals, you can bet your bottom dollar that there’s going to be “provider exit” going on as well as “cherry picking” of what cases should be taken.
Potential to compromise complex cases
Clients with mental health or personality issues, where English is a second language or where their cases are complex may miss out. Your plumber or mechanic would not usually work this way and legal cases have many more imponderables including the anxiety level of the client and his/her family, the attitude of the other side and how success is often about the quality and quantity of the preparation.
You get what you pay for & cheap may have expensive repercussions
Lawyers have their ethics and there will be discipline and judicial sanctions “pour encourager les autres” but this all goes only so far. The brute fact is that you get what you pay for and if, for example, information seeking interlocutory processes are part of a fixed fee menu, the use and quality of such will go down. As a result, the court hearing may appear fair from the outside but parties will be disabled from presenting their best case. Then, there will be appeals and complaints or civil claims about counsel. Those wrongly imprisoned will look for taxpayer compensation and there may be a reluctance to convict if criminal defendants do not look like they’re getting a fair go or if there is widespread publicity about miscarriages of justice.
Cutting costs intelligently
Money has to be saved but justice, like health, is one of those key policy areas that you tinker about with at your peril. It would be better to reduce hourly rates, take legal aid away from certain categories or to allow lawyers to negotiate private fee top-ups more regularly from clients’ friends or family than to treat cases on a “one size fits all” model. There is much that could be done to eradicate red tape and that would save money. And there could be more room for discretion as to what cases see the light of day before lawyers are even needed, with over-recourse to litigation and overly-punitive responses also increasing the costs of legal aid.”
Steven Zindel is a contributing author to the Thomson Reuters Legal Aid Handbook and to Brookers Legal Services available online and in looseleaf. He is, as he says on his website, ” passionate about creating equal access to justice for all.”