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Legal aid remuneration crisis

News

Cite as: December 2010 84(12) LIJ, p.27

The LIV predicts private criminal lawyers will walk away from legal aid should a new fee structure be introduced.

The LIV has rejected Victoria Legal Aid’s (VLA) latest fee structure proposal as completely inadequate.

Private practitioners claim the new “whole of job fee” will force them to work at a loss in many cases for undertaking legal aid work.

LIV president Steven Stevens said the LIV was hoping to negotiate a more equitable resolution for members by the end of December.

Under the VLA plan, a single fee would be paid to cover all preparation and court time, regardless of the number of adjournments, appearances, prison visits or deferrals ordered by magistrates.

The proposed summary crime fee would be a single $754 payment for a simple matter resulting in a plea and $1508 for a complex matter. The single payment would cover all solicitor costs, including barrister fees if briefed for matters heard in the Magistrates’ Court.

Mr Stevens wrote to Victorian Attorney-General Rob Hulls on 23 September to alert him that if adopted, the proposal would perpetuate or, in many cases, further reduce the current lowly levels of remuneration and therefore “the supply of lawyers available for legal aid work”.

“We cannot sit back and tolerate the current situation; we propose to take whatever action is necessary to have this matter redressed,” Mr Stevens said.

“The LIV has been in [confidential] discussions with VLA since 2008, seeking an increase in remuneration paid to private legal practitioners. It is of concern that no success has been achieved.

“We believe the current VLA proposal is based upon inadequate research and incorrect assumptions that lawyers have created system inefficiencies by manufacturing adjournments.”

The VLA $602 fee for a simple summary matter has not increased since 2003. A grant of $602 in 2003 terms is now worth $712 when adjusted for inflation, meaning the proposed $754 payment is only a marginal increase on the 2003 fee.

On top of that, the jurisdiction of summary criminal law has expanded widely since 2003 to include more complex and serious offences requiring greater preparation.

A high-level meeting between VLA managing director Bevan Warner, Mr Stevens and LIV CEO Michael Brett Young on 28 October failed to resolve the situation.

At the time of writing, Mr Stevens was scheduled to address a VLA board meeting in mid-November.

The VLA proposal comes despite significant increases in legal aid funding in the past two state Budgets and the 2009-10 VLA annual report recording a $6.15 million surplus.

When approached by the LIJ, Mr Warner said the VLA review had recommended a 13.6 per cent increase in total payments, including a 22 per cent increase in aggregate payments in summary crime, for the same number of cases.

“We are continuing to discuss how the magnitude of these increases can best be delivered through a more modern fee scale that takes advantage of and holds parties accountable for new summary procedures,” he said.

Mr Hulls said he fully-supported moves “aimed at the early resolution of cases”.

“The government has increased funding to the VLA every year since we have been in office, including an extra $50 million over two years in this year’s Budget,” he said.

Mr Stevens said while the private sector was a valuable component of legal aid, the current situation would convince some lawyers to withdraw services from VLA, which would leave some accused without representation.

“We will also increasingly see junior lawyers performing important criminal work and there is obviously a much greater chance of wrong decisions being made if the work is handled solely by juniors, which will lead to an increase in the rate of appeals,” he said.

In September, the LIV’s Criminal Law Section surveyed its members to ascertain the support for the LIV’s opposition to the VLA proposals.

Over 95 per cent of respondents supported the LIV’s position.

“Criminal lawyers love the work as the vast majority have a passion for defending the underdog, but these proposals would make the work untenable for some and dramatically impact on their criminal practices,” Mr Stevens said.

“There has already been a decline in private lawyers performing legal aid and this remuneration crisis – because of its very real potential to undermine the foundations of legal aid in this state – runs the risk of truly creating a justice system comprising ‘one law for the rich, and another for the poor’.”

To view the VLA proposal, see www.legalaid.vic.gov.au/3115.htm.

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