Punishing lawyers who do the job properly

My initial reaction to the news that Victoria Legal Aid will be changing its rates to a “whole of job” structure was not particularly positive.

It will reward legal practitioners who apply pressure to their clients to plead guilty and resolve the matter quickly, whilst punishing those who vigorously defend their clients from allegations of crimes of which they are not guilty. Those who successfully advise their clients to plead up and get it over with, straight away, will do better than they do now. Those who assess the evidence more critically, and who successfully advise their clients to defend themselves properly will find themselves doing appearances effectively for free.

In the real world, despite the commitment to their duty as responsible officers of the court that is the hallmark of the vast majority of the profession, it seems to me that this proposed system will make it more likely that the innocent will pressured into pleading guilty. That our jail population will expand with residents who should never have been placed there.

And why? In order to save the taxpayer a few dollars. Well, a few dollars from the VLA fund – if more people are getting locked up, the taxpayer will just have to spend that money (probably more) on prisons instead, so it’s not really a saving. More a transfer of money from one area of the Department of Justice to the next.

But, even if it was going to save some money – isn’t the point of our legal system to achieve, as best we can, some form of justice? How is making it harder for those charged with crimes to defend themselves supposed to do anything but make a just result less likely?

When will we enter this glorious new world?

An implementation date for the new fee structure of 1 January 2011 has been set. There are likely to be further discussions before the final model is implemented. The Law Institute isn’t happy about the proposed changes, and after a couple of years of behind-the-scenes negotiation is starting to voice its dissatisfaction publicly.

I wish them luck with that. Sadly, coming at the end of a long review, I can’t see the Government resiling from this fundamentally broken approach.

ELSEWHERE: The copyright industry overseas, where lawyers don’t mind being dodgy.

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16 responses to “Punishing lawyers who do the job properly

  1. Splatterbottom

    The problem is that if you pay the bastards by the amount of work they do it is sadly predictible that they will run the case so as to ensure that they do the maximum amount of work. Cases will be run which should not be. Defendants will not be advised to plead guilty to lesser offences when given that option, and will not receive leniency in sentencing for admitting their guilt in a timely manner. Either way the problem is that lawyers are venal self-interested bastards with little respect for their duties to their clients and to the court.

  2. None taken.

    And you’re wrong.

  3. Splatterbottom

    Jeremy, I didn’t attack you personally, and meant no offence.

    I don’t see how lawyers can avoid having a financial interest in the way a case is run under any system, and that will impact the outcomes of clients. Anyway, there are watchdogs to discipline errant lawyers. Do you doubt that they will protect clients’ interests?

  4. jordanrastrick

    Ah Splatterbottom, you’re a classic. You wouldn’t want to attack Jeremy personally, but you’ll gladly hide behind a syllogism: “All laywers are venal self-interested bastards, Jeremy is a laywer, Therefore…. wait how does the conclusion go?”

    Sadly, as is often the case, by choosing to phrase your post as a troll the merit of what you’ve said is almost lost.

    The point that incentives matter is a fair one (I think the Freakonomics guys have hit the NYT bestseller list essentially just by repeatedly making it?) and in fact is a commonality to both your arguments – Legal Aid has a financial incentive to minimise case lengths, while the individual laywers have an incentive to maximise them; neither of these is actually in the interest of justice. Its silly to pretend that the laywers in question are all greedy devils or pure-hearted angels when of course they are merely humans, like the rest of us, and will fall on a spectrum of how affected their professional judgement is (consciously or otherwise) by money.

    The solution of course is to re-design the system to remove to the greatest extent possible any chance of a conflict of interest, in either direction. This is harder than simply sticking with one of the two courses, but far from impossible. For example, perhaps the decision on how much money Legal Aid is willing to spend financing a particular case could be made independently of the lawyer who will actually mount the defence. Or (since this has a mere-deferral-of-underlying-principal-agent-conflict-feel) maybe some more radical reform is needed.

    When Legal Aid wins a case, are they typically awarded costs (or is this only a civil and not criminal thing)? In a system where both the Public Prosecutor and the Public Defendant sourced a substantial amount of their budgets through funds awarded to them when they win cases, their financial incentives on how many resources to invest in a case would be aligned with their legal judgements of how likely they are to win.

    Anyway, there are probably flaws with that idea that would need to be ironed out, seeing as I am neither an economist nor a lawyer, and only just thought it up then. Still, it seems more productive to think about such possibilities rather than just bicker predictably about which of the alternatives currently on the table is the most flawed.

  5. Actually, there are already balances against lawyers unnecessarily extending cases:
    1. They have to go on the record advising VLA that there are merits to a contest, and VLA audits files.
    2. The police/courts object if matters are being taken to contest for no reason.

    The main problem with legal aid funding is that it’s so low and hasn’t kept even vaguely up with inflation. When I was a solicitor at legal aid almost a decade ago, the VLA fee for a plea was $16 less than it is today. You compare that with price increases over that period in pretty much every other area of life.

  6. The other check/balance as J pointed out is the pitiful remuneration, even under the old system.

    Only the junior, incompetent and socially conscientious really undertake Legal Aid work in any event, because the money is so poor. It’s viewed as charitable, almost akin to pro bono amongst many practitioners.

    This will only serve to wipe a few more conscientious practitioners from the shrinking list of the willing.

  7. jordanrastrick

    1. They have to go on the record advising VLA that there are merits to a contest, and VLA audits files.

    So they’re already doing a seemingly less intelligent (or perhaps just cheaper) version of my first suggestion, where the independent review of the lawyer’s reasoning is done retrospectively rather than prospectively, so there’s no chance to overrule them while their on raking up the billables. Well, it’s something.

    2. The police/courts object if matters are being taken to contest for no reason.

    Who decides if the prosecutor is right in their argument that the defence lawyer’s case is frivolous? It wouldn’t be the judge, would it? So the first kind of objections reduces to a special case of the second.

    Again, this looks, to me, like a partial implementation of my (other) proposal. Namely, the defence lawyer has a disincentive against taking a case to court that’s so bad the judge might actually object to it outright. If you added an incentive for the defence to say plea bargain in a more marginal case, and one for them to stick to their guns if they thought they were a shoe-in to win, plus you made the situation symmetrical for the prosecutor, then you’d have my system. It might not actually be necessary to do all that; non-monetary incentives like doing a good job and a love of justice and all that might be enough to cover your bases. And monetary incentives can actually be harmful sometimes. But still, its worth exploring these options.

    Only the junior, incompetent and socially conscientious really undertake Legal Aid work in any event, because the money is so poor. It’s viewed as charitable, almost akin to pro bono amongst many practitioners.

    This will only serve to wipe a few more conscientious practitioners from the shrinking list of the willing.

    I don’t see why the junior or the incompetent are any less likely to be motivated by the (smaller) amounts of money they are capable of earning than a competent lawyer would be motivated by a larger amount.

    As for the conscientious, you can’t have it both ways. If competent Legal Aid lawyers see it as charity, then why does getting paid less matter? They should be happy that more defendants will get representation. Conversely, if this prospective pay cut is enough to drive some people out of the system, that’s evidence that they care about getting paid as well as about justice.

    Now, I’ll go so far as to say there are weird psychological effects (at least, if you’re an extreme economic rationalist) when you go toward the intersection of altruism and self-interest, between charity and trade. People will often volunteer help to friends, and may also be equally comfortable charging them market rates for their labour, but won’t countenance anything “in between” – would you be insulted if a relative offered you $10 to spend 4 hours helping them move house? Probably, but then you might happily let them buy you a $10 lunch.

    To be honest, I always thought the Big Issue might struggle for this reason – you’re neither donating money to a homeless person nor buying a magazine off someone who’s job it is to sell it, but something in between. However, it seems to have hit the right balance.

    Legal Aid seems like it might already be in this twilight zone, and if so it should be very hard to predict what the actual effect of this change will be. Maybe they’d actually get better lawyers, or at least more motivated ones, if they stopped paying altogether and just relied on pro-bono work? They could use their budget instead to put ads in legal journals – “Don’t give your money to charity, give your time to justice”, or something.

    The main problem with legal aid funding is that it’s so low and hasn’t kept even vaguely up with inflation.

    Yes, well, in this case my own preferred solution happens to be for a change spend more damn government money rather than trying to fiddle with economics to get more bang for your buck. Pay enough to get good lawyers and maintain their moral, and they generally won’t screw you too badly with their timesheets any more than any other employee in a functional and healthy work environment.

    However, while there are votes in giving pensioners cheap train travel, there are none in providing justice to poor criminals – sorry, I mean people accused of crimes who are clearly guilty from what I read in the newspaper so how come they get this nonsense right to a trial, how ridiculous. So yeah, I think legal aid is sadly doomed to be perpetually underfunded – unless you start getting the money from an unconventional source. Which brings me back to something I think I might have proposed earlier….

  8. I’m not sure where you’re getting the idea that non-meritorious contests are being regularly run now. Since the system is already heavily weighed against poorer defendants – particularly in the Magistrates’ Court – I’d rather VLA concentrated on providing them with decent representation first and worried about saving itself a few bucks second. I don’t think scaring lawyers off representing clients with difficult cases serves the cause of justice.

    “As for the conscientious, you can’t have it both ways. If competent Legal Aid lawyers see it as charity, then why does getting paid less matter? They should be happy that more defendants will get representation. Conversely, if this prospective pay cut is enough to drive some people out of the system, that’s evidence that they care about getting paid as well as about justice.’

    There are many lawyers who do VLA work because we are trying to assist people who need it – but we also have to put food on the table and provide for our families. It’s one thing being prepared to live a humble life to put something back – it’d be quite another not being able to pay the rent. The worse the VLA rates get – and staying steady despite inflation has the same effect – the more good barristers are forced to do other work instead.

    As for pro-bono – lawyers already do a great deal of pro bono work. But there’s too much VLA-type work that needs doing for it to be done by lawyers for free. You’d need every lawyer in the state devoting two or three days a week to working for free, which is just unrealistic.

    “Pay enough to get good lawyers and maintain their moral, and they generally won’t screw you too badly with their timesheets any more than any other employee in a functional and healthy work environment.”

    Quite right.

    “However, while there are votes in giving pensioners cheap train travel, there are none in providing justice to poor criminals – sorry, I mean people accused of crimes who are clearly guilty from what I read in the newspaper so how come they get this nonsense right to a trial, how ridiculous. So yeah, I think legal aid is sadly doomed to be perpetually underfunded – unless you start getting the money from an unconventional source. “

    And that’s a large part of the problem, and one way in which News Ltd and such organisations do real damage in the community.

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  10. Has anyone actually read the report? If you do the sums, if a lawyer does 3 complex guilty pleas per week they would be able to bill legal aid $4524 per week or $208,000 per yr. If a lawyer does 1 non complex plea per day this works out to $3770 per week or $173000 per yr. As I understand it anyone with a practicing certificate can do legal aid work and a lawyer can be employed by a firm at a third of what the firm can bill legal aid. Isn’t that an issue? Perhaps more lawyers need to pay a visit to their accountants for financial advice.

  11. “If you do the sums, if a lawyer does 3 complex guilty pleas per week they would be able to bill legal aid $4524 per week or $208,000 per yr.”

    That’s ridiculous. Have you seen the definition of “complex” matters? Those are not matters you knock over in a single appearance, or even two.

    Most matters would be defined by VLA as “simple”, at a much smaller rate, and they would also require several appearances.

    Further, VLA is raising the cutoff from a $750 fine to a 200 hour CBO, ruling out a huge number of defendants from representation. More on this later.

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  13. I would suggest that 1 lawyer would do more than the number of cases I stated per week whether complex or non complex and actually earn a reasonable income to be able to “put food on the table and pay the rent”. The last time I checked the ave income was around $60,000.
    Let’s not forget legal aid is not in the business of making profits but rather responsible for spending the tax payer’s money. I like many taxpayers am happy for my taxes to be used to help disadvantaged members of the community and to pay lawyers what is “reasonable” in order to achieve justice. But I don’t believe my taxes should be used by legal aid to give lawyers a luxurious lifestyle. This should be left to those who have the money to pay for it. I don’t think criminal law is the way to go maybe lawyers with that expectation should join a commercial law firm.

  14. “I would suggest that 1 lawyer would do more than the number of cases I stated per week whether complex or non complex and actually earn a reasonable income to be able to “put food on the table and pay the rent”. The last time I checked the ave income was around $60,000.”

    You have some very strange ideas about legal aid work, mate. Each court appearance can take up to a full day, and the lawyer has very little control over that.

    “Let’s not forget legal aid is not in the business of making profits but rather responsible for spending the tax payer’s money. I like many taxpayers am happy for my taxes to be used to help disadvantaged members of the community and to pay lawyers what is “reasonable” in order to achieve justice.”

    Likewise. They’re not doing that.

    “But I don’t believe my taxes should be used by legal aid to give lawyers a luxurious lifestyle. “

    That statement is beyond laughable. Talk to some lawyers doing legal aid work before spouting off on this, seriously. Much of the junior Bar is living at well below the average wage. A very large percentage don’t make it past two years.

  15. Firstly, have to whinge – requiring a login is a pain to comment. But I’ve done it now.

    I agree with Jeremy, this will lead to yet more guilty pleas. There is already extreme pressure in the system to plead guilty anyway (in fact if you didn’t have heaps of people pleading guilty to stuff they didn’t do, the system would collapse).

    My experience is that many lawyers do push guilty pleas, because they are easier, and this will get a lot worse.

    As a side note, who wants to guess how many legal aid employee solicitors have actually run a contest? I think the percentage would be very low…..

  16. In fact, I’d just go further and seriously abolish legal aid. Its just so bureaucratic and larded with stupid rules and sublimits. Has anyone ever run a legal aid file where at least half the paperwork relates to the grant of aid, rather than the matter itself?

    Anyone who’s worked at legal aid knows the sheer number of useless bureaucrats (none of whom, as I’ve said, have ever run a contest) who would not be missed.

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