Legally aided lawyers are commonly under-remunerated by the legal aid regime
The High Court has ruled that legal aid administration falls within the definition of “legal services” under the Legal Services Act 2011.
In 2014, Mauha Fawcett was convicted for the murder of Christchurch sex worker Mellory Manning – a conviction that was overturned on appeal. Fawcett received legal aid throughout the proceedings, and his counsel made an application for an amendment to the grant of legal aid, seeking an additional 90 hours of legal aid. The counsel claimed that the work required for the management of the legal aid grant was of such a magnitude, that it distracted from the provision of services directed to the proceedings.
The Legal Services Commissioner declined the application on the ground that the time spent on administration of a grant of legal aid did not fall within the provision of legal services to Fawcett. The matter was brought to the High Court to resolve the issue of whether legal aid administration falls within the definition of “legal services” under the Legal Services Act 2011.
Fawcett asserted that the proper interpretation of “legal services” includes legal aid administration, when considering the act’s context, plain meaning, and taking a rights consistent interpretation. His counsel further contended that the exclusion of some legal aid costs means counsel must either work for free or spend hours that ought to be spent on representation performing administrative tasks.
The Commissioner argued that legal aid services have always been anchored in advice and representation in respect of a proceeding, and that legal aid administration does not involve actions preceding or preparatory to a proceeding.
Purpose and context of Legal Services Act
The High Court observed that the purpose of the Legal Services Act was to promote access to justice by providing legal services to people of insufficient means and delivering them in the most effective and efficient manner possible. The court emphasized that the meaning of a provision must be ascertained from its text and in the light of its purpose and context.
The High Court also noted acknowledge that the underlying contention in this case was that legally aided lawyers were under-remunerated by the legal aid regime, particularly regarding complex, criminal matters like those of Fawcett.
Defining ‘legal services’
The High Court ruled that legal aid services mean legal advice and representation, and include assistance:
- with resolving disputes other than by legal proceedings
- with taking steps that are preliminary to any proceedings
- with taking steps that are incidental to any proceedings
- in arriving at or giving effect to any out-of-court settlement that avoids or brings to an end any proceedings
The court found that the matters described by Fawcett involving legal aid administration can properly be described as steps that are either preliminary or incidental to any proceedings. The court said that the definition of legal services includes provision of assistance with taking steps that are either preliminary or incidental to a proceeding.
The court pointed out that the purpose of the act is to promote access to justice by establishing a system that provides legal services to people of insufficient means, in the most effective and efficient manner. The court said that a rights consistent approach is to be preferred.
“The most rights and purpose consistent interpretation is one in which the work in question in this appeal is considered legal services, for the purpose of allowing providers to provide the highest-quality legal services possible,” the court said.
The court concluded that in the circumstances of this case, which involved work that was significant, complex and time-consuming, the administration of the legal aid grant amounts to the provision of a legal aid service.
