Ministry of Justice, New Zealand

The Legal Services Bill 2010 establishes a new quality framework for legal aid lawyers. The Ministry of Justice is consulting on two aspects of the framework – proposed criteria for approval as a legal aid provider (entry criteria) and standards which legal aid lawyers should meet to ensure that legal aid services are of an acceptable quality (practice standards). Consultation closed on 20 October 2010.

• Summary of submissions - Legal Aid Quality Assurance Framework
  

Proposed entry criteria and practice standards

• Overview of the quality framework
• How to comment on the proposed entry criteria and practice standards
• Proposed entry criteria
• Proposed practice standards
• Criminal practice standards
• Family practice standards
• Maori Land Court/Maori Appellate Court practice standards
• Waitangi Tribunal practice standards
• Mental Health practice standards
• Overview of changes to the legal aid system
• Glossary of terms

Download the Legal Aid Quality Framework: Proposed Entry Criteria and Practice Standards (PDF, 361Kb)

Consultation meetings with legal aid lawyers

The Ministry of Justice would like to invite legal aid lawyers to meetings to discuss the proposed entry criteria and practice standards. The meetings will be held at the District Courts in the following places at the following times.

We appreciate that it may be difficult for those in Christchurch to attend a meeting, following Saturday’s earthquake. We will liaise with the Christchurch court before determining whether to go ahead with the consultation meeting as outlined below. We will provide up to date information on both this website and at the Christchurch court.

Introduction

1.  The Government has announced a comprehensive package of changes to the legal aid system that will deliver high-quality legal services to those who need them most, in a way that is cost-effective and sustainable. The Government has largely accepted Dame Margaret Bazley’s report on transforming the legal aid system and will implement her key recommendations over the next two years.

2.  The Legal Services Agency is implementing several changes within the existing legislative framework. These include expanding the Public Defence Service and changing the way that criminal cases are assigned to approved legal aid lawyers.

3.  The Legal Services Bill, which will replace the Legal Services Act 2000, was introduced into Parliament on 4 August 2010. The Bill disestablishes the Legal Services Agency and shifts responsibility for the administration of legal aid to the Ministry of Justice. It also establishes a Statutory Officer who will be responsible for granting legal aid and managing cases assigned to the Public Defence Service. 

4.  The Bill also introduces a new quality assurance framework to ensure that all legal aid providers have the skills to do the job assigned to them. The quality assurance framework aims to strengthen the current approval process, and introduce a requirement for regular re-approval, which is informed by monitoring of providers’ performance. 

5.  Together, these initiatives will establish a system in which everyone can have confidence that legal aid expenditure is directed at quality legal services provided by competent providers. 

6.  Further information about the changes is available in Appendix 3 and on the websites of the Ministry of Justice and the Legal Services Agency.

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Quality assurance framework

7.  The proposals contained in this paper are based on the quality assurance framework provisions of the Bill. The Legal Services Bill was introduced into Parliament on 4 August 2010. Any amendments made to these provisions of the Bill during the Parliamentary passage of the Bill will inform and determine final proposals.

8.  The Ministry of Justice wishes to acknowledge the contribution of the New Zealand Law Society, which has provided input into the development of the quality framework and, in particular, the development of the draft practice standards.

9.  Dame Margaret Bazley released her final report, Transforming the Legal Aid System – Final Report and Recommendations in November 2009. The Bazley report found that the legal aid system is perceived by many as being a second-rate service, and its clients deserving of a lesser standard of care. It also found that this is unacceptable, given that many of the clients of the legal aid system are already disadvantaged and at risk of social exclusion.

10.  While noting that most legal aid lawyers are experienced, conscientious and a credit to their profession, the report found a small but significant proportion of lawyers providing very poor services.

11.  As one of the changes being introduced to improve the legal aid system, the new quality framework will set benchmarks that competent providers should already be meeting. Legal aid clients are as deserving of competent legal services as privately funded clients, and they look to the state to ensure this. The Government is also accountable to taxpayers for the quality of services paid for with public money.

12.  Based on the Bill as introduced, the quality framework would need to include:

1. An approval and re-approval system for lawyers providing legal aid services. The system includes entry criteria that will be included in regulations to the new legislation. They will be used by Selection Committees when assessing the suitability of lawyers to provide legal aid services; and
   
2. Practice standards that each provider will be required to meet when providing such services. The Ministry expects that these standards will form part of the contracts with providers from commencement of the new legislation.
   

13.  The proposed entry criteria and practice standards are attached for consultation (see Appendix 1 and Appendix 2).

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New approval and re-approval system under the quality assurance framework

14.  All providers of legal aid services must be approved (see footnote 1).

15.  Providers approved under the Legal Services Act 2000 will remain approved providers for a period of six months from the commencement of the new legislation, except where the approval has been cancelled or temporarily suspended under the 2000 Act (clause 135 of the Bill).

16.  Providers transitionally approved will need to re-apply within those six months under the new quality assurance framework. However, clause 79(4) of the Bill authorises the Secretary for Justice to grant temporary approvals to a provider while an application is being processed. Existing providers will remain approved providers until their applications have been approved (or otherwise) under the new process. It is anticipated that all re-applications will be processed within 18 months of commencement of the new legislation.

17.  Applicants will need to meet new criteria to be approved as a legal aid provider under the new regime. There will be no fee for lawyers to apply to become approved providers, although there may be some cost in obtaining a Certificate of Standing from the Law Society. Providers will be approved for a fixed period of up to three years, after which they will need to re-apply for approval. 

18.  Selection committees will be established to assess applications against set criteria and make recommendations to the Secretary for Justice on the approval of applicants (clause 78 of the Bill). Providers will need to demonstrate they meet the entry criteria. The Secretary will make the final decision on approvals and may attach conditions to approvals. 

19.  Similar to the current system, lawyers will be approved to provide legal aid services for particular matters (such as family or criminal law cases). It is contemplated that the types of legal aid services for which approval will be granted will be similar to the current classifications and will include criminal, civil, family, mental health, and tribunals; and Waitangi Tribunal, Māori Land Court, and Māori Appellate lists.

20.  Criminal legal aid has four categories based on the provider’s experience. Those categories (Categories One to Four) are expected to continue, although they will be reviewed as necessary. We intend to develop similar categories (eg, junior and senior categories) for the civil and family lists in future.

21.  Approval will not entitle lawyers to provide legal aid services. Approved legal aid providers will only be able to provide legal aid services if they have a service contract with the Secretary for Justice. The Secretary will enter into contracts with providers following an open and transparent process.

22.  The Ministry of Justice will monitor the performance of legal aid providers through audits, court observation, client feedback and peer review processes. Applications for re-approval will also take into account audit or peer review reports and complaints or performance investigations.

23.  A Performance Review Committee will be established to consider concerns where the problem is significant enough to call into question the overall performance of the legal aid provider (clause 79 of the Bill). Concerns may be referred to the Performance Review Committee following complaints by legal aid clients, by the New Zealand Law Society (eg, as a result of disciplinary action), or as a result of contract monitoring or auditing.

24.  The Performance Review Committee will recommend appropriate sanctions to the Secretary for Justice. Sanctions may include non-payment for lawyers who do not deliver the required services, working under supervision, or suspension from providing legal aid services for a period of time. The Secretary will make the final decision on any sanctions to be imposed.

25.  A Review Authority will be able to review a decision by the Secretary to decline an application for approval or re-approval, or to impose conditions on an approval or re-approval (clauses 84 to 86 of the Bill). Approved providers will also be able to apply to the Review Authority to challenge a decision made by the Secretary following an investigation by the Performance Review Committee. The Authority will be able to confirm, modify or reverse the Secretary’s decision.

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Proposed entry criteria 

26.  The Legal Services Bill, as introduce, sets out that entry criteria are to be set in regulations. Entry criteria regulations will be made after the Legal Services Bill has been passed. The consultation on the proposed entry criteria is timed to allow the proposals for regulations to be developed alongside the Bill. Any changes to the Bill as it progresses through the Bill will inform the development of the criteria. Where necessary, further consultation will be undertaken.

27.  Specifically, criteria for approval will set out requirements regarding:

1. Qualifications and restrictions on practice
   
2. Experience and competence
   
3. References
   
4. Client service delivery systems
   

28.  The proposed new criteria build on, and strengthen, the current entry requirements for applicants seeking to be approved as legal aid providers. The development of the criteria has also been informed by the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, the Public Defence Service entry standards, and overseas examples, including the New South Wales legal aid entry standards.

29.  The entry criteria contain a mix of competence, experience, and character requirements. The criteria are a combination of requirements that a provider must meet to be considered eligible to be a legal aid provider and factors that will be taken into account when assessing the application, but which are not necessarily fatal to an application. Applicants seeking entry on to multiple lists will need to meet the criteria for each list.

30.  The Ministry expects that entry criteria for approval and re-approval will evolve over time to reflect changes as they occur in legal practice, new legal education courses, and the lawyers’ regulatory regime.

31.  The proposed entry criteria are attached as Appendix 1 for consultation.

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Proposed practice standards

32.  The Legal Services Bill will allow the Secretary for Justice to issue practice standards, and the Ministry envisages they will form part of legal services contracts. The contracts may be either long-term, up to three years, or for shorter periods and/or for special circumstances.

33.  The practice standards focus on minimum client service requirements expected of a competent lawyer and set out a number of operational requirements. Lawyers who have a contract to provide particular legal aid services will have to comply with the practice standards pertaining to those services.

34.  The practice standards comprise:

1. General practice standards applicable to all legal aid services;
   
2. Specific practice standards that will apply to particular types of legal aid services.
   

35.  Legal aid providers will be audited and monitored against the relevant practice standards. Non-compliance with practice standards may also trigger the review process, which can lead to a provider’s approval being cancelled and their exclusion from the legal aid system.

36.  Legal aid providers should have a peer review, supervision or mentoring relationship with an experienced competent lawyer for the purpose of discussing issues that arise in the course of practice and obtaining feedback about and improving his or her practice.

37.  The proposed practice standards are attached as Appendix 2 for consultation.

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How to comment on the entry criteria and practice standards

38.  The Ministry of Justice welcomes your comments on the proposed entry criteria and/or the practice standards.  We are particularly interested in your views on whether they reflect the standards to be expected of a competent lawyer, and any other matters that you consider should be included as part of either the entry criteria or the practice standards. If you are a practising lawyer, we would also like your views on what impact the criteria and standards would have on your legal practice.

39.  You may send your comments directly to the Ministry of Justice:

Legal Aid Reform
c/o Ministry of Justice
PO Box 180
Wellington
legalaidreform@justice.govt.nz

40.  Submissions close at 5.00 p.m. on Wednesday, 20 October 2010.

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Next section: Appendix 1 - Entry criteria

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Footnote 1

The new criteria will only apply to lawyers seeking to become legal aid providers. For secondary providers and non-lawyers [eg, legal executives, law clerks], the current criteria will continue to apply.