Paying Criminal Lawyers Big Bucks May Not Be Worth It, Study Finds

Legal aid lawyers may be more effective than private criminal lawyers who clock long hours and charge big bucks, a new study has found.

The NSW Bureau of Crime Statistics and Research (BOCSAR) investigated the outcomes of cases for people using publicly-funded lawyers from both the Legal Aid system and the private law industry.

People who cannot afford representation can apply for help from Legal Aid, and can be matched with a lawyer either employed directly by the organisation or a private lawyer who takes public cases, the research, made public on Wednesday, showed.

"Legal Aid NSW delivers legal services in partnership with the private legal profession through grants of legal aid. In 2014-2015 private lawyers represented 41.8 percent of legal aid clients," Legal Aid said on its website.

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The research, said to be an Australian-first comparison, found that cases taken by private lawyers were less likely to be dealt with as 'summary' cases in lower courts, but also less likely to be committed for sentence, than cases taken by in-house legal aid staff.

BOCSAR executive director Don Weatherburn told the Sydney Morning Herald private lawyers may have incentive to take their case to a higher court, because they may be able to claim more payment there than in a local court.

"Cases assigned to private lawyers are also more likely to result in a late guilty plea," the BOCSAR report found, which was attributed to lawyers wanting to draw the case out longer to claim more fees.

"BOCSAR found that a case assigned to a private lawyer is approximately 13 to 14 percentage points less likely to be dealt with summarily after entering a guilty plea compared to a similar case dealt with by an in-house lawyer."

The report also found that private lawyers are slightly more likely to enter late guilty pleas. BOCSAR said it had undertaken the research at the request of Legal Aid NSW, over concerns that private lawyers may be drawing out cases so they could claim larger fees.

BOCSAR said Legal Aid "had become concerned that the 'billable hours' system and the comparatively low fees paid to private lawyers doing legal aid work may create an incentive to maximise the number of hours spent on each case, thereby delaying the resolution of cases."

The research investigated whether private lawyers had an incentive to increase their billable hours (Getty Images)

In a statement to 10 daily, Legal Aid NSW CEO Brendan Thomas said he would study the findings.

"We welcome the BOCSAR report and welcome any research that enables us to improve the services that we deliver to our clients," Thomas said.

"We deliver our services in partnership with private lawyers, who deliver a large volume of our services across crime, civil and family law matters. We highly value the work that’s done on our behalf by private lawyers."

“We will closely study the BOCSAR findings to understand how we can work with the private profession to continue to offer a high standard of service.”

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NSW Law Society president Elizabeth Espinosa said the findings illustrated the need for more legal aid funding.

"Legal aid is underfunded and close to crisis," she told 10 daily.

"The caseload for Legal Aid NSW is such that for many years, the commission has relied on private practitioners to help their client base. The real issue is that, regardless of whether legal aid uses in-house or private lawyers, it is vastly under-resourced."

Espinosa said legal aid practitioners, especially in regional and rural areas, work extremely hard, and praised their effort.

She added that in some areas, there are no legal aid workers at all, so private lawyers are responsible for all publicly-funded representation. She added that, in contrast to the BOCSAR report, many private practitioners often worked far beyond their billed hours when doing legal aid work.

"There has been no increase of rates of solicitors for nearly a decade... legal aid provides funds for tasks to be completed, and the private practitioners work above the hours billed, particularly in the regions," Espinosa said.

"This is an incredibly detailed report, but our initial response is the study shows efficiency but no analysis of hours or the quality of outcomes."

"We call on the NSW government to provide more funding for legal aid. It's a dereliction of their duty to adequately fund legal aid in this state."