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Annual Report 2017 - 2018

Private lawyers

Legal Aid NSW works in partnership with private lawyers, who receive funding from us to represent legally aided clients in assigned matters.

Private lawyers are appointed to Legal Aid NSW panels under sections 49 to 52B of the Legal Aid Commission Act 1979.

In 2017–2018, private lawyers provided 43.9% of Legal Aid NSW case and duty services. More details appear in Appendix 10.

The Grants Division of Legal Aid NSW (Grants) receives, determines and manages legal aid applications from private lawyers and the Legal Aid NSW in-house practice. Applications are submitted and managed electronically. Staff in the Grants Division have regular telephone contact with lawyers and clients.

Fact file
Total staff: 74
Total applications for legal aid processed: 48,364
in criminal law: 30,252
in family law: 15,934
in civil law: 2,178
Number of individual lawyers appointed to 12 Legal Aid NSW panels*: 2,146
Percentage of legally aided case and duty services provided by private lawyers: 43.9%

* This includes lawyers appointed to more than one panel

Total individual panel members

Total individual panel members chart

Number of private lawyers on Legal Aid NSW panels 2017–2018*
Domestic Violence 96
Veterans' Law 4
Mental Health Advocacy 180
General Civil Law 159
Complex Criminal Law Barrister 99
Appellate Criminal Law Barrister 87
Children's Criminal Law 181
Complex Criminal Law Solicitor 221
Indictable Criminal Law 367
Summary Criminal Law 1,422
Independent Children's Lawyer 133
Care and Protection** 264
General Family Law 906

* This includes lawyers who are active members of more than one panel.
** 162 of the 264 Care and Protection Panel members are appointed to act for children as well as adults.
All of the numbers include current active panel members whose appointment start dates are before 30 June 2018.

Panel member type pie chart

Panel member location pie chart

Panel member specialist accreditations chart

Top five languages pie chart

OBJECTIVE Access to justice

More private lawyers were available to represent legally aided clients

Private lawyers doing legal aid work are required to be a member of a Legal Aid NSW panel. Panels operate in all areas of law, including general panels in criminal, family and civil law. There are specialist panels for care and protection, independent children’s lawyers, complex criminal law for solicitors, indictable criminal law, children’s criminal law, mental health advocacy, veteran’s law and domestic violence matters. There are also specialist panels for barristers briefed in complex criminal law matters and appellate criminal law matters.

Legal Aid NSW panels are comprised of 2,146 individual private lawyers across 1,648 registered firms (individual barristers are registered as a firm) who are current members of one or more panels.

Panel lawyers are located throughout NSW with 1,219 panel members based in the Sydney metropolitan region. There are 906 panel lawyers located in regional NSW and 21 lawyers located interstate or in the ACT.

In 2017–2018, there were 915 appointments made to Legal Aid NSW panels. There were also 100 reappointments of current panel members whose five-year panel appointments expired throughout the year.

Implement Domestic and Family Violence reforms and initiatives

After the completion of a rigorous selection process for the Domestic Violence Panel in the second half of 2017, Legal Aid NSW appointed 110 lawyers to the panel.

The Selection Committee recommended that lawyers appointed to the panel would be required to undertake training organised by Legal Aid NSW in family violence and other matters relevant to the work undertaken by panel members. So far, 94 panel members have attended the training sessions.

Implement the Early Appropriate Guilty Plea reforms

With the implementation of the Early Appropriate Guilty Pleas reform on 30 April 2018, we restructured the General Criminal Law Panel. All current members of the General Criminal Law panel were transferred to the new Summary Criminal Law Panel.

A new Indictable Criminal Law Panel was established for non-complex indictable criminal matters. The selection criteria for inclusion on this new panel required a greater level of criminal experience than the Summary Criminal Law Panel, reflecting the change in the nature of the work required of a solicitor at the Local Court stage under the reform.

The Indictable Criminal Law Panel opened for applications in November 2017. We received 500 applications from private lawyers that were considered by a Selection Committee. 389 applicants were recommended for appointment to the new panel, which became operational on 30 April 2018

OBJECTIVE Excellence in legal services

Consulted practitioners over changes to fee scales

We conducted a review of the fees we pay to private lawyers undertaking legal aid work. The base hourly rate of $150 in legally aided matters has not increased since 2007. We prepared a discussion paper on fees and consulted with the Law Society of NSW, the NSW Bar Association and individual practitioners. We have developed options to reform the fee scale, which include both changes to the hourly rate and structural changes to the fee scales. Structural changes would address key pain points raised by practitioners during the consultation, such as the fee for preparation in summary crime matters, fees for gaol visits, travel rates and the fees paid in the initial stage of proceedings in the family law matters.

Reopened Complex Crime Barrister Panel following review

In 2017–2018 we completed a review of the selection process and panel documents for the Complex Criminal Law Barrister Panel.

Following consultation with the NSW Bar Association, Law Society of NSW and the Public Defenders, the panel opened for applications in September 2017. We received 62 applications from current members applying for reappointment and 81 applications from new applicants that were considered by a Selection Committee. 61 reappointment applicants along with 39 new applicants were recommended for appointment to the panel.

Appointments to the panel will be for two years from 2018, to allow for a further review of the panel and its requirements before the panel is re-opened again.

Implement the reforms arising from Criminal Appeals review

In 2017 we completed the Review of Legal Aid NSW Higher Court Criminal Appeals Policies and Procedures. A number of recommendations were made to strengthen the selection process for and monitoring of the Appellate Criminal Law Barrister Panel.

As a result of the review, selection criteria for new applicants and reappointment applicants along with the appellate crime barrister and complex crime solicitor practice standards were amended. These changes provided strengthened selection criteria for the panel and a clearer prescription of matters to be addressed by counsel when assessing the prospects of success of an appeal. A new strengthened monitoring process will be implemented for panel barristers instructed in legally aided higher court appeals.

The panel will re-open for applications in the second half of 2018.

Lawyers complied better with practice standards due to audits

Legal Aid NSW conducts regular audits to assess Legal Aid NSW conducts regular audits to assess compliance with practice standards and ensure private lawyers comply with our policies and guidelines. In 2017–2018 we audited 587 panel lawyers and 2,213 files/claims and requested refunds of $163,381, a slight reduction from last year due in part to a change in audit focus from claims to non-financial risk areas.

Spot check audits of claims were a priority. This year, we focused on claims for court time in family law matters. In total, we spot check audited 576 panel lawyers and 2,196 claims/matters.

These audits highlighted the general overall compliance of panel lawyers with the practice standard requirement of maintaining adequate file notes of court attendances.

We also completed file audits of seventeen files for eleven panel lawyers, and in response to a recommendation arising from the Grants Civil Law Review, we facilitated a qualitative file review of six matters assigned to panel lawyers. Three of the files audited satisfactorily met the requirements of the Civil Law Practice Standards and the remaining three files had identified issues with file management.

Yearlawyers auditedfiles/spot check auditsRefunds requested
2014–2015116602$11,713
2015–20165032,046$84,076
2016–20177053,448$142,770
2017–20185872,213$163,382

Review of Audit Strategy

This year we completed an Audit Review of our panel lawyer audit strategy.

The Audit Review made a number of recommendations including that Legal Aid NSW consider including additional non-financial risk indicators in our targeting methodology. In response, a number of our spot check audits focused on:

  • practitioners who did not advise Legal Aid NSW of the outcome of the proceedings for which legal aid was granted
  • means verification for applicants who stated that they are not in receipt of a maximum Centrelink benefit on their application for legal aid
  • compliance with the requirements of the Independent Children’s Lawyer Panel Practice Standards with respect to meeting with children.

Some lawyers failed to cooperate with audit

Failing or refusing to cooperate with a Legal Aid NSW audit can have serious consequences for panel lawyers pursuant to section 52B (11) of the Legal Aid Commission Act 1979 including removal of the lawyer from panels to which the lawyer is appointed. In 2017–2018, five panel lawyers were removed from the panels to which they were appointed because they failed to cooperate with an audit.

Communication with Panel Lawyers

Panel lawyers received regular updates about audit issues and activities in monthly Legal Aid news bulletins. Following the review of the Panel Lawyer Audit Strategy, we updated the Audits Information page of our website. This included the addition of a new Audits FAQ’s page listing some of the most commonly asked audit questions we receive from panel lawyers throughout the audit process.

At the end of 2017 we developed a guide highlighting five good practice audit themes we identified from our panel lawyer audits conducted during 2017 to assist panel lawyers confidently meet Legal Aid NSW audit requirements.

Monitoring breaches of service agreements

Legal Aid NSW investigates apparent breaches by panel lawyers of panel service agreements and refers matters to the Monitoring Committee. The Committee, which comprises nominees from the Law Society NSW, the New South Wales Bar Association and Legal Aid NSW, makes recommendations to Legal Aid NSW about lawyers who have breached panel service agreements.

During 2017–2018, we investigated 66 panel lawyers; a substantial increase on the sixteen serious complaints we investigated nearly a decade ago in 2008–2009. Most related to the Summary Criminal Law panel (formerly the General Criminal Law Panel). Of these, four panel lawyers were being considered for referral to the Monitoring Committee for apparent breaches of panel service agreements early in the new financial year.

The substantial rise in serious complaint matters referred to Professional Practices in the last decade reflects the increase in panel lawyers and more specialised panels.

calendar iconThe year ahead

  • Implement a new panel of private lawyers for Sexual Assault Privilege Communication matters.
  • Complete the next five-year review of the Complex Criminal Law Solicitor, Care and Protection, General Family Law, General Civil Law, Summary Criminal Law, Mental Health Advocacy and Veterans' Law Panels.
  • Re-open the Appellate Criminal Law Barrister Panel for applications from current panel members and new applicants.