Annual Report 2018 - 2019
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 the Legal Aid Commission Act 1979 (NSW). In 2018–19, private lawyers provided 69.0 percent of all Legal Aid NSW casework services, and 37.5 percent of all Legal Aid NSW duty lawyer services. Further details appear in Appendix 10.
The Grants division of Legal Aid NSW receives, determines and manages legal aid applications from private lawyers and from the Legal Aid NSW in-house practice. Applications are submitted and managed electronically. Grants staff have regular telephone contact with lawyers and clients.
| Fact file | |
|---|---|
| Total staff: | 94 |
| Total applications* for legal aid: | 45,442 |
| - in criminal law matters | 28,172 |
| - in family law matters | 15,099 |
| - in civil law matters | 2,171 |
| Number of individual lawyers appointed to Legal Aid NSW panels: | 2,184** |
| Percentage of legally aided case and duty services provided by private lawyers: | 42.2% |
* Applications received during 2018–19
** This includes lawyers appointed to more than one panel
Total individual panel members
The lawyers who sit on our panels
Where our panel lawyers are located*
* Based on the panel member’s primary office location
Specialist accreditations held by our panellists
Most common languages other than English spoken by panel lawyers
Our panel lawyers speak 54 languages other than English. Here are the five most common languages spoken.
| Number of private lawyers on Legal Aid NSW panels 2018–19* | |
|---|---|
| General panels | |
| General Civil Law Panel | 154 |
| General Family Law Panel | 840 |
| Summary Criminal Law Panel | 1,498 |
| Specialist panels | |
| Appellate Criminal Law Barrister Panel | 81 |
| Care and Protection Panel** | 236 |
| Children’s Criminal Law Panel | 187 |
| Complex Criminal Law Barrister Panel | 105 |
| Complex Criminal Law Solicitor Panel | 222 |
| Domestic Violence Panel | 98 |
| Independent Children’s Lawyer Panel | 131 |
| Indictable Criminal Law Panel | 446 |
| Indictable Criminal Law Barrister Panel | 234 |
| Mental Health Advocacy Panel | 191 |
| Veterans’ Law Panel | 4 |
* Some lawyers are active members of more than one panel
** Of the 236 Care and Protection Panel members, 150 are appointed to act for children as well as adults
Figures include current active panel members whose appointment start dates were before 30 June 2019.
OBJECTIVE: Meeting clients' needs
Private lawyers represented legally aided clients in a range of areas of law
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 summary criminal law, family law and civil law, and specialist panels across the three practice areas. There are also specialist barrister briefing panels in complex criminal law, appellate criminal law and indictable criminal law.
There are 2,184 individual lawyers who make up Legal Aid NSW panels, from 1,690 registered firms*. Panel lawyers are located throughout NSW, with 1,252 panel lawyers based in the Sydney metropolitan area and 884 panel lawyers located in regional NSW. There are also 48 panel lawyers located in the ACT or interstate.
In 2018–19, there were 677 appointments made to Legal Aid NSW panels. There were also 268 reappointments of current panel members whose five-year panel appointments expired throughout the year.
* Individual barristers are registered as firms.
Reopening the Appellate Criminal Law Barrister Panel
We conducted an extensive review of our policies and procedures in relation to legally aided higher court criminal appeals in 2017, which gave rise to a number of recommendations aimed at enabling a more rigorous selection process for applicants to the Appellate Criminal Law Barrister Panel.
Following consultation with the NSW Bar Association, the Law Society of NSW and the Public Defenders Office, the panel opened for applications in August 2018. A selection committee recommended the reappointment of 30 existing members and the appointment of 29 new applicants to the panel.
Establishing an Indictable Criminal Law Barrister Panel
In response to the introduction of the early appropriate guilty pleas reform in April 2018, Legal Aid NSW established an Indictable Criminal Law Barrister Panel to include suitably experienced barristers who could be briefed in non-complex indictable criminal law matters.
This new panel promotes continuity of representation. Panel barristers briefed at committal are expected to retain carriage of a matter through to trial or sentence.
The Indictable Criminal Law Barrister Panel opened for applications in September 2018. We received 284 applications from private barristers, some of whom were already appointed to our Complex or Appellate Criminal Law Barrister panels. Two hundred and twenty-one applicants were recommended for appointment to the new panel, which began operating on 18 March 2019.
OBJECTIVE: Strong partnerships
Improving our engagement with private lawyers
We reviewed the way we appoint, monitor and remove private lawyers from our panels, with a focus on quality assurance and making the process more streamlined and user-friendly. To do this, we consulted our staff and researched how other jurisdictions assign work to private lawyers. We finalised a set of recommendations that we intend to implement over the coming year. These recommendations will involve shifting to law firm membership, reducing the number of panels, streamlining the selection process and creating a quality assurance framework.
We also consulted with private lawyers to understand how we can improve our day-to-day relationship with the private profession. Key concerns raised by private lawyers included low fees, delays in having grants of aid processed, fees for travel being inadequate and a cumbersome panels process. We have addressed these concerns by improving our grant processing times, advocating for additional funding to increase the fees we pay and reviewing our private lawyer panels.
Review of fees paid to private lawyers
We conducted a review of the fees we pay to private lawyers who undertake legal aid work. We recommended several options for increasing the fees we pay in legally aided matters. These options propose an increase to the base hourly rate for solicitors, an equivalent increase for barristers, and structural changes to remunerate private lawyers more fairly, particularly for preparation and travel. We prepared and submitted a business case to the NSW Government seeking additional funding to enable us to reform our fee scale. The business case is currently being considered by the NSW Government.
Best practice for our panel lawyers
Panel lawyers are required to comply with panel practice standards. We amend the standards from time to time to reflect best practice, changes in our policies and procedures, and developments in the law.
In 2018–19 we made a number of updates to our Criminal Law Panel Practice Standards in response to recommendations made in our 2017 review of our policies and procedures in relation to legally aided higher court criminal appeals, and the introduction of the early appropriate guilty pleas reform in 2018.
Key changes included:
- new procedures for indictable appeal matters concerning the briefing of counsel for merit advice, the requirement to submit advice or, where applicable, advice and grounds of appeal, and the requirement to submit file outcomes at the conclusion of legally aided matters
- new requirements to reflect changes to Legal Aid NSW policies and guidelines in relation to grants of legal aid to respond to interlocutory appeals, or to respond to Crown sentence appeals, under the Criminal Appeal Act 1912 (NSW)
- new requirements arising from the early appropriate guilty pleas reform, in particular, responsibilities regarding the briefing of counsel at committal, including case conferencing, and ensuring that counsel briefed at committal will continue to be briefed for the trial and sentence, if applicable
- changes to the definition of complex criminal law matters, and
- requirements for panel lawyers in relation to attendance at training.
Audits help us maintain the quality of the services provided on our behalf
We continued to conduct audits of panel lawyers to assess their compliance with our practice standards, policies and guidelines. We use the outcome of audits to inform reviews of our policies and guidelines. Audit results consistently demonstrate that the vast majority of panel lawyers provide excellent legal aid services to clients. This year we audited 457 panel lawyers, with a particular focus on quality issues.
One area of quality we focused on was the requirement under the Independent Children’s Lawyer Panel Practice Standards for independent children’s lawyers to meet with the children for whom they act in legally aided matters. We asked approximately 65 percent of the independent children’s lawyer panel members to provide documents to show they met with children in matters that were finalised in the 2017 calendar year.
"We audited 457 panel lawyers to ensure the quality of the services our clients receive."
Of panel lawyers audited, 85 percent were found to comply with this practice standard requirement. Non-compliant lawyers were reminded that, where a child is capable of verbal expression, it will be appropriate for an independent children’s lawyer to meet with the child except in very limited circumstances. They were also reminded of the availability of resources including the Independent Children’s Lawyer Good Practice Guide and independent children’s lawyer-specific training. We will conduct additional audits of these lawyers in future to ensure improved compliance with these important practice standards.
Other areas we focused on included:
- means verification, specifically for those applicants who did not indicate that they were in receipt of a maximum Centrelink benefit in their application for legal aid
- claims submitted by panel lawyers for the commercial agent or conduct money work items
- complaints made against panel lawyers in legally aided matters, and
- panel lawyers who were non-compliant in previous audits. Where an audit identifies a breach of our practice standards, service agreement or Legal Aid NSW policies, guidelines or fee scale, a range of sanctions may be considered depending on the seriousness of the non-compliance.
This year, we:
- sent warning letters to 189 lawyers
- notified 58 lawyers that further audits will be conducted
- asked 57 lawyers to refund a total of $28,240 in claims
- referred three lawyers to the Monitoring Committee, and
- referred one lawyer to the Panel Selection Committee.
| Year | Lawyers audited | File audits or spot-check audits | Refunds requested |
|---|---|---|---|
| 2014–15 | 116 | 602 | $11,713 |
| 2015–16 | 503 | 2,046 | $84,076 |
| 2016–17 | 705 | 3,448 | $142,770 |
| 2017–18 | 587 | 2,213 | $163,382 |
| 2018–19 | 457 | 1,516 | $28,240 |
Some lawyers failed to cooperate with audit processes
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 (NSW), including removal of the lawyer from panels to which the lawyer is appointed. In 2018–19, two panel lawyers were removed from the panels to which they were appointed because they failed to cooperate with an audit.
Supporting panel lawyers to provide quality legal aid services
We identified five good practice themes from the panel lawyer audits we conducted during 2018, which we shared with panel lawyers. Adopting these good practices enables panel lawyers to confidently meet Legal Aid NSW audit requirements.
We developed an online tool to assist private lawyers in submitting accurate claims to Legal Aid NSW. The tool consists of a list of questions a private lawyer should ask themselves before submitting a claim. Answering these questions helps to ensure that the private lawyer submits an accurate claim each time.
Monitoring breaches of service agreements
Legal Aid NSW investigates apparent breaches by panel lawyers of panel service agreements and refers matters to our Monitoring Committee. The c ommittee, which includes representatives of the Law Society of NSW, the NSW Bar Association and Legal Aid NSW, makes recommendations to Legal Aid NSW about lawyers who have breached panel service agreements.
During 2018–19, we received 60 serious complaints about panel lawyers, down from 66 the previous year. Some complaints related to the personal conduct of panel lawyers, such as inappropriate remarks made to or about a client, or misrepresentations made to courts about Legal Aid NSW, for example, citing a lack of legal aid approval as a reason for seeking an adjournment, in circumstances where approval had been provided or had not been sought.
Legal Aid NSW takes these issues very seriously and they can impact on lawyers’ panel memberships.
The year ahead
- We will review the Complex Criminal Law Barrister Panel.
- We will develop a clear and consistent approach to managing and supporting the quality of services provided by private lawyers.
- We will design a client service strategy for our Grants division.