Jarrod Coburn
There is a risk in treating legal aid as just another cost pressure. It is not merely a payment system for lawyers, but a mechanism by which many New Zealanders obtain practical access to the rule of law.
If it fails, the consequences are not confined to lawyers’ incomes or ministry spreadsheets. They will be felt by defendants, parents, children, victims of violence, people in care of the State and families trying to resolve some of the hardest disputes of their lives.
Even people who will never need legal aid benefit from its existence. The wealthiest New Zealander still has an interest in living in a country where courts function, rights are enforceable and the law is not available only to those who can afford it.
After reading Neil Sands’ article, Entire justice system now under cost scrutiny after legal aid review falls flat, I wanted to offer an insider’s perspective. I want to thank Neil for his journalism and for continuing to draw attention to legal aid. There is not enough serious public discussion about it, despite legal aid being one of the foundations of a working justice system in New Zealand.
‘Car boot lawyers’
The formation of the Accessible and Affordable Justice Programme should be taken seriously. It is sensible to look at the whole justice system, not just one part of it. Court delay, procedural complexity, legal aid settings, judicial resourcing and the way public money is spent all sit within the same ecosystem. And don’t get me started on the AI slop that’s clogging up our courts!
There is also a political difficulty here, and it should not be ignored. I imagine any government would find it challenging to publicly justify paying lawyers more money – our legal aid system and how it fits into the concept of justice is complex.
Doctors and teachers are often publicly recognised for their social contribution because most people have an ongoing relationship with these professions. Lawyers, fairly or unfairly, are more often portrayed as self-interested and expensive, with their “snouts in the trough”.
Many of the profession are still hurting from the 2009 Bazley report, which tarred legal aid providers with the image of “car boot lawyers”. I do not want to linger on that perception, but it does matter because it shapes the way legal aid reform is discussed, and it makes honest policy conversations harder.
There are thousands of calls on taxpayer funds and not all of them can be answered. The question, then, is not simply “why should the taxpayer put more money into legal aid?” The better question is “how can the taxpayer get better legal aid outcomes from the money already being spent, while still recognising that some parts of the system are plainly underfunded?”
And this is where the debate gets interesting.
The reality
Being at the coalface of legal aid means I have to be realistic. I can’t run a law firm on slogans about access to justice: I need systems, trained staff, reliable supervision, efficient administration and enough money to pay people properly.
The taxpayer doesn’t pay for a legal aid client’s lawyer: they subsidise them. The remainder of the cost is soaked up by the lawyers themselves – the difference between private rates and legal aid is the cost every legal aid lawyer sacrifices to ensure justice is delivered in this country.
On top of that is the additional administration that comes with a legal aid contract. Any relief from that burden would be a boon.
I’ve worked for only one law firm, so I can present only Portia as my case study. I do this to offer not what could be, but what has actually been achieved.
Our firm has been a major provider of family legal aid for more than a decade. Since 2012 we’ve managed more than 10,000 family legal aid and FLAS matters; around 90% of our clients are subsidised by the Ministry of Justice.
We designed the firm around the delivery of legal aid, including fixed fees. We have invested in training, technology, supervision, community relationships and remote service delivery. From the start, we committed to “access to justice for all”, and we built the firm around that vision.
If you had told me in 2012 that the fixed fees we were receiving would remain unchanged for 14 years I might have made different business decisions, but we have made it work, although sustainability has become tougher and tougher.
Even so, we have continued to redirect revenue back into the business. In the past year we have upgraded our practice management system from Jemima™, built on Microsoft CRM in 2014, to KATE™, which sits in the Microsoft Dataverse. We upgraded our hardware and improved access security beyond what is commonly seen in the profession. We have been investigating artificial intelligence strategies for the past three years.
We did those things because, for legal aid to be sustainable, providers must be efficient. There is no future in pretending otherwise.
That is why I am interested in the Ministry of Justice looking not only at how much legal aid costs, but at how it is purchased, administered and delivered.
The lesson
We have already seen the benefit of a small change in that direction. Last year, along with a handful of other firms, we joined a pilot programme that enables us to approve our own supervised and lead providers.
Traditionally, that process involved delay, paperwork and a fair amount of administrative back-and-forth. The change was modest, but made a real difference: it removed friction by allowing capable providers to do more; it allowed the ministry to step back from work that did not always need to sit with officials, and it felt good to be trusted.
That lesson should be taken further.
When there is not enough money, the first instinct is to cut costs. The ministry spends a lot of money administering the legal aid system. Some of that administration is necessary; public money requires accountability. Legal aid clients are often vulnerable and quality matters. Fraud and poor practice must be actively prevented.
But not every control needs to sit at the front end of every transaction. Some controls can be built into providers’ systems. Some can be audited after the fact, targeted by exception or simplified by trusting proven providers who have the scale, systems and professional discipline to carry more responsibility.
This is where bulk funding deserves serious consideration.
Bulk funding
By bulk funding, I do not mean writing blank cheques to law firms. I mean a high-trust, firm-wide or service-wide contract model, available to providers who meet defined standards.
Those standards should include demonstrated legal aid experience, proper supervision, internal quality assurance, data reporting, conflict management, client protection, complaints processes and independent audit. There are a number of well-run firms scattered around this country which fit that description.
The idea would be simple: instead of administering every part of the legal aid relationship matter-by-matter, task-by- task and approval-by-approval, the ministry could contract with selected providers to deliver specified categories of legal aid work at scale.
The provider would take on more operational responsibility and the ministry would retain oversight, audit powers, performance measures and the ability to intervene where quality or integrity was not maintained.
That model would not suit every area of law, nor every provider. It probably couldn’t replace all existing legal aid arrangements. Sole practitioners and smaller firms remain essential to access to justice, especially in regions and specialist areas.
Client choice should not be sacrificed, nor should bulk funding create perverse incentives to take only easy files, underserve clients or consolidate too much public work in too few hands. Those are real threats that need to be designed for, not wished away.
Threat mitigation does not always mean more bureaucracy though. Sometimes the answer is better-designed trust.
A carefully designed pilot could test whether bulk funding reduces administrative cost, improves provider stability, supports training, and increases the number of clients who can be helped. It could begin in areas where there are firms with sufficient scale and systems. It could be limited by region, matter type, client group or funding category. It could require transparent reporting on volume, timeliness, client outcomes, complaints, staff supervision, file quality and cost per completed matter.
If it failed, then we would know. If it worked, the savings from reduced administration could be redirected into the parts of legal aid that most need funding. It would help answer some important questions: how much administrative cost would be saved; how would conflicts be managed; how would quality be independently measured; how would small providers avoid being squeezed out?
The payback
For a firm like ours, stability would make a significant difference. It would mean an expansion of our risk horizon, allowing longer-term decisions about staffing, training, technology and regional service delivery.
It would make it easier to retain lawyers. It would support the kind of investment that legal aid providers need to make if they are to deliver high-volume, high-quality work in a difficult environment. It would encourage us to share our business modelling and technology with others.
However, the argument is not about Portia. The firm I work for is simply one example of a provider that has built itself around legal aid. The broader point is that the legal aid system should make better use of providers who have already developed efficient ways to deliver publicly funded legal services. The key takeaway is that it is possible to deliver legal aid in bulk.
There is a public benefit in that. If experienced providers can deliver legal aid more efficiently, the taxpayer benefits. If savings from administration can be redirected into fees, capacity or client service, access to justice benefits. If stable providers can train and retain more lawyers, the profession benefits. If technology and remote delivery can help reach places where there is not enough local capacity, clients benefit.
This is not empire building: it is system design.
The opportunity
There is a lot of talk about affordability, but the one thing we cannot afford is for legal aid reform to be a fight about whether lawyers deserve more money. Some fees plainly need attention: the deeper question is whether the State is buying legal aid services in the smartest way possible.
The Accessible and Affordable Justice Programme has an opportunity to ask that question properly. It will have the opportunity to look at court costs, procedure, delay and demand. It could also look closely at the machinery of legal aid itself: what the ministry does, what providers do, where duplication sits, where trust could safely replace friction, and where public money is being spent on administration rather than representation.
A high-trust, properly audited, provider-led bulk funding pilot would be one place to start. Legal aid needs more than just sympathy. Legal aid needs a new delivery model.
Jarrod Coburn is CEO of Portia, a Christchurch law firm specialising in family law, civil and employment litigation. This article represents his opinion and not necessarily that of the firm.
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