Triennial Review of Legal Aid

Current state

Lawyers who provide legal aid are paid on a system of fixed fees or hourly rates, depending on the type of case.

Most criminal legal aid cases are fixed fee cases. The fee schedule that applies depends on the seriousness of the criminal charges. The structure of the schedules varies between Crown and Police prosecution proceedings.  The current fee schedules for criminal legal aid are available at: Criminal legal aid fixed fee schedules.

If any fee is considered inadequate for a particular case, the lawyer can apply to Legal Aid Services to have the fee amended or replaced with a set amount of hours instead. This is common in more complex criminal legal aid cases.[1]

Problem or opportunity

The fixed fee schedules may not adequately recognise efficient or early case resolution because remuneration is structured on a task/events basis. Fees claimable in cases that resolve early are relatively low in comparison to cases that resolve at a later stage or after more events.

For family and civil legal aid, it has been raised that having legally aided advice available earlier, could help resolve, prevent or contain disputes before they reach the court.

The complexity of fee schedules may be contributing to legal aid lawyers claiming fees in error. In 2023/24, audit processes identified about 580 criminal legal aid claims where errors had been made, for example, where the wrong fee had been claimed. This adds to the administrative burden facing legal aid providers. This is also an issue in other jurisdictions.

What we are considering

We are considering:

• Simplified fee schedules e.g. integrating activities and events for which lawyers can claim separate fees into separate flat fees within each fee schedule, with flat fees claimable based on when the case is resolved.
  • For example, this could involve replacing criminal schedules A-D with new flat fees for a case that resolves either before presentation of evidence at trial, or by trial. These fees would be inclusive of preparation, attendances, and hearing time in the case.
  • The ability for lawyers to apply to Legal Aid Services to amend or replace the fees in particularly complex cases where the fees may be inadequate would be retained. Fees for non-standard events and activities could remain separate (e.g. bail, name suppression, disputed facts hearings, fitness to plead/stand trial, etc). 
• Alternatively, we are considering a fee per case structure for some lower-level criminal legal aid cases, or straightforward family and civil cases. This would involve paying a lawyer a lump sum for handling a legal aid case from start to finish.

Similar solutions may be feasible for some more straightforward cases in other jurisdictions.

Initial analysis

A simplified fee structure for some criminal legal aid cases could:

• help reduce instances where fees are claimed in error and require fewer and more simplified invoices per case, which would reduce the administrative burden for providers and the Ministry
• support positive resolution of cases for the client and help to improve overall court timeliness.

This would still provide fair remuneration across cases as:

• separate fees for specific events/applications that do not progress routinely would be retained
• lawyers would retain the ability to have fees amended in complex cases
• new schedules or fees could be designed to be cost neutral for legal aid expenditure and legal aid lawyer remuneration.

Simplifying fee structures could risk the quality of legal aid services if there are gaps in the design, changes in process, or implementation delays. This could lead to increased complaints from clients and frustration from legal aid providers, negatively impacting the public perception of the legal aid scheme.    

Any redesign of fixed fee schedules would also need to have strong mitigations in place to manage the risk of incentivising early resolution when it may not be the most appropriate outcome for the case.