Triennial Review of Legal Aid

Current state

There are different approval levels for legal aid providers. For family and civil matters, lawyers can be approved as a supervised provider or lead provider. For criminal cases, a lawyer can have a supervised approval, or a lead approval of level 1 to 4, known as criminal provider approval levels (PALs).

All legal aid cases must be assigned to a lead provider.  Lead provider approval is granted to lawyers who can demonstrate they have the knowledge, experience, and skill across the area(s) of law they are approved for.

The lead provider is responsible for all work undertaken on the legal aid cases assigned to them. There are some situations where a supervised provider, or a provider with a lower criminal approval level (junior) may also provide work in cases.

All jurisdictions

Supervised providers

Supervised providers are lawyers who do not yet have the full experience requirements to be a lead provider, but that otherwise meet the approval criteria and have the skills to provide legal aid. Supervised providers must be supervised by, and responsible to, an approved lead provider. There is currently no payment available to lead providers for the time they spend mentoring or supervising these providers.

Criminal cases

Junior counsel

In criminal cases, if the complexity of the proceedings warrants it, the lead lawyer may seek a co-counsel to assist in the case. Where the co-counsel has a lower approval level than the case requires, they are referred to as junior counsel.

Approval for junior counsel is preapproved in some criminal legal aid cases: (e.g. in certain Court of Appeal and Supreme Court legal aid cases, and in PAL 3 sexual violence cases). Where junior counsel is not preapproved, the lawyer must seek approval from Legal Aid Services if they require assistance.

There is no general provision for a separate legal aid payment for the time taken to supervise or train junior counsel.

Problem or opportunity

More lawyers need to be engaged in legal aid work to meet legal aid demand and to ensure the long-term sustainability of the legal aid workforce. This is particularly the case for family and civil legal aid.

While the number of approved private legal aid providers has increased across all categories of legal aid in recent years, the number of providers actively accepting new legal aid cases each year has declined in some areas of law like family and civil.

In the Law Society’s Access to Justice survey[1], 24% of lawyers that were currently providing legal aid but were looking to reduce the amount of legal aid that they provide cited the reason being legal aid funding not covering the costs of employing or contracting juniors to support their work. In the same survey, of the lawyers who did not provide legal aid and who were not interested in providing legal aid, 26% cited their reason as being that legal aid funding does not cover the costs of employing or contracting juniors to support the work.

Not being able to engage juniors to assist with work in legal aid cases also has an impact on the workload and wellbeing of legal aid lawyers.

What we are considering

Proposals to increase the involvement of junior lawyers in legal aid cases include:

• Automatic approval of junior (including supervised) counsel to assist in more case types/circumstances.
• Funding incentives for senior providers to engage junior counsel, e.g. an increased fee for lead providers to cover the cost of supervision/mentoring, or a flat fee per hearing/day.
• Enabling separate payment for lead lawyers to provide supervision to supervised lawyers.
• Introducing a formal mentor/mentee framework, with funding for approved mentors.
• Looking at incentives to encourage criminal legal aid lawyers to progress to higher levels of legal aid work (e.g. from PAL 2 to PAL 3 cases), or for supervised lawyers across civil, family, and criminal to progress to lead provider.

Initial analysis

Making it easier for junior counsel to be approved to act and assist in legal aid cases led by senior lawyers would improve the confidence and capability of junior lawyers to take on legal aid assignments, helping to address the issue of an ageing legal aid workforce.

Improving incentives for junior counsel to provide legal aid may require significant additional funding, but needs to be balanced against other objectives, such as ensuring the long-term financial sustainability of the scheme.