Fee structure works as an incentive to delay a case

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In-house legal aid lawyers who are paid an annual salary are more efficient than private lawyers funded by Legal Aid NSW and paid according to an hourly rate, according to new figures from the Bureau of Crime Statistics and Research.

The research covered 34,218 criminal law grants of legal aid from 2012 to the end of 2016, revealing that the type of representation provided to a defendant "substantially impacts" the way their matter proceeds through the criminal courts.

Legal aid lawyers are more efficient than publicly funded private lawyers, BOCSAR has found.

Legal aid lawyers are more efficient than publicly funded private lawyers, BOCSAR has found.Credit:Fairfax Media

Legal Aid NSW requested the research over concerns that a "billable hours" system and low fees paid to private lawyers handling legal aid work creates an incentive to maximise the number of hours spent on a case, meaning a resolution is delayed.

"We found people are less likely to plead guilty [with a private lawyer] because the case is going to be finalised faster than if they plead not guilty," BOCSAR executive director Don Weatherburn said.

"[A private lawyer] will go to a higher court because there is more money than if you finalise in a local court. The fee structure works as an incentive to delay a case."

An average case in the NSW District Court is said to cost around 10 times more than a case in the Local Court, according to 2018 figures from the Productivity Commission.

BOCSAR found publicly funded cases assigned to private lawyers were 13 to 14 percentage points less likely to be dealt with in a local court, after entering a guilty plea, compared to equivalent cases handled by in-house legal aid lawyers.

It also found private lawyers were eight to nine percentage points more likely to enter a late guilty plea.

Private lawyers are most commonly engaged in regional areas, when there is a conflict of interest, or if a private lawyer specialises in a particular area of criminal law.

"A lot of private lawyers do very high quality work for legal aid clients at what is a fraction of commercial rates," criminal lawyer Peter O'Brien said.

Criminal lawyer Peter O'Brien.

Criminal lawyer Peter O'Brien.Credit:Glenn Campbell

"Having said that there are some lawyers in the minority that are incentivised by low rates to increase billable hours."

Mr O'Brien has worked in private practice for the past 12 years and in legal aid for the past 10.

He said legal aid clients are often accompanied by a number of complexities, such as poor education, mental health issues, drug and alcohol issues and a need for language interpreters.

"Legal aid should be properly publicly funded, and the more [specialised] lawyers they have in house, the better," he said.

BOCSAR's research comes at a time when the state's criminal courts are logging extensive delays between a defendant's first appearance and their final sentence.

In the four years to 2014 the average number of days from committal to finalisation for cases in the district court increased by 25 per cent. In the local court it increased by 16 per cent.

Legal Aid NSW chief executive Brendan Thomas said he would "closely study the BOCSAR findings to understand how we can work with the private profession, to continue to offer a high standard of service".

President of the Law Society of NSW Elizabeth Espinosa said, while the study purports to show efficiency, "no analysis was made of the respective hours that in-house vs private practitioners spend on dealing with a matter".

She also said the study did not assess "the proportion of clients found not guilty, nor any assessment of sentencing outcomes," however she acknowledged its finding that remuneration of private practitioners was low.

 The BOCSAR study is the first time the completion rates of public and private lawyers in publicly funded legal aid cases have been compared. It will be presented on Wednesday at the 6th annual Applied Research in Crime and Justice Conference.