Monday, June 27, 2011

Public Defence Service costs and private bar legal aid costs

A spat looms on whether the Public Defence Service is more expensive than having legally aided criminal cases dealt with by the private bar:

Wellington, June 24 NZPA - The Government wants to save money by expanding the Public Defence Service (PDS) but Labour says the United Kingdom experience shows it is more costly.
The Government intends to increase the PDS' share of the criminal caseload from 33 percent to 50 percent.
Criminal lawyers have argued the PDS was incapable of delivering a competent and independent service, lawyers would be less experienced, clients would be pressured into pleading guilty and that it would be more costly.
Justice Minister Simon Power and the PDS disagree, saying it was working well.
Labour MP Charles Chauvel said today that the latest review of the PDS in England and Wales showed costs between 41 percent and 58 percent higher than independent lawyers providing the same services.
It also raised concerns about how PDS costs were calculated.
Mr Chauvel called for Mr Power to release full costs of the PDS.
"The Justice Minister hopes to cut legal aid costs by significantly expanding the Public Defence Service (PDS) — a public service entity — at the expense of independent lawyers providing legal aid," Mr Chauvel said.
"Labour created the PDS and continues to support its existence. But we never intended to expand it as Simon Power wants to. It was always our view, and it remains our view, that independent lawyers should provide the bulk of criminal defence work, for efficiency and equity reasons."
Mr Power said the UK report was published in 2007 and Mr Chauvel was not comparing apples with apples.
"The criminal legal market in the UK is quite different to that in New Zealand," Mr Power said.
"In the UK there is already an extensive network of private firms providing criminal services, making it difficult for their PDS to build market share.
"In New Zealand rotational case assignment will see the PDS receive cases on a regular basis."
Mr Power said expanding the PDS was not just about addressing the cost of legal aid funding.
"It was also recommended by Dame Margaret Bazley in 2009 to improve the quality of legal aid services," he said.
I emphasise the "apples with apples" bit because it raises an interesting point about how to compare the costs of the PDS with those of the private bar.

The idea used by Mr Chauvel in this media report seems to be that the relevant costs will decrease as more work is done. This supposes that the relevant calculation is costs per case.

I think that the better calculation is costs per funded hour in court by counsel appearing in a case. So, for a year, take the total costs that are publically funded for the practice, and divide it by the total publically funded hours spent by counsel from that office in court. For the private bar, average those costs per hour to get costs per hour per firm, and then compare that average to the costs per hour for the PDS office.

This way of looking at it asks how much does it cost to put a PDS lawyer in court compared to putting a publicly-funded private lawyer in court. The "apples" are court-hours. This is a neutral basis for comparison. If the "apples" were cases the comparison would be complicated by the various kinds of cases and whether the best legally available outcome for the client was achieved in each.