Explained: Why $ 40 Million of Public Money Goes to Private Law Firms

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Dickey clearly takes his role very seriously. He became a Crown attorney in 2015 after Simon Moore, who worked at Meredith Connell, was appointed a High Court judge.

Sometimes Dickey can show up in court and his former mentor is the judge, as he was in the Epiha trial.

For McKinnel, everything is a little too close for more comfort. Private law firms are dynasties, he says. The Crown’s tenure seems to have spanned the ages.

“Where is the contestability with the law firm which has held a mandate for 100 years,” he asks. “You can’t tell me that’s how the free market works. It goes beyond that. These geographic monopolies, these dynasties, have a lot of power and influence in society.”

If you ask a Crown Attorney, Crown Attorney, or the government minister responsible for the system about this, you’ll find yourself in a circular argument that actually boils down to this: We always had the warrant because we have the expertise. We have the expertise because we have always had the warrant.

The politician at the top of the legal system, Attorney General David Parker, expresses this point most eloquently or pompously, depending on your point of view.

“It’s perfectly natural [for Crown Warrants to stay with the same firm] because it is the repository of this specialized knowledge accumulated by working for the Crown through the generations that are imbued with these companies, ”said Parker.

“They are indeed a local monopoly. But you are dealing with the monopoly problem by having regulated prices, not by pretending that you should change it through some sort of competitive bidding process.”

When he talks about regulated prices, he means that there is a cap on the amount spent on crown lawsuits each year, currently $ 41 million. This is distributed among the 17 mandates, depending on the volume and complexity of the files.

This bulk funding scheme was introduced in 2013 and has resulted in significant savings – a reduction of 25%, according to a 2016 statement from former Attorney General Chris Finlayson, who presided over the changes.

“We don’t pay them by the hour, so if they do more hours, they do more. There is no more money,” says Laracy.

But bulk funding may have introduced unintended consequences, according to research by Andrew Britton, who himself worked as a crown attorney.

For her 2018 article, Pressing for Sentence, An Examination of the New Zealand Crown Attorney’s Role in Sentencing, Britton spoke to ten Crown Attorneys about the impact of mass funding, among others.

A prosecutor told him that the warrant had been “a license to print money”, but that changed with the mass financing, and in some companies “the partners of the capital decided that they would not take the money. pay cut – they will just live on less staff “.

More alarming was the suggestion that lawyers at these firms could use plea negotiations to wipe the work off the books.

“I certainly believe that we will accept pleas for lower charges on less well-founded grounds than in the past, to settle cases,” one lawyer told him, adding that there was “a marked variation” in the way that people were charged. between different Crown corporations.

“There are a lot of suggestions that some people are making unprincipled resolutions to get things done faster so they can get more money,” a lawyer told him.

Laracy is quick to trample on this idea. “We haven’t seen any evidence of this,” she said. “Theoretically, the incentive is there,” but she believes the open court system provides the checks and balances in plea bargaining.

“One of the protections against this is the public nature of the lawsuits. So these are not deals… that happen behind the scenes without a degree of public accountability through the judicial process.”

New Zealand is the only western democracy that outsources such a vital part of the justice system to the private sector.

Laracy describes it as an oddity, an accident of fate.

“It’s a historical anomaly. New Zealand, of comparable jurisdictions, I understand, is the only one that has this particular model.”

“In 1918, the then solicitor general determined that all Crown attorneys were Crown attorneys,” according to the Spencer Review of the Crown Solicitors Network in 2011. “This view did not been formally contested since then.

Is the system still suitable?

Attorney General David Parker says that’s not about to change. Parker, who spent 20 years in parliament and served as attorney general in two governments, believes private law firms provide a healthy buffer, keeping the prosecution function away from politicians.

“I look at other systems overseas where they have a more politicized justice system and a less passive approach and I think they have worse results.”

But prominent defense lawyers and legal scholars believe the system is ripe for change, and for them it is a matter of principle.

“It’s almost like a franchising system when you franchise bus services for a particular area. We do it in New Zealand for the prosecution function, ”explains Kris Gledhill, professor of law at AUT.

“We would not privatize the police, who exercise this government function, and yet we privatized the prosecution by historic accident.”

He says transparency and accountability would be much stronger under a government prosecution service. “People with basic government functions should really be government employees.”

Douglas Ewen, a human rights and defense lawyer with Wellington’s Brandon Street Chambers, worked in the UK system, where the Crown Prosecution Service is a government department.

“I don’t know of any other system where the government directly subcontracts a constitutional function,” he said.

“My position is that there are things that are so inextricably linked to the state that the state has to deal with them directly. It is the expenditure of public money. responsibility.”

RNZ.


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