A new policy that allows on-duty attorneys to be paid more for getting their clients to plead guilty on their first court appearance has raised questions about the ethics of such an inducement.
Under the program, on-duty attorneys will be paid $120 per case, in addition to their usual hourly rate, if their client admits guilt and is convicted at the earliest opportunity.
The Justice Department says there is no evidence the policy is being abused, but a number of lawyers have raised concerns in the legal profession.
A defense attorney said she feared the policy – which she described as “deeply unethical” – could do “irreparable damage” to defendants’ confidence in the integrity of the counsel they were given by lawyers.
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“I imagine defendants will be particularly suspicious when they find that the attorney who is advising them is being paid extra to advise them to plead guilty and be convicted.”
She added it was disingenuous that the ministry had suggested the additional payment would not affect the lawyers’ advice to their clients or the independent way they handled cases.
“This additional payment wouldn’t make sense if it wasn’t intended to affect the way things are handled.”
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Another questioned why attorneys should be paid more to enter pleadings when they are being paid an hourly rate for carrying out their client’s instructions.
Another attorney said the circumstances of a first court appearance are hardly ideal for a defendant to make a considerate decision on pleas as they have likely just spent a night in detention and are tired and emotional.
Lawyers on duty had limited time to speak with clients before their court appearances due to the large number of cases they had to deal with, they said.
None of the defenders Things Respondents agreed to be identified for fear of jeopardizing their working relationship with the Ministry.
The revised rates of pay were captured in the Department’s latest operating policy for solicitors on duty – solicitors who are deployed in criminal courts to assist defendants who do not have their own counsel when they first appear in court.
Ross Giblin/stuff
Criminal Justice Counsel Sir Kim Workman says if an accused is told he could get a reduced sentence if he pleads guilty on first appearance, it could prompt him to plead guilty simply on a risk calculation. (file photo)
The policy is currently being implemented only at pilot Criminal Process Improvement Program (CPIP) locations, beginning in Hamilton District Court in December and since expanding to Christchurch and Hutt Valley District Courts.
The CPI program was designed to reduce the backlog in New Zealand’s criminal courts and the Department plans to expand the pilot to more district courts.
According to the policy document, duty attorneys are paid $98 per hour for court attendance on weekdays and $120 per hour on weekends or holidays.
There are also additional payments for “higher dues,” including $70 per case for assisting a defendant in filing pleas and $120 per case for assisting a defendant in filing pleas and same-day conviction or withdrawal the charge.
Although the policy does not specify whether the plea should be guilty or not guilty, only a guilty plea can result in a conviction.
incentives for guilty pleas
Criminal Justice Advocate Sir Kim Workman said it was important to address the large caseloads of the criminal courts, but paying lawyers more when they can get people to plead guilty and be convicted on their first appearance was not the right way.
Workman said incentives for guilty pleas risk opening the door to unethical behavior.
“One of the reasons Māori and Pasifika are becoming increasingly over-represented in the criminal justice system is that these defendants are often less articulate, less able to understand the complexities of the system and more open to influence,” Workman said.
Christel Yardley/Stuff
The revised on-duty counsel service operating policy is currently being implemented at CPIP pilot locations, which include Hamilton District Court. (file photo)
It was therefore understandable that a defendant who was told that if he pleads guilty that he might have a reduced sentence or a reduced chance of going to jail could result in such objections being raised simply on the basis of a calculation of risk and not on the basis of of a genuine admission of guilt. he said.
In August 2017, then-Chief Justice Dame Sian Elias, speaking at a Criminal Bar Association conference, warned that caution should be exercised when encouraging defendants to plead guilty “because a plea of guilt interferes with the right to a fair trial against self-incrimination.” waives a determination of guilt”.
Elias acknowledged that there are “significant incentives” for defendants to plead guilty, such as:
“There is a growing body of literature and case law on the risks of inaccuracy in guilty pleas. The pressure on attorneys to compromise prosecution and defense by agreeing to pleas increases the risk of such errors.
Rosa Woods/Stuff
Dame Sian Elias warned in 2017 that admissions of guilt would generally be viewed with suspicion if made under inducements. (file photo)
“Such pressures arise in part from institutional design, such as B. the fee structure, but it also arises from the relentless case press and ruthless scheduling in the courts in a system that is underfunded and shifts the costs onto prosecutors and defense attorneys.”
A recent Court of Appeals decision overturning the last three convictions of one defendant out of 75 highlighted the possible consequences when defendants fail to understand the consequences of a guilty plea.
The defendant, identified only as Mr G., had been convicted of mostly minor offenses from 1995 to 2015.
Most were overturned by the Supreme Court last year as he was unable to plead or appear in court at the relevant times due to his cognitive impairment. Mr G.’s last three convictions were overturned by the Court of Appeal for the same reason.
In a 1996 report, a psychiatrist asked about his insult said that Mr G appeared unable to fully understand what was being said, had little understanding of the court process and was “very confused as to the actual meaning of the words ‘ guilty’ and ‘not guilty'”.
Commenting on the court ruling in an interview with Newsroom, Public Defense Service Attorney Genevive Vear said Public Defense Service attorneys have such limited time to talk to people and have to deal with such a volume of cases that there for the defendants it was “very easy” how Mr G. fell through the gaps.
“It’s not an indictment of on-duty attorneys, that’s more a product of the amount of material going through the system.”
Lawyers must continue to ‘act ethically’
Carl Crafar, the Justice Department’s chief operating officer, says the department has received no indication since the pilot began that on-duty attorneys acted improperly to gain access to the higher tariff payments.
“That [policy] is written with the understanding that attorneys act ethically, in accordance with their legal obligations and always act in the best interests of the client, whether the plea is guilty or not,” said Crafar.
ALDEN WILLIAMS/stuff
Attorneys on duty are deployed in New Zealand’s criminal courts to assist defendants who do not have their own attorney when they first appear in court. (file photo)
He said duty attorneys still had to consider a number of factors before determining the appropriate way to proceed with a case.
“The client must be made aware that while he is applying for legal aid, he can ask for his case to be adjourned and have his case assigned to a lawyer without objection.
“The duty attorney must discuss with his client the likely sentence if the case is decided or adjourned that day, based on the charges, the prosecutor’s evidence and his criminal record.”
Crafar said lawyers are not required to discuss compensation with their clients.
When asked about the reason for including “higher tariffs,” Crafar said it recognizes the additional work and responsibility involved in advancing or resolving a defendant’s case.
“The additional work may include gathering and verifying further information from the police, correctional facilities and a victim counselor, as well as interviewing the defendant to provide appropriate counsel and representation for the defendant,” he said.
“The additional payments are modest amounts for the additional work done and are not a sufficient incentive to induce an attorney to accelerate a case against the best interests of his client.”
A spokesman for the New Zealand Law Society confirmed the society had been consulted on the revised policy on compulsory lawyers, but declined to comment further.
