La parodia en los diálogos de Platón

As indicated earlier in this report, 44 per cent of legal aid work is undertaken by the private profession. The interviews above indicate that CLCs and the ALS may also use private lawyers to fill staff gaps.

Three private lawyers currently practising in rural and remote NSW and doing legal aid work, and one who had left private practice, were interviewed for this study. Two of the private lawyers had gone out to a rural area to work at the ALS and Legal Aid NSW respectively, before setting up their own practices in the region. Each cited lifestyle reasons as their motivation to stay in the rural area.

The practising private lawyers indicated that 35 to 45 per cent of their work was legal aid work (assigned grants and duty lawyer work). The one private lawyer who had left the remote location had undertaken only legal aid work. He had been employed as a new lawyer under subsidies provided by the Legal Aid NSW regional solicitor program.

Two public legal assistance lawyers interviewed had left private practice in regional NSW to work for Legal Aid. Both cited the difficulties facing rural private practice as contributing to this decision. In particular, they described how changes to personal injury law56 _{and conveyancing}57 _{had taken away ‘bread and butter’}

legal work, making their private rural legal practice unsustainable:

If you go into private practice in a country firm, conveyancing is the bedrock of the fees you bring in … that’s going to be taken away soon … all that core area of work is being taken away, personal injury litigation … has been taken away … What do you do? … chucked in to do legal aid criminal work with no training at all … told you have to do as much of it as possible to justify your salary … terrible for the profession in general … you have to do so much of it to justify fees … so the work is getting done badly, which contributes to a lowering of the profession in the public’s eyes. (Interview 21)

The possibility, as suggested by this informant, is that the quality of work performed may be compromised by the relevance of the legal experience of those lawyers taking up this work.58

The private lawyers said that they were motivated to do legal aid and ALS work for both economic and philanthropic reasons:

There are two motivations. There is the financial side to it but there’s also the side that you are a legal firm and there is a responsibility to the community to provide that service and there’s a lot of it about.

(Interview 14)

56 _{Between 1999 and 2002 the State Government made substantial changes to all areas of personal injury compensation law in NSW, including}

motor accidents, workers compensation and civil liability. The reforms limited claims that could be made in these areas (NSW Parliament 2005, pp. xvi–xvii).

57 Whereby legal qualifications are not required to undertake this work

58 Note that all lawyers accepted onto legal aid panels must meet specified selection criteria, see <http://www.legalaid.nsw.gov.au/asp/index.

So while they said that the amount paid by Legal Aid NSW did not cover the work that they do, it was seen as a reliable income stream that they could coordinate with their private work:

The real motivation to take it is it’s constant money that comes in — it’s not spectacular by any stretch of the imagination, I lose half of my hourly rate every hour I do legal aid but the whole part about it is that you can pick up a duty list [and] you can still have 3 or 4 private sentenced matters. It’s worth your while.

(Interview 13)

There was so much of it and it was so easy to pick up, nearly all the clients who came to us fitted into the legal aid framework, they were always on Centrelink … there was just lots of it around … you couldn’t avoid it.

(Interview 5).

Summary

The modest number of interviews reported in this study point to a pattern where many lawyers working in rural and remote NSW come from cities or interstate. A number of those coming from elsewhere go to rural public legal assistance solicitor positions with a defined period in mind for staying in the position. This factor, on its own, affects the retention of lawyers in RRR areas. If lawyers have set themselves a career path which involves a defined period in a rural area, they may well be fixed to that path, and will move back to the city or elsewhere once they have the experience needed to achieve their career aspirations. Further, if lawyers move to any rural area from elsewhere, personal circumstances and family reasons may well draw them back ‘home’ at some point in the future.

However, some lawyers were staying in rural areas for longer periods than they had originally anticipated, sometimes going to better paid positions within the same region. There appeared to be a flow of solicitors from CLCs and the ALS to Legal Aid NSW, and from all public legal assistance agencies to the private sector. That said, there was also some movement from the private sector to public legal assistance positions. A second key observation is that it appears to be particularly difficult to recruit experienced lawyers to RRR areas of NSW. The motivations for lawyers to work in RRR public legal assistance positions may provide some insight into this. A number of lawyers are drawn to public legal assistance positions in RRR areas by the opportunity to break into the legal profession (if they could not get a job in the city) or to gain particular or specialised legal experience. This is naturally less of a motivation for more experienced senior lawyers. In the absence of attractive salaries or salary packages, this left lifestyle, work-life balance and social justice imperatives as the major incentives to public legal assistance work in RRR areas. The data from this study would suggest that such motivations alone are generally not enough to attract and retain experienced lawyers in RRR areas, particularly in remote locations.

There are other factors which may help explain differences in the capacity of different RRR areas to recruit and retain lawyers. Rural locations which offer a ‘better lifestyle’ (more suited to the individual lawyer’s needs), or a more attractive work-life balance than other areas, appear to have experienced less trouble recruiting and retaining lawyers. Contributing to this work-life balance were: the sustainability of the work environment (including the nature of the work, the level of professional support and administrative support and resourcing); social and professional networks in the area; the capacity to access social and family networks elsewhere, and recreational opportunities.

The interviews suggest that where this work-life balance is better, lawyers are able to stay longer in the area. This balance was more apparent in the larger regional centres and, particularly, in the Richmond-Tweed area of coastal NSW. This balance was much harder to achieve in small, remote areas of inland NSW.

The opportunity to gain professional experience (for more junior lawyers) and to save money also appeared to sustain some lawyers in rural and remote locations, although this was more short-lived without work- life balance. For instance, in the very remote offices of the ALS, it was possible for lawyers to ‘live and breathe’ high volume, stressful work but only for a short time. Burnout was raised as a very real issue in RRR offices of public legal services.

In RRR locations where there was less work-life balance and fewer opportunities for social and community engagement, financial rewards and opportunities for professional development become more substantial incentives for lawyers to stay in an area. Despite these additional incentives, some lawyers may neither be attracted to nor stay in an area with these characteristics for any length of time.

Finally, the qualitative interviews also indicate that public legal assistance services went to great lengths to cover vacant positions and to meet their obligations to clients. Strategies used to cover positions that could not be filled included: placing more junior lawyers in more senior positions; having one lawyer covering the role of two lawyers; moving staff from one office to another for days, weeks or months; ‘poaching’ staff from other services; passing work to local private solicitors or using locums. Nonetheless, there were costs associated with this scramble to cover solicitor positions, including:

Š less experienced staff taking on higher responsibilities

Š staff taking on unsustainable workloads, resulting in high levels of burnout, job dissatisfaction and staff turnover

Š job and service inefficiencies, including increased administrative loads and higher overall costs Š the range and quality of services being offered to disadvantaged people in rural and remote communities

Over recent years there has been growing concern about the shortage of lawyers working in RRR areas throughout Australia and, in particular, perceived difficulties in recruiting and retaining public legal assistance solicitors and private solicitors doing legal aid work in these areas. The current study was undertaken to better inform strategies to improve access to lawyers for disadvantaged people in rural and regional areas.

The Foundation’s census of public legal assistance solicitor positions in NSW yielded an interesting and unexpected finding. On the census date of 30 June 2009, only seven per cent of all public legal assistance positions in NSW were vacant. In some country regions the actual level of vacant positions was well below the State average and in three RRR regions there were no vacant solicitor positions. While limitations to the census method must be acknowledged (it only reflects the situation on a particular day and does not take into account factors such as the possible impact of the Global Financial Crisis), the level of vacant positions identified should not be the cause for concern.

However, indicators of recruitment and retention difficulties are broader than vacancies alone. For instance, a count of actual vacant positions does not acknowledge that some ‘filled’ positions were occupied by a non- incumbent, such as a person acting up in the position, a locum or a temporary employee. This information is important for a fuller appreciation of recruitment and retention issues, particularly in RRR areas. The study also examined the length of time that positions had been occupied at the census date, with particular attention paid to those areas of NSW in which positions were filled for relatively short periods of time. This research also identified that some regions do not have one or more of the major legal services based in their area and this confounds any regional analysis of recruitment and retention difficulties. For example, if there is no CLC in a region, there can be no recruitment or retention difficulties for that particular service. In such regions, public legal assistance solicitor availability is not as much affected by vacancies or turnover, but by the lack of solicitor positions in the first place. This also affects the relative standing of one RRR area to another in terms of key recruitment and retention indicators.

Furthermore, in RRR areas where there are few public legal assistance solicitors, the loss of a single solicitor will have a proportionally greater impact on an area’s vacancy rates than areas which have many public legal assistance solicitors. Again, this needs to be factored into any observations arising from the regional analyses.