LEGAL SERVICES IN FAMILY LAW Rosemary Hunter, with Ann Genovese, Angela Melville and April Chrzanowski December 2000 JUSTICE RESEARCH CENTRE ISBN 0 909136 74 2 © Law Foundation of New South Wales December 2000 Published by the Law Foundation of New South Wales on behalf of the Justice Research Centre Any opinions expressed in this publication are those of the authors and do not necessarily reflect the views of the Law Foundation’s Board of Governors, the Justice Research Centre’s Advisory Board, or the Commonwealth Attorney-General’s Department or Department of Finance. This publication is copyright. It may be reproduced in part or in whole for educational purposes as long as proper credit is given to the Justice Research Centre and its contributors. Participants Project manager Prof. Rosemary Hunter Research design, data collection and analysis April Chrzanowski Dr. Ann Genovese Shelley Hampton Angela Melville Natalina Nheu Prof. Ted Wright Research Assistants Cate Banks Jenny Beard Justin Beplate Carolyn Morris iv Steering Committee The Hon. Justice Sally Brown, Family Court of Australia Dr. Margaret Browne, First Assistant Secretary, Family Law and Legal Assistance Division, Commonwealth Attorney-General’s Department Mr. David Bulloch, Managing Solicitor, Parks Legal Service, South Australia Ms. Catherine Carney, Principal Solicitor, Women’s Legal Resources Centre, NSW Prof. Hilary Charlesworth, Director, Centre for International and Public Law, Faculty of Law, Australian National University Mr. Robert Cornall, (then) Managing Director, Victoria Legal Aid Mr. Mike Cramsie, (then) Director, Legal Aid Commission of NSW Mr. Chris Hayward, Commonwealth Department of Finance Ms. Annemaree Lanteri, Partner, Wisewoulds Solicitors Mr. Graham Russell, Manager, Family Law, Legal Services Commission of South Australia Ms. Judith Ryan, (then) Manager, Family Law, Legal Aid Commission of NSW Bret Walker SC, Past President, Law Council of Australia External Reviewers Professor John Dewar, Dean, Faculty of Law, Griffith University Dr. Belinda Fehlberg, Principal Research Fellow, Australian Institute of Family Studies This research project was funded by the Commonwealth Attorney- General’s Department and Department of Finance and Administration. v The Justice Research Centre thanks the following people who assisted significantly with the research and/or writing of this report: The Hon. Chief Justice Alistair Nicholson, AO RFD, and Justice Sally Brown, Family Court of Australia. Dr. Kathryn Cronin, Deputy President, and Mr. Matt Hall, Research Officer, Australian Law Reform Commission. Mr. Ian Dunn, CEO, and Ms. Bernadette Forbes, Specialist Accreditation Programs, Law Institute of Victoria. Mr. Robert Cornall, former Managing Director, Ms. Kay Robertson, General Manager, and Ms. Feodora Fomin, Victoria Legal Aid. Mr. Kevin White, Responsible Legal Officer, Family Law Committee, and Ms. Jeanette Seymour, Specialist Accreditation Programs, Law Society of NSW. Ms. Judith Ryan, former Manager, Family Law Section, Ms. Louise Nicholls, Parramatta Office, Ms. Kim O’Rourke and Ms. Liana Zavisic, Legal Aid Commission of NSW. Mr. Jim Hartnett, former Director, Mr. Peter Haskett, former Acting Director, Mr. Graham Russell, Manager, Family Law, and Ms. Heather Holtze, Legal Services Commission of South Australia. Ms. Michie McNamara, Specialist Accreditation Programs, and members of the Access to Justice and Family Law Committees, Queensland Law Society. Mr. John Hodgins, CEO, and Ms. Jennifer McArdle, former Executive Legal Officer, Legal Aid Queensland. Ms. Annemaree Lanteri, Wisewoulds Solicitors. Mr. Paul Lewis, Thorntons Solicitors. Mr. Ray Matcham, Conways Solicitors. Mr. Bruce Doyle, President, Family Law Practitioners Association of Queensland. Mr. Joe Pinder, Pescott Reaston Solicitors. vi Ms. Susan Pattison, Pattison Hardman Costs Consultants. Mr. Jonathon Halls, Education Officer, Office of the Legal Services Commissioner, NSW. Mr. Grant Parsons, Office of the Legal Ombudsman, Victoria. Mr. Chris Staniforth, CEO, ACT Legal Aid Office and Chair, National Legal Aid. Mr. Tony Westmore, Coordinator, National Association of Community Legal Centres. The solicitors who participated in the exploratory discussion panel on quality of legal services in family law, and the solicitors and clients who took part in the comparative study, all of whom gave generously of their time to assist in the research. Table of Contents Summary of Key Findings xi 1 Introduction 1 Objectives of the Research 3 Family Law Legal Aid in Australia 4 Literature Review 9 Legal Aid Reports and Commentaries 10 Legal Aid Delivery Systems 16 Costs and Fees 22 Quality of Legal (Aid) Services 24 Lawyer–Client (and Lawyer–Lawyer, and Lawyer/Client–Legal System) Relations 31 2 Methodology and Responses 41 Recruitment of Lawyers 44 Profiles of Participating Firms and Lawyers 48 Legal Aid Commissions 52 Recruitment of Clients 54 Files Analysed 58 Client Demographics 58 Reasons for Litigation 60 Case Profiles 62 Dispute Resolution 64 Client Surveys 66 Client Demographics 67 Case Profiles 69 Reliability of Data 71 File Data 71 Survey Responses 72 Lawyer Interviews 75 viii 3 Inputs 77 Client Demographics 77 Cases 79 Demands and Difficulties 82 Phone Calls, Correspondence and Personal Attendances 92 Dealings with Others 97 Court Documents and Attendances 100 Distribution of Solicitors’ Activities 104 Briefing Counsel 108 Number of Lawyers Involved in the Case 114 Status and Experience of Solicitors 115 Conclusions 119 4 Outcomes 125 Time 126 Predictability of the Length of the Case 126 Delay 133 The Impact of Funding Status 144 Clients’ Views of Time 152 Conclusions on Time 155 Stage of Resolution 156 Method of Resolution 160 Terms of Resolution 161 Predictability of Outcomes 161 Normal Range of Outcomes 165 Actual Outcomes 168 Outcomes Related to Issues in the Case 174 Outcomes Compared to Orders Sought 177 Client Satisfaction with Outcomes 181 Won or Lost the Case 182 Quality of Outcome 183 Expectations of the Outcome 184 Overall Satisfaction with Outcome 187 Outcome Related to Funding Status 190 Ongoing Issues 191 Conclusions 193 ix 5 Funding and Costs 197 Expensive Elements of a Family Law Case 197 Strategies to Reduce Costs 200 Unbundled Services 200 Pro Bono Work 204 Cases Funded by Legal Aid 209 Difficulties with Legal Aid 209 Amount of Legal Aid Funding 221 The Level of the Funding Cap in Individual Cases 231 Transaction Costs of Dealing with the Legal Aid Commission 233 Changes in the Amount of Legal Aid Work 242 Costs in Self-funding Cases 249 Predicting the Cost of the Case and Cost Estimates 249 Billing 252 Amount of Costs and Cost Drivers 255 Affordability of Costs and the ‘Ordinarily Prudent Self-Funding Litigant’ 258 Effect of the Client’s Resources on the Running of the Case 260 Clients’ Views on Value for Money 264 Cases with Both Types of Funding 266 The Other Party’s Funding 268 Effects of Different Funding Status 269 Effects of Resource Disparity 275 Conclusions 277 6 Client Satisfaction 281 Dispute Resolution Processes 281 Legal Services 289 Overall Satisfaction 291 Taking Instructions 292 Lawyers’ Knowledge of Law and Court Processes 294 Client Service 294 Would Clients Use the Same Lawyer Again? 300 Legally-Aided and Self-Funding Clients 301 Conclusions 302 x 7 Quality of Legal Services 307 Exploratory Research on Quality 309 Findings from the Solicitor Interviews 312 Skills 313 Managing Expectations 315 Importance of the Client’s Background to Service Delivery Standards 320 Accreditation versus Acculturation 321 Experience 327 A Conciliatory Culture (?) 328 A Unique Practice Area 340 Conclusions 343 8 Conclusion 349 Appendix 1 — Commonwealth Legal Aid Guidelines, July 1997 355 Appendix 2 — File Coding Sheet 373 Appendix 3 — Lawyer Interview Questions 387 Appendix 4 — Client Survey 395 Summary of Key Findings This study compared the services received by legally-aided and self- funded clients, and the services provided to legally-aided clients by private solicitors and Legal Aid Commission in-house solicitors, in family law. The study involved client surveys, a review of solicitors’ files and interviews with solicitors. The services provided to family law clients were compared in terms of solicitors’ activities and status, outcomes, funding and costs, client satisfaction, and service quality. The detailed data gathered also enabled some comparison of the services received by self- funding clients with higher and lower incomes, and yielded significant insights into family law clients, cases and proceedings, and into the sources and content of the quality standards applied by family lawyers. In brief, the findings of the study in relation to the basic questions posed were as follows: • Legal aid clients are systematically disadvantaged by the limited resources available for their cases, restrictions on the types of matters they are able to pursue, the processes of decision-making and surveillance to which they are subject in connection with the grant of aid, and, to a lesser extent, the quantity of services provided. However, legal aid clients do not appear to be disadvantaged in relation to outcomes achieved or the quality of the services they receive. • Legal Aid Commission in-house lawyers appear to operate more efficiently and effectively than do private sector legal aid lawyers. While they undertake fewer activities per case on average, they achieve quicker outcomes, which are closer to what the client originally wanted, and with no discernible difference in