Representation: Allocating Legal Work

1. Representation and allocating legal work

Who is responsible for conducting legal aid matters?

Section 11 of the Legal Aid Commission Act 1979 (NSW) (the Act) allows Legal Aid NSW to provide legal aid by such means as it determines including by allocating matters to its in-house legal practitioners or when appropriate to a public defender or by assigning matters to private legal practitioners.

Section 12 of the Act allows Legal Aid NSW to develop policies in relation to the allocation of legal work between in-house legal practitioners and private legal practitioners.

Legal Aid NSW policy for representation in civil, criminal and family law matters sets out when matters can and should be assigned to private legal practitioners.

In-house matters

The legal practitioner on record is Cherie Pittman but the matter can be conducted by any legal practitioner employed by Legal Aid NSW.

Matters assigned to private legal practitioners

If the matter is assigned to a legal practitioner on a Legal Aid NSW panel, it must be conducted by the panel legal practitioner. If the matter is assigned to a non-panel legal practitioner on the basis of exceptional circumstances, it may be conducted by any principal or employed legal practitioner in that firm.

2. Civil law matters

2.1 - Civil law - generally

Decisions about representation

Legal aid may be granted in civil law matters on the condition that the legal aid applicant is to be represented by:

• an in-house legal practitioner,
• a community legal centre (CLC), or
• a  private legal practitioner nominated by Legal Aid NSW.

Any of these conditions may be imposed regardless of who lodged the application for legal aid.

Legal aid applicants may nominate a legal practitioner on their Legal Aid application form. However Legal Aid NSW may decide not to assign the grant of legal aid to the nominated legal practitioner.

No right of appeal

There is no right of appeal to the Legal Aid Review Panel against a decision to provide legal aid on the condition that a matter will be conducted by an in-house legal practitioner or by a  specified private legal practitioner nominated by Legal Aid NSW.

See ss.34(4A) and 56(1AA) of the Act

What is the most cost effective service test?

In determining an application for legal aid in civil law matters, Legal Aid NSW must be satisfied that the legal practitioner (in-house or private) or Community Legal Centre (CLC) receiving the grant of aid will provide the most cost-effective service due to the expertise of the legal practitioner or CLC in conducting the type of matter for which legal aid is to be granted.

Referring the applicant to a CLC

Legal Aid NSW may determine on receiving an application for legal aid to assign the matter to a Community Legal Centre (CLC) that has expertise in the area of law for which aid is sought, for representation by the CLC. If the CLC agrees to represent the applicant the usual policy for grants of aid to that CLC will apply.

See Grants to Community Legal Centres for policies on granting legal aid to a CLC.

2.2 - Human rights matters

If legal aid is granted in human rights matters it will be granted on the condition that the legal aid applicant is to represented by:

• an in-house legal practitioner,
• a community legal centre (CLC), or
• a private legal practitioner nominated by Legal Aid NSW.

A matter will only be assigned to a private legal practitioner or CLC if Legal Aid NSW is satisfied that they will provide the most cost-effective service.

See Representation policy 2.1 for general information on decisions about representation in civil law matters.

2.3 - Guardianship Act matters

The Mental Health Advocacy Service (MHAS) provides representation for clients and administers and co-ordinates legal aid grants for:

• proceedings before the Guardianship Tribunal under the Guardianship Act 1987 (NSW), and
• appeals to the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court from decisions of the Tribunal.

In-house legal practitioners from the Legal Aid NSW MHAS will represent clients in proceedings before the Guardianship Tribunal and in appeals to the NCAT and Supreme Court as follows:

• An applicant for legal aid who is the subject of the application will be represented by in-house legal practitioners from the MHAS where possible, unless there is a conflict of interest which prevents MHAS from representing the applicant.
• In-house legal practitioners from the MHAS will represent both the subject of the application and affected persons unless a conflict of interests arises, in which case the affected persons will have a private legal practitioner assigned to them by MHAS.

See Representation policy 2.1 for general information on decisions about representation in civil law matters.

2.4 - Mental health matters

Mental health matters will be retained by in-house legal practitioners from the Mental Health Advocacy Service (MHAS) and will only be assigned to private legal practitioners, if:

• an in-house legal practitioner is unable to conduct the matter, or
• there are exceptional circumstances.

An example of exceptional circumstances might be that there is a conflict of interest.

See Representation policy 2.1 for general information on decisions about representation in civil law matters.

2.5 - Certain Commonwealth civil law matters

These following matters:

• Commonwealth benefits, including pension, social security and allowances, and
• Reviews of decisions under the National Disability Insurance Scheme Act 2013 (Cth), and
• immigration matters,

will only be assigned to specified private legal practitioner, if

• an in-house legal practitioner is unable to conduct the matter, or
• there are exceptional circumstances.

See Representation policy 2.1 for general information on decisions about representation in civil law matters.

3. Criminal law matters

All criminal law matters, except children's criminal matters and apprehended domestic violence matters, will be conducted:

• by in-house legal practitioners and,
• where appropriate, Public Defenders will be briefed,
• unless there are exceptional circumstances.

Exceptional circumstances

Legal Aid NSW will be satisfied there are exceptional circumstances where:

• there is a conflict of interest, or
• an application for legal aid is received by an applicant who is represented by the Homeless Persons Legal Service Advocate and the application for legal aid is for, either:
  • a Local Court defended criminal matter; or
  • an application under ss32 or 33 of the Mental Health (Criminal Procedure) Act 1990 (NSW).
• If a private legal practitioner has represented an applicant for legal aid in committal proceedings, a request by that practitioner for assignment of the trial does not ordinarily constitute “exceptional circumstances”. However, exceptional circumstances may exist if there is only a short period of time between the date of committal and trial, and unreasonable delay would result if the matter was not assigned to the legal practitioner who conducted the committal.

Note:  See Representation guideline 2 for criteria to be considered when assigning a matter  to the Homeless Persons Legal Service Advocate under this policy. The Director, Criminal Law has authorised certain Commission staff to assign criminal matters to private legal practitioners. See Criminal Law Division Practice Directions.

Note: Legal aid applicants may nominate a legal practitioner on their Legal Aid application form. However, in the grant of legal aid, the matter may not be assigned to the nominated legal practitioner.

No right of appeal

There is no right of appeal to the Legal Aid Review Panel against a decision to provide aid on the condition that a matter will be conducted by an in-house legal practitioner or by a specified private legal practitioner nominated by Legal Aid NSW.

See ss34(4A) and 56(1AA) of the Act

3.1 - Domestic violence matters

If an applicant for legal aid is defined as a ‘protected person' by Legal Aid NSW and is in an apprehended domestic violence order matter under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), they will be represented by:

• a rostered domestic violence duty solicitor if available, or
• if not available a private legal practitioner nominated by the legal aid applicant.

No right of appeal

There is no right of appeal to the Legal Aid Review Committee Panel against a decision to provide aid on the condition that a matter will be conducted by an in-house legal practitioner or by a specified private legal practitioner nominated by Legal Aid NSW.

See ss.34(4A) and 56(1AA) of the Act

3.2 - Prisoners matters

Representation of prisoners in prisoners' matters will be by the Commission's Prisoners' Legal Service and will only be allocated to private legal practitioners if:

• an in-house legal practitioner is unable to conduct the matter, or
• there are exceptional circumstances.

Note: Legal aid applicants may nominate a legal practitioner on their Legal Aid application form. However, in the grant of legal aid, the matter may not be assigned to the nominated legal practitioner.

No right of appeal

There is no right of appeal to the Legal Aid Review Panel against a decision to provide aid on the condition that a matter will be conducted by an in-house legal practitioner or by a specified private legal practitioner nominated by Legal Aid NSW.

See ss.34(4A) and 56(1AA) of the Act

3.3 - Children's criminal matters

Representation of prisoners in prisoners' matters will be by the Commission's Prisoners' Legal Service and will only be allocated to private legal practitioners if:

• an in-house legal practitioner is unable to conduct the matter, or
• there are exceptional circumstances.

Note: Legal aid applicants may nominate a legal practitioner on their Legal Aid application form. However, in the grant of legal aid, the matter may not be assigned to the nominated legal practitioner.

No right of appeal

There is no right of appeal to the Legal Aid Review Panel against a decision to provide aid on the condition that a matter will be conducted by an in-house legal practitioner or by a specified private legal practitioner nominated by Legal Aid NSW.

See ss.34(4A) and 56(1AA) of the Act

3.4 - Reassignment of criminal matters

Section 12 of the Act allows the Legal Aid Commission of New South Wales (Legal Aid NSW) to develop policies in relation to the allocation of legal work between in-house legal practitioners, including public defenders and external private legal practitioners.

Legal Aid NSW will not authorise the reassignment of a grant of legal aid in criminal matters from:

• a private legal practitioner to another private legal practitioner, or
• an in-house practitioner to a private practitioner

if, in reassigning the matter Legal Aid NSW will incur additional costs, unless there are exceptional circumstances.

What are exceptional circumstances?

Legal Aid NSW will be satisfied that there are exceptional circumstances, only if:

• there is a conflict of interest, or
• there is an irretrievable breakdown in the relationship between the client and the legal practitioner, but does not include cases where the client has withdrawn instructions or otherwise makes it impossible for the legal practitioner to continue with representation, or
• where the Director Grants or Director Criminal Practice determines the reason for changing legal practitioner is in all the circumstances an appropriate expenditure of limited legal aid resources.

See Representation guideline 1 for determining requests for reassignment of criminal matters. 

Note: If a legally aided person withdraws instructions from a practitioner, or otherwise makes it impossible for the practitioner to continue with the representation, Legal Aid NSW will determine whether it breaches the condition of the grant of aid and if satisfied that it does, may terminate the grant of legal aid.

4. Family law - generally

Decisions about representation

Legal aid may be granted to applicants in family law matters on the condition that the legal aid applicant is to be represented by either:

• an in-house legal practitioner,
• a community legal centre (CLC),
• the Aboriginal Legal Service or
• a private legal practitioner nominated by Legal Aid NSW.

Legal aid applicants may nominate a legal practitioner on their Legal Aid application form. However, in the grant of legal aid, the matter may not be assigned to a nominated legal practitioner.

Legal representation in child support matters is to be provided by the Child Support Service unless:

• the Child Support Service is unable to conduct the matter, or
• there are exceptional circumstances.

No right of appeal

There is no right of appeal to the Legal Aid Review Panel against a decision to provide legal aid on the condition that a matter will be conducted by an in-house legal practitioner.

See ss.34(4A) and 56(1AA) of the Act.

5. Duty solicitor matters

Where Legal Aid NSW has a duty solicitor service at the:

• the Local Court for criminal matters,
• the Children's Court for care and/or criminal matters, or
• the Local Court for family law matters,

the rostered duty solicitor will represent the legally assisted person unless there are exceptional circumstances.

If the duty matter concerns an apprehended domestic violence order refer to Representation policy 3.1 Domestic Violence matters (above).

No right of appeal

There is no right of appeal to the Legal Aid Review Committee Panel against a decision to provide aid on the condition that a matter will be conducted by an in-house legal practitioner or by a specified private legal practitioner nominated by Legal Aid NSW.

See ss.34(4A) and 56(1AA) of the Act.