Legal Aid is available to people who need, but cannot afford, legal representation. The pre-dominant model used in New Zealand is a contractual one. The client engages the services of a lawyer in private practice and the government, (sometimes expecting repayment from the client), pays the lawyer directly. The lawyer remains in private rather than public practice, and receives payment from the government only on a case by case or contract by contract basis.

An alternative model is a Public Defence Service, where a government agency maintains a salaried staff of lawyers. Clients seeking legal aid representation choose from amongst this staff. A Public Defence Service (PDS) has been introduced in several jurisdictions worldwide, and a pilot PDS has been trialed in Auckland and Manukau. Some contrasts between the private lawyer and public lawyer models of legal aid representation are set out below.

• A public defender service has been tried in Canada, Australia, Scotland and some jurisdictions in the USA. Some public defender services abroad have included investigators, social workers, psychologists, and forensic experts amongst the staff. This places significant resources at the disposal of the staff lawyers. Access to these resources may translate into better representation of their clients than with a private lawyer who may be reluctant to spend a share of their income from the case to solicit an expert opinion.
• Towards the more progressive end of the public defender services is the holistic approach followed by, for example, the Bronx Defenders. Their approach involves identifying possible reasons for a criminal act and to try to address it. This may involve substance abuse issues or undiagnosed psychological illness. It may also involve community-building programs in the neighbourhood (see www.bronxdefenders.org).
• The desirability of linking legal aid to other social services which can address issues that often escalate into legal problems has been discussed by Dame Margaret Bazley in her recent discussion paper. ("Improving the legal aid system", Margaret Bazley, Ministry of Justice, p.14, 2009).
• Bazley notes some complaints about the private lawyer legal aid representation in New Zealand. Complaints about criminal defence lawyers include: instances of using court events to seek adjournments because of a failure to make contact with clients beforehand; turning up unprepared, having failed to take instructions from clients or having not read the brief of evidence from the prosecution; conducting all client contact at the court, usually just before a scheduled hearing; and lawyers over-committing themselves and failing to turn up to a court event because they are appearing elsewhere on another case (See Bazley, pp46-7).
• The complaints seem particularly attached to sole practitioners, many of whom dispense with an office as a way to reduce costs. They are colloquially known as 'car-boot' lawyers for this reason. Since they derive all income from their cases and receive no salary, sole practitioners often end up taking on too many cases in order to assure themselves of a sufficient income. As a result, they may be unable to devote adequate time to each case.
• The Public Defence Service (PDS) was established as a pilot scheme in the Auckland and Manukau courts in 2004. The Legal Services Agency (LSA) employs salaried criminal lawyers to take on criminal legal aid cases through its PDS. The scheme has run alongside the continued use of private lawyers contracted by the LSA on a case by case basis. The Public Defence Service was formally made permanent in December 2008.
• Studies of overseas public defender services have shown that staff lawyers tend to plead their clients guilty at earlier stages of the process and are thus involved in fewer trials. This means both a saving in the lawyer's time on a case and a saving of the court's resources as a speeding up of the backlog of cases to be dealt with occurs ('Patterns in Legal Aid', Department of Justice, Canada, 1995).
• In Canada, one concern was that this tendency to plead guilty earlier in the process might be to the detriment of clients, a concern not borne out by studies. The Canadian experience notes that clients of staff lawyers were neither more nor less likely to be convicted than the clients of private lawyers. The study also found that where the client was convicted, those represented by a staff lawyer were less likely to be given a custodial sentence (Ibid).
• In NZ, two evaluations have been done of the pilot PDS scheme in Auckland and Manukau. These seem to confirm some of the findings of studies of overseas public defender services. The evaluations have noted that PDS cases were very much more likely to have a guilty plea as the first recorded plea than were private cases, but there was little difference in plea by the end of the case. Thus, private clients were more likely to change their plea during the case. PDS cases were generally more likely to be resolved without proceeding to a status hearing, defended hearing, or jury path proceedings, yet the conviction rate did not differ significantly across the private lawyer and the staff lawyer system ("The Public Defender Service Pilot Evaluation: Second Interim Report", Paulin, Triggs, Kingi, p.iv, 2007).
• The pilot's evaluation also sought responses from key stakeholders as to their perception of the quality of the pilot PDS. These included judges, prosecutors, court managers, probation staff and representatives of community groups, as well as private lawyers. Perceptions of quality were split between private lawyers on the one hand and all other key stakeholders on the other hand. Private lawyers tended to be more critical of PDS, while all other key stakeholders tended to rate the quality favourably. The latter group also rated the pilot PDS highly in terms of the effectiveness of its relationships with stakeholder groups and its ability to provide independent legal services. In terms of impact of the PDS on their workloads, key stakeholders other than private lawyers tended to the view that the PDS had, if anything, reduced their workloads (Paulin, Triggs, Kingi, p.v, 2007).

The Public Defender Service is expected to be extended to Waitakere in 2009 and to North Shore, Pukekohe and Papakura in 2010. The government expects the public defender service to result in various cost savings while providing comparable service (Press Release: "Government expands Public Defence Service", Hon Simon Power, Minister of Justice, 9 June 2009, see: www.beehive.govt.nz).