Legal Aid to Stop Assigning Work to Unvaccinated Lawyers

The Legal Aid Commission of New South Wales is a publicly funded government organisation which provides legal services to socially and economically disadvantaged people across the state in areas including criminal law, family law and some areas of civil law.

It currently employs over 1,300 people, has 25 offices, 2 satellite offices and operates in 243 outreach locations.

What does the Legal Aid Commission do?

The Commission provides these services through its own employed lawyers (known as ‘in-house lawyers’), through assigning cases to private law firms who are then paid by the organisation and by engaging ‘duty lawyers’ – which are private lawyers retained to undertake any number of cases in a particular court on a given day.

Legal Aid panels

Private lawyers can apply to any of several ‘panels’ managed by the Commission, which in the context of criminal law have included:

• Summary panel (for less serious cases),
• Indictable panel (for cases that can be committed to a higher court, such as the District Court),
• Serious and Complex panel (for the most serious cases), and
• Appellate panel (for appeals to the NSW Court of Criminal Appeal).

Panel members are permitted to undertake certain types of work, depending on the panel they are on.

For example, only lawyers on the Serious and Complex panel are assigned the most serious and lengthy cases, such as murder and terrorism cases, fraud cases with more than 30 counts and/or a total value of more than $500,000 and jury trials expected to last for more than 20 days.

Duty solicitor scheme

In addition to undertaking several cases on any given day – including mentions (eg adjournments) for those cases and pleas (which are sentencing matters in the Local or Children’s Court), duty solicitors are also responsible for coordinating with other private practitioners in the carriage of the cases on the day.

Duty solicitors are required to follow a wide range of rules, and are paid a daily rate for their work.

Vaccination status

Until now, a lawyer’s vaccination status did not exclude their receipt of work either by way of the assignment of legal aid cases or being a duty solicitor.

However, the Commission recently issued its ‘COVID-19 Delta Procedure for allocating work to panel member law practices’, which stipulates that:

• “Principals are required to complete the Vaccination Register by 17 January 2022 – Law Practices who are not COVID-19 double vaccinated or do not complete the vaccination register by this date will not be allocated work after 17 January 2022.”

• Lawyers on the duty solicitor scheme who do not ensure the register is completed by 24 November 2021 are presumed to be unvaccinated and will not be considered for the 2022 roster (these rosters are allocated annually), and
• Lawyers on the back up duty solicitor scheme who do not ensure the register is completed by 24 November 2021 are presumed to be unvaccinated and will no longer be allocated work from that date.

Impact on law firms

These rules are almost certain to result in a number of lawyers who are not currently vaccinated obtaining COVID-19 vaccines, given that many firms depend on income from legal aid case assignments and duty work to remain viable.

But others may choose to remain unvaccinated and relinquish the work – a situation which could impact on the quality of services provided to disadvantaged clients.

What about Legal Aid employees?

The Legal Aid Commission has implemented its Safe Workplace Policy which commenced in October 2021 and will expire in October 2024.

Section 7 of the Policy prescribes rules relating to the management of COVID-19, including those to do with physical distancing, human to human contact, face masks, recruitment and vaccination.

As to the latter, the document states, among other things, that:

• It is an inherent requirement and a condition of employment for all our front-line employees to be vaccinated. Front line employees will need to have obtained a double dose of COVID-19 vaccination by 1 December 2021 to continue in their role.
• For employees that are not front-line and are not vaccinated, to be subject to additional requirements if they need to attend an office. This will include testing and wearing masks (regardless of whether it is mandatory).
• Private practitioners wanting to attend our offices will also need to provide evidence of their vaccination status.

All employees are required to complete the vaccination register.

The Policy does make certain provisions for existing employees who are not fully vaccinated “due to medical contraindications or protected attribute to continue working, but the rules are strict and frontline work appears to be very limited for them.

The Policy regarding ‘Future recruitment of roles’ provides that,

“All Legal Aid NSW recruitment actions will establish the same level of protection with regards to COVID-19 safety protocols and as such will expect all applicants to be vaccinated if suitable to do so.”

While this policy appears to accommodate for some unvaccinated applicants, it is telling that all of the Commission’s current employment advertisements list full vaccination as an “essential requirement”, including the senior role of ‘Director Criminal Law’.

It therefore seems unlikely that a person who is not fully vaccinated would be able to secure employment with the Commission.

And one wonders whether the Commission’s next step might be to refuse legal representation to unvaccinated persons.