Provision of Legal Services to Government
In about 2000, the NSW government flagged a whole of government Legal Services Panel. It did not then eventuate, presumably in no small part because under the law applicable at the time it would have been criticised as potentially unlawful.
In 2011, the NSW Government blueprint on Legal Services for Government flagged another whole of government system.
In 2015 a Request for Proposals issued on behalf of the NSW Government for response by legal practitioners, sole practitioners, small and large firms alike.
The panel put in place consequent upon that process has been in place for some time and I do not here address issues to do have successful the arrangements put in place are.
I choose to address the potential losers under the current arrangements. The Commonwealth Government is presently putting in place a new panel arrangement for provision of legal services to Commonwealth agencies.
Who are Are the Losers?
Firstly, partly due to the new arrangements and partly due to the operation of the Uniform Legal Profession provisions, I suggest that internal to Government legal practitioners are at risk.
The extent of the external spend and extent of the administrative burden in the selection, monitoring and reporting arrangements under the new system may well some internal to government practitioners to be little more than legal service managers. That is a prospect forecast by one of the speakers at the NSW Law Society Government Solicitors Committee’s Government Lawyers conference a few years ago.
Those practitioners might, in time, find themselves on the wrong side of the provisions in place under the Uniform Provisions as they may no longer fall within the definition of a practising lawyer, so raising the potential for some of their “advice” not to enjoy Legal Professional privilege.
This risk of losing Legal Professional Privilege seems to have increased, as I have also noticed an increasing number of government agencies engaging and employing staff often called something like “Compliance Officer” but who are substantively doing “legal” work.
Secondly, and perhaps more importantly, the loser is the Rule of Law itself and consequently Government itself.
The perceived emphasis on “price”, as opposed to value for money, may itself lead government into a failure to be the subject of adequate experienced independent and consistent legal advice from within.
Indeed and by way of comparison, is very interesting to note recent articles consequent upon the Hayne Royal Commission into Banking pointing out potential deficiencies of too great a reliance on internal legal advice, where the relevant practitioner has not had a deep enough nor wide enough experience and may be perceived as too close to their employer.
This too seems consistent with my perception of potential problems for government long-term with maintenance of adequate internal legal services.