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Goals, Objectives, Strategies and Measures — Continued Goal 2: Ministries and agencies receive high-quality, cost-effective legal services that ensure that they operate lawfully and manage their legal risks effectively.
The ministry supports the Attorney General, who, as the legal advisor to government, must ensure that the administration of public affairs is in accordance with the law. By providing legal advice to ministries, agencies and Cabinet, and by representing the government in court and before administrative tribunals, the ministry helps to ensure that public agencies operate in full compliance with the law. The ministry offers its legal services according to a cost-recovery model that requires client ministries and agencies to bear the costs of a large portion of the legal services that are provided to them by the ministry. Annual service level agreements with each client ministry or agency establish specific terms of reference for service levels and payment. A cost-recovery model can encourage client ministries and agencies to plan carefully with the ministry, define their anticipated legal needs judiciously, and use resources efficiently. However, in some circumstances, the cost-recovery model could also serve as a disincentive to ministries and agencies to fund their requirements sufficiently. Insufficient funding could, in turn, lead to increased legal risk and be incompatible with the goals of effective legal risk management. To help avoid this situation, careful planning with the ministry through the service planning process is undertaken on an annual basis. As part of its commitment to that process, it is essential for the ministry to offer high-quality legal services that meet client needs at reasonable rates. Client satisfaction can serve as one measure of how services and service costs are being perceived.
Client satisfaction is measured through surveys of client ministries and agencies, taking into account whether staff have been responsive to the clients, have understood the issues at hand and have provided the required advice. Overall satisfaction measures not only the responsiveness of the ministry to its clients, but whether the legal advice and legal representation provided has supported the clients in their operations. The ministry's client satisfaction rate of 91 per cent is one of the highest in Canada among government agencies offering similar services. A complete measurement of success for the provision of legal advice is a long-term measure. Lack of timely legal advice or appropriate representation can manifest themselves years later, when legal problems arise. Client satisfaction cannot take into account a longer term outcome measurement of legal services; rather, it lends a more immediate view of service quality.
Legal services are provided by in-house counsel and through contracts with outside counsel. In providing its services, the Legal Services Branch is mandated to do so as cost effectively as possible. At the present time, the Legal Services Branch is at the forefront of government law departments in Canada in its detailed financial analysis of its costs and operations as compared with other jurisdictions. However, while the branch can measure the overall cost of service, it may be difficult to ensure that the data obtained from other jurisdictions has been collected and measured in a way that makes comparison meaningful.
The Legal Services Branch assesses the most effective method of acquiring the legal services that government requires. In most cases, in-house counsel, through a combination of depth of knowledge and expertise on public law matters and the operation of government, and competitive costs, offer the highest quality and most cost-effective advice and representation. In situations where services are of a more routine nature and are geographically distributed (such as family law), contracted services are used. Situations exist where in-house counsel cannot act. Professional conflicts of interest can arise in public law practices that necessitate the use of services of outside counsel. In some instances, specialized expertise may not exist within the branch, and the requirement for the particular skill or expertise may not be ongoing. In this situation, services will be contracted on a short-term basis. Retainers of outside counsel for civil law legal services to government are required to be managed by the Legal Services Branch. This allows them to be monitored and the costs and nature of services provided to be considered as part of the assessment of the effectiveness and costs of legal services to government generally. All of these factors are considered in determining competitive rates and in undertaking the following strategies.
Legal Services Branch conducts an annual service level agreement process that includes a joint assessment with the client ministry or agency as to the level of legal services required, and development of a comprehensive agreement that sets out financial commitments, service commitments, and performance measures. The Legal Services Branch is one of only two government legal services providers in Canada 5 that engages in detailed budgeting and service planning with its clients for full recovery of costs of its services through a process of this nature. Certainty around legal services requirements and the ability to adapt them to constantly changing needs and demands is critical to this objective.
Objective 3 and its strategies are consistent with, and intended to support, the Enterprise-wide Risk Management initiative of the Ministry of Finance. Systematic legal risk management should be an integral part of this initiative, and is dependent upon it for both the education necessary for client ministries and agencies to understand and appreciate risk management and the resources in client ministries to attend to it. This objective assumes that ministries and agencies have provided training to staff to ensure awareness of the need for risk management, and are providing resources to implement this initiative. Legal risk management and litigation may take different forms depending upon the ministry or agency involved. Some larger ministries that deal with a number of significant legal issues already have established units whose responsibilities include monitoring legal issues and litigation, and liaising with Legal Services Branch on these. "Systematic" legal risk management initiatives contemplate at a minimum some regular engagement between Legal Services Branch and ministries or agencies on these issues. These would be consideration of legal risks and litigation on a more planned basis, and anticipating, not merely reacting to, issues as they arise. This may be a challenge when the attention of both senior officials in ministries and agencies and Legal Services personnel is regularly diverted to "reactive" issue management and advice and representation to support it. A more structured analysis of litigation would include systematic consideration of the use of dispute resolution by the client ministry in management of disputes to avoid litigation and as an alternative to achieving final resolution of a dispute that is in litigation. It would also contemplate engagement between Legal Services Branch and its clients following resolution of litigation (judgment or settlement) to consider whether the results of the litigation suggest that the issues that gave rise to the litigation might be managed differently in the future to avoid or reduce future exposure (post-mortem analysis, lessons learned).
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