Getting the message through: Challenges for legal advisers in government

Last month, I ran a LinkedIn poll on the question:

“Is it unthinkable that crucial legal advice would not be passed on by a government agency to its Minister? What’s your experience?”

The poll was prompted by the previous day’s news from the Robodebt Royal Commission. As reported by the Sydney Morning Herald, the former Prime Minister, Scott Morrison, had testified that he was never advised that the robo-debt scheme was unlawful before he signed off on it. He also stated it was “unthinkable” that his department did not pass on crucial legal advice. 

It ‘should’ be unthinkable that crucial legal advice would not be passed on, particularly when it goes to the legality or otherwise of a key decision. 

However, 39 per cent of respondents to my poll said they had “seen it happen” (42 per cent if you count my vote). That is, they had experienced situations where crucial legal advice was not passed on. 

The respondent pool was small (19 in total, including me) but pleasingly, those who responded had strong public sector leadership experience, either at a project or enterprise level. 

What the poll result tells us

The poll result, while in no way making a claim for scientific validity, highlights the challenge for government counsel and decision-makers. It is clear that legal advice does not always get through as it should.

There may be many reasons for this.

The pathways from legal adviser to ultimate decision-maker within government can be very protracted, with the consequent risk that legal advice loses its context or timeliness, is not well understood or its meaning is simply ‘lost in translation’. The need to protect legal professional privilege can also mean the advice is separated from the briefing (either physically or conceptually). 

At the other end of the spectrum, it may be the case that the Minister doesn’t want or need to receive or know about the advice. Depending on the nature of the advice and the context, that can be perfectly legitimate. Not so in the case where the Minister is required to make a decision informed by that advice. 

What is it about legal advice? 

Legal advice is a very special category of advice and needs careful handling. It informs so many actions, and determines their lawfulness or otherwise. Legal advice needs to be out there and well understood by those whose quality of decision-making relies on the efficacy and correctness of the advice. Yet, at the same time, it needs to be protected from disclosure to safeguard the special privilege it has within our legal system.

Legal advice is heavily dependent on the facts. A change in the facts can radically change the legal answer.

Legal advice is often carefully worded and nuanced. An unravelling of that nuance may change the meaning completely.

What can legal managers and individual lawyers do to maximise the chances their advice is heard and understood?

Well, I don’t have all the answers, but here is my list:

1.  make sure the lawyers are empowered to give the most effective legal advice they can. This means they need permission to:

• ask “why” and insist on being provided with the context and purpose of the advice
• query whether the question they are being asked is the right question; query whether advice is needed at all or whether there are more sensible and practical ways of solving the problem
• insist that no one rewrites legal advice (or, if changes must be made for clarity or otherwise, those changes are approved by the original author or a more senior lawyer)
• insist on having more time to write the advice where they need it
• insist that a request for advice comes from a senior manager or executive
• go over the head of the person giving instructions where there is a concern about the issue, the question or the risk
• challenge any briefing protocols or systems that compromise the efficacy and effective transmission of legal advice to those who need to know (particularly challenge any process that allows for legal advice to be rewritten, summarised or “translated” without senior legal sign-off)
• give a verbal briefing to accompany any advice if it is particularly complex or sensitive or relies on facts and assumptions that may not be apparent. 

2.  train your lawyers to write effectively and clearly. Be blunt and state the issue clearly in a way the person relying on the advice can understand

3.  ask for support from the senior leadership of the agency. They can lend support by:

• implementing a compliance framework and encouraging a healthy respect for legal compliance and legal advice
• encouraging early engagement with, and full disclosure to, the legal team – this includes sharing problems and issues with the lawyers, not asking hypothetical questions. Hypothetical questions can result in pointless or even misleading answers. The facts and context are critical
• ensuring managers have oversight of requests for legal advice
• enforcing compliance with protocols for the protection of legal professional privilege.

What are your tips and tricks for managing this issue? We’d love to hear your thoughts.

We’ll continue this discussion at our upcoming NSW Government lawyers annual CLE seminar series commencing in February. Join us by registering for our ‘Getting the message through: Professional skills for navigating risk and creating opportunity’ session here.

If you have any questions or require any assistance, please get in touch with our team using the contact details below.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Christine Lithgow

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