Clients purchasing legal services want value for money. But what does that mean when the client is government and the money is the taxpayers’?
Dr Gabrielle Appleby recently argued in The Mandarin that, although value for money is important, it should not be the sole focus of governments. However, perhaps the problem is not the focus on “value for money”, but the lack of focus on what is “value” in the context of government legal services.
“Value for money” has two parts — money and value. Both clients and lawyers know how to talk about the money side of the equation. How much will this cost is a familiar question and somewhat objective — my hourly rate, although negotiable, is clearly defined.
The second part is often overlooked by both clients and lawyers. Deep down, a lawyer and a client will have their own idea of how valuable particular legal work is. However, it is not always talked about or even consciously thought about. The value of legal work is harder to define and may depend on the context of the matter and the objectives of the client. Disputes about whether a lawyer has provided value for money are usually not so much about the money and more about the client and lawyer having different ideas about what the value of the legal work is.
Government is not immune to this difficulty. Whether the government is getting value for money in legal services depends on two factors — how much has been spent and the value of the work. Again, there is a lot of focus on the former. The media annually reports on the dollars spent, whether it was more or less than last year and to whom it was paid — private firms, government solicitors, and barristers.
However, there is much less discussion about the value side of the equation. What discussion there is tends to be unsophisticated and shaped by stereotypes. Certain types of lawyers are presumed to provide better value for particular matters; for example, private firms are presumed to be better at commercial work but less attuned to the needs of government; and government lawyers are presumed to know the client better but to be less capable than their private firm colleagues.
Stereotypes are unhelpful, because they assume that lawyers with a particular employment structure (private, government solicitor, in-house) are all the same. In reality, different legal teams and lawyers have different strengths and weaknesses and all lawyers have the same professional duties and obligations, including ethical obligations and duties to the court — irrespective of who their client or employer is.
The key for government clients (as for any client) is to identify what strengths they need for a particular matter and identify the lawyers or legal teams with those strengths.
Government clients won’t know what strengths they need until they know what they want, i.e. what is the value of the legal work they need done?
Unlike private clients, government clients act in the public interest, which can rarely be reduced to a dollar figure. Litigation may be pursued to protect the integrity of a legislative scheme by, for example, ensuring that only those who meet the statutory criteria receive benefits — and sometimes doing so when the legal fees to defend the proceeding equal the amount of benefit in question. What is the value of a well-administered legislative scheme?
Government clients are also subject to a range of obligations that do not apply to private clients, including the Model Litigant Obligation and rules about conducting litigation during caretaker period before an election. Sometimes these obligations will require a government client to act in ways that may not be consistent with their interest in a matter, including disclosing information to the court and the other side that may harm the government’s case but is relevant to the court’s decision. What is the value of acting consistently with duties and obligations?
Governments are required to take “whole of government” approaches to legal issues — it won’t do for Department X to interpret freedom of information legislation in one way and Department Y to interpret it in another way. Sometimes government clients will seek legal advice on “whole of government” issues to ensure that government departments are applying laws consistently. What is the value of clarifying unclear legislation?
My economist friends tell me that these are examples of “economic absolutes”, ie things that cannot be valued in an economic sense. They are nevertheless real interests for government which influence decisions about legal services and are relevant to the “value for money” question.
When a government client procures legal services, they should consider why the legal service is needed and what “public interest” factors are relevant to the matter. They should choose a lawyer who can not only provide the legal service, but also give effect to the “public interest” factors. Lawyers providing services to government clients — whether in-house, private or government solicitor — need to promote their skills in respect of public interest factors, as well as the nuts and bolts of advice and litigation services. Finally, clients and lawyers need to discuss the public interest factors before legal services are provided, rather than after the bill is issued, so everyone is clear about what “value” means in a particular matter.
Value for money is important — but let’s make sure we know what we’re really talking about before we rush to judge on dollars and cents alone.