From prosecuting the owners of viscious dogs to advising on carbon pricing, government solicitors uphold the law in the face of politics and bureaucracy. Stephanie Quine talks to private-practice government lawyers and those working in-house about how they deal with a complex and unique client.

Australian Government departments, agencies and bodies will soon be shopping for lawyers from a pre-determined list. Applications closed on 24 February for the very first round of inclusions on the Commonwealth legal services multi-use list (LSMUL), known to government lawyers in the nation’s capital as the “MUL”.

To be included on the LSMUL, sole practitioners and law firms must meet the conditions for participation in the following nominated categories of legal work: government and administrative law; corporate and commercial; dispute resolution and litigation; and all other legal services.

The list aims to reduce barriers to entry into the market for Commonwealth legal work, improve access to information about legal service provider (LSP) performance, reduce duplication in tendering across the Commonwealth, and provide agencies with flexibility to scope the broader market for services.

For Maddocks, whose government clients include the Australian Tax Office and Department of Defence, the opening of its new Canberra digs on 20 February has come at a pertinent time.

“We see [the LSMUL] as an opportunity for us to offer our services to a wider range of federal government departments and agencies,” says David Rennick, CEO of Maddocks.

Not only will the LSMUL showcase LSP skills to a wider pool of potential purchasers, it will also reveal their comparative rates.

HWL Ebsworth, which strategically opened its Canberra digs in August last year, will today submit its application to all four categories of legal work under the LSMUL.

HWL Canberra-based partner Lex Holcombe says the list (which is expected to be operational in June 2012) will “break down the fairly strict panel arrangements that agencies have had” and create a more level playing field for firms to compete.

“I think it will mean that the legal landscape in Canberra changes fairly dramatically as the firms adapt to the new environment,” says Holcombe, adding that larger national firms which focus on gaining profitability by increasing their rates, and which also have to comply with a national hourly rates scheme, will run into problems.

“I think you’ll find that there will be a movement of mid-tier firms into the market, and there could be a movement of some of the larger firms out of the market,because of the rate squeeze and that incompatible strategic focus.”

But Holcombe says marketing services to government clients can be difficult for all firms, because “they’re naturally careful in relation to probity issues”.

“You can’t shout them to big lunches and so on because of their gift registers and you have to be careful of probity and respect their position ... it really is a skilled marketing exercise rather than a chummy friends exercise,” he says.

“You really have to be relevant to their business, whether that’s through CLEs or speaking at seminars, or providing updatesand secondments. That sort of focus is how we market ourselves.”

Standing on the inside

For Elizabeth Espinosa, marketing is not an issue. She works in-house as a corporate lawyer for New South Wales’s second largest council, the Sutherland Shire.

“I have access to the corporate brain, so to speak. I have all the resources available to me, whereas if you are an external lawyer you are much more reliant on the quality of instructions provided to you,” she says.

Espinosa deals with council managers, directors and staff “on the ground” doing projects, enforcement, investigations or negotiating funding agreements with other government agencies.

“I often come in when construction contracts are being formulated as local government is responsible for a significant amount of infrastructure ... or when matters referred to the council require an actual council resolution,” she says.

“In terms of being in-house, the breadth of work that I do is fantastic.”

At a federal level, in-house government lawyers generally do work for one agency. Peter Nicholas requires a much more limited, yet more specialised, legal knowledge in his role as senior adviser to Greg Combet, the minister for climate change and energy.

An energy law and policy specialist, Nicholas’s honours thesis in arts focused on the UN’s response to the environmental security debate. He played an important role in negotiating the 2006 amendments to the Australian Energy Market Agreement as well as the Energy Access Review, National Gas Law and electricity pricing rules.

He also began work on the ill-fated Carbon Pollution Reduction Scheme. His position now, he says, is a high-pressure role which requires an exhaustive knowledge of the intricacies of the carbon pricing legal and policy framework details.

“It’s great being able to contribute to national economic reform in relation to one of the most difficult and challenging problems facing Australia and the global community,” he says, adding that lawyers have an important role to play in the process of defining the laws and property rights which underpin markets.

Public interest versus politics

In his speech to the Annual Public Sector In-House Counsel Conference in 2009, NSW Legal Services Commissioner Steve Mark commented on the difficult task of identifying the government lawyer’s client.

“Is it the lawyer’s supervisor? The division head? The agency itself? The Minister? The public interest?” he asked.

That same day, Christopher Craigie SC shared with the Conference his “servants of all, yet of none” motto which he said “sits comfortably” with the role of lawyer as public servant or statutory appointee.

“[Government lawyers] serve the community, as embodied by the state, but we do not serve the individual interests of those elected officials who, from time to time, are vested with high office,” said Craigie.

Elected officials, from local councillors to the prime minister, have the responsibility and lawful authority to define and direct their government policies, but lawyers must recognise the extent and limits of this situation.

In-house government lawyers, while bound by the same ethical obligations and practice rules as other solicitors, apply the usual ethical rules in a different context to lawyers in private practice.
“Government lawyers are disparate and yet united,” says Espinosa.

“United because we all have a multifaceted client, be it a commonwealth department, agency, or a state or local council, but the issues are always very similar. We always have politics versus bureaucracy, and conflicting views whether one department head or one unit of that department wants a different outcome to another unit in the same department.”

Espinosa, who is the only member of the NSWLS Government Solicitors Committee representing local government, uses the Society’s 2010 second edition of Guidance on Ethical Issues for Government Solicitors (the Guide) to help understand what do if there’s a conflict of interest.

“You need to understand that there is a hierarchy and there is an authority ladder in terms of obtaining instructions. The driving forces in government are not always profit. You’ve got environmental drivers, social drivers, demographics ... and often all of those can be happening in the same agency, especially in local council.”

Holcombe, who has advised many federal departments, still finds it a challenge to understand how the government client operates in a bureaucratic, legal and political environment.

He recalls his involvement in the development and implementation of the Medical Indemnity legislative package, which required him to assist a committee made up of people from four different agencies.

“Each contributed to the implementation from a different perspective,” says Holcombe, adding that multiple stakeholder feedback combined with tight deadlines and the Minister’s close interest in the project made for a unique and complex transaction.

“I find [government] a fascinating client because of the many levels on which they operate ... They’re very different to a commercial client where they want clean commercial legal advice,” he says.

“It takes time and an investment of energy into understanding what your work will do to help them, and the more you understand that environment, the easier it gets and the more fascinating it gets.”