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Government Lawyers Stressed Out
New funding policy may create legal risks for province: internal audit.
Legal strains, poor decisions?
Cost-cutting measures that force each B.C. ministry to pay for its legal services rather than from the Attorney General's budget could be heightening the legal exposure of government, as well as risking lawyer burnout and poorly written laws, says an internal provincial audit.
The report by the B.C. comptroller general of July 2006 was obtained by The Tyee through the Freedom of Information Act.
The Legal Services Branch (LSB) of the attorney general's ministry handles all of the provincial government's civil law matters, and the audit said that LSB managers worried that the funding change might inhibit ministries from discussing legal topics with the branch quickly enough. It might also limit the time that lawyers could spend on a file, "potentially subjecting the province to greater legal risks."
In 2002, the government allowed the LSB to start recovering 75 per cent of its costs from ministries that used its services, up from 40 per cent. Ten of the lawyers and ministries interviewed said cost recovery has encouraged ministries to manage their own legal risks more often, "and in a few cases the shift has been dramatic."
Most of the lawyers said the LSB was understaffed since well before the new system began, and that heavy workloads are still a problem, often leading to service delays.
As a result, the audit said, several ministries complained about their lawyers being overworked, and service has suffered from a high turnover "due to stress, illness and burnout.... A number of lawyers feel quite pressured by clients' cost management tactics." The ministries said such turnover means a loss of corporate knowledge and subject expertise.
A few interviewees felt cost recovery has meant less job security for lawyers, which makes it harder for the LSB to recruit and retain lawyers, and has reduced its service capability.
Growing branch
The LSB staff has more than doubled over the past 10 years to 350 employees, 165 of them lawyers, and the branch has a $65 million yearly budget. Ministries have been using more LSB services since the change, said Linda Mueller, the attorney general's communications manager.
The attorney general's ministry decides whether to settle cases out of court, after consulting with the affected government bodies. Mueller said that government doesn't settle more cases as a result of the change, and in fact, the settlement rates have stayed fairly constant.
Yet the audit noted lawyers' concerns about ministries' delays in seeking legal advice, and they also asserted that the funding change created an incentive for ministries to settle rather than defend cases, decisions that might sometimes be unsuitable.
To cut costs, ministries sometimes try to resolve cases as much as possible before consulting LSB lawyers. But some lawyers told the auditors that because of such delays, issues are left until they have become much more serious, and such tight deadlines mean there is too little time to give good advice. One lawyer cited specific cases where government suffered "significant negative consequences" as a result of a ministry trying to manage legal issues on its own.
The report noted that ministries are "inappropriately motivated against defending legal actions," because if they settle out of court, they don't bear the settlement costs, but if they defend them, then they must pay their own legal fees.
One ministry decided it can't afford all the legal services it needs, the auditors said, and so it reluctantly chose to contract through its Service Level Agreements (SLAs) with the LSB for fewer lawyers than it needs. The report noted two other ministries might soon face the same problem due to budget pressures.
'Contradictory advice'
The NDP's legal affairs critic, MLA Leonard Krog, has no objections to the funding change. "In some ways I thought that was a good thing, to keep track of ministries' legal costs," he said in an interview. "I suspect like all things, it has its pros and cons. And many disputes can be settled before trial, but it doesn't always save money."
Another problem was found. The LSB also drafts all of the B.C. government's bills, regulations and statutes, the audit reported, and one government lawyer noted that a solicitor's advice can be needed when a ministry is developing legislation. But at times, ministries have resisted seeking this advice, to save costs, and "the lawyers noted that the negative consequences of poorly drafted legislation can persist for many years."
Another lawyer asserted that the cost recovery system can result in ministries getting "unco-ordinated and contradictory advice."
Some ministries said that, due to the funding change, fewer policy issues are now being referred to the lawyers, and the audit stated that clients and lawyers both feel this can be "ill advised" because policy and legal issues often overlap and are better considered together.
Apart from the problems found, the audit said the system was otherwise working well. Still, Mueller said, the LSB is considering the report's suggestions to see if it can improve the funding system.
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dolphin
5 years ago
Settling out of court
One the cases the gov't settled out of court was the Corren human rights complaint. That resulted in a secret, 7 page agreement that gave an unprecedented right of curriculum reform and veto power to two individuals with a vested interest to have that reform implemented. Given that this secret pact will impact every student in the province, it should have been handled in a more transparent way, with input from all stakeholder groups. All subsequent attempts from certain stakeholder groups to have input into the curriculum revisions were rebuffed.
The gov't caved in and gave the complainants everything they asked for. Things will hit the fan fairly soon in the new school year as a result of this ill-considered decision.
ubiquitous
5 years ago
what about prayer?
Oh dolphin. Still spreading hate I see. Let me ask you two things:
a. how does this decision impact "every" student in the province?
b. would you have supported that a bible reading or morning christian prayer be part of the ciriculum?
ChrisB
5 years ago
Why
Should we not be asking why the government's lawyers are stressed out even though the A.G.'s Legal Services Branch has more than doubled in size over the last ten years? Has the province or the provincial government itself grown at the same rate or are there other factors at play?
Is it possible that government conduct across the board is creating more legal liability issues?
SharingIsGood
5 years ago
downloading expenses
It sounds to me like what they have done with other things - mandated changes then freeze or reduce the budget. Obviously, this government is messing with people's lives so much that they face legal challenges with many of the things they do. With this new model, they can force changes upon a Ministry then when those changes are challenged, the Ministry will have to pay for it from a frozen budget - even though the government couldn't hold the costs down when it was all in one pot.
Yeah, I get it. The Libs say, "If the little guy gets angry with what we [the present gov't] have done it is too bad, because he will never have the funds to challenge us. If, however, we step on one of the big ole good ole boys' toes, then we'll have to pay up because we wrote shoddy regulations that may have hurt him. That's OK, because the money will be going to one of our boys anyway. It'll just mean that the poor and undeserving have less."
SharingIsGood
5 years ago
further to my above
If the libs keep working to destroy unions, then the working stiffs will no longer be able to muster the financail clout to challenge poorly conceived workplace regs/changes.
I would be interested to hear/read how the moneys have had to be spent. I wonder if part of it is because the various ministries are facing grievances from workers who cannot possibly do the work that has been downloaded onto them by increased workloads caused by reductions of staffs/budgets. ...or maybe unsafe conditions in hospitals because work is farmed out to untrained/unsuitable subcontrators ...or more deaths caused by the largest rise in logging accidents for decades, because of relaxed regulations and poorly trained workers.
Maybe legal fees are going up because the government is trying to think of every possible way it can screw the electorate (their bosses) out of every last resource the province (the electorate) used to own. Taking the electorate to the cleaners is nasty work, and it must take quite a number of unscrupulous lawyers (requiring big bucks) to get it just right.
I feel like I am the witness to the worst government that the people of British Columbia has ever had. After generations of generally good stewardship, the Libs have given away the family farm to hucksters for a few shiny trinkets. Now I know how the inhabitants of Manhattan must have felt after their chief made a deal with the Europeans. I feel so violated!
G West
5 years ago
Worse than that
This government doesn't care if it gets advice that what they're contemplating is only quasi-legal or violates precedent, in my view.
One of the reasons the cost of legal services has increased is the amount of solicitor work that is been subbed out to their friends instead of being done in house where it almost always was in the past.
There are many ways to avoid scrutiny and when you have about 200 spin-doctors on Order in Council leash you get the message out you want to get out. Most of the time.
ChrisB
5 years ago
The A.G.'s Agenda
A few years ago, when I first started contemplating the idea of suing our government myself, I approached one of the A.G.’s lawyers requesting a copy of the submission they had made to the Supreme Court of Canada as intervener in the Odhavji v. Woodhouse case. There was a rather concerned reaction, but in due course I received the document.
A few weeks ago I contacted George Copley, QC, with a similar request, for the A.G.’s intervener submission in the Little Sisters case that the SCC recently decided. As Mr. Copley already knew that I now have a similar case underway (for which his ministry is a defendant rather than intervener), he responded promptly with a copy.
That our provincial A.G. makes a practice of appearing as an intervener in such cases before the SCC I think might raise some questions about their workload and agenda. As my own case progresses perhaps I will be able to share some insight into those and other questions about the A.G.'s operation.
dolphin
5 years ago
Public policy process
Perhaps I am not the only one who fails to see how expressing a concern about the public policy process surrounding an important curriculum (not ciriculum, ubiquitous) change constitutes "spreading hate". This is nothing but cheap shot newspeak. Orwell would be proud.
To answer the two questions, though, the curriculum mandates what teachers must teach, and since the proposed changes affect every grade level and curriculum stream, every student in the province, including those in private schools who receive funding on the proviso that the BC curriculum be delivered, will be affected.
For the second question, I do remember when a daily bible reading, the Lord's Prayer, and weekly religious instruction delivered by a minister were part of the public school curriculum (in Ontario). People who want that today, however, should enrol their children in a parochial school.
What this has to do with government lawyers abandoning cases escapes me,though. Let's try to stay on topic.
BC Mary
5 years ago
Lawyers battle police in street-fighting
in Pakistan. Talk about lawyers being stressed out!
Unbelievable! All those gents in suits, white shirts, neck-ties, out in the streets hurling stones at the riot police. Then getting themselves beaned in reply.
Because why? Well, it'd be nice if they'd been upset over the fighting in Afghanistan or the plight of the poor or greenhouse gas emissions. But no.
Pakistani lawyers were fighting mad because the Chief Justice has been fired.
Interesting, eh?