||Legal advice - Engage solicitor for opinions
|Strategic outcomes supported
||CL8 – Visionary civic leadership with sound and accountable governance that reflects objective decision making.
To establish the considerations prior to seeking legal advice.
This policy applies to the intended procurement of any legal advice or legal representation by the Town
legal advice means:
a. the procurement of specialist advice for areas of work where there are gaps in specialist and/or legal knowledge within the Town; or
b. for the engagement of legal representation in a court or tribunal.
1. To prescribe procedures for the Town’s administration in obtaining legal advice or engaging legal representation to ensure the most efficient and effective use of these resources.
2. The Town will seek expert legal advice where, in the opinion of the Chief Executive Officer (CEO), that advice is required to:
a. minimise the potential risk of litigation
b. obtain assistance on interpretation and implications of relevant new and/or existing legislation or legal precedent
c. clarify statutory powers and responsibilities
d. clarify the Town’s responsibility to take action to protect the health, safety and well-being of the Town’s ratepayers/residents, general public and protection of property
e. ensure the best commercial outcome for the Town
f. represent the Town in matters proceeding to a court or tribunal.
3. The CEO only will be able to access legal advice.
4. Where necessary, the CEO may approve of other employees obtaining legal advice.
5. The legal advice will be sought from the panel of legal practitioners established by the Western Australian Local Government Association (WALGA) as updated from time to time, or from another legal firm having specialised expertise in the matter being considered in accordance with Policy 301 Purchasing.
6. All legal advice will be recorded in a Legal Register or appropriate file.
7. Many legislative duties and functions are discharged on a daily basis through employees being aware of legislation which they are authorised to administer as well as through the development and implementation of policies and procedures.
8. There may be occasions, where new, unfamiliar, urgent or potentially high risk circumstances emerge which are not covered by the Town’s standard procedures or documentation. In these circumstances, it may be necessary to seek further advice.
9. In circumstances where legal advice is being obtained it will usually be necessary to undertake a risk assessment.
10. Factors that need to be considered in determining whether professional legal advice may be required include:
a. actual or potential risk of litigation
b. assistance on interpretation and implications of relevant new and/or existing legal precedent or legislation
c. lack of clarify around statutory position, powers or responsibilities
d. the responsibility of the Town to take responsible action to protect the health, safety and wellbeing of the Town’s ratepayers/residents, general public and protection of property
e. the need to be represented by legal counsel in a court or tribunal.
11. By the nature of the Town’s business and its position as a public authority, legislative compliance is a statutory duty.
Requesting legal advice
12. For certain matters it may be possible to obtain legal advice quickly over the telephone.
13. To assist the Town’s legal advisers to provide comprehensive advice, where possible, it will be necessary to include details of all relevant factors provided or reference all relevant documentation and outline specific issues on which advice is being sought.
14. Any guidance or advice given should ideally be given in writing. Careful consideration needs to be given to the method of communication to ensure that confidentiality and the rules around transmission of confidential material are adhered to.
15. In the unlikely event that legal advice is required out of hours, this should be referred to the Chief Executive Officer for authorisation.
Recording and monitoring
16. The advice should be recorded on the Legal Advice Register or appropriate file, which will become a reference point for Authorised Persons and is to be reviewed prior to making legal enquires. This will help to develop a knowledge base on the legal matters within the Town.
Legal advice providers
17. The Town will obtain legal advice from:
a. WALGA's Legal Services Panel of Preferred Suppliers; or
b. another legal firm having expertise in the matter being sought.
18. The following procedure is to be followed:
a. Prior to contacting any solicitors/lawyers for any advice, a ‘Legal Advice Authorisation Form’ as prescribed by the CEO to be completed and the matter is to be referred (either by memorandum or orally) to the CEO.
b. The Town will seek preliminary advice from the WALGA's Legal Services Panel of Preferred Suppliers (or at least two of them) as to the prospect of success of any action/appeal and an estimate of fees/costs.
c. After considering the legal firm’s response, the CEO may prescribe a maximum amount which is not to be exceeded unless a variation is subsequently approved.
19. Where an employee has been authorised to make a direct approach to external legal advisers, they are individually responsible for ensuring that the firm approached is on the WALGA's Legal Services Panel of Preferred Suppliers. If consideration is being given to the use of another firm, approval should be obtained from the CEO.
All employees to comply with the policy and procedure
20. All employees must comply with this procedure. In particular, employees are reminded that there shall be no direct approach to external legal advisers without proper authorisation, and that any contact or correspondence relating to matters of civil or criminal liability should be passed immediately to their relevant Chief or the Chief Executive Officer.
21. All Chiefs and Managers are responsible for ensuring that all employees within their functional areas and lines of business have read and understood this document and are competent to carry out their duties in accordance with this Policy and Procedure.
Local Government Act 1995
||Manager Governance and Strategy
||Coordinator Governance and Strategy
|Next evaluation date
||Approved, Amended, Rescinded
||Reviewed and amended
||Reviewed and amended
||Reviewed and amended