EHJ February 2005, page 30

Julie Barratt explains why local authorities should not cede the decision to prosecute to their in-house legal departments

What is the role of your lawyers in your cases? This is quite a serious question on my part, prompted by an EHP who told me that a case file that he had sent to the legal department with instructions for a prosecution to be commenced had been returned because the lawyer did not think that the matter should be prosecuted. Having recovered my poise, I asked what he had done when the file had come winging its way back annotated as described, and he advised that he had closed the case with a warning letter. Given the relative seniority of the EHP concerned I was astonished that he should have just accepted what he was told and acted as he did.

Asking around a bit established that in more than one authority it seemed that the legal department had a considerable input into the question of whether certain actions should be taken or not. With apologies to my former colleagues, there is clearly a need to set the record straight.

The role of the local authority lawyer is no different to the role of the high street solicitor, whatever the lawyer may think to the contrary. The role of the high street solicitor is to listen to the story as advanced by the client, to express astonishment, shock or sympathy as appropriate and then to give best advice. Best advice may take a robust form, or not, as necessary, but should always be advice that will give the client the result that he wants, whether that be a divorce, commencement of a civil action for damages or putting forward a defence in a criminal case. What is imperative is that it is the client's wishes that count, and the solicitor must take the client's instructions and act so as to give effect to those instructions.

That is not to say that the lawyer should blindly do something stupid. He must always advise the client of the likely outcome of the proposed action, and the likely outcome of any alternatives that he may propose, but at the end of the day it is always for the client to decide which action should be taken. The solicitor takes and acts upon the client's instructions, and that is how it must be.

Why is this the case? Clearly the lawyer has no stake in the case - he will not go to prison, lose his house or have to pay huge amounts of money. Once the case is over he can forget about it. Not so the client, who may have to live with the consequences for the rest of his life. This being the case it must be right that the client gets what he wants and not what the lawyer wants. Hence, seemingly stupid cases are commenced that waste court time and cost huge amounts, but are what the client demands. Where the client demands action bordering on the lunatic most lawyers will obtain a written instruction to that effect, which will be safely filed away in the "protecting my back" file on a just-in-case basis. It is then easy to establish that the client got what he wanted, however, much he may come to regret the fact that he did.

How then can a local authority lawyer dictate what happens to a case? The short answer is that he cannot. It is his role to take instructions from the client department, to advise, but ultimately to do as he is instructed. The course of action proposed may go against his better legal judgement and may require him to send a memorandum containing his advice to the instructing department, later to be filed in the "protecting my back" file, but the issue of the merits of the proposed action is not an issue on which he has final say. It may be that when the wheels come off the proposed action he will get to bask in warm smugness waving his memorandum at the instructing department, but that is not the issue. The issue is that the instructing department must be free to exercise their professional judgement as to the disposal of matters.

A good working relationship with the in-house legal department is essential, however, it must be remembered that the tail should not wag the dog. The role of the legal department is to follow their client's instructions, the role of the instructing department is to take legal advice, consider it and then make a decision, taking account of all of the relevant considerations. The lines should not become blurred and responsibility for decision making should never be ceded to or taken by the legal department.

Each has a role to play, but the lines must not be crossed. Best legal advice? Put the lawyers back in their box.

Julie Barratt is director of CIEH Wales