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Canadian model for centralized delivery of legal services and its application in Russia.

Prior to the 20th anniversary of the Russian Constitution, Prime-Minister Dmitry Medvedev wrote an article concerning the Basic Law, government functions, and efficient public administration technologies. In his opinion, the most important questions in this field is "... how to avoid distortion of the political, economic, and social content of a legal act in the process of its going through the multistage legislative process, and, what is even more important, how to avoid distortion of its constitutional meaning?.. It is thus apparent that the current key objective is to modify the legislative technologies used within the federal executive system--from the initiative to adopt a legislative act to the monitoring of its enforcement. It is important to apply both centralized and decentralized approaches in the process of managing delivery of legal services" (emphasis added). (1)

In this connection, it would be appropriate to have a look at the positive relevant experience of other countries.

The Justice Department of Canada was established in 1868. Its key function was defined as the delivery of legal services to the Canadian Government. (2) Evolution of the state brought about new challenges that demanded legal opinion. Departments and agencies of the Canadian Government gradually established their own legal services or resorted to the services of private lawyers. As a result, the Department of Justice, to a considerable degree, was not directly involved in the activities associated with the provision of legal services to the federal government.

The Royal Commission on Government Organization (Glassco) was established in 1960 "to inquire into and report upon the organization and methods of operation of the departments and agencies of the government of Canada and to recommend the changes which would best promote the efficiency, economy and improved service in the dispatch of public business." Having examined the issues, the Commission arrived at the conclusion that the government system of legal services provision was not efficient. It was also found that over 85% of the legal services provided by the Canadian government were outside the competence of the Justice Department. Small teams of lawyers (sometimes a single lawyer) who had obligations to their client departments, as their employers, did not have a sufficient degree of independence or breadth of professional vision, which resulted in a protracted inter-departmental tug of war. It was proposed to have all legal services (with a few exceptions (3)) grouped together under an umbrella of the Department of Justice, thus ensuring a consistent legal policy. (4) The government subsequently approved the recommendations of the Commission and their implementation began. (5)

In 1966, all lawyers who were public servants (6) became employees of the Department of Justice. In the period from 1961 till now, the number of employees of the Department of Justice increased from 42 to 5000.

The integration made it possible:

--To enhance the quality and timeliness of legal services;

--To ensure the independence and neutrality of government lawyers (lawyers are now employed by the Minister of Justice and their career does not depend on the heads of the client departments);

--To offer wider career opportunities for lawyers (to provide them with more interesting jobs, higher salaries, and professional development);

--To abate the trend towards issuing opinions of an overly academic nature, as staff turnover ensures better knowledge of the real situation (normally a lawyer stays with one client department for about three years);

--To ensure consistency of all legal opinions by various government bodies;

--To optimize expenses.

This model has a number of advantages, including uniform standards of staff hiring and training, enhanced transparency, and fairness in payments for the lawyers' services. It must be kept in mind that client departments submit time-keeping data for lawyers that serve them to the Treasury Board and the Department of Justice. The Treasury Board approves the data only after they have been confirmed and, if necessary, corrected by the Department of Justice.

The opportunity to articulate a compelling legal argument is a material advantage of the centralized system for delivering legal services. The formula of "two lawyers, three opinions" is widely known. Lawyers might have different views on the same issue. However, it is quite counterproductive when ministers come to a Cabinet meeting armed with contradicting opinions provided by their lawyers. The Minister of Justice shall smooth the differences prior to the meeting, play the role of an arbiter in the dispute, and present to the Cabinet a consolidated legal opinion. Within the constitutional / legal system of Canada, the Minister of Justice plays the role of a legal adviser for the entire government. The Minister of Justice has to ensure that public administration is performed in accordance with the Canadian Constitution and that the rights are upheld in compliance with the Canadian Charter of Rights and Freedoms. The Minister of Justice is also, by law, the Attorney general of Canada. (7)

Having a monopoly on the delivery of government legal services, the Department of Justice can speak with one voice to all the government bodies and their offices across the country. However, most of the lawyers employed by the Department of Justice are not stationed at its headquarters, but on the premises of the client departments. Furthermore, the Department has a number of regional offices, with about 2000 employees, delivering services to the public servants outside the capital region. The Department of Justice has 42 structural units dealing with such issues as the Canadian Charter of Rights and Freedoms, administrative law, constitutional law, international law, aboriginal affairs, official languages, privacy rights, etc. (8)

The way Canada organizes its legislative process warrants further study. A dedicated Legislation Section was established within the Department of Justice and its employees (about 100) draft bills in cooperation with the lawyers working on behalf of the client department. The drafters are politically neutral professionals who have an objective of drafting bills in the country's two official languages. The objective is achieved by following the guidelines for drafting bills developed by the Department of Justice and the centralized management of the process (9). The Department of Justice has set up a system of training and professional development of the drafters. (10)

The Canadian experience is one of a unique nature. The experiment that started in the 1960-s again substantiates the idea of its authors that centralization of legal services within the Ministry of Justice is the most efficient way of supporting the activities of the Canadian Government. (11) To enhance the performance of its employees, the Department of Justice developed a set of common service standards focusing on timeliness, responsiveness, and usefulness. The Department regularly performs a Client Feedback Survey and uses it, among other things, for performance evaluation purposes. (12) The results are accessible through the official web-site of the Department.

During 2005-2009, within the framework of the Canada-Russia "Public Administration Reform Program", representatives of the Canadian Ministry of Justice held a series of workshops both in Russia and Canada attended by the Russian lawyers employed by federal and regional government authorities, and also by officers of the Administrations of all the constituent regions of the Russian Federation. The aim was to share the Canadian experience in organizing legal services. (13)

In 2005, the author conducted a study, using a questionnaire survey of the heads of the regional executive bodies in the Russian Federation, as well as lawyers of the legal departments of those regions (a total of about 460 people), in order to find out what practitioners thought about the possibility of enhancing the efficiency of their work. It was found out that provision of legal services in the constituent regions of the Russian Federation is based on a couple of common principles: the availability of legal departments that provide support to the power authorities, and the availability of lawyers within the structural units, which are formed on a sectoral basis. In this arrangement, the lawyers of the legal departments bear the brunt of the work.

According to the information from the Tambov Region, one out of every two legal documents drafted in 2005 by the Region Administration sectoral departments and submitted to the Legal Department for review were returned for redrafting. Information from the Lipetsk Region demonstrated that a lawyer employed daily by the Legal Department participated in two court hearings, reviewed eight legal documents, and participated in three meetings of various working groups, commissions, and committees.

The participants of the survey identified a set of negative characteristics associated with the legal services provision:

1. Precedence of the principle of subjective practicability over the principle of lawfulness: heads of the executive bodies (units) striving to achieve their goals do not always choose methods that are in full compliance with the law, and, to a certain degree, ignore the lawyers' opinion.

2. Strong influence of the sectoral departments heads on the career progress of their employees. As a result, employed lawyers do not always insist on full compliance with the legislative documents.

3. Inadequate quality of the documents drafted by lawyers employed by the sectoral departments who believe that lawyers from the legal departments shall correct any shortcoming and be responsible for the final versions of the drafts.

4. Documents undergo double review: by the lawyers from the sectoral departments, and also the ones from the legal departments.

5. Lack of a clear-cut duties distribution between the lawyers employed by the sectoral departments and the lawyers from the legal departments, resulting in the aforementioned shortcomings in the provision of legal services to the executive branch.

The analysis reveals that many of the identified deficiencies result from a lack of a uniform approach to organizing the activities of the legal departments.

The survey participants made a number of recommendations for improving legal support to regional executive authorities in the Russian Federation:

a) lawyers employed by the sectoral departments shall be transferred to the centralized legal department and report both to the head of such a department and to the head of the client department, to which they are deployed;

b) job description of a lawyer shall prescribe both kinds of circumstances, in which he/she will be subordinated to the head of the legal department, and in which to the head of the client department;

c) as lawyers support the activities of the client department, they shall reside with such departments;

d) job description of a lawyer referred to a client department shall take into consideration the specific features of the activities of both the legal department and the client department;

e) a lawyer referred to a client department shall not perform duties that are not related to the provision of legal services to the client department;

f) disciplinary measures and recognitions with respect to a lawyer may be applied by the head of the legal department on his/her own initiative or on the initiative of the head of the client department, to which the lawyer is deployed;

g) there shall be a statutory requirement that all legal documents issued by the client department have to be signed off by the lawyers. The head of the client department shall be responsible for compliance with the requirement.

Most of the participants polled (83%) expressed an interest in adapting the Canadian model for centralized delivery of legal services, but only a few of the constituent regions of the Russian Federation dared to experiment.

On October 30, 2006, the Head of the Lipetsk Administration signed a Resolution "Concerning Centralization of Legal Support to the Head of the Administration and Executive Authorities of the Lipetsk Region," (14) establishing a single Legal Department of the Administration by merging all the previously existing legal units of the regional executive authorities.

In accordance with the Resolution, the establishment of any new sectoral executive department shall be followed by the creation of one or more additional lawyer (lawyers) positions at the Legal Department of the Regional Administration.

The staff-list for the Legal Department of the Administration included 53 positions distributed across 8 Sections:

--Section for Legal Support to the Head of Administration, Administration Departments, and Litigation & Contract Activities;

--Section for Legislative Drafting;

--Section for Keeping the Register of Municipal Legal Acts;

--Section for Legal Support in the Social Sector;

--Section for Legal Support in the Finance, Roads Building, Transportation, Energy, Tariffs, and Housing & Utilities Sectors;

--Section for Legal Support in the Agriculture, Veterinary, and Environment Sectors;

--Section for Legal Support in the Public Procurements and Control Sectors;

--Section for Legal Support in the Property & Land Relations and Construction Sectors.

Under the new arrangement, lawyers shall be employed by the Legal Department and deliver legal services to the other departments of the Regional Administration while staying on premises. In other words, their physical place of work and duties remained unchanged. However, they stopped reporting directly to the heads of the Regional Administration departments. What's more, employees of the Legal Department referred to a Client Department of the Regional Administration are obliged to report in writing to the head of the Legal Department about any legal violation made by the client department.

In cases of detecting law violations, the head of the Legal Department shall report about them to the Head of Administration.

At a later stage, the Canadian model was adopted by many regions in Russia, such as Tver, (15) Tambov, Orel, (16) and also by the City of St. Petersburg. (17)

The seven-year experience of implementing the Canadian Model for structuring legal services in seven constituent regions of the Russian Federation, coupled with the sociological surveys conducted by the author (questionnaires and interviews with heads of regional executive authorities and lawyers) demonstrate that the decision to adopt the Model is well-thought-out and makes it possible to arrive at the following conclusions:

--Lawyers referred to the client departments grew aware of their independence, which had certain important consequences:

--They started providing higher quality expert reviews;

--They are involved in the drafting process from the very beginning, which helps to stick to the plan and timetable of the legislative activities;

--They wide opportunities for upgrading their skills and exchanging the experience with other lawyers at specialized conferences, meetings, and training sessions;

--They are capable of performing more effective reviews of bills submitted to the State Duma for the first reading.

The new arrangement opened the way to:

--Career progress;

--Efficient redistribution of functions between the staff members of the legal service;

--Prompt resolutions of the issues, which legal department has to face through the discretionary use of the "brainstorming" technique;

--Having a single department responsible for the judicial perfection of decision;

--Development of a single legal position for public authorities;

--Prevention of pressure placed on the lawyer by higher-ranking court officials;

--Prevention of the repetition of tasks conducted during expert reviews of legal acts, which helps to speed up the decision-making process and consequently helps to remove administrative barriers;

--Efficient generalization of the legal practice.

As a result, during the years 2008-2012, not a single legal act of the Lipetsk Administration was contested in court. The quality of the legislative drafts of the pilot regions was enhanced. During the experiment's seven-year span, the share of the bills introduced by the executive authorities and adopted as laws at the regional level increased from 24% to 70%.

Another achievement of the experiment was the streamlining of activities related to the lawyers' representation of the administration in courts. In Lipetsk region, courts of all jurisdictions used to request court-session participation from representatives of all executive bodies involved and, on a mandatory basis, the lawyers representing the Administration. Under this arrangement, within the span of the court case, the interests of the Administration could be represented by lawyers from two or more different sectoral departments and by a single lawyer from the Legal Department. This did not help to enhance the process efficiency and, in fact, demanded excessive labor effort. What's more, there are some, when representatives of the executive bodies, acting from a perspective of departmentalism, were taking in-court legal positions different from those of the lawyer representing the Legal Department of the Regional Administration.

Presently, the legal position of the Administration is agreed prior to the court session and only with one lawyer, acting on the basis of a Power of Attorney, represents the interests of the Administration and the sectoral executive authorities. This places a higher responsibility on the lawyers for performing their duties, as the results are judged by the managers, who are also lawyers. The opinion of the manager of the sectoral department is always taken into account when evaluating the performance of the lawyers referred to such departments from the Legal Department.

Most of the managers think highly about the new arrangement of legal activities and believe that a single, unified legal service helps:

--to achieve uniformity and consistency in the provision of legal support;

--to establish, during the process of drafting and approvals, a permanent contact with the officers of the legal department who review the drafts;

--to take advantage of the joint experience and knowledge accumulated by lawyers referred to the other sectoral executive authorities;

--to enhance efficiency of using limited resources and hence, to improve the performance of the executive authorities.

Some heads of executive bodies admit that the lawyers' activities was improved for the reason of better job descriptions ,and they are no longer required to perform human resource and other non-core functions.

The centralization of legal services proved to be a very effective tool. (18) After seven years of operation, this opinion is shared by all lawyers from legal departments of the seven pilot constituent regions of the Russian Federation and by the heads of their executive authorities.

All participants surveyed note another important outcome of introducing the Canadian model--the improvement of the legal profession status, exemplified by a higher respect for the opinion of the legal expert on the part of the managers, who no longer can make a decision without obtaining a positive opinion from their lawyer.

Upon the passing of every year of the experiment, it becomes more evident that the transformation of the legal service into an integrated mechanism ensures the centralized delivery of legal services.

It is thus apparent that the idea of extending the experiment of adapting the Canadian model for centralized delivery of legal services to other constituent regions of the Russian Federation, and eventually to the federal level, deserves close attention.

Bibliography

Currie A, 'Legal Aid Delivery Models In Canada: Past Experience and Future Directions' TR1999-1e (Technical Report) Department of Justice Canada <http:// publications.gc.ca/site/archiveearchived.html?url=http://publications.gc.ca/ collections/collection_2012/jus/J3-7-1999-1-eng.pdf> accessed 23 June 2014 Dmitriy Medvedev. 20 let: put' k osoznaniyu prava // Rossiyskaya gazeta. 2013. 11 dekabrya (Medvedev D, '20 Years: The Way to Consciousness of Right' The Russian Newspaper (Moscow, 11 December 2013)) 1

Savin V.I. Mekhanizmy koordinatsii deyatel'nosti yuridicheskikh sluzhb sub'ektov RF // Prava i svobody cheloveka i grazhdanina: Aktual'nye problemy nauki i praktiki: Sbornik materialov I Mezhdunarodnoy nauchno-prakticheskoy konferentsii.--Orel: ORAGS, 2009.--S. 125-129. (Savin VI, 'Mechanism of coordination of activities of the legal services of the constituent regions of the Russian Federation' Rights and Freedoms of the Person and the Citizen: Pressing Challenges of Science and Practice: Information Package of the 1st Workshop and Conference, 2009 ORAGS, 125-129)

Shevchuk M, Stroem po vertikali budut hodit' yuristy Smol'nogo // Kommersant'--SPB, No. 120 (3451) ot 5 iyulya 2006 g. (Shevchuk M, 'Centralized Delivery of Legal Services in the St. Petersburg City Administration' SPB Kommersant (Moscow, 5 July 2006)) 2

McLeod TH, 'Glassco Commission Report' 1963 Canadian Public Administration (Vol 6 Issue 4) 386-406

Zakonotvorchestvo v Kanade / Otv. red. Kabyshev S.V. M: Formula prava, 2006. S. 3-223. (Kabyshev SV ed, Law-making in Canada (Formula Prava 2006)

By Sergey Kabyshev

Author

PhD (Law), Academy of Management, Interior Ministry of Russia, 1992

Associate Professor, Kutafin Moscow State Law University

E-mail: svkabyshev@gmail.com

(1) Dmitriy Medvedev. 20 let: put' k osoznaniyu prava // Rossiyskaya gazeta. 2013. N6255 (279). (Dmitriy Medvedev, '20 Years: The Way to Consciousness of Right' Russian Newspaper (Moscow, 11 December 2013) 1).

(2) An Act respecting the Department of Justice, adopted during the first session of the Parliament of the Dominion of Canada and assented to on 22 May 1868 (31 Vic, c 39) <http://www.archivescanada.ca/english/search/ItemDisplay.asp?ses sionKey=1143825756048_206_191_57_199&l=0&lvl=0&v=0&coll=0&itm=257 613&rt=1&bill=1> accessed 23 June 2014.

(3) Exceptions are related to the state secret issues and activities of the Defense Department, Department of Interior, Department of Foreign Affairs. Presently lawyers of the Department of Justice work in 40 of the federal government's departments and agencies.

(4) Report of the Royal Commission on Government Organization, Vol I: Management of the Public Service. Ottawa, Queen's Printer [1962] 19.

(5) TH McLeod, 'Glassco Commission Report' 1963 Canadian Public Administration (Vol 6 Issue 4) 386-406.

(6) It is important to note that Parliament has its own legal service and its lawyers are not public servants.

(7) Department of Justice Act 1985, s 4 (RSC) c J-2 <http://laws-lois.justice.gc.ca/ eng/acts/J-2/> accessed 23 June 2014.

(8) Organization of the Department of Justice <http://www.justice.gc.ca/eng/abt-apd/ org.html> accessed 23 June 2014.

(9) Zakonotvorchestvo v Kanade / Otv. red. Kabyshev S.V. M: Formula prava, 2006. S. 3-223. (SV Kabyshev ed, Law-making in Canada (Formula Prava 2006)).

(10) Department of Justice <http://www.justice.gc.ca> accessed 23 June 2014.

(11) A Currie, 'Legal Aid Delivery Models In Canada: Past Experience and Future Directions' TR1999-1e (Technical Report) Department of Justice Canada <http:// publications.gc.ca/site/archivee-archived.html?url=http://publications.gc.ca/ coHections/couection_2012/jus/J3-7-1999-1-eng.pdf> accessed 23 June 2014. Report of the Auditor General of Canada on efficiency of legal services delivered by the Justice Department <http://www.oag-bvg.gc.ca/internet/English/parl_ oag_200705_05_e_17480.html> accessed 23 June 2014.

(12) Department of Justice <http://www.justice.gc.ca/eng/rp-pr/cp-pm/dpr-rr/2012/ sur/toc-tdm.html> accessed 23 June 2014.

(13) Program's web-site <http://www.formulaprava.ru> accessed 23 June 2014.

(14) The Lipetsk Regional Administration Official Internet Portal <http://www.admlr. lipetsk.ru> accessed 23 June 2014.

(15) V Tverskoy oblasti rukovoditelyu pravovogo upravleniya Administratsii Tverskoy oblasti bylo predostavleno pravo soglasovyvat' kandidatury yuristov v inykh organakh ispolniternoyvlasti, davat' im obyazatel'nye dlya ispolneniya porucheniya, trebovat' otchety o prodelannoy rabote, a takzhe primenyat' mery distsiplinarnogo vzyskaniya k yuristam, sovershivshim dolzhnostnoy prostupok (In the Tverskaya Oblast Head of the Legal Department of the Oblast Government was given the right to nominate lawyers to client departments, to assign them tasks, to take disciplinary actions against them).

(16) Postanovleniem Administratsii goroda Orla No. 1429/1 ot 03.07.2007 g. "O vnesenii izmeneniyvshtatnye raspisaniya" yuristystruktumykhpodrazdeleniyadmimstratsn byli perevedeny v shtat pravovogo otdela (In accordance with the Resolution by the Orel City Administration No. 1429/1 dated 03.07.2007 "Concerning Amendments to the Staff-Lists" lawyers of all the structural units were transferred to the Legal Department).

(17) Shevchuk M. Stroem po vertikali budut hodit' yuristy Smol'nogo // Kommersant' --SPB, No. 120 (3451) ot 5 iyulya 2006 g. (M Shevchuk, 'Centralized Delivery of Legal Services in the St. Petersburg City Administration' (2006) 120 (3451) SPB Kommersant).

(18) Savin V.I. Mekhanizmy koordinatsii deyatel'nosti yuridicheskikh sluzhb sub'ektov RF // Prava i svobody cheloveka i grazhdanina: Aktual'nye problemy nauki i praktiki: Sbornik materialov I Mezhdunarodnoy nauchno-prakticheskoy konferentsii. ORAGS. 2009. S. 125-129. (VI Savin, 'Mechanism of coordination of activities of the legal services of the constituent regions of the Russian Federation', Rights and Freedoms of the Person and the Citizen: Pressing Challenges of Science and Practice: Information Package of the 1st Workshop and Conference (ORAGS 2009) 125).
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Author:Kabyshev, Sergey
Publication:Kutafin University Law Review
Article Type:Report
Geographic Code:1CANA
Date:Sep 1, 2014
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