Legal Risk Management in the Department of Justice

4.0. KEY FINDINGS


4. KEY FINDINGS

This section of the report combines information from all lines of evidence. The presentation of the findings follows the main evaluation issues and responds to the questions identified in the evaluation framework.

4.1. Rationale of the LRM Initiative

Respond to the volume, complexity, and cost of legal services

As noted in Section 2.2, the LRM Initiative was developed to respond to concerns with the growing volume, complexity, and cost of civil litigation. For example, from 1996 to 2002, Aboriginal litigation in its general inventory increased from 500 cases to 726 cases, and in 2002, Indian Residential School claims had risen to 4,000 claims with 8,000 plaintiffs.[14] In the area of international trade litigation, Canada went from one dispute in 1993 to 35 in 2000.

Although the volume of litigation files has remained relatively stable over the past several years, the complexity of cases has increased. The reasons for this are many, but include the increased number of parties to each action, the sophistication of litigation strategies employed by interest groups, the volume and complexity of evidentiary issues, and the increasingly protracted nature of litigation. For example, the number of new class actions grew from 35 to 150 between 2000 and 2006 and included areas as diverse as Indian Residential School claims, Mad Cow disease, and Hepatitis C. The complexity is also reflected in the increasing number of lawyer hours. Between 2000 and 2004, the number of lawyer hours increased by approximately one-third from 2,019,626 to 2,720,892. In addition, contingent liabilities are a persistent issue; after peaking in 2000/2001, they have remained in the vicinity of $10 billion per year.[15]

Support the government's IRM framework and Justice's strategic objectives

Under the framework developed by the Department, legal risk management is defined as "the process of making and carrying out decisions that reduce the frequency and severity of legal problems that prejudice the government's ability to meet its objectives successfully".[16] This definition firmly links LRM to the overall integrated risk management approach: it is a proactive measure to identify potential risks early, and develop and manage a response in order to reduce any negative impacts on the government's ability to achieve results. In fact, IRM clearly identifies legal risk as one component of risk.[17]

LRM also contributes to the departmental priority of "improving efficiencies in the justice system and the efficient delivery of legal services in government" and the corresponding strategic outcome of "a federal government that is supported by effective and responsive legal services".[18] The anticipation, mitigation, and effective management of legal risk as well as high quality legal services are key results expected under this strategic outcome. The Department considers LRM vital to improving the operations of government:

The goal of LRM is to develop a sustainable approach to managing legal risks and thereby protect the interests of the Crown and minimize overall costs. Legal risk management is making and carrying out decisions that reduce the frequency and severity of legal problems undermining the Government's ability to meet its objectives.[19]

Continued relevance of LRM

The evaluation found that the systematic approach promoted by LRM continues to have relevance. Almost all key informants believe that the Department needs this approach to effectively manage legal risks. Their comments demonstrated the link between LRM and the Department's strategic priorities and outcomes of providing effective legal services to client departments and agencies. In particular, they found that a consistent, systematic approach to LRM improves service to clients by providing them with clear communication regarding legal risks and ensures that the Department is aware of existing risks so that resources can be directed appropriately. The legal counsel survey supports this view that LRM serves an important function in effective management of legal files with three-quarters of counsel reporting its utility in assisting them with managing their files (see Table 9).

Table 9: View of LRM (n=636)
Indicate which response best reflects your view of LRM %
LRM is essential to successfully manage my files 30%
LRM is helpful to successfully manage my files 45%
LRM is unnecessary to successfully manage my files 20%
LRM detracts from my ability to successfully manage my files 3%
Don't know/No response 2%

4.2. Implementation

This section considers the evaluation issues concerning the implementation of the LRM Initiative.

4.2.1. Effects of decentralization and the LRM Accountability Framework and Governance Structure

The evaluation found that the decentralization of LRM in 2003 has had two countervailing effects. At the national level, it has created a loss of momentum. Since 2003, the Department developed few new national LRM tools and offered no national training.[20] In addition, because the LRM Initiative originally had more of a litigation focus, the practice of LRM in other contexts, such as advisory, policy, and legislative services work, developed independently and more recently. The consensus among key informants was that the removal of the central structure of LRM was premature with the result that LRM lost its profile within the Department as well as with client departments and agencies. They also pointed out that the Department no longer has a central repository for LRM, which has left a void in terms of where to get tools, ask questions, and receive advice on LRM.

The loss of national momentum has also created opportunities at the portfolio, regional, LSU and sector levels to develop LRM policies and tools that respond to particular operational contexts. Regional offices have created their own LRM structures and processes and have gone as far as developing tools and detailed guidelines, such as the BCRO's High Impact Case Strategy. BCRO, ORO, and the Prairie Regional Office (PRO) have opted to expand LRM processes to include risk level 6 files. LSUs also have created their own LRM tools and processes in areas such as case intake, early case management and work plans. In addition, because LRM initially had more of a litigation focus, areas of the Department that conduct legislative drafting, advisory, and policy and programming work found that aspects of the Initiative (such as the LRM grid) did not work for their practice and have recently been developing their own guidelines for LRM. As a result of these efforts, the LRM Initiative has become more meaningful to these areas of the Department, particularly in the regional offices where the sense that LRM is an initiative imposed by Ottawa has lessened.

A challenge created by this multi-centred approach to LRM development is that the shared vision of LRM and counsels' roles and responsibilities diminished. Interviews showed that counsel do not have a national perspective on LRM as much as knowledge of "how we do it here". This knowledge is also not uniform within the Department. Based on the legal counsel survey, counsel with longer tenure in the Department have a better understanding of their roles and responsibilities. Overall, just over half of respondents believe their roles and responsibilities in LRM are clear, indicating an area for potential improvement. Table 10 provides the survey results.

Table 10: Clarity of LRM roles and responsibilities

Please indicate your level of agreement with the following statement: My roles and responsibilities in LRM are clearly defined.

Level in Department
  n Strongly agree/Agree
Management position 94 63%
Not in a management position 541 50%
Years of experience
  n Strongly agree/Agree
Less than one year 49 35%
Between 1 and 5 years 140 45%
Between 6 and 10 years 208 51%
More than 10 years 239 60%
Overall 636 52%

Note: Only response categories that indicate agreement are included in the table.

The survey with counsel yielded seemingly conflicting results about the general understanding of the Initiative. About two-thirds of respondents consider their overall understanding of LRM to be very good or good, and most respondents agree that LRM is well defined by the Department. At the same time awareness and use of LRM tools is low, and few respondents knew their LRM contact person (see Section 4.2.3).

However, these results align with interview and case study findings that counsel have a general, intuitive understanding of managing legal risks but less of a concrete understanding of the LRM Initiative in terms of its tools, processes, and expectations. Several key informants made the distinction between "big LRM" (the Initiative) and "small lrm" (the concept of managing legal risks), with some noting that the national initiative is often viewed narrowly as assessing risk in iCase and, beyond that, as applying only to high risk files. Again, counsel with longer tenure and who are managers have a better understanding of LRM and are more likely to consider it well defined. Therefore, although survey results indicate that a general understanding of LRM and counsel's corresponding responsibilities exists, the extent of that understanding and whether it is truly shared across the Department remains an open question. Tables 11 and 12 present the legal counsel survey findings on the understanding of LRM.

Table 11: Overall understanding of LRM

How would you rate your overall understanding of LRM?

Level in Department*
  n Very good Good Limited Poor
Management position 94 38% 49% 13% --
Not in a management position 541 13% 50% 33% 4%
Years of experience
  n Very good Good Limited Poor
Less than one year 49 -- 45% 45% 10%
Between 1 and 5 years 140 6% 48% 41% 4%
Between 6 and 10 years 208 18% 51% 27% 3%
More than 10 years 239 25% 50% 22% 3%
Overall 636 17% 50% 30% 4%

Note: Some row totals do not sum to 100% due to rounding.

Table 12: LRM is well-defined

Please indicate your level of agreement with the following statement: LRM is well-defined by the DOJ.

Level in Department*
  n Strongly agree/ Agree
Management position 94 68%
Not in a management position 541 55%
Years of experience
  n Strongly agree/ Agree
Less than one year 49 47%
Between 1 and 5 years 140 49%
Between 6 and 10 years 208 58%
More than 10 years 239 63%
Overall 636 57%

Note: Only response categories that indicate agreement are included in the table.

* One respondent did not indicate his level in the Department.

As discussed in Section 2.3, the Department created the AFGS to serve as a management guide for the decentralized LRM. The evaluation found that the AFGS reflects the loss of national momentum and identified a need to review, update, and revise the AFGS. Several components, such as the LRM Steering Committee and the LRM Practice Group, are no longer active. In particular, the LRM Steering Committee, which met once after devolution, was intended to include TBS and client representation as a mechanism to ensure that these partnerships remained strong as the implementation of LRM went forward. Interviews showed that knowledge of the AFGS is low and that it is not used as a guiding document for management, even though it was intended to "establish accountabilities that must actively cascade down within identified parts of the Department (e.g., portfolios, regions, etc.) so that LRM is well managed at all levels".[21] Part of the reason for this is that, according to some interviewees, the AFGS is not concrete enough to provide direction as it assumes a common understanding of LRM and overlooks some parts of the Department (e.g., the Chief Legislative Counsel).

Interviews and the legal counsel survey indicated a need to reorient the forum known as the Thursday Group. The Group was intended to serve as a forum to share LRM information across portfolios, regions and sectors, make horizontal linkages, and identify emerging legal trends. The evaluation findings indicate that the Group is not fully meeting its original mandate. Most (38 of 59) legal counsel survey respondents who have had some involvement with the Group have not found it useful. In interviews, the feedback was more positive about the Thursday Group as an information sharing forum, but in general, it is considered to have become more of a roundtable report on existing high risk matters than a setting for identifying trends and best practices.

Finally, the AFGS needs to incorporate the LPMD and determine its role within the LRM Initiative, particularly vis-à-vis the LRM Special Counsel.

4.2.2. Consistency of LRM practices

Identifying and assessing risk

The evaluation found widespread use of legal risk scanning for identifying legal risks. Typically, this involves reviewing various documents such as Early Warning Notes, iCase LRM reports, Supreme Court of Canada decisions, Summary of High Impact Litigation, question period notes and briefing notes, as well as attending meetings such as the National Litigation Committee and the Thursday Group to find out about high impact cases nationally.

However, scanning practices vary. Some regional offices and LSUs have one or two individuals involved in legal risk scanning and tend to focus on high impact litigation, while others have a more developed process that is wider in scope. For example, ORO's Policy and Integration Section also serves a scanning function that considers potential policy implications of litigation when identifying legal risks, and BCRO's watching brief files, which are included in its Significant Cases and Hot Issues Report, document legal matters that may lead to high impact litigation or hold potential significant implications for government.

Similarly, the formality of legal risk scanning varies at the portfolio level. Certain portfolios organize weekly or biweekly roundtable teleconferences with managers and/or lawyers across the country in order to track developments and ensure consistent positions on significant cases, and/or distribute a weekly/quarterly report of significant cases in the portfolio. In other portfolios, communication among regions is more informal. Scanning across portfolios and sectors in order to identify legal trends that have broader implications for either Justice or the government was identified as a gap in current LRM practices.

As for legal risk scanning activities across the government, the most recent MAF Assessments conducted by TBS found that not all departments have regularized processes, but there appears to be some improvement in departments scanning for both litigation and non-litigation risks.[22] These legal risk scanning activities are sometimes collaborative, involving representatives of both the client department and Justice, and are sometimes conducted solely by the LSU.

For assessing legal risk, the variation in approach comes from the use of different grids or scales, and inconsistency in the ratings applied using the standard LRM grid. In addition, the evaluation found evidence of uneven practice in consulting with clients when assessing or reassessing legal risk, particularly concerning the impact of the legal risk on the client department or agency.

Types of risk assessment tools used. In the last two years, areas within the Department have begun adopting their own guidelines for assessing legal risk that do not follow the standard LRM grid (a three-by-three matrix with high risk read on the horizontal as opposed to the diagonal plane).

Application of LRM grid risk ratings. The evaluation found concern that the risk ratings across the Department are not consistent. Two general causes of inconsistency were identified. First, the two dimensions of the grid are not sufficiently defined to reduce the subjectivity of the risk assessments. Although key informants acknowledged that assessing legal risk is a subjective exercise, they believe that better definitions would assist counsel in applying the grid more consistently. Legal counsel survey respondents agreed (see Section 4.2.3 for a more detailed discussion of survey results). For example, key informants questioned what is meant by a significant impact on government operations, and how should counsel decide what is 70% likelihood of an adverse outcome versus 60% likelihood. They found the criteria for the grid provided in the iCase manual to be too broad and not explicit enough to guide counsel and support a consistent approach. Second, how counsel assign risk levels to certain types of files such as test cases, cases held in abeyance, litigation support files, advisory files, and files opened for timekeeping only vary across the Department, according to key informants.[23] This may be more of a training issue than the need to define rules, as the various portfolio iCase manuals indicate how these files should be treated.

The concern with consistency in risk ratings is being addressed in many parts of the Department. This is typically done by using central bodies within portfolios, regions, LSUs, and sectors to review high risk files. This ensures a body of senior counsel concurs in high risk ratings. The difficulty is that these bodies tend to review only high risk (level 7-9) files so consistency at other levels of legal risk is not known. The exceptions are BCRO, which includes files with risk levels 5-6 in its LRM processes, and ORO and PRO, which include risk level 6 files.[24]

The Department's iCase system cannot currently support a review of the consistency of assessing risk other than the consistency in inputting legal risk data. The quality or reliability of the data cannot be reviewed in part because of the lack of clear criteria for how to assess risk. In addition, the ability to review risk levels assigned to lower risk files is complicated by the fact that iCase particulars (more detailed information that might justify a risk level assignment) are not required. One issue that the Department might consider is whether or how iCase could eventually be used to assess the consistency of legal risk ratings across the Department.

Frequency of assessing legal risk by type of activity. The evaluation found that the assessment of risk varied by type of activity. In the legal counsel survey, 60% of litigation respondents reported that legal risks were identified and assessed frequently (in 75-100% of files), compared to 44% of litigation support respondents and about one-third of advisory, LSB, and policy respondents[25] (see Table 13). The file review results show that legal risks were identified in almost all files, even for non-litigation files, and usually a risk level was assessed either by using iCase or, more often for non-litigation files, by using some other value (e.g., medium, high, or more than minimal). Based on the file review, it appears that in high risk files at least an intuitive assessment of risk is occurring, even if the grid is not used. However, some of the terminology, such as "more than minimal", may raise more questions about the level of risk than it answers.

Table 13: Frequency of identifying and assessing legal risks

Taking into consideration the files you have been involved with in the last two years, how often were legal risks identified and assessed?
Based on percentage of files in the last two years Litigation (n=263) Litigation support (n=32) Advisory (n=247) LSB (n=54) Policy (n=40)
Frequently (75%-100%) 60% 44% 33% 32% 33%
Regularly (50%-74%) 18% 28% 30% 24% 28%
Occasionally (25%-49%) 8% 16% 20% 26% 13%
Rarely (1%-24%) 9% 6% 9% 13% 18%
Never -- -- 2% 2% 3%
Not applicable to my work 1% -- 2% 2% 3%
Don't know/No response 4% 6% 4% 2% 5%
Total 100% 100% 100% 101% 103%

Note: Some column totals do not sum to 100% due to rounding

Assessing risk in advisory files. The issue of whether legal risks should be identified and assessed for all advisory files is currently unresolved. Key informants and case study participants questioned the utility of doing so by pointing out that some advisory files do not have legal risk attached to them (e.g., basic contract matters). Currently, there is nothing in the LRM Initiative to exclude these files from LRM processes. Therefore, some advisory counsel assess legal risk in iCase and others do not. One suggestion was to assess risks in advisory files only if there was a need for ongoing management of risk, such as a realistic threat of litigation. Another issue for advisory files raised by those interviewed was the question of when to assess risk. Unlike litigation, there is not a clear moment when risk has materialized or changed (after hearing, etc.).

Consultations with respect to assessing legal risk. The evaluation found differences in the consultations with respect to assessing legal risk based on the type of legal activity. In the legal counsel survey, litigators most often consulted the client, although they did so less often than other respondent groups, with the exception of policy respondents. Litigators were also least likely to consult the client LSU. These results confirm key informant and case study interviews where it was reported that the consistency of consultations in assessing legal risk with the client and the LSU depends on factors such as the culture within the litigator's office and the relationship between the litigator and the LSU. This is considered problematic as clients and LSUs are best situated to analyze the potential impact of the legal risk on the client department or agency. In the file review, the findings are similar to the survey results as litigation files were less likely to indicate consultations on assessing risk than non-litigation files. Of these high risk litigation files, 19 out of 51 had documentation that reflected consultations on assessing risk, which usually included the client and/or LSU. Table 14 presents the survey findings.

Table 14: Frequency of consultations for assessing legal risk

In assessing legal risk, how often during the last two years have you or a member of the team consulted the following:
Frequently (75%-100%) or Regularly (50%-74%) Litigation (n=263) Litigation support (n=32) Advisory (n=247) LSB (n=54)**
Client department/agency 56% 63% 64% 61%
Client LSU 35% 72% N/A 57%
Specialized units within Justice 17% 41% 36% 41%
Other potentially affected LSUs 14% 38% 40% N/A
Others within LSB N/A N/A N/A 48%

Reassessing risk. The evaluation found that reassessment of legal risk is not occurring regularly at least when considering all files. In the legal counsel survey, less than half of respondents reported that they or a member of their team regularly reassessed risk after the initial assessment.[26] Some key informants confirmed that reassessing legal risks is not systematically done, although they believe that counsel may informally reassess risk during discussions with the client. Some parts of the Department have put mechanisms in place to promote consistency in reassessing risk, such as requiring a reassessment once discovery is complete or requiring counsel to review risk assessments on a monthly basis. The file review indicates that high risk files may be more likely to be reassessed. Almost two out of three litigation and non-litigation files reviewed had documentation that showed the legal risk was reassessed.

Suggested improvements. LRM or Litigation Committees established in some regions and LSUs serve as a central review process of risk assessments. This is credited with improving consistency in risk ratings within those regions and LSUs because one body of senior practitioners confirms the rating given the legal risk. However, there is no cross-portfolio body reviewing legal risk assessments, at least according to some key informants who did not consider the Thursday Group to be performing that function.

The current LRM grid requires review and revision. Even among litigators who likely use the grid most often, more than one-third (38%) found it not very or not at all useful. For advisory work, most counsel who do advisory work have not used the grid (almost 60%), but among those that have, most (almost 60%) do not find it useful. Interviews also indicated a desire to revise the grid, particularly to provide more concrete criteria or definitions for assigning significant, moderate, or minor impact on the client department or agency.

For ensuring reassessments of legal risk, a reminder system in iCase would provide counsel with a prompt to review their risk assessment.

Mitigating and managing risk. Because managing legal risk is considered an integral part of a lawyer's job, counsel believe that legal risk management is occurring at an intuitive level, even if not consciously following the LRM processes envisioned by the LRM Initiative. The evaluation found that counsel had a clearer understanding of the LRM Initiative's expectations for identifying and assessing legal risk than for managing or mitigating risk. As mentioned earlier, some key informants separated "big LRM" from "small lrm", which indicates that they had drawn a distinction between LRM Initiative processes and those that counsel consider being part of routine legal practice.

Consultations on legal risk management strategies. The evaluation found that consultations are occurring on legal risk management strategies, although there are some inconsistencies in approach. The survey asked about consultations on strategies for all files and found that the majority of respondents consult regularly (in at least 50% of files). The organization or individual consulted varied across types of legal activities, reflecting the different contexts for each type of work. For example, litigation respondents were most likely to consult the client department or their own manager; litigation support respondents consulted the litigator, their manager, and the client; advisory respondents consulted the client and the LSU; and policy respondents consulted most often with specialized units in the Department and other potentially affected departments and agencies. Specific LRM resources were not consulted regularly. Few respondents consulted with an LRM contact person and for litigation and litigation support respondents, about one-quarter consulted litigation or risk-related committees. See Table 15 for the survey results.

Table 15: Frequency of consultations for legal risk management strategies

In developing a legal risk management strategy, how often during the last two years have you or a member of the team consulted the following?
Frequently (75%-100%) or Regularly (50%-74%) Litigation (n=263) Litigation support (n=32) Advisory (n=247) Policy (n=40)***
Client department/agency 50% 59% 55% 43%
Client LSU 34% N/A 46% 43%
DOJ litigation counsel N/A 69% N/A N/A
Specialized units within Justice 12% 34% 29% 70%
Other potentially affected LSUs 7% 31% 30% 38%
DOJ manager 46% 66% N/A N/A
Litigation or risk-related committees 22% 28% N/A N/A
LRM contact person 12% 25% 9% 5%
ADM committees N/A N/A N/A 38%
Relevant external experts N/A N/A N/A 20%
Federal/provincial/territorial working groups N/A N/A N/A 40%

The file review results indicate that consultations to develop legal risk strategies occur frequently in high risk files (48 out of 51 litigation files and 16 of 18 non-litigation files) and confirm the survey findings regarding which resources are most often consulted. In most files, counsel consulted with either the client department or agency or the client's LSU. Counsel consulted with specialized units within the Department and other potentially affected departments or agencies more often in non-litigation than in litigation files. Counsel consulted the LRM contact person in only a few of the files reviewed, and in litigation files, 13 of the 51 files had documentation that the litigation or risk-related committee was consulted (about one in four which is similar to survey findings).

These litigation or risk-related committees are available in many, but not all LSUs. All of the regional offices interviewed have some form of a committee. Some of these committees serve primarily a monitoring function and do not offer themselves as a forum to obtain advice at key points in a file. Others have a mechanism where counsel can request to appear to seek guidance on legal risk management strategies. Those interviewed who have used these committees to assist with legal risk management strategies have found them helpful, but not all counsel where this opportunity is available are aware of the resource or how/when to access it.

Communicating and reporting/monitoring high risk files. Based on interviews, most areas of the Department have some mechanism for monitoring high risk files. Survey results confirm this with almost two-thirds reporting that their office monitors the number of high risk files (just under one-third did not know).

The survey showed that most counsel or a member of the team regularly or frequently report their high risk files to senior Justice managers in headquarters, regional/LSU/unit managers, client officials, the client LSU, and portfolio managers. The file review confirmed these results. High risk advisory files are less likely to be reported to headquarters than litigation files. Whether counsel prepared briefing notes or early warning notes depended on the type of legal activity, but generally the results showed about half of counsel (or a member of the team) regularly or frequently prepared these documents for their high risk files. The file review confirmed these results with less than half of files having these documents. See Table 16 for legal counsel survey results.

Table 16: Frequency of reporting on high risk files

Considering only your high risk files, how often during the last two years have you or a member of the team …

Reported these files to
Frequently (75%-100%) or Regularly (50%-74%) Litigation (n=184) Litigation support (n=25) Advisory (n=163) LSB (n=32) Policy (n=40)
Senior managers in DOJ headquarters 69% 76% 54% N/A 43%
Regional/LSU/unit managers 73% 68% 92% 91% N/A
Litigation or risk-related committees 55% 44% N/A N/A N/A
Client's LSU 57% N/A N/A N/A N/A
Client officials 73% 76% 81% N/A N/A
Portfolio manager 55% 56% N/A N/A N/A

Prepared for these files
Frequently (75%-100%) or Regularly (50%-74%) Litigation (n=184) Litigation support (n=25) Advisory (n=163) LSB (n=32) Policy (n=40)
Briefing Notes 53% 56% 63% 25% 50%
Early Warning Notes 51% 36% N/A N/A N/A
LRM Note to File N/A N/A N/A 19% N/A

Note: Only frequently or regularly responses are included.

Policy respondents were asked about reporting on all of their files, not just high risk files.

Although the evaluation found that departmental practices for reporting and communicating legal risk are generally working, this is an area identified for improvement in interviews, case studies, and survey results. In the survey, two-thirds of respondents agreed that LRM communication strategies should be improved.

The number of avenues for sharing information within the Department ensures a large measure of information sharing on high risk files and reduces the potential for any surprises (e.g., the Thursday Group, iCase reports, Summary of High Impact Litigation, DM Daily, Early Warning Reports, Briefing Notes, Radar Screen). However, some of those interviewed raised concerns that reporting is still very informal and instinctive rather than formal and systematic. That said, some counsel had concerns about too many reporting requirements and wanted the Department to first consider streamlining reporting so that it was not overlapping and duplicative. They also wanted a better understanding of the importance of reporting practices. Currently, counsel do not generally know how reports are used, which makes the reporting seem bureaucratic rather than relevant to their legal practice.

For advisory, policy, and legislative services files, reporting is currently more informal than for litigation files. Key informants working in these areas noted that the current legal risk communication strategies do not always include non-litigation work, but some believe that the need for advance notice of events in these files is not as strong as it is for litigation. In addition, given the nature of this work, it is difficult for counsel to decide when reporting should occur because legal risk does not crystallize at a particular moment (e.g., pleadings filed, hearing occurs). If the reporting of non-litigation matters were to become more formalized, counsel would need clear direction on the standards for when to report.

The content of communications on legal risk both within the Department and with clients also received comment on its lack of consistency. The main finding is that the Department currently uses many ways of characterizing legal risk. This is partially the result of different grids or scales for assessing legal risk, but also is created by counsel using the LRM grid for iCase reporting and more plain language approaches in other communications of legal risk, including risk assessments. In the client focus groups, some participants were well aware of the LRM grid and spoke of legal risk with counsel in relation to the grid, while others reported that counsel would use other language (e.g., low, medium, high, very likely, more likely than not). Some found the variety of expressions of legal risk confusing and too vague.

Several key informants mentioned the Effective Communication of Legal Risk document as a good example of the type of guidelines the Department should provide. This document provides suggestions for how to communicate risk in legal opinions, briefing notes, and memoranda of cabinet and proposes a five-point (very low to very high) scale for assessing legal risk in the advisory and legislative contexts. Key informants who prefer this method of expressing legal risk want to avoid using percentage assessments of the likelihood of an adverse outcome, which they believe imports accuracy to the risk assessment that it does not have.

Contingency plans. The Department considers contingency plans to be an important tool for preparing to respond to court decisions, and a vehicle to involve the client in managing risk. Client departments draft the contingency plan and the accompanying communication plan with assistance from Department counsel. As noted in Table 4, all Supreme Court of Canada cases must have a contingency plan and other files may require a plan that is appropriate to their level of risk. Department documentation is currently unclear on whether all high risk files are required to have contingency plans.

Through interview and survey results, the evaluation found that while some contingency planning may occur informally through discussions between the client and counsel, written contingency plans are not consistently used in high risk files. Just under one-third of litigation respondents, half of litigation support respondents, and one-fifth of LSB respondents reported that they or their team had regularly or frequently assisted with contingency plans in high risk files. Although key informants cited a few examples of highly effective contingency planning where the Department had predicted the court decision with a high level of accuracy and had options and next steps mapped out before the decision came down, they pointed out that the resources required for formal contingency planning limited its use to particularly high risk, high profile files. The file review confirms the low use of formal contingency plans as in 51 high risk litigation files reviewed, only 5 had contingency plans.

Dispute resolution. One tool of LRM is the use of dispute resolution methods where appropriate to resolve issues and avoid litigation or to narrow the issues in dispute. Because dispute resolution may not be considered desirable in all cases, the consideration of dispute resolution is encouraged but not required under the Initiative. In a study of legal risk scanning in the Department, 5 of 11 departments and agencies studied reported that dispute resolution was being widely used and 3 reported limited use.[27]

This evaluation found that some areas of the Department actively promote dispute resolution options, but uncovered little evidence that dispute resolution options are systematically considered. In particular, the Aboriginal Affairs Portfolio has a Resolution Branch that promotes dispute resolution, and the BCRO High Impact Case Strategy encourages counsel to consider opportunities for dispute resolution within 90 days of opening a high impact file. More generally, few key informants commented on the use of dispute resolution options in managing legal risk. In the legal counsel survey, of respondents who have worked on high risk litigation files, less than half have ever used dispute resolution in a high risk file (40% litigation respondents, 16% litigation support respondents). Most respondents who had used dispute resolution in high risk files tended to use it after production of documents or discovery. In the file review, about one-third of litigation files had documentation that indicated that dispute resolution options were considered or used. In the files where counsel used dispute resolution processes, it was typically either negotiation or mediation.

Instrument choice. Instrument choice encourages counsel to consider alternatives to the traditional legal tools of statutes, regulations, or lawsuits, which can be costly and more protracted processes for achieving intended results. Key informants involved in policy and legislative services noted the irony that while LRM is fundamentally about avoiding or mitigating legal risks, this prevention side of LRM remains a neglected area. While no standard approach exists for instrument choice, it is believed that instrument options are considered an inherent, if not standardized, part of policy and program development and legislative drafting. The only national tool, the instrument choice framework, is rarely used, with 13% of policy respondents reporting that they have regularly or frequently used the instrument choice framework.

Consistency between LRM and IRM within Justice

As noted in Section 1.4, LRM is intended to support broader IRM efforts across the government, as well as DOJ's strategic outcomes. The Department's 2004 Strategic Risk Assessment noted that LRM had contributed to the advancement of legal risk management across government and would be an important consideration as the Department moved forward with the implementation of its own corporate IRM processes (e.g., the development of DOJ's Corporate Risk Profile).

One issue that has arisen regarding the support that LRM is expected to provide to IRM across the government, as well as within DOJ, is the need for consistency between approaches. In particular, it has been noted that the LRM risk assessment scoring methodology differs from that of TBS's Integrated Risk Management Framework, which has been adopted by DOJ for its corporate integrated risk management processes. Specifically, the IRM grid is a three-by-three matrix that identifies high risk files as those on the diagonal rather than the horizontal plane. This means that the Department is using two different scoring methodologies for assessing risk, as is also most likely the case within client departments and agencies.[28]

A few key informants discussed this issue as it pertains to Justice and were divided on whether the Department should move to the IRM grid. One position was that the IRM grid is the industry standard. The other position was that the LRM grid matched the reporting lines of the Department: senior management at DOJ headquarters needs to know about high impact files, even if the risk of loss is low. Whether the use of two scoring methodologies will prove confusing or difficult when incorporating legal risks into the IRM risk assessments remains to be seen, but is something that should be monitored.

Conclusion. A major question for the Department is how much consistency is desired: should consistency focus on ensuring that across the Department there are processes in place for LRM functions (scanning, assessing/reassessing risk, managing and mitigating risk), or also that the processes themselves are similar? Should the desire for consistency focus on certain LRM activities such as the risk levels assigned files or encompass more? Under the AFGS, the consistency that is required is for having processes that are "consistent with [d]epartmental standards and objectives" (for Portfolio heads) and "to ensure that LRM principles and methods are appropriately implemented" (for Senior Regional Directors). This is consistency in its broadest sense and allows for much variation in approach. The AFGS also assumes a common understanding of principles and departmental standards for LRM as it does not define them.

The evaluation found support for more national standards and consistent practices, although the results also show uncertainty with what this might entail. Counsel also desire that LRM remain flexible to respond to different operational contexts. Survey results demonstrate these points, with a large minority of respondents unable to provide an opinion on whether the Department should develop more national standards and consistent LRM practices, but those who did respond expressed support for these approaches. In addition, over two-thirds of respondents agreed that LRM needs to remain flexible to meet the needs of regions/client departments/agencies.

Table 17 provides survey results.

Table 17: Consistency of LRM (n=636)

Please indicate your level of agreement with the following: The DOJ needs to …
Level of agreement Develop more national standards Develop consistent LRM practices Remain flexible to meet the needs of regions/clients
Strongly agree 10% 13% 18%
Agree 32% 45% 50%
Disagree 13% 7% 3%
Strongly disagree 2% 1% 1%
Don't know/No response 44% 34% 28%
Total 101% 100% 100%

Note: Some column totals do not sum to 100% due to rounding.

Managers and those who have worked in the Department for more than five years were more likely to express an opinion on these topics, which again may reflect that newer lawyers are less well versed in LRM (could be due to loss of profile of LRM nationally and no national training or because junior lawyers have less experience with LRM because they are not lead counsel on high risk files). In addition, it may be unclear what more national standards or consistent practices would mean for counsel in terms of how it might affect their practice and how they handle their files.

Key informant and case study interviews confirm support for more consistency and national standards while maintaining flexibility. In particular, interviewees mentioned the need for more consistent policies and principles on assessing risks, a common risk assessment language for communicating within the Department and with clients, and clear LRM standards for advisory work. However, many interviewees cautioned that any development of national standards should maintain the needed flexibility to respond to operational settings and should be based on consultations across the Department. Some expressed concern that consistency should not reduce the level of LRM practices to a "lowest common denominator" approach. Examples of their comments include that the Department:

4.2.3. Tools, processes, and structures to support LRM

The evaluation found that there is a general lack of awareness of many national LRM tools. For example, over half (54%) were unaware of their LRM contact person. Legal counsel survey respondents were almost evenly divided on whether there are sufficient guidelines to assist them in performing LRM (51% believe guidelines are sufficient and 48% do not). They were also unaware of what other guidelines might assist them.

Counsel are generally aware of the LRM grid, although among advisory counsel surveyed who have not used the grid, about half reported they were not aware of it. For those who have used the grid, most consider it useful; however, both interview and survey results indicate substantial interest in improving the grid. As shown in Table 18, one-third of litigation respondents who are presumably most versed in using the grid did not find it useful.

Table 18: Usefulness of the LRM assessment grid

Please rate how useful you have found the LRM assessment grid/matrix through iCase or otherwise.
  Litigation (n=263) Litigation support (n=32) Advisory (n=247) LSB[29] (n=54) Policy (n=40)
Very useful 7% 3% 3% 6% 3%
Useful 46% 34% 15% 43% 38%
Not very useful 28% 19% 19% 26% 13%
Not at all useful 5% 6% 6% -- 3%
Not applicable/have not used 14% 38% 57% 24% 45%
Total 100% 100% 100% 99% 102%

Note: Some row totals do not sum to 100% due to rounding.

As briefly discussed in Section 4.2.2, the evaluation found concerns about the clarity of the risk assessment process. The LRM grid is considered vague, and key informants believe it would benefit from more definitions or criteria as this would reduce the subjectivity in assessing risk and assist in bringing more consistency to risk assessments. In particular, both interview and survey results point to the need for more criteria or definitions for assessing the impact on the government. As for the other axis on likelihood of an adverse outcome, some respondents desire more categories to provide more clarity on the likelihood (e.g., medium risk is 30-70% currently), but others objected to the use of percentages as imparting a level of precision that was not possible.

In addition, advisory counsel said that the current grid is difficult to use. As discussed in Section 4.2.2, they question the need to assess legal risk in all advisory files as not all advisory work presents legal risks. They also believe that their work sometimes involves pure legal risk and, therefore, they should only assess the likelihood of an adverse outcome (that a legal challenge would be brought and/or that it would be successful).

Legal counsel survey results are in Table 19.

Table 19: Most common reasons why LRM assessment grid not useful

Why do you find the LRM assessment grid/matrix not useful?
  Respondents who find grid not useful (n=171) †
The scale for the level of impact on the government is not well defined 63%
The grid results in inconsistent risk level ratings across the DOJ 50%
The grid does not take into account urgency of time (e.g., high risk but nothing will happen for several years) 44%
The scale for the likelihood of an adverse outcome does not have enough categories 28%
The grid is not relevant for advisory files 20% ‡
The grid results in over-reporting the number of files that are actually high risk 15%
The grid does not capture other relevant aspects of risk 12%
The grid results in under-reporting the number of files that are actually high risk 11%

Note: Respondents could provide more than one answer. Column does not sum to 100%. This question was not asked of LSB respondents. This was the second most mentioned reason among advisory counsel.

Few respondents were aware of most LRM tools and structures as shown in Table 20. Some of the communication reports such as the Early Warning Report, the Summary of High Impact Litigation, and iCase reports are not broadly distributed to counsel, which explains the lack of use.

Interviews provided information that gives insight into some of the results. Each comment was made by a few key informants.

Table 20: LRM tools and structures (n=636)

Communication tools/reports
  Very useful/useful Not very useful/Not at all useful DK/NR Have not used/ Not aware of/ Not applicable
Briefing Notes 57% 12% 3% 28%
Early Warning Report 47% 16% 3% 35%
Scanning News 43% 26% 2% 29%
Radar Screen 33% 16% 3% 48%
Summary of High Impact Litigation (Top 100) 32% 18% 3% 48%
Effective Communication of Legal Risk 31% 8% 3% 58%
iCase LRM reports 19% 15% 3% 63%

Practice methods
  Very useful/useful Not very useful/Not at all useful DK/NR Have not used/ Not aware of/ Not applicable
Dispute Resolution Options 18% 13% 4% 67%
Instrument choice 15% 11% 4% 71%

LRM or risk-related committees
  Very useful/useful Not very useful/Not at all useful DK/NR Have not used/ Not aware of/ Not applicable
DOJ litigation or risk-related committees 29% 9% 3% 59%
Joint DOJ-client risk-related committees 22% 6% 4% 68%
LRM Practice Group 14% 12% 3% 71%
Thursday Group 3% 6% 3% 88%

Intranet tools
  Very useful/useful Not very useful/Not at all useful DK/NR Have not used/ Not aware of/ Not applicable
JUSnet intranet on LRM 19% 15% 4% 62%
Roles and responsibilities checklist 8% 7% 3% 82%
Critical Path Template for High Impact Cases 8% 7% 3% 82%
Judicial Review Toolkit 7% 7% 3% 83%
Civil Actions Toolkit 7% 6% 3% 83%
Contingency Planning Toolkit 6% 6% 3% 85%

Note: Some rows may not sum to 100% due to rounding.

With the devolution of LRM, portfolios, regions, LSUs, and sectors began developing LRM tools and processes. The evaluation did not include taking an inventory of the types of tools and structures available, but many tools are in use. As discussed in Section 4.2.2, some offices are using a different risk assessment tool or are tailoring the LRM grid by providing more guidelines for its use. The TBS 2005 MAF Assessments also show in very broad terms the LRM activities being conducted by client departments and agencies and their LSUs. Results of the MAF Assessments are discussed in Section 4.2.4. The case studies reflect the variety of LRM processes from highly developed processes such as those in use by BCRO and DFO to the less involved but also highly functioning processes used by ORO and PCH.[30]

4.2.4. Integration of LRM into the work of the Department and its client departments and agencies

Integration within the Department

A major goal of the LRM Initiative is to make legal risk management an integral part of the culture of the Department and a reflexive part of legal practice. All of the evaluation findings collectively serve to answer this essential question of whether LRM has become integrated into the work of the Department. This section will not reiterate these findings but will focus on some additional points.

The evaluation found substantial acceptance of LRM, which shows some measure of integration. At the same time, there were indications that awareness of LRM components and the understanding of counsels' roles and responsibilities with regard to LRM could be improved, which raise questions about the level of integration of LRM. The legal counsel survey reflects this division. Some results demonstrate the acceptance of LRM: three-quarters of respondents believe that LRM is either essential or helpful to successfully managing their files; and just over nine-tenths of respondents agreed that managing legal risk is part of their practice of law. Acceptance of LRM is also demonstrated in that two-thirds of respondents do not think that LRM takes up too much of their time. Just over half of respondents estimated that they spend 10% or less of their time identifying and assessing legal risks and trends, communicating and reporting on legal risks, and mitigating and managing legal risks. The amount of time varies by where counsel work: counsel in LSUs and headquarters report spending more time on LRM than do counsel in regional offices. See Tables 21 and 22 for these results.

Table 21: Integration of legal risk management into law practice (n=636)

Please indicate your level of agreement with the following statements:
Level of agreement Managing legal risk is part of my practice of law LRM takes up too much of my time
Strongly agree 33% 3%
Agree 59% 10%
Disagree 5% 56%
Strongly disagree 1% 12%
Don't know/No response 2% 20%
Total 100% 101%

Note: Some column totals do not sum to 100% due to rounding.

Table 22: Percentage of time spent on LRM

In general, what percentage of your time is spent on LRM, including activities such as identifying and assessing legal risks and trends; communicating and reporting legal risks; and mitigating and managing legal risks?
  Where do you currently work?
Headquarters (n=156) Regional Office (n=255) LSU (n=225) Total (n=636)
None 4% 5% 6% 5%
1% - 5% 37% 38% 23% 32%
6% - 10% 14% 21% 15% 17%
11% - 25% 17% 17% 19% 18%
More than 25% 21% 11% 26% 19%
Don't know/No response 8% 7% 12% 9%

Note: Totals may not sum to 100% due to rounding.

However, other survey results discussed earlier indicate a lack of awareness of certain aspects of LRM. In particular, about half of respondents (54%) did not know their LRM contact person and most respondents were unaware of or had not used LRM tools and structures (see Section 4.2.3). Issues with having an overall understanding of LRM and counsel's roles and responsibilities are discussed in Section 4.2.1 and indicate a need for more clarity regarding counsel's roles and responsibilities in LRM, particularly for more junior counsel.

The interviews and surveys indicate that counsel believe their roles and responsibilities under the LRM Initiative are not clear and that they lack awareness of or do not use many key tools and processes. However, the file review results support the opinion of some key informants that although counsel may not be consciously or systematically doing LRM, they are intuitively managing legal risk. The file review results provide a snapshot of how counsel are handling high risk files and, therefore, how well integrated LRM is into the legal practice of the Department. These results in Table 23 show that most LRM practices are generally occurring, although caution should be used in interpreting these results because of the small number of files reviewed.

Table 23: Results on LRM practices from file review
LRM practices/activities Litigation (n=51) Non-litigation (n=18)
Legal risk level (in iCase) 50 5
Potential client impacts (in iCase) 49 6
Legal risks identified (through other documentation in file) 39 17
Legal risks assessed (iCase or through other documentation) 50 11
Risk reassessed 32 7
Formal risk assessment 14 12
Consultations on assessing risk 30 10
Consultations on legal risk management strategies 47 16
Dispute resolution options considered 19 2
Dispute resolution options used 17 2
Contingency plan 5 --
Communication plan 6 4
Briefing Note 23 8
Early Warning Note 13 1
Media monitored 20 7
Key stakeholders advised of legal risks or risk-related events 48 18

Integration of LRM into departmental practices can also be measured by the rate of compliance with inputting mandatory data into iCase on LRM.[31] There are two levels of mandatory fields. Some fields are required for all files (basic mandatory LRM data). In addition, particulars must also be provided for high risk files (levels 7-9 and/or files involving an amount of $50 million dollars and above). The evaluation reviewed the results of internal audits conducted during fiscal years 2005-2006 and 2006-2007 (quarterly) and 2007-2008 (three cycles, of which two were completed). The results include litigation and advisory files only, and review whether iCase data is inputted for mandatory LRM fields. The audits do not consider the reliability of the information and the entry of "risk unable to assess" is considered compliant regardless of how long the file has been opened.

The audits show that the Department is generally compliant with inputting mandatory LRM fields into iCase and that there has been substantial improvement over time.

Another measure of the integration of LRM into the work of the Department is whether legal risk ratings or other assessments of legal risk are used in resource allocation and planning. The evaluation found that this is occurring.

Some key informants reported that they do not use iCase risk assessments in resource allocation and planning because they consider iCase data unreliable or because iCase is not helpful for planning as it cannot demonstrate trends (no historical data), provide reports tailored to their needs (e.g., number of judicial reviews in office), or produce the number of files a particular counsel is working on.

The Departmental Performance Reports also indicate that resources are directed more toward files with high legal risk. (See Table 24)

Table 24: Managing legal risk in civil litigation files: level of effort by risk level
Risk level 2004-2005♦ 2005-2006♦ 2006-2007§
% of active files % of level of effort % of active files % of level of effort % of active files % of level of effort
High 3% 25% 2% 18% 2% 25%
Medium 40% 35% 36% 30% 31% 34%
Low 57% 40% 62% 52% 67% 41%

Source: Department of Justice. Departmental Performance Report 2004/2005 (p. 45), 2005/2006 (p. 41), and 2006/2007 (p. 43).

Integration within client departments and agencies

As discussed in Section 2.2, the LRM Initiative envisions the practice of legal risk management as a partnership between the Department and its client departments and agencies. The Department informs the client of legal risks and presents options, but the decisions regarding managing and mitigating legal risks are the client's. The evaluation explored how well this partnership is working and found that, although the extent of client engagement in LRM varies and there are some areas for improvement, the partnership between the Department and its clients appears to be working well.

Based on key informant interviews and focus group discussions, clients' understanding of their role in LRM varies by department/agency. Factors that affect the level of understanding include the volume of litigation (clients with less litigation have less experience with LRM), the leadership of the client's senior executives in adopting LRM, and the culture of the client department or agency. For example, departments and agencies with mandates that are regulatory in character view LRM as a formalized expression of their existing practices and have more fully embraced LRM.[33] Overall, counsel raised a concern about client understanding of LRM and their roles in it. Among legal counsel surveyed, one-quarter agreed or strongly agreed that clients understand their roles and responsibilities in relation to LRM.[34]

In the focus groups, most participants viewed LRM as a partnership with Justice: the client provides the operational context so that Justice can assess the legal risk more accurately; the client department has the responsibility of factoring the legal risk assessment into its business risk; and, to manage legal risk effectively, ongoing dialogue is needed between the client and Justice. However, some acknowledged that the partnership can experience stresses. A perception exists that Justice sometimes goes beyond the legal issues in its legal risk assessments and promotes certain policy choices. Because some clients believe that legal risk assessments and/or legal opinions can serve to dictate policy, they may not engage Justice counsel as early as they should. Although this perception could be caused by a lack of understanding of the Department's role in explaining the impact on a client of a particular course of action or in presenting options as part of a legal risk assessment, several focus group participants believe that Justice's legal advice sometimes goes beyond its role in assessing legal risk. Justice recognizes this potential to be seen as obstructionist. A few key informants stated that the Department must be careful in presenting legal risks and options so that the client does not think that Justice is impeding initiative.

When the client is engaged, the LRM processes tend to be more robust. A review of 11 departments and agencies with advanced LRM processes found that all but one department had senior officials engaged in the LRM process, typically through some form of LRM or Litigation Committee.[35] A review of the 2005 TBS MAF Assessments reflects the variety of LRM processes across the government from those with no reported formal committee structure that engages the client in identifying, assessing, mitigating, or managing legal risk to those where the client is engaged throughout the process, including in the initial scanning for litigation and non-litigation legal risks. Of the 53 departments and agencies reviewed, 30 provided LRM reports (and one provided information on LRM as part of its IRM report). Of these, 8 reported having LSU representation on senior management committees, and 17 reported having LRM Committees or another risk-related committee that considered legal risk. While uniform LRM processes may not be necessary across government, having a forum where the client routinely engages with Justice on LRM is considered essential for effectively managing legal risks. These forums could include joint LRM committees, joint litigation committees, or risk management committees, which include legal risk on the agenda.

There is a desire on the part of Justice and TBS to revitalize their partnership on the LRM Initiative. Key informants who raised this issue believe that this partnership is critical to effective LRM as it is the role of TBS to help clients understand their responsibilities under the Initiative, and TBS as a more visible partner will encourage more client involvement in managing legal risks. In its 2005 MAF Assessment of Justice, TBS acknowledged this point: "With regard to TBS commitment to support the Department of Justice in this area, both departments should endeavour to strengthen their relationship and to ensure that they are working together in identifying and implementing mechanisms that will lead to a more efficient overall risk management framework for the government".[36] The removal by TBS of the separate reporting requirement for LRM as part of each department/agency's MAF seems contrary to strengthening the TBS-Justice partnership in LRM and encouraging client involvement in LRM.

Some offices in the Department have taken a proactive approach to improve client understanding and buy-in for LRM. For example, in four of the last seven years, DFO has conducted client-LSU retreats on LRM and related issues to inform the clients and better engage them in the LRM process. The LSU for the Department of National Defence has provided LRM training to its clients across the country. The BCRO has annual client meetings that include discussions of LRM. However, training sessions and retreats on LRM for clients are not often offered by the Department.

While this discussion indicates areas for improvement, in the focus group discussions, clients emphasized that they were pleased with LRM and their partnership with the Department. The Client Feedback Survey conducted by the Office of Strategic Planning and Performance Management for the Department confirms that clients are satisfied. In particular, clients are very positive that Justice counsel work with them to identify and manage legal risks. Table 25 presents the results for questions that touch on areas related to LRM.

Table 25: Justice Services Satisfaction Survey

Please rate your level of satisfaction with the legal services you have received from DOJ over the last 12 months using the scale where one (1) indicates you are "not at all satisfied" while ten (10) indicates that you are "completely satisfied."

Interpreting scale: 8.4-10 is excellent; 7.9-8.3 is very positive; 7.3-7.8 is moderate; 6.5-7.2 is borderline; lower 6.5 needs management action.

Department target is 8.0
DOJ counsel … Mean score
Litigation (n=531) Advisory Services (n=2448) LSB (n=558) Dispute Resolution (n=176)
Effectively worked with you to identify legal risks 8.2 8.2 8.2 8.4
Effectively worked with you in managing legal risks 8.1 8.0 8.1 8.2
Fully understood the nature of the problem or issue for which you received assistance 8.5 8.4 8.3 8.5
Advised you of issues or developments which may impact your department/agency 8.3 8.4 8.3 8.3
Provided regular and informative progress reports or ongoing feedback 7.7 7.4 7.7 7.9
Provided clear and practical guidance on resolving the issue 8.3 8.0 8.1 8.3
Involved you in the development of legal strategy and positions 7.9 7.8 N/A 8.2
Developed legal strategies appropriate to your policy and/or program objectives 8.2 8.0 N/A 8.3
Identified opportunities to use alternative dispute resolution practices, where appropriate 8.2 8.0 N/A 8.2
Identified opportunities for early settlement of cases, where appropriate 8.3 8.1 N/A 8.4
Effectively resolved the issue or problem for which you received assistance 8.3 8.1 N/A 8.3
Assisted you in developing policy N/A N/A 7.8 N/A
Developed legal and regulatory drafting options appropriate to your policy and/or program objectives N/A N/A 8.2 N/A
Proposed appropriate solutions for legal and drafting issues raised N/A N/A 8.2 N/A
Identified appropriate opportunities to implement policies or programs by administrative rather than legislative or regulatory means (i.e., instrument choice) N/A N/A 7.9 N/A

Source: Department of Justice, Office of Strategic Planning and Performance Measurement. Client Feedback Survey. July 2006-February 2008.

Note: Tax Law Services did not participate. Areas that did not reach the target are in bold.

4.2.5. Adequacy of LRM resources

The evaluation considered whether the Department has provided sufficient resources for the LRM Initiative. In particular, the evaluation inquired about training, staffing, financial, and technological resources.

LRM training is the main area where counsel desired more resources. Training offered nationally has not occurred since the devolution of LRM in 2003, and there are few instances of LRM training within regions, sectors, or units. In key informant and case study interviews, most interviewees believe that LRM training is needed, including orientation training for young lawyers and refresher training for more senior lawyers. Some suggested that training be mandatory as it is important to renew LRM by showing lawyers how it relates to their work and why they should do it.

Most interviewees did not comment on the sufficiency of other resources or they indicated that the resources were sufficient if LRM responsibilities remained at current levels and were not expanded. Some key informants reported that their offices needed a full-time person dedicated to LRM. At the regional/LSU level, that person is needed to assist with reporting, inputting information into iCase, and coordinating LRM activities. At the portfolio level, a full-time LRM person is required to produce tools, provide training, and assist with coordinating LRM activities. A few key informant and case study interviewees suggested that iCase required more resources so that it could generate reports tailored to their office's needs and obtain more historical and department-wide information so that trends in risk assessments and legal issues could be generated.

The survey results are presented in Table 26. Most respondents could not provide a response except for training, where almost half disagreed that the Department offers sufficient training opportunities.

Table 26: Sufficiency of resources devoted to LRM (n=636)

Please indicate your level of agreement with the following statements
  Strongly agree Agree Disagree Strongly disagree Don't know/ No response
The DOJ provides sufficient financial resources to support LRM 3% 19% 14% 3% 61%
The DOJ needs to have more staff dedicated to LRM 4% 18% 19% 6% 54%
DOJ offers sufficient training opportunities for LRM 1% 17% 35% 12% 35%
LRM needs more technological support 5% 16% 14% 3% 63%

Note: Some row totals do not sum to 100% due to rounding.

4.2.6. Incomplete implementation or gaps

Most of the gaps in implementation have been identified in preceding sections:

In addition, some key informants identified additional gaps that the Department should address:

There was not strong support for extending LRM to risk level 6 files, although several of the regional offices have extended their own processes to include risk level 6. Some key informants support changing the LRM grid to consider risk level 6 files as high risk and, thereby, bring the grid into conformity with the IRM grid. These key informants believe that risk level 6 files should be monitored because they have a high likelihood of an adverse outcome and a moderate impact and, as a result, are potentially costly files, financially or otherwise. A few key informants expressed concerns with any expansion of high risk to risk level 6 because of the resource requirement to actively manage and report on these files. In addition, a few key informants cautioned that before any move to expand high risk to risk level 6, the Department should first consider the types of cases that are in this risk level to determine if they are appropriately categorized as a risk level 6. Key informants noted that because risk level 6 cases are not included in iCase reports, and there is no obligation to include particulars in iCase, it is difficult to express an opinion on whether the LRM processes for high risk files should be expanded to include risk level 6.

4.3. Results of the Initiative

4.3.1. Impacts of LRM

The evaluation found some evidence of results of the LRM Initiative, but in order to provide stronger evidence of impacts, the Department should finalize the draft logic model for the Initiative with expected immediate, intermediate, and ultimate outcomes and develop a performance measure strategy. The evaluation findings of impact are based largely on perceptions of counsel (and a large proportion did not believe they could provide an answer) and anecdotal accounts.

One impact of the Initiative is increasing awareness of legal risks among clients. This impact is not uniform as some clients, particularly clients with high litigation caseloads, already possessed a sophisticated awareness of legal risks and legal risk management. In the Client Feedback Survey, two-thirds of respondents categorized their level of understanding of legal risk as very good or good. This result can serve as a baseline to measure whether understanding of legal risks improves as the renewal of LRM moves forward.

Another impact is improved quality of legal services provided to clients. Within the Department, LRM is seen as supporting high quality legal services: it is proactive in responding to potential legal risks and ameliorative by improving the response to realized legal risks, particularly by tracking high risk matters and communicating risk to clients and within Justice. The Client Feedback Survey found that clients are very positive in terms of their level of satisfaction with the quality of legal services, although this satisfaction cannot be directly attributed to LRM in the Survey. Focus group findings, however, confirm that clients are generally satisfied with Justice legal services, and they attributed that satisfaction to the assistance they are receiving in managing legal risks.

The evaluation found evidence that legal risks are being considered by clients in the development and implementation of government policies, programs, and services. Although the creation of LRM or other risk-related committees is not uniform across the government, many departments and agencies now have these structures. Important in ensuring that legal risks are incorporated into broader corporate decision-making is including legal risk discussions in departmental executive meetings and incorporating legal risk in departmental IRM processes. Development of IRM strategies is still underway so opportunities are available to promote the explicit inclusion of LRM in IRM processes. One potential roadblock to the consideration of legal risk in program and policy development was discussed in Section 4.2.4, where clients noted that sometimes the Department is not included at these early stages.

Within the Department, the evaluation found a consensus that, although LRM could improve in many areas, the Initiative has improved the ability of Justice to track high risk files and minimize the potential for surprises. It has also improved the culture within the Department for managing files with a goal of mitigating and avoiding legal risks.

For measures of impacts, such as avoiding or mitigating legal risks or reducing government liabilities, few respondents to the evaluation had an opinion. Of the key informants who directly commented, most said that it was simply too difficult to attribute these results to LRM because of the multitude of variables that affect whether lawsuits are filed or settled. However, one example provided was the Aboriginal Affairs Portfolio, which opened its Resolution Branch in 2006 to promote legal risk management though emphasizing dispute resolution and instrument choice. Key informants believe that the Resolution Branch, although still relatively new, is assisting counsel in finding avenues for resolving or avoiding costly litigation. Another example was effective legal risk scanning, which identified potential legal risks so that steps could be taken to reduce the chance of a lawsuit. Finally, mitigating the impact of legal risk does not necessarily mean avoiding, resolving, or winning a lawsuit. Effective contingency planning can ensure that the government has options to consider so that even a setback in court does not completely derail its ability to meet its objectives.

Legal counsel survey results on impacts of LRM are in Table 27.

Table 27: Impacts of LRM (n=636)

Please indicate your level of agreement with the following statements:

Impacts on clients
  Strongly agree Agree Disagree Strongly disagree Don't know/ No response
My office/unit/section has built effective LRM partnerships with its clients 9% 33% 9% 2% 48%
LRM has improved the quality of legal services provided to clients 6% 33% 9% 1% 52%
Clients are more aware of legal risks 5% 44% 9% 1% 40%
Clients routinely consider legal risks in the development and implementation of policies, programs, and legislation 5% 38% 12% 2% 43%
Understanding of LRM has improved among clients 4% 32% 10% 2% 52%

Reducing the potential impact of legal risks
  Strongly agree Agree Disagree Strongly disagree Don't know/ No response
LRM has been successful in avoiding or mitigating legal risks 4% 35% 8% 2% 52%
LRM has reduced government liabilities 4% 22% 6% 2% 66%

Note: Some row totals do not sum to 100% due to rounding.

4.3.2. Potential improvements

Many potential improvements have been discussed throughout the report. This section focuses on the suggested improvements that received the most support.

There is strong support for renewing LRM. In explaining the loss of momentum created by decentralization, most key informants pointed out that the Department no longer has an LRM champion within the Department or a central repository for LRM information, which has left a void in terms of where to obtain tools, ask questions, and receive advice. These key informants noted that a central office could assist with coordinating these processes and ensuring department-wide consistency. Given these views, almost all key informants see the creation of the LPMD as a positive development as it could serve the role of LRM champion in the Department.

The evaluation found a concern that any revitalization of LRM not be imposed, but rather be the result of a robust consultation process, particularly on the issue of consistency of practice. While there is support for developing more consistent LRM practices and potentially national standards and guidelines (broad support is more uncertain here), the renewed LRM must remain flexible enough to meet the needs of different legal activities and clients. It must also respect the work already done by units within the Department to implement LRM processes.

Part of this LRM renewal should include a rethinking of the governance structure. The AFGS no longer provides a sufficient framework for the Initiative: it does not include a statement of objectives; some parts of the governance structure have become dormant; the LPMD needs to be incorporated; and the expectations under LRM need to be clarified so that roles and responsibilities are better understood.

Results of the evaluation suggest many other areas on which LRM renewal should focus.

Once the Department has determined the details of the renewed LRM, training should be offered. Over two-thirds of legal counsel survey respondents agreed that the Department needs to provide training to counsel on LRM. Because national LRM training has not occurred in years, all lawyers would benefit but especially junior lawyers who joined the Department after decentralization. Both orientation training on LRM and refresher training were suggested.