This Memorandum restates the guidelines that apply to NSW government agencies when engaging Senior Counsel.  The guidelines also outline the administrative requirements for requests to the Attorney General to engage Senior Counsel.

As First Law Office of the State, the Attorney General is responsible for ensuring the Government receives effective legal advice and representation.  The Government must ensure that Senior Counsel are selected on merit and engaged at the most appropriate rate of remuneration.

The Attorney General is responsible for confirming that Senior Counsel is required for a particular matter, approving the proposed Senior Counsel and approving the appropriate rate of remuneration.  It is a requirement for all government agencies to obtain approval from the Attorney General prior to briefing Senior Counsel, including for representation in proceedings and in advice matters.  Approval is to be obtained prior to engaging any Senior Counsel.

In matters where the Crown Solicitor is acting for a agency, the Crown Solicitor will negotiate an appropriate level of remuneration and make a submission to the Attorney General as a matter of course.  Where the Crown Solicitor is not acting for an agency, approval is required from the Attorney General as to the appropriateness of briefing Senior Counsel and the level of remuneration to be paid.

Written Requests

All requests to the Attorney General to brief senior counsel must be in writing.  The submission should include the following information:

• The name of the matter;
• An outline of the matter with particular attention to the reasons that determine the need for the engagement of Senior Counsel;
• The name of Senior Counsel proposed - Reasons should be provided where less than three Senior Counsel are nominated for consideration;
• The fees for proposed Senior Counsel in the matter - Where the proposed fees are in excess for the approved rate information needs to be included as to why a higher fee is appropriate.  (Approved rates are the standard accepted rates nominated by the Attorney General for matters being managed by the Crown Solicitor);

Approval is to be sought as far as possible in advance of the scheduled date for the delivery of a brief to Senior Counsel.  In considering a request to brief Senior Counsel, the following factors will be taken into account:

• The expertise or skill of the Senior Counsel proposed;
• The probable total cost of Senior Counsels fees in the matter;
• The specific request of an agency that a particular person be briefed and the reasons for that preference;
• The importance of the matter, including any special sensitivity; and
• The normal market daily fee at which the relevant Senior Counsel is briefed.

Written requests should be forwarded to:

Legal Services Branch
NSW Attorney Generals Department
GPO Box 6 SYDNEY NSW 2001
Facsimile:  (02) 8224 5335

Urgent Requests

Where approval is required urgently, contact should be made with Legal Services Branch of the NSW Attorney Generals Department on phone number (02) 8224 5485.  Legal Services Branch will endeavour to expedite the process.

Equitable Briefing

The Attorney General is responsible for monitoring compliance with the Equitable Briefing Policy.  Agencies are expected to make reasonable endeavours to identify possible female Senior Counsel who could be engaged when nominating senior counsel.  Agencies are expected to propose at least one female Senior Counsel in a request to the Attorney General.  Where a female Senior Counsel is not nominated, reasons should be provided  (eg there are no female Senior Counsel practising in the area).

Nathan Rees MP
Premier

This memorandum has superseded Memorandum No.89-4 – Briefing of Senior Counsel by Government Departments and Statutory Authorities.