(1) This procedure supports the Legal Policy and outlines procedures for requesting legal advice from University lawyers or from external lawyers, including in relation to agreements. (2) This procedure applies to all employees and organisational units of Charles Sturt University (the University). (3) See the Legal Policy. (4) All requests for legal advice must be submitted to Legal Services, within the Office of Governance and Corporate Administration, in accordance with this procedure. (5) A request for legal advice should usually be made in writing and by or with the approval of an authorised officer with line responsibility for activities relevant to the request to ensure the request is approved and supported by the relevant organisational unit. (6) Requests for legal advice may be submitted in writing to any of the following, or a combination of the following: (7) An authorised officer may appoint another employee to provide instructions on a case by case basis ('the instructing officer'). Where an instructing officer has been appointed, the instructing officer will have the same authorities and responsibilities as the authorised officer. (8) University lawyers have a discretion to accept verbal requests for advice, or requests submitted by employees other than authorised officers or approved instructing officers, in appropriate circumstances (e.g. if the matter is urgent or straightforward or relates to a previous matter managed by the relevant University lawyer). (9) Any changes to a request for legal advice must be approved in writing by the authorised officer or the instructing officer who made the original request. (10) Legal Services will, in appropriate circumstances, escalate a particular matter or transaction to a more senior officer of the University for instructions where there is any concern about the overall interests of the University or significant risk. (11) A request for legal advice must be made at the earliest opportunity to ensure that there is adequate time for the relevant lawyer to provide appropriate legal advice before any applicable deadlines, and so that the area requesting the advice has time to properly consider and respond to the advice. (12) A request for legal advice must contain clear instructions with a summary of what the matter or transaction is about, and must be accompanied by all relevant background information and documents. At a minimum most requests should include: (13) A request for legal advice regarding an agreement (e.g. review, drafting, interpretation) should, in addition to any relevant information described in clause 12, also include: (14) Requests for legal advice received by Legal Services are normally dealt with in order of receipt, but are prioritised according to level of importance and genuine urgency. Accordingly, it is important to involve Legal Services as early as possible in any transaction or matter where legal advice or services are required, including where: (15) Employees are responsible for ensuring that any tender proposal or similar which has a specified timeframe takes into account any need for Legal Services to provide legal advice, such as the preparation of agreements. (16) If there are deadlines that impact the requirement for legal advice, the authorised officer or instructing officer should negotiate a timeframe for expected provision of legal advice with Legal Services, noting generally that: (17) If Legal Services is unlikely to be able to meet an urgent timeframe (e.g. due to other priorities or because the matters involve complex issues requiring specialist legal advice), the General Counsel will consult with the authorised officer or instructing officer to discuss the possibility of engaging external lawyers to assist and, if agreed, obtain quotes and manage any engagement in accordance with Part B of this procedure. (18) When a matter is referred to Legal Services with a request for legal advice, the authorised officer or instructing officer remains responsible for: (19) Where it is more efficient or appropriate for a University lawyer to take over certain communications (e.g. communication with the legal representative of a third party to negotiate standard legal terms in an agreement, as opposed to commercial terms such as fees and services) the authorised officer or instructing officer and Legal Services may agree to the relevant University lawyer taking on such communications. (20) In general, University lawyers will not communicate directly with third parties in relation to matters which are the subject of a request for legal advice, or respond to communication by third parties to a University lawyer, without the presence of the relevant authorised officer or instructing officer in those discussions. University lawyers will generally refer all third party contacts to the relevant authorised officer or instructing officer to ensure all communication is through a single pathway to reduce the risk of miscommunication or inconsistency in the University's approach. (21) The General Counsel has authority to take over direct communication with a third party in relation to any legal matter at any time in the best interests of the University. This authority will generally only be exercised in relation to legal matters involving actual or potential litigation or where the third party is legally represented (refer to the Legal Procedure - Court Orders, Claims and Investigations for more information about the management of claims by or against the University). (22) Requests for legal advice will only be referred to an external law firm or a specific lawyer in an external law firm (an external lawyer) in accordance with this Part. (23) The General Counsel may approve the referral of legal work to an external lawyer from time to time in accordance with the following procedures: (24) The General Counsel will: (25) Subject to the Legal Procedure - Court Orders, Claims and Investigations (in particular the paragraphs dealing with claims in relation to insured risks managed by the University's lawyers) the Chief Financial Officer may: (26) In respect of employment law matters, the Executive Director, People and Culture may refer requests for legal advice to: (27) In respect of intellectual property and research consultancy matters, the Deputy Vice-Chancellor (Research) may refer requests for legal advice to an external lawyer on the legal panel (if any) or to a trusted law firm whom the University has previously engaged in respect of such matters. If the Deputy Vice-Chancellor (Research) is of the opinion that an alternative law firm holds unique skills, knowledge or experience making them most suited to advise on the matter, they should consult with the General Counsel before engaging that alternative law firm. (28) The following executives have authority to refer requests for legal advice to an external lawyer from time to time in a manner consistent with the procedures set out in clause 23, subject to applicable legal expenditure limits in Delegation Schedule A - Governance and Legal: (29) Any request for legal advice by an authorised executive under Part B must be undertaken in accordance with procedures equivalent to those set out in clause 24, including requirements to: (30) All employees who are authorised to refer requests for legal advice to external lawyers must maintain a legal advice register in accordance with this procedure. (31) The legal advice register must include: (32) The legal advice register must be forwarded to the Office of the Vice-Chancellor and the General Counsel annually, and otherwise upon request. (33) An employee may only commence negotiations for an agreement with a third party after consulting and obtaining the written consent of the authorised officer within the organisational area responsible for the relevant relationship, transaction or activity, and in accordance with any other University rule, policy, procedure or guideline relevant to the formation of the agreement. Employees must not commit the University to sign an agreement unless and until all applicable approvals and sign-offs have been granted. (34) A request to review or draft an agreement will be submitted in accordance with clauses 12 and 13. (35) The General Counsel may establish additional requirements, and approve additional forms, for requests for legal advice relating to agreements. (36) Where an employee is aware that an agreement will need to be drafted in the future, the employee must notify the General Counsel as soon as possible (ideally at least three months in advance, or where the agreement is complex at least six months in advance), prior to a request for legal advice, to ensure sufficient time is available to review or draft the agreement and to negotiate amendments with the third party. (37) The authorised officer is responsible for ensuring that all relevant areas of the University who are, or may be, affected by, or have obligations under, a proposed agreement are consulted fully in the course of negotiating the agreement. University lawyers will not be responsible for checking whether areas have been consulted. (38) Unless otherwise exempted by the Legal Policy or this procedure, all agreements prepared by a third party for execution by the University must be submitted for legal review to Legal Services in accordance with this procedure (refer to the standard agreements heading below). (39) An agreement may only be signed by an employee: (40) An employee must not enter into negotiations, or continue negotiations, for an agreement with a third party where it is required, or becomes clear, that any resultant agreement will require the University to: (41) A controlled entity: (42) The Vice-Chancellor may, at the recommendation of the General Counsel, approve standard form agreements (standard University agreements) from time to time in areas, where the risks associated with the activity are low or quantifiable, or the form of arrangement for the activity is routine. (43) An approved standard University agreement represents the University's basic requirements for an agreement of that type and its legal terms may not be varied, except to the extent permitted under the form of the standard University agreement (e.g. the template may identify different options for certain terms and conditions, which a user may select between without having to consult Legal Services). (44) Employees may use a standard University agreement as a basis for negotiation with a third party, but any material variations to legal terms must be approved by Legal Services. (45) The terms and conditions set out in standard University agreements are approved as a standard format for contracts of that type. Standard agreements must not be varied, amended or altered without the approval of the General Counsel. (46) The translation of agreements into foreign languages must be undertaken by accredited legal translators appointed by the relevant organisational unit with the approval of the General Counsel. Any engagement will be subject to any expenditure delegation of the relevant delegate approving the terms of engagement. (47) The cost for the translation of agreements or other documents into other languages will be charged to the organisational unit requesting the work. (48) Legal Guidelines - Legal Professional Privilege. (49) This procedure uses terms defined in the Legal Policy, as well as the following:Legal Procedure - Requesting Legal Advice
Section 1 - Purpose
Scope
Section 2 - Policy
Section 3 - Procedure
Part A - Procedure for requesting advice from a University lawyer
Requesting legal advice from Legal Services
Requests for legal advice must be submitted in a timely way and with all appropriate information
Responsibilities of the authorised officer to communicate with third parties and negotiate terms
Part B - Procedure for obtaining legal advice from an external lawyer
Work may only be referred to external lawyers in accordance with this procedure
General Counsel may refer a matter to an external lawyer
Certain executives may refer certain types of requests for legal advice to an external lawyer
having regard to best legal practice.Register of referrals to external legal consultants to be maintained
Part C - Procedure relating to requests for legal advice in relation to agreements
Authority to commence negotiations for agreements
Request to review or draft an agreement
Review of agreements prepared by third parties
Authority to sign agreement
Circumstances where the University must not enter into an agreement
Controlled entities must obtain approval of Vice-Chancellor to enter into agreements
Special procedures for standard University agreements
Translation of agreements into other languages
Section 4 - Guidelines
Section 5 - Glossary
View Current
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The General Counsel may establish additional processes and/or forms for requesting legal advice, which will be detailed on the Legal Services webpage.
Note: This includes, where circumstances permit, seeking the requisite number of quotes for estimated expenditure of costs from the preferred external lawyer(s), which the General Counsel will then discuss with the authorised officer. As an exception to the Finance Procedure - Procurement, the University Secretary may waive the requirement for a quote for expenditure up to $50,000 and the Vice-Chancellor may waive the requirement for a quote for expenditure up to $150,000 upon advice from the General Counsel (e.g. if the matter is particularly sensitive and/or urgent, such as where legal proceedings have been commenced against the University)
although it should be noted that in such circumstances the external lawyer acts for the insurer, not the University.