Terms and Conditions of Appointment for Domestic Legal Agents
4. Professional Responsibilities
4.1 Duty of Loyalty
The legal agent must not engage in legal work that could place demands on the legal agent that are inconsistent with its duties as a legal agent of the AGC or that could call into question its duty of loyalty to the Crown as its client. Legal agents must not publicly criticize the integrity of senior government officials or government institutions, or the integrity of Federal Ministers.
4.1.1 Duty to Avoid Conflicts of Interest
The legal agent must take all necessary steps to avoid a conflict of interest. This obligation exists at the time of appointment and continues throughout the life of the appointment.
Specifically, legal agents must comply with:
- The applicable professional rules of conduct; and,
- The applicable law, including the Supreme Court of Canada’s decisions in Martin v. Gray, [1990] 3 S.C.R. 1235, R. v. Neil, [2002] 3 S.C.R. 631, Canadian National Railway Co v. McKercher LLP, [2013] 2 S.C.R. 649.
4.2 Deemed Conflict of Interest
A legal agent may be deemed to be in a conflict of interest when the legal agent represents, without consent, a client whose legal interests are directly adverse to the immediate legal interests of the Crown.
The Department does not generally prevent legal agents from representing clients against the Crown in unrelated matters where there is no danger of misuse of confidential information, unless the case against the Crown is of sufficient importance and public interest that it may jeopardize the legal agent’s duty of loyalty and commitment towards the Crown.
The Department determines, for each legal agent appointment / or each specific file / or on an appointment to appointment basis, what it deems to be a conflict of interest. This includes defining related matters that constitute a direct conflict. In addition, the Department will define unrelated matters where it does not want consent to be inferred, if any. This is intended to circumscribe the identification and disclosure obligations on the part of the legal agent, as well as to facilitate the assessment of conflicts of interests by the Department.
4.3 Obligation to Disclose
4.3.1 Disclosure in Relation to Conflicts of Interest
The legal agent is not required to disclose all of its unrelated cases against the Crown. Unrelated cases against the Crown only need to be disclosed if the Department has defined unrelated matters that require disclosure or if the firm has deemed that the case against the Crown is of sufficient importance and public interest that it may jeopardize the legal agent’s duty of loyalty and commitment towards the Crown. The legal agent must exercise due diligence in defining and disclosing conflicts in accordance with what has been deemed to be a conflict in a given case. The legal agent should provide sufficient information to enable the Department to make an informed decision about whether to have the legal agent act or continue to act on behalf of the AGC despite the existence or possibility of a conflict of interest.
The legal agent must disclose all private interests, including outside activities and assets that could place them in a real, apparent or potential conflict of interest in relation to their potential appointment.
The legal agent must immediately notify the Department if the firm or any members of the firm acquires an interest or becomes involved in a situation during the term of the appointment that would result in a real, potential or apparent conflict of interest.
4.3.2 Disclosure in Relation to Public Sector Obligations
The legal agent must disclose whether any authorized counsel or partner:
- is a former federal public office holder, as defined in the Conflict of Interest Act;
- is a former federal public servant, as defined in the Treasury Board (TB) Policy on Conflict of Interest and Post Employment, and whether the individual is in receipt of a pension pursuant to the Public Service Superannuation Act or a lump sum payment pursuant to the National Joint Council Work Force Adjustment Directive;
- is a Member of Parliament or the Senate; and,
- is the spouse, the common-law partner, the child, a sibling, or the parent of any minister of the Crown or other public office holder as defined in the Conflict of Interest Act (L.C. 2006, ch. 9, art. 2).
The obligation to disclose this information continues throughout the life of the appointment.
4.3.3 Disclosure in Relation to Third Party Allegations
If a client of the legal agent or a member of the court raises a concern about or objects to an alleged conflict of interest involving the legal agent, the legal agent must disclose this information to the Department.
4.4 Assessment of Conflicts of Interest
The Department assesses issues that relate to conflict of interest on a case-by-case basis and makes decisions in light of the specific circumstances of the matter at hand with a view to balancing the need to preserve the interests of Crown and the public interest, with the need to meet operational demands.
The Department considers the following factors in determining whether a real, potential or apparent conflict of interest exists and determining an appropriate course of action:
- the nature and immediacy of the legal interests at play;
- whether the legal interests are directly adverse;
- whether the issue is substantive or procedural;
- the stage that the matter or proceeding has reached;
- the temporal relationship between the matters;
- the significance of the issue to the immediate and long-term interests of the Crown;
- whether there is a risk that the exchange of confidential information acquired could be abused;
- the availability of another law practitioner of comparable expertise and experience;
- the extra cost, delay and inconvenience involved in engaging another law practitioner, and the latter’s unfamiliarity with the client and the client’s affairs;
- the likelihood of the movement of a law practitioner;
- the reasonable expectations of the government department or agency requiring the services of the agent for the particular matter or representation;
- the public interest; and,
- other related factors.
If the Department is of the opinion that a real, potential or apparent conflict exists as a result of the legal agent’s disclosure or as a result of any other information brought to the instructing counsel’s attention, the Department may require the legal agent to take measures to resolve or otherwise deal with the conflict or may terminate the appointment.
4.5 Duty of Commitment
The legal agent must be committed to the interests of the Crown and must refrain from undermining its relationship with the Crown.
This obligation to the Crown survives the appointment in that the legal agent must not attack legal work that was done during the period he or she was a legal agent or undermine the Crown’s position in relation to issues that were central to the appointment.
4.6 Duty of Candour
The legal agent must disclose any factors relevant to its ability to provide effective representation as a legal agent of the Crown. This obligation applies throughout the life of the appointment.
4.7 Duty of Confidentiality
The legal agent must not use or disclose the Crown’s confidential information obtained during the course of the appointment to the disadvantage of the Crown, or for the benefit of the legal agent or a third person without the express consent of the Crown.
Legal agents and members of the legal agent’s firm, as the case may be, must not discuss Government of Canada legal matters outside of the firm and with colleagues within the firm, unless:
- expressly authorized by the Crown;
- required by law or a court to do so; or,
- required to deliver the information by the Law Society.
4.8 Advance Waivers
As a general rule, the Department does not provide blanket or advance waivers or undertakings in relation to conflicts of interest.
4.9 Political Activity
The legal agent must maintain the principle of political impartiality while representing the Crown and the public interest. Accordingly, legal agents cannot engage in political activities that impair or could be perceived as impairing their ability to perform their legal agent responsibilities in a politically impartial manner. Authorized counsel or partners must immediately disclose to the instructing counsel any involvement as a candidate or as an official agent of a candidate in an election at the federal, provincial or territorial and municipal level, to permit the department to determine an appropriate course of action.
5. Roles and Responsibilities
5.1 Legal Agent Firm Principal Contacts
The following sets out the accountabilities of the principal contacts:
- Managing Partner, with responsibility for managing the business relationship between the firm and the Department during the life of the appointment mandate, including designating individuals with accountability for specific aspects of the legal agent appointment, providing any required certifications on behalf of the firm, and formally accepting the letter of appointment and any subsequent amendments;
- Lead Counsel, with responsibility for delivering the mandate, managing the legal team, including delegating legal work to the most economical and qualified level of authorized counsel, and seeking any required instructions and approvals from the Department, during the life of the appointment mandate;
- Administrative contact, with responsibility for managing administrative activities and billing and payment issues on behalf of the firm, during the life of the appointment mandate; and,
- Legal Agent Security Officer, with responsibility for implementing and managing the firm’s system of security controls and safeguards required in accordance with the level(s) of security specified in the letter of appointment.
Where an obligation set out herein is placed on a legal agent as a firm, the appropriate designated contact identified for the matter as per this section is accountable for compliance and responsible for the discharge of the obligation in accordance with their accountabilities.
5.2 Instructing Counsel
The instructing counsel identified in the letter of appointment is the legal agent’s point of contact with the Department. The instructing counsel is responsible for day-to-day instructions to the legal agent team, including instructing, monitoring and evaluating the work of the legal agent, ensuring that the legal agent is informed of pertinent departmental policies, and providing advice and assistance when required.
Where, in accordance with these Terms and Conditions, the legal agent requires the approval of instructing counsel, the legal agent shall obtain the approval, in writing, prior to proceeding. In rare situations, where circumstances warrant that the legal agent proceed without the prior written approval, the legal agent shall notify instructing counsel about the situation at the earliest opportunity and seek ratification.
5.3 Authorized Counsel and Paralegals
The letter of appointment confirms the name(s) of the counsel and paralegal(s) authorized to render services in accordance with the appointment mandate.
The legal agent must provide individuals at the experience levels identified in the letter of appointment. If in the future it is necessary to modify the list of authorized counsel, the agent must obtain appropriate approval from the instructing counsel prior to any services being rendered. If this authority is not obtained in advance, the Department will not approve payment of fees for services rendered.
Individuals identified as Lead Counsel and Managing Partner are expected to assume the relevant responsibilities for the life of the appointment mandate. If however, these individuals become unavailable to continue the work, the legal agent must notify the instructing counsel. The legal agent is responsible for identifying acceptable replacement(s) with the same or greater experience levels and who are equal or superior to the resource being replaced, and for seeking the written approval of instructing counsel prior to providing replacement(s). The Department reserves the right to interview the proposed replacement personnel, at no cost to Canada.
The legal agent must notify the Department of any proposed changes to the Administrative Contact, CSO, or ACSO.
6. Security Requirements
6.1 General
The legal agent must implement security measures to protect sensitive government information, assets, and access conditions at both Justice and legal firm work sites. These measures include undertaking to obtain a valid Justice Canada Legal Security Assessment (JCLSA) prior to accessing Protected C or Classified government information or assets. In addition, individual security screening is required for files involving access to Protected C or Classified information and access to Protected C or Classified information will be restricted to a Government of Canada facility. Specific security requirements are identified in the letter of appointment and the Department of Justice Guide on Security for Legal Agents.
These security measures are designed to prevent the unauthorized disclosure, access, destruction, removal, modification or interruption of sensitive government information and assets provided to or produced by the legal agent in connection with a legal agent appointment. The legal agent must implement the controls and safeguards in accordance with the security requirements specified in the letter of appointment, and any other security measures identified by the Department, as may be required by the provisions of the file.
The Government shall not be liable for any costs or claims of the legal agent arising from the measures taken to meet the security requirements associated with the appointment.
6.2 Inspections, Breaches and Compromises
The Department reserves the right to inspect, at reasonable intervals, the legal agent’s security controls and safeguards, methods, and facilities for compliance with the security requirements. The legal agent is expected to cooperate with the Department and provide full access to their premises and to any information required in the context of an inspection.
Should the Department determine that the legal agent is not in compliance, it will advise the legal agent in writing of the deficiencies. The Department may suspend or revoke the legal agent’s JCLSA, or may take other measures to manage any security risks, until the deficiencies are rectified to the satisfaction of the Department.
7. Reporting
7.1 Specific Reporting Requirements
The legal agent must comply with case specific reporting and consulting requirements as established by instructing counsel. These requirements may be defined through the letter of appointment or through instructions provided by instructing counsel during the tenure of the appointment.
At a minimum, the legal agent must:
- Provide instructing counsel with regular status reports regarding the evolution of the file;
- dvise instructing counsel in a timely fashion of significant developments which might affect the Crown’s exposure;
- Apprise instructing counsel of proposed changes to case plan and budget; and,
- submit to instructing counsel for approval, all settlement proposals or requests for settlement authority.
and more particularly in the context of litigation, must:
- obtain the consent of instructing counsel prior to committing to a trial date;
- once a trial date has been set, the legal agent and instructing counsel jointly develop a case plan; and,
- advise instructing counsel promptly of any adverse decision or judgment so that a decision may be made with respect to an appeal and instructions provided as to the appropriate steps to take.
7.2 Communications with the Department
All communications with the Department must quote the Justice File Number and the Case and Billing Numbers identified in the letter of appointment.
- Date modified: