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Government lawyers toil behind the scenes

|Written By Julius Melnitzer

There''s a 26-person group of lawyers based in Ontario whose mandate includes billions of dollars of corporate-financing transactions annually, with placements that extend to U.S. capital markets, Europe, and Australia.

Meg Kinnear heads a bureau of 35 lawyers that is the federal government

The group works regularly with the Bay Street legal biggies. The Stelco restructuring and some high-level public-private partnerships (PPP) couldn't have been completed without their participation. And they work behind the scenes on important securities-law and tax-law amendments.

It's unlikely, however, that many private sector lawyers could identify the group, known as the legal services branch of the Ontario Ministry of Finance, despite the fact that Craig Slater, the group's director, and his colleagues are engaged in some of the most interesting, complex, and sophisticated corporate-commercial and securities-financing work in the country.

"We've even done a bond issue in Swiss francs," recalls Slater. "We also worked on the government loan agreement in Stelco and on implementing the pension agreements that formed part of the arrangements for restructuring the company."

Then there are the billions in international bond deals and mandates that include the Royal Ontario Museum financing and sorting out the complexities of the Teranet Income Trust, in which the government had a stake. Multimillion-dollar, high-profile PPPs are also within the ambit of Slater and his colleagues.

Slater's group, of whom 21 are in Toronto and five in Oshawa, Ont., also has specialists in tax matters, insolvency, commercial matters, financial services, and even the restructuring of Ontario's electricity industry.

"These Ministry of Finance lawyers can draft, negotiate, and run rings around most of the big shot Bay Street lawyers who deal with them in their areas of specialization, like public-private partnerships," says one observer.

Indeed, Slater says the perception of government lawyers among other members of the bar has evolved positively in his 23 years of practice.

"First, we work in a much greater variety of areas than we ever did, and the work in all these areas has become increasingly complex," he says. "Secondly, the evolution of our work brings us into contact with private counsel to a much larger extent than it ever has before, particularly in areas where we have a special expertise."

In addition, says Slater, "We know our client, and good corporate lawyers recognize the importance of that knowledge, because there's no one in the private bar who understands exactly how government works."

Randall Hofley, who returned in January to Stikeman Elliott LLP's Ottawa office after two years with the competition commissioner, says, "Justice Canada is by far the largest law firm in the country, and my take on them is that the senior lawyers there are in no way outmatched by the private bar in terms of intellect and ability, although they may be outmatched in terms of resources to throw at a file."

The same could be said of the 42-lawyer Industry Canada group led by senior counsel Pierre Legault, which sounds very much like a full-service business law firm.

"Industry Canada has a very broad perspective, so we organize by specialties including commercial law, insolvency, intellectual property, corporate law, and administrative law," says Legault. "Day after day, we work on files that private firms would kill for."

Then there's Meg Kinnear, who is director general and senior general counsel at the Trade Law Bureau, a joint legal unit composed of lawyers from Justice Canada and Foreign Affairs and International Trade. The bureau is the federal government's centre of expertise for international trade law. Its 35 lawyers advise all federal ministries on the legal aspects of trade law.

Given the focus on globalization over the last decade, this is one group of government lawyers that might have been expected to emerge from the shadows; Kinnear and her colleagues represent Canada before NAFTA and the World Trade Organization and are frequently part of the nation's international trade negotiation team.

But it hasn't happened.

"Remember that government lawyers are often characterized in the press and elsewhere as 'the government,' to the extent that they become faceless and unrecognized as individuals," says Jim Marshall, counsel with Industry Canada.

Indeed, government lawyers remain under the radar not only in comparison to the private bar but also to corporate counsel. The emergence of corporate counsel may have been inevitable given their status as an integral part of the business community.

"By contrast, government lawyers don't have enough opportunity to meet with the business community and explain their jobs," says Competition Commissioner Sheridan Scott, adding that business outreach has been one of her priorities at the Competition Bureau.

Jeff Richstone, director and senior general counsel at Justice Canada's competition law division, says that corporate Canada and its lawyers just haven't come around to taking a close enough look at the extent to which government lawyers influence the business environment.

"When they do, they're quite amazed at the diversity and range of the files on which we work in a single day."

Scott, who has spent 14 of her 24 years at the bar in the public sector (nine years at the CRTC, two years at the CBC, and three years in her current job) and the other 10 with Bell Canada, says the difference between in-house government lawyers and corporate counsel doesn't lie in the substance of their work.

"The difference is in the administrative context, including the different approaches to human resources, contracting out, and any back-office part of the undertaking."

But that administrative context, according to Kinnear, makes for a lot of pressure.

"We don't have the pressure to get clients, but we're subject to unique government pressures like the public service staffing regime, the new accountability legislation, and budget considerations."

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