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Lobbyist registration spikes under new law

|Written By By Mark Bourrie

OTTAWA — Canada's lobbyist registry system is seeing a flurry of new action from lawyers, partly because of new rules that lawyers argued eroded solicitor-client privilege.

Henry Brown says most lawyers are playing it safe and registering if they do any work that could be considered lobbying.
Henry Brown says most lawyers are playing it safe and registering if they do any work that could be considered lobbying.

The changes, which require lawyers to register if their work involves any discussion of third parties, has effectively closed the loophole that allowed many practitioners to escape the federal lobby registration net. The law was enacted last June, despite the opposition of the Canadian Bar Association.

Henry Brown, head of the government relations practice group at Gowling Lafleur Henderson LLP in Ottawa, says most lawyers are playing it safe and registering if they do any work that resembles lobbying.

"There's been two changes that have caused more lawyers to register," Brown says. "In the new act, the lawyer's exemption has been tweaked regarding activities involving laws and regulations. You were exempt [under solicitor-client privilege] when you called up a government official to say that your client did not want a law to apply to him. You were also exempt if you said, 'You should look at what [a third party is] doing.

"Now, you're not exempt from registering if you complain on behalf of your client about another person," he says.

As well, the change in government has resulted in file-shuffling in law firms that have government relations sections.

"Clients are now looking for people with experience and good connections in the Conservative sector. It was always useful to have intelligence about the policies of opposition parties, because governments do change," Brown says.

Gowlings has 22 people in its government relations practice across Canada, from Vancouver to Montreal. About 70 per cent of them are lawyers. Among the non-lawyers is Sean Moore, founder of the Lobby Monitor, now a partner at Gowlings in Ottawa.

Gowlings hired former justice minister Martin Cauchon to work in its Montreal office. Roger Tassé, who was prime minister Jean Chrétien's deputy minister, and Roger Simmons (a non-lawyer) who was in Pierre Trudeau's cabinet, are also in Gowlings' Ottawa office.

"People say. 'That's great that you have these people who are well-connected with the Liberals but who do you have on the Conservative side?' Every firm is asked that right now," Brown says.

"We have Don Mazankowski, and Bob Dechert, in Toronto, who's a partner in the firm and has been with Gowlings for 21 years. It's not new that Bob is at Gowlings, but what is new is that the Conservatives are in.

"Dechert ran for the Conservatives in Mississauga-Erindale in 2004 and 2006. Dechert is very well connected with the Reform/Alliance side of the party. He was one of the people who helped bring the party together. Mazankowski was on the MacKay-Clark side of the merger talks while Bob was on the Reform/Canadian Alliance side," says Brown.

John Chenier, who co-founded the Lobby Monitor with Moore and edits it now, says registrations are up "phemonenally since the new law last year and they've been climbing exponentially.

"More people are registering because of the expanded definition of lobbying. There's also much more fear in the system. People are afraid surveillance has been increased. Public servants are more cautious about being lobbied, and lobbyists are taking note of that. If you're going to be contacting people on behalf of clients, you should be registered.

"Now, law firms find it advantageous to have lobbyists inside law firms or in related firms. That's been the way things are in the U.S. for some time.

"Some law firms are setting up separate companies to do GR work," he says.

Mike Richmond, an associate with McMillan Binch Mendelsohn LLP in Toronto, a firm that has been building up its lobbying staff at the federal and provincial level, says lawyers are trying to take back business that's been lost to boutique lobby firms like Earnscliffe in Ottawa and Navigator in Toronto.

"And lawyers are being much more careful about registering. Here, if a client doesn't want us to register, we won't accept his business. There's so much more public information out there, and more people are looking at it.

"After the Airbus investigation and the Gomery inquiry [into the sponsorship kickback scandal], firms are erring on the side of caution," he says.

Some Liberal-dominated smaller lobby and law firms are struggling to deal with the change of government by hiring new partners and associates. Richmond says most large law firms are simply changing their registration because many files are being handed off to Conservative-connected lawyers.

"Law firms work both sides of the fence. In a big firm with a couple of hundred lawyers, you're going to have lots of lawyers who are Liberals and Tories. When the government changes, some lawyers come forward to do GR work, while those connected with the previous party in power may end up practising more traditional forms of law," he says. 

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