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New rules could lead to court action

|Written By Tim Naumetz

OTTAWA - Tough new rules for the lobbying industry could lead to court action between lawyers who act as registered lobbyists and the federal lobbying commissioner, says a prominent Ottawa lawyer.

Amendments to the federal Lobbying Act could threaten solicitor-client privilege even more than the previous system, says Henry S. Brown.

A requirement for detailed reports on communications with government officials under amendments to the federal Lobbying Act could threaten solicitor-client privilege even more than the previous system, says Henry S. Brown, a regulatory expert with Gowling Lafleur Henderson LLP.

The new law took effect July 2 and could dramatically change the way lawyers registered as lobbyists handle relations with government officials on behalf of their clients.

The most significant change requires all registered lobbyists to file monthly reports, which will be made public, about any communications arranged in advance with public office-holders, lawyers agree.

The communications covered by the act exclude e-mails and letters with government officials, because those are accessible under the Access to Information Act, but even with that loophole, lawyers are concerned about the effect on privilege.

Brown said it is possible a confrontation could develop if the lobbying commissioner or his officials attempt to seek more detailed information in addition to details clients have agreed the lawyers may disclose in the monthly statements.

“There is the possibility for a little more rubber hitting the road on that issue,” Brown tells Law Times. “If they’re seeking a fishing expedition and going beyond the scope of the legislation, then the lawyer could say ‘no’ and then the commissioner will have to pursue it, and then the lawyer might have to say, ‘I can’t do that,’ and then you’re into that awkward position.”

Monthly reports must include the name and position each lobbyist has contacted on a pre-arranged basis on behalf of the client, the government department or institution, the date of the communication, and the topic.

The new reporting scheme also includes separate requirements for the lobbyist to report whether his or her client receives funding from a domestic or foreign government or government agency, details of the funding, including the amount received in the last fiscal year and “whether funding is expected in the client’s current financial year,” says a government guide to the new provisions of the act.

Lawyers who act as lobbyists have been uncomfortable even disclosing the general information that has been required since 1985 by the Lobbyists Registration Act, now called the Lobbyists Act after the amendments introduced by the Conservative government.

“Prima facie, as we lawyers like to say, there is a breach of solicitor-client privilege that is requested, and is a condition of registering,” Brown says, adding lobbyist/lawyers have addressed the problem by obtaining permission from their clients before filing the information with the government.

“It’s still an awkward moment, and sometimes the client has to say, ‘I’d rather not disclose my identity or what you’re doing for me to anybody,’” he adds.

The new requirements, however, could lead not just to awkward moments but to legal action, he says.

“The relief valve on all of this is fortunately not the commissioner,” says Brown. “The real relief valve for solicitors is the Superior Court.

We are officers of the court, and it’s time-consuming and expensive, but a lawyer who is asked to breach his or her professional obligations may go to court and get the court to rule on the point.”

Keith Cameron, a registered lawyer/lobbyist with Lang Michener LLP in Ottawa, agrees lawyers braced themselves for further encroachments into solicitor-client privilege as the date for the new law to take effect approached.

“I will not be spearheading any challenge or anything,” he tells Law Times.

“What we’ve been told, at least privately by the registrar [now commissioner] is you’re wearing two hats, and you can’t wear them both at the same time. Either you’re a lobbyist or a lawyer. If you’re acting as a lobbyist then you have to follow these rules; that makes for a difficult situation, though.”

Other lawyers, though, do not anticipate difficulties, in some cases because they focus their lobbying more on government policy and legislative initiatives than sensitive areas such as government procurement.

“From my point of view, it’s a little more paperwork but there isn’t a concern about solicitor-client privilege,” says Gerald Kerr-Wilson of Fasken Martineau DuMoulin LLP.

Kerr-Wilson, a legal vice president with the Canadian Cable Telecommunications Association until 2006, represents cable and satellite companies before the Copyright Board of Canada while also serving as a registered lobbyist for nine cable and telecommunications companies.

He tells Law Times questions about sensitivity for solicitor-client privilege were raised during seminars led in advance of the new regulations by one of his former colleagues at Faskens - Guy Giorno.

Ironically, Giorno, who advised the Canadian Bar Association about the new provisions as well, has since joined Prime Minister Stephen Harper’s office as chief of staff. “He may be able to do something now in respect of something he previously had concerns,” quipped Brown.

Despite the attention given to the unique issues surrounding lawyers who act as lobbyists, their number is low compared to the overall population of lobbyists registered with the federal government.

Of the 3,399 active files in the public registry, only 263 active registrations are for lobbyists from law firms, including lawyers who have more than one client.

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