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.

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, on a case-by-case basis, what it deems to be a conflict of interest in relation to the legal agent appointment, including defining related matters that constitute a direct conflict, as well as unrelated matters for which the Department 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. 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 public office holder, as defined in the Conflict of Interest Act;
  • is a former 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,
  • Company Security Officer (CSO) and Alternate Company Security Officer (ACSO), 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 measures to access sensitive government information, assets, and secure work sites. These measures may include, as appropriate, the need for organization screening and individual security screening. In addition, the legal agent may be required to implement specific physical and information technology (IT) security measures in order to safeguard information and assets on their premises. Specific security requirements are identified in the letter of appointment.

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, andany other security measures identified by the Department, as may be required by the necessities 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 Identification of Sensitive Information and Assets

The Department identifies the level(s) of sensitive information or assets to be accessed by the legal agent in the context of a legal agent appointment, with one of the following security classifications as appropriate: Protected A, B or C or Classified, which includes Confidential, Secret or Top Secret. The legal agent must safeguard Protected and Classified information or assets according to the security requirements set out in the letter of appointment.

Where the legal agent creates a document, it must give consideration to whether the document needs to be marked as Protected or Classified, and at what level, and ensure the document is marked accordingly.

The legal agent shall not disclose sensitive information or assets to anyone unless the individual has been screened to the requisite level and has a need to know in the context of the legal agent appointment in question.The legal agent should not proceed with a third-party contract where the work involves Protected or Classified information without first consulting instructing counsel.

6.3 Organization Screening

An organization screening is an administrative determination that a firm and individuals who have been screened to the requisite security level and have a need to know, pursuant to the letter of appointment, may have access to sensitive information, assets and secure work sites. There are two types of organization screening: (1) a Designated Organization Screening (DOS), which permits access to Protected information, assets and secure work sites; and (2) a Facility Security Clearance (FSC), which permits access to information, assets and secure work sites up to the specified Classified level.

The Department will, on written application by the firm, conduct a DOS screening or FSC.The determination of a whether a firm will be granted a DOS or FSC will be at the sole discretion of the Department. As part of the organization screening process, the Managing Partner of the firm will appoint a Company Security Officer (CSO) and Alternate Company Security Officer (ACSO) to implement and manage the system of security controls and safeguards required of the firm in accordance with the level(s) of security applicable to the work to be performed, and as identified in the letter of appointment. In addition, the Managing Partner, as well as the CSO, ACSO and other identified Key Senior Officials, where applicable, must be screened to the requisite level.

6.4 Individual Security Screening or Clearance

All individuals with a need to know who require access to sensitive information, assets or secure work sites in the context of a legal agent appointment, must hold a Government of Canada-granted screening or clearance at the requisite level, or must undergo the required security screening or clearance, in order to carry out work under the appointment.

The Department will, on written application by the legal agent, conduct security screenings or clearances of individuals as per the requirements of the appointment. Individuals requiring access to Protected information must possess a security screening at the Reliability Status level. Individuals requiring access to Classified information must possess a security clearance at the Confidential, Secret or Top Secret level, as specified in the letter of appointment. The granting of an individual security screening or clearance is at the sole discretion of the Department.

6.5 Physical and IT Security Requirements

Where the legal agent is required to access, produce and store Protected or Classified information or assets on its premises, in addition to holding a DOS or FSC, the firm must hold, or work with the Department to obtain, a Document Safeguarding Capability (DSC) at the highest classification level of the documents requiring safeguarding. The Department, on written application by the firm, will assess the firm’s ability to meet the physical and administrative security requirements necessary to obtain a DSC and enable onsite handling and safeguarding of information and assets.

Where the work to be performed has an IT security requirement, the Department may also conduct an assessment of the legal agent’s IT system that will be used to process, transmit and store Protected or Classified information, to ensure the appropriate safeguarding measures have been established.

6.6 Inspection

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 DOS, FSC and/or DSC of the legal agent, 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;
  • Advise 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.

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