Law Times

July 14, 2008

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Law Times Earlug Ad 1/16/08 4:06 P 416-598-5899 1-800-410-1013 McKELLAR STRUCTURED SETTLEMENTS INC. 1-800-265-8381 ckellar_LT_Jan14_08.indd 1 $3.55 • Vol. 19, No. 23 1/8/08 3:03:02 PM Covering Ontario's Legal Scene Lobbying Act amendments roll out New rules could lead to court action BY TIM NAUMETZ For Law Times OTTAWA — Tough new rules for the lob- bying industry could lead to court action between lawyers who act as registered lobby- ists and the federal lobbying commissioner, says a prominent Ottawa lawyer. 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 regis- tered as lobbyists handle relations with gov- ernment 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 com- munications arranged in advance with pub- lic 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 commis- sioner 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 rub- ber hitting the road on that issue," Brown tells Amendments to the federal Lobbying Act could threaten solicitor-client privilege even more than the previous system, says Henry S. Brown. Law Times. "If they're seeking a fishing expedi- tion and going beyond the scope of the legisla- tion, 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 re- port whether his or her client receives fund- ing from a domestic or foreign government or government agency, details of the funding, in- cluding the amount received in the last fiscal year and "whether funding is expected in the client's current financial year," says a govern- ment guide to the new provisions of the act. Lawyers who act as lobbyists have been uncomfortable even disclosing the general in- formation that has been required since 1985 by the Lobbyists Registration Act, now called the Lobbyists Act after the amendments intro- duced 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 regis- tering," 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 some- times the client has to say, 'I'd rather not dis- close 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 re- lief valve for solicitors is the Superior Court. We are officers of the court, and it's time-consuming See Solicitor, page 2 Law society shifts pay structure L BY ROBERT TODD Law Times aw Society of Upper Canada benchers have altered their compensation scheme in a move expected to cost its member- ship an extra $380,000 a year. Convocation recently approved the plan put forward by its finance committee, including a new policy to compensate benchers for travel time, increased payable time for writing tribunal decisions, and upped per diem rates. "We've had remuneration now Travel-time remuneration is impor- tant to benchers who commute from across the province, says Beth Symes. for a number of years, and it was de- termined that travel time should be included for the out-of-towners," finance committee vice chairman Bradley Wright told benchers at their June meeting. "It's not so bad for somebody like me from Ottawa, but if you're coming from northern Ontario or from Manitoulin Island, for example, it takes you practically the whole day to travel, and that would now be covered." Benchers working on hearing and appeal panels previously were limited to one day of remuneration for deci- sion writing. The change, estimated to cost about $40,000 a year, allows them to now claim remuneration for a "reasonable amount" of time spent writing decisions. Bencher Beth Symes, chair- woman of the audit committee, noted that a disproportionate amount of discipline work by benchers is conducted by out-of- towners. She added that by in- creasing compensation for reason writing, the law society would recognize the importance of the quality of decisions. She noted Focus On Legal Specialists & Boutiques Quote of the week "Hate propaganda adds nothing or virtually nothing to the marketplace of ideas and in fact it undermines the marketplace of ideas because it has the goal of excluding groups of people from the community as a whole and from that discussion." — Richard Warman lawyer, Ottawa, Ont. See Windsor, page 4 Women In Law 6 Open Courts 9 TitlePLUS title insurance and you, together we make real estate real simple. July 14/21, 2008 Inside This Issue 3 that it often takes benchers up to six days to write decisions. "We want those reasons to be good, to be explained to the member who is about to lose his or her licence why, and to have those reasons with- stand scrutiny both by the appeals panel and by the courts, and they are to be published," said Symes. "If we look at it, the amount of remuneration which is paid, which is $500 a day for a busy practitioner, is a huge sacrifice as compared to what they can earn or we can earn in our private practice." Symes added that the travel- time remuneration, expected to cost about $300,000 annually, is impor- tant to benchers who commute from the far reaches of the province. She noted that for Toronto benchers, "it's a subway token and 10 minutes to See Benchers, page 2 Advocate_LT_July14_08.indd 1 7/8/08 10:22:41 AM

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