Advocacy on behalf of Canada’s Law Societies
As the national voice of Canada’s law societies, the Federation of Law Societies of Canada provides its views to the federal government on a number of issues related to the governance of the legal profession and core values of public importance. The Federation is also involved in court action where those core values of public importance are being challenged.
The following examples illustrate the types of issues on which we make our views known:
- Anti-Money Laundering Rules
- International Trade Negotiations
- Freezing Assets of Corrupt Foreign Officials Act
- Electronic Commerce Protection Act
- Court Interventions
Anti-Money Laundering Rules
The Federation has been at the forefront of the fight against money-laundering and terrorist financing by adopting model rules to ensure that legal professionals are not unwittingly used by their clients to advance such activities.
The Federation has challenged attempts by the federal government to subject lawyers and Quebec notaries to legal provisions that would have forced lawyers and notaries to breach solicitor-client privilege by requiring them to report suspicious financial transactions. To guard against attempts by unscrupulous clients to dupe legal professionals into laundering money or unwittingly financing terrorist activities, the Federation introduced a model No Cash Rule to limit the amount of cash lawyers and notaries may accept from their clients. The federal government has recognized the No-Cash Rule as an important contribution in the fight against money-laundering and terrorist financing.
Members of the legal profession are also bound by strict “know-your-client” rules to ensure that they are providing advice only to bona fide clients whose identity can be reliably ascertained. The Federation’s Model Rule on Client Identification and Verification is available here.
In March 2015, the Supreme Court of Canada struck down certain provisions of Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act and regulations pertaining to the legal profession. That decision by the Supreme Court concluded a 14 year legal debate between the Federation and the government of Canada over application of the federal anti-money laundering and terrorist financing regime to lawyers and Quebec notaries. The regulations would have forced lawyers to collect information about their clients and their financial transactions and turn that information over to the government on demand. The Supreme Court found those requirements violated protection in the Charter against unreasonable search and seizure, and rights of security of the person.
In March 2018, the Federation appeared before the House of Commons Finance Committee and presented a brief during its statutory review of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
In October 2018, the Council of the Federation approved amendments to the No Cash and Client Identification and Verification Model Rules, and approved a new Trust Accounting Model Rule. The report to Council recommending the changes is available here.
International Trade Negotiations
The Federation is regularly consulted by the federal government on matters relating to negotiations on trade in services. The Federation’s goal is to ensure that any liberalization in access to the Canadian legal services market by legal professionals from other countries does not compromise the protection of the public. Most law societies in Canada have, for example, enacted rules to permit lawyers licensed in other countries to practice here as foreign legal consultants provided they comply with licensing, insurance and related requirements. The Federation has provided ongoing feedback to the government on proposals to expand the rights of foreign legal consultants.
Freezing Assets of Corrupt Foreign Officials Act
In submissions in 2011 to the Minister of Justice, the Minister of Foreign Affairs, and the Standing Senate Committee on Foreign Affairs and International Trade, the Federation raised concerns that a broad disclosure obligation set out in the Freezing Assets of Corrupt Foreign Officials Act would oblige members of the legal profession to breach solicitor-client privilege. As a result of our intervention to the Senate Committee, the Minister of Justice has provided public assurances that nothing in the Act will compel members of the legal profession to divulge information protected by solicitor-client privilege. The Federation’s submission to the Standing Senate Committee is here.
Fighting Internet and Wireless Spam Act
In submissions made to the Minister of Industry and the House of Commons Standing Committee on Industry, Science and Technology, the Federation called for amendments to the Fighting Internet and Wireless Spam Act (originally the Electronic Commerce Protection Act (anti-spam legislation) to ensure that the ability of law societies to communicate with their members would not be compromised. The Federation supported the overall aims of legislation designed to stop unsolicited commercial e-mail. While it is clear that law societies and other professional regulatory bodies were not the target of the legislation, the Federation expressed concerns that the failure to specifically exempt regulatory bodies from its scope could restrict valid regulatory conduct.
The Supreme Court of Canada is the ultimate arbiter of key issues of national importance which relate to the legal profession and core democratic values. On behalf of Canada’s law societies, the Federation of Law Societies of Canada regularly intervenes in selected cases to defend these values. Some recent examples include the following :
Canadian National Railway Co. v. McKercher LLP 2013 SCC 39 (CanLII)
In a unanimous decision released in July 2013, the Supreme Court clarified the rules relating to conflicts of interest. The Court confirmed the “bright line rule” established in the case of R. v. Neil that a lawyer may not concurrently represent clients whose legal interests are directly adverse without first obtaining their consent. The Court also rejected suggestions that the rule does not apply to unrelated matters, that it creates a rebuttable presumption of a conflict of interest, and that it attracts a balancing of factors. The Court did identify three limitations on the scope of the bright line rule: it applies only where the immediate legal interests of the clients are directly adverse; it cannot be used tactically; and it does not apply in situations in which it would be unreasonable for a client to expect that a law firm will not act against it in unrelated matters. The Court also held that when the bright line rule does not apply a conflict of interest may still exist if there is a substantial risk that representation of the client would be materially and adversely affected by the lawyer’s own interests or both the lawyer’s duties to another current or former client or to a third party.
The rules in the Federation’s Model Code of Professional Conduct governing conflicts of interest reflect the bright line rule and are consistent with the Court’s decision. The Federation’s submission is available here.
Gilles Doré v. Pierre Bernard, in his capacity as Assistant Syndic of the Barreau du Québec, et al, 2012 CSC 12 (CanLII)
This case, arising from the discipline by the Barreau du Québec of one of its members, involves the rules of professional conduct of a law society, and the intersection of these rules with both the administration of justice and the Canadian Charter of Rights and Freedoms (the “Charter”). Heard by the Supreme Court of Canada in late January 2011, the case raised issues of significance for all law societies including whether limits imposed by a code of professional conduct on a lawyer’s right to freedom of expression under s. 2(b) of the Charter are justified, and whether a lawyer is bound at all times, and in all circumstances, by the lawyer’s code of ethics. The Federation’s submission is available here.
Ontario (Public Safety and Security) v. Criminal Lawyers Association, 2010 SCC 23 (CanLII)
In a case involving the application of the Ontario Freedom of Information and Protection of Privacy Act, the Supreme Court of Canada confirmed statements in earlier decisions describing solicitor-client privilege as being of a “near-absolute” nature. In a unanimous decision, the Court accepted Federation arguments that a claim that documents should be exempt from disclosure because they are protected by solicitor-client privilege should not be subject to a public interest override provision . In reaching this conclusion the Court rejected an argument that the failure to subject documents over which solicitor-client privilege is claimed to the public interest override provision was a breach of section 2(b) of the Charter. The Federation’s submission is available here.
Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 (CanLII)
In a unanimous decision released on July 17th, 2008 the Supreme Court of Canada rejected the claim by the Privacy Commissioner that it has the right to review documents over which solicitor-client privilege is claimed to determine whether the claim is justified. In dismissing the appeal the Court accepted the principal arguments made by the Federation about the need to protect solicitor-client privilege from encroachment. Stating that the determination of the validity of a claim of privilege is a role reserved to the courts, the Supreme Court reiterated its view that solicitor-client privilege must be as close to absolute as possible and may be abrogated by Parliament in legislation only where done so explicitly. The Federation’s submission is available here.