Policies, Guidelines and Reference Documents

Terms and Conditions of Appointment (TO BE UPDATED)

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INTRODUCTION

The Department of Justice Act is the authority which provides the Minister of Justice and Attorney General of Canada with the responsibility for the legal affairs of the government as a whole and for providing legal services to individual departments.The Department of Justice's mandate derives from the dual role of the "Minister":

• in support of the Minister of Justice, the Department is responsible for providing policy and program advice and direction through the development of the legal content of bills, regulations and guidelines;
• in support of the Attorney General, the Department is responsible for prosecuting federal offences across Canada, including drug offences, litigating civil cases by or on behalf of the federal Crown, and for providing legal advice to federal law enforcement agencies and other government departments and agencies.

To carry out this mandate, the Department of Justice relies on in-house counsel as well as private sector lawyers, both domestic and international, referred to as legal agents. There are two main categories of legal agents:   

• standing legal agents, who are appointed for an indefinite period of time to conduct work of a specific nature on an as needed basis; and,
• ad hoc legal agents who are retained to provide services with respect to a specific case/piece of work, or aspect of a case/piece of work.

Generally, engagements in respect of the following types of activities are considered to be "legal services":

• provision of legal advice and opinions;
• conduct of civil litigation and criminal prosecutions;
• dispute resolution;
• legislative and regulatory drafting; and,
• negotiation and drafting of other legal documents such as contracts, agreements, etc.

The Government Contracts Regulations establishes a condition and/or limitations for entering into contracts for legal services. Pursuant to section 3 and 4, the Regulations do not apply to contracts for legal services and contracts for the performance of legal services may be entered into only by or under the authority of the Minister of Justice and Attorney General of Canada.All legal agents are appointed by the Minister of Justice.

Part One: Terms and Conditions

1.1 Principle

As a representative of the Attorney General of Canada, a Legal Agent is expected to uphold the highest standards of personal and professional conduct. A Legal Agent must obey the law and be in compliance with federal government policies and must act with integrity, fairness and impartiality at all times.Justice Canada requires loyal and dedicated legal teams that are willing to devote their time and resources to best represent the interests of the government of Canada and its departments and agencies.It is Justice Canada's expectation that all counsel on the legal team will have the level of competence in handling litigation work or providing legal services commensurate with their experience and the type and complexity of file or file activity.Justice Canada expects legal agents to be fiscally responsible and follow recommended and cost-conscious file handling practices; and, comply fully with administrative provisions, billing guidelines and fee and disbursement policies.Justice Canada is increasing its use of web-based technology for business and communication purposes, including account review and in due course payment automation. It is anticipated that e-business capabilities will be a requirement.Every team member (both counsel and legal assistants for whose work counsel is responsible) is expected to strive to contribute significantly to excellent results. Effectively measuring those results presents an on-going challenge. Results may be based on many factors outside of counsel's control.As a minimum, it is Justice Canada's expectation that all legal agents be members in good standing of a provincial or territorial bar, and, be in compliance with the requirements outlined in this document.

1.2 Application of Terms and Conditions

The Letter of Appointment, the Statement of Work, these Terms and Conditions, and any specific protocols and instructions constitute the basis of the agreement between the Legal Agent and the Department of Justice. There are no other terms or conditions, express or implied, other than those in these documents. The Legal Agent must, at all times, act within the scope of this agreement.The Terms and Conditions set out the nature of the Legal Agent's relationship with the Department of Justice. The Terms and Conditions also provide direction to Legal Agents on a number of important matters.These Terms and Conditions apply to all law firms and to all lawyers appointed as a Legal Agent to provide legal services as described in the relevant letter of appointment.These Terms and Conditions and their Schedules are subject to change. Legal Agents will be notified of any changes and the time frame in which they must comply with the changes.

1.3 Obligations

A Legal Agent must act in accordance with these Terms and Conditions, the Statement of Work, the Letter of Appointment, and specific protocols and instructions from the Instructing Counsel, as they are and as they may be amended.

1.4 Personal Conduct

A Legal Agent must immediately notify the Instructing Counsel, in writing, if he or she is subject to/of:

• any prosecutions or convictions under federal statutes, including the Criminal Code;
• personal or professional bankruptcy or insolvency; or,
• any disciplinary proceedings before a law society or bar association.

The Legal Agent must also notify the Instructing counsel in writing if he or she is in default of a court order or decision or a family support obligation by which they may be bound.These requirements exist at the time of appointment and extend throughout the tenure of the appointment.

1.5 Authority to verify compliance

By signing the Statement of Work, the Legal Agent authorizes the Department of Justice to contact:

• appropriate agencies to verify the Legal Agent's compliance with the personal conduct requirements of section 1.4;
• federal enforcement agencies to verify the Legal Agent's compliance with federal statutes;
• the Canada Customs and Revenue Agency to verify the Legal Agent's compliance with the Income Tax Act and other federal statutes under that Agency's authority; and
• the law society or Bar Association of his or her province or territory to verify the Legal Agent's good standing to practise law.

This authorization applies at the time of appointment and throughout the course of the appointed agent status.

1.6 Sanctions

Failure to comply with these Terms and Conditions or instructions from the Instructing Counsel may result in sanctions including:

• reduction or disallowance of accounts;
• initiation of a complaint before the appropriate professional disciplinary body;
• initiation of a civil action against the Legal Agent; and,
• suspension or termination of the appointment as Legal Agent of the Attorney General of Canada.

1.7 Terminology

In these Terms and Conditions,

• ad hoc Legal Agent means a Legal Agent appointed to provide services with respect to a specific case/piece of work, or aspect of a case/piece of work.
• Standing legal agent means a Legal Agent appointed for an indefinite period of time to conduct work of a specific nature on an as needed basis; and,
• authorized counsel means the counsel(s) within a specific legal entity, authorized to work on a specific case/piece of work, or aspect of a case/piece of work, in accordance with the terms of the ad hoc or standing appointment mandate.

Unless otherwise specified in these Terms and Conditions, the term Legal Agent refers to both ad hoc and standing legal agents as well as authorized counsel.

Part Two: Conflict of Interest

2.1 Principle

In providing legal services to the Government of Canada, Legal Agents are advocates and administrators of justice. They serve the public interest. Legal Agents must not engage in legal work that could place demands on them that are inconsistent with their duties as an agent of the Attorney General of Canada or that could call into question their capacity to perform their duties objectively and loyally.

2.2 Application

The Department of Justice applies the general principles of conflict of interest when retaining the services of legal agents for civil work. Legal Agents must take all necessary steps to avoid a conflict of interest or the appearance of a conflict of interest.Legal Agents are required to maintain the appropriate procedures within their firms to ensure against conflict of interest as mandated by their respective law society, thereby protecting their interests and that of the federal government.Legal agents are required to provide adequate disclosure of conflict of interest to enable the client to make an informed decision about whether to have the lawyer act despite the existence or possibility of a conflicting interest.Decisions are made in light of the particular circumstances of the case(s) involved and the guidelines are flexible enough to meet operational demands yet protect government interests.Legal Agents must comply with:

• the Supreme Court of Canada's decision in Martin v. Gray, [1990] 3 S.C.R. 1235;
• the Bar Association or their provincial code of ethics pertaining to conflict of interest;
• the provisions of the Values and Ethics Code for the Public Service;
• the provisions of the Conflict of Interest Act for Public Office Holders;
• the Parliament of Canada Act, R.S.C. 1985, c. P-1, which provides that no member of the House of Commons or the Senate shall be admitted to share any part of the agency relationship between you and the Attorney General, nor share any resulting benefit; and,
• the provisions of the Criminal Code respecting Offences Against the Administration of Law and Justice (Part IV) and, in particular, section 121 (influencing public employees).

2.3 Deemed Conflicts

A Legal Agent may be deemed to be in a conflict of interest when the Legal Agent engages in legal work that is directly or indirectly contrary to the interests of the Attorney General of Canada.A Legal Agent may be deemed to be in a conflict of interest when the Legal Agent engages in legal work that:

• challenges the constitutionality of a federal statute or regulation;
• involves aboriginal rights or treaty claims;
• involves the Official Languages Act; or
• challenges a federal government policy or program.

2.4 Duty to Exercise Due Diligence

Prior to confirming acceptance of an appointment, a prospective legal agent must exercise due diligence in defining and disclosing conflicts. In confirming acceptance of an appointment, a legal agent is agreeing that any costs which are deemed to be unnecessary and incurred as a result of non-compliance with this obligation, may not be paid.

2.5 Duty to Disclose/Notify

A legal agent must immediately disclose to the Instructing counsel any possible conflict situation in order to allow the Attorney General to make an informed decision as to the status of the appointment.A Legal Agent must immediately notify the Instructing counsel when he or she:

• is uncertain about the applicability of the conflict rules to a particular situation;
• is involved in a situation that may be a deemed conflict of interest as described in section 2.3; or,
• is in a situation in which there is or there may appear to be a conflict of interest with the Attorney General of Canada.

If a legal agent or a member of the legal agent's firm, acquires an interest or becomes involved in a situation during the term of the appointment that would result in a conflict of interest or appear to do so, the legal agent must immediately notify the instructing counsel.

2.6 Alleged Conflict of Interest

The Legal Agent must immediately notify the Instructing counsel, if an enforcement agency, a member of the court or a member of the public raises a concern about or objects to an alleged conflict of interest involving the Legal Agent's, or his or her firm's, legal activities.

2.7 Political Activity

If an agent

• (a) acts in the capacity of an official agent for a candidate, or
• (b) is a candidate

for election as a member of the House of Commons, a member of the legislature of a province, a member of the Council of the Yukon Territory or the Northwest Territories or a member of the Legislative Assembly of Nunavut, his or her appointment will be suspended or terminated.An agent must immediately disclose to the Instructing counsel, his or her involvement or proposed involvement in the activities outlined in the preceding paragraphs.Notwithstanding the generality of the preceding paragraphs, a legal agent who is declared elected as a member of the House of Commons, of the legislature of a province, of the Council of the Yukon Territory or the Northwest Territories or of the Legislative Assembly of Nunavut thereupon ceases to be an agent.

Part Three: Appointment

3.1 Authority to Act as a Legal Agent

The letter of appointment authorizes a private sector law firm and/or lawyers to act as legal agents of the Minister of Justice and Attorney General of Canada.The Legal Agent's authority to deliver legal services is limited to the mandated services as outlined in the letter of appointment and statement of work.

3.2 Status as a Legal Agent

A Legal Agent's services are not retained by any individual federal government departments or agencies. The Legal Agent is not an employee of the Crown or of any individual department or agency of the Government of Canada.The Legal Agent must not hold himself or herself out as an employee of the Department of Justice.A legal agent firm should not refer to the Department of Justice or its matters, in any marketing or publicity to be carried out by the firm, unless the Department has given prior consent.

3.3 Authorized Counsel

The letter of appointment confirms the name(s) of the counsel authorized to render services in accordance with the appointment mandate.Written prior approval is required from the Instructing Counsel before replacing, removing or adding counsel to the approved legal team, and, more specifically, before any services are rendered by such counsel.Legal agents must ensure appropriate resource allocation for services to be rendered. Legal work must be delegated to the most economical and qualified level of authorized counsel.

3.4 Articling Students and Paralegals

The letter of appointment confirms if the services of a paralegal or articling student are authorized to render services in accordance with the appointment mandate. Where authorized, the use of paralegals and articling students is governed by the rules of the applicable law society or Bar association.See section 9.5 for specifics pertaining to billing restrictions.

3.5 Remuneration

The letter of appointment confirms the negotiated rates of remuneration or remuneration arrangement for the services to be rendered by the authorized counsel. The rate of remuneration is negotiated in the context of the particular circumstances of the work assigned and is therefore not to be considered a precedent for future negotiations.

3.6 Designation of Principal Contacts

A law firm appointed as a legal agent may be required to designate individuals within the firm to function as principal points of contact. These may include:

• Managing partner, with responsibility for the management of the business relationship between the firm and the Department of Justice, during the life of the appointment mandate;
• Lead Litigator, with responsibility for the management of the legal team, 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, with responsibility for coordinating security compliance requirements.

The requirement for the designation of principal contacts will be defined in the letter of appointment and/or statement of work, or through other instructions provided by the Instructing counsel during the tenure of the appointment.

3.7 Tenure of Appointment

A Legal Agent is appointed at the pleasure of the Attorney General of Canada. The appointment may be terminated at any time without prior notice.

3.8 Date of Appointment

The date on the Letter of Appointment is the effective date for the appointment of a Legal Agent, unless the Letter of Appointment specifies some other effective date.

3.9 Acceptance of Appointment

The Legal Agent must return a signed copy of the letter of appointment to the Instructing counsel within 30 days of receiving it. By signing the letter of appointment, the Legal Agent attests that he or she has read the Terms and Conditions, agrees to be bound by them and accepts the appointment. No accounts will be accepted or paid before the signed copy is returned.

3.10 Practice Profile

The Legal Agent must immediately disclose to the Instructing Counsel of any possible conflict of interest situations that exist at the time of appointment.Legal Agents must disclose if:

• they are former federal public servants, or
• they have received a special departure payment from the Government of Canada, such as an Early Retirement Incentive or Early Departure Incentive.

If so, they must be in compliance with the provisions of the Values and Ethics Code for the Public Service;See also Part Two, Conflict of Interest.

3.11 Termination of Appointment

An appointment terminates when the Legal Agent completes the required services in accordance with the appointment mandate and specified timelines, financial caps, etc.; when the legal agent resigns; or, on the date specified by a letter of removal from the Instructing Counsel.Further to the termination of an appointment, Legal Agents must return to the Instructing Counsel copies of all relevant training materials, instruction manuals, and any other documents, electronic files or paper files provided by the Department of Justice or other federal departments or agencies.

3.12 Proof of Appointment

The Department of Justice will provide proof of appointment if required under the Canada Evidence Act.

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