Agent Affairs Program 

• WELCOME TO AGENT AFFAIRS
• LEGAL AGENTS AND THE DEPARTMENT OF JUSTICE
• LEGAL SERVICES CONTRACTING FRAMEWORK
• DECIDING TO OUTSOURCE
• EXPRESSION OF INTEREST PROCESS
• PRACTICE AREAS
• GEOGRAPHIC LOCATIONS
• REQUIREMENTS TO REGISTER INTEREST
• SOURCING AND SELECTION
• CONTRACTING AND APPOINTMENT
• REMUNERATION
• INSTRUCTING, MONITORING AND TAXATION OF ACCOUNTS
• HOW TO REGISTER TO BECOME A LEGAL AGENT
• FURTHER INFORMATION

WELCOME TO AGENT AFFAIRS

The Minister of Justice and Attorney General of Canada is responsible for the legal affairs of the government as a whole and for providing legal services to individual departments and agencies. To help the Minister carry out this mandate, the Department of Justice relies on its in-house counsel as well as on private sector law practitioners appointed as Legal Agents. “Law practitioners” include law firms and lawyers, “études de notaires” and notaries in the Province of Quebec, retired judges and law professors.

The Department of Justice invites law practitioners across Canada to register interest in being considered for appointment as Legal Agents of the Minister of Justice and Attorney General of Canada to provide the Government of Canada with legal advisory, real estate or litigation services in a broad variety of Practice Areas across the country.

This Web site describes how law practitioners can register their interest in becoming Legal Agents of the Minister of Justice and Attorney General of Canada.  For complete details, visit the section Expression of Interest, where you will find a Registration Form.

Please note that this process does not apply to prosecution work. Information on becoming a Legal Agent of the Director of Public Prosecutions can be found at: http:/ /www.ppsc-sppc.gc.ca/eng/aaf-man/index.html.

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LEGAL AGENTS AND THE DEPARTMENT OF JUSTICE

Under the Department of Justice Act, the Minister of Justice and Attorney General of Canada is responsible for providing legal services to individual departments and agencies and for the legal affairs of the government as a whole. The Treasury Board Common Services Policy also designates the Department of Justice as the Common Service Organization or the central supplier of legal services to government departments and agencies.

To carry out this mandate, the Department relies not only on its in-house counsel located in regional offices, legal services units or litigation branches across the country, but also on Legal Agents. The term “Legal Agents” refers to private sector law practitioners who are occasionally retained to provide legal services and to act on behalf of the Minister of Justice and Attorney General of Canada.

Legal Agent appointments are contracts that may be entered into only by or under the authority of the Minister of Justice and are not subject to the requirements of the Government Contracts Regulations or the Treasury Board Contracting Policy. The Department of Justice is responsible for establishing policies associated with contracting for legal services, as well as the associated administrative processes.

The Agent Affairs Program, created in 1996, established a framework to strengthen the Department’s ability to manage Legal Agents. The overall objective of the Program is to provide functional direction over contracting for legal services with a view to enhancing the stewardship of public resources and securing improved value for money.

In 2003, the Treasury Board Secretariat, in the context of the Expenditure Management Review, recommended that the Department of Justice review its process for retaining Legal Agents. In doing so, the Department considered modern government procurement practices as well as the current practices of large institutional consumers of legal services that use competitive approaches to select their outside law practitioners. The Department paid particular attention to those practices designed to facilitate more transparent and competitive approaches to selecting and engaging private sector law practitioners.

In the fall of 2005, the Department of Justice began implementing a new Legal Services Contracting Framework, along with new processes that align with the general philosophy of government procurement of a fair and accessible system. More recently, the Department adopted a Policy on Contracting for Legal Services and Legal Agent Appointments.

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LEGAL SERVICES CONTRACTING FRAMEWORK

The overall objective of the Legal Services Contracting Framework is to ensure that the Department of Justice has a knowledgeable, skilled and motivated pool of private sector law practitioners to deploy as Legal Agents, using principled processes that meet operational requirements effectively and in a diligent and accountable manner. To that end, the Framework is designed to:

• demonstrate due diligence in the decision to outsource legal work;
• demonstrate fairness, openness, access, and transparency in the selection of private sector law practitioners;
• demonstrate value for money and sound stewardship of public resources; and
• reflect the principles of the Management Accountability Framework and effective procurement.

The basic steps of legal services contracting at the Department of Justice Canada are:

• analyzing the specific requirements of legal work and exercising due diligence in deciding whether to outsource it to the private sector;
• registering law practitioners who have indicated a desire to provide legal services to the Department of Justice Canada and its clients;
• sourcing appropriate law practitioners, according to the specific requirements of the work;
• assessing law practitioners and pre-qualifying them in areas of expertise and geographic locations where there are recurring needs;
• selecting and appointing law practitioners as Legal Agents of the Minister of Justice and Attorney General of Canada;
• contracting with law practitioners to perform legal work on behalf of Justice and its clients;
• instructing Legal Agents and monitoring and assessing their performance and associated expenditures, as well as reviewing and taxing accounts in consultation with client departments; and
• gathering information in support of the Agent Affairs Program and the Legal Agent Unit and its operational activities.

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DECIDING TO OUTSOURCE

Where there is a need for legal services to respond to an action commenced by or against the Crown or forwarded to the Department of Justice by a government department or agency, or to respond to any other question of a legal nature, the Justice manager responsible decides, in consultation with the client department or agency, whether to assign work to in-house counsel or to contract it to the private sector. In general, the following types of activities are considered legal services:

• providing legal advice and opinions
• conducting litigation
• drafting legislation and regulations
• negotiating and drafting other legal documents, such as contracts or agreements
• providing general assistance on matters that affect a client’s legal situation

The Department’s in-house resources remain the preferred way of delivering legal services. Before deciding to outsource legal work, the responsible manager must make every effort to canvass internal capacity for expertise and availability.

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EXPRESSION OF INTEREST PROCESS

All private sector law practitioners wishing to register their interest to act as Legal Agents of the Minister of Justice and Attorney General of Canada must be willing to have their knowledge, skills and service motivation assessed by departmental officials.

Assessments are not conducted at the time of registration as they are dictated by operational needs. The Department of Justice Canada may invite registered law practitioners to provide detailed submissions in light of specific work requirements to be assessed and qualified. This may be in the context of broad pre-qualification processes in specific areas of expertise or geographic locations where there are recurring needs or in the context of specific and immediate file or work requirements.

The Expression of Interest (EOI) is a request for information only. The EOI process does not create any obligations for the Department of Justice or the Government of Canada and is not to be construed as binding upon the Department or the Government. The EOI does not imply either a commitment by the Department of Justice to proceed with, continue or complete this or any other similar process. The Department of Justice reserves the right to reject any or all submissions received in response to the EOI. The EOI is not a request for or an authorization to perform any work. The EOI does not create any exclusive arrangement between the Department of Justice Canada and any law practitioner. All costs incurred in registering interest are borne by the applicant.

This process does not apply to prosecution work. Information on becoming a Legal Agent of the Director of Public Prosecutions can be found at: http://www.ppsc-sppc.gc.ca/eng/aaf-man/index.html.

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PRACTICE AREAS

The Department of Justice Canada is registering private sector law practitioners interested in being considered for appointment as Legal Agents of the Minister of Justice and Attorney General of Canada to provide the Government of Canada with legal advisory, real estate or litigation services in practice areas such as the following:

Government

1. Aboriginal law
2. Access to information and privacy
3. Administrative law
4. Admiralty and maritime law
5. Agriculture and food law
6. Aeronautics (aviation and aerospace)
7. Biotechnology
8. Class actions
9. Collections and claims by Crown (e.g. tax, Canada Student Loans)
10. Commissions of enquiry
11. Communications, telecommunications and broadcasting
12. Constitutional law and Charter issues
13. Employment insurance
14. Employment law, labour law and staff relations
15. Energy, natural resources, oil and gas
16. Environment
17. Ethics and professional conduct
18. Exports and imports
19. Fisheries
20. Forestry
21. Health
22. Human rights law
23. Immigration
24. Insurance
25. International law
26. Official languages and linguistic rights
27. Pension
28. Tax law
29. Tort, Crown liability and regulatory negligence (e.g. motor vehicle accidents, personal injury, product liability, defamation, professional liability)
30. Transportation

    Public Safety

31. Coroner’s inquest and fatality inquiries
32. Disclosure of evidence in criminal matters; publication bans
33. Extradition; mutual legal assistance to foreign states
34. Firearms hearings
35. Law enforcement, policing and the RCMP
36. Military and national defence
37. National security
38. Terrorism
39. War crimes
40. Wrongful convictions; conviction reviews

    Business and Finance

41. Banking and financial institutions
42. Bankruptcy and insolvency
43. Charitable organizations
44. Canadian International Trade Tribunal
45. Competition law
46. Contracts and agreements
47. Construction and construction contracts
48. Corporate law
49. Finance and financing agreements
50. Intellectual property
51. International commercial arbitration; World Trade Organization
52. Mergers and acquisitions
53. NAFTA
54. Patents and trademark
55. Procurement
56. Public-private partnerships
57. Securities
58. Technology
59. Trade law and arbitration
60. Trusts and estates

    Real Estate

61. Expropriation
62. Land development
63. Leases
64. Planning and municipal law
65. Property assessment
66. Property law
67. Property taxes
68. Real estate transactions and contracts
69. Real estate financing
70. Title searches

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GEOGRAPHIC LOCATIONS

The assistance of Legal Agents may be required in a specific area of expertise as well as in a specific geographic location. General legal services are frequently required in smaller cities and remote locations across the country, particularly across British Columbia, the Maritime Provinces and Newfoundland, as well as in the northern parts of Ontario. In addition to identifying the areas of expertise offered by interested law practitioners, the Department seeks to identify law practitioners interested and able to provide general litigation, advisory and real estate services in the smaller and more remote centres.

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REQUIREMENTS TO REGISTER INTEREST

The Department of Justice requires loyal and dedicated private sector law practitioners that are willing to devote their time and resources to representing the best interests of the Government and its client departments and agencies. Every team member must strive to contribute significantly to excellent results. The Department of Justice is committed to monitoring and measuring those results on an ongoing basis.

In registering their interest in being considered for Legal Agent appointment, law practitioners must confirm their willingness to make the following commitments upon a resulting agent appointment:

1. To ensure that each counsel or notary identified for inclusion on a legal team has 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;
2. To ensure that each counsel or notary identified for inclusion on a legal team is legally permitted to practice law in the relevant provincial or territorial jurisdiction;
3. To carry law-practice insurance in the province(s) or territory(ies) in which the practice is conducted, in compliance with the requirements of the relevant law societies;
4. To comply with the federal government’s conflict of interest guidelines, which seek to ensure that contracts with the private sector meet the highest ethical standards;
5. To foster diversity by promoting strategies and actions that effectively recognize, accept and utilize law practitioners and employees of all employment equity groups;
6. To ensure that each counsel or notary identified for inclusion on a legal team, as well as their staff, who will require access to Government of Canada information, assets and/or restricted work sites will hold, at a minimum, a valid personnel security screening at the Reliability Status level, granted or approved by the Department of Justice Canada’s Personnel Security Services Unit (PSSU) or by the Canadian and International Industrial Security Directorate (CIISD) of Public Works and Government Services Canada (PWGSC);
7. To ensure that each counsel or notary identified for inclusion on a legal team, as well as their staff, is in compliance with the requirements outlined in the Terms and Conditions of Appointment, which details the relationship between a Legal Agent and the Department of Justice Canada, policy obligations, and expectations regarding case management practices and administrative provisions;
8. To ensure that each counsel or notary identified for inclusion on a legal team, as well as their staff, is fiscally responsible, follows recommended file handling practices and complies fully with administrative provisions, billing guidelines and fee and disbursement policies;
9. To comply with automated litigation support and technology standards as defined by the Department of Justice Canada.

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SOURCING AND SELECTION

The final selection of a law practitioner for appointment as a Legal Agent is based on the premise that the Government of Canada is entitled to the highest quality of legal services and advice consistent with the reasonable demands of economy, efficiency and effectiveness. Competence, integrity, professionalism and trust remain primary considerations in the appointment of Legal Agents.

For Practice Areas or Geographic Locations where there is sufficient recurring demand, the Department of Justice periodically pre-qualifies registered law practitioners who meet specific requirements. As the need arises, the Department selects from the pre-qualified list the most appropriate law practitioner to be recommended for appointment by the Minister of Justice and Attorney General of Canada, based on the following criteria:

• specifics of the work
• timelines and urgency of the work
• availability of the law practitioner and capacity to provide adequate resources and infrastructure
• suitability of the law practitioner’s profile, experience and expertise relative to the specifics of the work
• proposed case plan and case budget
• geographic considerations
• travel considerations
• security considerations
• conflict of interest considerations
• financial considerations
• requirements under the Official Languages Act
• public-interest considerations
• unique considerations associated with the work

Where a requirement for work arises in an area of expertise or geographic location for which there is no pre-qualified list, or where there is a list but no one on it is available at the time, sourcing is determined on a case-by-case basis. As much as possible, selection is made on a competitive basis, drawing from the general list of law practitioners that have registered their interest with the Department of Justice.

Even where private sector law practitioners have been pre-qualified for an area of expertise or a geographic location, they are not guaranteed work with the Department of Justice Canada. Should they be selected to act as Legal Agent, they will be required to submit to the Department’s contracting and appointment requirements. Moreover, their performance will be evaluated, and the results will be factored into future selection processes.

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CONTRACTING AND APPOINTMENT

When a selection process is complete, the Department of Justice recommends the appointment of the selected law practitioner to the Minister of Justice and Attorney General of Canada, who maintains final approval authority. Once the Minister approves, Department of Justice officials formalize the appointment and enter into a contract with the selected law practitioner on behalf of the Minister, according to the approved delegated financial signing authorities.

The Department of Justice Canada confirms all terms and conditions of the Legal Agent contract and appointment in writing. In all cases, the law practitioner who will have carriage of the file(s) will be specified. The letter of appointment and its appendices detail the terms and conditions of the appointment and define the relationship between the Legal Agent and the Department. The Legal Agent acknowledges and confirms acceptance of the terms and conditions by signing and returning the letter to the instructing counsel. In accepting an appointment, the Legal Agent is confirming acceptance of the terms and conditions of the appointment, as well as compliance with Department of Justice Canada and Government of Canada policies and standards, for the duration of the mandate. These include:

• Workplace Equity Policy for Legal Agents;
• Security requirements;
• Standard technology requirements; and
• Family support obligations.

All Legal Agent appointments are at the pleasure of the Minister of Justice and Attorney General of Canada, and may be terminated at any time without prior notice.

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REMUNERATION

Remuneration for domestic legal services is established on a case-by-case basis. The rates negotiated with private sector law practitioners are expected to be significantly discounted and should not exceed rates ordinarily charged to their preferred clients. The following factors are taken into consideration in establishing and approving a Legal Agent remuneration scheme:

• nature/complexity of the work
• area(s) of expertise required of law practitioner
• level of experience required of law practitioner
• urgency of timelines
• relevant market rates for the region and area of expertise
• level of risk (i.e. amount at stake for the government and/or impact on government programs)
• level of effort required for law practitioner to become sufficiently familiar with key issues, etc.
• level of satisfaction with services previously provided by law practitioner in question
• sensitivities and public profile surrounding the work in question
• rates paid for previous agent appointments for similar services
• rates proposed by other law practitioners for the same work requirements

The following departmental hourly rate guidelines are also generally taken into consideration:

These guidelines are currently being reviewed but continue to serve as a foundation in establishing remuneration for Legal Agent work, particularly where a competitive process has not been followed. Willingness to conform with these rate guidelines, however, is not mandatory for registering interest.

In all cases, remuneration is established in the specific context of the work. It is, therefore, not necessarily based on any previous rate, nor to be considered a precedent for future negotiations. It is possible to negotiate remuneration arrangements that are not based on straight hourly rates and the amount of time devoted to an assignment. Some examples of alternative billing arrangements are flat fees, block billing or lump-sum payments, blended rates, and weighted average rates.

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INSTRUCTING, MONITORING AND TAXATION OF ACCOUNTS

Once the Legal Agent has been appointed, the Department of Justice provides instructions, consults with the representatives of the client department(s), and monitors the work performance in light of contract requirements. Justice must examine and tax Legal Agent accounts before the client department or agency that required the services proceeds with payment.

The Department’s involvement after appointment and initial instruction may range from a general overview of the work performed to close monitoring of each stage, depending on the specific requirements of the mandate.

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HOW TO REGISTER TO BECOME A LEGAL AGENT

The Department of Justice Canada invites private sector law practitioners across Canada to register their interest in being considered for appointment as Legal Agents of the Minister of Justice and Attorney General of Canada to provide the Government of Canada with legal advisory, real estate or litigation services in a broad variety of Practice Areas across the country. To facilitate the registration process and submission of an expression of interest, a Registration Form is available. Only one expression of interest should be submitted per law practitioner - members of law firms or “études de notaires” should not express interest on an individual basis. Law firms and “études de notaires” with multiple offices and locations may coordinate their submission through one central office and with one point of contact.

In completing the Registration Form and submitting an Expression of Interest, you must:

1. identify if you, your law firm or “étude de notaires” has previously registered interest with the Department of Justice through the EOI process, by checking the box provided on the Form;
2. identify if you are making a coordinated submission, on behalf of a law firm or notary office with multiple offices and locations, by checking the box provided on the Form;
3. provide the full name of the law practitioner making the submission, along with contact coordinates and mailing address;
4. identify the official language(s) in which you, your firm or “étude de notaires” has the capacity to provide legal services, by checking the appropriate box(es) provided on the form;
5. provide the name of an individual within the law firm or “étude de notaires” who will act as a principal contact throughout the Expression of Interest process and any follow-up that may be required;
6. provide the name of the managing partner of the law firm or “étude de notaires” making the submission, and provide the appropriate signature endorsing the submission;
7. provide the name of the national managing partner, where applicable to law firms or “études de notaires” with multiple offices and locations that have submitted a coordinated submission, and provide the appropriate signature endorsing the submission;
8. confirm compliance with minimal requirements as identified on Schedule A of the Registration form;
9. identify practice area(s) of interest on Schedule B of the Form by selecting from the list provided or by typing in free text where necessary. “Études de notaires” and notaries are also asked to identify themselves as “notaries for the Province of Quebec” by checking the box provided at the bottom of Schedule B; and
10. identify the name of the individual “law practitioner” who would lead a legal team for each of the selected practice areas of interest, providing the city in which he or she conducts their practice and their year of call to the Bar or “Chambre des notaires du Québec”.

The Form is available in Adobe portable document format (PDF version, 660 KB, PDF Help), and can be completed and submitted electronically or printed and mailed in.

(You will require, at a minimum, Adobe Reader 7 to complete the form. If you do not already have Adobe Reader 7, or above, on your computer, it is available for download, free of charge, at http://www.adobe.com/reader/).

If you prefer not to use the attached Registration Form, your response should be concise and organized in conformity with and in the same sequence as the prescribed Form.

The completed Registration Form can be submitted electronically or in hard copy.

Packages submitted by mail should be addressed to:

EOI
Litigation Practice Management Centre
Legal Agent Unit
Department of Justice Canada
234 Wellington Street, East Tower, 10th Floor
Ottawa, ON K1A 0H8

Electronic submissions should be sent via e-mail to: EOI-EDI@justice.gc.ca

FURTHER INFORMATION

Questions pertaining to the EOI process should be submitted in writing and directed to:

Litigation Practice Management Centre
Legal Agent Unit
Fax: 613-960-1857
E-mail: EOI-EDI@justice.gc.ca