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Competition Bureau of Canada

Competition Bureau

Policy on Retaining Outside Counsel for the Competition Bureau


October 2005

 

Introduction

While the majority of lawyers working for the Commissioner of Competition are employees of the public service, it is occasionally necessary to retain outside counsel. The Commissioner has adopted a policy on conflicts of interest that applies when retaining counsel outside the Department of Justice to represent the Competition Bureau. The policy ensures that a lawyer working on behalf of the Commissioner is not representing other clients on substantially related matters.

The Bureau’s Executive Committee has reviewed and updated its policy in light of the most recent jurisprudence.


Process for retaining outside counsel

The Attorney General retains outside counsel on behalf of the Commissioner for the purposes of the administration and enforcement of the Competition Act, the Consumer Packaging and Labelling Act, the Precious Metals Marking Act and the Textile Labelling Act. While Bureau case officers participate in the hiring process by searching for available lawyers and discussing the work involved, the Department of Justice is responsible for conflict of interest matters relating to Crown agents.

Retaining outside counsel consists of three steps.


Step 1:

The lawyer will complete a conflict check with his or her firm and will advise the Commissioner of (1) any current matters in which the lawyer or the firm is acting for a client before the Bureau, and (2) any past matters in which the firm has acted for a client before the Bureau.


Step 2:

In consultation with the Commissioner, the Department of Justice will determine whether any of the identified matters disqualify the lawyer from being hired. This determination is based on whether an existing retainer is substantially related to a proposed retainer for the Commissioner.

Generally speaking, a "substantially related" matter includes:

(i) the same matter for which the lawyer will be hired (e.g. switching sides in the same matter);

(ii) situations in which there is a substantial risk that representation of the Commissioner will involve the use of confidential information acquired in the course of representing an existing or former client (unless that information is public or generally available); and

(iii) matters in which the lawyer will be called upon to take a position(s) inconsistent with that previously taken by the lawyer.

The decision of the Department of Justice in this regard will be final.


Step 3:

If the lawyer is not disqualified, he or she will be responsible for obtaining necessary consents from (1) his or her current clients, and (2) his or her firm and its current clients.


Terms and conditions for outside counsel

The following terms and conditions will form part of the lawyer’s retainer:

1) The lawyer acknowledges that the retainer will involve obtaining certain confidential information from the Bureau, and agrees to abide by all applicable rules of professional conduct with respect to later use of confidential information.

2) The lawyer acknowledges that he or she is subject to the "implied undertaking" rule, which is a common-law rule recognized in most provinces and in the Federal Court of Canada. This rule provides that information obtained in the course of litigation will not be used for any purpose outside that specific litigation without consent, unless the information has been made public.

3) The lawyer agrees to the implementation of an ethical screen within his or her firm. This means that only the lawyer and other firm employees expressly nominated by the Commissioner will have access to any information with respect to the retainer. The lawyer will advise the other members of his or her firm in writing that under the terms of the retainer with the Commissioner, no discussion of any confidential information flowing from the retainer will be permitted.

4) The Commissioner agrees that the lawyer and lawyer’s firm may represent other clients on matters that are not substantially related, subject to paragraphs 5, 6, and 7.

 

Generally speaking, a "substantially related" matter does not include:

(i) representing a client adverse to the Bureau in a completely new matter involving the same legal issues (e.g. the lawyer has mastered a substantive area of law working for the Bureau, but there is no substantial risk that the new matter will involve the use of confidential information acquired in the course of representing the Bureau); and

(ii) representing a client adverse to the Bureau in a new matter where the lawyer knows the Bureau’s preferred approach to dealing with settlements or negotiations or approaches to litigation, unless that information is not available to others, is directly at issue or is of unusual value in the new matter.

5) While representing the Commissioner, the lawyer and the lawyer’s firm may represent other clients on matters that are not substantially related provided that the matter would not involve direct dealings with the same officials in the Bureau.

6) If at the time of the retainer the lawyer or lawyer’s firm is currently representing a client in a matter involving the Bureau, the lawyer and the lawyer’s firm will only be permitted to continue that representation until conclusion if the Department of Justice, in consultation with Commissioner, is satisfied that it is not substantially related to the new matter and would not involve direct dealings with the same officials in the Bureau.

7) If a lawyer or lawyer’s firm is asked to represent a client in a new matter involving the Bureau, the initial determination of whether the new matter is substantially related to the matter on which the lawyer is representing the Bureau will be the responsibility of the lawyer and the lawyer’s firm. Before communicating or negotiating with the Bureau with respect to the new matter, however, the lawyer or the lawyer’s firm will inform the Commissioner about it. The Commissioner will then consult with the Department of Justice, which will determine whether the new retainer is substantially related. The decision of the Department of Justice in this regard will be final. If the Department of Justice determines that the new retainer is substantially related, the lawyer’s firm will withdraw from its representation of the other client.

8) The lawyer and the lawyer’s firm agree that any third party complainant whose interest or complaint is pursued by the Commissioner will be regarded as a client for conflict purposes.

9) The lawyer agrees not to act on behalf of a client with respect to a matter in which the lawyer participated personally and substantially while acting on behalf of the Commissioner unless both the Commissioner and the client consent to the representation.

10) The Commissioner will not object to a subsequent retainer in which the lawyer appears against the Commissioner unless:

a) the matter is substantially related to the lawyer’s previous representation of the Commissioner; or

b) the matter is one in respect of which confidential information previously transmitted is directly relevant.


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