Debates of May 10, 2007 (day 4)

To the bill as a whole.

Agreed.

Does the committee agree that Bill 2 is ready for third reading?

Agreed.

Thank you. Bill 2 is now ready for third reading. Thank you, again, Minister Bell.

The next item on our agenda is Bill 3. I am going to turn you over to Mr. Ramsay for Bill 3.

Thank you, committee. I would now like to ask the Minister responsible for Bill 3, the honourable Minister Bell to introduce the bill, please. Mr. Bell.

Thank you, Mr. Chair. The purpose of this bill is to permit staff lawyers working out of different law clinics of the Legal Services Board to advise both parties in a legal matter without that being in and of itself a conflict of interest.

The Legal Services Board and department identified the need for this amendment in response to a diminishing private bar and increasing reliance on staff lawyers. This amendment is in place in other jurisdictions for the same reason: to ensure the provision of timely and quality legal service to clients. The Law Society, which regulates the legal profession in the Territories, is in support of this amendment.

In the long term, this amendment will allow to continue with, and expand if necessary, its complement of staff lawyers in order to ensure NWT residents have access to family and criminal law services, and that the court system remain accessible.

I would like to thank the Standing Committee on Social Programs for its consideration of this bill. I would be pleased to answer questions that the committee may have. Thank you, Mr. Chair.

Thank you, Minister Bell. I would now like to ask the Standing Committee on Social Programs for their comments. For that I will turn first to Mr. Braden. Sorry; Mr. Yakeleya.

Thank you, Mr. Chair. The Standing Committee on Social Programs met to review Bill 3, An Act to Amend the Legal Service Act, on April 19th and 20th and on May 8th in Yellowknife, on April 23rd in Tuktoyaktuk, and Inuvik and on April 24th in Ulukhaktok; on April 25th in Colville Lake; on April 26th in Behchoko. The committee would like to thank the Minister and all the witnesses who spoke to the bill.

The committee heard from Ms. Katherine R. Peterson, a member of the private bar in Yellowknife. Ms. Peterson was very concerned that the proposed amendment would create a different or a lower standard of conflict of interest for lawyers employed by the legal aid system versus all other practising members of the legal profession. Ms. Peterson referred to the governing rules of the Canadian Bar Association Code of Professional Conduct that had been adopted by the NWT Law Society. She also pointed out that a legal aid program with many community law offices isn’t included in the definition of “law firm” for the purposes of interpreting who, in the above mentioned code of conduct, should apply to.

She felt strongly that Bill 3 does not solve the conflict problem but rather exemplifies a conflict situation from consequences which would otherwise apply under the governing code. Recognizing the complexity of the issue at stake, for example, the access to justice questions and the government’s intent to improve the clinical delivery model, she stated that if these different standards for conflict of interest are to be adopted, then the public and other legal aid counsels must have assurance that appropriate protocols, practice, guidelines and directions are in place that adequately protects the interests of clients and confidentiality of information. Mr. Chair, I would like to turn the report now over to Mr. Lafferty.

Mahsi, Mr. Yakeleya. Mr. Lafferty.

Mahsi, Mr. Chair. Mr. Chair, to continue on with the comments. Mr. Brad Enge, a lawyer in private practice from Yellowknife also made a presentation on April 19th expressing his concerns with the bill. He also pointed to the Professional Code of Conduct of the Canadian Bar Association and stated that the conflict of interest would exist regardless of the proposed amendments to the Legal Services Act.

Mr. Enge, like Ms. Peterson, referred to the definition of the law firm which includes legal aid. Furthermore, Mr. Enge made a reference to abundant case law dealing with the obligation of confidentiality, breach of fiduciary obligations and conflict of interest. Mr. Enge suggested two alternative initiatives that Justice could undertake in order to address existing challenges and pressures. One would be to start a recruitment and retention initiative for legal practitioners. The other would be to retain lawyers from neighbouring jurisdictions to avoid conflict when both parties access legal aid. If the bill is approved, he stated that stringent conditions and rules should be implemented internally to ensure that conduct and liability are respected.

In Tuktoyaktuk, Mr. James Pokiak expressed general concerns as a private citizen about fairness when accessing the legal aid system. He referred to the working poor who are just over the set eligible income limit and, therefore, would not qualify for legal aid nor be able to afford to retain legal counsel themselves.

Committee recognizes the challenges that the government and the Department of Justice are facing in terms of providing access to justice and timely legal services to the clients of the Legal Services Board. We believe that the government must take action to address this public interest matter. Committee also considered that the history of backlogs, existing trends and pressures have led to increased reliance on legal services clinics and staff lawyers. If at all possible, committee would prefer that at least one private practice lawyer would be retained in cases where both parties qualify for legal aid in order to avoid any possibility or appearance of conflict of interest. However, it is clear to committee that the private bar in the NWT presently does not have the capacity to address the needs of the legal aid system and that retaining private bar lawyers from other jurisdictions is not fiscally practical or responsible.

Committee also understands the need to address the concerns brought forward by the witnesses. On May 8, 2007, during the clause-by-clause review, the committee discussed these concerns with the Minister and the director of the Legal Services Board, Ms. Lucy Austin. Committee was satisfied with the assurance for protocols both the Minister and Ms. Austin gave. At this time, Mr. Chair, I’d like to hand over the comments to my colleague, Mr. Pokiak. Mahsi.

Mahsi, Mr. Lafferty. Mr. Pokiak.

Thank you, Mr. Chair, colleagues. Continuing on, the Minister indicated that prior to representing a client, counsel must provide full disclosure of their respective clients from the nature of that employment relationship including supervision by the same director and employment by the Legal Services Board, seek the client’s acknowledgement, legal aid lawyers must come from two separate clinics and represent the two parties in one case. Administration of clinics are physically separated and access to files are separated.

Following the clause-by-clause review, a motion was carried to report Bill 3 to the Assembly as ready for Committee of the Whole. Mr. Chair, this concludes the committee’s general comments on Bill 3. Individual committee members may have questions or comments as we proceed. Thank you, Mr. Chairman.

Thank you very much, Mr. Pokiak. I’d now like to ask the Minister if he could introduce his witness just for the record. Mr. Minister.

Thank you. We’ll have Lucy Austin, who’s the executive director of Legal Services Board, joining us and Mark Aitken, as well. Thank you.

Thank you, Mr. Minister. Sergeant-at-Arms, if you could escort the additional witness in. Thank you.

Welcome, Ms. Austin, Mr. Aitken, and Mr. Minister. I now open the floor to general comments on Bill 3. Ms. Lee.

Thank you, Mr. Chair. As you can see from the report of the committee which was prepared and delivered by the hardworking Social Programs committee…

Hard working committee.

…ever so conscientious, and we’ve done travels on this bill and others. You know, this bill is very interesting and it is trying to address the larger public interest goal of making access to legal services and legal counsel more available to those residents in the NWT who qualify for legal aid. I think everybody is aware of the shortage of lawyers not only here but everywhere in Canada, and we have heard over the years about the serious backlog in family law files and criminal files, which are the other…Probably the criminal don’t have as much of a waiting list as family files but, at any rate, we are very well aware of those backlogs and we understand that this is an effort to address those.

So that’s the public interest question, but there’s a very real issue that we are dealing with here and that is that in the process we don’t want to create a situation where our legal aid lawyers may find themselves in any type of conflict of interest situation, whether by perception or actual, and we take those comments given to us by the private practitioners, lawyers, very seriously and, I believe, we have tried to address those in our committee hearing. It’s also important for us to put that on record here so that we give assurance and comfort to the public that we have addressed them.

So I’d like to ask the Minister a couple of questions that were not addressed in much detail in any of the opening comments. That has to do with the fact that it is my understanding that the scenario being contemplated in this legislation where the legal aid office is presently allowed to, or they do practice, having two lawyers from the legal aid office representing both sides of a file; say, for example, in family law cases. So could I just get confirmation from the Minister or Ms. Austin that, in fact, this has been going on and it’s been an accepted practice and that this legislation is trying to formalize that? Thank you.

Thank you, Ms. Lee. Mr. Minister.

That is correct. I want to make the point that we are talking about separate offices, not the same office. So physically separate offices, same employer; the Member is right. Thank you.

Thank you, Mr. Minister. Ms. Lee.

Thank you, Mr. Chairman. I understand that having separate offices is an important distinction, but the witnesses that appear before us were of the opinion that that may not necessarily address the question of possible conflicts of interest as fully as they would like. So could I ask the Minister, for the record, to elaborate more about why those separate offices are necessary and how that would address this concern and what other procedures are in place to make sure the government addresses any potential conflict of interest question. Thank you.

Thank you, Ms. Lee. Mr. Minister.

Thank you, Mr. Chairman. Yes, the lawyers representing both parties would be from separate offices, the files are separate. Obviously, we need them physically separated. We need to avoid any appearance of conflict of interest. The employer would still be the Legal Services Board or the GNWT, but we do feel it’s important to have that separation, that physical separation. That’s how it currently exists today. We are going even further to make sure that administration is separated from the local clinics as well, so there is a further barrier and no file sharing.

The one other issue I think that is important would be the fact that there is no information flow between the two offices. We do have some protocols; we discussed some protocols and some directives that can be given to lawyers. Obviously, they are governed by their code of conduct. I will go to Ms. Austin to talk about the kinds of protocols that we can potentially develop to further aid us here in avoiding conflicts. Thank you.

Thank you, Mr. Minister. Ms. Austin.

Thank you. Just to clarify in terms of the separation, the electronic systems are completely separate, there is no paper flow between the offices, the files are kept separate and there is no information flow between the offices because lawyers don’t talk to each other about their files in such a way that they are going to breach confidentiality.

Thank you, Ms. Austin. Ms. Lee.

Thank you, Ms. Austin. One of our witnesses, Ms. Peterson, when she appeared before us, she gave us an example. I think in her view, even if you have separate offices in legal services, that is not any different from any law firms and many large law firms and even law firms in Yellowknife where they have offices in Yellowknife, Vancouver and Toronto. There are lots of branch offices here where they are headquartered elsewhere. Even if a lawyer has a file in Yellowknife, a lawyer employed by that same law firm based in Vancouver would not be able to take on the other side of the same file. That would constitute a conflict. The distinction here is that while the law firm where they have branch offices here, they would share the same admin offices and the same files, whereas the legal aid offices here do not. The crucial matter here is the definition of what a law firm is. Some witnesses who came before us in our public hearings felt that the legal aid office as a whole, whether or not the legal aid office is including their branch offices in Inuvik and two offices in Yellowknife, constitute a law firm, and that two lawyers within this law firm should be able to represent two sides on a file.

Some of the suggestions that she made was to do a very strong disclosure when the clients come and they get a lawyer assigned within legal aid here, that they are advised about the fact that a family law file, one spouse gets legal assistance from legal aid. Say if it’s a man, his ex-wife, his current wife or his separated wife, if she gets assigned anther lawyer from the legal aid, that they are advised that they are being represented by legal aid, both, and that there would be some kind of consent or acknowledgement so they are aware that they are being represented by the same legal aid service. Can I ask the Minister what steps in that regard they are taking to make sure that people who come to the legal aid office and if both parties are represented by legal aid, that they will be made aware of that and address that possible conflict of interest? Thank you.

Thank you, Ms. Lee. Mr. Minister.

Mr. Chairman, a number of points were made by the Member. Let me first start by saying we are working to try to get more members to the private bar who would be interested in doing this type of legal aid work as it relates to civil matters. We are working cooperatively with the Law Society on recruitment and retention initiatives. We have been doing some joint work at ventures in the South to try to recruit more members into the bar. I think that is the answer. Ideally, we would like to not have this issue. Other larger jurisdictions have the luxury, where there are more members doing this kind of work, to insist that a staff lawyer from the government only represent one party. We would like to be able to insist on that in future. So we would need to continue to work. But in the interim, if we were to stipulate that we can only represent one party in a case, it would result in material delays to getting to court and seeing representation. That is our first aim, to see that all parties have competent and timely legal help, legal advice, legal representation.

So we would agree that the issue of disclosure is important and we are intending to make sure that both parties understand the nature of the relationship, the employment relationship. In fact, including that they are supervised by the same director and the employer is the Legal Services Board. So we would agree that it makes sense to provide that information, provide full disclosure and also go a step further in ensuring that both parties acknowledge that they understand this relationship, this employment relationship.

We do have a concern about seeking client consent. Members obviously know that any party can decide that they don’t feel comfortable with this and they can walk away and go and find somebody in the private bar if they so choose for themselves. Our concern is having them, we think it would be potentially right for abuse, having them able to say they won’t give their consent and forcing the other party to go and look for a lawyer in the private bar. There is the potential for that abuse and it would cause significant delays. So we agree with the disclosure. We agree that there should be some acknowledgement provision built in. We have a concern with the consent. Thank you.

Thank you, Mr. Minister. Are there any further general comments on Bill 3? Mr. Yakeleya.

Thank you. A short comment, Mr. Chair. I certainly want to encourage this strong protocol, folks, in terms of implementing this legislation here and the situation we, in the Northwest Territories, have to deal with in terms of the shortage of lawyers and the court issue and making this legislation sensitive to people in the smaller communities to deal with and having a strong procedure in place that would ensure that they are getting the services they require to handle sensitive and difficult issues in the court proceedings.

I just want to urge the Minister, Mr. Chairman. I also note the Minister’s comments in the interim. In an ideal world, we want to see that this doesn’t have to be the case here. However, because of the situation we are in, our finances, that’s the challenge we have in our communities. I guess that’s what happens when you live in a shoe. You have to deal with what you have to deal with. I hope that some day we will take a look at this legislation again and deal with it in that way. A witness came before us and spoke about the issues of conflict of interest and how we deal with that. So I am going to support the bill on this. Those are my comments. Thank you.

Thank you, Mr. Yakeleya. I didn’t hear a question there. I am going to move to the next general comment. Mr. Braden.

Thank you, Mr. Chairman. This was an interesting process for me. I am always learning around here and this one gave me some insights into the legal community and the significance of conflict and how it’s managed and assessed. I speak in favour of the amendment. But to this aspect that was brought to our attention, that is the providers of this service to the public of the NWT, we must also be mindful of this very significant principle of providing legal services. While we are cognizant of potential conflicts that will occur or have occurred or are occurring and will, that we can, with good administration and good practice and good protocol, avoid the true consequences of a conflict inadvertent or otherwise. In fact, if I recall, the witnesses that appeared before committee, while they pointed out the legal services administration, they also indicated that with good practise, they were supportive of the bill going through. So that is what gives me the confidence to endorse this amendment and the certainties that we were given by the Minister and his staff that, indeed, we can protect the general public and clients from the consequences from the bad side of conflict. Thank you, Mr. Chairman.

Thank you for your comments, Mr. Braden. Next on the list I have Ms. Lee.

Thank you, Mr. Chairman. Just a short follow-up question. We learned during our public hearings, Mr. Chairman, from the Minister that the NWT Law Society was consulted on this legislation and that the Minister received consent or approval from the Law Society. So could I ask the Minister what form of public consultation has taken place with the Law Society? Thank you.

Thank you, Ms. Lee. Mr. Minister.

Mr. Chairman, I am not sure how the Law Society handled the consultation with their own membership. We brought it to their attention and presumably they took it to their membership. Thank you.

Thank you, Mr. Minister. Anything further, Ms. Lee?

Maybe our Law Clerk can help me with this. It was committee’s understanding that the Law Society was formally contacted. I think it’s important that they have a say in this. It was our understanding from somebody that this was communicated to them and they had no objection to this amendment. Thank you.

Thank you, Ms. Lee. Mr. Minister.

Sorry; just to be clear, we contacted the Law Society. They indicated they were in support of this. I am not sure what internal consultation they would have done, but they did indicate they were in support of this.

Thank you, Mr. Minister. Anything further, Ms. Lee? Thank you. Any further general comments on Bill 3?

No.

Does committee agree we go clause by clause?

Agreed.

Thank you, committee. We are on Bill 3, An Act to Amend the Legal Services Act. Page 1, clause 1.

Agreed.

Clause 2.