Ethical Issues for Counsel to Administrative Decision Makers

October 30, 2013 10:45am

Sean Gaudet
Senior Counsel
Justice Canada, Public Law Section

Malliha Wilson
Assistant Deputy Attorney General, Legal Services Division
Ministry of the Attorney General

  • Advising on reasons: What are the limits?
  • Issues for outside counsel to tribunals
  • Who is the client of tribunal counsel?
    • Is it an individual member, the tribunal chair, or the tribunal as an institution?
    • Does solicitor-client privilege exist between tribunal counsel and a tribunal member seeking advice from that counsel? Does the answer depend on the statutory framework?
    • Advising the board when there is a disagreement among tribunal members
  • What is the proper role of tribunal counsel as a source of information for performance assessment of a tribunal member?
  • Reconciling sometimes conflicting duties
    • The rules of professional conduct, including solicitor-client privilege
    • Duty of loyalty to the employer
    • Duty to the public as a public servant: defining the public interest
    • The sometimes difficult task of “speaking truth to power”