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Lawyers involved in lobbying are used to playing up their knowledge of who is influential, but now they also have to figure out who is a DPOH.
Perhaps the biggest change stemming from this summer's transition from the Lobbyists Registration Act to the much more far-reaching federal Lobbying Act is a new category of senior public officials called designated public office holders, or DPOHs.
DPOHs are key government decision makers, and the onus is on individuals who are lobbying to determine exactly who in government falls under this category. Under the new act, lobbyists must report detailed information about a range of communications with DPOHs. The definition, however, is far from clear-cut.
“It's difficult to ascertain who is a DPOH,” says Dawn Jetten, a partner in the financial services group of Blake Cassels & Graydon LLP in Toronto. And although the Office of the Registrar of Lobbyists has issued a notice to clarify that the DPOH designation applies to, among others, ministers, ministers of state and ministerial staff, deputy ministers, associate deputy ministers and chief executive officers of departments and agencies and officials in those organizations, it does not state specifically all those who qualify as a DPOH.
Rather, it mandates that other than the specific positions and titles named in the act, a person should be considered a DPOH by virtue of occupying “a position of comparable rank.” Too vague? Well, it could get even tougher to gauge because “more positions can be designated by the Governor in Council [cabinet].”
And it is precisely that, says Ms. Jetten, “that is going to make it difficult for people to ensure they're onside when you don't know what puts you offside.”
Brought into force on July 2 and announced by Treasury Board president Vic Toews, the act sets new rules for lobbyists on accountability and transparency, along with increased penalties for non-compliance. It covers in-house lobbyists who represent businesses or organizations as well as consultant lobbyists, such as lawyers in private practice.
The key changes include the creation of the new position of Commissioner of Lobbying (to replace the former Registrar of Lobbyists) which has powers to enforce the act and the Lobbyists' Code of Conduct.
The period during which potential summary conviction infractions may be investigated and prosecuted has also been extended to 10 years from two. The penalties for lobbyists found guilty of breaching the requirements of the act have doubled to a significant $50,000 fine and/or six months imprisonment on summary conviction and $200,000 and/or two years imprisonment on indictment. In addition, clients of consultant lobbyists are prohibited from paying success fees and consultant lobbyists are prohibited from receiving them.
Lobbyists must now report any arranged verbal conversations (but not e-mail, letter and fax communications) with DPOHs and identify the name of the DPOH, the title of the DPOH and the organization and branch for which they work, the date of the conversation and the subject discussed. This information must be submitted in the form of a monthly return to be filed on the website of the Office of the Commissioner of Lobbying by the 15th day of each month and will be available to the public . Friday is the deadline for the first filing under the new regime.
How does this translate into work for lawyers inside law firms? More paperwork, for one. And since lawyers in private practice are considered consultant lobbyists, the onus for compliance falls on the individual. “Lawyers have to be aware of the extent of lobbying they're doing on behalf of clients,” says Sean Morley, a partner in the business law group of the Toronto office of Fasken Martineau DuMoulin LLP.
“Law firms will have to recognize that the reports they're going to file are going to be publicly available,” he adds.
Tanya Baytor, an associate in the intellectual property group at Torys LLP in Toronto, says this means firms will have to be aware of who may be reading posted reports and whether or not they can gain strategic insight into confidential activities with regard to clients.
“The requirement to file monthly returns that disclose communications with DPOHs and the details of these, could allow competitors to gain knowledge on a company's lobbying activities and potentially allow them to gain insight into a company's lobbying strategy.”
Under the new regime, the Commissioner of Lobbying has the power to verify the content of the returns, so accuracy is paramount. “The Act creates a new level of disclosure on an ongoing basis and the monitoring and investigating powers of that disclosure have been heightened,” says Rob Malcolmson, the head of the communications law group and member of the competition law group at Goodmans LLP in Toronto.
“Time will tell how diligent the Commissioner is but they certainly will have sweeping powers.” Sweeping powers or not, the makeup of law firms across the country is poised to change as the act mandates extensive “cooling off” periods – up to five years in the instance of elected officials – during which they are effectively prohibited from trading on personal relationships.
The act, says Colin MacDonald, partner with the Calgary office of Borden Ladner Gervais LLP, will “definitely cool the hiring of politicians and senior public officials. I think law firms in recruiting former senior public officials are going to wonder exactly how they are going to use these people, keeping in mind they won't be able to engage in lobbying activities.”
Still, Gowling Lafleur Henderson LLP made front-page news in its temporary hiring of former chief of defence staff General Rick Hillier. There is no need to worry about DPOHs status in this case, stresses chairman and chief executive officer Scott Jolliffe. He says Mr. Hillier has been hired to provide leadership training, governance and public policy advice, but will not be lobbying.
Jennifer Allen is the Managing Editor of Lexpert® magazine. A version of this story ran on lexpert.ca/globe
