LAWYERS, LOBBYING, AND THE ALBERTA LOBBYISTS ACT
As this is written, it is expected that the Lobbyists Act, SA 2007, Cap. L-20.5, and
Regulations thereunder will be proclaimed in force in the Fall of 2009. On the
date that it is proclaimed in force, the on-line Alberta Lobbyists Registry will also
be activated to enable lobbyists to register as required by the Act.
Lawyers in Alberta need to familiarize themselves with this legislation because:
1. It may be that they will be requested to provide advice to a client as to
whether the client is a lobbyist within the meaning of the Act, and what the
implications of registering (or not) may be; and
2. It may be that they will from time to time be engaged in lobbying activities
in relation to an engagement – even if the primary purpose of the
engagement is not specifically one of lobbying.
The Lobbyists Act is a complex piece of legislation; there are details concerning
what kinds of activities comprise “lobbying” in Alberta and need to be registered,
what kinds of lobbyists are required to register, what categorizations of persons
and offices are the recipients of lobbying activities and what information must be
disclosed in the Registry with respect to them, who is exempt from registration,
and the circumstances under which some may, or may not, be exempt.
It is important to note that lobbying is a legitimate activity in a free and
democratic society; indeed, it is a vital and important activity as it provides a
means whereby citizens, individual and corporate, may communicate information
to decision-makers about legislation or policy, and its effect or potential effect on
them.
Lawyers are uniquely positioned, because of their familiarity with legislation and,
in varying degrees, the legislative and policy development processes, to advise
their clients about lobbying or indeed, to accept engagement as lobbyists. In fact,
in the United States and the European Union, the majority of professional
lobbyists are lawyers and law firms.
But lawyers who do engage in lobbying activities must be aware that in doing so,
they are required to register in accordance with the Act’s requirements, and that
will include providing the name of their client, and some basic information
pertaining to the terms of the engagement insofar as it relates to lobbying
activities.
In some jurisdictions, the EU for example, there has been considerable debate
around the issue of whether “forcing” lawyers to disclose client specific
information on a lobbyist registry in essence, amounts to forcing them breach
client confidentiality, in contravention of the applicable Rules of their Law Society.
Indeed, this is an issue that continues to be somewhat controversial in other
Canadian jurisdictions that have had Lobbying Registry legislation in effect since
the late 80s.
Whether a line can be drawn between lawyering and lobbying, and whether even
if it can, that makes any difference with respect to the lawyer’s ethical obligation
of client confidentiality is at the heart of these debates in other jurisdictions. In
Alberta, the Lobbyists Act requires the registration of lobbying activities (subject
to some exemptions) and, by the Code of Conduct of the Law Society of Alberta,
Chapter 7 (Confidentiality), Rule 8.(b)
A lawyer must disclose confidential information when required to do
so by law
Ergo, when a lawyer, or law firm, engages in lobbying activity in Alberta, and the
exemptions contained in the Act do not apply, then that activity must be
registered, and the information required must be disclosed. Failure to register, or
to fully disclose the required information, can lead to an investigation by the
Lobbyists Registrar and, in the event the Registrar determines there has been a
breach of the Act in this regard, the Registrar can impose an administrative
penalty of up to $25,000.00 for a first offence.
For more information, go the Lobbyists Act Registry site at
www.lobbyistsact.ab.ca or call the Office of the Lobbyist Registry at 780-6443879.
Bradley V. Odsen, Q.C.
Lobbyists Act Registrar &
General Counsel to the
Ethics Commissioner
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