Quebec’s two law societies have concurrently launched an investigation to determine whether agencies, departments and ministries of the Quebec government are employing and hiring civil servants who are engaged in the illegal practice of the legal profession, following grievances lodged by an organization representing provincial government lawyers.
The Association des juristes de l’État (AJE), a union representing nearly 1,000 lawyers, notaries, and other legal professionals, submitted 96 official complaints over the past few months before the Barreau du Québec and the Chambre de Notaires du Québec after analyzing more than 1,600 job descriptions of civil servants, alleging that civil servants who are not on the Roll are providing legal advice and consultations on legal matters. Whoever practices the legal profession without being entered on the Roll is guilty of an offence and is liable to the penalties provided in s. 188 of the Professional Code, which includes a fine of not less than $1,500 nor more than $20,000 or, in the case of a legal person, of not less than $3,000 nor more than $40,000.
According to the AJE, the culprits consist of no less than 15 ministries including the Ministry of Revenue, the Ministry of Finance, the Ministry of Natural Resources as well as agencies and departments like the workers’ compensation board, pension regulator Régie des rentes du Québec, the vehicle insurance department, and the Treasury Council.
“I don’t want to obtain a condemnation at any cost nor do I want to target civil servants,” remarked Marc Lajoie, AJE’s president, who met with officials of both law societies at the end of July to discuss the situation. “I don’t want find ourselves immersed in trench warfare, and have to prove that there was illegal practice of the profession in each case. I want to be able solve the problem (through negotiations) and have the government recognize that there are tasks that should be done only by lawyers and notaries who are members in good standing of the law societies — for the protection of the public, to ensure the security of transactions made by the government and for ethical reasons.”
The Chambre des Notaires, though it has launched an inquiry into the alleged transgressions, has already taken the first step towards seeking a political and administrative resolution. In early July, officials of the notary law society met with Michel Bouchard, the deputy minister of the Quebec Ministry of Justice, to “express their concerns,” said Michel Vermette, the Chambre’s assistant executive director, legal services. Chambre officials also met recently with the new batonnier of the Barreau to discuss “this situation which troubles us as much as Mr. Lajoie,” added Vermette.
“Quite honestly it is out of the question to go after the Quebec government for illegal practice of the profession,” said Vermette while adding that the Chambre is nevertheless diligently examining each and every complaint lodged by Lajoie on behalf of the AJE. “We are working with the Barreau on this, and we want to raise their awareness through other ways. We have decided to channel our efforts into putting administrative and political pressure on government authorities.”
Gaston Gauthier, who is responsible for overseeing investigations on the illegal practice of the profession for the Barreau, would only confirm that he is in the midst of “analyzing the situations that alleges the illegal exercise of the profession.” Gauthier said he was bound by rules of confidentiality.
Lajoie suspects that both the Barreau and the Chambre want to tread lightly because they fear that the Quebec government may pass legislation that would amend An Act respecting the Barreau du Québec and the Notaries Act to exclude Quebec civil servants from the application of the two pieces of legislation that govern the legal profession. “That frightens them,” said Gauthier. With good reason. The Quebec government has already done it. The Ministry of Employment and Social Solidarity is no longer obliged to use a lawyer when it pleads or defends a case before the Administrative Tribunal of Québec. Under s. 102 of An Act respecting administrative justice, the Minister of Employment may be represented by the person of his choice in matters of income security or support or social aid and allowances.
“The general principle is that the government must be represented by lawyers before the courts or tribunals but they changed the law in cases of income security so that the Ministry of Employment and Social Solidarity could be represented by civil servants who are not lawyers,” explained Lajoie.
The provincial lawyers’ union faces another hurdle. The Barreau and the Chambre are still smarting over their failure to obtain a declaratory judgment and an injunction against the provincial tax authority after the Quebec Court of Appeal ruled last May in Barreau du Québec c. Québec (Procureur général), 2010 QCCA 1051 that civil servants who analyze, prepare and render decisions by interpreting and applying legislation are not illegally exercising the legal profession but rather acting on behalf of ministers.
In a ruling that highlights the difference between enforcing laws by an administrative authority and performing legal analysis, the Court of Appeal found that civil servants who examine, analyze and make decisions on objections filed by taxpayers contesting notice of assessments or notice of determination are “administrative decision-makers” who apply facts to a case by following ministerial guidelines and interpretation bulletins composed by jurists.
“It is important that we examine the complaints lodged by the AJE in light of the recent ruling by the Quebec Court of Appeal,” said Vermette. “We will therefore have to examine the job descriptions of each of the jobs that allegedly illegally exercise the profession and compare it with the job descriptions of the opposition agents to determine whether there are similarities.”
But Lajoie argues that none of the complaints he lodged before the Barreau and the Chambre involve “administrative decision-makers.”
“There is a difference between applying the law and interpreting it,” said Lajoie. “The complaints that were lodged do not target people who apply the law but those who are asked to interpret it.”
The Quebec Ministry of Justice declined to comment, since the matter is now the subject of an investigation by the Barreau and the Chambre.
Originally published in The Lawyers Weekly.