Ontario Bar Association Crossing the Line
THE MEDIA HAS RECENTLY BEEN FOCUSED on the issue of immigration ethics, with the attention on consultants, ghost consultants and non-governance within the Canadian Society of Immigration Consultants (“CSIC”). Not just Canada, but the entire world is indignant over the flagrant abuses and overt robbery of countless unsuspecting victims seeking immigration to Canada. I am referring, of course, to the many naive would-be immigrants who are swindled by “consultants” offering empty promises of immigration status. Some of these supposed consultants take large retainers (sometimes as much as $75,000.00, or more) and provide absolutely no legal service, but rather ‘pocket’ the funds and move on to another victim. Increased prosecution of unqualified representatives and higher standards of knowledge and ethics for ‘qualified’ representatives is desperately required.
It is my opinion that the government created more problems than it resolved when it spent millions of tax dollars creating an organization of immigration representatives which houses sub-standard disciplinary policies for a sub-standard group of representatives, and which we now refer to as CSIC. Many CSIC consultants do not have any formal legal training. They are now entrusted with representing clients in matters involving consideration of constitutional law and the Charter of Rights and Freedoms, international human-rights conventions, complex immigration statutory and regulatory provisions, and aspects of family, criminal and business law, inter alia. They appear in various immigration tribunals and appellate bodies, representing clients on matters involving human rights, civil liberties and the rule of law.
According to the 2009 report of the United Nations Development Program, Canada is a model for the rest of the world of how to accept new immigrants and migrant workers1.
Certainly, Canada’s highly complex and sophisticated immigration system, which is embedded with a plethora of specific immigration policies addressing issues from in-vitro fertilization to excessive demand in medical inadmissibility cases, has accorded Canada with the singular reputation as a world leader in the development of humane and rational immigration policy2. Immigration law in Canada is one of the most comprehensive, significant and far-reaching areas of federal and provincial law. It is an elaborate labyrinth of law, regulation, case law, process, procedure and appellate and judicial review avenues.
The media has, overall, accurately publicized the wide assortment of legal, criminal and jurisdictional matters created by ghost and under-regulated CSIC consultants. The Minister has judicially decided to address matters nationally, albeit tardily. Therefore, I will not dwell on this issue, although, admittedly, I have been distressed about this tragedy for many years and do not, in any way, seek to minimize it. In my almost 20 years of immigration practice, I have witnessed heartbreaking human hardship resulting from the various immigration problems identified by the Minister in his attempt to criminalize and/or regulate consultants.
However, for the purposes of this commentary, I have decided to focus on my most recent peeve, which is an entirely different aspect of ethics that is often overlooked. I have previously written about this issue on several occasions, but I do not believe that the gravitas of the problem has appropriately permeated the psyche of our legal profession3. In my previous articles on the subject, I have stated that there is a flagrant abuse of the rules of professional conduct concerning conflicts of interest in immigration law which, shockingly, is not conducted by unlearned consultants, but rather by some of Canada’s top lawyers. It is a scandal that dwells in some of the largest and most successful law firms in Canada.
Representation on work permit applications invariably involves dual representation. In order for a lawyer to assist an employer in obtaining a work permit, the foreign worker must sign a declaration indicating that he appoints the employer’s lawyer to represent him on his case. The government will not communicate with the employer’s chosen counsel if that declaration is not signed by the employee/foreign worker. Indeed, there is little a lawyer can do to avoid a representational conflict. The difficulty arises when a direct conflict emerges which is adverse to the more vulnerable foreign worker’s interests. What happens when the employer is downsizing and the firm represents the employer on terminations? Or when the employer offers an ownership position to the foreign worker and the relationship goes sour? Or when the tax advice provided to the employer conflicts with the tax advice sought by the foreign worker/part company owner?
The Canadian Bar Association has published clear conflict-of-interest guidelines, most of which are premised on the Supreme Court of Canada’s conflicts-of-interest trilogy4 and on various provincial law society rules of professional conduct. Specifically, joint representation is allowed, subject to firm pre-set retainer conditions which address the following points:
- the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
- the representation is not prohibited by law;
- the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
- each affected client gives informed consent, confirmed in writing
The CBA guidelines allow lawyers to specify that they will continue to represent one client if a conflict develops; however, the guidelines clarify that if the conflict is directly against one of the joint clients on a related matter, particularly in the case of unequal bargaining power between the parties, the lawyer must withdraw from representing both parties if the weaker party, whose interests are directly affected, does not consent, after obtaining independent legal advice.
It is surprising how often managing partners or senior lawyers naively ‘throw a bone’ to a new associate, eager to prove her worth, and say: “Can you figure out this immigration issue for our client?” without fully appreciating the complexities involved in immigration law and procedure. Without competent immigration counsel supervising her work, a client’s best interests are not fully being represented. This all-too-common mistake also potentially places the law firm in a position of a conflict of interest.
Notwithstanding the foregoing, respected and competent immigration lawyers are employed at some of Canada’s large or multidisciplinary law firms. However, the manner in which these law firms ethically handle employee terminations of the foreign workers they have represented is a mystery to me. I cannot imagine providing independent legal advice to such a foreign worker, stating that she should consent to her law firm acting against her on her termination. Given the uniquely personal legal service that most foreign workers require, their vulnerable position, the direct relation to the earlier work performed by the lawyer or his law firm, and the discrepancy in the initial bargaining power between the employer and the employee, I believe that I would be negligent if I gave such advice6. Without such employee consent, a clear conflict of interest would continue to exist for the law firm, which would mean that the law firm would be required to withdraw from representing the employer.
The above example is meant to illustrate the manner in which a conflict can develop by practicing immigration law in a multidisciplinary practice. Although, managing some immigration work within a multidisciplinary practice may be possible, the risk of having to withdraw from representing employers and other corporate clients may dissuade partners from continuing to represent certain types of clients in the field of immigration law.