Legalities and Calamities: An Inside Look at Doing Business With Government

Nathan: Hi, I’m Nathan Kanter.

Jordan: And I’m Jordan Virtue, and welcome to this episode of Blakes Sound Business.

Nathan: Jordan, we often learn in the media about companies that are impacted by government rules relating to lobbying, codes of conduct and much more. They can even face investigations or inquiries if they fail to comply and are inherently at higher risk of defamation.

Jordan: That’s true, Nathan. It’s important for businesses to be prepared and have a well-thought-out strategy to avoid a crisis.

Nathan: Absolutely. And Blakes lawyers Alexis Levine and Iris Fischer have years of experience advising clients on public-sector crisis and compliance matters. Today, they will take us through their day-to-day practices helping clients manage crisis situations and will share a few time-tested tips for doing business with government.

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Jordan: Alexis, what are some of the ways you assist clients with respect to public-sector crisis and compliance?

Alexis: So, our group really handles items that fall into three buckets:

The first bucket is what we call solicitor-side compliance. I’m about to call government, and I’m not really sure what rules I’m supposed to follow. What are the lobbying rules, what are the conflict-of-interest rules, what are the rules of how I can deal with government, access to information, etc.? And we advise folks on the front end as to how to navigate those kinds of questions.

The second bucket is what I’ll call barrister-side crisis. I have been dealing with the executive or legislative branch of government. I’ve got a call or a letter from a regulator or a committee, or there’s a law that I’m not sure about, and I need to navigate this crisis or investigation that is happening. And we pull together the teams and work through those investigations or proceedings. That might be a commission of inquiry, a lobbying commissioner or an ethics commissioner, or it might be something more discrete.

And then finally, we deal with what we call solicitor-side crisis. A government in a jurisdiction in Canada has made a decision that is very serious for my business or for my industry. This is not just simple lobbying. This is: we need a complex, sophisticated, legal, government relations and PR strategy that is integrated to solve this problem that is going to have a very serious impact on my business. How do we navigate that? And our group’s role is to help our clients navigate through those kinds of issues.

Nathan: Iris, I know a lot of what you do in this area is highly confidential. Can you give examples of the type of work you’re involved with?

Iris: Nathan, you’re right. Our involvement is often very discrete. So, I’m just going to speak at a high level about the kinds of work that we do.

First off, I want to say our team is fully multidisciplinary with regulatory and compliance specialists working alongside people like me who specialize in investigations, defamation, litigation and crisis response. As you heard from Alexis, we advise clients on legal issues that arise when interacting with government as a matter of course. This can include everything from lobbying, compliance and registration, responding to access to information requests, and compliance with procurement laws.

At the same time, we regularly deal with high-profile and high-stakes matters. For instance, responding to investigations by ethics commissioners, lobbying commissioners, election finance commissioners at all levels of government. We’ve acted for former and current senior public-office holders as well as leading companies.

We also do things like addressing parliamentary committee studies for clients who are asked to appear or are the focus of those studies. The rules of the parliamentary committee are very different from the rules in a legal process like a court hearing or even a regulatory investigation.

We also respond to defamation or reputation issues that come up in a really broad array of public matters.

These are just some examples, but there’s really many more. All of them are intense, and they tend to be very bet-the-farm for the organization that’s on the receiving end.

Jordan: Iris and Alexis, what happens when a client is in a crisis situation? How do you work with them to get the best possible result? Alexis, we’ll start with you.

Alexis: So, every crisis is different, but there are some things that are pretty common rules of thumb for us. One of those is to get rid of the silos. So, we typically like to have a regular touchpoint with the decision-makers, with government relations advisors that would include PR advisors and, obviously, legal advisors, and make some decisions about what’s going forward.

The other piece of that is we want to integrate the other advice that’s coming through with the legal advice. We do that for privilege reasons. It’s typically Blakes that will engage the government relations and PR advisors. We work with them to develop what is an integrated crisis management strategy. That crisis management strategy will have government relations aspects, probably. It will probably have public relations aspects. But it’s going to have many legal aspects.

We’ll also call on our securities laws experts to make sure that those disclosure considerations have been addressed. If it’s going to affect employees, we’ll talk to our labour and employment team. If it’s going to involve conversations with competitors, we’re going to make sure that we’re talking to our competition team. If we’re talking about something that’s going to affect the business, we will talk to the banking lawyers.

All of these aspects are things that sometimes get missed with a communications-plan-focused crisis management.

Jordan: Iris, what’s your approach?

Iris: Jordan, after we establish the framework that Alexis laid out, we think about, “What do we need to do to figure out the facts?” We often will leverage our internal investigations practice to collect documents, look into them. We don’t look at everyone, but we use our team and our data analytics to identify the ones that really get to the heart of the issue. We often talk to employees or other stakeholders.

Sometimes these issues can go back years, and it’s important to figure out the facts so that we can help the client with the best possible strategy. Often, we’re putting on our creative litigation hats. Is there government conduct that is reviewable? Is there some kind of creative constitutional case?

And finally, we look at it from a media lens as well. We have a leading media practice here at Blakes. So, we look at an issue not just from a legal perspective, but also from the perspective of people who have spent time in the newsroom. And we can look at it, you know, from that viewpoint as well, working with PR specialists and others so that we can really give clients that 360 view of the issue and the strategy.

Nathan: The final question goes to both of you as well. Alexis, what are some key tips for doing business with government?

Alexis: I think the thing that people need to remember about doing business with government is how different it is from dealing with the private sector. There’s a tendency to think, well, I just pick up the phone and call this private-sector equivalent of the government. I can just call my customer. Why can’t I just do that here? I can go out for lunch with my private-sector customer. I don’t need to worry about security clearances with my private-sector customer. And when you’re dealing with government, there are a host of rules related to lobbying, related to procurement, related to security clearances and other matters that Iris will speak to that you need to think about and be careful about.

Lobbying is a big one. There are lobbying laws in Canada that govern a wide range of communications with government. And if you’re interacting with government, one of the first questions you should be asking yourself is do I need to register this communication with government? Does it need to be disclosed in the public registry? And if you don’t know the answer to that, the answer is often going to be “yes,” and you should talk to one of our compliance folks to make sure that we get you tooled up for that.

Nathan: Iris, what are your thoughts on this?

Iris: Thanks, Nathan. I’m just going to add a couple of examples to what Alexis laid out.

One of them is that it’s extra important with government to be careful about emails and documents. In general, assume they are disclosable. Access-to-information legislation casts a wide net, especially when contracts with government are at issue. But an organization’s emails, even, with government can become public in a host of ways.

Another item that is very different when government is involved is gifting and hospitality. Nominal items — a mug, a coffee — are okay, but there are restrictions both under Canadian criminal law and in various codes of conduct that limit what you can do with a public official.

So, definitely an area to get advice on, including thinking about whether you should have an internal policy or a section of your internal code of conduct that relates to this. And that’s not something that we pull off the shelf. We work with clients to prepare a policy that is right-sized for your organization, which also means not making it, you know, unnecessarily complex.

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Nathan: Alexis and Iris, thank you for joining us today. Our podcast followers will no doubt benefit from your knowledge on this topic.

Jordan: Indeed. Listeners, for more information on this topic and our podcast, please visit blakes.com.

Nathan: Until next time, stay well.

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