Policies, Guidelines and Reference Documents

Policy on Contracting for Legal Services and Legal Agent Appointment

1. CONTEXT

It is the general policy of the Department of Justice that in-house counsel handle legal work within the Department’s statutory mandateFootnote 1.On occasion, however, the Department of Justice also relies on private sector law firms and law practitioners, appointed as Legal Agents, to assist with the delivery of legal services.Legal Agents provide legal services under contract with the Department of Justice.

This policyFootnote 2 is issued pursuant to the Department of Justice ActFootnote 3 and the Government Contracts RegulationsFootnote 4 which stipulate that contracts for legal services may be entered into only by or under the authority of the Minister of JusticeFootnote 5. Contracts for the performance of legal services entered into, by, or under the authority of the Minister of Justice are otherwise not subject to the requirements of the Government Contracts Regulations or the Treasury Board Contracting Policy.

2. POLICY OBJECTIVE

The purpose of this policy is to establish the principles and requirements associated with contracting for legal services by the Government of Canada so that such contracting is conducted in a diligent and accountable manner.

3. POLICY STATMENT

Contracting for legal services is intended to respect the spirit of the Treasury Board Contracting Policy while considering the practical realities of the legal system and the environment in which the Department of Justice and the Government operate. Sourcing and selection of private sector law firms and law practitioners must respect the principles and requirements enunciated in this policy while considering the specifics and circumstances of the work to be outsourced.This balance is intended to ensure that the Department of Justice is able to contract for legal services with knowledgeable, skilled and motivated private sector law firms and law practitioners in a manner that effectively and efficiently meets operational requirements in a diligent and accountable manner.In order to demonstrate sound stewardship of public resources and value for money, contracting for legal services shall be conducted in a manner that:

  • is open, accessible, fair and transparent;
  • leverages the benefits of competition
  • respects the need for flexibility to effectively respond to program and operational requirements.

4. APPLICATION

This policy applies to all contracts for legal servicesFootnote 6 with private sector law firmsand law practitionersFootnote 7 involving departments and agencies that are subject to the Government Contracts RegulationsFootnote 8.

This policy does not affect the application of the Treasury Board Policy on the Indemnification of and Legal Assistance for Crown Servants.

5. POLICY REQUIREMENTS

5.1 Consulting with DOJ

While it is recognized that lawyers may be engaged for purposes other than the performance of legal services, section 4.1.10 of the Treasury Board Contracting Policy requires departments and agencies to consult the Department of Justice in every case where a contract for services is contemplated with a practicing member of the Bar.Nocontracting authority may enter into a contract for services with a practicing member of the Bar without first having obtained the approval of the Department of Justice, or having been advised by the Department of Justice that the contract does not involve legalservices.

5.2 Deciding to Outsource

The Department of Justice, in consultation with the involved client department or agency that bears responsibility for payment of associated costs, decides whether legal work should be outsourced.The decision to outsource must be duly justified and approved by the responsible Justice official and should be made only after consideration of the following:

  • capacity within the Department of Justice Canada
  • timelines and level of urgency
  • level and impact of risk assessment
  • experience and expertise requirements
  • Official Languages Act requirements
  • infrastructure requirements
  • geographic considerations
  • security considerations
  • conflict of interest considerations
  • public interest considerations; and
  • unique considerations associated with the work

5.3 Sourcing and Selection

The Department of Justice periodically publishes its intent to establish a list of private sector law firms and law practitioners interested in providing legal services to the Government of Canada.The onus is on private sector law firms and law practitioners to identify and register their interest, based on their areas of expertise and geographic location.For areas of expertise or geographic locations where there is sufficient recurring demand, the Department of Justice pre-qualifiesFootnote 9, on a periodic basis, registered law firms and law practitioners who meet specific requirements.As the need arises, the Department of Justice selects from the pre-qualified listthe most appropriate law firm or law practitioner to be recommended for appointment by the Minister of Justice and Attorney General of Canada in light of the specifics of the legal work to be outsourced and based on the following criteria:

  • timelines and level of urgency of the work
  • availability of the firms or practitioners and capacity to provide adequate resources and infrastructure
  • suitability of the firms or practitioner’s profile, experience and expertise relative to the specifics of the work
  • geographic considerations
  • security considerations
  • conflict of interest considerations
  • financial considerations
  • requirements under the Official Languages Act
  • public interest considerations
  • unique considerations associated with the work

Where a requirement for work arises in an area of expertise or geographic location for which there is no pre-qualified list or when a situation arises where a pre-qualified list exists but no pre-qualified law firm or law practitioner is available to accept an appointment at that particular time, sourcing is determined on a case-by-case basis pursuant to a risk-based analysis that considers the above criteria. To the greatest extent feasible, selection is made on a competitive basis drawing from the general list of firms and practitioners who have registered their interest with the Department of Justice.Upon completion of a selection process, the Department of Justice Canada recommends the appointment of the selected law firm or law practitioner to the Minister of Justice and Attorney General of Canada who maintains final approval authority.

5.4 Reference to the Minister of Justice and Attorney General of Canada

There is a narrow band of cases that are of such importance or sensitivity that the Minister of Justice and Attorney General’s confidence and trust in the law firm or law practitioner are the overriding consideration for selection and as such take precedence over the process described herein for sourcing and selecting a law firm or law practitioner.These cases are evaluated by senior departmental officials before being referred to the Minister of Justice and Attorney General of Canada for selection and approval of the agent appointment directly by the Minister.

5.5 Typical Referrals

The following list, while not exhaustive, provides examples of the circumstances where referral to the Minister could be considered:

  • in cases that raise issues of national security and broad public safety or where it is pressing to maintain public confidence;
  • in cases where national unity, international relations, or national or territorial sovereignty issues are at stake; or
  • In cases where a Minister of the Crown identifies a pressing need for a second opinion from a person of note, be it a leading scholar, recognized leader or expert at the Bar, or former judge.

5.6 Appointment and Contracting

Once the appointment is approved, the authority to formalize the appointment and enter into a contract with the approved selected firm or practitioner is exercised by Department of Justice officials on behalf of the Minister of Justice and Attorney General of Canada according to the approved delegated financial authorities.A Legal Agent appointment is at the pleasure of the Attorney General of Canada and may be terminated at any time without prior notice

5.7 Instructing, Monitoring and Taxation of Accounts

Upon appointment, the Department of Justice instructs the legal agent and monitors the work performance in light of the requirements of the contract.The Department of Justice must examine and tax Legal Agent accounts before the client department or agency that required the services proceeds with paymentFootnote 10.

6. ACCOUNTABILITIES AND RESPONSIBILITIES

The Minister of Justice and Attorney General of Canada is accountable to Parliament for contracting for legal services with private sector law firms and law practitioners.The Deputy Minister of Justice is accountable for the implementation and operation of an effective Legal Services Contracting Framework.The Deputy Minister of Justice is responsible for ensuring that appropriate policies, directives, tools and controls are in place and applied and for ensuring that timely remedial action is taken when control failures have been identified. Deputy Heads of Departments and agencies are accountable to their respective Ministers for ensuring that contracting for legal services with private sector law firms and law practitioners is referred to the Department of Justice for sourcing, selection, appointment and contracting of Legal Agents in accordance with this policy. Deputy Heads are also responsible for ensuring that all accounts for legal services are submitted for examination and "taxation" by the Department of Justice before proceeding with payment of the accounts.They are responsible for taking appropriate and timely remedial action where failures to comply with this policy are identified.

7. REFERENCES

  • Department of Justice Act
  • Government Contracts Regulations
  • Treasury Board Common Services Policy
  • Treasury Board Policy on the Indemnification of and Legal Assistance for Crown Servants
  • Directive on Contracting for Legal Services (currently being drafted)
  • Order in Council O-I-C 103/2025 dated July 28, 1939

Issued June 2008
Last update June 2008

Date modified: