According to Alberta Premier Danielle Smith, her government was just trying to be helpful when it instructed thousands of public employees to refer calls from the auditor general about his ongoing investigation into allegations of dodgy health care contracts to a lawyer it had retained.

“The auditor general can ask any employee, former or current, any questions he likes as he is doing the investigation,” Premier Smith assured the Alberta Legislature yesterday in response to a question from the NDP’s Christina Gray, who is Opposition leader as long as the government refuses to call a by-election in Edmonton-Strathcona that would give party Leader Naheed Nenshi a seat in the House. 

“We believe our role is to assist in being able to facilitate that access,” the premier added soothingly.

Sorry, but that dog won’t hunt. Responding to Smith, Gray wondered: “Does the premier understand how corrupt this looks?” 

Similarly, after the news broke on Thursday of the email sent to Alberta Health Services staff and employees of the provincial Health Department by a senior civil servant instructing them to redirect investigators “to our legal counsel,” Health Minister Adriana LaGrange insisted, “this is not about impeding the investigation.” 

LaGrange also claimed that it is standard operating procedure for public employees in Alberta “either have legal counsel present, or ministry senior staff present when participating in interviews.” Presumably she meant government counsel, not their own. 

Questions in the Legislature, of course, quickly turned this into a she said/she said dispute. So let’s look elsewhere to understand why the tales told by Smith and LaGrange are extremely unlikely. 

Our text today comes from the Code of Conduct of the Law Society of Alberta, which states on page 31, “A lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code.”

As Edmonton defence lawyer Tom Engel pointed out on social media, the ADM’s suggested response for employees – “Alberta Health has retained legal counsel to represent us in the OAG investigation” – is not true, at least if you take that ambiguous “us” to include the employee.

“AHS retained this law firm but not to represent individual employees,” Engel stated in his post. “This should be referred to the Law Society, along with the issue of obstructing the AG’s investigation.”

Indeed, the question of conflicts is so important, and there are so many situations in which conflicts could potentially arise, that the society’s Code of Conduct devotes 23 full pages to the topic, and at that I daresay that is not exhaustive. 

“A conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person,” the Code explains. “A substantial risk is one that is significant and, while not certain or probable, is more than a mere possibility. A client’s interests may be prejudiced unless the lawyer’s advice, judgment and action on the client’s behalf are free from conflicts of interest.”

We non-lawyers need not plow through all the situations the document discusses to understand that if a lawyer has been engaged by the government of Alberta to represent its interests in an investigation of this type, it would be impossible in many situations that might arise for that lawyer to properly represent both the interests of his client, the government, and of the government’s employee. 

Put simply, Alberta Health (as the Health Department is confusingly known) is a legal entity that has different interests in the AG’s investigation than its employees do. 

For example, what if an employee, fearing retribution, asked for her identity to be protected because she has information about a dodgy contract? How can a lawyer representing the department, which is being sued for wrongful dismissal by a former CEO, represent the interests of both the employee and the employer? 

Common sense suggests the government’s lawyer simply cannot. 

What if an employee wanted to negotiate an agreement to protect himself from future prosecution? His own lawyer might be able to negotiate such a deal. But it’s hard to see how a lawyer representing the employer could have any proper role in that. 

Auditor General Doug Wylie’s staff, undoubtedly acting on his instructions, stated forcefully last week that this is not how his office works, or ever has. That is credible. 

The suggestions that this is standard operating practice (as per LaGrange) or that the government isn’t trying to obstruct the AG’s investigation (as stated by the premier) are much harder to believe. 

At the very least, if it really is standard operating procedure, it needs to stop right now!

Here endeth the lesson. 

Former UCP minister sides with NDP call for full inquiry

Meanwhile, also yesterday, former Infrastructure Minister Peter Guthrie shocked tout le monde political Alberta by siding with the NDP in calling for a full judicial inquiry led by a real judge in to the dodgy contracts affair. 

Guthrie resigned from Cabinet over its handling of the allegations in February, and he was barred from meeting with the UCP caucus for the sin of suggesting that LaGrange should have been removed from her post. 

Still, he’s been allowed to sit on the UCP benches – although that may change soon. But what the heck, as he said yesterday, “I am now at Day 48 of my so-called 30-day suspension, impeding my democratic right to fully represent the people of Airdrie-Cochrane.”

So Guthrie tabled a couple of newspaper articles calling for a full judicial inquiry and used the opportunity to say that “if we have nothing to hide, we should take that path.” For this, he is unlikely ever to be forgiven by the premier or her henchpersons.

Guthrie’s former portfolio is an important part of this story. After all, in the face of allegations of about sketchy surgical contracts, he was obviously in a position to worry similar things might have been going on in other departments. 

Lesser Slave Lake MLA Scott Sinclair, who was kicked right out of the UCP Caucus for saying he might vote against the government’s budget, also supported the NDP.

David J. Climenhaga

David J. Climenhaga

David Climenhaga is a journalist and trade union communicator who has worked in senior writing and editing positions with the Globe and Mail and the Calgary Herald. He left journalism after the strike...