Conflict of Interest in CBA Public Statements

  1. Every member preparing, commenting on, approving or presenting a public statement on behalf of the Association or a Section must disclose on a confidential basis to the Senior Director, Legal and Governmental Affairs, any material interest in the subject matter of the statement by specific employment or representation of a client, as soon as the interest becomes apparent to the member;
  2. Where the member is of the view that disclosing the material interest is not appropriate, the member shall withdraw from preparing, commenting on, approving or presenting the public statement.

CBA By-Law 1, article 86 - Conflict of Interest 

Background: Conflict of Interest in CBA Public Statements

At its November 1995 meeting, the Executive Committee directed the Legislation and Law Reform Committee to report on the desirability of establishing conflict of interest guidelines. Recent experiences have made clear the potential risk to the CBAs reputation for objectivity and balance if it endorses a particular point of view without knowing the interests of the person or persons promoting that position.

This report canvasses the issues in the context of the range of situations for preparing submissions, as well as those in a position to approve them.

Considerations

  • The reputation of the CBA is based in no small part on its objectivity and independence. The Bylaws require all public statements to be approved by the Executive Committee or Senior Officers to ensure, inter alia, the balance of the statements.
  • CBA reputation is based equally on its particular expertise. That expertise is found most often within Section membership. A balance of views may be found within a given Section (eg. Criminal Justice Section represents both Crown and defence views; Labour Law Section has both management and union side expertise) or amongst Sections (eg. expertise in tobacco advertising would be balanced amongst Health Law, Intellectual Property, Media and Communications, and Constitutional Sections).
  • It is to the CBA's benefit to attract Section members who are leaders in their field. It follows that those Section members or their firms will have clients with an interest on either side of many issues that the CBA has a responsibility to comment on within its stated mandate. The same applies to CBA leaders in a position to approve submissions.
  • To what extent do members "sell their soul" to the CBA when they take on leadership positions? We surely cannot prohibit members from acting on behalf of clients or from having personal views not endorsed by the CBA. We can also expect that, in certain situations, leaders may be perceived as speaking for the CBA, even when speaking in their personal capacity.
  • To what extent do members always represent client interests in their CBA dealings? Personal views or the greater public good could well prevail over positions argued on a client's behalf in other circumstances. 

Conclusion

The challenge is to balance the expertise with the need to be (and appear to be) independent of client biases. If CBA leaders are prohibited from participating in the development or approval of submissions in which they have any client interest, we lose the necessary expertise. An absolute prohibition on input from members with a client interest could potentially render the CBA incapable of speaking out on most important issues. If we fail to acknowledge client interests, we risk losing credibility.

Requiring disclosure of an interest would allow sufficient flexibility to account for varying degrees of interest and visibility of those preparing, approving and publicly speaking on a submission. A disclosed interest may be balanced in many instances by ensuring that opposite interests and neutral advice are reflected.