Staying on the Right Side: Disentangling the overlapping roles of lawyers and HR professionals

Provincial and territorial laws across the country prohibit the unauthorized practice of law, and the Model Code of the Federation of Law Societies of Canada, which forms the basis of rules of professional conduct for lawyers throughout Canada, requires lawyers to “assist in preventing the unauthorized practice of law.” But, what is the “unauthorized practice of law?” Are human resources professionals practising law when they draft employment policies that comply with the laws that govern the workplace? Intuitively, most labour relations professionals know this simply cannot be the case. What exactly are the limits though? In this session experts will untangle the overlapping roles of lawyers and human resources professionals. Specific questions to be addressed include:

• How exactly is the “unauthorized practice of law” defined in major Canadian jurisdictions? What would this look like in a labour relations context? What services can union representatives provide? What about injured workers groups?
• What is the scope of lawyers’ duty to “assist in preventing the unauthorized practice of law?” What should a lawyer do if his or her client seems to have been receiving legal advice from a consultant who is not a lawyer?
• What are the limits on a lawyer’s freedom to advise a national employer on its legal obligations in provinces other than the province in which the lawyer is licensed?
• Are human resources professionals permitted to give their employers opinions on whether particular employment policies comply with employment standards, human rights, or labour relations legislation? Can they provide an opinion on what the legal duty to accommodate requires in the case of a particular employee? Can they represent their employers at grievance arbitration or before administrative tribunals?
• The Law Society of Ontario’s by-laws allow a person who is “a member of the Human Resources Professionals Association of Ontario in the Certified Human Resources Professional category” to provide legal services as long as that person does so “only occasionally” and “as ancillary to carrying on of her or his profession or occupation?” Does that mean a human resources professional who regularly writes employment policies that he or she purports to be legally-compliant is engaging in the unauthorized practice of law? What about human resources professionals who conduct workplace investigations?
• Are communications between an employer and human resources professionals protected by legal privilege?
• Are communications between a lawyer and his or her client always protected by solicitor-client privilege, even if the lawyer is rendering services that could be provided by a non-lawyer, such as conducting a workplace investigation?
• Do the restrictions regarding a lawyer communicating with a represented person apply in the case of a union member represented in a legal proceeding by a union representative?