Former Alberta justice minister Jonathan Denis and his ex-law partner Dale Fedorchuk have been accused of conflict of interest in connection with the Kamikaze campaign investigation — and of making one client “the scapegoat” for another: United Conservative Party heavyweight Jeff Callaway.
The allegation came out in an interview Cameron Davies, Callaway’s former communications director, gave to the Office of the Election Commissioners (OEC) as part of its probe into Callaway’s 2017 UCP leadership campaign.
He also accused the two lawyers of breaching solicitor-client privilege, details of which are contained in the OEC investigator’s interview transcript and summary obtained by CBC News.
The Callaway campaign would become known in Alberta as being set up to benefit now-Premier Jason Kenney’s bid for leadership of the newly united party. It did so by attacking Kenney’s chief political rival, former Wildrose leader Brian Jean. Callaway would go on to sacrifice his own leadership aspirations by dropping out of the race, Kamikaze-style, after attempting to inflict damage on Jean’s support.
Davies was Callaway’s co-campaign manager and ran communications. He told investigators he’d convinced a number of people to go along with putting their names on donations they didn’t make — and received two $7,500 fines in February 2019 for obstructing the investigation into the campaign by Alberta’s election commissioner. Davies was also fined $12,000 for facilitating irregular donations for the Callaway campaign.
‘They needed a scapegoat’
But the transcripts from the first in-person interview Davies gave to election commissioner investigators in March 2019 — a month after his obstruction fine — include allegations that his lawyer, Fedorchuk, wasn’t acting in his best interest.
Instead, he alleges that the lawyer gave privileged information to his law partner, Denis, in order to help another client under investigation by the OEC: Callaway
“It’s my suspicion that the counsel I was receiving … that they needed a scapegoat,” Davies said during the interview with investigators on March 15, 2019.
OEC investigator Ken Brander seemed unsurprised.
“That’s what we kind of thought too,” he responded.
When contacted by CBC News, Fedorchuk and Denis said through Guardian Law that solicitor-client privilege prevents them from responding to these allegations — or even confirm their involvement in the case. Davies subsequently sent Guardian Law an email waiving his privilege for this story, but Guardian Law and Fedorchuk reiterated they’d be violating privilege were they to answer any of the inquiries.
Both lawyers noted, however, they have not been named in any related proceedings.
A new lawyer for Davies
The OEC interview might never have happened had Davies not quietly hired new counsel, Lindsay Amantea.
In his interview summary, investigator Dave Jennings noted that Davies alleged Fedorchuk was “advising him from the outset to alternate between compliance and non-compliance.”
Brander had received an email from Davies on March 13 of that year, in which the communications director wrote that he “would no longer co-operate” and wouldn’t attend an upcoming interview, according to the summary notes from Jennings.
The summary of the interview, however, states Davies felt pressured to be unco-operative with the investigation, noting “there were veiled reprisals should he [Davies] comply and participate with the investigation.”
Davies said that the tactics might not quite “fall in the line of intimidation, but certainly the individuals being represented are very powerful people, very influential people.”
Just days before he sat down with investigators for an “open and frank conversation” about the illegal scheme to fund Callaway’s campaign, Davies had come to believe that Fedorchuk and Denis had been working to ensure he would shoulder most of the blame, according to the transcript.
The interview and investigator’s summary include specific claims made by Davies, which would violate Law Society of Alberta rules if proven accurate.
Davies told CBC News that he hasn’t lodged a complaint with the regulator, but he may do so in the future. The allegations he made in his OEC interview have not been tested in court.
$200K in fines
Running a dark horse campaign like Callaway’s isn’t against electoral law in itself. But much of its funding was, according to a months-long investigation by the election commissioner’s office.
The commissioner has issued more than $200,000 in fines against straw donors, someone who puts their name on a contribution paid for by someone else, and against those who orchestrated the funding. Some of those fines are being challenged by judicial appeals in the Court of Queen’s Bench, Alberta’s superior court, but Davies is not among those appealing his fines.
While both Callaway and Kenney have denied the former ran a false campaign, CBC News has reported extensively on emails and documentation that passed between the two camps.
Kenney’s leadership campaign team wrote speeches, ads and debate points for Callaway, even issuing a pre-approved date by which Callaway would drop out of the race and throw his support behind Kenney.
In the OEC interview, Davies said when he learned he could be targeted by the commission’s investigation, he was initially referred to Denis, who served as Alberta’s attorney general and justice minister from 2012 to 2015. But Davies said the former Progressive Conservative cabinet minister assigned the case to Fedorchuk, his then-partner at Guardian Law Group.
Davies paid a $2,500 retainer to Guardian Law.
‘You cannot be a slave to two masters’
What he didn’t know then, he said, is that Denis was representing Callaway.
If a law firm is representing two clients who may have different interests, it’s essential to at least build an ethical wall between the two, University of Calgary assistant professor of law Gideon Christian says.
“You cannot be a slave to two masters,” he said. “The law firm should have put in place a structure to prevent confidential information to be exchanged between the two lawyers acting on behalf of different individuals in this case.”
Davies told investigators that no such wall existed.
In fact, he said Denis was often present on privileged phone calls between himself and Fedorchuk.
“Even on my way over here today, I received a phone call from Mr. Fedorchuk and another lawyer on the line, who I know to be representing another client who is probably at odds with what I’m going to tell you today,” Davies told the OEC investigators.
WATCH | Questions about donations prompted election campaign probe:
Client privilege a charter right
Christian said that could be a breach of privilege, noting that “client privilege is a charter right” and something that goes beyond the general duty of confidentiality.
Davies told investigators he began to worry just before the interview that there might be a conflict of interest, which is why he secretly hired Amantea — a new lawyer removed from his own political circles.
Amantea was a long-time friend with connections to the federal Liberal Party of Canada, so Davies had no concerns about privileged communications making it back to anyone in Kenney’s United Conservative Party.
Lawyer acted without consent, Davies says
Amantea told the investigators that an email on which Denis had been copied included Davies’ privileged information.
“I feel, as a lawyer, he has acted inappropriately,” Amantea told investigators, according to the transcript. Denis “hasn’t been involved in Mr. Davies’ file and I believe he may be helping or assisting other individuals in this situation.”
At that point, the transcript of the interview indicates that investigator Brander confirmed to Davies and his new counsel that Denis was indeed representing Callaway.
Davies went on to tell the OEC investigators that he believed “Fedorchuk was getting off the phone with” Denis and then telling Davies what to do, but with Callaway’s case in mind.
Davies also alleged that his lawyer acted without his consent numerous times, including sending a statement to CBC News on the day of the OEC interview and sending letters to the OEC without instruction.
His new lawyer had those letters retracted from the record.
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