Questions of conflict, time management arise as Manitoba government MLA juggles work as politician, lawyer

A law professor says the perception created by Mark Wasyliw working as a criminal lawyer while serving as a Manitoba government MLA is worrying and could erode public trust, even if no conflict-of-interest rules are broken.

Wasyliw, the NDP representative in Fort Garry, revealed this week he would continue his law practice, rather than shut it down as he previously promised, after being overlooked for cabinet.

His explanation didn't satisfy Premier Wab Kinew, who told an unrelated news conference "all of us should understand that public service is more than a full-time job."

Andrew Flavelle Martin, an assistant professor at Dalhousie University's law school in Halifax, said Wasyliw's continued law practice deserves scrutiny now that he's in government. 

As a criminal defence lawyer, Wasyliw would argue against Crown attorneys employed by the government he's part of.

"I think once you're an MLA for the governing party, there's two sets of issues — and one is are you intimidating the Crown, or is there a perception you're intimidating the Crown?" said Martin, whose research focuses on the legal ethics for government lawyers. 

Challenging government laws

The other set of issues could be fighting government laws, Martin said. As a criminal lawyer, Wasyliw would largely examine federal law, but maybe he'd be "required to do something as part of his duty of resolute advocacy that embarrassed the [provincial] government?" Martin said.

"And then would he be less likely to fully pursue that because, for example, he has aspirations of being in cabinet and doesn't want to make the government look bad?"

Martin insists he isn't suggesting any lawyer is unethical, "but it's more the public perception that they might be tempted to, or there might be that pressure on them."

For its part, the independent regulator of Manitoba's lawyers doesn't see Wasyliw's responsibilities as a criminal defence lawyer as compromising.

"When we look at conflicts of interest, we're merely looking at a lawyer's obligations to comply with our code of professional conduct, can they maintain their clients' confidentiality and can they maintain their duty of loyalty to a client?" Law Society of Manitoba chief executive officer Leah Kosokowsky said in an interview Wednesday with CBC Manitoba's Up to Speed. 

"By generally sitting as an MLA and sitting on the backbench, we don't see that as a conflict of interest."

Martin said he understands the ethics of Wasyliw's law practice won't bother some. 

"Even if the Law Society is correct that it's not a concern for them, I would with much respect suggest that maybe it should be, or it might be in the future depending on what happens," he said.

Wasyliw's duties as a lawyer have been a longtime target of the Progressive Conservatives. Before the party was defeated in this month's election, the PCs called him out for defending accused sex offenders and drug dealers in court, even though every person has the right to fair representation in court.

More recently, Wasyliw's duties as a lawyer appear to be chafing with leadership at his party.

Kinew maintained on Tuesday that public service is "more than a full-time job," following a Winnipeg Free Press story the previous day in which Wasyliw said he would take on more cases because, without a cabinet appointment, he has "a lot of time on my hands."

WATCH | Kinew answers questions Tuesday about Mark Wasyliw's law practice:

Kinew says public service demands time after 1 of his MLAs stays on as lawyer

1 year ago

Duration 1:49

Manitoba Premier Wab Kinew faces questions from reporters in response to a member of his caucus, Mark Wasyliw, saying he'll continue to work as a criminal defence lawyer on the side. He previously said he would wind down his practice, but now says he has more time to hold another job because he wasn't appointed to cabinet.

Gord Mackintosh felt he couldn't juggle his burgeoning law practice and political aspirations, after becoming a NDP MLA in 1993.

"I just thought that I had to give up the law practice if I was going to give [politics] my all," said Mackintosh, who went on to various cabinet minister roles.

Other MLAs could theoretically handle politics and law, he said, but in his case, he was taking care of a young family and didn't want to work 16 hours a day.

Mackintosh doesn't believe Wasyliw would be in conflict handling both jobs. Mackintosh, who works now as a government relations consultant, said the law society and legislative assembly each have rules governing that.

Provincial legislation states an MLA is in a conflict of interest when they exercise "an official power, duty or function that provides an opportunity to further their private interests or those of their family or to improperly further another person's private interests."

It appears Wasyliw's legal practice would not constitute an "official power, duty or function" of a MLA, though the province's ethics commissioner said he couldn't comment on individual cases.

Paul Thomas, a professor emeritus of political studies at the University of Manitoba, isn't concerned by the perception of conflict, but rather sees this saga as an "ongoing source of potential embarrassment" for the new government. Wasyliw was the only NDP MLA to not embrace, shake hands or fist-bump their leader after Monday's swearing-in ceremony. 

Thomas said the two men should patch up their differences. 

"Let's get over this misunderstanding, and it might be in the premier's best interest, given his skills at communication and persuasion."

Wasyliw has declined interview requests, including Thursday when CBC News visited his law office.

The NDP issued a statement that didn't respond to CBC's questions. 

Progressive Conservative deputy leader Kelvin Goertzen said over his 20 years in office, MLAs have had jobs as business owners, farmers and restaurateurs, but someone else has handled the day-to-day duties. 

"I think where you run into trouble is if you're doing a job where there isn't that flexibility," Goertzen said, while acknowledging he doesn't know the nature of Wasyliw's law practice, except that it's obvious the current arrangement bothers Kinew.

Wasyliw has wiggle room to schedule court dates outside the times when the legislature and committees may sit, but he must also accommodate the timetables of judges and Crown attorneys. 

Frequent speaker in question period

As an Opposition MLA, Wasyliw was an active participant in the legislature. He held critic roles, including in the high-profile finance department. In question period, the NDP relied on him for some of their most aggressive attacks at the PCs.

Wasyliw has been named this month as the legislative assistant for the minister of education — a nearly $5,000 annual pay bump — and as part of cabinet's healthy child committee, in addition to his representing Fort Garry constituents.

The base salary of a MLA in Manitoba is $102,998. Cabinet ministers receive an additional $56,390.

Ian Wishart, the just-retired PC MLA for Portage la Prairie, was an opposition MLA, government cabinet minister and government backbencher over his 12-year career.

Every role was demanding, he said. Within a year of his first election, he wound down most of his farming operation, selling his cattle and renting land to other farmers.

"We have a saying in agriculture … how much work it is depends on how deep you set the plow. You can make [politics] a lot of work for yourself and I guess I was probably a little prone to do that."