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Published online by Cambridge University Press: 06 March 2019
While considerable thought and effort has been put into exploring and fixing the ethical rights and professional responsibilities of private lawyers, little energy has been directed towards defining and defending the role and duties of government lawyers. As a result, the traditional understanding seems to be that government lawyers are to consider themselves as being under the same regimen and restrictions as their private counterparts. After criticizing this default approach, the article offers a fresh evaluation of what is different about the role of government lawyers and develops a more appropriate model for thinking about their professional responsibilities and ethical privileges. The central thrust of the article is the effort to appreciate legal ethics and professional responsibility as part of a larger democratic understanding of law and justice.
1 Of course, the democratic focus on adjudication has not led to any agreement on what adjudication is and ought to be about. Nevertheless, there is almost universal agreement that the effort to understand adjudication in democratic terms is one of the compelling mandates of judicial scholarship. See e.g. Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001).Google Scholar
2 For my own general stance on democracy, see Allan C. Hutchinson, The Companies We Keep: Corporate Governance in a Democratic Society (Toronto: Irwin Law, 2005) at 59–83.Google Scholar
3 I offer a very stylized and schematic account of the standard model of ethical lawyering. The fact that this model has severe limitations (e.g., insensitivity to the different needs of wealthier and poorer people) and is open to strong criticisms (e.g., differential access to legal services) is beyond the immediate scope of this paper. For a fuller discussion and a critical account, see Allan C. Hutchinson, Legal Ethics and Professional Responsibility, 2d ed. (Toronto: Irwin Law, 2006) at 19–59.Google Scholar
4 Fried, Charles, “Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation” (1976) 85 Yale L.J. 1060.Google Scholar
5 Curtis, Charles P., “The Ethics of Advocacy” (1951) 4 Stan. L. Rev. 3 at 5.Google Scholar
6 R. v. Neil, [2002] 3 S.C.R. 631 at para. 29. See also Allan C. Hutchinson, “Who are ‘Clients'? (And Why it Matters)” (2005) 84 Can. Bar Rev. 411.Google Scholar
7 There is, of course, a less strict and softer interpretation of this traditional model which, although still retaining the primary duties of loyalty, zealous advocacy, and confidentiality, contends that unconditional loyalty to clients’ interests will result in lawyers facilitating substantive social injustice. Instead, it places more emphasis on the broader secondary duties of the lawyer to the court and to third parties. See David Luban, Lawyers and Justice: An Ethical Study (Princeton: Princeton University Press, 1988). See also William H. Simon, The Practice of Justice: A Theory of Lawyers’ Ethics (Cambridge: Harvard University Press, 1998).Google Scholar
8 Arthurs, Harry W., “Lawyering in Canada in the 21st Century” (1996) 15 Windsor Y.B. Access Just. 202.Google Scholar
9 Canadian Bar Association, Code of Professional Conduct (2006) c. 10, commentary, s. 1 [CBA, Code of Professional Conduct]. This more likely applies only to lawyers in elected office, but it can reasonably extend to government lawyers generally, even though it says and demands very little of them.Google Scholar
10 Everingham v. Ontario (1992), 88 D.L.R. (4th) 755 at para. 18 (Div. Ct.). The CBA also states that “the lawyer who holds public office should, in the discharge of official duties, adhere to standards as high as those that these rules require of a lawyer in the practice of law.” See CBA, Code of Professional Conduct, ibid., r. 10. See also Law Society of Upper Canada, Rules of Professional Conduct, r. 6. However, I will not deal with the particular responsibilities and duties of elected officials, like the Attorney General or Minister of Justice. See Kent Roach, “Not Just the Government's Lawyer: The Attorney General as Defender of the Rule of Law” (2006) 31 Queen's L.J. 598.Google Scholar
11 I will pursue this important point in Part E below.Google Scholar
12 CBA, Code of Professional Conduct, supra note 9, c. 9, commentary, s. 9.Google Scholar
13 Ibid. Google Scholar
14 R. v. Boucher, [1955] S.C.R. 16 at para. 26. See also R. v. Trochym, [2007] 1 S.C.R. 239.Google Scholar
15 See e.g. Peter W. Hogg, Constitutional Law of Canada, 5th ed. (Scarborough: Thomson Canada, 2006). See also David Phillip Jones & Anne S. de Villars, Principles of Administrative Law, 4th ed. (Scarborough: Thomson Canada, 2004).Google Scholar
16 J. Nightingale, ed., Trial of Queen Caroline, vol. 2 (London: J. Robins & Co., 1820–21) at 8.Google Scholar
17 Ibid. Google Scholar
18 Although this is a bastardized version of Ely's original quote that “we may grant until we're blue in the face that legislatures aren't wholly democratic, but that isn't going to make courts more democratic than legislatures,” it is intended to be in the spirit of Ely's original quote. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980) at 67. For views along a similar line, see Geoffrey Miller, “Government Lawyers’ Ethics in a System of Checks and Balances” (1987) 54 U. Chi. L. Rev. 1293 at 1294. See also Peter L. Strauss, “The Internal Relations of Government: Cautionary Tales From Inside the Black Box” (1998) 61 Law & Contemp. Probs. 155 at 156–57.Google Scholar
19 Cramton, Roger C., “The Lawyer as Whistleblower: Confidentiality and Government Lawyer” (1991) 5 Geo. J. Legal Ethics 291 at 296.Google Scholar
20 The Law Society of Alberta, Code of Professional Conduct (2007) c. 12, commentary, C.1.Google Scholar
21 For a defence of the position that a lower standard of loyalty is owed by government lawyers as a result of the public interest or the common good, see Steven K. Berenson, “Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest?” (2000) 41 B.C. L. Rev. 789 and “Rethinking the Professional Responsibilities of Federal Agency Lawyers,” Note, (2002) 115 Harv. L. Rev. 1170.Google Scholar
22 Henry M. Hart, Jr. & Sacks, Albert M., The Legal Process: Basic Problems in the Making and Application of Law by William N. Eskridge, Jr. & Philip P. Frickey (Cambridge: Cambridge University Press, 1994) at 1047.Google Scholar
23 CBA, Code of Professional Conduct, supra note 9, c. 5, commentary, C.16.Google Scholar
24 Nevertheless, as I discuss below, there might well be some extreme circumstances in which corporate lawyers could be required to question and occasionally ignore the instructions of the person who has been designated to speak on behalf of the corporation.Google Scholar
25 This is not the place to offer chapter-and-verse support for such a relatively moderate assessment. Suffice it to say that there are as many specific instances of lawyers and judges getting it wrong as opposed to right in advancing the public interest. See e.g. J.A.G. Griffith, The Politics of the Judiciary, 5th ed. (London: Fontana Press, 1997) and A. Hutchinson, Evolution and the Common Law (Cambridge: Cambridge University Press, 2005).Google Scholar
26 Smith v. Jones, [1999] 1 S.C.R. 455 at para. 77.Google Scholar
27 Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809 at para. 17 [Pritchard]. The classic statement of this justification is offered by Lord Brougham in Greenough v. Gaskell, (1833), 39 E.R. 618 at 620–21.Google Scholar
28 See Barsdate, Lory A., “Attorney-client Privilege for the Government Entity” (1988) 97 Yale L.J. 1725 and James E. Moliterno, “The Federal Government Lawyer's Duty to Breach Confidentiality” (2005) 14 Temp. Pol. & Civ. Rts. L. Rev. 633.Google Scholar
29 Pritchard, supra note 27 at para. 21.Google Scholar
30 See Simon, William H., The Practice of Justice: A Theory of Lawyers’ Ethics (Cambridge, Mass.: Harvard University Press, 1998) at 55 and Daniel R. Fischel, “Lawyers and Confidentiality” (1998), 65 U. Chi. L. Rev. 1.Google Scholar
31 See e.g. “After Sarbanes-Oxley: A Panel Discussion on Law and Legal Ethics in the Era of Corporate Scandal” (2003) 17 Geo. J. Legal Ethics 67. For a general defence of the rationale for easing the confidentiality burden on government lawyers, see Christine Harrington, “Reevaluating the Duty of Confidentiality,” Note, (2003) 47 N.Y. L. Sch. L. Rev. 423 and Daniel R. Fischel, “Lawyers and Confidentiality” (1998) 65 U. Chi. L. Rev. 1.Google Scholar
32 Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.Google Scholar
33 Criminal Lawyers Association. v. Ontario (Ministry of Public Safety and Security) (2007), 86 O.R. (3d) 259 (C.A.).Google Scholar
34 For a defence of the position that government lawyers are duty-bound to keep in strict confidence all communications and information, see Catherine J. Lanctot, “The Duty of Zealous Advocacy and the Ethics of the Federal Government Lawyer: The Three Hardest Questions” (1991) 64 S. Cal. L. Rev. 951 at 1012–13.Google Scholar
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