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The Curious Case of the Non-Lawyer Attorney General: White Tiger of the Legal System

Must the highest legal officer in the land be a lawyer? Surprisingly, the answer is no.

Recently, the B.C. Court of Appeal dismissed an appeal from a decision of the BC Supreme Court that held that the appointment of a non-lawyer Attorney General (the Honourable Shirley Bond) did not breach that province’s Legal Profession Act. In Askin v. Law Society of British Columbia, 2012 BCSC 895, Madam Justice Stromberg-Stein held that “the Legal Profession Act cannot be read in a manner which limits the Lieutenant Governor’s absolute and unfettered right to appoint members to the Executive Council and assign portfolios, including that of the Attorney General.”

One must admit that the petitioner had a point. It seems strange that the occupant of the highest legal office of the province could be a non-lawyer. It seems strange further still that this person is charged by statute with many important legal responsibilities, including acting as the official legal adviser to the Lieutenant Governor and to the Cabinet.

But while these high legal responsibilities would seem to require legal training, if not significant legal experience, they do not.

Madam Justice Stromberg-Stein continued: “To conclude that only persons entitled to practice law qualify for the appointment as Attorney General would impermissibly constrain the Crown prerogative of ministerial appointment exercised by the Lieutenant Governor and the Lieutenant Governor in Council under ss. 9(1) and 9(2) of the Constitution Act.”

In short, the Premier (or Prime Minister) can appoint whoever she (or he) wants as Attorney General, lawyer or not.

One might dismiss the existence of a non-lawyer as an anomaly – a freak of the legal world akin to a white tiger. However, it is not quite so easy to do so. Ms. Bond is at least the third non-lawyer to hold the post of Attorney General in British Columbia (the others were the Hon. Colin Gabelmann, 1991-95 and the Hon. Russ Fraser, 1990-91).

Well maybe non-lawyer AGs are only found in my wacky home province of British Columbia like white tigers with Siegfried and Roy in Las Vegas?

Not exactly. Other provinces have similarly had non-lawyer Attorneys-General.

Nova Scotia has had a number of non-lawyer Attorneys General. The current Attorney General, the Hon. Ross Landry was a career RCMP officer who received his law degree but does not appear to practice law (although he is an honourary member of the Nova Scotia Barristers Society). And the Attorney General of Prince Edward Island, the Hon. Janice Sherry is neither a barrister nor a solicitor. So wait: 30% of the provincial Attorneys General are not practicing lawyers?

And this is not a new phenomenon. Other provinces have also had “laymen” (one of the dumbest words in the English language which should be stricken from the record) as Attorneys General, including Ontario where Marion Boyd served in that office from 1993-95 and has remained very active with the Law Society of Upper Canada as a lay bencher.

What’s going on here? Why isn’t anyone in the legal profession talking about this?

I think members of the legal profession prefer to treat non-lawyer Attorneys General as quaint anomalies. I believe that this is because the existence – and some would say the success – of non-lawyers in the highest legal office challenges some of the most fundamental assertions of the Canadian legal system, including the following:

1. Lawyers’ monopoly over the provision of legal services. We assert that only lawyers can provide legal advice. The existence of non-lawyer legal advisors to the Crown fundamental threatens this assertion. It is rather strange that we allow non-lawyers to provide legal advice at the highest levels — to cabinets, premiers and even to Governors General or Lieutenant Governors. Yet we do not allow non-lawyers to provide run of the mill legal advice to ordinary Canadians.

2. Self-regulation. The bar often asserts that independence of the bar requires self-regulation. This claim is undermined by the existence of a non-lawyer in the top provincial legal job who (a) effectively instructs and oversees the conduct of the largest group of lawyers in the province; (b) has privileged status under Law Society regulations; and (c) is responsible for Law Society legislation.

3. ABS / MDP. Law Societies generally do not allow lawyers to practice with non-lawyers. Ontario allows MDPs so long as lawyers have control. A non-lawyer AG is exactly the opposite: a sort of MDP where the boss is a non-lawyer and everyone else is a lawyer. 

4. Solicitor-Client Privilege. How does this apply to a non-lawyer AG? I will tackle this issue in a forthcoming column.

The non-lawyer Attorney General is the white tiger of the legal profession. But the bar would be wise not to treat it as a cuddly pet because it has the real potential to maul some of the sacred limbs of the legal profession.

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Comments

  1. Good points and insights. This is probably obvious, but I always thought appointment to the position of Attorney General is, as the article points out, at the large and unfettered discretion of the Lt.G. Here in Canada and the provinces, its a political appointment, not a meritocracy. Unless the law or established convention states that being an accredited lawyer is a prerequisite, its just that. Full stop.

    There is no requirement that the Minister of Heath be a doctor, that the Minister of Transportation be an engineer, or the Minister of Education be a professor. What makes the AG position any different? It may seem like a good fit, but only if you assume that the Minister’s job is profession rather than politically (ie. popularly) driven.

    My understanding was that the position of AG is primarily a political and administrative position. The AG is first and elected member of the House, and is then appointed to Cabinet as the Minister of Justice. The MoJ is also deemed the AG, with the role of AG being incidental to that political role. Decisions made by the AG are decisions of the MoJ that are answerable to Parliament. (I can’t remember this verbatim, but this was the essence of what I recall from a course called “Government Lawyering: The Role of the Attorney General, the Minister of Justice and Government Counsel” at UOttawa law school years ago.)

    Decisions made by the AG and advice given by the AG cannot be divorced from the political role inherent in the position. Ministers are Politicians who are responsible to the electorate. They have a duty to operate within the law in doing so, but being elected agents of responsible government is their primary role. They may advocate for different issues and policies, but its not a legal role, per se. On providing advice to Cabinet, the Premier or PM, its no different than other ministries – there exists a whole bureaucratic institution of public servant, many of whom are expert lawyers, doctors, engineers, social workers, academics etc. whose job and professional duty are to understand and administer various types of policies, laws and regulations in the public interest. The reality is that any substantive legal questions will be dealt with my government lawyers, who advise the Minister/AG on the legal issues and ramifications. Whether and how that advice is implemented is, however, a political decision. Political decisions are not necessarily legal decisions.

    An AG, as a politician, advising Cabinet is not the same thing as a lawyer advising an individual client – the former’s advice is, ultimately, political advice, or at least, legal advice that is framed by political considerations that will be the subject of scrutiny and vetting by the House and public as part of its adoption. Not so much for lawyer-clients, where the lawyer’s professional duty is to advise and act in the client’s (private) interests. The AG’s hybrid political-administrative duty is to act in the public interest, and I think the public nature of that interest casts a wider scope of consideration than just law.

    Another issue this raises is whether or not our society really would benefit having specific training as a prerequisite for political positions. Doctors, lawyers, engineers, university professors etc. all have their own trained perspectives and interpretations of events and issues, nevermind allegiances to certain organizations and social agendas. Being a politician means having to see beyond just those perspectives and being able to attribute value to other perspectives and approaches (cue the wry politician jokes). Lawyers may want to see a lawyer as AG, but I doubt everyone else sees intrinsic merit in that opinion. And until that law is amended to say otherwise, that is the wisdom/curse we live with.

  2. The AG is in the position of the client in the solicitor-client relationship, and we sometimes forget the privilege belongs to the client, not the lawyer. As to the advice the AG gives to cabinet as the government’s top lawyer, in camera cabinet communications are subject to privilege as well. So I do not think that privilege is an issue.

  3. Thomas Harrison

    Arguably, the AG also plays a distinct and independent constitutional role as Chief Law Officer of the Crown, who specific job is to provide legal advice to the LGIC/GIC. Similarly, while for most purposes it may be functional to say that the AG is the client of an independent member of the Bar employed by ‘government’, arguably such lawyers work for the Crown, not the AG. In many cases, the distinction might be one without any meaning, but the duty of loyalty to the Crown could, in some cases, involve the independent obligations of individual lawyers. Of course, all in my personal opinion.

  4. I don’t understand why we don’t have a separate Justice Secretary/MoJ. I would think that the perpetual conflict between Grayling and Grieve in the UK over issues like human rights suggests that the two roles are not easily reconciled.

  5. I agree with Cooke, and would similarly point to the US split roles of SG & AG, which while not as clean as the UK 3 way split (SG, AG & MoJ), still separates the legal vs political advice into different positions.