Ever wondered what government lawyers and superheroes have in common? Although you are unlikely to see counsel in capes, flying through the metropolis, government lawyers and superheroes serve the public in the pursuit of justice. Both are accurately described as guardians of the public interest, albeit in very different contexts. Government lawyers and superheroes also hold great power and must use it to advance the public interest ahead of all else. And with great power comes great ethical responsibility.
The intersection of professional responsibility and the public service situates the unique role of federal and provincial government lawyers in the profession. The sort of lawyer a person is shapes the ethical dilemmas she will face. Therefore, context matters, and government lawyers work exclusively in the context of the public interest. But do codes of professional conduct capture the legal ethics needed to protect the public purse?
Current codes and ethical principles predominantly reflect the lawyer-client relationship and duties attributable to private sector and criminal lawyers. However, the government lawyer’s role as public servant raises ethical challenges that demand a higher level of ethical accountability. Government lawyers would benefit from a specialized code that dispels ethical ambiguities in their role and provides context-specific guidance on how to navigate ethical crossroads.
“It’s a Bird! It’s a Plane! No, it’s a Government Lawyer!”
The professional anomalies of government lawyers justify the need for tailored ethical obligations. Crown counsel are agents of the Attorney General, who are central in maintaining public confidence in the legal system. The Federation of Law Societies of Canada’s Model Code of Professional Conduct identifies lawyers’ responsibility to exercise power in the public interest. But this has heightened meaning for government lawyers who are “guardians” (or superheroes) of the rule of law. Distinct from lawyers’ duties to resolutely advocate for their client, government lawyers have a “direct undertaking” to further the public interest. Crown counsel also have a constitutional role to provide objective advice and legal interpretation to the State consistent with the rule of law. This extends to civil litigation, where government lawyers have a constitutional responsibility to ensure and independently represent the public interest. They also have a positive duty to ensure their client complies with the law, which is not expected of other lawyers. Overall, the government lawyer’s unique role, and the far-reaching consequences her work can have on the public, call for robust ethical expectations.
The Model Code does not account for these extraordinary characteristics. The duty of loyalty, choice of client, and resolute advocacy are different when working for the public service. Government lawyers are spoken for: their direct client is the Crown. Moreover, the duty of confidentiality and solicitor-client privilege seem counter-intuitive in the government context. Commentators identify the tension in keeping advice private when public servants ought to be open and transparent. When the Crown is the client, regular ethical principles about confidentiality beg the question: who guards the guardians of the rule of law if information is undisclosed? This ethical conundrum reveals how government lawyers must carefully balance interests while caught between their duties to the public and their employer.
Recognized “Elements of Professionalism” add to this ethical complexity. “Independence”, a building block of professionalism, requires lawyers to be independent from the State and its control. Although government lawyers must be objective and non-partisan, this element conflicts with the nature of their work as government employees and agents of the Attorney General. Thus, applying standard ethical rules to the government lawyer’s professional context is tricky.
Specialized Codes for “The Justice League” Government Lawyers
Every superhero needs a sidekick, and a specialized code of ethics might accomplish just that in helping government lawyers navigate ethical dilemmas. The Department of Justice’s Values and Ethics Code for the Public Sector comes close to sidekick status. It outlines values and expected behaviours of federal public servants in context, including items like “Respect for Democracy”. While helpful, the Code falls short of describing how these principles ensure ethical practices. The document suggests that when ethical issues arise, public servants should discuss and resolve them with their supervisors. However, a specialized code should guide government lawyers in identifying ethical challenges—like client confidentiality issues—and provide approaches to overcome them. This would lead to more consistent and accountable ethical solutions in government lawyering. With current ethical principles as baselines, supplementary codes tailored to the dilemmas that come with representing or advising the State would clarify ethical duties of lawyers who are simultaneously public servants.
“Integrity” in the DOJ’s Code recognizes that government lawyers must “uphold the highest ethical standards” which “bear the closest public scrutiny.” Suggesting that government lawyers are held to regular ethical standards is unpersuasive. The government lawyer’s role as constitutional, as agents of the Attorney General, and guardians of the rule of law demonstrate how superb the role is. Robust ethical standards in a specialized code should not panic government lawyers. Instead, it should instill a sense of pride and honour in their work as protectors of the public interest. Superhero cape optional.
Michele Valentini is a third-year law student at the University of Ottawa. She wrote this short paper for Professor Adam Dodek’s Professional Responsibility course.
 Allan C Hutchinson, “In the Public Interest: The Responsibilities and Rights of Government Lawyers” (2008) 46:1 Osgoode Hall LJ 105 at 113, 115.
 Adam Dodek, “Lawyering at the Intersection of Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of Law” (2010) 33:1 Dal LJ 1 at 20.