In an article published in 2010, my colleague Adam Dodek smartly observes that “government lawyers and the work that they do are largely ignored…[t]hey are barely acknowledged in codes of conduct, underrepresented in many law societies and undertheorized in academic scholarship.” Adam also approvingly cites from Allan Hutchinson who characterized government lawyers as “the orphans of legal ethics” because so “little energy has been directed towards defining and defending the role and duties of government lawyers.”
It is unclear how much has changed since Adam made the above observations in 2010. Undoubtedly, the Edgar Schmidt case has recently brought greater attention to questions regarding the role of government lawyers. However, there seems to be a real risk that we are still not giving government lawyers due attention. Indeed, one serious emerging risk is that government lawyers will be excluded from new law society programs seeking to more pro-actively help lawyers practice effectively and ethically.
Currently, a number of Canadian law societies are at various stages of considering whether and how to implement pro-active compliance-based regulatory approaches. The general approach being considered was helpfully explained by Ross Earnshaw in his recent Slaw column as follows:
What is Compliance-Based Entity Regulation?
Compliance-based regulation is a proactive regulatory approach in which the regulator identifies practice management principles and establishes goals and expectations for legal practices. Lawyers and paralegals report on their compliance with these expectations, and have autonomy in deciding how to meet them. Importantly, practitioners are not made to adopt policies and procedures that may not make sense in their practice. Instead, practitioners themselves decide how to meet established goals and expectations with assistance being provided, if wanted.
It isn’t currently clear whether and how government lawyers might be included under the ambit of proposed compliance-based entity regulatory regimes across Canada. The Nova Scotia Barristers’ Society currently defines the “legal entities” envisioned to be part of its new model of legal services regulation to include “government lawyer and department/team”. It has also engaged in a number of consultations with government lawyers about its new regulatory vision.
In contrast, the consultation documents published by the Law Society of Upper Canada and the law societies in Manitoba, Saskatchewan and Alberta, collectively, leave it an open question as to whether and how government lawyers might be incorporated within a new form of pro-active regulation. For example, the Law Society of Upper Canada consultation paper states:
Private practices directly serving the public are most readily the starting point for compliance-based entity regulation. If Convocation approves this form of proactive regulation, there is merit to exploring how this approach might also be applied to other groups such as corporate and in-house counsel, government lawyers; lawyers and paralegals practising in legal clinics, and other practice settings.
Similarly, the consultation document from the Prairie law societies canvasses two options as to what entities could be included within a compliance-based entity regulation approach. The first proposed option would exclude the regulation of “groups of government lawyers”, while the second would include such groups.
As I have written about on Slaw before, compliance-based entity regulation holds significant promise in identifying and tackling problems with the delivery of legal services before they occur. Nationally, the Federal Department of Justice touts itself as “the largest single legal organization in the country.” At a provincial level, the Law Society of Upper Canada indicated in its 2014 annual report that 15% of lawyers in Ontario are government lawyers. To exclude such a large constituency from a promising new regulatory approach would be a lost opportunity.
Beyond the numbers, some of the very types of things that compliance-based entity regulation is poised to address more effectively than the current complaints-driven disciplinary model appear to be active issues among government lawyers. For example, the goal of delivering legal services at a reasonable financial cost is an important issue for clients but not one that is well-suited to address through disciplining individual lawyers (except, of course, in extreme cases). Tackling this issue requires the adoption of effective practices and, perhaps in some cases, policies – something that compliance-based entity regulation can help lawyers do. Although one might think that public-sector lawyers are immune from client complaints about their fees, this is simply not true. As reported in a 2015 article in the Canadian Bar Association’s National Magazine:
Like any litigation firm or in-house legal department, the Justice Department is hearing a lot of grumbling from its clients about the cost of legal work – in any given year the department bills about $250-million in legal fees, which other federal departments and agencies must pay.
Systemic barriers faced by women and racialized lawyers in the workplace are also a prime target for pro-active regulatory approaches. Although we often think of these barriers in the context of private law firms, we have evidence that they do exist in the public service as well. For example, the Community Liaison Report provided to the Law Society of Upper Canada’s Challenges Faced By Racialized Licensee Working Group reported, among other things, that:
Some participants employed in government stated that they feel that they are stagnating in their careers. These participants, who self-identified as Black, stated that they feel that Black lawyers are not being promoted equally but do work assignments equal in complexity to those who are being promoted. They noted that Black lawyers have trained other lawyers who have been promoted over them. These participants also stated that the overwhelming majority of Black lawyers who work in various levels of government in the legal departments are concentrated in entry level/junior positions, despite their expertise.
More recently, the semi-annual report of the Law Society of Upper Canada’s Discrimination and Harassment Counsel, covering the period of July 2015 to December 2015, revealed that government work contexts featured prominently among the 10 complaints received by lawyers about other lawyers in relation to an issue arising in the employment context (as opposed to issues arising from the behaviour of opposing counsel). More specifically, 4 of these 10 complaints (40%) related to government workplaces. The report details these complaints as follows:
- A government lawyer complained about systemic gender-based discrimination in her workplace.
- Two government lawyers (both female) complained about employment discrimination based on their disabilities.
- A government lawyer reported that she suffered employment reprisals after seeking accommodation of her childcare responsibilities.
It is not surprising that governmental bodies that deliver and/or use in-house legal services, like private law firms, are likely to have areas in which they can improve. To exclude them from new pro-active regulatory approaches is to withhold from them a means through which they can be motivated and helped to improve.
To be sure, adopting compliance-based entity regulation in the government lawyering context brings some challenges. There are serious questions as to whether it amounts to regulatory overreach for law societies to start regulating governmental organizations.
One response to such concerns would be to simply point out that regulatory scope of law societies is statutorily-defined and to acknowledge that any sort of entity regulation (including that relating to private firms) requires legislative amendment (something that has already occurred in several provinces).
This response, however, doesn’t get around the practical questions of regulatory overreach when purporting to regulate organizations that have mandates that reach far beyond the provision of legal services – take an organization like the Ontario’s LCBO (Liquor Control Board of Ontario), a Crown corporation which employs lawyers but is primarily involved with buying and retailing alcohol. As an entity, the LCBO is materially different than a private law firm, which is primarily concerned with providing legal services to clients.
No doubt, the government lawyering context has some unique features that would need to be considered and accommodated in any new regulatory approach. The same is true for the small firm versus large firm environment and for in-house lawyers who work in private organizations. However, the uniqueness of the government lawyering context should not be viewed as an absolute roadblock to implementing new proactive regulatory approaches. Rather, it speaks to the need for extensive consultations and considerable care in developing an understanding what best practices mean in this distinct environment. One value of the compliance-based regulatory approaches is that they do not seek to impose one-size-fits-all solutions.
Presumably, one of the biggest challenges to implementing entity regulation in the government lawyer context would be potential jurisdictional disputes, particularly when it comes to federal government lawyers. While, again, the existence of such challenges should not be underestimated, they should also not be viewed as absolute roadblocks. One possible solution to such issues could be, for example, for regulators to mandate and develop voluntary programs tailored specifically for the government lawyering context that government entities could use to improve their ethical infrastructures in relation to the delivery of legal services. Although such voluntary programs would lack “teeth” in the sense that there would be no penalty for non-compliance, it is worth noting (as I discuss in more detail in this article) that there is research which indicates that the activity of self-reflection , in and of itself, can lead to improved ethical outcomes in the legal services context. Buy-in from government bodies is essential for such a strategy to work and, maybe, in some cases will be elusive, but it behooves law societies to at least try.
Despite the complications it brings, government lawyers need to be part of the conversation about the modernization of lawyer regulation and we need to be creative about how to better engage this large and important constituency of legal professionals. To orphan government lawyers again would be a lost opportunity.