Resolute Advocacy and Government Lawyers
In recent months, there have been several reports of lawyers for the US Department of Justice facing employment consequences for what the US Attorney General describes as failures of zealous advocacy. While I cannot speak to the US context, it seems worthwhile and timely to reflect on the role of zealous (resolute) advocacy for Canadian lawyers, including government lawyers.[1] Here I synthesize what I think is a fair consensus view in the Canadian context and then add some important points on which there is less consensus.[2]
The Consensus
Yes, government lawyers, like all lawyers,[3] unquestionably have a duty of resolute advocacy.
Yes, it is not the role of government lawyers to determine the public interest. This is the role of democratically legitimate politicians, often acting through their political appointees.[4]
Yes, lots of lawyers do – and often must – follow instructions with which they disagree.
At the same time, all lawyers, including government lawyers, must fulfill their duties as members of the legal profession and officers of the court. It is for the lawyer to determine what those duties require. It is not for the government, as client or as employer, to dictate or alter these requirements.
A lawyer is not, and cannot be, solely an unquestioning mouthpiece for their client.[5] The client who desires such a lawyer will hopefully be disappointed.
So: it is inappropriate for a government lawyer not to follow instructions because they disagree about what the public interest requires.
But: it is completely appropriate – and indeed obligatory – for government lawyers not to follow instructions if they determine that those instructions are contrary to their obligations as a member of the bar.
In other words, despite the sometimes reputation of lawyers as unprincipled mercenaries, there are some instructions that a lawyer not only should not follow but cannot and must not follow. Indeed, one of the few situations in which a lawyer is required to withdraw from a matter is when “a client persists in instructing the lawyer to act contrary to professional ethics”.[6] In such a situation, even a fervent believer in the righteousness of the government’s cause has no leeway.
What are some of these constraints on lawyers? Lawyers have a duty of “candour” to courts.[7] Lawyers also have a duty of “courtesy and respect” to courts.[8] These duties sit alongside, and are intertwined with and inseparable from, the duty of resolute advocacy.
These are duties that are not owed to the client and so they cannot be waived by any client. A client who instructs the lawyer to breach these duties, especially at the implicit or explicit threat of employment consequences, is relying on the ignorance, incompetence, zealotry, or fear of that lawyer.
The fact that the client and employer is the government does not immunize government lawyers from or otherwise negate their professional obligations.[9] The law society retains jurisdiction over government lawyers as they do with all lawyers.[10] The government can impose higher obligations on its lawyers than do the regulators of the legal profession, but not lower ones.[11]
The lawyer who complies with their professional duties in the face of instructions otherwise clearly displeases their client. Is this a bad lawyer? No, this is a lawyer who is complying with their minimum and absolute obligations as a lawyer – whether because of a sense of honour or merely because of a self-interested desire to maintain their professional status.
To the extent that this constitutes or appears to constitute insubordination, such insubordination is required by the lawyers’ professional obligations.
Beyond the Consensus
My own views go farther, beyond this consensus, venturing into potential disagreement.
First, yes, there may be intuitive honour in staying and doing the best one can to reduce the harm caused by the government – particularly when there is a legitimate suspicion that the next lawyer may be chosen specifically because they are willing to disregard their obligations. But that benevolent and self-sacrificing approach is simply not allowed to any lawyer, government or otherwise.[12]
Second, the true believer who wishes to further the righteousness of the government’s cause free of restrictive professional obligations has a choice: to be an unbridled partisan for the government or a lawyer for the government. They cannot be both at the same time. Indeed, identifying too closely with the client is also a serious problem.[13]
Third, a lawyer who finds their instructions so distasteful, as with the conception of the public interest those instructions convey, that they cannot competently represent the client’s interests must withdraw.[14]
Finally, these duties do not exist because litigation should be a “tea party”.[15] They exist because litigation cannot function effectively without them.[16]
Even without any of these less uncontroversial points, it remains clear that government lawyers are bound by their professional obligations as lawyers despite any wishes or instructions otherwise by the government as client or as employer.
The Point
Lawyers have non-negotiable obligations as professionals that make them different from other kinds of employees. The identity of the client does not reduce the professional obligations of lawyers. Democratic legitimacy empowers politicians and political appointees to determine the public interest, but it does not grant their lawyers the ability to do what other lawyers cannot.
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[1] I do not consider here the special role of prosecutors.
[2] See e.g. Andrew Flavelle Martin, “Loyalty, Conscience, and Withdrawal: Are Government Lawyers Different?” (2023) 46:2 Manitoba LJ 1 [Martin, “Different?”]. At the same time, I do not purport to speak for other commentators, and any shortcomings are my own. See e.g. Adam M 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; Kent Roach, “Not Just the Government’s Lawyer: The Attorney General as Defender of the Rule of Law” (2006) 31:2 Queen’s LJ 598.
[3] In contrast to the US context, Canadian law has explicitly held that government lawyers do not have a higher duty than lawyers generally. See e.g. Dodek, supra note 2 at 17, and at 16 quoting Everingham v Ontario (1992), 8 OR (3d) 121, 88 DLR (4th) 755 (Div Ct). Thanks to Adam Dodek on this point.
[4] See e.g. Malliha Wilson, Taia Wong & Kevin Hille, “Professionalism and the Public Interest” (2011) 38 Advocates’ Q 1.
[5] See e.g. Goodman v Rossi (1994), 21 OR (3d) 112 at 132, 120 DLR (4th) 557 (Div Ct), rev’d on other grounds (1995), 24 OR (3d) 359, 125 DLR (4th) 613 (CA).
[6] Federation of Law Societies of Canada, Model Code of Professional Conduct (Ottawa: FLSC, 2009, last amended April 2024) [FLSC Mode Code], r 3.7-7, online: <https://flsc.ca/wp-content/uploads/2024/11/2024-Model-Code-of-Professional-Conduct.pdf>.
[7] See e.g. FLSC Model Code, r 5.1-1: “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy and respect.”
[8] Ibid.
[9] See Krieger v Law Society of Alberta, 2002 SCC 65. (While Krieger is specifically about crown prosecutors, the reasoning applies equally to government lawyers.) See also Law Society of Upper Canada v Ontario Public Service Employees Union, 2014 ONSC 270. As to lawyers for the federal government, there are some quirks of Canadian federalism. See Andrew Flavelle Martin, “The Implications of Federalism for the Regulation of Federal Government Lawyers” (2020) 43:1 Dal LJ 363.
[10] Krieger, supra note 9 at paras 40-41.
[11] See e.g. Krieger, supra note 9 at para 50: “It may be that in some instances the conduct required by the Attorney General to retain employment will exceed the standards of the Law Society but of necessity that conduct will never be lower than that required by the Law Society.”
[12] See e.g. Andrew Flavelle Martin, “The Legal Ethics Implications of the SNC-Lavalin Affair for the Attorney General of Canada” (2019) 67:3 Crim LQ 161 at 172.
[13] See e.g. AS v British Columbia (Director Of Child, Family and Community Services), 2017 BCSC 1175 at para 58: “Moreover, counsel need to guard against identifying too closely with their clients in order to maintain the ability to provide effective, objective legal advice.”
[14] See Martin, “Different?”, supra note 2. Here I draw on the work of Alice Woolley (now Justice Woolley of the Alberta Court of Appeal), e.g. in Martin, supra note 2. See now Alice Woolley & Amy Salyzyn, Understanding Lawyers’ Ethics in Canada, 3rd ed (Toronto: LexisNexis, 2023). I acknowledge that the connection between withdrawal and resignation for government lawyers, as for in-house counsel, is a complex one. See e.g. Andrew Flavelle Martin, “Legal Ethics for Government Lawyers: Lessons from Nunavut” (2025) 47:3 Manitoba LJ [pre-print online June 2024], online: <https://themanitobalawjournal.com/wp-content/uploads/articles/MLJ_47%20(Pre-print).3/473-lessons-from-nunavut.pdf>.
[15] See e.g. Groia v Law Society of Upper Canada, 2018 SCC 27 at para 3, Moldaver J for the majority: “trials are not – nor are they meant to be – tea parties.”
[16] See e.g. FLSC Model Code, r 5.1-1, commentary 1: “The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.” See also Michael Code, “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System” (2007) 11 Can Crim L Rev 97 (later Justice Code of the Ontario Superior Court of Justice).
With respect, an obvious, deeply troubling, challenge to the rule of law in the US is, in large measure, the extreme politicization of the role and duties of the Attorney General. She/he is simply not the personal lawyer of a president, extreme or otherwise.
From a Canadian (and Windsor system) perspective, this does not mean , and can never mean, that the public interest, to which government lawyers adhere, in Canada are determined at the political level. Indeed, government would grind to a halt if all public interest determinations were made at the political level.
Canadian government lawyers work in the public interest, from small files to big. (See, amongst others, Deborah MacNair’s writing), as contrasted with private or corporate practitioners who work for the private interests of a series of individual clients or of a corporate client.
The majority of government legal files rarely hit or need a political level decision.
And the assessment of public interest can involve many factors ( eg social, economic, Indigenous, humanity, democratic/electoral mandate, etc.) and the subject of the file may, but not invariably, require the assigned lawyer(s) to take the matter up the institutional ladder for an ultimate determination.
In other words, public interest is not invariably determined at the political level of the Minister of Justice, ex officio, Attorney General.
Moreover, the duty of resolute advocacy exercised by government lawyers must inevitably be nuanced by the nature of the particular file.
The ultimate client of the government lawyer is the Crown (ie., to use Prof. Hogg’s term, the convenient symbol of the state – with all its power). As such, government practice must necessarily be attuned, amongst other things, to the public and human issues at play.
For instance, defending legislation in civil claims by Big Tobacco or Big Pharma may involve litigation approaches or tactics that vary from defending the Crown against physical and sexual abuse claims by former students, now elders, of Residential schools.
I hope this helps a fuller understanding.