Legal Ethics and the Political Activity of Government Lawyers.

• Author: Martin, Andrew Flavelle
• Position: Canada

INTRODUCTION

Justice Abella, writing for the Supreme Court of Canada in Dore v Barreau du Quebec in the context of civility, argued that the professional obligations of lawyers do not, and should not, render them "verbal eunuchs." (1) She noted that lawyers "not only have a right to speak their minds freely, they arguably have a duty to do so." (2) However, it remains to be seen whether these professional obligations render some lawyers--specifically, government lawyers--political eunuchs, despite their constitutional and statutory rights to political activity.

Consider this scenario. Lawyer X is an employee of the provincial government. She frequently represents that government before the Court of Appeal and the Supreme Court. These appeals often involve controversial issues, on which the opposition parties hammer the government. Lawyer X is also a lifelong member of provincial Party Y. She routinely canvasses for candidates in elections and by-elections, and always makes the maximum donations allowed by law. Does this political activity contravene her professional obligations as a lawyer? Does it matter if Party Y is the governing party or an opposition party? Or a federal party instead of a provincial party? What if Lawyer X appears only in routine negligence cases, or does only solicitor work advising the government on commercial transactions? The answers to these important questions are currently unclear.

The ability to engage in political activity is an essential feature of a democratic society. The rights to vote, to support a candidate or party, and to run in an election are protected under the Canadian Charter of Rights and Freedoms (Charter) and are, for the most part, relatively uncontroversial. (3) While government employees do face some legislated constraints on political activity in order to protect public confidence in an apolitical bureaucracy, these constraints are fairly minimal and generally well understood. (4)

However, government lawyers are a subset of government employees who face substantial uncertainty around permissible political activity. Government lawyers are both government employees and lawyers and thus are subject both to the legal regimes regulating government employees and to those regulating lawyers. As Adam Dodek puts it, "[g]overnment lawyers are not simply lawyers working in the public sector. Nor are they simply public servants who happen to be lawyers. They are both lawyers and public servants at the same time." (5) Political activity is one context in which the interaction of these multiple regimes is not clear--a context which is unaddressed in the case law (6) and literature. (7)

Government lawyers must comply not only with legislation on government employees but also with the professional obligations that apply to lawyers under legislation on the legal profession. The uncertainty exists because it is unclear both how those obligations affect political activity when the government is the client and how those obligations interact with the legislation on government employees. In this article, I propose answers to these questions in order to assist government lawyers in navigating this uncertainty and assist legislators and law societies in identifying ways to reduce or eliminate this uncertainty. I argue that these questions are important because they affect public confidence in the legal profession and the administration of justice.

This article is organized into three parts. In Part I, I examine legislation on the political activity of government employees and assess how it applies to government lawyers. In Part II, I argue that the professional obligations of lawyers restrict the political activity of government lawyers. For most government lawyers, the relevant professional obligation is the duty of loyalty to the client. However, different professional obligations are relevant for two other groups of lawyers. The specific professional obligations of Crown prosecutors impose a duty of political neutrality. Similarly, the professional obligation to encourage respect for the administration of justice requires political neutrality of counsel to courts and tribunals, to the extent political neutrality is required of judges and members of those courts and tribunals. In Part III, I consider how political activity legislation and professional obligations interact and how government lawyers may choose to exercise their political rights. While the most prudent option for government lawyers would be to refrain from political activity that is permitted under legislation but that may conflict with professional obligations, I acknowledge that foregoing such activity is a heavy price. I argue that most government lawyers may engage in political activity as permitted by the corresponding political activity legislation, based on a theory of waiver of the duty of loyalty by the government as the client. Finally, I conclude by providing recommendations and reflecting on the importance of these questions, given that this area does not appear to be a regulatory priority for law societies.

As a preliminary matter, definitions and key concepts require some attention. The term "government lawyer" is used in different ways by different commentators. For example, Allan Hutchinson defines it broadly as "those who are employed by or sub-contracted to work for federal, provincial, or local governments, related agencies, and public bodies," (8) while Dodek defines it as "lawyers working for the executive branch." (9) I consider government lawyers to be those employed by the executive or a body established by the executive. (10) I include only those who practice law in the course of their employment. (11) There is much literature discussing who is the client of the government lawyer and from whom the government lawyer receives instructions. (12) For my purposes, I assume the client is the government --i.e. the Crown in right of Canada or a province--or a ministry of government, or a government body or agency. (13) I include as government lawyers those for whom the client is an adjudicative tribunal. I will also address lawyers who advise the judiciary, such as law clerks and staff lawyers. While the executive is not their client, and thus these lawyers may not be considered government lawyers in the strict sense, the executive is often the employer, and thus such lawyers are often subject to legislation on political activity.

I define political activity in a broad way that, as I will demonstrate in Part I, tracks closely with the definitions used in legislation on the political activity of government employees: generally, anything done for or against a specific party or candidate. At the outset, I acknowledge that any government lawyer who discloses privileged or merely confidential information to a political party, or who uses such information in support of a party, is clearly in breach of his or her professional obligations. My focus is on general political activity, such as belonging to a party, donating, fundraising, canvassing, endorsing, seeking a nomination, or running as a candidate--as well as public comment on, and criticism of, policies or decisions of the government or a political party.

My analysis focuses on the interplay between three key legal concepts: the public service's duty of political neutrality, the lawyer's duty of loyalty to the client, and the Charter's recognition of political rights and freedoms. The political neutrality of the public service, (14) which includes the requirement that "[p]ublic servants do not engage in partisan political activities," (15) is a constitutional convention. (16) The lawyer's duty of loyalty has four recognized component duties: a duty of confidentiality, "the duty to avoid conflicting interests," "a duty of commitment to the client's cause," and "a duty of candour." (17) While the duty of loyalty is a duty to the client, it protects public confidence in the administration of justice. (18) The Charter in section 2(b) recognizes freedom of expression, (19) which includes political expression, (20) and in section 3 recognizes the right of all citizens to vote and run for office in federal and provincial elections. (21) As I will explain, the duty of political neutrality and the duty of loyalty overlap in part for most government lawyers, and both duties are mitigated by the Charter.

1. LEGISLATION ON THE POLITICAL ACTIVITY OF GOVERNMENT EMPLOYEES

   In this part, I assess federal and provincial legislation on the political activity of government employees and identify how that legislation applies to government lawyers. As I will explain, this legislation balances the implementation of a constitutional convention against the Charter rights of government employees. While the legislation applies to government lawyers, it does not specifically consider government lawyers as a group.

   Legislation at the federal level and in most provinces regulates the political activity of government employees. (22) The federal Public Service Employment Act (the federal Act) applies to employees of the federal government, and corresponding provincial regimes apply to employees of those provinces. (23) The legislation is a matter of labour and employment law, and as such, a breach is grounds for discipline and not an offence. (24) These laws typically define political activity broadly. (25) For example, the Public Service of Ontario Act (the Ontario Act) defines political activity as "do[ing] anything in support of or in opposition to a federal or provincial political party," "do[ing] anything in support of or in opposition to a candidate in a federal, provincial or municipal election," and being "or seek[ing] to become a candidate in a federal, provincial or municipal election." (26) The definition also includes "comment[ing] publicly and outside the scope of the duties of his or her position on matters that are directly related to those duties and...