THE NON-LAWYER ATTORNEY GENERAL: PROBLEMS AND SOLUTIONS.

• Author: Martin, Andrew Flavelle
• Position: British Columbia, Canada

Introduction

The Attorney General is the chief law officer of the Crown. (1) Among other things, they are "the official legal adviser of the Lieutenant Governor, and the legal member of the Executive Council"; "shall advise the heads of the several departments upon all matters of law"; and "ha[ve] the regulation and conduct of all litigation for or against the Crown". (2) These duties unquestionably constitute the practice of law. With some exceptions, the unlicensed practice of law is an offence. (3) The purpose of licensing, along with the rest of the self-regulation of the legal profession, is to protect the public interest. (4) Nonetheless, some Attorneys General are not licensed as lawyers, which is to say that they are not members of the corresponding law society. As Graham Steele asks, "Does it matter?". (5) More specifically, does this leave unprotected the interests of the government as client--or, more importantly, the public interest? Yes, indeed it does.

The long-running assumption and assertion in the case law and literature was that the Attorney General is not required to be a lawyer. In 2013, the BC Court of Appeal in Askin v Law Society of British Columbia squarely confirmed this assumption. (6) This holding, despite its important consequences for the public interest and its aftermath, has been the subject of little analysis in the subsequent case law or literature. These consequences thus remain not only unaddressed, but also largely unacknowledged.

In this article, I provide a legal and policy analysis of the non-lawyer Attorney General and recommendations for legislative change. I begin in Part 1 by setting out and assessing Askin and its uptake in the case law and literature. I demonstrate that while the decision in Askin has two major weaknesses, the reasoning is presumably applicable across the country. (7) In Part 2, I examine the legal consequences of Askin and its policy or practical consequences. I argue that it threatens the government's solicitor-client privilege and that it leaves the non-lawyer Attorney General unconstrained by the law of lawyering more broadly. Against this context, in Part 3 I consider options for legislative reform and propose a path forward that will solve the legal consequences of Askin. I recommend legislative amendments that would deem the non-lawyer Attorney General to be a member of the corresponding law society so long as they held that role. 1 then conclude by reflecting on the implications of my analysis. If nothing else, such legislative deeming would clearly identify the reasonable expectations of the legislature and the public, as well as signal to law societies that the regulation of the legal profession must unavoidably include regulation of the Attorney General. I also recommend the recognition of a constitutional convention that only lawyers be appointed as Attorney General.

Part 1 : Askin v Law Society of British Columbia and its uptake

In this Part, I canvass and critique the holding and rationale in Askin and situate the case in the previous and subsequent legal literature and caselaw.

The petitioner in Askin unsuccessfully argued that the appointment of a nonlawyer as Attorney General was invalid and that the non-lawyer Attorney General was violating the prohibition against the unlicensed practice of law under the Legal Profession Act. (8) She also argued that other provincial legislation, including legislation on the office of the Attorney General, similarly required that the Attorney General be a lawyer. (9)

The petitioner also argued, likewise unsuccessfully, that the Law Society had erred in its decision that it lacked "jurisdiction" to investigate her complaint against the non-lawyer Attorney General for unlicensed practice. (10) The reaction of the Law Society to the decision of the Court of Appeal was that "[t]he law society is content to have the matter once again resolved and to have confirmation of our interpretation of the Legal Profession Act and other statutes." (11)

The core holding in Askin can be broken down into two linked propositions. The first is a matter of constitutional law: the unconstrained ability to appoint members of cabinet, including the Attorney General, is a prerogative power. (12) The second proposition, which is a question of statutory inteipretation, is that BC legislation--including the Legal Profession Act--had not displaced that prerogative power. (13) In particular, the Interpretation Act deems that a statutory assignment of duties includes the necessary powers to fulfill those duties. (14)

In arriving at this decision, each level of court made a notable observation. Justice Stromberg-Stein of the Supreme Court of BC held that, as a matter of statutory interpretation, "statutes imposing duties on a minister of the Crown cannot be read as requiring that in order to perform their duties, the minister must obtain additional authority under a statute of general application, such as the Legal Profession Act." (15) The Court of Appeal, considering a statutory interpretation argument applying the concept of necessary implication, adopted the position of the Attorney General that "[i]t is not necessary for the purpose of protecting the general public, the purpose of the Legal Profession Act, that the person appointed to the office of Attorney General be a member of the Law Society, or even that the person be legally trained." (16)

Neither level of court otherwise engaged with the petitioner's submissions that the public interest required the Attorney General to be a lawyer, i.e. that "[principles of the public interest in the administration of justice also militate against a non-lawyer holding office as Attorney General" and that "[s]erious harm to the rights of individual citizens of the province is a very real risk where an unqualified person is appointed to the office of the Attorney General." (17)

Although not mentioned in Askin, a similar question was superficially answered in the 1919 decision of the Manitoba Court of Appeal in Rex v Nyczyk, (18) The appellant in Nyczyk argued that the indictment was invalid because it was preferred under the authority of the acting Attorney General, who was not a lawyer. (19) However, the Court held that "[t]here is nothing in the statutes that I can find requiring the Attorney-General to be a barrister or a solicitor, although the holder of that office usually is a barrister." (20) (Unfortunately, the Court did not elaborate or otherwise support this statement with any legal analysis.) Moreover, Purdue CJM applied the proposition that "[i]t is a general presumption of law that a person acting in a public capacity is duly authorized so to do". (21) This proposition appears to parallel the interpretive argument in Askin that statutory duties include the power to carry out those duties.

Similarly, MacKenzie J in Krieger v Law Society of Alberta asserted, without giving any support, that "an Attorney General does not have to be a lawyer". (22) Moreover, presaging the interpretation of the BC Legal Profession Act in Askin, she also asserted that "the intent and purpose of that Act [the Alberta Legal Profession Act] is to control the standards of lawyers. It is not in any way concerned with the functions of the Attorney General as such." (23) While the Supreme Court of Canada affirmed the result in Krieger, it made no comment on these parts of the reasons of MacKenzie J.

The assumption in almost all of the literature prior to Askin was that the Attorney General was not required to be a lawyer. For example, David Kilgour wrote in 1979 that "[t]he Attornies General of both our federal and provincial governments need not be lawyers but invariably have been since one's mind runneth not to the contrary." (24) Similarly, Grant Huscroft in 1995 noted that "[i]n Canada, however, it is clear not only that the Attorney General might not be the best lawyer; the Attorney General might not be a lawyer at all." (25) However, neither Kilgour nor Huscroft cited any legal support for their assertions, instead merely observing the fact that non-lawyers had occasionally been appointed as Attorneys General. (26) As noted by Michael B. Murphy, former Attorney General for New Brunswick, this fact is "irrelevant.... [t]he appointments simply have not been challenged." (27)

A more nuanced position was taken on behalf of the New Brunswick Branch of the Canadian Bar Association in 1987: "Given the nature of these duties and functions [of the Attorney General] it will be seen that only in exceptional circumstances could the office be discharged by one who is not a lawyer." (28) Unfortunately this assertion was not explained. In particular, there was no indication of what might qualify as such "exceptional circumstances". (29) Neither was it clear whether the assertion was squarely one of law or one of policy, or both.

Many decades before any of this literature, however, W. Kent Power in a 1939 note in the Canadian Bar Review squarely considered the arguments that the Attorney General must be a lawyer as a matter of law and policy. (30) Power's motivation was the appointment of a non-lawyer Attorney General for Alberta in 1937, which Power identifies as likely the first such non-lawyer Attorney General in Canadian history. (31) Intriguingly, Power's legal analysis largely foreshadowed Askin. Like the applicant in Askin, Power recognized a legal argument based on the legislation governing the practice of law and the office of the Attorney General--but, like the courts in Askin, he recognized the impact of the prerogative power (the scope of which power he described as being "very nebulous" at the time). (32) Also like Askin, Power suggested that as a matter of policy, a non-lawyer Attorney General would not be capable of effectively performing the duties of office and would thus endanger the public interest (in Power's words, "the public welfare"). (33)

The uptake of Askin in the...