Folk Hero or Legal Pariah? A Comment on the Legal Ethics of Edgar Schmidt and \u3ci\u3eSchmidt v Canada (Attorney General)\u3c/i\u3e

In Schmidt v Canada (Attorney General), government lawyer Edgar Schmidt sought a declaration that the Department of Justice and the Minister of Justice were misinterpreting legislation requiring the Minister to inform the House of Commons if government bills are inconsistent with the Canadian Charter of Rights and Freedoms. Schmidt was one of the lawyers who made recommendations under that legislation. Schmidt thus presents an unusual case study in legal ethics: what should, or can, a lawyer do when a client rejects the lawyer’s advice? What if the client is the government, and the advice is about fundamental rights? This comment considers Schmidt’s conduct in three respects: as a lawyer, as a delegate of the Attorney General, and as a public servant. While Schmidt violated his duty as a lawyer, this comment explains why he can nonetheless be seen as a folk hero in pursuit of the public interest, perhaps as a delegate of the Attorney General (from a legal perspective) or as a whistleblowing public servant (from the perspective of the public and the media)

Legal Ethics and Judicial Law Clerks: A New Doctrinal Account

Judicial law clerks are largely overlooked in the Canadian legal literature. This articleprovides a new doctrinal account of the ethical obligations of law clerks that is rootedin the fact that at least some of the major work of law clerks constitutes the practice oflaw—and thus that law clerks’ ethics are lawyers’ ethics. It argues that the lawyer’sduty to encourage respect for the administration of justice transposes some of theethical obligations of the judge into professional obligations of the law clerk. Thearticle also argues that the law societies’ regulatory and disciplinary jurisdiction overlaw clerks is at least largely incompatible with judicial independence

Legal Ethics for Government Lawyers: Lessons from Nunavut

While government lawyers face legal ethics issues unique to that practice context, those issues are overlooked in the rules of professional conduct in all but one Canadian jurisdiction: Nunavut. In this comment, I canvass several provisions that are unique to the Code of Professional Conduct of the Law Society of Nunavut. These provisions are inexplicably overlooked in the Canadian legal ethics literature to date. I then assess how these provisions address the legal ethics issues unique to government lawyering. Finally, I argue that the Nunavut provisions should be considered a starting point and I consider additional changes that could be made to further recognize the realities of government lawyering

Government Lawyering: Duties and Ethical Challenges of Government Lawyers

Are government lawyers different than lawyers in private practice? If so, why does it matter? While these questions have been addressed piecemeal in the Canadian legal ethics literature, Elizabeth Sanderson\u27s Government Lawyering: Duties and Ethical Challenges of Government Lawyers is the first comprehensive and long-form answer to them.1 As Adam Dodek hints in the foreword 2 and has noted elsewhere,3 the degree to which government lawyers have been overlooked in the Canadian legal literature is incongruent with their sheer numbers as a proportion of the legal profession in Canada. The need for this book is pronounced

The Attorney General as Lawyer (?): Confidentiality Upon Resignation from Cabinet

The unique role of the attorney general raises several special issues oflegal ethics. This paper addresses one previously unaddressed: whether it is appropriate for the attorney general to publicly announce his or her reasons for resighing from Cabinet. Unlike other ministers, the attorney general is almost always a practicing lawyer and thus bound not only by Cabinet solidarity and Cabinet confidentiality, but also by the lawyer\u27s professional duty of confidentiality and by solicitor-client privilege. The paper begins by canvassing a hierarchy ofreasons for a principled resignation and the rare historical examples where these have occurred. It then turns to the roles of the attorney general, analyzing how the legal ethics implications of the primary role-legal advisor to Cabinet-may be affected by two more amorphous roles: legal advisor to the legislature and guardian of the public interest. Finally, it considers the special case of the non-lawyer attorney general and how these issues would apply, as well as the more common situation of lawyers with other portfolios

The Lawyer’s Professional Duty to Encourage Respect for—And to Improve—the Administration of Justice: Lessons from Failures by Attorneys General

The lawyer’s duty to encourage respect for the administration of justice remains largely amorphous and abstract. In this article, I draw lessons about this duty from historical instances in which Attorneys General inappropriately criticized judges. Not only are Attorneys General some of the highest-profile lawyers in the country, but they also face unique tensions and pressures that bring their duties as lawyers into stark relief. I focus on the two instances where law societies sought to discipline Attorneys General for such criticism of judges, as well as a more recent instance in which no discipline proceedings were pursued. I also consider the obligations of Attorneys General when other Ministers inappropriately criticize judges. I conclude that a lawyer must take all reasonable steps in the circumstances to confirm the factual and legal accuracy of any criticism of the judiciary; that law societies should allow reasonable but defined latitude for public criticism of judges; and that, where a client inappropriately criticizes the judiciary, their lawyer must make good-faith efforts to urge the client to discontinue and apologize for such criticism—and if those efforts are unsuccessful, the lawyer must repudiate that criticism themselves or withdraw

Twenty Years After Krieger v Law Society of Alberta: Law Society Discipline of Crown Prosecutors and Government Lawyers

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly extraprofessional misconduct. Further research remains necessary on the patterns and incentives underlying law society discipline of Crown prosecutors and government lawyers. Nonetheless, the relative rarity of disciplinary proceedings involving Crown prosecutors and government lawyers does not necessarily mean that law societies are neglecting their statutory mandate as it applies to those lawyers. At the same time, law societies may indeed be overly reliant not only on internal discipline of these lawyers by governments as their employers, but also on criminal proceedings as prompts for investigation and discipline

The Implications of Federalism for the Regulation of Federal Government Lawyers

The implications of Canadian federalism for the regulation of lawyers for the federal government are largely overlooked in the literature and case law. This article argues that employees of the federal government can practice law without being licensed by the corresponding provincial law society (or any law society). However, if they happen to be licensed by a law society, they can be disciplined by that law society—unless and until Parliament adopts legislation immunizing them from law society discipline. The article also considers the possibility that Parliament could create a separate bar for federal government lawyers. It concludes that some form of regulatory and disciplinary jurisdiction over federal government lawyers is necessary to protect the public interest and public confidence in federal government lawyers. Les implications du fédéralisme canadien sur la réglementation des avocats à l’emploi du gouvernement fédéral sont largement négligées dans la littérature et la jurisprudence. Dans le présent article, nous soutenons que les employés du gouvernement fédéral peuvent pratiquer le droit sans être autorisés par le barreau provincial correspondant (ou tout autre barreau). Cependant, s’ils sont autorisés par un barreau, ils peuvent être sanctionnés par ce dernier, à moins que le législateur n’adopte une loi les immunisant contre la discipline du barreau. Dans l’article, nous envisageons également la possibilité que le législateur crée un barreau distinct pour les avocats du gouvernement fédéral. Nous concluons qu’une certaine forme de compétence réglementaire et disciplinaire à l’égard des avocats du gouvernement fédéral est nécessaire pour protéger l’intérêt public et la confiance du public dans les avocats à l’emploi du gouvernement fédéral

Crown Prosecutors and Government Lawyers: A Legal Ethics Analysis of Under-Funding

Crown prosecutors and government lawyers are reliant on governments for their funding but exert no meaningful influence or control over such funding decisions. Nonetheless, this article demonstrates that as a question of law, under-funded Crown prosecutors and government lawyers risk violating their professional duties. If so, they must promptly inform the government, refuse new matters and, if necessary, withdraw from existing matters. If the government purports to block such refusal or withdrawal and does not provide adequate funding, resignation will become necessary. While law societies will likely not prioritize disciplinary action against such lawyers, the policy reasons to forego such proceedings do not mean that the legal answer is wrong and should or will change. This discordance with practical reality demonstrates that legal ethics generally – and the rules of professional conduct more specifically – do not adequately appreciate the practice settings of government lawyers and Crown prosecutors. Nonetheless, any changes to the legal framework governing all lawyers should be considered carefully as they would have major implications for the regulation of the legal profession