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

Erotic Fever in The ArQuives: Imagining a Queer Porn Paradise in Cait McKinney and Hazel Meyer’s Exhibition Tape Condition: degraded

Focusing on Cait McKinney and Hazel Meyer’s site-specific exhibition Tape Condition: degraded (2016) at the ArQuives: Canada’s LGBTQ+ Archives, this paper explores reparative and desire-driven approaches for working with partial and missing histories within archives. Focusing specifically on artists working as archivists, I consider how the limitations of evidence-based histories can be addressed through creative practice. The essay unfolds in two parts. The first examines a selection of objects from the exhibition to draw out the historical context of The ArQuives, grounding my analysis of the conditions that have created and perpetuated specific archival gaps; in this case, pornography made by or featuring lesbian and trans-identified people. I consider how the animation of specific historical narratives anchors the exhibition as an archival intervention that positioned The ArQuives broadly as a site of community, conflict, censorship, and activism in the past and the present. The second part of the paper examines key elements of the exhibition that exemplify McKinney and Meyer’s reparative approach to archival practice. Drawing on Eve Sedgwick’s (2003) theorization reparative reading practices as a strategy of creative resistance and resilience in queer life and Eve Tuck’s (2009) definition of desire-based community research, I argue that McKinney and Meyer practiced a creative methodology that supplants the paranoid position of archive fever with an erotic reparative impulse, or erotic fever

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

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 Premier Should Not Also Be the Attorney General: Roncarelli v Duplessis Revisited as a Cautionary Tale in Legal Ethics and Professionalism

From time to time, a Premier or Prime Minister appoints themself as Attorney General. In this article, I argue that this dual portfolio is inherently and incurably problematic and should be avoided and indeed prohibited. I do so from the perspective of legal ethics and professionalism. The springboard for my analysis is the conduct of Quebec Premier and Attorney General Maurice Duplessis in the classic case of Roncarelli v Duplessis. While there may well be perceived benefits that tempt Premiers to serve in the dual role, any lawyer who does so unavoidably violates his or her professional obligations. For this reason, I argue that law societies or legislatures, or both, should introduce an explicit prohibition against this dual role