LOYALTY, LEGALITY AND PUBLIC SECTOR LAWYERS
Keywords:duty of loyalty, public sector lawyers, confidentiality, conflicts of interest, Schmidt, professional conduct, Minister of Justice, public service, Illegality, Department of Justice Act, Public Servants Disclosure, Protection Act, rule of law
This article examines the duties of loyalty that public sector lawyers owe to their government clients and how considerations of legality limit this duty. It focuses on a recent decision of the Federal Court of Appeal in Schmidt v Canada involving a senior government lawyer’s court challenge to the legal position of the Minister of Justice (in whose department he was employed) on the Minister’s statutory obligation to report on the inconsistency of government bills with the Charter and the Canadian Bill of Rights.
The article argues that, while loyalty and legality are both critically important elements that shape the role of government lawyers, neither should be pursued at all costs. Loyalty is essential for maintaining the respect and confidence of public officials in the lawyers who advise them. And although their essential role is to support government adherence to law, this role is tempered by the uncertainty inherent in many aspects of law relating to matters of public policy and the role of the courts to resolve these uncertainties. Public sector lawyers must respect and support the choices of the government officials they advise in all but the clearest circumstances of illegality. The threshold for publicly attacking the legality of government decisions is very high, mirroring the standard the Federal Courts have recognized in Schmidt: no credible argument to support legality. Anything less risks eroding the influence public sector lawyers have with the officials they serve, and ultimately eroding the rule of law itself.