Protecting their ‘ethical obligations’ (re Government Lawyers)

Written by Luis Millan

Part 1 of a 4 part series in The Lawyers Weekly, August 17 2012 issue

When Quebec’s Crown prosecutors and government lawyers were embroiled in a bitter labour standoff with the province last year, a major roadblock in negotiations — ​​aside from salary and staffing matters — ​​involved ethical issues.

Concerns over the independence and impartiality of government lawyers and allegations from the frontlines that non-lawyer managers sometimes interfere with their work will be addressed by a employer-labour committee, says Sébastien Rochette, president of the Association des juristes de l’État, which represents nearly 1,000 lawyers, notaries, and other legal professionals employed by the Quebec government.

“An employer should in no way be able to dictate or oblige a lawyer to do something that would put him in conflict with his ethical obligations,” Rochette says.

That provincial dispute points to a burgeoning ethical conundrum across Canada: Spurred by tensions in the workplace, mounting interest in government accountability and transparency, and mandatory continuing education requirements, growing attention is being paid over the professional responsibilities and ethical obligations of government lawyers, whose ranks include Crown prosecutors.

There is little debate in legal circles that Crown prosecutors owe a higher ethical duty than private practitioners. Prosecutors, observed Justice Ivan Rand in the oft-quoted R. v. Boucher[1955] S.C.R. 16, fulfil a “public function” that must be carried out “fairly and dispassionately” and exclude any notion of winning or losing. The prosecutor’s duty “is not to seek a conviction” but to present all credible and relevant evidence to the court so “that justice may be done through a fair trial.”

But government lawyers — ​​who provide legal advice, prosecute cases under federal or provincial law, and represent the government in court — ​​have few such guideposts, legal observers say.

Surprisingly little guidance has been provided by the courts or law societies over the ethical obligations of government lawyers. Indeed, they do not owe a higher ethical duty than other lawyers, and are treated no differently than corporate counsel or “lawyers for an organization,” says Adam Dodek, a University of Ottawa law professor specializing in legal ethics.

For the full story on The Lawyers Weekly website, click HERE.

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