Lawyering at the Intersection of Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of Law
Dalhousie Law Journal, Vol. 33. No. 1, 2010, pp. 1-53
53 Pages Posted: 26 Nov 2010 Last revised: 10 Feb 2017
Date Written: November 25, 2010
Government lawyers are significant actors in the Canadian legal profession, yet they are largely ignored by regulators and by academic scholarship. The dominant view of lawyering fails to adequately capture the unique role of government lawyers. Government lawyers are different from other lawyers by virtue of their role in creating and upholding the rule of law. Most accounts of government lawyers separate public law duties of government from ethical duties of lawyers; for example, acknowledging the "public interest" role of government lawyers but asserting that this has no impact on their ethical duties as lawyers. Instead of this compartmentalized approach, this article advocates a unified vision of the roles and responsibilities of government lawyers. Examining the role of government lawyers should start by recognizing that they operate at the intersection of public law and legal ethics. Government lawyers are not simply lawyers working in the public sector. Nor are they simply public servants who happen to be lawyers. They are both lawyers and public servants at the same time. This creates unique tensions, problems and responsibilities for government lawyers.
Government lawyers do owe a higher ethical duty than other lawyers which is explained through the concept of government lawyers as custodians of the rule of law. Existing forms of regulation are adequate for public protection but insufficient in public law terms to address concerns regarding the exercise of public power. Additional forms of accountability should be created including the development of specific codes of conduct for government lawyers, proactive disclosure and the creation of an Office of Professional Responsibility within federal and provincial departments of justice.
Keywords: Legal Ethics, Professional Responsibility, Government Lawyers, Prosecutors, Rule of Law, Public Law
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