Loyalty, Legality and Public Sector Lawyers

Abstract

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, the uncertainty inherent in many aspects of law relating to matters of public policy and the role of the courts to resolve these uncertainties argue that government lawyers 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 must be very high indeed, essentially as the Federal Courts have decided in Schmidt: no credible argument to support legality. Anything less risks eroding the influence government lawyers have with the officials they serve, and ultimately eroding the rule of law itself.