In “A Less Private Practice: Government Lawyers and Legal Ethics”, a 2020 paper published in the Dalhousie Law Journal, Jennifer Leitch discusses the role of government lawyers amid claims for compensation relating to the St. Anne’s residential school.
It is now widely known that egregious physical, sexual and psychological abuse of Indigenous children occurred at St. Anne’s Residential School between 1941 and 1972.
Professor Leitch discusses how lawyering generally follows a private model, in which “private lawyers operate on the basis of an ‘enlightened self-interest’ in the sense that serving their client’s interests will ultimately serve their professional self-interests.”
She describes
The adversarial framework tends to perpetuate a hierarchy of duties and responsibilities that places zealous advocacy and client autonomy at its peak… In keeping with these notions of client autonomy and zealous advocacy, the adversarial framework encourages … that lawyers conduct themselves in certain ways. This conception of the lawyer’s role assumes the lawyer to be ‘neutral’ vis-à-vis the morality of their client’s views or actions. … To the extent that lawyers are not ethically accountable for the client’s objectives or the means used to achieve those objectives, there is little incentive to engage in a contemplative analysis of the steps they take in the client’s name.” The result is the creation of an environment in” which lawyers are incentivized to exploit any advantage the system allows on behalf of their client. The further consequence is a marginalization of the lawyers’ competing duties to the legal system and the public.
…
[However]… an unfettered loyalty to zealous advocacy and neutral partisanship might well undermine the Honour of the Crown, and the corresponding broader objectives of the elected government, including reconciliation.
Professor Leitch asserts that when taking instructions from and acting on behalf of a particular government body, a lawyer representing the public body “cannot and should not simply adopt a neutral partisan or ‘hired gun’ mentality that calls upon her to act as a zealous advocate and maintain a largely unfettered duty of loyalty to the instructing client.”
She recommends a “justice ethic”, which is already operationalized in certain government lawyering contexts. This might be expanded to provide “a meaningful and comprehensive framework for ethical government lawyering beyond the sphere of crown prosecutors.”
She advances a proposal for clarifying the role of lawyers who represent public bodies in civil proceedings.
Professor Leitch states that just because a lawyer representing the state can take a position does not mean that he or she should.
If taking a particular position could thwart, rather than foster, access to justice for the person involved, should that step be taken?
Is the duty to foster justice restricted only to crown prosecutors? Or does it extend to all lawyers who represent the public interest?
Our Supreme Court of Canada has signaled that it may be alive to this issue.
It will be interesting to see if our law will develop to clarify the role of public bodies in civil litigation, particularly in civil cases involving marginalized individuals.
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