Published In

Ottawa Law Review

Document Type

Article

Publication Date

2018

Subjects

legal ethics, political activity, government lawyers

Abstract

The ability to engage in political activity is an essential feature of a democratic society. However, the ability of government lawyers to do so is unclear. While most governments have passed legislation identifying permissible political activity of their employees, it is unclear how the professional obligations of lawyers apply in this context and how these professional obligations interact with this legislation. This article answers these questions. The duty of loyalty to the client requires most government lawyers to refrain from all political activity at the same level of government. The special professional obligations of Crown prosecutors require these lawyers to refrain from all political activity. The duty to encourage respect for the administration of justice requires counsel for courts and tribunals to refrain from political activity to the same extent required of judges and members of these courts and tribunals. Charter considerations will reduce these restrictions only somewhat. However, legislation on the political activity of government employees should be interpreted as a waiver of the duty of loyalty that allows most government lawyers to engage in political activity as permitted by that legislation. The article concludes by making recommendations for legislators and law societies to address this uncertainty.

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