If only, by reading your Law Society Code of Professional Conduct you could be led to assume that government lawyering is just like private or corporate practice — except for prosecutors who must “see that justice is done,” unlike the usual zealous advocacy duty.

You would be misled. Government lawyers are not free agents in private practice.

History, additional constitutional and statutory duties, institutional context and a singular State client, lead to significant distinctions in practice. Here is but a flavour.

As the foremost check on the constitutionality, legality and fairness of government actions, the role of government lawyers is especially important in the exercise of State power. Critical to our constitutional democracy are the constitutional and statutory duties of the Chief Law Officer of the Crown, reflected in all parallel federal, provincial and territorial legislation framing this Office. Particularly crucial is the duty to see that the administration of public affairs accords with the law.

Government lawyers acting on behalf of the Crown’s Chief Law Officer practice law in a governmental hierarchy. Their positions on law and public interest may be reviewed by officials higher up. In our system of responsible government, the Minister of Justice and Attorney General are all answerable to Parliament, Legislatures, courts and the electorate for actions taken in their name.

Government lawyers have one client at their level of jurisdiction: the Crown, that symbol of State stability. This singular client requires a whole-of-government perspective with consistent interpretations of the law and public interest across government and before courts.

In a constitutional democracy, government lawyers must be attuned to changing electoral mandates, without pandering to partisan, private or personal interests. They must neither provide dubious legal cover to pander to partisan demands, nor create dubious legal roadblocks to prevent elected governments from achieving their democratic mandate. (See, for example, Schmidt v. Canada (Attorney General), 2018 FCA 55.)

Candour exercised by government lawyers means not waiting to be asked. Being proactive requires advising on where the law is at and where the law may be pushed by questionable initiatives and policy decisions. Legal risk management and cautioning ministers and officials about being “careful what they wish for” are part and parcel of government practice.

Candour exercised by government lawyers is always mindful of the Constitution and obviously the law in all its aspects, but must go further and consider a myriad of matters, such as Aboriginal and treaty rights and Indigenous legal traditions, international law and influences in laws from other jurisdictions.

Unlike private or corporate practice, government lawyers focus on the public interest. They must be attuned to potential impacts of State actions on Canada and Canadians. Their client, after all, represents the interests of all members of Canadian society (Rudolph Wolff & Co. v. Canada, [1990] 1 SCR 695).

Public interest may be determined by ministers attuned to electoral mandates in a constitutional democracy. Beyond a ministerial direction, however, public interest must be assessed in all files, determined by their context and potentially evolving nature.

Public interest is an assessment shared with other public servants. It is not determined by the specific legal function. For instance, the public interest in litigation fending off well-endowed adversaries attacking proper legislation may require zealous advocacy. Think “Big Tobacco” or “Big Pharma.” Public interest in matters involving victims of harmful government policies point to a more nuanced, judicious approach analogous to prosecutors’ explicit duty to seek justice.

A key responsibility of government lawyers, as a former Justice Canada Deputy Minister explained, is to remind governments of their responsibilities and to help prevent harm.

Without arrogance or dictates, key to healthy government practice in a constitutional democracy is collegiality, nuance and balance with a central focus on the law and public interest in a myriad of fascinating public matters.