“In the Public Interest”: Understanding the Special Role of the Government Lawyer

The concept of the “public interest” is the foundational principle that guides and structures the special role of government lawyers. This public interest role is derived from a number of constitutional and statutory sources but, in Ontario, it finds its foundation in section 5 of the Ministry of the Attorney General Act, which provides that the Attorney “shall see that the administration of public affairs is in accordance with the law”. This responsibility to uphold and advance the rule of law falls not just to the Attorney but to all government lawyers who act on his or her behalf. What does this mean in practical terms for government lawyers on a day-to-day basis? in the view of Ontario’s Deputy Attorney General, there are three foundational principles that must serve as touch-stones in the fulfilment of their public interest role, namely: (i) independence; (ii) a commitment to principled decision-making; and (iii) accountability. This paper elaborates the significance and implications of each of these foundational principles. It also considers whether, in light of the public interest role of government lawyers, they should be held to a higher or different standard of professional responsibility. The author argues that any such special or higher duty would be inappropriate and inconsistent with the proper limits of the lawyer’s professional role within government. Finally, the paper explains how and why solicitor-client privilege plays a critical enabling role in the fulfilment of government lawyers’ responsibilities