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Code of Professional Conduct
CHAPTER X
THE LAWYER IN PUBLIC OFFICE
RULE
The lawyer who holds public office should, in the discharge of official duties, adhere to standards of conduct
as high as those that these rules require of a lawyer engaged in the practice of law.1
Commentary
Guiding Principles
1. The Rule applies to the lawyer who is elected or appointed to legislative or administrative office at any level
of government, regardless of whether the lawyer attained such office because of professional qualifications.2 Because such a lawyer is in the public eye, the legal profession can
more readily be brought into disrepute by failure on the lawyer's part to observe its professional standards of
conduct.
Conflicts of Interest
2. The lawyer who holds public office must not allow personal or other interests to conflict with the proper discharge
of official duties. The lawyer holding part-time public office must not accept any private legal business where
duty to the client will or may conflict with official duties. If some unforeseen conflict arises, the lawyer should
terminate the professional relationship, explaining to the client that official duties must prevail. The lawyer
who holds a full-time public office will not be faced with this sort of conflict, but must nevertheless guard against
allowing the lawyer's independent judgement in the discharge of official duties to be influenced by the lawyer's
own interest, or by the interests of persons closely related to or associated with the lawyer, or of former or
prospective clients, or of former or prospective partners or associates.3
3. In the context of the preceding paragraph, persons closely related to or associated with the lawyer include
a spouse, child, or any relative of the lawyer (or of the lawyer's spouse) living under the same roof, a trust
or estate in which the lawyer has a substantial beneficial interest or for which the lawyer acts as a trustee or
in a similar capacity, and a corporation of which the lawyer is a director or in which the lawyer or some closely
related or associated person holds or controls, directly or indirectly, a significant number of shares.4
4. Subject to any special rules applicable to a particular public office, the lawyer holding such office who sees
the possibility of a conflict of interest should declare such interest at the earliest opportunity and take no
part in any consideration, discussion or vote with respect to the matter in question.5
Appearances before Official Bodies
5. When the lawyer or any of the lawyer's partners or associates is a member of an official body such as, for example,
a school board, municipal council or governing body, the lawyer should not appear professionally before that body.
However, subject to the rules of the official body it would not be improper for the lawyer to appear professionally
before a committee of such body if such partner or associate is not a member of that committee.6
6. The lawyer should not represent in the same or any related matter any persons or interests that the lawyer has
been concerned with in an official capacity. Similarly, the lawyer should avoid advising upon a ruling of an official
body of which the lawyer either is a member or was a member at the time the ruling was made.7
Disclosure of Confidential Information
7. By way of corollary to the Rule relating to confidential information, the lawyer who has acquired confidential
information by virtue of holding public office should keep such information confidential and not divulge or use
it even though the lawyer has ceased to hold such office.8
(As to the taking of employment in connection with any matter in respect of which the lawyer had substantial responsibility
or confidential information, see Commentary 3 of the Rule relating to avoiding questionable conduct.)
Disciplinary Action
8. Generally speaking, a governing body will not be concerned with the way in which a lawyer holding public office
carries out official responsibilities, but conduct in office that reflects adversely upon the lawyer's integrity
or professional competence may subject the lawyer to disciplinary action.9
NOTES
1. Cf. CBA-COD 9; IBA E-3; ABA-MR 1.11; ABA EC 8-8, DR 8-101(A).
2. Common examples include Senators, Members of the House of Commons, members of provincial legislatures, cabinet
ministers, municipal councillors, school trustees, members and officials of boards, commissions, tribunals and
departments, commissioners of inquiry, arbitrators and mediators, Crown prosecutors and many others. For a general
discussion, see Woodman, "The Lawyer in Public Life", Pitblado Lectures (Manitoba, 1971) p. 129.
3. Cf. generally the Rule relating to conflict of interest between lawyer and client. "When a lawyer is elected
to ... (a) public office of any kind, or holds any public employment ... his duty as the holder of such office
requires him to represent the public with undivided fidelity. His obligation as a lawyer ... continues; ... it
is improper for him to act professionally for any person ... [who] is actively or specially interested in the promotion
or defeat of legislative or other matters proposed or pending before the public body of which he is a member or
by which he is employed, or before him as the holder of a public office or employment." from Brand, Bar
Associations, Attorneys and Judges (Chicago, 1956) p. 179.
4. Both human and financial relationships are envisaged.
5. For example, Premier Davis of Ontario issued "Conflict of Interest Guidelines" to provincial ministers
in September 1972, requiring them "while holding office ... [to] abstain from day-to-day participation in
any ... professional activity." Specific "conflict of interest" laws have been introduced in several
Canadian jurisdictions.
6. Cf. Ont. 13; B.C. B-9(a). The Ontario ruling related specifically to municipal councillors. Local authorities
have increasingly been concerned with zoning, planning and development matters in which lawyers frequently act
professionally.
7. Cf. ABA DR 9-101(A), (B): "... not accept private employment in matters in which the lawyer has acted in
a judicial capacity or had substantial responsibility while he was a public employee."
8. Statutory oaths of office commonly impose obligations of "official secrecy".
9. In Barreau de Montreal v. Claude Wagner (1968), Q.B. 235 (Que. Q.B.) it was held that the respondent,
then provincial Minister of Justice, was not subject to the disciplinary jurisdiction of the Bar in respect of
a public speech in which he had criticized the conduct of a judge, because he was then exercising his official
or "Crown" functions. In Gagnon v. Bar of Montreal (1959), B.R. 92 (Que.) it was held that on
the application for readmission to practice by a former judge his conduct while in office might properly be considered
by the admissions authorities.
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