Government Lawyers, Law Professors and Watchdogs: Thoughts on public engagement

I am in the midst of a largely empirical academic article measuring "public engagement" by law professors in Canada.  (And for that reason, I was very interested to read Paul Daly's excellent thoughts on this same topic.)

Along the way, I have been pondering not just "how much public engagement" but also "what sort" and the broader normative question of "whether and why" public engagement. 

Meanwhile, events have unfolded in the appointment of a career Justice Department lawyer to the privacy commissioner post.  There, there has been criticism of his perceived lack of independence and potential conflicts between his role as commissioner and the files he may have handled while in government.  See here for a discussion of some of the legal issues around appointment.  As best I know (after reading the reporting from the parliamentary committee hearing), this is as far as most of the critiques have gone -- circumstantial inferences drawn from a curriculum vitae, from perception and from maxims such as the appearance of independence.  (I would hasten to add that at least some critiques focus on degree of expertise in privacy law -- that is entirely a different matter and central to any discussion.)

This has led me to juxtapose what I am learning about law professor public engagement with the sorts of issues that lawyers in government (and also private) practice encounter daily.  For the very little it is worth, I thought the time ripe to articulate some of these impressions.

On Law Professors and Public Engagement

As an academic, I enjoy "academic freedom".  This is a contractual right found in Article 9 of the collective agreement of which I am part.  That provision guarantees that neither the university nor the union will infringe or abridge my "academic freedom", defined as follow:

Academic freedom is the right of reasonable exercise of civil liberties and responsibilities in an academic setting. As such it protects each member's freedom to disseminate her opinions both inside and outside the classroom, to practice her profession as teacher and scholar, librarian, or counsellor, to carry out such scholarly and teaching activities as she believes will contribute to and disseminate knowledge, and to express and disseminate the results of her scholarly activities in a reasonable manner, to select, acquire, disseminate and use documents in the exercise of her professional responsibilities, without interference from the employer, its agents, or any outside bodies. All the above-mentioned activities are to be conducted with due and proper regard for the academic freedom of others and without contravening the provisions of this agreement. Academic freedom does not require neutrality on the part of the member, but rather makes commitment possible. However, academic freedom does not confer legal immunity, nor does it diminish the obligations of members to meet their duties and responsibilities

 

The last few statements are important.  Academic freedom is not the right to be incompetent or lazy or inept or refuse to do my duties.  Nor is it some sort of quasi-constitutional, public law norm that elevates me above the law governing other persons.  Rather, it is an understanding between me and my employer that allows me to pursue scholarly and teaching activities without fear of employment-related retaliation.

For many law professors, public engagement -- which I believe done properly falls into the "disseminate knowledge" component of academic freedom -- may mean taking positions on the chief legal controversies of the day.  In so taking these positions, a law professor deploys (essentially state-funded) expertise to deepen understanding and provide (sometimes missing) context or countervailing positions. 

Most other actors in any given debate are encumbered by restraints on what they can or will say.  Law professors are not, and that very fact is at least one decent reason why they should exist.  (Another decent reason is that I like my job).  The positions taken and opinions voiced by a law professor are her or his own, ideally arrived at through academic study and analysis and supported by fact and credible inference.  In other words, they should ideally be the product of marshalled expertise and not instead a lay opinion shellacked with expert credentials. (If they are the latter, then they should be in the letter-to-the-editor section of the paper, not in the newsreporting or even the op-ed section). 

In sum, academic freedom means that these expert views are not dictated by others.  In the result, a law professor need only follow her or his conscience, and answers to no one for it.

(In recent practice, this has sometimes led academics to be tarred as "partisan" or "enemies" by the political class.  In some cases, there may even be truth to a few of these accusations.  But partisans often seem to imagine that criticism is motivated by allegiances, and not by reason.  In my case, I can only claim this: if I oppose a government position it is because of the substance of the position, not its author.  And if I have political preferences, it is because of amalgam of substantive positions, not because of the brand.  Put another way, support is earned on the merits, not bestowed because of the colour of the campaign sign.  I'm pretty sure that's how democracy works best.)

On Lawyers in Practice and the Client

I have also been a practising lawyer, albeit for a short period of time before embarking on a career as an academic.  As a practising lawyer, my behaviour is governed by the rules of professional conduct in the three jurisdictions in which I am a member of the bar.  I am expected -- obliged -- to act in the best interests of my client.  For example, Rule 4 of the Ontario code reads: "[w]hen acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect." 

As anyone who has had a foot in these two domains knows, this is a very different universe from the one that I inhabit as a law professor.  It is possible to follow one's conscience, but to a much lesser degree.  As Rule 4 suggests, there are outer limits to what I can and should do for a client.  And in private practice, I am free to choose which clients I am prepared to represent (at least in principle.  In practice, economic reality or the hierarchy in a large firm may choose clients for you).  But the range of liberty is much constrained relative to the world of a law professor.

This is true for a government lawyer as well.  The Ontario rules (R. 6.05) impose as high a standard of conduct on lawyers in public office -- elected or appointed -- as on any other practising lawyer.  My colleague Adam Dodek has authored an insightful article on government lawyering the rule of law in which he argues persuasively that government lawyers are on a different footing that private sector lawyers and have public interest obligations that pull in a direction different from their private sector counterparts.  But nevertheless, the freedom of action for a government lawyer is still much smaller than that of a law professor (and indeed has probably become smaller in the present climate at the federal level).

Academics v Lawyers

All of this is to say that when I write an article or opine on an issue, it represents my views on the matter, as they exist at that moment.  Those views may change and evolve -- they often do.  Indeed, "academic freedom" to me means that I must be open to changing my views -- freedom means intellectual nimbleness, not dogma.  (Like everyone else, I don't like being wrong.  But I figure that I'm doing well if I aspire to Teddy Roosevelt's effort to be right at least 75% of the time.)

All this is different from the world of private practice.  When I'm practising law as an advocate, I am advancing the full range of (ethical) arguments open to me in representing the interests of my client.  As a law professor that occasionally chooses to work on pro bono cases, there is not usually a large gap between where my current understanding of capital "T" "Truth" lies, and where my professional responsibilities take me.   As a lawyer briefly in private practice, this same philosophy might have informed how I offered advice and coloured my attitudes and interpretations.  I never had to deny my core values.  But this was never about wandering the earth following my conscience: I took instruction and served my client to the best of my abilities, within the range of my professional obligations and the law.  If a lawyer is not prepared to do that, then the exit is mostly (although not exclusively) at the front end: don't take on the client (or become a law professor).  Anything else, and the system crumbles.

The Fallacy of Judging a Lawyer by Her or His Brief

The juxtaposition between lawyer and academic has occasionally been made stark to me.  I have been known to speak at government events, and at those events, I feel inclined to exercise my academic freedom in criticising government positions or policies that so warrant.  I try to do so fairly and with balance (with mixed success, some observers might say).  But to leave the bull in the china shop unaddressed defeats the utility of my presence.  I see little virtue to love-ins.  (I would add that when speaking at events at which there is no government representation, I do often try earnestly to communicate my best understanding of government perspectives.  This assumes there is a government position -- I grow weary of trying to imagine never articulated justifications for certain policies and acts.)

At one government event in which I apologized in advance and then proceeded to do the gad fly thing, I was admonished by a senior (and justifiably, much admired) government counsel that I must distinguish between those who issue instructions and those who execute them.  He was right to do so.  Certainly, how and what a lawyer advises matter, as does the manner in which the lawyer executes the instructions. But nevertheless, the point is well taken.

And so this brings me full circle to the initial observation about government lawyers appointed to watchdog roles.  If they have served their government client with distinction (and within the bounds of ethical and legal responsibilities) then that is surely not a mark against them.  This is true even if they were the face on a legal matter with which I disagreed.  In sum: I am interested in who they are and will be, and not what they have been (except in so far as it relates to subject matter expertise or tangible evidence of improper conduct).  I do not believe it proper for me to judge otherwise professional conduct against the standards of unalloyed academic freedom that I enjoy.  (I hope in my public commentary I never have. I certainly have actively resisted efforts to do so in the past but I am not perfect).

Nor, as an empirical matter, am I at all persuaded that once a government lawyer, always a government fifth column.  I can name a few former government lawyers who, once free to follow their own conscience as academics, judges or watchdogs, exercised that freedom to much greater effect than I ever have.  And so I will judge by what happens in the future, and not doubt someone for their past professionalism.