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Why we need public sector lawyers

Already a potential target for staff reductions, public sector lawyers are essential to the effective functioning of government.

Colonnade, row of classical stone columns

Public sector clients need trusted legal advisors in the same way that private sector clients do. The difference is that the public sector lawyers represent their respective governments—and, by extension, the citizens within their jurisdiction.

A proposed resolution  that will be debated at the CBA’s 2020 Annual General Meeting  would affirm this unique and critical role. Brought forward by Public Sector Lawyers Section, it specifically calls on the CBA to urge Ottawa, the provinces and the territories to maintain “an appropriate complement of public sector lawyers necessary to support good governance in a manner consistent with the rule of law and the public interest.”

“In the broad sense, we would like to have a mandate of support for government lawyers, and lawyers for public institutions, to affirm their unique role,’” says Melanie Mortensen, the Section chair and the mover of the resolution.

The resolution seeks to caution governments that any efforts to reduce the number of public sector lawyers due to fiscal or budgetary restraints would leave gaps that external counsel cannot fully replace.

Margaret Drent, the Section vice-chair, is the seconder of the resolution. She says public sector lawyers help protect the rule of law and the functioning of government by providing advice to elected officials who may have limited experience with specific matters before them.

“Public sector lawyers have a key role to play in terms of institutional memory,” she says. “Their expertise is very important in terms of moving forward policy developments.”

Drent says that governments also need to recognize the limitations of relying too heavily on private firms. “In terms of institutional memory, I think it's difficult to expect outside counsel to have that knowledge of the policy decisions that have been made in the previous 20-year period,” she says.

What’s more, the extensive use of outside counsel can raise conflict of interest concerns. “I would think, from a practical perspective, it's difficult in a fast-paced environment —where you need to provide immediate advice— that you're reliant on an outside provider,” says Drent.

In November 2019, CBC News reported on an Alberta Justice internal memo indicating that it would make staff cuts to its legal services division amid plans to outsource “considerably more” legal work. This despite an internal draft white paper obtained by the CBC, according to which outsourcing would cost up to three times more than retaining in-house lawyers.

Other jurisdictions are also looking closely at restraining public spending and the justice system may not be spared. In Ontario’s current fiscal plan, expenses in the provincial justice sector are set to decrease from $5 billion in 2018–19 to $4.7 billion in 2021–22 —representing an average annual decrease of 2 per cent over the period.

For more on this topic and to share your views on the proposed resolution, please visit our discussion board.