The Government Lawyer as Activist: A Legal Ethics Analysis

Can a lawyer and government employee represent the government in her professional life while being an activist in her personal life? There is a striking and seemingly irreducible clash, at least at the intuitive level, between the two roles – between representing the government on the one hand while at the same time lobbying it or litigating against it on the other. Government lawyers are nonetheless some of the more successful activists in recent Canadian history. This article analyzes whether this duality is problematic from a legal ethics perspective. The analysis is grounded in three case studies: disability rights activist David Lepofsky, LGBTQ activist Michael Leshner, and rule-of-law activist and whistleblower Edgar Schmidt. It argues that, while activism may engage the lawyer’s duty of loyalty, recusal and—less often—waiver may be sufficient to resolve these loyalty issues. While the simpler and superficially more principled answer is for the prospective activist government lawyer to choose one role or the other, the two roles are not necessarily incompatible—although the activist government lawyer must be particularly alive to the need for recusal, and there will be a point at which the frequency of recusal impairs the lawyer’s ability to do her job.