Code of Professional Conduct Chapter 10

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

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.

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

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

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.)

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

Cf. CBA-COD 9; IBA E-3; ABA-MR 1.11; ABA EC 8-8, DR 8-101(A). (Return to Rule)
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. (Return to Commentary 1)
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. (Return to Commentary 2)
Both human and financial relationships are envisaged. (Return to Commentary 3)
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. (Return to Commentary 4)
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. (Return to Commentary 5)
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." (Return to Commentary 6)
Statutory oaths of office commonly impose obligations of "official secrecy". (Return to Commentary 7)
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. (Return to Commentary 8)