I've been a private lawyer and corporate counsel literally for decades. Clients come to you and say: "I want to do this." My job is to say, "Okay", or, "You can't because of X or Y". Some clients take advice. Some insist on the wrong route. My duty is then to quit. #cdnpoli
It is not my duty to stop them from getting other advice (which may or may not agree with me), or stop them from proceeding in what in my legal judgment is the wrong path. My duty is to quit.
I can argue with them, but it is not my job to stop them from proceeding in what I judge to be an ill-advised way. They take my advice or (again), I quit. I have a duty to not participate in criminality (if there is any - and JWR said there wasn't), but not to to be a barrier.
If I know someone is planning a crime (a real crime, not a policy decision I disagree with - and again, JWR said the pressure on her wasn't 'illegal') then I may have a duty to report a future crime being planned. But advocating a DPA is not a crime.
The AG and Justice have departments come to them all the time with problematic "solutions" and policies. Corporate lawyers have things proposed by management that may unknowingly break a law or regulation. Counsel says: "Bad idea - it breaks this law..."
If management persists, counsel then (say it with me) quits. If the client goes ahead and does it after you have left, you are still under solicitor-client privilege and cannot discuss it, even when the cops come knocking at your door.
Generally government is good at following legal advice - and again, it is 'advice', not control. A notable exception was when Justice/AG under Harper was told during drafting that proposed legislation violated the Charter and pressed ahead anyway.
The consequence to that was a lot of bad laws were passed and subsequently overturned by the courts (which was obvious to the lawyers at AG and Justice before the laws were passed). I know some who quit because they didn't want to be part of it.
The AG is admittedly in a special place as counsel to the Crown (which includes the PM, Executive and civil service), but his/her job is to advise. Clients do not always take your advice. They may push back, refuse or insist you act in a certain way. Your duty then is to quit.
And by the way, I have quit on clients who will not take advice or were contemplating something unethical or illegally. It happens. I have presented a loser argument because a client insisted on it, but that is not ethics (as long as you don't misrepresent the facts), just dumb.
The PMO/PCO seems to have genuinely felt that there was a valid argument for the AG to intervene ("We gave you the tools..." said Warnick), so we're talking about a client proposing a preferred if risky course of action, but the AG steadfastly saying "I won't".
The AG said that route was "unprecedented" and SNC didn't easily fit the DPA criteria. Following that route would be high-risk (politically and legally), but in the end a judgment call and a roll of the dice, but within legal possibilities.
If the AG as counsel said "I think this is ill-advised and sure loser and I am not comfortable with it" her duty is to quit. If there is a suggestion that it is being done for an improper purpose, her duty then is to also call in the RCMP.
As a coda, I'll add that prosecutions are different than civil cases. Prosecutors have 'prosecution independence' although they may take instructions from senior prosecutors, not 'clients'. The monkey wrench is the new DPA law.
The DPA law (I've tweeted about incessantly before) introduces something new to prosecutions - public policy. It fuzzies up the line between AG as government member and independent prosecutor. Which is why the AG was lobbied, but told at the same time "the decision is yours."
PMO, PCO and AG have all been fumbling around in the dark to figure out where this blurry line is between pushing government policy and prosecutorial independence. I think both sides legitimately feel they never crossed any line, except they don't agree on where the new line is.
But again, back to the original point, if the AG feels the line has been crossed and her counsel is being ignored or undermined, the remedy is for her to resign without comment. Counsel without confidence of the client (and vice versa) cannot operate.
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