Role Call: Can a Backbench Legislator Practice as a Criminal Defence Lawyer? A Legal Ethics Analysis

Abstract

Legislators come from a range of backgrounds. Many legislators happen to be lawyers. Parliamentary rules typically allow legislators who are not members of Cabinet to practice a profession part-time. However, the part-time practice of law poses special legal ethics challenges. In this article, we consider the legal ethics issues that arise when a backbench legislator of the governing party practices criminal defence law part-time. We argue that such a dual role engages three serious, unavoidable, and perhaps even unresolvable legal ethics issues. The first issue is the time constraints imposed by outside interests. The second issue is conflicts of interest, specifically the risk that the legislator-lawyer may favour their political future over their clients’ interests by soft-pedaling their advocacy to avoid embarrassing the government. The third issue is the duty to encourage respect for the administration of justice, i.e. the risk that Crown prosecutors may be, or perceived to be, pressured to give lenient treatment to the legislator-lawyer’s clients due to the possibility of retaliation. Thus, we recommend that legislators avoid this situation and law societies actively consider these issues.