Towards a Critical Ethical Framework for Executive Lawyers

Gabrielle Appleby

UNSW

As someone who has been interested in the constitutional role and influence of government lawyers since my own days in the public service, I am excited to reflect on Casey and Kenny’s recent contribution to our understanding of executive lawyers. I particularly agree with their compelling call to action for greater research into the structural and cultural framework within which executive lawyers operate, and the extent to which this should be considered more explicitly in constitutional design (and reform).

Working within the right structural framework, with a strong culture of legality, and a high-quality individual appointed to the position, an apex-level executive lawyer is a vital cog in the wheels of a constitutional state. Casey and Kenny develop the analogy of the executive lawyer as a “gatekeeper” on the development and delivery of executive actions, policies and law. In my own work, I have used the analogy of the public sentinel, which brings with it similar connotations of influence in policing the boundaries of executive power, but with an emphasis on the orientation of their role to the public interest. This, I think is an important reminder to those occupying the office, and one that I pick up on later in this post.

Casey and Kenny are right to argue that structural variables and cultural factors are key parts of the matrix that governs the operation of executive lawyers. More comparative and empirical research into this area will reveal, undoubtedly, that there may be more variables than have been initially identified in this piece. It will also add greater detail to the understanding of those factors that have been identified. It might also start to develop a more normative understanding of the governance of the role. 

To this end, in this post I wish to add a further (normative) reflection in relation to the cultural variable that relates to the ethics and norms of constitutional advising for executive lawyers, and suggest a further structural factor that should be considered. 

The Ethics and Norms of Constitutional Advising for Executive Lawyers

Casey and Kenny explain two potential positions in relation to the ethics and norms of constitutional advising: whether an executive lawyer approaches their advisory role as “court-mimicking” (advising the government on the likely judicial approach to determining the constitutionality of legislative or executive actions) or “political constitutionalist” (encouraging or enabling the political branches to take interpretations specific to their role). This second position is a complicated one: it might be taken because there is no clear judicial position on the matter, or because the Court adopts a deferential approach to interpretation in that particular field, or because there is a belief that the executive has its own, independent authority to interpret the Constitution, likely coupled with a strong belief in the constitutional importance of executive power. 

Worryingly, there is evidence in a number of jurisdictions that the latter – or a version of the latter – approach is being preferred. Conor McCormick, in his recent magisterial work on The Constitutional Legitimacy of Law Officers in the United Kingdom (Hart Publishing, 2022), notes that the law officers’ advice in England and Wales “is generally expected to come not as a formal opinion on the law, but, rather, as one which takes account of the various policy objectives of the government in so far as acceptable interpretations of the law fused with political judgment will allow.”

A Critical Ethical Framework for Executive Lawyers

In my own work, I have developed a critical framework for understanding – and guiding – the advisory work of executive lawyers. It is a framework that is alive to the impact of legal advice on the development of executive policy and law, and the role of advisor vis-à-vis the government as the constitutional actor with a democratic mandate (and accountability) and with hard powers to wield.

There are two key dimensions to my framework. 

(a) Response to Legal Ambiguity

The first provides guidance in the situation of genuine legal ambiguity. This means situations where the application of accepted legal method (which is likely to be a judicial approach but, where appropriate, such as in areas of judicial deference, might appropriately be informed by the executive’s expertise) reveals no preferable view, and a number of views are plausible. This is a situation that is likely to arise more often for apex executive lawyers than others: they are more likely to be advising in relation to innovative policy proposals to pressing social problems; they are often briefed where there has been disagreement on the legal position between government departments and agencies.

The nature of executive power should inform the response of the lawyer in these situations. The role of the executive and its obligations to its citizens necessarily requires a varied and flexible store of power. But, of course, executive power must be both sufficiently flexible to ensure the state can respond to its duties on behalf of the community, and confined by enforceable legal constraints. In pursuit of this ideal equilibrium, I have argued that in instances where legal constraints are genuinely ambiguous, the government lawyer has an obligation, not to resolve that ambiguity, but, rather, to indicate the indeterminate nature of the legal position to the government.

In some ways, this is putting the question back into the government’s court. This is consistent with the democratic mandate of the government, and the executive’s constitutional duties and responsibilities. Whether an action or policy or law will be pursued in the face of potential (but uncertain) constitutional risk should be a legally informed policy choice by the executive, a choice that can then be held accountable through political means.

(b) Advice on Constitutional Principle

Here, I turn to the second dimension of my framework. Drawing from the historical obligations of apex executive legal advisers to the public interest (and in many jurisdictions, this manifests in ongoing obligations), executive lawyers should advise the government on whether its proposed actions and policy are developed in accordance with those principles that underpin its existence. This view gives executive lawyers a role in assisting the government to define its ultimate policy position, even where an action, policy or law might be legal, or where there is ambiguity.

In Australia, we have seen a recent example of such an approach, with the Solicitor-General advising the government on whether the secret appointment of the then Prime Minister Scott Morrison to a number of additional cabinet portfolios was legal. The advice – which was relatively unusually released – determined that the highly unorthodox practice was likely to be legal, but that it contravened a number of principles of accountability that underpin the conventions and practice of responsible government. The Solicitor-General offered to the government a number of policy responses that it might chose to address the issues he identified, if it so chose. 

Precisely what these constitutional principles might be will vary depending on the constitutional system in which the executive lawyer is operating. They will likely draw on ideals of rule of law, democracy and the protection of the rights of individuals, as a start.

In this way, my normative framework addresses the concerns that Kenny and Casey outline in their article: it ensures that executive lawyers are restraining executive action where those constraints are clear, thus achieving their functions in relation to constitutionalism and the rule of law. It reduces the likelihood that a lawyer will bolster executive power by creating the veneer of legal legitimacy. And it will also reduce the likelihood of policy distortion, leaving open the decision of whether to act or not in the face of constitutional uncertainty, given the myriad other policy factors that will affect a decision, with the government, not the lawyer. It will also ensure that the government, in making these ultimately policy choices, is informed by underlying constitutional principles of the particular system.

Incorporating this Framework into the Structural and Cultural Environment

How might such a normative framework be incorporated into the structural and cultural environment of an executive lawyer? One option is that it might be codified. For instance, an attempt has been made in the past by lawyers working in the US Office of Legal Counsel (OLC) to codify an interpretative approach. In Australia, the government’s approach as a “model litigant” before the courts has been codified in an official direction. 

The ethical approach will also be affected by other structural factors identified by Casey and Kenny, including the appointment process, the political or technical nature of the role, and whether important constitutional questions are centralised, or whether there are diffuse options for legal advice (one of which might provide the “legal veneer” that the government is seeking). My own empirical research into a number of cases in Australia where a law officer has been “frozen out” of government work is that whether and when legal advice must be sought from a particular officeholder is likely to affect the approach taken.

In addition, there are other structural factors that haven’t been identified in this piece that will be at play. These include what other roles the executive lawyer is asked to perform (beyond the political/technical divide). I have looked in detail, for instance, at the cultural implications of combining the role of advocate and adviser in an apex executive law officer, and the splitting of these roles, as occurs explicitly in the US context between the Solicitor-General (advocate) and the Office of Legal Counsel (advisor). As the OLC have argued, this structural division of functions reflects an ethical and cultural division, between the advocacy model and the advisory model.

Gabrielle Appleby is a Professor at UNSW Law & Justice, and author of The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest (Hart Publishing, 2016)

Suggested citation: Gabrielle Appleby, ‘Towards a critical ethical framework for executive lawyers’ IACL-AIDC Blog (2 February 2023) https://blog-iacl-aidc.org/wmps-gatekeepers/2023/2/2/towards-a-critical-ethical-framework-for-executive-lawyers.