Recently, some folks have asked me about my views on whether government lawyers can strike. A full legal analysis, including labour law and constitutional considerations,[1] is not something I am able to provide here.[2] I offer instead some reflections from my individual and idealistic perspective – which some may well consider romantic or unrealistic. This perspective draws on what I consider to be the spirit, if not necessarily the letter, of the rules of professional conduct,[3] given that those rules themselves cannot address every situation.[4] In doing so, I assume that such a strike would be legal as a matter of labour law.[5] Nonetheless, labour legislation that allowed lawyers to strike would not necessarily prevail over legislation on the legal profession.[6] (An unlawful strike would raise different issues.)
The proposition underlying my approach is that a striking government lawyer is withdrawing their professional services from all matters for the Crown as client, albeit temporarily. Going on strike thus engages the rules of professional conduct around withdrawal. While this may not be the only possible lens for such a situation, it is in my view a principled and revealing one.
Indeed, this is how one Ontario legislator framed the problem in 1993:
a right to strike puts those same employees in a conflict with the rules of professional conduct as prescribed by the Law Society of Upper Canada. Effectively, those rule say that lawyers cannot withdraw their services arbitrarily from those they are serving. They can’t let their own personal interests, which might be to get more money if they were in the middle of a negotiation with the government — it’s contrary to the rules of professional conduct for a lawyer’s personal interests to stand in the way of the client he serves.[7]
Another legislator more explicitly invoked the duty of loyalty and a conflict of interest:
The reason for the original exclusion [of lawyers and other professionals from labour legislation] was the perceived inconsistency between a professional’s obligation to his or her clients and the right to strike…. The rationale for the original exclusion continues…. I’m concerned that if we go ahead as the government has proposed under Bill 40 [to remove the exclusion], professionals would be potentially in a conflict-of-interest situation between their professional responsibilities and the responsibilities and accountabilities that could be demanded by them by virtue of belonging to a trade union.[8]
In my view, the rules around withdrawal are a helpful and discrete starting point for these loyalty concerns. Can a lawyer meet their obligations to their union to participate in a lawful strike while meeting their obligations to the government as client, specifically their obligations around withdrawal?
The rules of professional conduct on withdrawal put considerable restrictions on the ability of a lawyer to withdraw once they have accepted a matter. A lawyer may only withdraw “for good cause and on reasonable notice”.[9] The rules explicitly allow a lawyer to withdraw “[i]f there has been a serious loss of confidence between the lawyer and the client”, giving several examples: “if a lawyer is deceived by his client, the client refuses to accept and act upon the lawyer’s advice on a significant point, a client is persistently unreasonable or uncooperative in a material respect, or the lawyer is facing difficulty in obtaining adequate instructions from the client.”[10] Withdrawal from criminal proceedings is more constrained, particularly where that withdrawal is for non-payment of fees.[11]
At the same time, there are some situations in which lawyers must withdraw, including where they are “discharged by a client”, “a client persists in instructing the lawyer to act contrary to professional ethics”, and “the lawyer is not competent to continue to handle a matter”.[12] (Similarly, where a conflict of interest develops, the lawyer must withdraw unless the client consents and “the lawyer reasonably believes that he or she is able to represent the client without having a material adverse effect upon the representation of or loyalty to the client or another client.”[13])
How might these rules apply – at least in spirit or in principle – to a government lawyer involved in a labour disruption?
First, note that the impact of these rules is asymmetrical as between a strike and a lockout. A lawyer must withdraw where they are discharged by the client. In the same way as a strike would seem to constitute a temporary withdrawal from all matters for the client, a lockout would seem to constitute a temporary discharge of the lawyer by the client from all matters. A lockout thus seems available to the government as client and as employer. Where there is a lockout, a lawyer cannot continue to provide services.
In contrast to a lockout, would a strike be permissible? First, the failure of the government as client to reach a collective agreement that includes salaries is different than non-payment of those agreed salaries. Thus the rules on withdrawal for non-payment of fees would not seem to apply. The question thus becomes whether the failure to reach a collective agreement constitutes “good cause”,[14] and particularly whether it constitutes “a serious loss of confidence between the lawyer and the client”. Based on the examples given in the rules of professional conduct, it is difficult to see how this is so. A disagreement over working conditions would appear to be a loss of confidence in the government as the lawyer’s employer and not as the lawyer’s client.
Recall, however, that the rules of professional conduct do not purport to address every potential situation. The principles and constitutional considerations underlying labour law may well constitute “good cause”.[15] Moreover, given that a lawyer can withdraw for non-payment of fees,[16] it seems odd to suggest that they cannot withdraw where there is an inability to agree to their fees going forward. (I note that a criminal or civil litigator would have to seek to be removed from the record.[17])
Conversely, the rule on mandatory withdrawal would appear to require lawyers to strike in some situations. Recall that a lawyer must withdraw where “a client persists in instructing the lawyer to act contrary to professional ethics”.[18] If the government’s bargaining proposals would require the lawyer to breach their ethical obligations, the lawyers collectively cannot agree to those proposals. If the government is not dissuaded to amend those proposals, a temporary withdrawal – a strike – will be necessary, but only until the government withdraws those proposals. Moreover, lawyers cannot agree to a proposal that does not allow them adequate funding and resources to meet their duty of competence.[19] Neither can lawyers agree to a proposal that includes salaries so low that they must take an outside job that would detract from their ability to provide competent and quality service to the client.[20] In these narrow and specific circumstances, the harm to the administration of justice is quite possibly outweighed by the imperatives underlying the strike.
Nonetheless, aside from the rules of withdrawal, consider the potential impact beyond the lawyer-client relationship and the government as client. For example, in a 1993 letter to the Ministry of Labour, the Law Society of Upper Canada explicitly raised harms to the administration of justice if government lawyers were allowed to strike:
The Law Society of Upper Canada submits that crown attorneys in criminal proceedings or civil attorneys who represent the government in other matters should not be given the right to strike…. The impact on citizens and the administration of justice and the necessary delays which would result from concerted strike action by this group would be an unacceptable burden on courts, tribunals and the public.[21]
That is, the legal ethics issues go beyond the lawyer-client relationship. A strike could well harm not only the public and the administration of justice, but also public confidence in the administration of justice. And all lawyers share a duty to encourage respect for the administration of justice.[22]
The safest option, at least in terms of the law of lawyering, might appear to be to continue working instead of going on strike. However, this approach means foregoing the benefits of labour law. Perhaps more importantly, it would dishonour the obligations of the government lawyer to their union and to their colleagues. Indeed, the rules of professional conduct explicitly compel lawyers “to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.”[23]
This is a complex situation without an obvious answer. Government lawyers – and governments, as both employer and client – would benefit from increased clarity. Such clarity could come from law societies. It could also come from legislatures amending legislation on the legal profession or labour legislation.
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[1] Consider especially the freedom of association: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11(d).
[2] I am grateful to Liam McHugh-Russell and Bruce Archibald for comments on a draft. They bear no responsibility for any shortcomings here.
[3] See e.g. Federation of Law Societies of Canada, Model Code of Professional Conduct (Ottawa: FLSC, 2009, last amended April 2024) [FLSC Mode Code], r 3.1-1(g), online: <https://flsc.ca/wp-content/uploads/2024/11/2024-Model-Code-of-Professional-Conduct.pdf>: the definition of competence includes “complying in letter and spirit with all rules pertaining to the appropriate professional conduct of lawyers”.
[4] See e.g. ibid, preface at 7: “Some circumstances that raise ethical considerations may be sufficiently unique that the guidance in a rule or commentary may not answer the issue or provide the required direction.”
[5] For a recent analysis of how Canadian labour legislation addresses lawyers, see David J Doorey, “The Stubborn Persistence of the Lawyer Exemption in Canadian Collective Bargaining Legislation” (2022) 45:1 Dal LJ 65.
[6] On the parallel issue of the interaction between legislation on the public service and legislation on the legal profession, see e.g. Andrew Flavelle Martin, “Legal Ethics for Government Lawyers: Lessons from Nunavut” (2025) 47:3 Manitoba LJ 91 at 100-101.
[7] Ontario, Hansard, 35-3 (13 December 1993) (Charles Harnick) [Harnick Hansard], online: <https://www.ola.org/en/legislative-business/house-documents/parliament-35/session-3/1993-12-13/hansard-1>.
[8] Ontario, Legislative Assembly, Standing Committee on Resources Development, Hansard, 35-2 (8 October 1992), (MPP Elizabeth Witmer), online: <https://www.ola.org/en/legislative-business/committees/resources-development/parliament-35/transcript/committee-transcript-1992-oct-08>, as quoted in Doorey, supra note 5 at 88-89. The American Bar Association has also expressed concerns about loyalty, although it also considered diligence and harming the client. See e.g. Laura Midwood & Amy Vitacco, “The Right of Attorneys to Unionize, Collectively Bargain, and Strike: Legal and Ethical Considerations” (2000) 18:1 Hofstra Lab & Emp LJ 299 at 315-317.
[9] FLSC Model Code, supra note 3, r 3.7-1.
[10] Ibid, rr 3.7-2, 3.7-2 commentary 1.
[11] Ibid, rr 3.7-3, 3.7-4, 3.7-5.
[12] Ibid, rr 3.7-7.
[13] Ibid, r 3.4-2.
[14] Given the structure of Canadian labour statutes, any legal strike would involve a lead time that would clearly appear to constitute “reasonable notice”. Thanks to Liam McHugh-Russell on this point. I likewise assume that a wildcat strike would be problematic not only because it was unlawful but also more specifically because it would not include reasonable notice.
[15] Thanks to Liam McHugh-Russell on this point.
[16] FLSC Model Code, supra note 3, r 3.7-3: “If, after reasonable notice, the client fails to provide a retainer or funds on account of disbursements or fees, a lawyer may withdraw unless serious prejudice to the client would result.”
[17] For Crown attorneys, the rules of professional conduct on withdrawing in a criminal matter would presumably apply: ibid, rr 3.7-4, 3.7-5, 3.7-6.
[18] Ibid, r 3.7-7.
[19] See generally Andrew Flavelle Martin, “Crown Prosecutors and Government Lawyers: A Legal Ethics Analysis of Under-Funding” (2025) 47:4 Manitoba LJ 1.
[20] FLSC Model Code, supra note 3, r 7.3-1 (“A lawyer who engages in another profession, business or occupation concurrently with the practice of law must not allow such outside interest to jeopardize the lawyer’s professional integrity, independence or competence.”), as discussed in Martin, supra note 19 at 6.
[21] MPP Charles Harnick, reading from a letter from the Law Society of Upper Canada to Richard Prial (19 February 1993): Harnick Hansard, supra note 7. Part of this passage was quoted in Doorey, supra note 5 at 91.
[22] FLSC Model Code, supra note 3, r 5.6-1: “A lawyer must encourage public respect for and try to improve the administration of justice.” See e.g. Andrew Flavelle Martin, “The Lawyer’s Duty to Encourage Respect for the Administration of Justice: A Real Duty” (1 October 2025), Slaw (blog), online: <https://www.slaw.ca/2025/10/01/the-lawyers-duty-to-encourage-respect-for-the-administration-of-justice-a-real-duty/>.
[23] FLSC Model Code, supra note 3, r 2.1-1.
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