Defending The State, Upholding The Public Trust: The Unwavering Duty Of The State Lawyer

Introduction

Life, they say, opens doors to share in the action and passion of your time. There are many paths through those doors. One is lawyering for the State.

Indeed, the state’s Legal Service remains a particular kind of constitutional and statutory entity comprising, amongst others, the Attorney-General, Deputy Attorney(s)-General, and varying levels of competent legal officers engaged to assist the Attorney-General in carrying out the functions outlined in the 1992 Constitution and the State Proceedings Act, 1998 (Act 555). Accordingly, the Office of the Attorney-General acts through the Attorney-General, Deputy Attorney(s)-General and any duly authorized employees of the office. State lawyers are charged with the duties of the chief legal officers of the state and typically serve two (2)  main roles, namely, to serve as lawyers to the Ministries, Departments and Agencies of Government and also representing the public interest. They have both the motivation and authority to advance important public policy goals. With the authority to represent, defend and enforce the legal interests of the state and the public, they manage all legal affairs including the prosecution of all suits, be it criminal or civil, in which the state is interested. With their duty extending to the public’s interest, they become more of the people’s lawyer rather than simply a government lawyer, clothing them with much importance which should not be overlooked or undermined.

The duty to defend & the lack of a choice

The best resolution is to recognize the duty of the state lawyer as one advocating the position of the state whilst keeping his or her oath to support and defend the constitution. This involves being duty bound to maintain and defend the interest of the state in all matters. This duty requires unique skill and grit, as the state lawyer must navigate complex legal frameworks, procedures and practical realities while representing the state. Unlike private lawyers, the state lawyer does not have the luxury of choosing one’s case; they are duty-bound to defend the state in all matters. The state lawyer has a job description with uniform levels of restriction on their powers and responsibilities especially considering that, constitutionally, the Office of the Attorney-General is housed within the executive branch of government. Thus, the state lawyer’s representation fulfils the public interest rather than a parochial interest or a personal choice – having no choice like the private lawyer. It becomes more complex especially because at times the public interest may be unclear yet the state lawyer is duty bound to defend it without fear or favour. In the face of challenges including getting collaboration from the “clients” they represent, to the usual public service bureaucracy, the size of the government practice and the funding and logistical challenges affecting their service, amongst others, the state lawyer’s duty to defend must remain unwavering. The usual and most difficult challenge is the idea of comparing being a lawyer in government with being in private practice and by so doing, to ridicule the state lawyer for failures mostly beyond their control and interest. This duty to defend requires a high sense of commitment, integrity, and grit so as to navigate the complexities that may arise in service.

Loyalty and independence

The overall greater governmental entity that the state lawyer serves i.e. the Republic, the state or the public interest means that the state lawyer has to defend governmental decisions that may affect many obvious interests as well as affecting the rights of others. That notwithstanding, the state lawyer plays the role of helping to assure that both the constitution and its related values are considered as well as to articulate fairly the public interest on any issue and to defend it. The state lawyer’s effectiveness depends on his or her relationship to their “client”. To do this, the state lawyer requires the quality of loyalty and independence. Neither of these qualities should be carried to the extreme, all the same, since too much is unfair, improper and ineffective. Knowing the right balance is also another skill that must be learnt and developed on the job. The right mix of independence and loyalty would produce reasoned, respectful and tough-minded efforts to uphold justice, serve the state and the public interest at large.

Conclusion

It is the hope of the writer that this would bring to light the extraordinary breadth of work that the state lawyer does in the face of the unusually great challenges and opportunities that await lawyers working for the state. The similarities between the state lawyer and the lawyer in private practice may outweigh the differences, however, the lack of choice, the constant funding and logistical challenges and the duty to be loyal yet independent show that the satisfactions of a responsible high-level job in the public sector or in the public interest cannot be matched by the private sector. Indeed, as Frederick Schwarz would say, “in order to be a real lawyer, all lawyers should aspire to do public service, at least for some portion of their career. As life is action and passion, it is required of a man that he should share in the passion and action of his time, at peril of being judged not to have lived.

God bless!