THE IMMUNITY OF THE ATTORNEY GENERAL TO LAW SOCIETY DISCIPLINE

Abstract

The Attorney General is both the minister responsible to the legislature for oversight of the law society and a practicing member of the law society. This dual status raises important questions: Is the Attorney General subject to discipline by the law society? Should she be? This article argues that the Attorney General is immune, absent bad faith, both for prosecutorial discretion and core policy advice and decisions, as well as absolutely immune under parliamentary privilege for anything said in the legislature. The Attorney General enjoys no special immunity otherwise, i.e. for the practice of law outside prosecutorial discretion and for policy and political functions outside core policy advice and decisions. (The Attorney General for Ontario enjoys extended immunity under a statutory provision that is unique to that province.) The article then argues that the Attorney General should generally be subject to discipline to enhance the rule of law and the protection of the public. If some immunity is necessary, that immunity should require good faith.