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I've been a private lawyer and corporate counsel literally for decades. Clients come to you and say: "I want to do this." My job is to say, "Okay", or, "You can't because of X or Y". Some clients take advice. Some insist on the wrong route. My duty is then to quit. #cdnpoli
It is not my duty to stop them from getting other advice (which may or may not agree with me), or stop them from proceeding in what in my legal judgment is the wrong path. My duty is to quit.
I can argue with them, but it is not my job to stop them from proceeding in what I judge to be an ill-advised way. They take my advice or (again), I quit. I have a duty to not participate in criminality (if there is any - and JWR said there wasn't), but not to to be a barrier.
If I know someone is planning a crime (a real crime, not a policy decision I disagree with - and again, JWR said the pressure on her wasn't 'illegal') then I may have a duty to report a future crime being planned. But advocating a DPA is not a crime.
The AG and Justice have departments come to them all the time with problematic "solutions" and policies. Corporate lawyers have things proposed by management that may unknowingly break a law or regulation. Counsel says: "Bad idea - it breaks this law..."
If management persists, counsel then (say it with me) quits. If the client goes ahead and does it after you have left, you are still under solicitor-client privilege and cannot discuss it, even when the cops come knocking at your door.
Generally government is good at following legal advice - and again, it is 'advice', not control. A notable exception was when Justice/AG under Harper was told during drafting that proposed legislation violated the Charter and pressed ahead anyway.
The consequence to that was a lot of bad laws were passed and subsequently overturned by the courts (which was obvious to the lawyers at AG and Justice before the laws were passed). I know some who quit because they didn't want to be part of it.
The AG is admittedly in a special place as counsel to the Crown (which includes the PM, Executive and civil service), but his/her job is to advise. Clients do not always take your advice. They may push back, refuse or insist you act in a certain way. Your duty then is to quit.
And by the way, I have quit on clients who will not take advice or were contemplating something unethical or illegally. It happens. I have presented a loser argument because a client insisted on it, but that is not ethics (as long as you don't misrepresent the facts), just dumb.
The PMO/PCO seems to have genuinely felt that there was a valid argument for the AG to intervene ("We gave you the tools..." said Warnick), so we're talking about a client proposing a preferred if risky course of action, but the AG steadfastly saying "I won't".
The AG said that route was "unprecedented" and SNC didn't easily fit the DPA criteria. Following that route would be high-risk (politically and legally), but in the end a judgment call and a roll of the dice, but within legal possibilities.
If the AG as counsel said "I think this is ill-advised and sure loser and I am not comfortable with it" her duty is to quit. If there is a suggestion that it is being done for an improper purpose, her duty then is to also call in the RCMP.
As a coda, I'll add that prosecutions are different than civil cases. Prosecutors have 'prosecution independence' although they may take instructions from senior prosecutors, not 'clients'. The monkey wrench is the new DPA law.
The DPA law (I've tweeted about incessantly before) introduces something new to prosecutions - public policy. It fuzzies up the line between AG as government member and independent prosecutor. Which is why the AG was lobbied, but told at the same time "the decision is yours."
PMO, PCO and AG have all been fumbling around in the dark to figure out where this blurry line is between pushing government policy and prosecutorial independence. I think both sides legitimately feel they never crossed any line, except they don't agree on where the new line is.
But again, back to the original point, if the AG feels the line has been crossed and her counsel is being ignored or undermined, the remedy is for her to resign without comment. Counsel without confidence of the client (and vice versa) cannot operate.
I feel obliged to add a couple of PSes to this thread, which has become surprisingly popular. The theme here was primarily about the AG's role as legal advisor to the Govt of Canada (which includes the PCO), and I only touched on it as prosecutor, which is a different issue. 
As I mentioned above, the new DPA legislation (which I tweeted about at length elsewhere) added a public policy component to considerations about whether is is an appropriate alternative to criminal prosecution. Adding public policy muddies the waters.
As chief prosecutor of Canada (through the independent ODPP), the AG should be free from "political" interference in prosecuting cases. This is important. Very important. It is called the Shawcross Convention (after a UK AG). Here it is.
Note the consult part above. Shawcross said an AG would "be a fool" to not consult Government colleagues. Some interpret this as a one way street - the AG can consult, but no one can approach the AG. There are valid reasons for this.
But what about the context of an ongoing conversation when there is new and never tested legislation on the table (like DPA laws)? Then the question is, when is the ongoing discussions (interpreted by the AG as pressure) too much?
Complicate this by the fact that the new DPA legislation introduces for the first time taking matters of public policy into consideration in determining whether the alternative solution of a DPA is appropriate.
And what if the Cabinet / PMO / PCO feels the AG is misapprehending the law that the government just passed? See my sidebar here on what I think the major source of friction was between PCO & AG:
Conversations go on, PCO asks for a second legal opinion which is denied, and everyone thinks everyone else is being unreasonable. AG says, while nothing crossed the line into "illegality", AG clearly felt the pressure was inappropriate.
Did PCO press too hard to convince the AG of its and by extension the government's position? Likely, but the bright line of prosecutorial independence was blurred somewhat by new legislation that specially introduces public policy and competing interpretations.
I think the PM / PCO were aware of the importance of prosecutorial independence, evidenced by the repeated assertions by the PM to the AG that "it is your decision". But they continued to advocate for their interpretation of the new DPA laws.
To bring this full circle, while the AG is the defender of the independence of the prosecutorial powers of the govt, there is a point when they feel their position has been made untenable. That could be because of interference or simply disagreement on policy.
In that case Shawcross is clear - the AG must quit. Resignation is without comment. The resignation is supposed to be warning enough that something is wrong. If there is illegality at the heart of it, the AG calls in the RCMP.
This brings us back to the top. If you and your client don't get along, don't see eye to eye, or you are being asked to do something illegal, it is your duty to quit and keep your client's confidences, whether you are a storefront lawyer or AG.
Sigh - it seems I have to keep coming back to this because some people insist on reading the first couple of tweets in the thread and then wander off (so they probably won't see this one either). AG is counsel for the government under s.5 of the Dept of Justice Act.
It provides advice to its client, the Government of Canada, along with its departments, on a range of issues.
As a prosecutor in criminal matters, the government is still the client, but a client that does not give instructions, because the AG is independent. There's even a 2nd level of independence as the DPP is independent of the AG.
That is why I said above:
The PM or PCO cannot instruct the AG in criminal matters, but, as we have seen in the SNC/DPA matter, it asked the AG to explore all options and remedies available to her. Several times.
In fact, while the PM can't "fire" the AG for "not following instructions" (which the PM cannot actually give and acknowledged wasn't within his power to do), the PM ultimately has the power to shuffle cabinet posts and "get a new lawyer."
These are deep constitutional waters. Most would say switching AGs for the sole purpose of changing the course of a single case would be shocking. Some people see this as being behind the shuffle. Others have listed performance issues to show why JWR deserved to be shuffled out.
Of course there may be many reasons for appointing a new AG. It is not a lifetime position and shuffles happen. And a new AG may see things differently and be willing to risk the political cost of using the legal powers available to change direction on a case.
This hasn't happened. (Cynics will say "yet".) It didn't while JWR was AG nor under her successor. What the future holds is anyone's guess, but the whole issue is now radioactive politically and we may never know.
Critics have been pushing a narrative that to change AGs to a new AG who sees things differently constitutes "obstruction of justice." I'm not qualified to answer that, but my feel is that such manoeuvring is more in the political realm than criminal....
...unless it is for an improper purpose. Improper has to be more than just a difference of opinion over which legally available remedy is available. There has to be an improper motive - usually some kind of tangible gain or benefit.
For all the Opposition parties calls of "corruption", it is hard to see it because there doesn't seem to be any benefit accruing to the Liberals. There may be the remote possibility of a handful of votes in Quebec, but that is pretty tenuous.
People also point to SNC's terrible history of bribery, illegal campaign contributions and payoffs, but that was several governments ago and they have been under criminal investigation since then. If they were dumb enough to do it now, I assume we would hear of it.
For a charge of corruption to stick, there has to be some sort of improper quid pro quo, and there doesn't seem to be any "there" there.
A couple of things stand out as real reasons to worry about the end of SNC-Lavalin: jobs, which we now know in spite of SNC's prez's assurances are likely to disappear south of the border if they can't operate here; and Quebec's Pension Plan, which is heavily invested in SNC.
Which concerns led to the PM/PCO urging the AG to intervene and change the DPP's decision to not pursue a DPA, which may have been decided on differing interpretations of "national economic interests" or other factors.
All this - and perhaps other performance issues - led to a breakdown of trust between the PMO/PCO and the AG and poisoned the relationship. And when your chief law officer has no faith the Executive, and vice versa, it is time to resign.
In the end, SNC-Lavalin may be more of a symptom of the breakdown of the delicate and special relationship of an independent AG and her cabinet colleagues than it is the cause.
