The Public Sector Lawyer as Virtuous Schemer

In my past life as a federal public servant, I happened across an idea that has stuck with me ever since: “scheming virtuously”. Now, early in my career as a public sector lawyer, I have been asking myself how this translates to the practice of law. As a starting point for this inquiry, I decided to go back to the source: Nicholas Charney’s Scheming Virtuously: A Handbook for Public Servants, available online at http://www.cpsrenewal.ca/.

Though Mr. Charney didn’t invent the concept,[1] his handbook sets out some of the basic tenets for how all public servants can “cultivat[e] a culture of stewardship and innovation” by being “active agents overseeing the production of a constantly improving system.”[2] He further posits that “public servants are connected by a common responsibility for the system as a whole.”[3] This is arguably the case even more so for public sector lawyers, who are well placed to be stewards and innovators in our courts, tribunals, regulatory bodies, government organizations and broader public sector institutions.

So, what does it mean to scheme virtuously? In short, it’s about “[m]aking crafty plans that conform to moral and ethical principles.”[4] Making plans, being crafty, keeping it ethical: sounds a lot like lawyering.

Indeed, many of the strategies that Charney sets out echo what lawyers are already expected to do. For example, he advises virtuous schemers to collect enough evidence and information about similar cases to convince others of their position, and suggests seeking out professional development opportunities that will help schemers to effect change – another thing we already do as lawyers. Those who act as in-house will no doubt see themselves reflected in Charney’s suggestions of thinking “like the enterprise”, that is, asking how the organization can be more effective and innovative.

In terms of keeping the scheming truly virtuous, Charney reminds us that “[u]nderstanding the system is paramount.”[5] Our role as public sector lawyers is to be system experts, and we have a duty to work within the system. Working within the system, however, does not mean we cannot scheme to make it better. Along with our duty of loyalty to our organizations comes a duty of honesty and candour. Taken in the broadest sense, this means that public sector lawyers are expected to point out what may not be working in the system and to advise on potential solutions.

Indeed, Patrick J. Monahan, Deputy Attorney General of Ontario, has suggested that such “systemic accountability” is part and parcel of working in the public interest.[6] While Monahan was speaking specifically of government lawyers, the idea of systemic accountability is easily transposed to whatever public sector environment you may work in. As public sector lawyers, we have the ability – even the responsibility – to account for the broader implications of the systems within which we work.

Which brings us back to scheming virtuously. Charney explains that being a virtuous schemer means “using your position, your insight, and your intelligence to identify opportunities for your organization that have yet to be identified, or supporting those that already have been.”^[7] This is precisely what we as public sector lawyers do for our organizations, through our system knowledge and as a result of our professional duties.

The public sector lawyer: virtuous schemer par excellence.

About the Author

J-F seeks out ways to scheme virtuously in his role as Counsel with the Office of the Ontario Ombudsman. For some pointers on bringing virtuous scheming into your organization, visit cpsrenewal.ca to download the handbook and read more about public s