Andrew MacDougall, Harper's spokesperson, said this in justifying the hiring of outside counsel:
MacDougall said "it was deemed inappropriate" for government lawyers to represent Harper since the litigation is between elected officials (Guergis, who was a former Tory MP) and "exempt staff" who were members of the same government.That justification seems to be based on section 6.1.16 of the Treasury Board's Policy on Legal Assistance and Indemnification:
6.1.16 Private counsel: In cases where there is a conflict of interest between the Crown and the Crown servant, or when the servant is charged with an offence, deciding whether to authorize payments for private legal assistance after consulting the Department of Justice Canada with respect to the appropriateness of engaging such private counsel. Such consultation shall include the name of the proposed private counsel as well as the private counsel's proposed fee schedule. If it is determined that this source of assistance is appropriate and private legal assistance is authorized, then the approval authority shall provide written authorization to the Crown servant including the selection of private counsel, the limits of the Crown's commitment, in terms of both total expenditures and the approved fee schedules, and of the requirement for reviewing accounts by the Department of Justice Canada.First part of the paragraph emphasized. Harper qualifies as a "Crown servant" in the definitions, as do some of the others named in the litigation (Raitt, Glover, Novak). I think MacDougall is alluding to that conflict of interest provision as justification for the decision to go with outside counsel. I'm not totally sold on the conflict argument here given the way that section above reads. It reads, technically, as if the conflict would have to be between the Crown and Harper in order to lead to the hiring of outside counsel. Which it is not.
Really, what MacDougall is saying is that a conflict of interest would result if a government lawyer were to defend Harper when the plaintiff Guergis was a former member of the government. It's more of a conflict that works against Guergis, given that she would be faced with a government lawyer who would possibly possess confidential information about her as a result of her former position. Ethically, it makes sense for a government lawyer not to be involved in the case.
Despite the legalities here, it still looks bad for Harper et al. Taxpayers may be put to the expense of a private outside counsel, yes. And that expense may be justified. But if the entire Guergis situation had been handled properly, we wouldn't be talking about what level of expense is justified for Harper's defence counsel. Taxpayers wouldn't be incurring any of it, including a possible damages award. That is the larger issue. This is a government that has run up quite a bit of legal expenditures on the taxpayer's dime after all - years of in and out litigation which they lost, the Cadman litigation which they dropped - and here goes yet another round.