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Thursday Thinkpiece: Pitel & Bortolin on Judges Returning to Practice

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REVISING CANADA’S ETHICAL RULES FOR JUDGES RETURNING TO PRACTICE
S. G. A. PItel & W. Bortolin
(2011) 34 Dalhousie Law Journal 483
Excerpt: pp. 515-520

[Footnotes omitted. They are available in the full PDF version of the article, available at SSRN via the link on the title above.]

4. Prohibiting participation in the same or related matters presided over as judge

The Canadian rules do not specifically prohibit participation in the same case as both a judge and a lawyer. So in theory a judge could decide a motion for summary judgment as the motions judge, cease to be a judge, return to practice, and as counsel argue the appeal of the decision in an appellate court. However, the judge who presided over a case should not be able to act in the same case again as a lawyer. Indeed, this is the basic thrust of Rule 1.12(a), which has been adopted in nearly every state. Even in many Canadian codes, former public officers are subject to a similar restriction. It simply does not make sense that former judges, whose participation in a matter is at least as visible and intimate as that of public officers, are not subject to any restrictions on subsequent participation. There are at least four reasons for establishing clear restrictions.

The first reason is that there is a high risk of a personal conflict of interest. There are a variety of circumstances under which the parties to a proceeding might want to challenge a decision made by a judge in an earlier proceeding. This could put the former judge in the dubious position of challenging his or her own decision. The former judge cannot be expected to pursue those arguments with the same zeal as another lawyer. That puts the client at a disadvantage. This could potentially be overcome with the consent of the client, although the same cannot be said of the other issues associated with the former judge’s participation.

The second reason for a prohibition is the potential for confidential information to be used against the opposing party. There are occasionally things that a judge learns over the course of a proceeding that are not matters of public record. This information might be useful in an appeal and could also be useful in cases that are different but related. For example, a judge who presides over a pre-trial conference in a negligent manufacturing case could learn incriminating information about the manufacturer that would be useful if someone else were to file a similar claim. Particularly if the case was settled, some of this information would not be a matter of public record. As another example, a former judge could be hired to litigate a civil case related to a criminal matter over which he or she presided. In either case, the consent of the client would obviously be easy to obtain, but would not solve the problem. This is probably why the American rules also require the consent of the other parties to the dispute.

A third concern is that perceptions of judicial neutrality will be compromised as a result of the judge’s shifting loyalties. For a judge to preside over a case and then represent one of the parties in the same case would be unsettling even if conflicts of interest and confidentiality were not an issue. It is difficult to understand how a person could carry out a neutral role in a dispute with absolute conviction one day and then adopt a zealously partisan role the next. The perception would be that the former judge lacked conviction in at least one of these roles.

The fourth concern is the one cited in O’Connor, namely that if a former judge were to challenge his or her previous decisions it might “shake the authority of the judicial limb of government.” This is the same circumstance that raises concerns about a personal conflict of interest, but O’Connor suggests that even if there is no conflict, harm could still be done through the weakening of judicial authority. While we have long accepted that judges make mistakes, O’Connor indicates that at least the judges themselves should believe they are making the right decision. One can imagine a judge who admits a key piece of evidence in a murder trial and then acts as a lawyer on the subsequent appeal arguing that it was an egregious miscarriage of justice to admit the evidence. It would be disenchanting if, when dealing with such important decisions, the judge could change his or her mind within a relatively short time. This could shake people’s confidence in the justice system.

Accepting that there is a need for restrictions on participation, the next step is to determine what the restrictions should be. The general rules about avoiding personal conflicts of interest and upholding the integrity of the administration of justice have some role to play, but they are too imprecise to provide a useful guide to former judges. Rule 1.12(a)216 and the CBA Code restriction on former public officers each provide a model for a more precise rule. In designing a rule, the first question is whether former judges should be disqualified from acting in not just the same case, but in related matters as well. Of the four concerns summarized above, only the confidentiality concern extends to participation in related matters. It therefore makes sense to only preclude former judges from participating in related matters if they possess confidential information. The ABA- MR rule uses the presumption that judges who participate personally and substantially in a matter acquire confidential information. Applying the same presumption, a former judge who has participated personally and substantially in a case should not be permitted to participate in related matters. A former judge who was only briefly involved with a case in an informal or administrative capacity is unlikely to acquire confidential information that would be relevant to a related matter. In that case it would be excessively harsh to limit his or her participation in related matters. It is sufficient to prohibit participation in the same case.

A second question is whether it should be possible for the disqualification of former judges to be negated with informed consent, as in the ABA-MR rule. Informed consent would address some of the issues discussed above, but not all of them. The third and fourth concerns each involve harm to public confidence in the administration of justice, and this cannot be addressed by the consent of the parties to a dispute. In order to maintain public confidence in the administration of justice, former judges should not be permitted to act in any of the same cases that they previously participated in as a judge. However, there is no reason to completely prohibit judges from participating in related matters where the threat to public confidence is less pronounced. The primary concern is that the opposing party will be disadvantaged by the former judge’s knowledge of confidential information. In that context, the other party should be able to give informed consent to the former judge’s participation.

A final question is whether to impute the disqualification of a former judge to other members of the same firm, similar to Rule 1.12(c). In the former client context, the Canadian rules impute disqualification aggressively. Similar concerns, including the public perception of the administration of justice, arise in the former judge context. It is difficult to see how precluding only the former judge but not others in the same firm from acting would be sufficient to maintain public confidence. Accordingly, the former judge’s disqualification should be imputed to the firm. However, as under Rule 1.12(c), this should be subject to a screening mechanism which, if properly implemented, would isolate the former judge and so allow others in the same firm to act. Under the Canadian ethical rules, proper screening procedures have become an accepted procedure that balances the competing concerns of lawyers, clients, and the general public. For example, these procedures are frequently used in cases involving confidential information. The concerns raised by the involvement of former judges in the same or related matters are equally amenable to a screening mechanism. Given this, an absolute rule precluding other members of the former judge’s firm from acting goes further than is required to protect clients and satisfy the public interest.

While these rules parallel the rules on former public officers and former clients, one important distinction should be noted. Those other rules tend to divide matters into three categories: the same, related, and new matters. They address new matters because information obtained in a previous matter could be relevant to a new but unrelated matter. They can do so because they focus on the confidentiality of the information and so the conflict of interest that arises in the new matter. As indicated above, such an approach is problematic in the former judge context because of the absence of a clear duty of judicial confidentiality. This makes it very difficult to formulate a broad rule that would address a former judge’s ability to act in new matters.

Comments

  1. One element of this issue that has always bemused me is the revivification of the retired judge’s Queen’s Counsel appointment, if he or she held one before being appointed a judge. John Honsberger, a senior Ontario lawyer learned not only in the law but in legal history, wrote a persusive article that the QC appointment ends on the judicial appointment, and does not revive thereafter (though the ex-judge could be reappointed in places where QCs are still given out.)

    The article is in the Law Times for Nov 17 -23, 1997 pp 4 – 5, not so far as I know online.

    In the same article, Mr Honsberger also firmly disparages the practice of former judges continuing to use the term ‘honourable’ when in commercial competition with others, as they are when they do arbitrations and the like. Many ex-judges style themselves ‘the Honourable X.Y, Q.C.’ in their post-judicial practices. It is arguably not honourable to do this. In Ontario, having a Q.C. is a sign that one is getting pretty old…