Retired judges who return to court as counsel pose a serious threat to the perception of judicial impartiality, an issue that recently caught the attention of the Law Society of Upper Canada.
On January 28, the Professional Regulation Committee made a series of policy amendments to the Rules of Professional Conduct that deal with retired judges returning to practice.
Under the old Rule 7.7-1.4, judges who previously served on the Superior Court of Justice were permitted to appear in court as counsel after a three-year “cooling off” period. With the new amendments, retired Superior Court of Justice judges who want to return to practice will have to obtain approval from a panel of the Hearing Division of the Law Society Tribunal.
The changes were intended to improve perceived unfairness in the courtroom. However, in my view, the changes simply cannot remedy an inherently unfair procedure.
The Committee identified significant issues that are raised when retired judges return to practice.
The Committee considered that judges often do not feel comfortable presiding when a retired judge is counsel. As a result, judges may recuse themselves when a former judge appears in their court. This causes delay and inconvenience to litigants in a legal institution that is already prohibitively expensive.
Where judges do not recuse themselves, there may be concerns about the quality of service that is provided to clients. The outcome of a case may suffer if a retired judge who is acting as counsel is required to argue a position that is contrary to his or her judicial decisions. Conversely, the outcome of a case may be affected if a former judge cites his or her own precedents to advance a position.
Arguably, a panel of the Hearing Division of the Law Society Tribunal can address each of these concerns. A panel can limit recusals and conflicts of interest by refusing to grant a retired judge approval to return to practice.
However, a panel is not able to remedy a lack of public confidence in the administration of justice. The overriding concern is that when a retired judge appears as counsel, the appearance of impartiality is always eroded. In the mind of a litigant, an opposing party who is represented by a judge will always have an unfair advantage.
The problem is that judges occupy the highest strata of the legal profession. An appointment to the judiciary is widely recognized as a prestigious accomplishment, one that is rewarded with a considerable salary and security of tenure. Not surprisingly, when judges retire from the bench, they want to maintain their esteemed reputations. Members of the public and the legal profession are also reluctant to deny former judges recognition for their accomplishments.
The Committee was confronted with two examples that provide evidence of this reality. In one case, opposing counsel referred to a retired judge who was appearing as counsel as “His Honour”. In another, counsel cited his experience as a former judge in advertisements, presumably to showcase an advantage to prospective clients.
As a result of this reality, the return of a retired judge to court as counsel is irreconcilable with impartiality. Judges, opposing counsel and litigants will always recognize when a former judge is appearing across from them. Even if this recognition does not impair the decision-making of judges or the positions taken by lawyers, opposing litigants will perceive an imbalance.
Ian Binnie, former justice of the Supreme Court of Canada, stated, “You always have to consider in these cases the position of the losing party; are they going to go away from court thinking they got the raw deal because the other side had a former judge? Even if that’s not the reality, that will be the perception and I don’t think the courts want to give that impression.”
Lawyers have unique responsibilities as members of a professional community. As our Rules of Professional Conduct state, “A lawyer shall encourage public respect for and try to improve the administration of justice.” Part of this obligation includes a commitment to ensuring the appearance of fairness in the eyes of the public. In accordance with our ethical obligations, we cannot permit retired judges to be reinstated as counsel if doing so threatens the appearance of fairness.
Retired judges should be prohibited from returning to court as counsel altogether. It is difficult to imagine any exceptional circumstance where the appearance of a retired judge as counsel would not taint a litigant’s perception of impartiality. Retired judges should be permitted to provide strategic and practical advice, but should be kept out of courtrooms, where justice must be seen to be done.
The Law Society of Upper Canada should be commended for recognizing that the return of retired judges to practice poses a threat to the administration of justice. However, the problem cannot be fixed by regulatory oversight. The appearance of a retired judge as counsel will always erode the appearance of impartiality. Lawyers and their regulators have an obligation to eliminate this possibility.
Cathleen Brennan is a third year law student at the University of Windsor, Faculty of Law. She will begin articling at Gowling WLG’s Toronto office in August 2016. This piece was written for the op-ed assignment in Professor David M. Tanovich’s Legal Profession class.