Restrictions Placed on Retired Judges Who Return to Practice Do Not Go Far Enough
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.
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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.
Accurate problem identification is the key to solving problems like this.
Retired judges are people too, and they are people who have tremendous skills and insights with which, first of all, they have a right to earn a living, and secondly, that the legal system benefits from adding to its mix. The problem here is not the retired judges. It is the response of the active judges before whom they might appear.
The other key to solving this kind of problem is to master the art of avoiding those unintended consequences that are worse than the problem that you now have. If retired judges can never practice courtroom law again, fewer brilliant litigators will be interested in becoming judges. That will reduce the capacity on the bench, and that is not a desirable outcome. A retired judge was recently interviewed on CBC radio; I am embarrassed to say I don’t recall his name but he was the judge who tried Paul Bernardo. I seem to remember he said that he knew he couldn’t go back to practising law so he was actually kind of reluctant to become a judge. So maybe this rule has been tried before? In any event, it would have been law’s loss to have him decide against becoming a judge. Creating a deterrent to entering the judiciary is undesirable.
If the objective is “ensuring the appearance of fairness in the eyes of the public”, there are a lot of better places to start than by keeping the best lawyers out of the courtroom. And really, more credit should be given to the public than this. We may actually have more faith in the courts than we are credited as having. As a member of said public, I see no reason why a judge would be swayed by facing a retired judge, partly because the whole design of the legal system depends on judges disagreeing with each other, so it should be nothing new. In fact, it should sharpen up the quality of courtroom dialogue and analysis considerably, making the whole thing something the public is more justified in having confidence in.
And as for the sharp young lawyers who might yet become judges, I can think of few more stimulating challenges to raise their game than facing a retired judge across a courtroom. Many young lawyers I’ve met are more than up to this.
It’s all too easy to let loose our inner totalitarian when we look at problems like this, and to come at them with mother bear instincts in favour of what we think is the weaker player. But as in law itself, in system analysis and reform one must beware the facile problem identification and the solution based on assumptions. With good analysis and clear thinking, there is no reason for anyone, including an SRL, to fear having a retired judge in a courtroom. Big qualifier here: as long as all the other rules are fairly applied and the game fairly played. That’s a subject for a book, not a blog comment.
But assuming the game is otherwise above board, fostering the fear by trying to shield judges from these challenges may rather create a problem where one does not, at this point, actually exist.
In England and Wales, judges are not permitted to return to practice as advocates when they retire. Instead they are able to pursue options in private practice as arbitrators and mediators, offering ADR services. Many of them choose to do so. This is a sensible solution, which permits them to earn a living, avoid going mad with boredom and keeps them away from court, where they can do only harm, for the reasons so eloquently expressed by the author of this piece.