Do judges and former judges owe a duty of confidentiality? This might seem like a silly question. After all, the legal system zealously protects judicial deliberations from compelled disclosure. However, when it comes to recognizing any restriction on judges’ ability to voluntarily disclose or use such deliberations, to date there has been silence. Hopefully, that may soon change as various actors consider the implications of retired judges returning to the practice of law.
The Supreme Court has recognized an absolute privilege that protects the confidentiality of communications between judges in cases: see Mackeigan v. Hickman (1989) and Ontario (Public Safety and Security) v Criminal Lawyers’ Association (2010). In the latter case, the Court stated that “memos and notes leading to a judicial decision are not subject to public access. This would impair the proper functioning of the court by preventing full and frank deliberation and discussion at the pre-judgment stage.” (para 40).
Yet despite the fact that confidentiality is the sine qua non of privilege – there can be no privilege without confidentiality – no statute, rule of the common law or ethical rule imposes any confidentiality obligations on judges. As Western University Professor Stephen Pitel wrote in his 2011 article “Revising Canada’s Ethical Rules for Judges Returning to Practice”, the Canadian Judicial Council should define the boundaries of a judicial duty of confidentiality.
As Pitel’s statement implies, the Canadian Judicial Council’s Ethical Principles are strikingly silent about confidentiality for judges. So are statutes and the common law which is not surprising because to date there has been little indication of any “mischief” arising from the use or disclosure of confidential information by judges.
However, the Federation of Law Societies of Canada’s Model Code Committee is currently studying the issue of rules for retired judges returning to practice. Most of the discussion focusses on the matter of retired judges appearing in court and the Law Society of Upper Canada recently amended its rules to restrict the ability of former judges to do so. But to its credit, the Federation’s Model Code Committee inspired by Professor Pitel’s thorough and thoughtful article and by the comments of other academics, lawyers and judges over the past decade, is casting its net more broadly.
One of the questions that the Federation’s Model Code committee is asking is about “the propriety of a former judge providing legal advice about a case in which he or she participated.” Full disclosure: this question was raised in a letter written by academics including myself to the Federation some years ago. Kudos to the Federation’s Model Code Committee (chaired by Vancouver lawyer and former Law Society of BC President Gavin Hume, QC) for taking up the thorny but important ethical issues surrounding retired judges returning to practice.
The Supreme Court takes a very hard line on confidentiality for law clerks, going so far as to make them sign a confidentiality agreement before they start work that requires them to agree never to disclose confidential information learned in the course of their one-year employment. A number of years ago, the Supreme Court ominously warned all former Supreme Court clerks that cooperating with an American social science research project would violate that lifelong confidentiality covenant. No similar obligations exist for judges. There should.
Current and former judges should owe a duty of confidentiality to protect the operation and the integrity of the administration of justice. This is the justification for the privilege but it also recognizes that the privilege does not belong to individual judges – it belongs to the administration of justice as a whole. Anything that gives the appearance that former judges may possibly be relying on confidential information learned while they were judges has the potential to undermine public confidence in the integrity of the administration of justice.
Others have also raised the concern that the use of confidential judicial information involves trading on the lustre and the independence of the judicial office.