Life After Adjudication: Should There Be Restrictions on Employment?

Adjudicators can find, through no fault of their own, that their adjudication career is over. Either a government decides not to reappoint or there are term limits in place. Through either choice or necessity, a former adjudicator may return to being an advocate. Recent discussions about restrictions on former judges practicing law serve as a useful framework for a discussion on appropriate restrictions on former adjudicators.

In 2011, a group of Canadian law professors wrote to the Federation of Law Societies of Canada (FLSC) to raise concerns about the post-judicial activities of judges:

…numerous issues have arisen regarding judges’ actions when exiting the job and after retiring from the bench. Such issues include the propriety of a former judge providing legal advice about a case in which he or she participated, judges stepping down to run for political office, commenting on the work of the court on which the judge formerly sat, and a judge appearing as counsel before former colleagues. These are difficult and controversial issues that are in need of serious consideration.

The FLSC Standing Committee on the Model Code of Professional Conduct has prepared a discussion paper on the issues of former judges practicing law (unfortunately not available online). The discussion paper poses the overall question: “What is the actual or potential mischief arising from the practice of law by a former judge? Having identified that, how could such mischief be addressed?”

The FLSC paper notes that the public might conclude that a former judge appearing in their former court has advantages over other counsel. This advantage might be personal or practical. The personal advantage arises by virtue of the former collegial relationship the former judge may have had with the judge hearing a case. The legal principles of apprehension of bias will likely address most of these concerns. The practical advantage is more challenging to address.

The discussion paper notes that the advantage a former judge might have “is the result of insights they have into how best to present a case to their former colleagues”. The discussion paper continues:

Judges, of course, seek to overlook presentation, and get to the substance of a matter, but a former judge will have had an opportunity to observe, to consult, and to discuss with other judges matters closed to other lawyers. A losing litigant—still convinced of the merits of their case — may see the outcome as a result of some “secret” knowledge or insight the former judge gained from their time on the bench.

Although some have argued that judges should never appear before their former court or any other court or tribunal, it is more common to see “cooling off” periods or appearing with the permission of a Law Society panel. For example, the Law Society of Upper Canada (LSUC) prohibits former judges of the Supreme Court of Canada, the Federal Court of Appeal, the Ontario Court of Appeal and the Superior Court from appearing as counsel or advocate before a court or tribunal without the approval of the Hearing Division of the Law Society Tribunal. The presumption is that this approval will be sparingly given: “approval may only be granted in exceptional circumstances and may be restricted as the panel sees fit.” Former judges from other courts cannot appear before the court on which he or she served, a lower court, or a tribunal over which his or her former court exercised jurisdiction over, for a period of three years. Exceptions to the three-year rule require the express approval of the Hearing Division and again can only be granted under exceptional circumstances.

Law Society regulation of former adjudicators is limited. Québec and Saskatchewan have provisions preventing a former adjudicator from appearing before the tribunal he or she was appointed to. Saskatchewan prevents an adjudicator from appearing as counsel before the tribunal for a period of three years. Québec’s Rules provide that a lawyer cannot plead before the tribunal “if the situation is likely to bring the administration of justice into disrepute.”

The CBA Code of Conduct (adopted by some law societies) also has a rule directed specifically at former adjudicators. The rule states that a lawyer “should avoid advising upon a ruling of an official body of which the lawyer either is a member or was a member at the time the ruling was made.” A variation of this rule has also been adopted in Alberta, New Brunswick, and Nova Scotia.

Former adjudicators are also subject to post-employment restrictions established in government codes of conduct. At the federal level, former adjudicators are subject to the Conflict of Interest Act which limits representation of any party “with which he or she had direct and significant official dealings during the period of one year immediately before his or her last day in office”. Other jurisdictions have similar restrictions.

Proposed changes to the LSUC’s Code of Conduct were discussed earlier this year. The proposal was to require permission from the Law Society before being able to appear before the court the judge had been on, which was adopted in part. The rationale for the proposal is worth setting out in detail:

1. Judges who have served on the court during the same period as a retired judge have indicated that they are not comfortable presiding over matters in which a retired judge is counsel. In some cases, judges have recused themselves when a former judge appears in their court. Judges also indicated that they intended to recuse themselves in future in any matter in which a former judicial colleague appears as counsel. Newer judges, who did not serve on the court with a former judge, have expressed concerns that regardless of any professional or personal relationship with the judge the appearance of fairness and impartiality of a former judge appearing before them as counsel is very problematic. Newer judges have indicated that they are uncomfortable with raising the issue with a former judge who appears in their court and counsel may be reluctant to appear before a judge who is willing to preside in these circumstances.
2. Parties know, or can easily find out, that an opposing judge is a former judge of the court. This may create the impression that the presiding judge, and the court as a whole, cannot be impartial. Parties, and particularly self-represented litigants, may feel intimidated or hesitant to voice their concerns to the presiding judge. In one instance, opposing counsel referred to a retired judge who was appearing as counsel as “His Honour” when commenting on the former judge’s submission. In another instance, a former judge’s advertisements for his practice specifically referred to his former position as a Judge of the Superior Court, ostensibly as an advantage to his clients.

The CBA Ethics committee has provided its views on the discussion paper and is in favour of a five-year limit on a former judge appearing before a court they sat on:

… A former judge is said to have an advantage when appearing before a court of which he or she was a member. Some argue that the former judge may have better insight to pitch “an argument to better its reception by the court.” Admittedly, these insights may not be confined to former judges, as counsel with long experience before a particular court may get to know “its cast of mind” and “internal dynamics.” However, some suggest a former judge would have had more opportunity for direct and personal observation of the court, and hence, more accurate and reliable insights.

Despite the intuitive nature of these arguments and the questionable value of alleged judicial insights, the perception that a former judge has an advantage over other counsel is shared by many commentators. Typically, regulators seek to manage the perceived advantage through rules that prohibit appearances in court by former judges for a range of three to five years. Some would suggest this merely postpones the problem of public perception. Certainly, in the absence of empirical data, the selection of an appropriate time period is, in essence, arbitrary.

There is no way of knowing if a five year prohibition is better than a three year ban, or vice versa. Why reflect any particular time period if there is no way of determining an optimum length of time to prohibit appearances by former judges? The CBA Ethics Committee considers that it would not be advisable to eliminate the time limited prohibition entirely. The values which it seeks to protect are too important to expose to erosion for the sake of “seeing what would happen.” We think public confidence would be enhanced, albeit marginally, if the ban was extended to five years.

Some commentators have focused on the arbitrariness of a time limit on a restriction of appearing before a former court. In an article in the Dalhousie Law Journal, Stephen GA Pitel and Will Bartolin (“Revising Canada’s Ethical Rules for Judges Returning to Practice”) note:

What changes after two or three years? A lawyer who is a former judge will always be a former judge and the reverence or influence associated with that status is unlikely to diminish with time. The time limit might be some law societies’ way of admitting that the court-specific restriction was never necessary in the first place, although this would be an unprincipled compromise. The rules should either make clear that appearances before courts are improper or they should not prohibit them at all. An arbitrary time limit is not compatible with the primary function served by the restriction.

The ability of a former adjudicator to effectively advocate before his or her former tribunal is likely no different than that of an experienced counsel. There is no “secret” knowledge that I’m aware of. The only insight adjudicators have is from seeing many different advocacy styles and appreciating those styles that are effective. However, cases should be decided on their merits, not advocacy style.

An absolute ban on former adjudicators appearing as advocates could have a significant impact on the ability of a former adjudicator to earn a living. Judges have job security and decent pensions, so it can be argued that it is not a necessity that they return to work as advocates. The same cannot be said of adjudicators.

Another concern raised by the FCLS discussion paper is more complex: former judges commenting on cases they have decided. It’s kind of a “damned if you do, damned if you don’t” scenario:

…The temptation may be to support the correctness of such decisions, and that may not be in the client’s best interests. Criticizing such judgments, even in a private opinion may raise the same concerns about undermining public confidence in the judiciary … particularly as clients may “go public” with the advice they receive.

The Saskatchewan Law Society’s Code of Ethics quotes an Irish decision from 1930 to highlight, in dramatic fashion, the concern:

…If a man should step down from the Bench and… perhaps challenge the decisions which he pronounced, or even fail to support them in argument, he will shake the authority of the judicial limb of government, and mar the prestige and dignity of the Courts of Justice…”, per Kennedy, C.J. in Re Solicitors Act and O’Connor (1930) I.R. 623 at 631 (Irish H.C.).

The CBA Ethics Committee has stated that it believes that comments by a former judge on the meaning or scope of one of their decisions should not be permitted. It also suggests for discussion whether this restriction should apply to judicial reviews or appeals from those decisions.

The LSUC proposal is quite adamant that former judges should not cite their own cases during arguments, arguing that it is “unseemly”. The proposal also notes that the former judge’s clients’ interests may suffer if the former judge is required to argue a position that is contrary to his or her judicial decisions.

In a tribunal setting there are often many decisions on the same point, and it is simple enough to find a decision that is not the former adjudicator’s to rely upon. However, there may be a novel area that a former adjudicator touched on, or a leading case that cannot be ignored. A decision should always speak for itself. A former adjudicator can refer to a case he or she decided for the principles it interpreted or established but not on anything that went into the decision-making process. It would certainly be awkward to argue that one of your decisions was “wrongly decided”. I think as far as a former adjudicator could go would be to say that the law has “evolved” since the decision was made.

As with the judiciary, more and more tribunal members are leaving their adjudicative roles. With the rigorous enforcement of term limits, the number of former adjudicators will likely increase. We need to consider the ethical concerns that arise in these situations. Although former tribunal members should not perhaps be held to the same standard as judges, some of the same concerns arise and need to be addressed. This will require the balancing of the right to earn a livelihood with the proper administration of justice.