Against Supreme Lawyering

Retired Supreme Court of Canada judges can and do practice law in Canada. Law societies’ rules allow this, subject to certain restrictions on court appearances. In this column, I argue that these rules should be changed: law societies should not license retired Supreme Court of Canada judges to practice law in any manner or form.

First, a few important points of context.

The focus here is exclusively on retired SCC judges. There are currently active policy discussions about reforming law society rules that apply to retired judges from all levels of court who wish to return to legal practice (see, for example, here and here). These discussions raise important issues and similar concerns to those outlined below. In my view, retired SCC judges represent a special case and are deserving of special consideration.

Second, the point of this column is not to make the case that any particular past/current instance of a retired SCC judge practicing law was/is Bad or Wrong. As far as I know, all retired SCC judges who have practiced or do practice law are compliant with the applicable law society rules. The focus here is institutional and systemic. My concern is the potential harm to public confidence in the proper administration of justice when retired SCC judges practice law.

Like many other issues in the realm of legal or judicial ethics, I accept that discussing what retired SCC judges should be allowed to do can be sensitive, particularly for those retired SCC judges who want to practice law. I am sympathetic to these sensitivities. That said, it is healthy and necessary to have robust discussions about the appropriate boundaries of professional behaviour for those who occupy powerful public positions in Canada. It’s too important not to talk about.

Finally, I accept that the position that retired SCC judges should be prohibited from practicing law is an issue about which reasonable people can disagree. There have already been a variety of perspectives voiced about what legal work retired SCC judges should be permitted to do. Take, for example, the perspectives voiced in this recent article from the Hill Times.

Now, with all that throat-clearing, let’s get to the heart of the matter.

Where is the harm?

The most powerful concerns about retired SCC judges practicing law relate to the potential negative impacts on public confidence in the administration of justice.

To be sure, these concerns are most salient in the area of court appearances. As Stephen Pitel and Will Bortolin note in their article, “Revising Canada’s Ethical Rules for Judges Returning to Practice”:

…[S]o long as the public is of the view that judges have special influence, their appearance in court will raise doubts about the propriety of the outcome. While on the bench, judges have elevated authority in the courtroom, and some might expect that they carry that authority with them after leaving the bench. Even if this is incorrect, the appearance of impropriety should still be avoided.

Pitel and Bortolin are referring generally to retired judges who appear before courts. Surely, when thinking about retired SCC judges in particular, the concerns about propriety are multiplied.

It is reasonable for John Q. Plaintiff to feel that he’s not going to get a fair shake when he sees that his lawyer (or he, himself!) is up against a retired SCC judge on the other side. It is also reasonable for the public to feel uneasy about any court decision that stems from such a case. SCC judges hold an enormous amount of prestige and power by virtue of their judicial position, which doesn’t simply evaporate upon retirement. A retired SCC judge acting as an advocate in the courtroom brings legitimate concerns about bias or undue deference from the bench or jury.

To be clear, the policy case here doesn’t hinge on providing definitive empirical proof of bias or an unfair advantage. As the SCC has noted itself “public confidence [in the administration of justice] depends not only on fact but also on reasonable perception.”

Lawyers being lawyers, some of the policy discussions about retired judges returning to practice involve debates about what actually constitutes “a court appearance”. For example, should retired judges be able to sign pleadings but not appear in court? In my view, providing this type of assistance raises the same concerns and public confidence issues as actually appearing in person in court. Indeed, one wonders what the purpose would be of a retired SCC judge signing pleadings in a matter but not appearing in court to argue the case other than an intention to add an (ex)judicial imprimatur to the client’s case.

As mentioned above, law society rules already contain restrictions on court appearances. The rules vary somewhat between jurisdictions. For example, the current rules in Ontario provide that a retired SCC judge “shall not appear as counsel or advocate in any court, or in chambers, or before any administrative board or tribunal without the express approval of a panel of the Hearing Division of the Law Society Tribunal” and note that “this approval may only be granted in exceptional circumstances and may be restricted as the panel sees fit.” In contrast, British Columbia has a similar rule barring court appearances but limits the prohibition to a three-year period after the judge has returned to practice.

The Federation of Law Societies has proposed changing the Model Code to provide that any judge returning to practice not be allowed to appear before or communicate with any Canadian court or tribunal. The proposed commentary to this Rule reads:

[1] The administration of justice in Canada may be negatively impacted by a former judge appearing in court after they have left the bench. Former judges who return to practice should avoid any perception that they are advocating or appearing before a court or tribunal. A former judge should not be seen to be actively involved on behalf of a client in a matter before a court or tribunal, for example by sitting at counsel table or signing materials submitted to the court or tribunal.

Hopefully, this proposed rule change will be adopted soon and incorporated into provincial and territorial codes of professional conduct. If so, there will be a prohibition on retired SCC judges appearing in court across Canada and also clarity that retired SCC judges should not otherwise actively participate in litigation by signing pleadings, for example.

Outside litigation, the issues become arguably murkier. What about a retired SCC judge providing legal opinions or negotiating for clients? Law society rules don’t cover this, nor do the Federation’s proposed rule changes. Out-of-court work does not raise the same issues about public confidence in the fairness of court decisions. The danger here is distinct. The worry, to be frank, is the perception that part of what clients are buying when they ask retired SCC judges to do such work is that (ex)judicial imprimatur.

It’s common sense that when a client retains a retired SCC judge to do legal work, part of the reason the client does so is because the status of “former SCC judge” has gravitas. The status itself has value. I take this to be an unassailable fact. And, in any case, you don’t need to take my word for it when one can find a client touting the opinion it received from a retired SCC judge in a blog titled “Will a Retired Supreme Court Justice Do?” The title of “former SCC judge” is something to be extraordinarily proud of, but it shouldn’t be a commodity in the legal market. To treat it as such harms the reputation and prestige of the court.

In the case of retired SCC judges in particular, it seems impossible to escape the concerns about former title commodification. As mentioned above, the extremely high prestige and authority accorded to Supreme Court judges are “sticky”: retiring from the bench doesn’t remove a judge from the stature and the power of the judicial position. And this stature and power will always be appealing to clients. It shouldn’t be for sale.

What, then, about free legal work? To be sure, this would eliminate the commodification concern. There are, however, still issues related to retired SCC judges performing pro bono legal services. One concern unrelated to money and raised by lawyer Bob Tarantino, is the “juridification of too much stuff.” Tarantino recently wrote a compelling thread on this issue, which read in part (for original Tweets, see here):

… Weaponizing former SCC judges is best understood as an attempt to transpose the validity of appeals to authority from a context in which such appeals make sense to contexts in which they make much less sense. It is using the prestige of the position to cloak arguments with a kind of positional sheen. It won’t end well – it will result in the metrics of judicial decision-making being employed in ways that make no sense. Who wins the argument at the SCC? Whoever gets a majority of judges to grant them the relief they’re seeking. We’ll end up with people collecting opinions from multiple former judges (“Oh, you got 3 former judges to agree with you? well I got *four* – including the *Chief*”). We’ll end up – even moreso than we have already – distorting the kinds of claims that can be advanced in politics, and the ways in which those claims are assessed, in a way that is great for lawyers and (former?) judges, but less obviously so for anyone else.

If the concerns bottom out into problems with the prestige of the judicial position being used in post-retirement work, what about anonymous work? What if a retired Supreme Court judge is hired or made partner by a law firm and is simply available to provide advice to lawyers and clients on an anonymous basis? Again, this alleviates some concerns, but others remain. We might worry, for example, that part of what law firms are doing when they hire retired SCC judges is using the judges’ former judicial titles to add to the firm’s prestige and thus add value to their brand. In other words, there is a similar but different concern about commodification.

Admittedly, at some point, the institutional and systemic concerns arguably decrease to a manageable level. We could think here of retired SCC judges working on their own, outside of a law firm setting, doing out-of-court legal work for clients, on an anonymous basis. I’m not sure how many retired SCC judges would want to do this and if this would be broadly feasible for clients (it is often the case that a client’s lawyer needs to identify herself!). To me, the degree of mental gymnastics necessary to come up with a workable scenario is telling. (If a retired SCC judge yells a legal opinion in the forest and no one is around to hear it, do we still worry about the administration of justice?). If we have to go to extreme lengths to quell concerns about the impact on the administration of justice of former SCC judges practicing law, this is good evidence, to me, that they should just not practice at all.

Counter-Arguments

The three main arguments that I have heard against prohibiting retired judges from practicing law are broadly: (1) retired judges should be free to work, just like other people are; (2) clients and the public should be able to benefit from retired judges’ legal expertise and vast experience; and (3) what about outlier cases where judges are only on the bench briefly?

A quick retort to the freedom to work issue is to point to the very generous pensions that retired SCC judges enjoy (take, for example, the roughly $270,000 a year that Chief Justice McLachlin is reportedly receiving in her retirement). I think the pensions point is a strong one, but there are some good further counter-arguments. As Pitel and Bortolin note in their article:

Many of the arguments in favour of a prohibition apply equally to lawyers who hold a variety of public offices, in particular to those who serve on important tribunals or hold leading positions in the government. These people also are well-remunerated and they also get significant status and influence from these positions. There is no suggestion that these people should be prohibited from returning to practice. It is hard to see why judges should not have the same option. Furthermore, some lawyers accept a significant reduction in remuneration to become judges, and they may consider the ability to return to practice as essential to that economic bargain.

Pitel’s and Bortolin’s argument may have some traction in relation to retired judges generally (who again, were the focus of their argument) but in the case of retired SCC judges, in particular, the exceptional nature of the position and heightened harms that I note above warrant special treatment.

It should also be made clear that the position taken here is not that retired SCC judges cannot do any form of work or even that they cannot do any type of legally related work. The restriction I am proposing is related to practicing law and does not preclude, for example:

• Acting as Commissioners of Inquiry
• Heading up taskforces of study about issues impacting the legal profession or legal system more broadly
• Working in a non-lawyer capacity for companies, charities or legal organizations like the Canadian Bar Association
• Writing books or articles about the law
• Teaching law in law schools
• Giving lectures to the public about the law

Given the potential institutional and systemic harms that may result from retired SCC judges returning to practice, requiring them to refrain from practicing law strikes me as a fair restriction when one considers that they have generous pensions and that they have the ability to do a range of other work post-retirement, including work in the legal field.

The idea that judges shouldn’t return to practice at all isn’t novel or merely theoretical. In England and Wales, “Conditions of Appointment and Terms of Service” for High Court judges contains the following clause:

PROHIBITION ON PRACTICE

2. A High Court Judge shall not practise as a barrister or solicitor or be indirectly concerned in any such practice (s75 Courts and Legal Services Act 1990). The Lord Chancellor also regards a judgeship as a lifetime appointment. Any offer of appointment is therefore made on the understanding that appointees will not return to practice.

With respect to clients and others not being able to benefit from excellent legal services that retired SCC judges can offer, I accept that this is a loss. I don’t, however, accept that it is a loss so severe that it overcomes the systemic and institutional harms raised above. Yes, there will potentially be a handful of very good lawyers that the public cannot now retain. There will be other very good lawyers available to these clients. (All of this assumes, of course, that those members of the public to which we are referring can actually afford to hire a lawyer, which goes to an important, if slightly tangential, issue about the limited class of clients who could afford to hire a retired SCC judge if his or her services are not being offered pro bono).

Moreover, to the extent that retired SCC judges hold special knowledge or informational advantages from their time on the bench, this is not knowledge or information to which clients should be entitled in any case. Pitel and Bortolin raise the importance of imposing a duty of judicial confidentiality in their article. As Dean Adam Dodek notes in a previous Slaw blog on the subject:

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.

Indeed, the Federation of Law Societies of Canada’s proposed rule change includes a new mention of a duty of judicial confidentiality.

Finally, what about quick retirements? What about a SCC judge who joins the bench but decides to leave one month, one year or five years later and still has a long working life ahead of him or her? Practically speaking, this doesn’t seem to actually happen. But, to be fair, it could. Fortunately, the solution to this is simple. A prohibition on retired SCC judges practicing law after leaving the bench could be subject to an exception similar to the one that now exists in the Ontario law society rules in relation to retired SCC judges making court appearances: the law society could impose a general prohibition but could retain the ability to grant express approval to practice in exceptional circumstances and with whatever restrictions the law society sees fit.

Conclusion

Allowing retired SCC judges to practice law carries with it institutional and systemic harms. We should seek to avoid these harms, notwithstanding that it will result in some constraints on the post-retirement professional lives of retired SCC judges. Canadian law societies should change their rules to prohibit retired SCC judges from practicing law in any circumstances. Until this happens, former Supreme Court judges should take serious pause before engaging in post-retirement legal careers and should consider not asking law societies to relicense them as lawyers. Just because something is permitted by the rules doesn’t make it a best or prudent practice.