Regulating Former Judges: Why the Delay?

Over the past twenty years, an increasing number of former judges have returned to the practice of law. Increased life expectancy and better health, shifting cultural attitudes about retirement and potentially lucrative opportunities have prompted a growing number of former judges to resume work as lawyers. For example, between 2013 and 2018, 41 former judges applied to the Law Society of Ontario to have their law licenses restored.[1]

The primary responsibility for regulating the ethical and professional issues generated by this phenomenon lies with the Federation of Law Societies of Canada (FLSC) and the individual law societies. And it would be charitable to say they have been slow to respond. In 2011, the rules of professional conduct in this area were criticised as “dated, under-analyzed, and generally inadequate”.[2] To date, however, these rules remain largely unchanged. In the previous decade, only Ontario has made any changes to the relevant provisions, increasing the scope of the preclusion on former judges appearing in court.[3]

To its credit, the FLSC embarked on a consultation in 2016 to consider potential reforms to the Model Code, and it developed a series of useful reforms that were circulated in 2017. Among other things, the circulated reforms proposed:

• All former judges be prohibited from appearing before or communicating with any court, subject to the right to apply to the regulator based on exceptional circumstances. The FLSC committee proposing this change noted that it was “persuaded that the administration of justice is negatively affected by the appearance of a former judge as counsel in a Canadian court.”
• A new duty of confidentiality be imposed on former judges. This proposed duty sought to protect the confidentiality of the judicial process by prohibiting former judges who choose to practice law from “disclos[ing] judicial confidences or any information that gives the appearance of relying on confidential judicial information, discussions or deliberations.” The FLSC committee proposing this change noted that the administration of justice could be brought into disrepute by former judges disclosing confidential debates or discussions that occurred while they were on the bench.

Many stakeholders, including the Canadian Judicial Council (CJC), the Advocates’ Society, and the Canadian Association for Legal Ethics, took positions in support of these changes. However, as of the end of 2022 – five long years on – the reforms proposed in 2017 have not been implemented.

In the meantime, in 2021 the CJC revised Ethical Principles for Judges (EPJ), the ethical and professional guidance for all federally-appointed judges in Canada.[4] One of the key reforms was to address the issue of former judges returning to practice. Like the FLSC’s proposed revisions, EPJ states that former judges should neither “appear as counsel before a court or tribunal in Canada” nor “disclose the confidential discussions among judges…or discuss anything that gives the appearance of relying on confidential information or judicial confidences.”

While the CJC’s adoption of these admonitions in EPJ is a very important development, this does not replace the need for regulation by the law societies. Former judges are beyond the reach of the CJC and its power to impose discipline, even if that power is expanded (as proposed in Bill C-9) to include sanctions other than removal from office. When former judges deliver legal services, they are accountable to the law societies who licence them. Effective regulation on these issues must come from those law societies.

Indeed, the failure to proceed with the revisions to the Model Code risks significantly undercutting the value of the judges’ own reforms. Moreover, it is confusing and poor regulatory practice for former judges to be permitted to do one thing by legal regulators while being admonished against it by the CJC. The FLSC should adopt the revisions circulated in 2017. This would help create harmony in the guidance given. More importantly, it would modernize and improve the regulations in this area.

If the FLSC does not act, it remains open for individual law societies to do so. One of the aims of the Model Code is uniformity, but the reality is that there are differences of opinion on some issues and accordingly there are several variations on important issues across jurisdictions. Ontario’s change to its provisions about former judges appearing in court is an example. On that issue at least, it was not prepared to wait for a change to the Model Code. Moreover, unlike on some developing issues, there is already a clear template for an individual law society to follow, namely the 2017 revisions. So each jurisdiction does not need to undertake its own separate project. In the face of continued inaction on the amending the Model Code, the law societies should take their own steps to adopt the 2017 revisions in their respective jurisdictions.

While regulators deliberate (or delay), we are largely left to rely on former and current judges to voluntarily embrace and abide by the guidance in EPJ. The document describes itself as “an expression of the judiciary’s highest ethical aspirations in the service of justice and the rule of law” and, on the topic of post-judicial legal careers specifically, as providing guidance “with a view to maintaining public confidence in the judiciary.” Former judges practicing law should not rely on the inaction of law societies to justify ignoring the judicial consensus reached on questions of court appearances and judicial confidentiality, as contained in EPJ. Moreover, current judges must consider their obligation to be faithful to EPJ when former judges seek to appear in their courtrooms. More specifically, a current judge might refuse to accept a factum or hear oral submissions from a former judge now engaged in the practice of law because this would be contrary to EPJ.

For their part, law societies could employ a form of indirect regulation. Where current rules of professional conduct are silent—like they are on the issue of judicial confidentiality—a law society might consider disciplining a former judge now engaged in legal practice if their conduct is contrary to the guidance in EPJ. For example, a former judge who violated the ongoing confidentiality obligation flowing from that office might be thought to have engaged in conduct unbecoming of a lawyer.

However, when it comes to ethics and professionalism in the practice of law, we ought to be more ambitious and resolute than simply relying on the conscience of individuals (in this case, former and current judges) or on indirect law society regulation. The FLSC and individual law societies have an essential role in vigorously safeguarding the proper administration of justice in the public interest. In this particular context that means making essential revisions to the provisions governing judicial return to practice which have been criticized for over a decade.

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[1] See Report to Convocation, Professional Regulation Committee, Law Society of Upper Canada (October 25, 2018).

[2] Stephen GA Pitel & Will Bortolin, “Revising Canada’s Ethical Rules for Judges Returning to Practice” (2011) 34:2 Dal LJ 483 at 485.

[3] See Report to Convocation, Professional Regulation Committee, Law Society of Upper Canada (January 28, 2016).

[4] For an analysis of the revisions see Richard Devlin et al, “A Mixed Bag: Critical Reflections on the Revised Ethical Principles for Judges” (2022) 100 Can Bar Rev [forthcoming].