The Caesar’s wife dilemma: Post-judicial return to practice

  • September 26, 2016

Everyone should be allowed to seek employment, including former judges, says the CBA Ethics Committee in its measured response to the Federation of Canadian Law Societies’ request for feedback on its discussion paper dealing with judges’ ability to return to the practise of law.

Lisa Fong, Chair of the Ethics Committee, noted in her letter that discussions are at the “pre-consultation” stage and that she was commenting on behalf of the committee – in later phases the CBA would canvass the wider membership for comment.

Having judges return to the practise of law after leaving the bench is a concern not just in Canada, but around the world, the letter notes, for the questions they raise about the administration of justice and the independence of the courts.

“There does not seem to be any empirical data to suggest that there is, in fact, demonstrable harm to either the administration of justice or judicial independence,” Fong writes. “This is not surprising as it would be necessary to seek data from sitting judges, an act in and of itself that may be said to interfere with the independence of the courts.”

While there is little evidence of this, former judges are often perceived to have unfair influence with or insider knowledge of the courts where they used to preside, an influence which law societies have attempted to mitigate by banning court appearances for periods of time following the judge’s departure from the bench. The CBA Ethics Committee agrees with this practice, and suggests that ban extend for five years, and apply to written pleadings or submissions as well as appearances in the courtroom.

The committee also believes that anonymous pleadings should fall within that prohibition as well, but acknowledges that judges’ post-judicial employment could be “severely curtailed” if it were. And it adds that any rule or prohibition should allow for some flexibility – for example, it says part-time judges should not be subject to the same prohibition against practising law because a) it would limit the number of lawyers willing to work part time as judges, and b) they have less opportunity to form the perceptually problematic insider knowledge of a courtroom. “The risk to the administration of justice may, therefore, be considerably less than that of a former judge who had served full-time,” the letter says, though the committee does believe that regulations should also be put in place addressing the particular ethical problems that may be encountered by a part-time judge.

When marketing the former judge’s skills, “the commentary should make it clear that … there should be no suggestion that former judges have a heightened ability to influence the courts,” the committee advises, and former judges should not be allowed to comment on the meaning or scope of a case which they decided.

It’s probably too late to start banning judges from seeking employment as lawyers after leaving the bench, the committee says, but their returns should be properly regulated, and the CBA looks forward to contributing to that discussion.

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