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)...