C Schmitz: “Supreme Court of Canada to look at issue of ex-judges representing clients in court “

By Cristin Schmitz and posted in Lawyers Weekly, April 12, 2013.  For the original article on the Lawyers Weekly website and photos, click HERE.

Should ex-judges be forever banned from appearing as counsel in their former courts – or indeed in any courts?

Charles Huband of Winnipeg’s Taylor McCaffrey, who sat on the Manitoba Court of Appeal for 28 years before he retired in 2007, doesn’t think so. Manitoba’s Law Society takes the same position — although the opinion of legal regulators across Canada is not unanimous.

Huband, an 80-year-old civil litigator, has been arguing cases in various courts, including his former court, since 2010, when the three-year cooling-off period Manitoba’s legal regulator imposes on ex-judges expired.

“It’s challenging, and I find it enjoyable, and I want to serve my clients,” Huband said. “I’m a lawyer now, and I ought to be able to do the things that lawyers do. It’s as simple as that.”

Not everyone feels the same way. The issue has excited enough controversy that the Supreme Court of Canada may soon weigh in with a judgment that could affect the common law rules on apprehension of bias — and thereby also affect the diverse professional regulations governing retired judges’ return to practice.

Although Huband has a clear green light from his law society to advocate before his former court, that could change for ex-judges across the country depending on what the top court says in an appeal to be argued this spring that asks whether an apprehension of bias exists when a “recently retired” judge argues a case before his former court.

“Speaking as a former court of appeal judge, I don’t think that there would be any possible bias in favour of a retired judge who appears,” Huband said. “If anything, I think that it would be an unconscious bias the other way. I don’t see it as a problem.”

However, opposing counsel and their clients were discomfited enough by Huband’s role as co-counsel against them at a Manitoba Court of Appeal hearing in 2010 that they are urging the Supreme Court in their May 16 appeal to set “the standard to be applied to the legal profession and judiciary in determining what constitutes disqualification of a former judge from appearing before his colleagues”: Telecommunications Employees’ Association of Manitoba Inc. v. Manitoba Telecom Services.

Huband’s appearance “caused us concern and has been a recurring distraction,” the appellants’ counsel told the Court of Appeal panel when the hearing began.

Increasingly, ex-judges are hanging out shingles after they hang up their judicial robes, Western University law professor Stephen Pitel told The Lawyers Weekly. “And flowing from that, we are seeing some of those judges who do return to the private practice of law appearing in courts, or indicating a desire in the future to appear in the courts.”

In a 2011 Dalhousie Law Journal article he co-authored with Will Bortolin, Pitel argues that the disparate regulatory rules governing former judges returning to practice across Canada are “dated, under-analyzed and generally inadequate” to deal with a phenomenon that “raises an array of ethical considerations and potential threats to the integrity of the administration of justice.”

Those concerns include the possibility of a former judge having undue influence over ex-colleagues, or having undue influence over judges and juries as a result of “judicial reverence,” as well as “the potential for the appearance of impropriety.”

Jack Major, a former top litigator who rejoined Calgary’s Bennett Jones as a consultant after retiring from the Supreme Court of Canada in 2005, said he thinks it’s all right for former judges to give legal advice when they return to practice. “But appearing in court there’s a public appearance that just, I think, creates an uneasy feeling, at least that’s what people are saying.”

Pitel and Bortolin propose a detailed ethical rule to govern all former judges returning to practice across Canada that includes a blanket ban on:

“Appearing as a lawyer in any province in which the lawyer previously exercised a judicial function before the court of which he or she was a member;”

Appearing in any inferior courts or administrative boards or tribunals over which the ex-judge’s former court exercised appellate or judicial review (barring “exceptional circumstances” approved by the law society).

The implications for the regulation of the profession are unlikely to be far from the judges’ minds when they hear Telecommunications Employees’ case. Several unions are appealing the Manitoba Court of Appeal’s decision last year to overturn a trial judgment that awarded a $43-million pension surplus (now about $101-million with interest) to MTS’s 7,000 employees, rather than to the company. In addition to errors they cite as grounds, the appellants ask whether Huband’s appearance as co-counsel for MTS three years after he retired from that bench created an appearance of bias.

They say in their factum that they “are not seeking a specific remedy from this court if an apprehension of bias is found to exist; rather they seek this court’s guidance on this important question that will impact courts across this country.”

They point to, among other things, “the importance of the independence and impartiality of judges to public confidence in the administration of justice” and the “untenable position counsel are placed in when asked to consent to continuing with a proceeding in these circumstances.”

MTS argues that it is “completely without foundation” and “profoundly unfair” to allege that Huband’s participation in the appeal created an apprehension of bias.

The unions’ counsel raised their clients’ concerns about Huband’s role with then-Manitoba Chief Justice Richard Scott at a prehearing conference, months before the appeal was heard. The appellants’ factum indicates the chief justice advised them that the panel would consist of judges who were not members of the court before Huband retired. But shortly before the hearing, the appeal court wrote to say that one of the judges on the panel had been a member of court before Huband retired, and that another had a “reasonably close” professional and personal relationship with Huband even though they were not on the court at the same time.

At the hearing’s outset, counsel for the unions said they were confident they would receive an impartial hearing from the panel.

However, Justice Richard Chartier, who chaired the panel, noted for the record that the court was aware that (because of the advanced age of some of the pensioners) the union had not wanted to delay the appeal being heard on the merits by filing a motion to disqualify Huband.

Justice Chartier said that, although Manitoba’s Code of Professional Conduct expressly recognizes the right of former judges to appear in their former courts after three years, “that right might be tempered if that lawyer were to appear in a preferred position.” Referring to commentary 5 of the code, which has no time limits, Justice Chartier explained “the concern is that the administration of justice and the public confidence in the…integrity of the judicial system would suffer if a former judge was seen to be in a preferred position by having held judicial office.”

Justice Chartier emphasized that his court has the authority to ensure that its processes achieve a fair result “and are seen to yield a fair result.”

He concluded: “Given the exigencies, specifically the concerns over delay, it is the view of this panel, that in the particular circumstances of this case, Mr. Huband be allowed to argue this matter. However, we want to make very clear that this decision is…with respect to this case alone and does not preclude or curtail this court from revisiting the issue in any future appeals.”


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