Retired Judges: When Does Advocacy Begin?

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In the Macleans’ article “Talk to my former Supreme Court judge“, the arms race to have a retired Supreme Court of Canada judge bless your position is discussed. Shannon Proudfoot of Maclean’s writes:

[I]t emerged that retired Supreme Court judge Frank Iacobucci was acting as legal counsel for the Quebec engineering giant as it sought a remediation agreement in the face of accusations of fraud and bribery… In an October letter to Prime Minister Justin Trudeau, SNC-Lavalin CEO Neil Bruce seemed wounded that Iacobucci had not even got the company in the door. SNC’s lawyer, “a well-respected expert in the law whose credentials are impeccable, former justice of the Supreme Court of Canada, was not afforded the courtesy of a meeting or even a call” with the director of public prosecutions to make the company’s case…

The Honourable Iacobucci’s representation of SNC-Lavalin begs the following questions, when does advocacy begin? Is it too narrow of a rule to bar judges only from appearing before tribunals or courts? Does deference towards judges require that retired judges abstain completely from legal services? Are judges undermining the spirit of the Rules by representing clients pre-litigation?

Rules for retired judges are inconsistent across the country. In Ontario, the Rules of Professional Conduct state that:

Appearance as Counsel or Advocate

7.7-1.2 A lawyer to whom this Rule applies 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. This approval may only be granted in exceptional circumstances and may be restricted as the panel sees fit.

To truly understand whether the spirit of the Rules is being undermined, we need to address what are “legal services”? In the decision Bergen & Associates Incorporated v. Sherman, 2014 ONSC 7213 by Justice F. L. Myers of the Superior Court of Ontario, Myers J. addresses the meaning of legal services. Justice Myers writes at paragraph 20 that “The provision of legal services includes the application of legal principles and legal judgment with regard to the circumstances or objectives of a client, negotiating the legal interests, rights or responsibilities of a client, giving advice concerning such legal interests, rights or responsibilities, and drafting documents affecting such legal interests, rights, or responsibilities.”

Justice Myers quotes Mr. Orkin, in the context of assessing a lawyer’s bill. If only a lawyer can perform the work, then it is legal services. However, Orkin writes that just because a non-lawyer can provide the same services does not automatically make it non-legal work. If the services are “bound up in the professional character of the lawyer”, then it is legal work.

I would argue that it is not enough to prohibit advocacy only in the courtroom. The service of retired judges are bound up in the “professional character of the lawyer”. The hiring of retired judges to bless politicized opinions is problematic. It has the potential to interfere with the adjudication of decisions or undermine the decisions made by judges.

For instance, when the Harper government released the opinion of the Honourable Justice Binnie regarding the appointment of Justice Marc Nadon, in my opinion, it undermined the Supreme Court of Canada’s decision. Justice Binnie’s opinion contradicted the Supreme Court of Canada’s decision on whether Justice Nadon could be appointed to the Supreme Court of Canada.

Before we revise the rules on the acceptable work of retired judges, we need to address “When does advocacy begin?”

(Opinions are my own and do not represent the views of any organization.)

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