The Ethics of Former Judges Returning to Practice

By Nancy Carruthers


The activities of former judges have been a recent focus of attention, particularly as a result of the involvement of former SCC judges in the SNC Lavalin matter. 

The Canadian Judicial Council (“CJC”) is also in the news, as it seeks to modernize the Ethical Principles for Judges. The CJC is conducting an online survey, seeking feedback about seven major themes: social media; public engagement; dealing with self-represented litigants; case management,settlement conferences and judicial mediation; professional development; and post-retirement activities. The last theme is the focus of this article.

The Federation of Law Societies (“Federation”) has been studying post-judicial return to practice since 2016. The most recent proposal to revise the Model Code included a ban on law firms communicating with sitting judges about post-retirement employment opportunities, as well as a ban on former judges appearing before any Canadian court or tribunal, unless permitted by the governing law society. Permission would only be granted in exceptional circumstances, taking into account the length of time the former judge sat on the bench, the length of retirement, the scope of proposed practice, and the jurisdiction in which the former judge presided.   

The ban on employment discussions with sitting judges is meant to prevent speculation that the firm where the retired judge goes to work may have been in a favoured position while the judge was on the bench.  In the United States, employment discussions with a sitting judge would be allowed, as long as the employing firm did not have a matter before the judge. The American approach reflects the current standard in Canada. Retired judges, and the firms where they practice after retirement, seem well aware of the conflict rules that would prevent them from making an employment offer to a judge before whom they have a current litigation matter.

The restrictions on appearing in court are more controversial. While the Federation has not proposed a ban on former judges returning to practice, the proposed Model Code amendments would prevent former judges from appearing before courts or tribunals.  They could, however, consult in the background, and many former judges do just that as part of their practices, along with providing valuable mentorship within their firms.

The current Alberta framework allows former judges or masters in chambers to return to practice after leaving the bench, although they are not allowed to appear in chambers or court without Bencher approval.  In 1998, the Benchers established that, as a condition of returning to practice, retired judges may not be referred to as former judges in any court appearance or court document.

In 2000, the Benchers established a guideline for considering applications by former judges returning to practice. The guideline suggested a six month “cooling off” period for Provincial Court judges, and a two year cooling off period for the judges of other superior courts. Lawyers who retire after less than three years on the bench might be allowed to appear in court after one year.

Rule 5.1-3 of Alberta’s Code of Conduct also prohibits a lawyer from appearing before a judge when the lawyer’s relationship with the judge would create an apprehension of bias. Former judges may not appear in court for two years or more, depending on whether there are other factors that cannot be mitigated by the passage of time. Both the Model Code and the Alberta Code prevent those in a business or personal relationship with a judge from appearing before that judge.

The Federation’s proposal to prevent former judges from appearing in court presumes that the administration of justice and the public’s faith in the court process is negatively impacted by the appearance of a former judge as counsel in court. Courts in other provinces have experienced scheduling difficulties, due to judges’ discomfort in presiding over a matter in which a retired judge is counsel. There are unfortunate examples of a former judge being referred to as “His Honour” in court, and of former judges referring to their earlier status and decisions. These sorts of behaviours are “offside” but infrequent, and could reasonably be managed by the courts when they arise.

Opinions diverge on whether the ban on court appearances is a proportionate approach, with some favouring a cooling off period. Less restrictive rules mean that clients would have access to high quality legal representation from former judges. Many former judges make significant contributions after retirement, in a variety of ways. Some argue that post-retirement restrictions will discourage meritorious applicants and limit the pool of potential judges. There are also some cases in which judges resign from the bench after only a short tenure, making it difficult to justify applying a restrictive rule.

The independence of the judiciary provides the strongest principled reason for permitting former judges to appear in court. A blanket prohibition seems to assume that judges cannot be impartial with former colleagues. There is support for the principle that they have the inherent jurisdiction to determine who appears in court and how those individuals conduct themselves.

We will wait with interest to see how this debate is resolved, and look forward to the work of the CJC as it considers the ethical issues facing Canadian judges.


Nancy joined the Law Society of Alberta as a Practice Advisor in 2005 and is now the Manager of Policy and Ethics. Prior to joining the Law Society, she was a partner at Parlee McLaws LLP in Calgary, practising civil litigation and insurance defence.