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Amy Salyzyn

SCC alumni’s role in legal controversies sparks new debate over ex-judges’ return to practice

Thursday, September 05, 2019 @ 11:45 AM | By Cristin Schmitz

Is it in the public interest for former Supreme Court of Canada justices to be allowed to provide legal services to governments or other well-heeled clients facing public controversies that could arguably blow back on the reputations of the ex-judges’ former courts or otherwise harm public confidence in the judiciary?

That’s an emerging question in the continuing eight-year debate among lawyers and judges over what new professional conduct rules and ethical principles should be adopted to govern the activities of the growing number of retired judges who return to the practice of law — including some of Canada’s most eminent jurists.

According to feedback from a recent ethics consultation undertaken by the Canadian Judicial Council (CJC) amidst public scrutiny of the professional involvement of several ex-Supreme Court judges in the SNC-Lavalin imbroglio, three-quarters of Canadians don’t want to see retired judges use the prestige attached to their former posts to gain any business advantages.

However, whether that prestige or respect is, or should be, harnessed in the service of clients were not questions put to the public by the disciplinary body for Canada’s 1,223 federally appointed judges, which is currently updating its ethical guidelines to address some of the thorny issues arising from the return to legal practice of still-vigorous retired judges.

The questions have become more salient recently owing to the reliance by successive federal governments on legal opinions elicited from ex-Supreme Court of Canada judges, with the apparent aim of leveraging those jurists’ sterling reputations as political cover for questionable legal actions Ottawa wished to undertake.

Frank Iacobucci

Retired Justice Frank Iacobucci

In 2013, for example, the Harper government cited legal advice it obtained from Supreme Court of Canada alumni Ian Binnie and Louise Charron (plus an opinion from leading constitutional scholar Peter Hogg) in order to try to squelch public controversy over the legality of its appointment to the top court (later quashed) of Federal Court of Appeal Justice Marc Nadon.

Five years later in the SNC-Lavalin affair, the public learned that four former Supreme Court of Canada judges were involved or linked to the case — prompting harsh words from some opposition MPs, who no longer felt constrained by the convention that judges are not to be criticized in Parliament because they are unable to defend themselves.

The ethics commissioner’s report last month revealed that senior Trudeau government officials not only received separate legal opinions paid for by SNC-Lavalin (one by the company’s co-counsel Frank Iacobucci, and the other solicited by Iacobucci from his ex-Supreme Court colleague Jack Major) — they also were on board with Iacobucci reaching out to former Chief Justice of Canada Beverley McLachlin about possibly providing “external advice” to then-attorney general Jody Wilson-Raybould about her role under the deferred prosecution agreement regime, as well as possibly inviting McLachlin to act as “mediator” in the SNC matter. According to the notes of a senior PMO official involved in the file, McLachlin expressed reservations to Iacobucci. She noted she was no longer a lawyer and could not offer legal advice. She would also require a proper briefing, and would need to be invited by the attorney general. The former chief justice did not want to be retained by the government of Canada. McLachlin and Wilson-Raybould did not ultimately meet. When Wilson-Raybould subsequently quit cabinet, she turned to former Supreme Court Justice Thomas Cromwell to advise her on her cabinet confidentiality obligations, culminating in bombshell testimony at a parliamentary committee where the former attorney general accused the prime minister and other senior government officials of failing to respect her prosecutorial independence in the SNC matter.

Stephen Pitel

Stephen Pitel, Western University law professor

There are no current regulatory bars to former judges advising clients (as distinct, for example, from restrictions on ex-judges’ courtroom appearances) — but whether ex-Supreme Court judges should be providing legal advice divides experts on legal ethics.

Western University law professor Stephen Pitel told The Lawyer’s Daily he doesn’t think any of the former Supreme Court of Canada justices involved in the SNC case “have done anything improper.”

“They are entitled to return to practice, as they should be, and that practice includes advising clients,” he told The Lawyer’s Daily. “I don’t believe that the proper administration of justice, or that the view of the Supreme Court of Canada as an institution, is tarnished by ex-Supreme Court of Canada judges going back to the private practice of law and giving opinions.”

Pitel, who is vice-president of the Canadian Association for Legal Ethics (CALE), said he believes that “on most files, their opinion as counsel is not more prestigious than the opinions of many other leading lawyers. I don’t think that people are of the view that just by virtue of the fact that you were on a court, or even perhaps the Supreme Court of Canada, that somehow that imbues whatever private opinion that you now give in an advice matter with something magical or extra that wouldn’t be equally identifiable if you were simply using a well-known and prominent lawyer.”

Amy Salyzyn

Amy Salyzyn, University of Ottawa law professor

That perspective is not shared by University of Ottawa law professor Amy Salyzyn, who is also president of CALE. She notes in a Slaw column titled “Against Supreme Lawyering” that the danger from retired Supreme Court judges providing legal opinions or negotiating for clients “is the perception that part of what clients are buying when they ask retired judges to do such work is that (ex)judicial imprimatur.”

Salyzyn considers it an “unassailable fact” that when a client retains a retired Supreme Court judge to do legal work, part of the reason the client does so, is because the status of “former Supreme Court of Canada” judge provides gravitas and carries value.

In her view, ex-Supreme Court judges should be banned from practising law — full stop.

“Such a ban would have prohibited much of what has been reported in terms of involvement of retired SCC judges in the SNC-Lavalin matter and would seem to have some public support given the significant, although certainly not exclusively, negative reaction to this reported involvement,” Salyzyn told The Lawyer’s Daily.

Speaking generally, she elaborated, “my primary concern with retired Supreme Court of Canada judges acting in the capacity of legal advisers is that it results in the commodification of their former judicial titles or, in the case of free legal work, results in the use of a former judicial title to add gravitas or authority to a legal position. I believe that this harms the reputation and prestige of the court and, in turn, has a negative impact on public confidence in the administration of justice.”

Pitel argues that barring ex-Supreme Court judges from practising would be overkill — going well beyond what might be needed to address ethical concerns that might arise if former judges were retained to represent governments or other clients in an effort to pre-empt or quell public controversies. “I think that is an area where there is cause for concern, and accordingly cause for caution,” he advised.

He went on to suggest that any new professional conduct rules or ethical principles that are promulgated to address such live issues as whether ex-judges can advocate in court; their obligations to keep confidential any inside knowledge they gained on the bench; and marketing of their legal services — might usefully include purely advisory commentary admonishing ex-judges to exercise caution with respect to files involving client representation that might attract public scrutiny or controversy.

“I would welcome commentary … pointing out that there are unique considerations that flow from former judges who return to the private practice of law and the possible effect that that can have on the public perception of the administration of justice, and that such lawyers need to be, and ought to be, in their private practice sensitive to those concerns,” Pitel said. “My view is that in the work that these ex-Supreme Court of Canada judges are doing in this context — that is when they’re giving advice on behalf of clients — [they] need to be careful, they need to be sensitive, … to be smart in terms of which retainers they decide to accept and which cases they decide to handle on behalf of private clients. And staying out of the public spotlight, I think, would be beneficial,” he said. “But I don’t go so far as to say it would be mandatory.”

According to the results of the CJC’s consultation, which took place from March 7 to April 12, 2019, — soon after last February’s explosive accusations of PMO political interference by Wilson-Raybould — Canadians think very highly of their judiciary.

Nearly all (97 per cent) said they agreed that judges must hold themselves to a high standard, and conduct themselves in public and private life, “in a way that fosters public confidence in the judiciary.” Moreover, three-quarters of respondents agreed that “judges must not take part in debates or activities that are the subject of public controversy.”

But whether — and how — ex-judges who return to legal practice are expected to continue to foster public confidence in the judiciary, or avoid public controversy, is a novel disputed question.

Gavin MacKenzie

Gavin MacKenzie, MacKenzie Barristers

“There is a legitimate concern that clients — including governments — may suggest a legal opinion of a former judge is entitled to greater weight because of the author’s status,” said Gavin MacKenzie of Toronto’s MacKenzie Barristers, an expert on professional ethics and lawyer regulation. “The difficulty is in defining what should be prohibited to address this concern.”

MacKenzie anticipates that a proposed model ethics rule by the Federation of Law Societies of Canada that would bar ex-judges from advocating in court and from disclosing confidential information obtained on the bench (that has stalled since it was put forward in 2017 due to some opposition within judicial circles) will eventually be adopted by provincial law societies and incorporated into their rules.

That proposal would not prohibit former judges from being retained by clients to advocate or negotiate on their behalf with prosecutors or other lawyers. “It would not affect the propriety of the conduct of any of the former judges involved in the SNC-Lavalin controversy,” MacKenzie advised. “The question, of course, is whether further restrictions should be placed on the work of former judges.”

He pointed out that some clients involved in litigation or potential litigation want the opinion of a retired judge about the likelihood of success. “If the clients keep the opinion to themselves, as they are entitled to do, there cannot be any suggestion that public confidence in the administration of justice will be compromised,” he noted. “Nor, in my view, should former judges be prohibited from joining law firms to advise lawyers in the firm about issues arising in their practices. Both of these activities constitute the practice of law, and permitting both is in the public interest.”

MacKenzie noted that if former judges are prohibited from practising law, as they are in England and Wales, “you prevent the potential mischief of clients inappropriately exploiting the prestige of their lawyer’s former office, but you also prevent members of the public and practising lawyers from benefiting from the valuable experience and judgment of former judges.”

In MacKenzie’s view, all ex-judges, including Supreme Court judges, “may be well advised to avoid acting on matters that may subject them to criticism, but I think the concern about harming the reputation of their former court is overstated. Reasonable members of the public understand that sitting judges must be non-partisan, whereas practising lawyers have a duty to advance the interests of their clients.”

MacKenzie opined too that none of the judges involved in the SNC-Lavalin affair transgressed any professional conduct rules. “Law societies impose restrictions on former judges appearing in court but do not otherwise restrict former judges from practising law,” he emphasized. “Subject to the restrictions on judges appearing in court, former judges who return to practice are subject to the same rules of conduct  — including those governing conflicts of interest, for instance — as are all other lawyers.”

The subject of conflict of interest was raised both in Parliament and in the media in respect of Ottawa hiring Iacobucci — who was then representing SNC-Lavalin to the Director of Public Prosecutions and the PMO in the company’s efforts to obtain a deferred prosecution agreement — to lead consultations with First Nations in British Columbia opposed to the expansion of the federal government-owned Trans Mountain Pipeline (a project for which the Montreal-based construction giant could potentially do work).

But MacKenzie advised “it is not a conflict of interest for a former judge who is hired by the government of Canada to negotiate with Indigenous groups for their approval to have a pipeline built to also negotiate with the Director of Public Prosecutions in a different matter on behalf of a company who could conceivably participate in the building of the pipeline. The two matters are not sufficiently related to raise any confidentiality concerns, and there is no adversity of interest between the interests of the government and SNC-Lavalin; it is in the interests of both that the pipeline be built.”

MacKenzie said that while it is in the interests of former judges and the public to realize the benefit of ex-judges’ experience and judgment, “the problematic issue is whether there are aspects of the practice of law that don’t call into question the fairness of court or tribunal decisions, but which nevertheless may adversely affect public confidence in the administration of justice. I can appreciate the argument that if a client not only obtains an opinion from a retired judge, but relies on the author’s status as a retired judge to suggest that the opinion carries more weight for that reason, that may appear unseemly. Having said that, I am less troubled than others about the role played by former justices in the SNC-Lavalin controversy.”

Salyzyn does not buy the argument that ex-Supreme Court judges should be free to practise law, as any other lawyers are. “Given the potential institutional and systemic harms that may result from retired SCC judges returning to practice, requiring them to refrain from practising law strikes me as a fair restriction when one considers that they have generous pensions and that they have the ability to do a range of other work post-retirement, including work in the legal field,” she writes. (She does not advocate barring former Supreme Court judges from other legally related activities, such as acting as commissioners of inquiry, heading task forces impacting the legal system, writing books or articles, teaching law, or giving public lectures on the law.)

She also acknowledges that the ban she proposes would potentially deprive clients of a handful of very good lawyers. “There will be other very good lawyers available to these clients,” she observes.

As for those Supreme Court judges who retire well before mandatory retirement at age 75, and with a possible long work life ahead, Salyzyn suggests law societies could grant exemptions from a prohibition on their practising law, in “exceptional circumstances,” and with whatever restrictions the regulator sees as fit.