'The Shadow of the Court: The Growing Imperative to Reform Ethical Regulation of Former Judges' by Gabrielle Appleby and Alysia Blackham in 67(3) International & Comparative Law Quarterly 505-546 comments
In recent years there has been a trend towards independent and more transparent ethical regulation for sitting judges, which is said to promote public confidence in the judicial institution, and reflect a move towards accountability and transparency as judicial values. However, regimes governing sitting judges largely fall away when the judge retires from the bench. Increasing longevity and rising numbers of former judges raise complex ethical regulation questions. Drawing on judicial ethics regimes in England and Wales, Australia, the United States and New Zealand, and instances where the conduct of former judges has reflected poorly on the integrity of the judiciary, this article argues that there are strong reasons for extending ethics regulation beyond judicial retirement. By reference to the principles that inform the rules regulating the conduct of sitting judges, we investigate the extent to which misconduct and disciplining regimes should extend to former judges, and whether there is a stronger role for soft instruments and more formalized processes for regulating former judges. In doing so, we propose a model for the development of ethical regulation for former judges.
The authors argue
Traditionally, common law jurisdictions shared a practice in which the ethical conduct of serving judges was regulated through informal processes: the head of jurisdiction dealt with—to the extent they could—complaints and other disciplinary matters and the ethical norms were set out, if at all, in non-binding soft instruments promulgated by the judges themselves. However, increasingly across these jurisdictions it has been accepted that serving judges should be subject to more independent and transparent disciplinary regimes. However, even within those systems where more formal, independent processes have been established, the standards of expected ethical behaviour generally continue to be set in soft codes of conduct written by the judges themselves. This trend towards independent and more transparent ethical regulation for serving judges is said to promote ‘public confidence’ in the judicial institution, and reflects the evolution of the accepted judicial values of independence and impartiality towards the inclusion of values such as accountability and transparency.
However, this combination of hard and soft regimes governing serving judges almost entirely falls away when the judge retires from the bench. This lacuna is easily understood: in years gone by, when the prevailing norm was judicial appointment for life, or even when judicial retirement ages were introduced but life expectancy or quality of life into older age was lower, the question of the regulation of retired judges raised fewer causes for concern. However, today, the introduction of mandatory retirement ages and increased lifespans mean that the retired judge will usually, although not always, be somewhere in their early-to-mid seventies and will have fruitful decades ahead of them. The rising numbers of retired healthy and active—professionally and socially—retired judges should be celebrated; but they also raise complex questions in terms of ethical regulation.
There is also the related—but somewhat different—phenomenon of the ‘resigned’ judge. Judicial resignation prior to retirement might occur for health or family reasons. It might occur because the judge is dissatisfied with the judicial role, or is seeking new, more diverse or different professional challenges, or for financial reasons. Where a judge resigns for such reasons, it might be thought that there is a good argument to allow them to return to practice or to take up other work. Resigned judges may not qualify for a judicial pension, meaning they need to find other work to support themselves financially. Lack of flexibility post-resignation might undermine the government's capacity to entice high-quality appointees, as judicial appointment will close off all other career paths. Raising other, distinct concerns are judges who resign to avoid the investigation—and consequences—of a complaint made against them while they were serving on the bench.
This combination of factors, causing a significant shift in the demographics of former judges, has meant that assumptions previously made around appointment to the bench representing an individual's pathway from mid- or late-career to retirement, with limited possibilities and inclinations to undertake post-retirement work and activity, no longer hold true. There is a need, therefore, to rethink the lack of ethical regulation of this increasing, and increasingly active, cohort. Indeed, as many of the case studies demonstrate in this article, the increasing numbers of active former judges has led to real concerns across a number of jurisdictions about how their conduct affects the perception of the integrity of the judicial branch.
If the objective underpinning the ethical regulation of serving judges is, as is so often espoused, maintaining ‘public confidence’ in the integrity of the judiciary, there are strong arguments that the conduct of former judges might also affect this confidence, and thus such regulation ought to extend beyond judicial retirement or resignation. As we explain in this article, confidence in the integrity of judges more generally might be harmed by the poor conduct of a former judge, particularly where it amounts to criminal conduct or involves dishonesty. Confidence might be harmed by the appointment of former judges to positions where there might be integrity concerns if a serving judge were appointed. Confidence might be harmed where the former judge criticizes his or her former colleagues on the bench, particularly when those colleagues remain on the bench. Confidence might also be harmed by judges seeking to take up legal practice following retirement or resignation, giving rise to perceptions of unfair advantage gained by reason of their former judicial office, or perhaps currying favour with legal firms prior to retirement. Confidence might also be affected by the reappointment of former judges to ‘acting’ judicial positions post-retirement, particularly if their behaviour or other activities while sitting as a temporary judge do not accord with the standards expected of other judges.
This article explores the phenomenon of former judges in established democratic common law systems through a comparative regulatory and case study approach to draw normative conclusions as to regulatory design. This comparative research methodology offers critical insights into how former judges might be regulated as a cohort, and reveals the growing universality and relevance of ethical issues faced by former judges with demographic change. Thus, this methodology both offers nuanced normative insights into how this issue might be addressed, and reinforces the relevance of these issues to an international audience. As we explain further in Part I, there is a growing international consensus not just around the judicial values that must be protected in judicial design and practice, but in relation to the ethical norms that should govern the behaviour of individual judges to help in achieving these values. This indicates that not only is there coalescence across jurisdictions around judicial values (which now extend to independence, impartiality, accountability, transparency, representativeness and efficiency), but there is increasing agreement about the conduct of individual judges that is conducive to their achievement. Further, the comparative common law jurisdictions that we have selected share a common judicial history in relation to ethical regulation and, although there are important differences in judicial culture across these jurisdictions that we do not wish to gloss over, there are striking similarities not just in relation to how judiciaries have traditionally responded to individual ethical breaches, but in relation to more contemporary reform of such practices.
While we have referred throughout our analysis to international instruments that demonstrate consensus across common and civil jurisdictions, and established and developing democracies, we have not included the position of judges in civil law systems, nor common law systems in developing or flawed democracies. We have excluded civil jurisdictions because the judicial history, traditions, culture and career path in such systems, particularly around judicial independence from the executive branch, is too distinctive and differs too markedly from common law traditions for us to draw universal conclusions. We have excluded developing or flawed democracies because we acknowledge that the institutional and individual pressures and responsibilities on judiciaries in these systems are likely to be significantly different from those in established democracies. With these exclusions in mind, the comparative jurisdictions we have selected for our analysis are England and Wales, Australia, the United States and New Zealand. As we explore in the body of the article, within these jurisdictions we are alive to differences in judicial culture and expectations that flow, for instance, from the perceptions of the working conditions of judges, the process and nature of judicial appointment, the constitutionally mandated level of separation of powers, and the particular judicial pension scheme that has been adopted.
The remainder of this article is set out as follows. In Part I, we explain in more depth the objectives behind the ethical regulation of serving judges, and the different hard and soft regulation models that currently exist in the jurisdictions of England and Wales, Australia, the United States and New Zealand. In Part II, we survey the hard and soft regulation of former judges in those jurisdictions identified in Part I across different areas of post-judicial conduct. In this part, we go beyond the conventional consideration of the regulation of return-to-practice that has, to date, dominated scholarship and what little formal regulation of post-judicial conduct that exists. Recognizing that many other dimensions of the conduct of former judges can affect perceptions of and confidence in the judiciary, we also explore the regulation of former judges when they undertake other professional roles (including public positions, for instance, as commissioners on public inquiries, and private roles); the effect of criminal actions of former judges and the capacity of professional regulatory regimes to respond to such actions; the regulation of the appointment of former judges back onto the bench as temporary judges; and, finally, we consider the regulation of former judges ‘speaking out’ about or against the bench. By drawing on a series of recent incidents where the conduct of former judges has reflected poorly on the integrity of the judiciary across the jurisdictions we have studied, we demonstrate just some of the myriad ways that post-judicial conduct can bring the court's reputation for impartiality and probity into disrepute. In Part III, by reference to those principles that inform the rules regulating the conduct of serving judges, we investigate the extent to which misconduct and disciplining regimes should extend to former judges, and whether there is a stronger role for soft instruments and more formalized processes for regulating the conduct of former judges.
