INTRODUCTION
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.Footnote 1
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,Footnote 2 but in relation to the ethical norms that should govern the behaviour of individual judges to help in achieving these values.Footnote 3 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.Footnote 4 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.
I. THE ETHICAL REGULATION OF SERVING JUDGES: OVERVIEW OF PURPOSE AND MODELS
The most fundamental values that underpin the constitution and regulation of the judicial branch are that judges must maintain their independence and their impartiality. Indeed, it is these values that are enshrined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, in regional human rights instruments and in domestic constitutional and legal arrangements. It is these that form the guiding principles for international instruments, including the most recent Bologna Milano Global Code of Judicial Ethics 2015.Footnote 5
A tension has always existed even between these two traditional values of independence and impartiality. Judicial independence, in its form of institutional independence, has been, and still is, invoked to resist the external regulation of judges, particularly by the political branches of government. The strictness of this separation is experienced differently across jurisdictions. In the United States and Australia, for instance, the separation of judicial power is constitutionally enshrined and enforced; New Zealand and the United Kingdom respect the principle of separation of powers through other, less stringent, norms and practices. While, in most jurisdictions, the legislature holds the power to remove judicial officers for misbehaviour or incapacity, short of this, self-regulation through self-issued soft codes of ethical conduct was the orthodoxy. Ensuring the impartiality of judges, on the other hand, might intuitively militate against self-regulation and require external adjudication. However, the orthodoxy has been that, even in ensuring this value, it is the judges themselves that are best placed to determine appropriate codes of conduct to govern their behaviour generally, as well as to determine in individual instances whether they are affected by bias and should step aside from hearing a particular matter.Footnote 6
Modern government has seen traditional judicial values expand to include accountability, representativeness, transparency and efficiency.Footnote 7 The focus on accountability and transparency, for instance, is recognized in the preamble to The Bangalore Principles of Judicial Conduct 2002, which states that the principles ‘presuppose that judges are accountable for their conduct to appropriate institutions’. This focus reflects an increasing concern with the significance of the power wielded by the judiciary and the acceptance that those given this responsibility are human and fallible. This has also been accompanied by a more general emphasis and expectation of accountability and greater transparency for all of those who exercise public power. Representativeness is now a common judicial goal, underpinned by the principle of equality and also the acceptance that judicial legitimacy will rest, to some degree, on the extent to which it represents the community in which it operates. Efficiency in the judicial branch is closely associated with access to justice, with judiciaries in developing and established systems alike often criticized for delays in dispensing justice.
These values are sometimes positioned as being in conflict with the more traditional values; so, for instance, accountability is framed as being in conflict with independence. However, it must be remembered that each of these values is instrumental, and exists to foster the somewhat nebulous, but nonetheless important, objective of maintaining and enhancing ‘public confidence’ in the institutional integrity of the judiciary.
The touchstone of ‘public confidence’ recurs across international and domestic judicial regulation. It is asserted, time and time again, that it is this concept of ‘public confidence’ that allows judges to fulfil their fundamental role of resolving disputes that arise in both the private and public law spheres. For instance, the Bologna Milano Global Code of Judicial Ethics states:
Public confidence in the judicial system and in the moral authority and integrity of the judiciary is of the utmost importance in a modern democratic society and it is essential that judges, individually and collectively, respect and honour judicial office as a public trust and strive to enhance and maintain confidence in the judicial system.
Similar sentiments are expressed in domestic codes, for instance, the New Zealand Guidelines for Judicial Conduct state ‘the legitimacy of judicial function and the independence of the judiciary depend upon public confidence’. The Australian High Court has stated that ‘[t]he authority of the law rests on public confidence’.Footnote 8
This concept of ‘public confidence’ is widespread in judicial regulation, yet remains highly contested. It rests on no empirical basis, either in relation to the assertion that it forms the touchstone for judicial regulation and conduct, or in relation to determining whether it has been reduced. This is not because there have not been attempts to quantify metrics such as public trust in government institutions, including the judiciary.Footnote 9 However, these metrics are themselves highly contested: for instance, it has been argued that surveys and opinion polls do not offer a reliable measure of public confidence in government institutions, particularly where there might exist conflicting data to show that citizens are continuing to use the services and abide by the decisions of the government and the courts.Footnote 10 There have also been questions raised about how well informed surveyed members of the public are, and whether, with more information, their reflections might change dramatically.Footnote 11 Judges have generally avoided engaging with empirically measured levels of ‘confidence’ and ‘trust’; ‘public confidence’ in judicial and regulatory statements is not intended to be an empirically measured standard, but represents a fictionalized legal yardstick that refers to the ‘reasonable’ public's perception of whether particular measures or conduct will impair the judiciary's capacity to deliver justice in accordance with community expectations of a fair trial and impartial justice. Not only do these yardsticks fail to engage with the empirically measured idea of ‘public confidence’ or ‘trust’, but they also rely upon highly subjective discretionary tests, applied by the judges extrapolating from their own experiences to the reasonable public, an exercise for which they may lack the experiential knowledge, and the cognitive capacity.Footnote 12 Despite these criticisms, the judges and expounders of judicial regulation have continued to apply the yardstick of ‘public confidence’. As such, in this article we will engage with the judicially expounded yardstick, while acknowledging greater work needs to be done as to how it might evolve into a more workable and less-contested judicial standard.
Once the instrumental nature of each of the judicial values is remembered, the idea of conflict between them gives way to the idea of balancing and combining them in such a way as to achieve the overarching goal of ‘public confidence’ in institutional integrity. Institutional integrity is undermined by blind adherence to the idea that judicial independence requires self-regulation and internal, opaque procedures to address disciplinary issues, because the public now expects failings within all branches of government to be dealt with in a transparent and fair manner. At the same time, institutional integrity is undermined if accountability is pursued without an understanding of the importance of independence, particularly from the political branches of government. It might be expected that because of differences in constitutional arrangements and legal-political histories, different judicial cultures would have developed that have led to differences in the acceptable levels of political involvement in the accountability of judges. While this might be true in some extreme cases—and the Indian Supreme Court's assertion of its absolute judicial independence from the political branches is perhaps an example of thisFootnote 13—in most jurisdictions there is a remarkable coalescence around appropriate judicial accountability regime design. This reflects the international consensus and articulation not just of judicial values,Footnote 14 but of judicial regulation design,Footnote 15 and the ethical norms to which judges ought to adhere.Footnote 16
Reflecting this international position, in most jurisdictions, acceptance of the more modern judicial values has seen a move away from self-regulation of judicial ethics solely through soft law and self-enforcement, and towards hard law in the form of independent judicial commissions tasked with the function of receiving complaints against judges and overseeing judicial discipline.Footnote 17 Yet, even within these harder disciplinary regimes, statements of expected standards of judicial conduct are generally found in soft law instruments, which sit alongside and inform the disciplinary regime.Footnote 18 The remainder of this Part explains the framework of each of these regimes in the United States, New Zealand, England and Wales, and Australia.
In the United States, serving state judges are subject to disciplinary regulation by an independent judicial commission, although ultimately the court retains power over sanctioning judges. In 1960, California was the first to implement such a system, and its regime has largely been adopted as a model both in America and internationally. California's Commission on Judicial Performance is an independent agency established by the Californian Constitution,Footnote 19 which receives, investigates and resolves complaints against judges by imposing various disciplinary sanctions that range from confidential measures to public censure to removal from office. The Commission has 11 members: three judges, two lawyers and six citizens. It has a circumscribed power to hold public hearings. Unusually, judges’ conduct is explicitly judged against the Code of Judicial Ethics, which is provided for in the Californian Constitution,Footnote 20 and states that ‘all members of the judiciary must comply with the code’.Footnote 21
Under the Judicial Conduct and Disability Act of 1980,Footnote 22 federal US judges are subject to a system of discipline that involves the chief judge of the circuit, Circuit Judicial Councils, special committees and, where conduct is considered serious enough for impeachment, the Judicial Conference and, ultimately, Congress. Complaints are initially received by the chief judge of the circuit, who must review the complaints to determine whether they warrant further investigation by a special committee and referral to a Judicial Council. Councils are chaired by the chief circuit judge and are composed of an equal number of circuit and district judges. Councils have different powers in relation to different judges. Generally, there is a power to sanction serving judges, including reassigning the judge, and private or public censure or reprimand. For Article III judges, the Councils have the power to certify disability or request that the judge voluntarily retires with the proviso that the length of service requirements do not apply. The Councils do not have power to order removal; recommendations for removal are made to the Judicial Conference, which makes recommendations to Congress following its own investigation. Federal court judges are expected to comply with the Code of Conduct for United States judges, adopted by the Judicial Conference, although this does not constitute a formal part of the disciplinary process and it does not apply to the Supreme Court.
New Zealand's system for disciplining judges was adopted in 2005 with the introduction of the Judicial Conduct Commissioner.Footnote 23 The Commissioner is appointed by the executive with a requirement that the government consult the Chief Justice before making an appointment. To date, the Commissioner has been an experienced legal practitioner, but not a judge or former judge. The Commissioner receives and investigates complaints, and then may either dismiss the complaint, refer it to the head of the jurisdiction for further disciplinary action (although the judge's submission to the discipline of the head of jurisdiction is entirely voluntary, reflecting the traditional informal disciplinary processes), or recommend that the Attorney-General establish a Judicial Conduct Panel for further inquiry into whether the conduct might justify removal. In addition, the Judicial Complaints Lay Observer operates as a form of review in relation to the response of the head of jurisdiction.Footnote 24 There is a set of ‘Guidelines’ for judges in New Zealand, although these are explicitly referred to as guidelines and not ‘rules’ for judges.Footnote 25
England and Wales introduced a system for dealing with complaints against judges as part of a larger suite of reforms contained in the Constitutional Reform Act 2005 (UK). The system was subject to substantial reform again in 2012. The Judicial Conduct Investigations Office (JCIO) receives and investigates complaints, and may dismiss them, or refer them to a nominated or investigating judge for further consideration.Footnote 26 A disciplinary panel can be convened for more complex matters.Footnote 27 Complaints may be dismissed, referred to the leadership judge to be dealt with pastorally (in accordance with the traditional informal procedures), or referred to the Lord Chief Justice or the Lord Chancellor. The Lord Chief Justice may mete out discipline to judges, short of removal.Footnote 28 The Lord Chancellor retains the ultimate power to remove judicial officers, with the exception of senior judges, who may only be removed by Parliament.Footnote 29 The Conduct Ombudsman is given jurisdiction to review the exercise of disciplinary functions.Footnote 30 In relation to standards, the Guide to Judicial Conduct has been drafted by the judiciary of England and Wales, but is intended to be of ‘assistance to judges … rather than to prescribe a detailed code’.Footnote 31
Australia has been less inclined to embrace the model of an external complaints and investigatory body for judicial disciplinary issues. At the federal level, in 2012, the Parliament passed the Judicial Complaints Act 2012 (Cth), which effectively provided a legislative basis for the previously entirely informal process for heads of jurisdiction to receive and deal with complaints against judges. No external body for receiving and investigating complaints was established. The legislation provides for the head of jurisdiction to seek assistance in investigating complaints, and empowers them to ‘take any measures that the [head of jurisdiction] believes are reasonably necessary to maintain public confidence in the Court, including, but not limited to, temporarily restricting another Judge to non-sitting duties’.Footnote 32 The federal legislation does not apply to the High Court of Australia or heads of jurisdiction.
In the Australian states, a number of bodies have now been established to address judicial discipline and conduct, but their powers are limited, and they ultimately refer matters back to the head of jurisdiction for disciplinary measures to be taken. The Judicial Commission of New South Wales receives and investigates conduct complaints, referring them either to the head of jurisdiction for further action or to the Conduct Division, where the complaint is considered sufficiently serious and substantiated as to warrant removal. A similar regime was introduced in South Australia in 2015,Footnote 33 and in Victoria in 2016.Footnote 34
In Australia, the primary soft instrument setting out judicial conduct standards is the Australasian Institute of Judicial Administration's Guide to Judicial Conduct, adopted by the Council of Chief Justices of Australia. In addition, some States have adopted soft law instruments. For example, the Victorian Framework of Judicial Abilities and Qualities ‘identifies the knowledge, skills, behaviours and attitudes that Victorian judicial officers are expected to demonstrate in performing their role’.Footnote 35 It is an aspirational document.
In sum, then, the regulation of serving judges varies substantially within the jurisdictions we have studied, with differences in the degree of reliance on soft or hard law; the presence of internal or external bodies with responsibility for the scrutiny of judicial conduct; the penalties or repercussions (if any) that exist for breach of ethical standards; and the degree of formality or informality in the process. However, there has been an increased harmonization across these jurisdictions as reforms have gradually been adopted towards a more institutionalized framework. It is our view, consistent with the international consensus, that given the importance of accountability and transparency to enhancing public confidence in the judiciary, the move towards a carefully constructed but more transparent and rigorous accountability framework should be welcomed. Such a system's primary objective is to remedy damage to the judiciary as an institution that the conduct of individual judges may cause, as well as act as a deterrence against future conduct. All national systems studied reflect the importance of securing the two values of independence and impartiality in tandem for serving judges. The question, then, is how (if at all) do and should these systems extend to judges once they are no longer serving?
II. REGULATION OF POST-JUDICIAL CONDUCT
Once no longer serving,Footnote 36 should judges be free from the strictures of judicial disciplinary processes and other softer forms of judicial ethical regulation? It might seem that the only fair answer to this question must be yes. No person should be subjected to a code of professional conduct or potential professional disciplinary proceedings for life. But, as we stated above, this answer is more complicated than that for other professions, as the conduct of former judges has the capacity to undermine ‘public confidence’ in the judicial institution and thus its capacity to fulfil its functions.
This undermining of public confidence can occur in a number of different ways that we explore in turn. In many instances, this occurs because the public often makes little distinction between a former judge and a serving judge. Such confusion is often compounded by the nature of media reporting, which may emphasize the individual's former judicial status; the fact that judges retain the title, ‘the Honourable’ (or equivalent); and the practice of legal practitioners to continue to call the individual ‘judge’. If the public do draw a distinction, they may still consider that the conduct reflects poorly on the judiciary as an institution, and that it speaks more generally to the character of judges appointed to the bench. Further, former judges often continue to benefit from their former positions. They often remain publicly funded, many drawing not insignificant government-funded pensions. They will often be appointed to roles—such as heading Royal Commissions—not only based on their experience and expertise as legal practitioners, but because they hold the status of a former judge.
Finally, we also consider how judicial resignation affects investigations of alleged misconduct conduct that occurred while a judge was still on the bench. In many jurisdictions, judges against whom disciplinary proceedings have been commenced may resign from office if and when it appears that those proceedings will result in an adverse finding against them. We consider whether this appropriately regulates and redresses judicial misbehaviour, or whether the option of resignation represents a serious design flaw in the ethical regulation of serving judges.
There is certainly no dearth of examples of former judges behaving in ways that bring their good reputation into disrepute, and possibly damage the good reputation of the judicial branch with it. Recognizing these risks, both international and domestic codes of conduct make some, albeit limited, provision for ethical restrictions on former judges.
At the international level, for example, the Bologna Milano Global Code covers post-judicial activities in Clause 9. The clause covers: professional and commercial activities,Footnote 37 professional legal activities, commercial activities, political activity, participation in public debate, and community and social activities. The clause imposes a number of limitations where those activities have the potential to impact on the reputation of the judiciary. However, the obligations imposed by the code are fairly loose in nature: judges ‘should consider’ the impact of their activities, and there is unlikely to be any means of effectively enforcing a soft law code of this nature. Thus, this code, while highlighting the potential for the conduct of former judges to impact on the public reputation of the judiciary, serves more to alert judges to the potential implications of their activities and conduct for the judicial institution. Indeed, it states that the purpose of including the chapter is ‘not to dictate to retired judges, but to give guidance to serving judges who are contemplating or planning for their retirement’.Footnote 38
In the US, the federal Code of Conduct for United States Judges makes no mention of post-retirement activity, except where judges are subject to recall. In some states there is greater regulation. The California Commission on Judicial Performance has jurisdiction that includes all judges of California's superior courts; justices of the Court of Appeal and Supreme Court; and former judges with respect to conduct prior to retirement or resignation. Thus, the Commission can address conduct issues that arose prior to a judge's departure after their resignation. The Commission has the power to censure former judges, to publicly or privately admonish a former judge, and bar a former judge from receiving future appointments or work in any California state court.Footnote 39 The California Code of Judicial Ethics contains minimal provision for former judges. That said, if a former judge is retained in private practice, ‘their conduct while performing those functions should be guided by [the] code’.Footnote 40
While judicial conduct in New Zealand is regulated by the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (NZ), there is no explicit mention of former judges in the Act. The NZ Guidelines for Judicial Conduct 2013 also contain no mention or consideration of the position of former judges. The purpose of the Judicial Conduct Commissioner and Judicial Conduct Panel Act is specified as being ‘to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system by … (a) providing a robust investigation process to enable informed decisions to be made about the removal of Judges from office’ (section 4). While the first part of the section could be broad enough to include the conduct of former judges, a more narrow interpretation of the scope of the Act appears to have been adopted. This is reinforced by other provisions of the Act, for example, section 11 says that the Commissioner must ‘receive and deal with every complaint made under this section about the conduct of a Judge regardless of whether the subject matter of the complaint arises in the exercise of the Judge's judicial duties or otherwise’ (emphasis added). Thus, on 5 November 2010, when Justice William Wilson resigned from his position on the New Zealand Supreme Court in the midst of an investigation into his failure to disclose his financial indebtedness to counsel who was appearing before him when he was a judge of the Court of Appeal,Footnote 41 the Commissioner and Judicial Conduct Panel ceased investigations almost immediately. Wilson had fought the investigation from the start, having been successful in a judicial review against the Judicial Conduct Commissioner's initial decision to refer the matter to a Judicial Conduct Panel. Once it looked like the disciplinary proceedings would continue against him, he resigned.Footnote 42 The misconduct investigations terminated, Wilson received a year's pay upon leaving office, and the government paid his legal fees, amounting to $475,000.
The New Zealand position, dramatically illustrated by the Wilson case, reflects that in most jurisdictions with disciplinary bodies, where the disciplinary process stops if the judge resigns voluntarily. The complaint remains unresolved and without remedy. The judge loses their professional employment, probably with their reputation in ruins; although they may be eligible for the judicial pension in accordance with the normal rules around length of service. In the eyes of the public, it is difficult to see that the former judge has been made accountable for poor conduct committed on the bench. It may be that resignation is itself the ‘penalty’, although if the judge qualifies for a judicial pension, this may be a difficult argument for the public to accept.
In England and Wales, the Judicial Conduct Investigations Office must dismiss a complaint if it is about a person who no longer holds office.Footnote 43 Thus, as in New Zealand, it is likely that resignation can be used to avoid the consequences of a complaint. In 2014–15, 30 complaints were dismissed by the Judicial Conduct Investigations Office on this basis.Footnote 44 Beyond this, there is no formal system in place to control former judges’ behaviour in England and Wales: the Lord Chancellor and Lord Chief Justice have no authority over judges who have left the bench.Footnote 45 While the Guide to Judicial Conduct for judges in England and Wales sets out expectations around return to practice and undertaking other activities after service, these are regulated by convention only.
With the exception of returning to practice (discussed below), former judges are unregulated in Australia other than by guidance statements in soft law. At the federal level, there is no code of judicial conduct that could apply to former judges, although such a development has been debated at various points.Footnote 46 While a procedure has now been set up for judicial complaints at the federal level (with the exception of the High Court), this only affects serving judges, and not those who have left the bench.Footnote 47 The Australasian Institute of Judicial Administration's Guide to Judicial Conduct does contain some material on post-judicial activities and closely reflects the terms of the Bologna Milano Global Code of Judicial Ethics.Footnote 48 However, it is made clear that these provisions are not intended to ‘dictate to retired judges, but to give guidance to serving judges who are contemplating or planning for their retirement’.Footnote 49 Again, this flags the challenges of ensuring that former judges are within the scope of ethical guidelines and codes. Like the Bologna Milano Global Code of Judicial Ethics, the AIJA Guide covers professional and commercial activities, professional legal activities, commercial activities, political activity, participation in public debate, and community and social activities. However, the Guide provides more detail on how these activities can or should be conducted in retirement. There are also minimal restrictions on the conduct of former judges at the Australian state level. For example, in Victoria, the 2008 Framework of Judicial Abilities and Qualities for Victorian Judicial Officers applies only to serving judges, meaning that there is limited direct regulation of former judges. In New South Wales, the Judicial Officers Act 1986 (NSW) section 15 provides that complaints may be made to the Commission ‘about a matter that concerns or may concern the ability or behaviour of a judicial officer’ (emphasis added). This is reinforced by section 20, which requires the Commission to summarily dismiss a complaint ‘if it is of the opinion that, whether or not it appears to be substantiated: … (g) the person complained about is no longer a judicial officer’. Thus, as in New Zealand and England and Wales, the Commission has no jurisdiction to investigate complaints upon the resignation of a judicial officer.
Within this broad context of the very limited regulation of former judges in both soft and hard form across our comparative jurisdictions, and drawing on examples of misconduct by former judges, the remainder of this Part of the article considers the current status of the regulation of former judges, in the specific areas of (a) return to legal practice, (b) other professional roles, (c) personal and criminal misconduct, (d) appointment as temporary judges and (e) commentary and criticism of the bench. In Part III, we return to each of these areas in an effort to navigate the challenges of each and formulate, to the greatest level of specificity possible, a normatively desirable regulatory framework for former judges.
A. Return to Practice
The one area of former judges’ conduct in which the judiciary and the legal profession have been relatively strong on regulation is return to legal practice after leaving the bench. In most common law jurisdictions, there are conventions restricting return to practice and, in some jurisdictions, this is now formalized in professional rules.
There are usually two impartiality-based concerns associated with return to practice. They reveal that judicial return to practice is both an issue relating to the conduct of former judges, and also implicates serving judges. The first concern is that a judge returning to practice may be given preferential treatment when appearing before the court by reason of their former position. Even when appearing in courts other than that on which they served, former judges might be making submissions about precedents which they themselves decided, which might result in deferential, if not preferential, treatment. Clients might seek out former judges to act for them based on these perceptions. Thus the return to practice of former judges may damage public confidence because of the response to them by serving judges. Alan Blow, now Chief Justice of Tasmania, explained the importance of curbing the practice:
If that convention were not in place, and ex-judges appeared as counsel in their former courts, any decision or ruling in favour of an ex-judge's client would be likely to foster, at least in the mind of the unsuccessful party, an apprehension that the presiding judge was biased in favour of his or her former colleague. The greater the turnover of judges, and the more they retire to resume private practice, the more likely it is that this important convention will be eroded.Footnote 50
The second concern is that serving judges, knowing they wish to return to practice once they resign or retire, may act in improper, partial ways while on the bench in an effort to curry favour with future employers. While it is the conduct of the judge when serving that is the concern here, it is their possible future conduct when they leave the bench that is its catalyst. As such, while acknowledging that return to practice implicates serving judges, it is foremost an issue that arises because of the possible conduct of former judges.
It is becoming increasingly common for judges to return to less traditional forms of practice, specifically in roles as mediators and arbitrators. Former judges, it has been said, ‘have been extraordinarily successful in settling some of the most difficult and contentious civil litigation in the country’.Footnote 51 However, in many aspects of these roles, the decisions of former judges become appealable in the courts, which can give rise to integrity concerns, particularly when a lower court judge is asked to review the decision of more senior former members of the judiciary. The potential for return to practice even in these guises may therefore still cause problems for the perception of impartial justice.
In relation to professional legal activities after leaving the bench, the Bologna Milano Global Code of Judicial Ethics delegates any limitation on practice at the bar to the local law society or bar association; practice as a solicitor and ‘active association’ with a firm is allowed, although ‘[p]referably this will not be sooner than a year or so after retirement’. There is no restriction on being a mediator or arbitrator. However, a note to the Bologna Milano Global Code of Judicial Ethics indicates this is not without controversy:
It has become quite common for judges who have retired, whether early or at full retirement age, to be appointed or to offer their services as mediators or arbitrators. Although some judges do not approve of such activities, they are not at present subject to any legal or professional restraint.
Restrictions on return to practice at the domestic level are often stronger than this international statement,Footnote 52 although this will vary depending on the particular judicial culture.
In England and Wales the ‘no return to practice’ rule represents the primary limitation on the conduct of former judges. The ‘English ideal’ that judges will not return to private practice, and should not provide services as an advocate or provide legal advice,Footnote 53 is explicitly laid out in the Guide to Judicial Conduct for judges in England and Wales:
The conditions of appointment to judicial office provide that judges accept appointment on the understanding that following the termination of their appointment they will not return to private practice as a barrister or a solicitor and will not provide services, on whatever basis, as an advocate in any court or tribunal in England and Wales or elsewhere, including any international court or tribunal, in return for remuneration of any kind, or offer or provide legal advice to any person. The terms of appointment accept that a former judge may provide services as an independent arbitrator/mediator and may receive remuneration for lectures, talks or articles.
Even in retirement a former judge may still be regarded by the general public as a representative of the judiciary and any activity that might tarnish the reputation of the judiciary should be avoided.Footnote 54
The Guide to Judicial Conduct is unenforceable, being of ‘assistance to judges’ only. In judicial letters of appointment for the higher courts, there is an ‘expectation’ that judges will not return to private practice.Footnote 55 For example, the terms and conditions of appointment for District Judges specify:
The Lord Chancellor also regards a judgeship as a lifetime appointment. Any offer of appointment is therefore made on the understanding that appointees will not return to practice.Footnote 56
This position was also the view of Tom Bingham, former Senior Law Lord, who took the position that, with the exception of illness or incapacity, judges should not be able to retire before serving 15 years on the bench, and the judge should not be able to return to practice (with the exception of acting in roles such as an arbitrator or giving expert opinions on law). Adding to the proprietary and practical reasons against returning to practice, Bingham explained a ‘formal reason: that on becoming a judge a practitioner ceases to be a barrister or a solicitor (whether he remains on the roll or not) and becomes solely a judge, with the result that on retirement he lacks any qualification to practise’.Footnote 57
This condition is not replicated in the terms and conditions for judges in lower courts.Footnote 58 Indeed, given many fee-paid judges in England and Wales continue to practise while sitting, it would be somewhat contradictory to impose the no return to practice rule upon retirement. This reflects an important instance where judicial culture dictates different standards, whereas in other jurisdictions, similar standards and concerns apply across the different levels of court.
In 2006, the UK government conducted a consultation process to consider whether the return to practice rule should be removed in the interests of increasing judicial diversity. At the time, Lord Falconer argued for its removal:
This is about encouraging more applicants. There is evidence to suggest that prohibition on return to practice is a significant barrier for many potential candidates. In particular solicitors and barristers can be deterred by the realisation that taking up a salaried judicial post would close off future career options.Footnote 59
Following the consultation process, it was decided to retain the rule, as there was no evidence that removing the rule would actually promote diversity,Footnote 60 and judges and the legal profession were strongly opposed to the change. It may be that judges already appointed would be bound by the former rule, and reluctant to allow for different (more generous) treatment of newly appointed colleagues.
While the no return to practice rule has been retained in England and Wales, this may no longer have the support of some in the judiciary. There are increasing instances where the rule is not complied with: for example, Professor Sir Hugh Laddie resigned from the High Court in 2005—citing isolation, a lack of stimulation, and the strain of adjudicating cases beyond his expertise—to become a consultant to the law firm Willoughby and Partners (now Rouse).Footnote 61 Similarly, Mr Justice Peter Smith of the High Court was approached by law firm Addleshaw Goddard in 2006, with a view to his employment by the firm after taking early retirement.Footnote 62 The negotiations ended sourly, and Mr Justice Peter Smith did not resign to join the firm.Footnote 63 In 2007, these negotiations were the subject of a highly controversial apprehended bias application, in a matter where Addleshaw Goddard was involved in the proceedings. Mr Justice Peter Smith refused to recuse himself from the matter, a decision which was later overturned on appeal, and there were calls for him to resign over the incident.Footnote 64
Mr Justice Peter Smith is not alone in England and Wales in wishing to return to practice: the 2014 UK Judicial Attitudes Survey found that many judges would consider leaving the judiciary to return to practice if the rule did not exist. Only 56 per cent of circuit judges and 54 per cent of district judges said that they would not consider going back to some kind of legal practice.Footnote 65 Thus, if the no return to practice rule were removed, this could lead to a significant influx of former judges at the bar and in practice; that said, such an outflow might be balanced by an increased flow of individuals inclined to accept appointment to the bench. Even if the rule is retained, judges are increasingly considering leaving the bench before retirement age: in the same survey, 31 per cent of respondents (or 400 judges) said they would consider early retirement in the next five years,Footnote 66 largely due to low pay and reductions in pension entitlements.Footnote 67 Those who would consider this option were aged between 41 and 68, with a mean age of 57.9. Such an expansion of the number of early-leavers will further exacerbate the need for more consideration of the appropriate ethical regulation of former judges.
In Australia, the AIJA Guide makes similar provision to the Bologna Milano Global Code of Judicial Ethics for professional legal activities: practice at the Bar is regulated by the Australian Bar Association, the local Bar Association or Law Society. All ‘proscribe appearance as counsel in a court of which the judge was formerly a member, for various periods ranging from two to five years’ (clause 7.2.1); practice as a solicitor is allowed, although ‘preferably not sooner than a year or so after retirement’, and care should be taken ‘to ensure that the firm does not take active steps to promote itself by overt reference to the judge's former judicial status’ (clause 7.2.2); and there is no legal or professional restraint on acting as a mediator or arbitrator (clause 7.2.3).
Like England and Wales, there is a loose convention in Australia that judges will not return to private practice upon retirement—or, at least, that former judges will not appear before the court where they sat. It does appear that the convention is being eroded, at least in some Australian jurisdictions. Compliance with the convention varies substantially from jurisdiction to jurisdiction, which perhaps reflects the differences in the formality of the rules that support the convention. The Legal Profession Uniform Law regulates return to practice in both Victoria and New South Wales. Under the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rule 38, former judges may not appear as a solicitor in:
(i) any court if the solicitor has been a member thereof or presided therein, or
(ii) any court from which appeals to any court of which the solicitor was formerly a member may be made or brought,
for a period of two years after ceasing to hold that office unless permitted by the relevant court.
Similarly, under the Legal Profession Uniform Conduct (Barristers) Rules 2015, rule 101(n), barristers must refuse to accept a brief or instructions where:
the brief is to appear before a court of which the barrister was formerly a member or judicial registrar, or before a court from which appeals lay to a court of which the barrister was formerly a member (except the Federal Court of Australia in case of appeals from the Supreme Court of any State or Territory), and the appearance would occur within 5 years after the barrister ceased to be a member of the court in question where the barrister ceased to be a judge or judicial registrar after the commencement date of this rule.
In Victoria at least, post-retirement activities are also likely to be limited in a more effective manner by the Constitution Act 1975 (Vic) section 83(4), which provides:
Unless the Governor in Council by Order otherwise determines in any particular case the right of a Judge to a pension under this section … (ii) shall be suspended while—
he holds any office or place of profit under the Crown in right of the Commonwealth or of a State; or
he is engaged in legal practice in any State or Territory of the Commonwealth or is employed by any legal practitioner in connexion with his practice in any such State or Territory:
Provided that this subsection does not apply to or in relation to a Judge who resigned or retired before the 15th day of February, 1970.
Thus, judges may be deterred from re-entering practice by financial considerations, and the threat of having their pension entitlements suspended. This financial provision is likely to be an effective way of influencing judicial behaviour, and indirectly upholding the convention against return to practice.
High levels of judicial satisfaction in Australia may also make early-leavers less of a challenge for ethical regulation. Kathy Mack and Sharon Roach Anleu have found high levels of satisfaction with overall work (92.0 per cent), intellectual challenge (89.3 per cent) and diversity of work (81.7 per cent) among Australian judges. Judges were also satisfied with their working conditions, particularly benefits (76.3 per cent) and compatibility with lifestyle (75.4 per cent): it is therefore unsurprising that, with hindsight, 86.1 per cent would become judges again.Footnote 68 This may mean that return to practice is less of a consideration for the regulation of former judges in Australia.
Even so, the return to practice convention in Australia has not stopped judges from openly pursuing further professional work after their judicial careers are over. In August 2015, an Australian Federal Court judge, Annabelle Bennett, announced her retirement from the Federal Court of Australia, in what was described in the media as a ‘bold, uncommon move’. She was explicit in her decision to pursue future work in the area of technology, including, but not limited to, arbitration and advisory work.Footnote 69 Many former judges return to practice at the bar or as consultants to solicitors’ firms. Some turn to the delivery of ‘private justice’ in the form of arbitration, mediation services and private investigations. Indeed, in Australia, the adoption of a written code of judicial ethics was preceded by concerns regarding retired judges returning to practice while drawing the judicial pension. This was seen as ‘posing the most controversial ethical issue’.Footnote 70
In New Zealand, while there is a convention that judges will not return to practice, this has come under increasing strain since judges appointed after 1992 were moved to a defined contribution pension plan, where the judges themselves bear the risk of investment performance.Footnote 71 In 2004, Chief Justice Sian Elias emphasized the significance of these concerns in an address to the International Bar Association Conference:
[W]e are now getting judges nearing retirement who are very anxious indeed about their positions. Some are considering early retirement in order to re-establish themselves in practice. … Post retirement earnings are now a significant preoccupation. A judge who has retired and who does not want to go into practice, because he thinks it is incompatible with his acceptance of judicial appointment, may have no choice.Footnote 72
Thus, as in England and Wales, the no return to practice rule has been significantly eroded in New Zealand because of other aspects that have affected judicial practice and culture.
In the US, Article III federal judges have life tenure with no fixed retirement age. Thus, careers post-retirement should, at least in theory, be less of a concern from an ethical perspective: many judges would likely treat their position as a final career. However, in a survey of retired Article III judges who served between 1789 and 1992, Clark found that at least 3.65 per cent (or 96 judges) returned to practice.Footnote 73 Surveying judges who served between 1993 and 2010, the figure was even higher: 47.15 per cent of judges who resigned or retired during this period returned to practice.Footnote 74 The relatively low judicial salaries paid in the US may be a partial explanation for this trend.
Where federal judges return to practice, this will largely be regulated by state-based regulation of legal practice. Indeed, the federal Code of Conduct for United States Judges does not regulate post-retirement activity, except where judges are subject to recall. State-based rules are likely to be lenient on this point, as they also regulate the return to practice of state-based judges, of whom many are elected.Footnote 75 Thus, US regulation on this point is state-specific and less stringent than that in other jurisdictions.
The different nature of judicial service, particularly in the states of the US, is also reflected in the American Bar Rules, which contain a far narrower restriction on judicial return to practice than in England and Wales or Australia. Rule 1.12 specifies:
(a) … a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person … , unless all parties to the proceeding give informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer …
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.
This is significantly broader in what it allows than the rules in other countries studied: not only does the rule allow judges to return to practice immediately and to appear in the court in which they previously sat, but, with party consent, judges can even act for parties in cases on which they previously presided. Such broad licence to former judges is likely to reflect the challenges of regulating conduct where high (state) judicial turnover is expected, as well as being a partial response to low judicial salaries, thus reducing barriers to judicial appointment.
B. Other Professional Roles
While there is a general consensus in the identified common law systems that judicial return to practice should be avoided—at least in the jurisdiction or case in which a former judge sat on the bench—there is less certainty around the ethics of judges taking up other positions after leaving the bench.Footnote 76 In some jurisdictions, it is common practice for former judges to be appointed to a wide range of government positions. These positions include appointments as Royal Commissioners or the heads of anti-corruption bodies.Footnote 77 Former judges are also regularly appointed to law reform bodiesFootnote 78 (although often such roles are filled by serving judges),Footnote 79 or to conduct reviews or monitor statutory schemes in, for instance, the national security arena.Footnote 80 They may be appointed as the independent lawyers tasked with making public interest submissions in closed hearings (usually referred to as ‘special advocates’ or ‘public interest monitors’).Footnote 81 Former judges may also be appointed to review the decisions of independent public prosecutors for a ‘second opinion’ on whether the public interest requires prosecution.Footnote 82
It is not a coincidence that governments appoint former judges to these roles. Rather, it is often the case that governments appoint former judges to utilize the experience and expertise, independence, status and reputation that they will bring to the role. But such appointments are not without their dangers. This has long been recognized in relation to serving judges. Courts have long warned against the political branches appointing serving judges to perform political functions, thus ‘borrowing’ their reputation of impartiality and non-partisanship. In Mistretta v United States, the US Supreme Court warned against the political branches ‘cloak[ing] their work in the neutral colors of judicial action’.Footnote 83 In the United States, for instance, the Californian Code of Judicial Ethics warns:
A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy or matters other than the improvement of the law, the legal system, or the administration of justice.Footnote 84
Different positions pervade across the jurisdictions. For instance, in Australia, the position in relation to serving judges is contested, with some jurisdictions prohibiting the appointment of serving judges to such positions and others allowing the practice.Footnote 85 In the United Kingdom, judges regularly sit on inquiries, however, Long Bingham has warned that there are serious arguments against the practice, and despite the long tradition in the United Kingdom, vigilance was required to ensure it did not result in an undermining of the respectability of the judicial office.Footnote 86 His statements should be considered in light of the previous prevailing position in the United Kingdom, the judicial culture this reflects, and its more modern evolution. Prior to the creation of the UK Supreme Court in 2009, the Law Lords sat in the House of Lords, albeit they were expected not to participate in debate and take a position on partisan political issues. Today, those sitting Supreme Court judges who have previously had peerages conferred on them may, upon their retirement, return to the House of Lords, but are disqualified from sitting in the House while they are on the bench. Reflecting the growing discomfort of the close political relationship between the judges and the Parliament that the Supreme Court was created to address, newly appointed Supreme Court judges will be given courtesy titles but not conferred with peerages.
The appointment of former judges by the political branches to these public positions would often appear to be orchestrated with the same intentions as motivate the appointments of serving judges.Footnote 87 Thus, such appointments are likely to lead to the perception that, by becoming involved, the judiciary (whether in the form of serving or former judges) have leant legitimacy to partisan political exercises. This is likely to have negative consequences for perceptions of judicial impartiality.Footnote 88 As Hoole argues, ‘one would expect the same symbolism, and the same vesting of public confidence, to attach to a former judge as it does to a serving judge. This being the … case, the notion that former judges can avoid the unique challenges raised by judicial leadership of an inquiry is illusory’.Footnote 89 Further, Royal Commissioners are often required to undertake an inquisitorial investigative process, a far cry from the adversarial processes most judges are familiar with. They are also often asked to make recommendations regarding institutional or legislative reform to address systemic failures. Such policy advice goes far beyond the legal craft judges would have perfected on the bench. As such, while governments often seek to appoint serving or former judges to these roles to obtain benefits from the social respect and status afforded to judicial office, this actually generates less than ideal outcomes, because former judges are less than ideal candidates for the role.
Further, former judges remain human and fallible. Failings—or even just perceived failings—of former judges in these often high-profile roles have the potential to impact on the public's confidence in those people who have held judicial office, and thus the potential to impact on the public's perception of the judicial branch. This potential is exacerbated when these appointments are in politically contentious roles. For instance, in 2014, former Australian High Court judge, John Dyson Heydon, was appointed by the conservative Abbott government to head a Royal Commission into Trade Union Corruption. Many in Australia, and particularly the Labor party, considered the Royal Commission to which Heydon was appointed as highly political. The Commission called the former Labor Prime Minister Julia Gillard and the leader of the Labor Opposition, Bill Shorten, to appear before it. Its hearings were covered extensively in the media and garnered significant public attention. While it was Heydon's own conduct as Royal Commissioner that initially brought his character into question, it was the highly politicized nature of the Commission that thrust it so squarely into the public spotlight. In 2015, an apprehended bias application was made against Heydon on the basis that he had accepted an invitation to speak at an event organized by the Lawyers Branch and the Legal Policy Branch of the NSW Division of the Liberal Party of Australia. When this became public, an application was made by a number of trade unions for Heydon to disqualify himself. After hearing the application, he refused to stand down.Footnote 90 The Attorney-General criticized the unions for attacking ‘one of the finest intellects in this country’. The Labor Party sought to have the Senate pass a motion requesting the Governor-General to remove Heydon as Commissioner, on the basis that he ‘has failed to uphold the standards of impartiality expected of a holder of the office of royal commissioner.’ The motion ultimately failed to pass.
The political fracas that arose from the Heydon Royal Commission might have raised serious questions in the minds of the public. As AJ Brown has framed them, this might be whether ‘the government was simply now appointing “its” person to the inquiry, indeed a judge of its own making—a notion that may also tend to confirm that either the original appointment was always fundamentally partisan’, or, equally damaging, that ‘the judge was now being rewarded for how they had discharged their judicial function’.Footnote 91
The episode demonstrates that accepting these appointments potentially puts former judges into highly political roles, and exposes their conduct and behaviour to intense public scrutiny. For this reason, as we have indicated, there is a long-running debate in common law jurisdictions as to whether serving judges should accept such appointments.Footnote 92 However, even in the jurisdictions where there are limitations on serving judges accepting such appointments, these limitations on judicial behaviour do not extend (by convention or otherwise) to the behaviour of former judges.
Indeed, compared to the consideration and ethical regulation of commercial and other activities by serving judges, regulation which relates to former judges filling these sorts of positions is comparatively weak. This can also be contrasted with the much greater consideration and regulation of the issue of return to legal practice. While the Bologna Milano Global Code of Judicial Ethics allows a former judge to conduct commercial activities, it states that: ‘A retired judge must consider whether his or her activities might harm the standing of the judiciary, because of a continuing association in the public mind with that institution’ (clause 9.4.1). Similarly, for political activity, ‘[a] retired judge should consider whether the particular activity undertaken might reflect adversely on the judiciary’. The judge should not use the title of ‘Justice’ or ‘Judges’ in connection with political activities (clause 9.6.1). Finally, for community and social activities, ‘[a]ny activity that might tarnish the reputation of the judiciary should be avoided’ (clause 9.7.1).
Similarly, in England and Wales, the non-binding Guide to Judicial Conduct states that ‘any activity that might tarnish the reputation of the judiciary should be avoided’. It explains that such a restriction is important because ‘[e]ven in retirement a former judge may still be regarded by the general public as a representative of the judiciary’.Footnote 93 With the exception of Australia, in other jurisdictions there is even more minimal guidance or consideration of former judges’ professional or commercial activities in ethics instruments.
In Australia, the AIJA Guide offers ‘one guiding principle’ in relation to professional and commercial activities:
[A] former judge should be satisfied that any proposed professional or commercial activity is not likely to bring the judicial office into disrepute, or put at risk the public expectation of judicial independence, integrity and impartiality.Footnote 94
For commercial activities, retired judges ‘should consider whether his or her activities might harm the standing of the judiciary, because of a continuing association in the public mind with that institution’ (clause 7.3). While retired judges may be involved with politics, ‘the retired judge should consider whether the particular activity undertaken might reflect adversely on the judiciary, because the public might continue to associate the retired judge with that institution’ (clause 7.4). Involvement in community and social activities should be limited by the fact that: ‘Even in retirement … a former judge may still be regarded by the general public as a representative of the judiciary.’Footnote 95 Thus, ‘any activity that might tarnish the reputation of the judiciary should be avoided’ (clause 7.6).
Continuing association with the Court is also evident in the highly unusual framework for the appointment of a Commissioner of the Independent Commission Against Corruption in the Australian State of New South Wales. The Independent Commission Against Corruption (Commissioner) Act 1994 (NSW) specifically contemplates the appointment of a Commissioner who was, immediately before that appointment, a judge of the Supreme Court. Section 4 provides that, where appropriate provision is made in the appointment, the person's commission as a Judge will revive when the person ceases to hold office as from that time. Emphasizing the continuing nature of the connection, the time served as Commissioner is taken to be service as a judge. Under such arrangements, the return of a Commissioner immediately to the Court would inevitably be at a time when the Court would be dealing with matters that had previously been the subject of investigation and report by the Commission. Such a situation gives rise to concerns about impartiality, because of the lack of separation between the Commission, an investigatory body, and the courts.
While there is limited formal regulation of other roles and positions held by former judges, these positions can seriously jeopardize perceptions of the institutional integrity of a court, particularly where held concurrently with an acting appointment (see further discussion below), or where there are other forms of direct and continuing association with the court.
C. Criminal Conduct
Poor conduct of former judges, when revealed, often causes public outcry of the same volume as that which accompanies the poor conduct of serving judges. This appears to be particularly the case when the conduct involved is criminal or demonstrates dishonesty. As PD Cummins explains, ‘the community, rightly, views the conduct as revealing deficient character in one who had been entrusted with judicial office’. And, ‘as every criminal lawyer knows, character is indivisible’.Footnote 96
In 2006, former Federal Court of Australia judge—and celebrated human rights advocate—Marcus Einfield was caught speeding in his motor vehicle. To avoid the $77 fine, he lied on a statutory declaration and in court to the effect that someone else was driving the vehicle; someone else who turned out to be one of his deceased friends. Amid public outcry and intense media scrutiny, Einfield eventually pleaded guilty to perjury and perverting the course of justice.Footnote 97 There is no provision in any jurisdiction that would regulate or manage this sort of behaviour on the basis that he was a former judicial officer: any consequences flow solely from the criminal law, other areas of civil law, or from the regulation that applies to him as a legal professional. In November 2008, Einfield was stripped of his status as Queen's Counsel on the application of the President of the New South Wales Bar Association.Footnote 98 On 23 July 2009, the New South Wales Court of Appeal found that he was guilty of professional misconduct and that he was not a fit and proper person to remain on the roll of practitioners, and he was removed.Footnote 99
As the case of Einfield demonstrates, when former judges commit criminal conduct of such a nature as to raise questions as to the integrity of those appointed to judicial office, there are few levers available to address these concerns. Of course, former judges will be subject to the full force of the law, but they will often continue to draw a State-funded judicial pension. They will be beyond the sanction of disciplinary systems. The remaining sanction will be, where available, through professional associations if the former judge continues to undertake legal practice.
D. Temporary Judges
Temporary appointments to judicial office are made across all of the jurisdictions studied in this article.Footnote 100 In each jurisdiction, temporary appointments are often, and sometimes exclusively, made from the ranks of former judges.Footnote 101 While some of the justifications posited are more contentious than others, it is generally accepted that there are often important reasons for a well-regulated system of temporary judges. In particular, the use of temporary judicial officers is often necessary to import expertise for particular cases, avoid conflicts of interest, retain talented judicial officers who have reached the statutory retirement age for permanent judges, try and test the suitability of potential judicial appointees, avoid the cost of permanent appointments to manage variable court loads, and achieve benefits through judicial exchange between jurisdictions. However, such appointments also raise acute concerns about their effect upon judicial independence, and particularly around possible executive preferment and conflict of interest. Where the temporary judicial appointee is a former judge, a number of specific concerns arise. Further, more general concerns will be exacerbated because there is a danger that impropriety will be associated more broadly with the judiciary.
Concerns around executive preferment arise in two particular guises for temporary judges who are appointed from the ranks of former judges. First, as the Australian High Court explained in Forge v ASIC, ‘the retired judge [who] may be thought to be concerned about the prospect of being able to continue to act as a judge beyond retirement and beyond the statutory retiring age with its consequences for continued professional engagement and enjoyment of a larger income’ may be swayed improperly in their pre-retirement decision-making’.Footnote 102 It appears that the Court is referring not to an already retired judge, but to a serving judge who may act, towards the end of his or her permanent judicial career, in a manner that might at least be perceived as currying favour with the government (or relevant appointing authority) to be considered favourably for temporary appointment following their retirement. As Blackham has argued elsewhere: ‘if the executive is choosing to reappoint certain judges (and not others), this may impair the appearance or reality of individual and institutional independence’.Footnote 103
The second concern around executive preferment is not exclusively concerned with former judges, as it arises where an individual has been appointed once to a short-term temporary judicial appointment, and is seeking reappointment to that role (if reappointment is possible). In that case, there are concerns, again, that the temporary judge will act partially in the course of their judicial functions to attempt to secure reappointment. The New Zealand Law Reform Commission explains that, at least in that jurisdiction, ‘[g]iven that the renewable tenure is normally one or two years, it can be said that it is only marginally removed from tenure at pleasure’.Footnote 104 Similar concerns over the length and renewable tenure of temporary judicial appointments are found in the Declaration of Principles on Judicial Independence issued by the Chief Justices of the Australian States and Territories, which stipulates in relation to temporary appointments that they must be ‘for a substantial term’, and ‘not renewable’.Footnote 105
There are concerns of a different nature that arise when former judges are appointed back to the bench as temporary judges. There is a danger that the ageing former judge may raise the perception, justified or not, that, having reached the age of mandatory judicial retirement, he or she is no longer at full mental capacity. There is also the potential to affect the diversity and representativeness of the bench: relying on former judges as temporary judges restricts levels of judicial turnover, potentially impeding diversity, renewal and change. Finally, there is the potential for perceptions of conflict of interest to arise where the temporary appointment is in a part-time acting capacity if the former judge also takes on other work.
Despite these concerns, in practice across jurisdictions, former judges are a significant, and in some jurisdictions sole, source of temporary judges. In New Zealand, ‘acting judicial officers’ are appointed exclusively from the ranks of former judicial officers. They are appointed for a two-year period (subject to reappointment) after retirement to meet specific needs and work only when called to do so by the Supreme Court Chief Justice, Chief High Court Judge, or Chief District Court Judge.Footnote 106 Former judges might also be appointed as ‘temporary judges’ for full-time service but for a short period of time for a temporary purpose.Footnote 107
In the UK, again we see a system to facilitate the appointment of temporary judicial officers. For instance, temporary judges appointed from the supplementary panel can be appointed to the Supreme Court, and this includes appointment of retired judicial officers who have retired within the past five years and are younger than 75 years of age.Footnote 108
At the federal level in the United States, former Article III judges fill the role of acting judges in a distinct manner. Currently serving federal judges, who meet an age and service requirement, may adopt ‘senior status’, permitting them to work a reduced caseload.Footnote 109 The United States also operates a ‘recall’ system for judges on the Court of Federal Claims, and other judges, under which, after their retirement, judges can be recalled by the head of jurisdiction, subject to specified limits around, for instance, length of service.Footnote 110
Most Australian States and Territories make provision for judges to be re-employed post-retirement in some acting capacity. For example, in New South Wales, acting judges can be appointed until age 77.Footnote 111 Permanent judges must retire at the age of 72,Footnote 112 thus leaving five years during which they may take acting appointments. In practice, former judges form a significant and in some cases sole source of temporary judges in most State and Territory jurisdictions in Australia.Footnote 113 In Victoria, only former judges can be appointed as temporary judges.Footnote 114
In most systems, temporary judges will be subject to the disciplinary processes that exist for serving judges, including, where they are in place, the jurisdiction of a judicial commission. However, as we have already seen, in most jurisdictions, where judges finish their term in office, whether that be because of resignation or because their term has come to an end in the ordinary course, the disciplinary jurisdiction of these commissions falls away. This raises a particular concern when former judges are appointed as temporary judges, as the short-term nature of the appointment increases the likelihood of the potential avoidance of disciplinary jurisdiction where incidents arise.
Some jurisdictions specifically consider how former judges, when appointed back to the bench in a temporary position, should manage potential conflicts of interest. Where former judges are appointed as an acting or auxiliary judge, the Bologna Milano Global Code of Judicial Ethics suggests that they ‘consider carefully the appropriateness of other activities’, and might require ‘the observance of, or at least consideration of, some of the restrictions identified in this publication’ for serving judges. Like the Bologna Code, the Australian AIJA Guide states that those appointed as acting judges ‘should consider carefully the appropriateness of other activities that the retired judge might be undertaking’, and which may need to be subject to the same provisions as serving judges (clause 7.2.4).
The Code of Conduct for United States Judges makes explicit provision for judges who are subject to recall: federal judges who are subject to recall, or judges who are recalled, should comply with the Code, except to the extent that it relates to accepting extrajudicial assignments. If a judge has accepted an extrajudicial assignment, which is not sanctioned by the Code—that is, it is a ‘governmental [appointment] that could interfere with the effectiveness and independence of the judiciary, interfere with the performance of the judge's judicial responsibilities, or tend to undermine public confidence in the judiciary’Footnote 115—judges ‘should refrain from judicial service’ for the period of the appointment.Footnote 116
The provisions of the US Code provide more detailed guidance regarding when it will be appropriate to sit as a temporary judge post-retirement, and how former judges should balance potentially competing roles. This is likely to be important in practice, as the case of former Federal Court of Australia judge, Roger Gyles QC, demonstrates. Soon after retiring from the Federal Court in August 2008, Gyles was engaged by the University of Sydney to conduct an independent review of the Sydney Conservatorium of Music and its future. This appointment overlapped with Gyles's appointment as an Acting Judge of the NSW Supreme Court (between 1 September and 31 December, during which time he acted as a Judge and Judge of Appeal for 42 days).Footnote 117 The overlap between these appointments embroiled an (acting) judicial figure in what has been described as ‘Sydney's most vitriolic Wagnerian-length academic opera’.Footnote 118 Over the course of its lifetime, the matter was referred to the NSW Ombudsman,Footnote 119 and the NSW Independent Commission Against Corruption.Footnote 120 Gyles's report, delivered in November 2008,Footnote 121 was the incidental subject matter and evidence used in legal proceedings against the University of Sydney in the NSW Supreme Court, when the former Dean of the Conservatorium sought damages for loss of reputation and earnings.Footnote 122 There is no formal restriction on former judges or acting judges occupying these sorts of adjudicatory roles in organizations, even where the issues involved might later be the subject of legal action. In this case, Gyles's role was particularly problematic, as it was held concurrently with his acting appointment to the NSW Supreme Court, which was the Court later tasked with adjudicating the matter. This could undermine the appearance of impartiality, particularly given that the judge was effectively employed by the university while associated with the Court.
E. Commentary on and Criticism of the Bench
There is no hard law-based regulation of serving judges about speaking out in public and potentially revealing information about, and even criticizing, their colleagues. However, there is a strong reticence for judges to speak out at all, let alone speak out against their colleagues in a way that might damage the reputation of the judicial branch. This general reluctance to speak to the public is usually traced back to the statements of Lord Kilmuir in 1955, which have become known as the ‘Kilmuir Rules’.Footnote 123 Lord Kilmuir strongly discouraged the practice of judges speaking to the public beyond official statements, such as through their public reasons. He said:
So long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of his official duties, must necessarily bring him within the focus of criticism.Footnote 124
Professor John Williams has remarked that the Kilmuir Rules are the ‘high watermark’ on the question of judges speaking out,Footnote 125 although he acknowledges that they have influenced judicial culture on the matter.
There has been an increasingly relaxed attitude to public statements by the judiciary. In the UK, the traditional reticence against judicial commentary is clear in the Guide to Judicial Conduct. However, it does not entirely counsel against participation in public debate, indicating that ‘judicial contribution to this consideration and debate can be desirable’, and that ‘[i]t may contribute to the public understanding of the administration of justice and to public confidence in the judiciary’ (clause 8.2.1). However, care is counselled, to ensure the judge does not become associated or perceived as partial towards a particular organisation, group or cause (clause 8.2.2), and to avoid situations in which public conflict between the judiciary might arise (clause 8.2.3). Care is also counselled when the judge speaks out in a way that might affect a case that will come before him or her (clause 8.2.4).
Similarly, in Australia, the Guide to Judicial Conduct states that ‘appropriate judicial contribution’ to debate about ‘the administration of justice and of the functioning of the judiciary’ ‘is desirable’. It goes on:
It may contribute to the public's understanding of the administration of justice and to public confidence in the judiciary. At the least, it may help to dispose of misunderstandings, and to correct false impressions.
The Guide notes that judges must be particularly cautious in speaking out on politically controversial issues, where it might give rise to questions of prejudgment, or where it might result in a public conflict of views between judges.Footnote 126 Again, similar provision is made in New Zealand,Footnote 127 and, to a more limited extent, in the US.Footnote 128
Once a judge has retired or resigned, soft law and conventional restrictions on his or her speaking out in public are non-existent in most jurisdictions. However, the Bologna Milano Global Code of Judicial Ethics states that if participating in public debate, the former judge must not ‘act in such a way as to create the impression that he or she is speaking with judicial authority’ (clause 9.6.1). The Australian AIJA Guide states that any involvement in public debate should prompt the retired judge to ‘consider whether a contribution to public debate is appropriately identified as coming from a retired judge’ (clause 7.5).
There is demonstrable need for even more explicit guidance, as there have been a number of instances demonstrating that the public words of former judges about their time on the bench might have serious repercussions for public confidence in the judicial branch.
Upon the retirement of Justice Dyson Heydon of the High Court of Australia, a speech that he had delivered to the Cambridge Law Faculty, and then to the Inner Temple and Herbert Smith & Co was published in the Law Quarterly Review.Footnote 129 The piece, entitled ‘Threats to Judicial Independence: The Enemy Within’, was highly critical of the threats to judicial independence posed by the strong personalities of other judges: pressures to participate in joint judgments, and the elevation of consensus as a judicial value. He said ‘Judicial independence can be threatened when judicial majorities attempt to muzzle minorities.’Footnote 130 He also spoke of the tendency of judges to adopt a ‘herd instinct’, where judges adopt what they think will be the majority position.Footnote 131 The piece came with a disclaimer that it must ‘not be taken to be speaking about the actual behaviour of any particular court of which the author has been a member, but to tendencies or possibilities in courts in general’. However, it was widely surmised that he was speaking specifically about the dynamics of the Australian High Court during his tenure, and the dominating personalities of a number of his colleagues who, at that time, were still serving on the Court. Thus, even with the disclaimer, it is clear that comments of this nature could have implications for public confidence in the judiciary.
Similarly, in 2014, following the highly controversial appointment of Tim Carmody as Chief Justice of Queensland over the objections of the legal profession and judges of the Court itself, a number of public statements were made by serving, retiring and retired judges. Of these, the speech of Justice Alan Wilson is most relevant for our purposes. On 26 March 2016, on the eve of his retirement, Justice Wilson gave his valedictory address. In it, he criticized the appointment and short tenure of the Chief Justice as an experiment that was ‘not working—and there is no reason to think that it ever will’.Footnote 132 He revealed a deep unhappiness on the Court with the Chief Justice, an alleged failure of the Chief Justice to fulfil his court duties, and outlined a number of episodes where the Chief Justice allegedly acted improperly, including in regard to the attempted sacking of the Senior Judge Administrator and interference with the constitution of the Court of Disputed Returns following a close State election.Footnote 133 This was information that Wilson—who, while not technically retired, was on the very cusp of retirement—was only privy to because of his time as a serving judge of the Supreme Court. The address was hugely damaging to the reputation of the Chief Justice and the Court more generally. It would, together with a number of other events, ultimately lead to the resignation of the Chief Justice.Footnote 134 Again, comments by a (soon-to-be) former judge did significant damage to the public reputation of the judiciary, revealing the potential for concern in this area. Given the potential significance of public comments by former judges for the integrity of the judiciary, it would be wise to at least give former judges ethical guidance about appropriate public comment.
III. THE ETHICAL REGULATION OF FORMER JUDGES
This Part brings together what we know about the existing justifications for ethical regulation of serving judges, the nature of the ethical concerns that surround particular forms of conduct by former judges, and the extent to which these are even identified, let alone addressed, through existing soft and hard ethical regulation, to draw conclusions as to the most normatively desirable form of future regulation of former judges. Former judges could be regulated through a number of models that combine different elements of hard and soft regulation. Such models could be seen as existing on a spectrum. At one extreme, once a judge has left the bench, they may be subject to no further ethical regulation—either in hard or soft law instruments. On a more moderate approach, judges could be subject to soft law that dictates standards should they be thinking of retiring or resigning. Alternatively, former judges themselves, once retired or resigned, might still be the subject of soft regulation through judicial codes of conduct. The conduct of former judges in receipt of a government pension might also be regulated through their pension arrangements, with entitlement to a pension being suspended, for example, should a judge return to private practice. In relation to the issue of return to practice, judges might be regulated by a professional standards body, which might regulate a specific situation—the ability of a former judge to return to practice in a specific court, or within a certain time after leaving the bench. Heading toward the other end of the spectrum of possible regulation, former judges might be the subject of hard regulation by a judicial conduct authority (such as an independent judicial commission) for conduct engaged in pre-retirement or, at the ultimate extreme, for conduct engaged in post-retirement.
It might seem unfair that judges who have chosen to step down from the bench, or who have been forced off because of mandatory retirement ages, must still be subject to ethical regulation. However, as the above discussion and the case studies demonstrate, the conduct of former judges still has the capacity to reflect poorly on the judicial institution, to undermine public confidence in the institutional integrity of the judiciary (the ultimate goal of judicial regulation) and many other, often constitutional, principles that protect judges and the judicial process. As we have shown, this might be because of a perception that a judge returning to private practice has gained some unfair advantage from their previous judicial office; or a perception that a judge's appointment to a high profile and politically charged role is an attempt by the government to borrow judicial impartiality, risking undermining it in that process; or a perception that the poor choices made by a judge resulting in a criminal charge reflect on the character of those appointed to the judiciary.
However, not only might the imposition of post-judicial ethical regulation seem unfair, it might also actively reduce the pool and quality of potential candidates for judicial office, who might be unwilling to consider a judicial appointment if future post-judicial activity is overly circumscribed. While this will be a motivation that is shared across all jurisdictions, some jurisdictions are on notice that, for a variety of reasons, adequate incentives for judicial appointment and retention are particularly low. Further, it might be argued that former judicial officers are uniquely qualified, with their judicial experience and status, for taking on post-judicial appointments as, for example, Royal Commissioners or Law Reform Commissioners. Conversely, their appointment to particularly political forms of these bodies can undermine perceptions of judicial impartiality more generally; further, it is often the case that former judges are actually poorly suited to the functions such officers are appointed to perform.
How might an appropriate form of regulation for former judges be crafted to address the concerns of post-judicial conduct while accommodating, as far as possible, these competing arguments? We propose a mixed system of hard and soft regulation extending beyond that which exists in most of the common law jurisdictions that we have examined in this article. We acknowledge that in some jurisdictions, the local judicial context and resulting culture will be such as to mandate differences in the regulation to that which we propose. However, as we have explained above, there is a high level of convergence internationally as to the appropriate ethical regulation of serving judges, which will similarly be reflected in a normative proposal for the ethical regulation of former judges.
A. A Balanced Approach to Return to Practice
First, acknowledging the competing concerns in tension in relation to the question of return to practice, we recommend that return to practice be restricted but not prohibited (here, we are discussing return to conventional legal practice, as we consider practice as a mediator and arbitrator separately below). We accept, as is accepted in most international instruments and domestic codes, that the exact jurisdictional and temporal restrictions on return to practice ought to be regulated by the local professional admissions body. However, we feel that imposing a limitation on practice for a period of time (eg, up to 5 years) and a permanent restriction on appearing before the court in which the judge used to sit are universally appropriate. This will acknowledge and go some way to addressing the concerns that former judges returning to practice will be treated more favourably in the courts, particularly in the court in which they served, but also accepts that absolute prohibitions on return to practice would undermine incentives to accept judicial appointment.
We also propose that there should be enforceable restrictions placed on the commercial advertising of an individual's former judicial status, so as to reduce the danger, real or perceived, that a judge or legal firm is profiting from that status. Further, we propose a prohibition on a serving judge negotiating with legal practice firms regarding post-retirement employment. As the extraordinary case of Mr Justice Peter Smith demonstrates, any such discussions risk creating an unacceptable perception of bias.
B. Restricting State Funding of Former Judges
There is a persuasive argument that former judges’ entitlement to their judicial pension should be reduced during the time that they engage in private practice for which they receive remuneration—either by suspending all pension entitlements,Footnote 135 or by reducing the entitlement by the amount, or a percentage of the amount, of remuneration earned in private practice. Such a restriction would be appropriate only in those jurisdictions where the pension is State-funded, which means for instance, in New Zealand and Tasmania, it may be inappropriate.Footnote 136
Similar restrictions might be considered in relation to other professional or commercial activities from which former judges receive remuneration. This is consistent with the regime that applies for former parliamentarians of the Australian federal Parliament: parliamentary pensions are reduced if held concurrently with a governmental office of profit at state or federal level (at least for those elected prior to 2004).Footnote 137
However, such an extension raises difficult questions in those roles where it is considered highly desirable that appointments should be made from the ranks of former judges, such as for temporary judicial appointments, when former judges are the most appropriate candidates for such appointment.Footnote 138 On the one hand it could be argued that such appointments, through which former judges could earn significantly more than the salary of a permanent judge, might create the possibility of executive preferment—and at the least, the perception of bias in judges thinking of retiring or resigning from the bench who are seeking subsequent temporary appointment. However, there is also an argument that former judges raise the least possible issues when appointed as temporary judges (in comparison, for instance, to practitioners) and, as such, there needs to be an appropriate inducement to lure them out of retirement to take the role. The total suspension of the judicial pension during such an appointment might mean that the individual is in fact financially disadvantaged if the acting judicial salary is less than the judicial pension entitlement. In this respect, it might be more appropriate for provision to be made, at least with respect to a temporary judicial appointment, either for the individual's pension to be reduced by the salary paid as an acting judge, or for the remuneration as an acting judge to be limited to the difference between the pension and the full judicial salary.Footnote 139 This ensures that the former judicial officer, in taking up a temporary judicial appointment, is at least not placed in a disadvantageous financial position.
C. Greater and More Specific Soft Regulation of Other Roles and Speaking out
Third, we recommend that a specific, separate soft law code of conduct be developed which sets out, in far greater detail than we currently see at the international and domestic level, the expected standards of conduct of former judicial officers particularly to provide guidance to individuals considering taking on other roles and speaking out.
In recognition of the concerns raised above in relation to accepting other roles, at a general level, these standards ought to include restrictions on a former judge performing roles that would be ‘incompatible’ with their position as former judicial officers,Footnote 140 or which would be likely to impair ‘public confidence’ in the judiciary as an institution. More specifically, these codes should discourage judges from accepting appointments to, for example, Royal Commissions that involve highly political terms of reference. It might also push judges to re-evaluate the appropriateness of acting as arbitrators or mediators, particularly where their decisions might be subject to review by the courts. We do not think it necessary or desirable to close off this avenue of post-retirement work: indeed, it is the primary form of income (apart from their pension) for many former judges. However, it is fundamental for the maintenance of judicial values of independence and impartiality that former judges more seriously consider the potential implications of their positions for the standing of the judiciary, and for considered guidance to be more explicitly provided in soft law codes regarding when accepting these roles would be appropriate.
Further, such codes should explicitly extend to what is appropriate engagement in public debate by former judges, particularly where that engagement involves the former judge criticizing other judges who may still be on the bench, or where it reveals or involves information about the workings of a court that the former judge was only privy to because of his or her time on the bench. This is not to say that in these guides former judges should be counselled against speaking out, even about individuals and practices on the bench when they were members. However, we believe some guidance is needed as to when such public comment is appropriate. In some cases, it may be that such comments are ‘regrettable but necessary’ because of the situation on the court.Footnote 141 Nonetheless, just as with serving judges, there should be some guidance to assist individual former judges to determine whether certain public statements are justified or advisable. It is difficult to specify universal standards as to what this guidance should be, and when former judges should speak out: each jurisdiction has substantially different traditions relating to judicial comment and public engagement. Thus, this is one area where jurisdictionally and culturally attuned guidance will be required.
D. Responding to Criminality
Fourth, when former judges who are in receipt of State-funded pensions engage in criminal conduct they must be subjected to further sanction beyond the generic application of the criminal justice system. Failure to do so risks further cementing public perception that the former judge's behaviour represents or is at least tolerated by the judicial institution.
We recommend that entitlement to State-funded judicial pensions (where relevant) be suspended upon a judge being convicted and imprisoned for a criminal offence involving dishonesty, for the period of imprisonment if any. Such a response is not without precedent: it is consistent, for instance, with (and more generous than) provisions relating to parliamentary members in the Australian State of New South Wales: entitlement to a pension is suspended while criminal proceedings are underway, and a conviction for a serious offence means the person is no longer entitled to a pension (though contributions will be refunded).Footnote 142 Alternatively, provision could be made for a reduced pension during a period of imprisonment, where the judge has a spouse or dependants who are reliant on that pension income. While this does not capture less serious forms of personal misconduct, which do not result in imprisonment, it reflects the public financing of judicial pensions in many jurisdictions, and the seriousness of criminal conduct by former judicial officers.
Again, we accept that different considerations apply where a pension is the result of individual contributions, and therefore not directly dependent on public funds, as is arguably the case in the New Zealand and Tasmanian defined contribution system.
E. Regulating Former Judges as Temporary Judges
Fifth, we recommend that it be made clear that former judges, if appointed as temporary or acting judges, be required to comply with the ethical standards that apply to permanent serving judges, and be subject to the same disciplinary processes. Where it is thought desirable for temporary judges to be subject to different ethical standards, these ought to be explicitly identified. For example, former judges holding temporary judicial appointments may be permitted to accept extrajudicial assignments and appointments. However, it should be very clear that the judge must be careful that such assignments/appointments do not create the possibility of a conflict of interest with their concurrent appointment as an acting judicial officer, for example, because of a future review by the court of which they are a member (as occurred with the university investigation undertaken by former Federal Court judge Roger Gyles).
F. Extending the Jurisdiction of Judicial Commissions
Finally, we recommend that the jurisdiction of those bodies tasked with receiving, investigating and acting upon complaints made against judicial officers be extended to include the conduct of former judicial officers where that conduct was engaged in prior to the individual leaving office. This will prevent the phenomenon of judges resigning to avoid the consequences of a misconduct complaint, and the potential damage to public confidence in the judiciary that might result from that. While a Commission's powers upon a finding of misconduct might be circumscribed by the fact that a judge is no longer on the bench, there are still responses to misconduct that are available in relation to former judges, including public reporting or the revocation, suspension or reduction of the judicial pension.
In those remaining jurisdictions that have not yet adopted a formalised system for receiving and investigating complaints against serving judges, and instead rely on the informal powers of the head of jurisdiction, the inability of such a system to extend to former judges provides another reason why it is inadequate and in need of reform.
G. Concluding Remarks
As the number of active and healthy retired judges rises with growing longevity, and these ranks further swell as judges chose to leave the bench early and pursue other careers, the ethical regulation of former judges has become a mounting concern. As this article has illustrated, concerns that the conduct and misconduct of former judicial officers might impact perceptions of the independence and impartiality of the judiciary are not merely hypothetical: across the jurisdictions surveyed, issues have already surfaced regarding the conduct of former judges, who are rarely bound or guided by ethical standards beyond the narrow regulation of return to practice. We have therefore proposed a model of regulation for former judges in common law jurisdictions that balances independence, individual autonomy and accountability, with a view to ultimately securing the integrity of the judiciary. This is not just a matter of extending existing regulatory systems to former judges: a more nuanced and thoughtful approach is required to recognize former judges’ rights as private individuals, while still ensuring the maintenance and protection of the integrity of the judicial institution.
