Tuesday, April 09, 2013

Is the Bar in bed with the Bench or the Bench in bed with the Bar?

Good Day Readers:

Well, it seems Mr. "Super" Self-Rep (cjbudgell@gmail.com) is at it again this time with a letter to former Manitoba Court of Appeal Judge Charles Huband.

Dear Mr. Huband:

I have just read an article in The Lawyers Weekly that features you:


I've never lived in Manitoba and I did not recognize your name. I know nothing about your record as a judge or a barrister, so I would not suggest that you lack personal integrity. But I would be exceedingly unhappy if I had to face you in a courtroom, principally because for me there has never been, and probably never will be, any prospect of going to court except as a Self-Represented Litigant (SRL).

How many SRL's did you deal with while on the Bench? How many have you contended with as a barrister? And irrespective of the answer to the second question, would you now think twice about taking on such a commission? If the answer is no, then I would have to say you simply don't understand how the courts, indeed the entire Canadian justice system, is failing to serve justice.

I long ago identified the complete lack of separation between the Bar and the Bench as one of the fundamental issues we need to address if the public is ever to have confidence in the legal system. While you may believe that your own conduct is and has always been beyond reproach, I'll offer you another example.

British Columbia's Wally Oppal had been on the Court of Appeal a mere three years before leaping at the opportunity to become Attorney General through a candidacy in a safe seat offered to him by the Premier. Subsequently the Premier decided he wanted another person to have the benefit of that safe seat and so asked Mr. Oppal to run in a different riding, where he lost - by a nose - to someone bravely running as an independent.

While he was A G he lied to me, and so I attempted to sue him. No prize for guessing how far I got with that. It was reported that, sometime after losing his seat as an MLA, he began lobbying for the recently vacated position of Chief Judge of the Provincial Court. The government was not foolish enough to give it to him.

With an appointment to the Bench one stops serving clients and starts serving the public interest and the rule of law. A feature of the appointment is tenure for life. That is a contract that ought to be honoured by both sides. There are countless ways that a retired judge could continue serving society rather than resuming the role of a barrister serving private interests.

Chris Budgell

Vancouver, British Columbia

"Super" subsequently shared with CyberSmokeBlog this reply he received from Mr. Huband:

Thank you for your email. I do not intend to respond to all your concerns and opinions, but will volunteer a few observations.

First a minor correction: an appointment of a judge to a federally appointed court is not for life. There is a mandatory retirement age of 75. Thereafter, there is a cooling off period (3 years in Manitoba) before a retired judge can appear as counsel in court in which he served or any lower court.

I practiced litigation law for about 20 years before my appointment to the bench I spent 28 years on the Court of Appeal (with lots of experience dealing with self-represented litigants). After my 3 years in limbo I became entitled to appear as counsel in the courts of Manitoba, and I have done so. I harbor the view that I still have the ability to represent clients who wish to employ my services, and I do not see any reason why I should not do so.

I hasten to add that as a lawyer, then a judge, I am not one who thinks the judicial system is perfect. Far from it, but that is a matter for another day.


The Case of Martin Freedman
Douglas Inquiry aficionados will recall Martin Freedman then a Manitoba Appeal Court Judge testified last July. He's the one who Chaired the Jury Selection Committee in Winnipeg that recommended to The Office of the Commissioner for Judicial Affairs Canada that Lori Douglas be appointed a Justice. A couple months later he reached the mandatory retirement age (75) and within weeks literally walked across the street to join his former law firm Aikins MacAulay & Thorvaldson now Biglaw Aikins.

Assuming Mr. Huband is correct, that would seem to suggest while Mr. Freedman, now one of Aikins stable of lawyers, he is prevented from representing any clients in Manitoba Courts (Queen's Bench, Provincial, Court of Appeal) for a minimum of 3-years from the date of his retirement from the Appeals Court.

Unless CyberSmokeBlog is mistaken, there was no mention of this fact when Big Law Aikins announced he was rejoining the firm. Interesting no?

Mr. Budgell also sent CSB this link from CanLii a legal research search engine which is the case involving Charles Huband that's causing the kerfuffle you'll read about in The Lawyers Weekly article which follows.

Telecommunications Employees of Manitoba Inc. et al. versus Manitoba Telecom Services Inc. et al (File Number AI 10-30-07355)

So it's now up to you readers a conflict of interest? You be the Judge and Jury.

Clare L. Pieuk
'I ought to be able to do the things lawyers do'
Supreme Court of Canada to look at issue of ex judges representing clients in court
By Cristin Schmitz
April 12, 2013 Issue
Charles Huband of Taylor McCaffrey sat on the Manitoba Court of Appeal for 28 years, retired in 2007, and now argues cases in various courts including the one where he used to work. (Photo by Trevor Hagan for The Lawyers Weekly)

Should ex-judges be forever banned from appearing as counsel in their former courts - or indeed in any courts?

Charles Huband of Winnipeg’s Taylor McCaffrey, who sat on the Manitoba Court of Appeal for 28 years before he retired in 2007, doesn’t think so. Manitoba’s Law Society takes the same position — although the opinion of legal regulators across Canada is not unanimous.

Huband, an 80-year-old civil litigator, has been arguing cases in various courts, including his former court, since 2010, when the three-year cooling-off period Manitoba’s legal regulator imposes on ex-judges expired.

“It’s challenging, and I find it enjoyable, and I want to serve my clients,” Huband said. “I’m a lawyer now, and I ought to be able to do the things that lawyers do. It’s as simple as that.”

Not everyone feels the same way. The issue has excited enough controversy that the Supreme Court of Canada may soon weigh in with a judgment that could affect the common law rules on apprehension of bias — and thereby also affect the diverse professional regulations governing retired judges’ return to practice.

Although Huband has a clear green light from his law society to advocate before his former court, that could change for ex-judges across the country depending on what the top court says in an appeal to be argued this spring that asks whether an apprehension of bias exists when a “recently retired” judge argues a case before his former court.

“Speaking as a former court of appeal judge, I don’t think that there would be any possible bias in favour of a retired judge who appears,” Huband said. “If anything, I think that it would be an unconscious bias the other way. I don’t see it as a problem.”

However, opposing counsel and their clients were discomfited enough by Huband’s role as co-counsel against them at a Manitoba Court of Appeal hearing in 2010 that they are urging the Supreme Court in their May 16 appeal to set “the standard to be applied to the legal profession and judiciary in determining what constitutes disqualification of a former judge from appearing before his colleagues”: Telecommunications Employees’ Association of Manitoba Inc. v. Manitoba Telecom Services.

Huband’s appearance “caused us concern and has been a recurring distraction,” the appellants’ counsel told the Court of Appeal panel when the hearing began.

Increasingly, ex-judges are hanging out shingles after they hang up their judicial robes, Western University law professor Stephen Pitel told The Lawyers Weekly. “And flowing from that, we are seeing some of those judges who do return to the private practice of law appearing in courts, or indicating a desire in the future to appear in the courts.”

In a 2011 Dalhousie Law Journal article he co-authored with Will Bortolin, Pitel argues that the disparate regulatory rules governing former judges returning to practice across Canada are “dated, under-analyzed and generally inadequate” to deal with a phenomenon that “raises an array of ethical considerations and potential threats to the integrity of the administration of justice.”

Those concerns include the possibility of a former judge having undue influence over ex-colleagues, or having undue influence over judges and juries as a result of “judicial reverence,” as well as “the potential for the appearance of impropriety.”

Jack Major, a former top litigator who rejoined Calgary’s Bennett Jones as a consultant after retiring from the Supreme Court of Canada in 2005, said he thinks it’s all right for former judges to give legal advice when they return to practice. “But appearing in court there’s a public appearance that just, I think, creates an uneasy feeling, at least that’s what people are saying.”

Pitel and Bortolin propose a detailed ethical rule to govern all former judges returning to practice across Canada that includes a blanket ban on:

“Appearing as a lawyer in any province in which the lawyer previously exercised a judicial function before the court of which he or she was a member;”

Appearing in any inferior courts or administrative boards or tribunals over which the ex-judge’s former court exercised appellate or judicial review (barring “exceptional circumstances” approved by the law society).

The implications for the regulation of the profession are unlikely to be far from the judges’ minds when they hear Telecommunications Employees’ case. Several unions are appealing the Manitoba Court of Appeal’s decision last year to overturn a trial judgment that awarded a $43-million pension surplus (now about $101-million with interest) to MTS’s 7,000 employees, rather than to the company. In addition to errors they cite as grounds, the appellants ask whether Huband’s appearance as co-counsel for MTS three years after he retired from that bench created an appearance of bias.

They say in their factum that they “are not seeking a specific remedy from this court if an apprehension of bias is found to exist; rather they seek this court’s guidance on this important question that will impact courts across this country.”

They point to, among other things, “the importance of the independence and impartiality of judges to public confidence in the administration of justice” and the “untenable position counsel are placed in when asked to consent to continuing with a proceeding in these circumstances.”

MTS argues that it is “completely without foundation” and “profoundly unfair” to allege that Huband’s participation in the appeal created an apprehension of bias.

The unions’ counsel raised their clients’ concerns about Huband’s role with then-Manitoba Chief Justice Richard Scott at a prehearing conference, months before the appeal was heard. The appellants’ factum indicates the chief justice advised them that the panel would consist of judges who were not members of the court before Huband retired. But shortly before the hearing, the appeal court wrote to say that one of the judges on the panel had been a member of court before Huband retired, and that another had a “reasonably close” professional and personal relationship with Huband even though they were not on the court at the same time.

At the hearing’s outset, counsel for the unions said they were confident they would receive an impartial hearing from the panel.

However, Justice Richard Chartier, who chaired the panel, noted for the record that the court was aware that (because of the advanced age of some of the pensioners) the union had not wanted to delay the appeal being heard on the merits by filing a motion to disqualify Huband.

Justice Chartier said that, although Manitoba’s Code of Professional Conduct expressly recognizes the right of former judges to appear in their former courts after three years, “that right might be tempered if that lawyer were to appear in a preferred position.” Referring to commentary 5 of the code, which has no time limits.

Justice Chartier explained “the concern is that the administration of justice and the public confidence in the…integrity of the judicial system would suffer if a former judge was seen to be in a preferred position by having held judicial office.”

Justice Chartier emphasized that his court has the authority to ensure that its processes achieve a fair result “and are seen to yield a fair result.”

He concluded: “Given the exigencies, specifically the concerns over delay, it is the view of this panel, that in the particular circumstances of this case, Mr. Huband be allowed to argue this matter. However, we want to make very clear that this decision is ... with respect to this case alone and does not preclude or curtail this court from revisiting the issue in any future appeals.”


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