Blog: Judges should not return to work as barristers
Barrister Jim O’Callaghan, also Fianna Fáil’s justice and equality spokesperson, writes on the High Court decision to allow ex-judge Barry White to return to practice as a barrister.
I wish Barry White well in recommencing his career as a barrister. He fought and won the case that challenged the prohibition of him returning to practice.
However, the principle he has established could give rise to concerns in other situations, and there are valid policy reasons why in the future the State should seek commitments from new judges that they will not return to private practice in their own or lower courts after retirement.
First, if judges know they can return to private practice after retirement there is nothing to stop them taking early retirement after a short number of years on the bench.
Part of the reason why judges see out their full term is that they know they do not have the option of going back into private practice.
As a result of the recent judgment that has changed. Judges will now be able to retire after five or 10 years on the bench in the knowledge that they can re-enter private practice in the courts where they sat.
Consequently, people may now opt to become judges not because they want to commit themselves to a full career on the bench but because they wish to improve their employability or earning capacity as a lawyer.
Certain lawyers may now calculate that their careers as lawyers will be advanced by spending five years on the bench, in an area where their ambition lies, in the knowledge that their chances of securing work in private practice will be improved after a short number of years as a judge.
This would have a very damaging impact on the judiciary as it would facilitate short-term appointments to the bench as a means of improving employability and earning capacity in private practice.
Second, judges returning to practice in the courts where they judged will be addressing new judges on points of law which they had previously decided. The advantage they have is that in referring to their previous judgments they will be able to argue, as authors of those judgements, that the findings are distinguishable in such a way that would benefit the client whom they now represent. That is unfair to the requirement that all litigants should be seen to be heard in court on a level playing field.
Third, if judges plan to return to practice early they will need to start their career planning while in their final years on the bench. Such judges may wish to curry favour with clients or solicitors for whom they would hope to work after their retirement as judges. If judges have one eye on their return to private practice this may impinge upon, or be seen to impinge upon, how they decide cases and treat certain solicitors or clients for whom they are hopeful of working on their return to practice.
Fourth, at present judges do not hear cases in which they were in any way involved as a practising lawyer. Will such a similar prohibition exist for former judges who return to practice and who are asked to become lawyers in cases in which they have decided some preliminary applications?
How would a litigant on the other side feel if he saw a judge who had decided some of the preliminary points in that case against him now turn up as one of the lawyers on the opposing side? The perception of judicial impartiality would be seriously corroded by such a development.
Consequently, there are dangers in judges returning to private practice in courts where they sat. Since people are now very active and alert in their 70s it may be worthwhile looking again at the retirement age of superior court judges so that they could remain as judges beyond the age of 70. Previously it was 72.
Fianna Fáil will be introducing a Judicial Appointments Commission Bill in the autumn. One of the issues that will be considered for inclusion is whether the State should seek a commitment from applicants for judicial office that they will not return to private practice in the court where they operated or lower courts after they retire.
Such a change will have no impact on Barry White and other judges currently appointed but it would mean that new applicants would have to agree that, should they succeed in their application, they cannot return to practice in the court where they were judges.