Ethics

There have been a number of posts here lately on matters of judicial ethics, generally related to the involvement by the judge or his/her spouse in political causes.  An issue of what I see as judicial ethics came up here yesterday, although not in a way that has yet got any coverage, or that I think many judges here would even recognize as a problem.  It relates to whether a retired justice of the Supreme Court of Canada can properly give a legal opinion about the meaning of cases on which he sat.  To explain the issue, a little background is needed.

Canadian lawyers are regulated provincially by law societies, who are responsible for admission, standard setting and discipline.  The provincial law societies work together through an association called the Federation of Law Societies (FLS).   The FLS has been working to create a new national model code of conduct for all law societies to adopt.  Meanwhile the Canadian Bar Association has been updating its model code to change its position on conflicts of interest.  In particular the CBA has taken the position that a test set out by the Supreme Court of Canada on what is a disqualifying conflict between two current clients doesn?t mean quite what it says.  The FLS thinks it does mean what it says.  Whatever the merits of their respective views, the two bodies have ended up in a bit of a sparring match over this.  The FLS backed up its position with a legal opinion from Brent Cotter, former Dean of the University of Saskatchewan College of Law, and who was notable for not having to this point weighed in on the old controversy.  The CBA backed up its position with a legal opinion (and here?s the issue) from retired Supreme Court of Canada Justice, Michel Bastarache, who was on the panels that decided BOTH of the Supreme Court cases in the area.

In his opinion Justice Bastarche (and he is referred to as Justice Bastarache in discussion of his opinion), comments on both judgments, going so far as to say with respect to one of them what he and the minority meant when they dissented from the majority:

As you are aware, I sat in that case and sided with the Chief Justice. The differences of opinion between the majority and the minority are more important than noted by Professor Cotter. First, we, of the minority, were of the opinion that the majority wrongly refused to accept some findings of fact that were determinative of the extent and duration of the mandate of the law firm and of Mr Strother in particular. Second, we were not satisfied that the majority applied Neil correctly; in particular, we could not see how the majority could conclude in Neil that the duty of loyalty is that ?of the firm? and find in Strother that the firm had not breached that duty because it had no knowledge of the personal interest of one of its partners. The main point of disagreement was of course the application of the fiduciary duties. We were of the view that those duties are not meant as an expansion of the mandate set out in the retainer; we thought that they cannot be used to impose a new implied retainer, but that they are there to define the obligations (explicit and implicit) in carrying out the terms of the retainer. If the retainer was truly finished, there was no duty to act for the former client and give advise on new tax provisions. There was nothing to correct regarding past advice based on different legal provisions. The majority itself accepted that Sentinel was not acting in any way adverse to the interests of Monarch. The personal interest of Strother in Sentinel was a business interest acquired after leaving his law firm and the business was new, in the sense that it responded by way of a new scheme to new tax regulations and was built upon an operational model developed by Paul Darc, not Strother.

I confess to feeling more than a little troubled by the propriety of a retired judge giving a formal legal opinion about the meaning of judgments in which they participated.  I do not think a retired judge can be considered to have the necessary independence to provide such an opinion.  Moreover, it seems to me to be an attempt to add undue weight to the opinion given to the CBA, weight that arises from Bastarache?s former position ? and that, I think, makes it a quite improper abuse of the authority of that former office.

Or am I missing something?