In the wake of media attention on former Supreme Court of Canada justices' roles in the recent SNC-Lavalin affair, the Lawyer's Daily interviewed Gavin MacKenzie, among other experts on legal ethics and professionalism issues, about the thorny issues arising from judges' return to legal practice.
Gavin's perspective on the issues was quoted extensively in the article. He noted that none of the judges involved in the SNC-Lavalin affair transgressed any professional conduct rules, but spoke to the challenges of devising an approach to address similar circumstances, including as follows:
“There is a legitimate concern that clients — including governments — may suggest a legal opinion of a former judge is entitled to greater weight because of the author’s status,” said Gavin MacKenzie of Toronto’s MacKenzie Barristers, an expert on professional ethics and lawyer regulation. “The difficulty is in defining what should be prohibited to address this concern.”
MacKenzie noted that if former judges are prohibited from practising law, as they are in England and Wales, “you prevent the potential mischief of clients inappropriately exploiting the prestige of their lawyer’s former office, but you also prevent members of the public and practising lawyers from benefiting from the valuable experience and judgment of former judges.”
In MacKenzie’s view, all ex-judges, including Supreme Court judges, “may be well advised to avoid acting on matters that may subject them to criticism, but I think the concern about harming the reputation of their former court is overstated. Reasonable members of the public understand that sitting judges must be non-partisan, whereas practising lawyers have a duty to advance the interests of their clients.”