Not Gone for Good: The New Phenomenon of Irish Judges Returning to Practice

Few Irish judges worked after retirement up to the 1990s. This may have been because of lower life expectancies and lower costs of living. Now, there is an increasing number of retired Irish judges returning to legal practice.  

This phenomenon may prompt concerns about how the reputation of the judiciary may be affected. Public confidence in the institution could diminish.[1] Conversely, the conduct of retired judges may not be an issue because they are no longer actual judges. 

This article analyses arguments for and against retired Irish judges returning to legal practice. First, the nature of being a judge in Ireland will be discussed followed by an analysis of whether retired judges can be regulated. The focus of the essay will then turn to the current regulation of Irish judges, asking whether such regulation is fair and making proposals about regulation in future.

Generally, the duties attached to any job do not extend into retirement. In England, however, being a judge is ‘a lifetime commitment.’[2] It  remains unclear as to whether being a judge in Ireland is the same. Article 35.3 of the Constitution states that no judge shall ‘hold any other office or any position of emolument’. This provision is not explicitly limited to a judge’s term in office. Could this restriction be construed as a lifetime commitment for a judge?

Ms. Justice Finlay Geoghegan noted in White v Bar Council of Ireland that being a judge is not simply a job.[3]Ultimately, ‘the public often makes little distinction between a former judge and a serving judge.’[4] Retired judges often retain the title of “judge” or “justice”, for instance. Even if the public differentiates between sitting judges and former judges, a working retired judge may reflect poorly on the integrity and character of the judiciary.[5] Public confidence in the judicial organ is desirable, if not necessary, for its proper functioning. Judges cannot resolve disputes with authority if the general public do not trust them.[6] Retired judges working for their own gain could lead to a diminution of public confidence because of possible perceptions of greed, abuse of power and lack of independence. 

The principle of judicial independence may suggest that judges cannot be regulated. Article 35.2 of the Constitution only requires judges to be ‘independent in the exercise of their judicial functions’ (emphasis added). This provision tends to limit the obligation of independence while a judge remains in office. Therefore, restricting retired judges from returning to practice should not conflict with judicial independence.

The right to earn a livelihood under Article 40.3 of the Constitution equally cannot be breached by such regulation. Ms. Justice Finlay Geoghegan highlighted in White v Bar Council of Ireland that this right ‘does not extend to a right to earn a livelihood by any particular means or through the exercise of any particular occupation’.[7]

Common law rules for former judges returning to practice are generally ‘dated, under-analysed, and generally inadequate.’[8] Rule 5.32 of the Bar Council Code of Conduct (which governs most, but not all, practising barristers) states that judges who return to practice as a barrister ‘may not practice in a court of equal or lesser jurisdiction than the court of which they were a judge’.[9] This is a limited restriction.  The question that then must be examined is whether this Bar Council rule is fair. There are indeed arguments both for and against such a rule. 

Retired judges appearing before courts could prompt ‘a reasonable apprehension of bias’ favouring a retired judge.[10]That perception may be ill-founded, as the case may have been decided on its own merits. Nonetheless, the view may exist and this will damage public confidence in the independence of the judiciary.[11] Additionally, appeals may be prompted on the basis of perceived bias favouring the retired judge. This adds to the delay in determining disputes and to the expense of litigation. Ultimately, the rule mitigates the risks of bias and damage to the integrity of the judiciary. 

Even if appearing in a court above the one in which (s)he served – as is permitted - a retired judge is not precluded from citing precedents to which he/she contributed. This may result in deferential or preferential treatment even though the precedents would only be persuasive.11 Additionally, a former judge could have discussed matters with other judges and gained insights while serving as a judge. Other advocates will not have had that opportunity and will be at a disadvantage.[12]

However, it is also possible that a retired judge may want to return to practice out of financial necessity.[13] In addition, the experience of retired judges could benefit litigants.[14]

In any event, opposing counsel could challenge the former judge acting as an advocate if a situation arises in which there is a perceived issue with a retired judge acting. Alternatively, the judge hearing the case could recuse himself/herself if a compromising relationship existed between the sitting judge and the retired judge.[15] Therefore, the rule may not be needed.

The Bar Council rule, and an expansion of it, could be considered unfair because it may negatively affect judicial diversity. Lord Falconer advocated for the removal of the prohibition on the return to practice in the UK, saying that the prohibition was ‘a significant barrier for many potential candidates.’[16] However, the rule was not scrapped because there was no convincing evidence that diversity and the number of applications would be affected. 

All things considered, the rule is fair because it mitigates the risk of conflicts of interest and damage to the standing of the judiciary. Unfortunately, the rule does not eliminate the risks arising from those who do not subscribe to the Bar Council code of conduct or retired judges who can practice in a superior court to the one in which they served. 

The possibility that a judge who is planning to return to practice after retirement could act improperly to ‘curry favour with future employers’ cannot be ruled out.[17] However remote this possibility may be, there is still the potential for an objective perception of a judge abusing his/her position for future advancement on return to practice. Fianna Fáil spokesperson for justice, Deputy Jim O’Callaghan, noted that allowing retired judges return to private practice may result in ‘short-term appointments to the bench as a means of improving employability and earning capacity in private practice.’[18] This would reflect poorly on the character of judges.

Retired judges can return to other forms of legal practice such as mediation and arbitration.[19] This may be less harmful to the integrity of the judicial branch because the retired judge does not appear in court.  

However, the approaches or determinations of a retired judge acting in these capacities could be informed by their experiences and decisions on the bench. This may question the integrity and confidentiality of a judge despite the limited scope for judicial oversight of alternative dispute resolution.

As mentioned previously, the mere possibility that a judge may abuse his power by trying to ‘curry favour’29 with potential post-retirement employers is a threat to the judiciary’s standing. 

The judicial organ relies on public trust to function properly and effectively.[20] Allowing judges to return to legal practice in any form risks jeopardising the integrity of the judiciary. 

Restricting retired judges from returning to any legal practice is the most comprehensive way to ensure that the judiciary’s strong reputation is maintained.31 This absolutist approach may discourage good candidates from applying for judgeships. This argument needs further research, as was done in England and Wales. 

A more moderate suggestion is to enact legislation to incorporate a ‘limitation on practice for a period of time’.[21]Additionally, if a retired judge were to return to practice, his/her pension could be reduced or suspended.[22]

There is a balance that has to be struck between restricting retired judges’ rights as private individuals and preserving the judiciary’s integrity.   

The increasing number of retired Irish judges returning to legal practice prompts questions about whether retired judges should be regulated to preserve the integrity of the judiciary. 

Being a judge is not simply a job.[23] The responsibilities of a judge do not evaporate on retirement. Measures are required to minimise or eliminate the risks of conflicts of interests, abuse of power and allegations of bias in favour of a retired judge and his/her client. The risk of ‘curry[ing] favour with future employers’ also needs to be addressed.36  Allegations of that nature could affect the standing of the entire judiciary. The judicial organ relies on public trust to function properly and effectively.[24] Allowing judges to return to legal practice without regulation should not continue without detailed risk assessment and minimisation.

[1] Appleby and Blackham, ‘The Growing Imperative to Reform Ethical Regulation of Former Judges’ (2018) 67 International and Comparative Law Quarterly 505, 506 

*This article analysed the common law jurisdictions of Australia, New Zealand, England and Wales, and the United States. Those jurisdictions share many similarities including those related to the judiciary. 

[2] Standing Committee on the Model Code of Professional Conduct, ‘Post-Judicial Return to Practice Discussion Paper’ Federation of Law Societies of Canada (May 2016) 5.  

[3] [2017] 1 IR 249 [55]. 

[4] Appleby and Blackham (n 1) 516. 

[5] Ibid. 

[6] Ibid 510.

[7] W v BCI (n 3) [51]. 

[8] Pitel and Bortolin, ‘Revising Canada’s Ethical Rules for Judges Returning to Practice’ (2011) 34 Dalhouse Law Journal 484, 486. 

[9] Bar Council of Ireland, Code of Conduct for the Bar of Ireland, 26 July 2021, p 24 

<www.lawlibrary.ie/app/uploads/securepdfs/2021/07/Code-of-Conduct-Amended-by-AGM-26.7.21.pdf> accessed 13 January 2022. 

[10] ‘Post-Judicial Return to Practice Discussion Paper’ (n 2) 6. 11 Appleby and Blackham (n 1) 520. 

[11] Ibid 6. 

[12] ‘Post-Judicial Return to Practice Discussion Paper’ (n 2) 9. 

[13] As in W v BCI (n 3). 

[14] ‘Post-Judicial Return to Practice Discussion Paper’ (n 2) 7. 

[15] Pitel and Bortolin (n 8) 525.

16 Lord Falconer, '2007 Speech on Judicial Diversity' (Wragge & Co, Birmingham, 1 February 2007) <http://www.ukpol.co.uk/lord-falconer-2007-speech-on-judicial-diversity/>. 

[17] Appleby and Blackham (n 1) 521. 

[18] Jim O’Callaghan, ‘Judges should not return to work as barristers’ The Irish Times (Dublin, 27 July 2016)

[19] Appleby and Blackham (n 1) 521. 

[20] ‘Post-Judicial Return to Practice Discussion Paper’ (n 2) 6. 31 Pitel and Bortolin (n 8) 522.

[21] Appleby and Blackham (n 1) 542. 

[22] Ibid 541. 

[23] W v BCI (n 3) [55]. 

[24] ‘Post-Judicial Return to Practice Discussion Paper’ (n 2) 6.