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Once were judges: Life in the law after ‘the Bench’

09 October 2018 - By Nick Butcher

What does a judge do at the end of a long career in law? Increasingly, judges are not retiring and are taking on what many refer to as third careers, as barristers, arbitrators and mediators.

But what motivates a judge to return to law, particularly after reaching what many would consider the pinnacle of a judicial career? Could it be that being in the law actually is a job for life?

One such returnee is Graeme Colgan who has over 40 years’ experience in employment law. He retired from judicial office in 2017 after 28 years on the bench, of which the last 12 were as Chief Employment Court Judge.

“A lot of people from my generation feel that sudden and complete retirement isn’t attractive. I love the law and I’m fascinated with the area of law in which I’ve specialised and I want to keep up my interest in it by assisting others and that’s why I decided to practise as a barrister,” he says.

Giving the courtroom a miss

You won’t see Graeme Colgan at the bar. As a former judge, Mr Colgan acknowledges a convention of not appearing as counsel in courts or tribunals. It’s a convention that supposedly all judges of the Court of Appeal, High Court and Supreme Court voluntarily agree to.

“The reason for that is it might be perceived that a former judge would bring an unfair advantage to the opponent because you’ve been behind the bench and you probably know the person who is sitting behind the bench, and in my particular case, I’d almost certainly have known the sitting judge. The perception of fairness and objectivity in court hearings is very important.

“I could understand the position of a litigant and turning up to a court hearing and then finding out the lawyer on the other side was a former judge and a colleague of the person on the bench,” he says.

Mr Colgan mostly works as a mediator or arbitrator, an independent investigator or as a barrister providing opinions or other work such as drafting pleadings.

He isn’t back in the law just to earn a living. He is also involved in pro bono work for Auckland Community Law Centre.

“They’re doing really innovative work in helping out litigants with employment cases. I’ve also been doing some mentoring for other employment lawyers who perhaps need a sounding board to discuss a difficult ethical question. I’ve been taking calls in that area from around the country and I enjoy doing that. It's professional pro-bono and something that retired judges can do well,” he says.

Mr Colgan was appointed as a judge at the relatively young age of 35, so there’s a freshness about practising law again.

“You’re looking at things from a very different point of view compared to when you’re behind the bench. You’re looking at what is the best way to get the best outcome for your client with the least expense and delay,” he says.

With employment disputes, he says, pragmatic ways of settling must be considered because, except in rare cases, litigation is generally uneconomic.

Employment law is all about the people you’re dealing with, Mr Colgan says.

“It’s human interest law. It’s getting an insight into people’s working lives. It deals with very important relationships that we have in life, economically, socially and financially and we often define ourselves by what we do.”

Graeme Colgan hasn’t put a timeline on practising law, and says he’ll continue to be involved on a flexible basis.

Rodney Hansen QC: 70 feels like the new 60

Rodney Hansen QC was admitted in 1969 but after almost 50 years practising law, he wasn’t ready to retire at 70 after 14 years as a High Court judge.

Returning to law after many years behind the bench was not a move that he viewed as ‘going back.’ He felt as though he was beginning a new career.

Since 2014 he has been a barrister sole at Shortland Chambers in Auckland. They’re a familiar four walls as he was also based there prior to his appointment as a judge.

“It did make the transition easier. It felt right even in a very different capacity to how it was when I left. I particularly liked my time as a barrister and to re-join the profession was really attractive and appealing. Life as a judge is quite an isolated and sometimes solitary existence. Sometimes you feel as though you are working in a monastery or a very cloistered environment where you cease to have those relaxed day-to-day interactions with colleagues other than with other judges and court staff,” he says.

But Mr Hansen says that’s the reality of being a judge.

“I’m not lamenting that but it is a fact and you accept that. One of the aspects I’ve enjoyed so much since going back into practice is the daily interaction with other members of the profession that you simply don’t have as a judge.”

The little things are the big changes

Auckland’s Shortland Street could easily be called Law Firm Street because it is dotted with them, and rubbing shoulders with familiar characters and players in the law is important.

As Mr Hansen explains, it’s the interaction, the little things such as being able to walk and talk along the street that he enjoys.

“Seeing old friends and being able to have coffee and lunch with them has been a real pleasure. Some people do reach 70, and it’s not just lawyers but any occupation, and they feel like they’ve had enough. I didn’t feel that way and that might be a function partly of being blessed with reasonably good health. I just didn’t feel like going home and putting on my slippers.”

In a sense it’s been like embarking on a new career.

“It’s new and stimulating and there’s the challenge of developing a practice. I gave myself one year and I’ve continued to enjoy it. Sometimes I have the problem of being too busy. Sole legal practice is like that though. It doesn’t proceed evenly and you do hit bumps on the road,” he says.

There are periods when he says he doesn’t feel in complete control of a lot of things happening at once, but he knows the stakes and it’s just part of the territory that goes with the job.

“You find yourself having to work really hard to keep up. But that’s the essence of practice as a sole practitioner because you don’t have people that you can delegate work to iron out the bumps,” he says.

And like Graeme Colgan, you won’t see Rodney Hansen QC in a courtroom now because of the convention. However, he does sit in the Court of Appeal in Tonga, Kiribati, Samoa and the Pitcairn Islands – which sits in Auckland several times a year.

“Virtually no former judges would ever appear in a courtroom as counsel. There’s only ever been two that did,” he says.

Those judges were the late Nigel Wilson QC who appeared a few times as counsel after his retirement from the bench and the former Justice David Williams, better known now as Sir David Williams QC.

The controversial decision of Justice Williams

Resigning as judge after just two years was a decision that caused controversy because it was out of the ordinary, as most people in the judiciary believed and understood that being appointed a judge was a position to hold until formal retirement.

The judge, Justice David Williams, was appointed in 1992 to the High Court but resigned in 1994. LawTalk reported in edition 408 on Justice Williams’ notification to the Attorney-General, Paul East:

“Justice Williams has told me that after serving two years as a judge he had reached the conclusion that he was not suited to judicial work and had made a mistake in accepting the appointment. In due course he intends to resume practice at the bar and has expressed the hope that he might also be able to make some contribution to the community in other ways, especially in the field of mediation and dispute resolution.

“Justice Williams’ decision was disappointing on account of his calibre as a judge and the convention that acceptance of appointment as a judge was seen to be as a permanent career step for a lawyer. However, that convention should not be regarded as displaced in the present circumstances where, after a short time on the bench, the judge had reached the conclusion that acceptance of the appointment was a mistake in personal terms,” Mr East told LawTalk at the time.

Sir David Williams told LawTalk he elected to follow the Australian practice and not return to advocacy in the High Court for two years – being the length of time he had served on the bench. In Australia at the time (during the 1990s) there was no absolute prohibition on judges returning to practise in the courts where they had sat but there were time limits on when that return should take place. The general approach was that the judge should not return for a period of time equal to the time served on the bench. Sir David Williams therefore did not return to advocacy in the High Court of New Zealand until two years had elapsed.

One of the best arbitrators in the world

Whether or not you agree or disagree with his decision, it can’t be denied that Sir David Williams QC went on to chisel out a highly successful career. He is a barrister and arbitrator at Bankside Chambers, also on Shortland Street. Chambers Global 2014 listed Sir David as among the top 40 most in-demand arbitrators worldwide for public international law, and he is frequently appointed to arbitrations involving Treaty-based disputes.

Sir David sits part-time as the President of the Cook Islands Court of Appeal.

That is only a snapshot of his long career, but it does pose an obvious question to critics of his decision: Could Sir David have made this contribution to law if his resignation from the bench had not been accepted by the Government at the time?

Sir David’s resignation as a judge no doubt caused ripples within the judiciary, because, as mentioned, judges agree to a convention not to appear as counsel in a courtroom they essentially once commanded, and Sir David wanted to practise law again, which wasn’t part of the norm. He had resigned as a judge after a short time which also wasn’t part of the norm.

It is understood that the Chief Justice at the time, Sir Thomas Eichelbaum, had strong views on the convention, in that it should be observed at all costs.

What does the law say?

Judges, whether permanent or acting, cannot practise as lawyers while they’re judges, according to section 144 of the Senior Courts Act 2016 and section 17 of the District Court Act 2016. There is nothing about what former judges can or cannot do.

However, the Crown Law Judicial Protocol (2014) states, under ‘Applicant’s declaration’:

“Prospective candidates who are selected for the shortlist are asked to complete a separate declaration intended to confirm that there are no matters in their background of a sort that might cause difficulties after appointment. They are asked to sign the declaration and to undertake that if appointed, they will not resume practice before the courts on retirement or earlier termination of their appointment.”

It has been said that this requirement may be anti-competitive or a restraint of trade.

Sir David Williams QC made a decision to resign as a judge because that style of work was not for him. Many people who undertake what people might view as regular or less sensational careers have done the same, so why shouldn’t a judge be able to reinvent themselves?

How other jurisdictions deal with it

The rules vary for judges wanting to return to practising law in overseas jurisdictions.

The Law Council of Australia says retired judges may return to the bar provided they still meet the requirements for practising in the relevant jurisdiction.

“Generally they are not permitted to practise in the court where they held their position for a period of five years to avoid conflict of interest issues,” it says.

In Canada, the Federation of Law Societies says a judge who returns to practice after retiring, resigning or being removed from the bench must not, for a period of three years – unless the governing body approves on the basis of exceptional circumstances – appear as a lawyer before the court of which the former judge was a member or before any courts of inferior jurisdiction to that court or before any administrative board or tribunal over which that court exercised an appellate or judicial review jurisdiction in any province in which the judge exercised judicial functions.

The Law Society of England and Wales says regulations ban judges from returning to legal practice in the courts yet just under half of circuit judges and district judges say they would consider returning to legal practice if permitted. It’s an issue they’re giving some thought to.

“While we see the force in the arguments about lawyers not returning to practise before the very courts in which they have sat as judges, we do not think those arguments apply with such strong force to solicitors who might want to return to non-contentious commercial practice. The question for us is whether the bar to returning to practice is acting as a discouragement to commercial lawyers when they consider applying for judicial office, and if so, whether it might be appropriate to relax it,” the Law Society says.

In Ireland however, a retired judge is not permitted to appear as a barrister before any court of equal or lower jurisdiction of the one in which the judge sat. So, a retired circuit court judge may not appear before the District or circuit courts, but may argue before the High Court, the Court of Appeal or the Supreme Court. Technically, the rule does not appear to cover solicitors, as the rule predates solicitor-judges.

However, as a case in 2016 highlights, that rule can be challenged and was successfully done so by a retired High Court Judge, Barry White. The Irish Times reported that despite the 71-year-old Mr White being on a €78,000 annual pension, he successfully argued that he needs to work because, as a father of four, that money was not ‘adequate’ for his family’s needs. He argued that he was being unlawfully prevented from earning by the decisions of the Bar Council and Minister for Justice. While the claim of economic necessity wasn’t proven, the Irish Times reported that the judge found that the minister breached Mr White’s constitutional rights to work and earn a livelihood.

In Singapore, section 26 of the Legal Profession Act states that a solicitor cannot apply for a practising certificate if the solicitor has, for a period of three years or more, held office as a judge of the Supreme Court.

Given the differences in other comparable jurisdictions, is it time New Zealand reviewed the stance of the convention?

The ‘convention’ is much more than an understanding

Rodney Hansen QC says when he became a judge the convention that judges agreed to, where they would not appear as counsel in a courtroom, was much more than an understanding.

He didn’t view it as a voluntary declaration.

“When I became a judge you were required to give an undertaking that if you retired as a judge, you would not appear in court. That’s not an imposition in any way because going back to advocacy work would be turning the clock back, whereas this is about moving on. The only time I have been back in court aside from ceremonial occasions is sitting on the Court of Appeal in some of the Pacific Island nations,” he says.

Mr Hansen says the work he does in the Pacific is a refreshing diversion.

“I really enjoy it. I’d had enough of judging work as such but I do like going back to appellate work in a different jurisdiction. In an altruistic way, giving something to those communities, I’ve found it hard work but really rewarding. It’s two or three times a year for a week or two. It’s not so much a working holiday as we try to get our judgments out before we leave so it can be very busy.

“They’re hugely hospitable people and experiencing the culture is wonderful. I’m ashamed to say that, until I retired as a judge, I’d never been to Tonga and now I’ve been there about 10 times and in a small way I feel part of the community. I feel incredibly fortunate to have been able to have this new retirement career,” he says.

Appointed a judge when relatively young means retirement young

Paul Heath QC retired from being a High Court judge a few months ago. He is only 62 as he was appointed a judge at 46.

“I still feel like I have a lot of time ahead of me for a third career. I needed a new challenge and there were many things I could not do working on the bench. That work has become increasingly relentless. It’s also not an environment where you can get out and socialise in the context of the profession,” he says.

Now based at Bankside Chambers, Mr Heath says he hadn’t realised how prominent the coffee culture in the country’s biggest city was, until he was on the ‘beat’.

“In the past I practised in Hamilton. It’s interesting how the work can arrive by wandering up Shortland Street and talking with various people about different issues,” he says.

No time like the present

Mr Heath hit the ground running quickly after retiring from the bench.

“I received an instruction from the Tauranga City Council to write a report on the Bella Vista subdivision, so that got me started. I’m hoping to be primarily involved in arbitration. There’s also been a variety of other work such as peer reviewing for various proceedings by a range of law firms,” he says.

After many years of being addressed as ‘Your Honour’, being called your given name might also take some adjustment for some former judges, but not Paul Heath QC.

He says he never felt comfortable with the formal address outside the court environment.

“I’m trying to re-educate particularly the younger lawyers that my name is just Paul. But then, as it was pointed out to me, there are many people in the law profession who have only known me as the High Court judge I was for 16 years. They knew me as Justice Heath and seemed unaware that I was a human being with a life before that,” he says laughing.

The third career

Mr Heath also won’t be appearing as counsel in court.

“Never – there’s the convention that you don’t appear in court. I also go to great pains if I’m doing a peer review to ensure that my involvement is not to be disclosed to the court. It’s for the same reason in that I do not want the opposing party thinking I had an inappropriate ability to influence another judge. I can’t see it ever happening but it is a perception that an opposing party may justifiably have and it is something I make clear very early on when being instructed by a solicitor,” he says.

Mr Heath estimates that he made about 2,000 decisions during his career on the bench

Being able to regulate his own workflow is one of the great differences to his previous career, so if his hours of work are too long, he says it is generally his own fault.

“There’s been two or three days where I had personal matters to attend to and I was able to write a day out of my diary and deal with these things. In court, you’re scheduled for the year. Essentially in the High Court, if you wanted to take sabbatical leave, you had to give a year’s notice.”

In 2010, Mr Heath sat as a judge of the Court of Appeal in Vanuatu. He is no longer involved in that work but says he’d be interested if opportunities did arise.

That third career in law, as he calls it, also includes mentoring of young lawyers in chambers.

In July he attended the Judicial Colloquium in Myanmar where he worked with and assisted retired judges from Australia and Hong Kong. The conference focused on commercial law and insolvency issues. There were about 20 judges from Myanmar there to gain experience from Mr Heath and his colleagues.

“I’m very keen to help where I can. I’m also continuing with my work in Christchurch through Continuing Legal Education with the litigation skills course,” he says.

14 years on, Barry Paterson QC is still involved in law

“Some judges retire and are happy to not do any work. I wasn’t one of them,” says Mr Paterson.

Barry Paterson QC retired from being a High Court judge in 2004. He too specialises in arbitrations and mediations but after 14 years, he is beginning to wind his work down.

He notes that being involved in arbitrations and mediations does not require holding a practising certificate.

But why such a long career after retiring from the bench?

“My golf game has never been good enough to retire. It still isn’t,” he says.

Mr Paterson says he wasn’t prepared to give up work completely and his wife is still a full-time company director.

Along with arbitrations and mediations, he has also sat on the Courts of Appeal in the Cook Islands, Kiribati and Tuvalu. He has also been a chair on the board of various organisations.

“It took a while to build up a practice after being on the bench. I was pretty lucky though as within a year I was chairing the Sports Tribunal of New Zealand, the New Zealand Press Council and several others. I was working full-time but I certainly do not these days. There is much more time to myself,” he says.

Sir Ian Barker’s long career

Sir Ian Barker QC was admitted in 1958. He retired as a judge of the High Court in 1997.

“I’ve essentially had three careers, all of about 20 years each: barrister, judge and arbitrator/mediator,” he says, with the ‘third career’ being the least stressful.

“There’s less of the constant deadline pressure but in saying that, arbitrations, particularly international arbitrations, are incredibly complex factually and there’s a lot of hard work to do in making the awards and running the hearing because often people are not used to the way we operate things in courts here, or they operate under foreign legal systems. It’s quite a challenge at times.”

Sir Ian still sits on the Cook Islands Court of Appeal as a judge. He has sat on other appeal courts including those in Fiji, the Pitcairn Islands (held in Auckland), Samoa and Vanuatu.

“It’s very different being a judge in someone else’s country. You’re not a New Zealand judge and you’ve sworn to uphold the laws of another country.”

Over the years he has dealt with commercial disputes including in construction and engineering, energy and utilities, insurance and reinsurance, oil and gas, intellectual property, banking and real property valuation.

Sir Ian puts his long career in law down to both luck and good health.

“Keeping your mind active is very good for your mental health and I’ve been very fortunate with my physical health. When you retire, you’ve got to find something to keep yourself occupied. I’ve managed to include plenty of travelling and other family events. There are a lot of advantages to being able to pick and choose work rather than have to head up to a criminal trial somewhere on a Monday morning.”

Arbitration or alternative dispute resolution work has taken Sir Ian around the world and he once spent five weeks in Toronto working on a case.

“We actually stayed at Trump Tower … I see it has been renamed,” he says.

When he started out, Sir Ian says there were few mediators and gaining work wasn’t difficult.

“Nowadays there are so many people that call themselves mediators.”

Sir Ian was also Chancellor at the University of Auckland for most of the 1990s. He says his university connections probably played a part in gaining work such as running various inquiries.

That included heading the inquiry into a controversial Holocaust thesis written by Joel Hayward.

Last updated on the 9th October 2018