해외의 전관예우 규제사례와 국내 규제방안 모색(1) - 퇴직법관의 변호사 개업에 대한 해외 규제사례 - = Comparative Study on Former Judges Returning to Practice and the Implications for Korea (1) - Examples of Overseas Regulations -
저자
발행기관
학술지명
권호사항
발행연도
2019
작성언어
-주제어
자료형태
학술저널
수록면
1-288(288쪽)
제공처
Judges returning to legal practice after leaving the bench could cause a situation that possibly raises doubts about the impartiality and fairness of the judiciary in many countries around the world. Many jurisdictions have discussed and enforced different regulations to address controversies surrounding judges who return to practice. This research first provides an overview of regulations for former judges returning to practice in many other countries, and then pays particular attention to the relevant regulations of the United Kingdom and Canada in which concerns about judges returning to practice have been raised and extensively discussed.
The United States has adopted ethical rules governing judges returning to practice, which include rules on conflicts of interest, rules on the sitting judge’s negotiation of employment terms when seeking post-bench employment opportunities, and rules limiting the use of judicial titles or honorifics by former judges. According to U.S. ethics rules, if a former judge appears as counsel before courts where he/she served, sitting judges are advised to recuse themselves, for one or two years following the judge’s retirement date. Even though a fixed period may have expired, a judge may be required to recuse herself/himself in a case where counsel for a party is a former judge with whom the sitting judge had a particularly close association. In addition, telephone communications or communications outside a court hearing with former judges are strictly regulated by the ethics rules that prohibit ex parte communications. In rare circumstances, such as New York Court of Appeals or New Jersey’s courts, a former judge may not serve as an attorney before the court at all. It is also noteworthy that the introduction of the ban against the return to practice of former Article III federal judges has been discussed but not yet resolved.
Commonwealth countries (including former Commonwealth countries) have varying levels of regulation on former judges returning to practice after retirement. In Ireland, according to tradition and the code of conduct for the Bar, judges of the Irish Courts, following retirement or resignation, who return to the Bar may not practice in a court of equal or lesser jurisdiction than the court of which they were members. In Hong Kong and Singapore, by statutes or understanding upon appointment all judges or judges of certain upper courts shall not practice as a barrister or solicitor after they have completed their service. In Nigeria, the Constitution prohibits former judges from appearing or acting as a legal practitioner before any court of law or tribunal completely and permanently.
In Germany, the Federal Civil Servants Status Act enables state law and administrative measures to prohibit former judges with paid pensions from appearing for up to five years as counsel before the court where they served. In Taiwan, former judges and prosecutors are prohibited for three years after leaving office from taking cases in jurisdictions where they have served. In China, judges-turned-lawyers are prohibited for two years after leaving the bench from representing litigants before any court and permanently from representing or practicing as lawyers before the courts where they served.
In England, Wales, and Canada, there have been long and lively discussions over the regulation of former judges returning to practice. In England and Wales, former judges returning to practice is completely prohibited through the uncodified convention, which is reflected in the terms and conditions of judicial office to which each judge shall agree upon appointment. Between 2004 and 2006, the Lord Chancellor proposed removing the prohibition in order to increase diversity in the judiciary. Safeguards such as a prohibition on conducting oral and/or written advocacy for two years after retirement before any court and a prohibition for five years on the provision of advocacy services before judges at the same or at a lower tier were proposed in order to reduce possible risks of removing the prohibition of former judges returning to practice. As a quarantine period, it was also proposed that a former judge should not take up employment with any firm or individual who, in the preceding two years, has appeared before him/her for a final decision in a matter. The proposal to remove the prohibition on a judge’s return to practice, however, was with-drawn due to strong opposition from judges concerned about weakening the status of the judiciary and judicial independence.
In Canada, the regulation governing former judges returning to practice and the limitation on their appearance before courts are governed by self-governing regulations or rules established by the Law Society of each Province or Territory under the delegation of the law. The Model Code of Conduct, which is drafted and approved by the Federation of Law Societies of Canada, has a strong influence on these self-governing regulations. The current Model Code of Conduct prohibits a former judge from appearing as a lawyer before the court of which he/she was a member or before any courts of inferior jurisdiction to that court for three years. At the end of 2018, the Federation of Law Societies of Canada proposed to permanently prohibit all former judges from appearing before or communicating with any court in Canada. The prohibited “appearance” includes both signing materials submitted to the court or tribunal and any communications with the court or tribunal. Amendments have been proposed that would bar lawyers and law firms from soliciting sitting judges or from entering into discussions with a sitting judge about post judicial employment and allow them to discuss employment and business relationships only with a former judge after retirement. A new amendment was also proposed that imposes an obligation not to use or disclose judicial confidences for former judges who return to practice after retirement.
Such examples of regulating former judges returning to practice across various jurisdictions may shed light on how Korea could improve its regulations. For specific implications to Korea, it is advised to refer to a separate research report called, “Comparative Study on Former Judges Returning to Practice and the Implications for Korea (2) - How to Regulate Former Judges Returning to Practice in Korea”, which is published with this research report.
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