Can a solicitor who once represented you later preside over you as a Judge?

da_shee

Hi

I have a friend who was involved in a custody hearing lately.

This friend has since discovered that the judge in the case had represented him as a solicitor a few years previous in an unrelated case.

I am wondering does anyone know if this is allowed? I am wondering if the fact that the judge once represented this person, does it make him ineligible to preside over him as a judge for future cases?

Thanks

da_shee

LowKeyReturn

I believe it's okay depending on the situation.

The case name escapes me but this is far from the first time this has happened, Judges have had their offspring in front of them as counsel and that's been fine too, case name also escapes me.

The Irish judiciary is a rather small one.

coylemj

But haven't there been cases where a Minister for Justice recused himself from making a decision on granting early release to a prisoner serving a sentence on the basis that he represented the individual in a previous case - or maybe prosecuted the case in question?

I think Michael McDowell was minister the last time this happened.

michael999999

da_shee wrote: »

Hi

I have a friend who was involved in a custody hearing lately.

This friend has since discovered that the judge in the case had represented him as a solicitor a few years previous in an unrelated case.

I am wondering does anyone know if this is allowed? I am wondering if the fact that the judge once represented this person, does it make him ineligible to preside over him as a judge for future cases?

Thanks

da_shee

If the two cases are unrelated, I don't see how there could be a problem. The judge has probably represented thousands of people as a solicitor.

LowKeyReturn

coylemj wrote: »

But haven't there been cases where a Minister for Justice recused himself from making a decision on granting early release to a prisoner serving a sentence on the basis that he represented the individual in a previous case - or maybe prosecuted the case in question?

I think Michael McDowell was minister the last time this happened.

Purely conjecture and perhaps exposing my own personal view on this, which more than one barrister has informed me is 'nonsense' that perhaps a politician is more aware, or perhaps needs to be more cognisant, of appearances.

Pro Hoc Vice

LowKeyReturn wrote: »

Purely conjecture and perhaps exposing my own personal view on this, which more than one barrister has informed me is 'nonsense' that perhaps a politician is more aware, or perhaps needs to be more cognisant, of appearances.

Judges are very aware of perceived bias, and if either party had brought it to his attention he would have offered or be asked to step aside. But having previously represented a person is of itself no bar. If he had previously acted for either party in relation to the case before him that is a different matter.

To the OP the fact that the judge represented a party to the proceeding, said party not remembering that the judge acted, there is very little hope the judge would have remembered it. But as I said it is open to either party to mention it before the case starts.

Tom Young

Justice should not only be done, but it should also be seen to be done. The judge should transfer and/or recuse in any event. I don't accept the small Ireland logic. We've plenty of judges to hear cases and motions. Bias and perceived bias must be avoided. Similarly, family members should not appear before their parents, etc. the cases should be transferred away. A number of High Court judges routinely do this.

The passage of time assuages most bias issues, though not all. Any doubt or risk must be removed.

michael999999

Tom Young wrote: »

Justice should not only be done, but it should also be seen to be done. The judge should transfer and/or recuse in any event. I don't accept the small Ireland logic. We've plenty of judges to hear cases and motions. Bias and perceived bias must be avoided. Similarly, family members should not appear before their parents, etc. the cases should be transferred away. A number of High Court judges routinely do this.

The passage of time assuages most bias issues, though not all. Any doubt or risk must be removed.

But how can there be bias if the Judge may not know or remember the person in the case?

Tom Young

michael999999 wrote: »

But how can there be bias if the Judge may not know or remember the person in the case?

The linkage would need to be direct. This very thread indicates that by its title the court may be compromised by a fact known to one of the parties.

"Oh you won, because the judge used to be on your payroll." Type argument.

A lot of judges won't hear cases if they know or are advised of a linkage to a party.

Pro Hoc Vice

Tom Young wrote: »

The linkage would need to be direct. This very thread indicates that by its title the court may be compromised by a fact known to one of the parties.

"Oh you won, because the judge used to be on your payroll." Type argument.

A lot of judges won't hear cases if they know or are advised of a linkage to a party.

While I agree in principle, in this case the party asking the question, did not himself remember that the judge acted for him until after the case was heard. I would assume if the judges old client did not remember then its more than likely the situation that the Judge did not remember.

But as a matter of course any perceived bias or issue should be brought to the attention of the other side before any hearing commences.

I have seen Judge Ryan transfer a matter out of his Common Law list on a Monday in circumstances where he acted for a Defendant many years previously while at the Bar.

I would imagine this isn't just best practice but standard practice.

Pat Mustard

Re Pinochet

Senator Pinochet does not allege that Lord Hoffmann was in fact biased. The contention is that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say, it is alleged that there is an appearance of bias not actual bias.

The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.