Retired judges returning to practice.

NUTLEY BOY

Mr. Justice Barry White - retired - has been granted leave to take judicial review proceedings. His case is about the "rule" inhibiting him, as a former judge, returning to practice at the bar.

Apparently, the rule in question was formulated in a Supreme Court case of 1930 in which the plaintiff went by name O'Connor. Does anybody have a link to that decision as I would be interested to see the rationale behind it ? I suspect that this decision might have been a product of it's time and might not bear any relevance to modern laws and conditions.

What is the distinction between the case being taken by Mr. White and the matter of Harry Whelehan ? You will remember that Harry Whelehan was appointed as the President of the High Court and then left that position. He was allowed subsequently to resume practice at the bar.

Fred Swanson

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NUTLEY BOY

Fred Swanson wrote: »

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I think that it might have been for a few days, but where would lie the distinction in principle given that they were both judges of the High Court seeking to return to practice at the bar.

L1011

Did Whelehan actually perform any actions in his (brief) position?

Fred Swanson

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Carawaystick

Is this not sub judice?

NUTLEY BOY

NUTLEY BOY wrote: »

Apparently, the rule in question was formulated in a Supreme Court case of 1930 in which the plaintiff went by name O'Connor. Does anybody have a link to that decision as I would be interested to see the rationale behind it ? I suspect that this decision might have been a product of it's time and might not bear any relevance to modern laws and conditions.

The O'Connor rule was decided in In the matter of an application by Sir James O'Connor [1930] IR 623

Sir James consented to never seek a personal right of audience in the Courts and an order was made reinstating him. The decision itself is more of a discussion at the end of which Kennedy CJ asks the applicant to give an undertaking not to seek personal rights of audience. Upon the giving of that undertaking he is readmitted to the roll of solicitors.

It's an interesting decision actually.

Fred Swanson

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Fred Swanson

Fred Swanson wrote: »

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He's seeking to return to the Bar. Right of audience is implicit.

4ensic15

Deleted User wrote: »

He's seeking to return to the Bar. Right of audience is implicit.

There are 2 former judges recently retired who are registered to chambers in England who are external members of the LAw Library. They do advisory work and do not appear in the courts. Nothing stopping the former White J doing the same but he wants the right to appear in Kilcock District Court doing drink driving cases.

L1011

4ensic15 wrote: »

but he wants the right to appear in Kilcock District Court doing drink driving cases.

While Zaidan remains assigned to that district, I'm not sure anyone wants to do traffic cases there!

icdg

The thing that needs to be mentioned about Re O'Connor is that he and almost all of the other judges of the pre-1924 Courts (his namesake Charles O'Connor, Wylie, and O'Shaughnessey being the only exceptions from the Appeal, High, and County Court benches) were all effectively sacked by the incoming Government. He also had medical reasons for wanting to continue to practice. There were special circumstances in that case.

Carawaystick

Following from the non-compete tread, isn't this a restraint of trade issue?
You can't do that job because you're too old, and you cant do this job because you did do that job we won't let you do anymore?

Little CuChulainn

Could lead to some strange outcomes. Could we have a situation where a former judge is challenging a precedent set by a decision he previously made in the High Court?

Carawaystick

Well, could mr White argue his case as a lay litigant?

nuac

Judges are well paid. While many not have served long enough for the max pension, but they do have good pensions.

He knew that conventionally judges cannot return to the Bar. He took the shilling, he has to follow the drum.

Consider all the young lawyers trying to build practices. Then consider that numbers of serving judges. If they could all resume practice on retirement they would put many young lawyers on the breadline

NUTLEY BOY

nuac wrote: »

*** SNIP ***

Consider all the young lawyers trying to build practices. Then consider that numbers of serving judges. If they could all resume practice on retirement they would put many young lawyers on the breadline

Undeniably true.

However, is this an adequate argument, in principle, to prevent a man practising his profession ? That argument seems to place a priority on the economic interests of established practitioners by confining legitimate competition to the detriment of an individual who wishes to return to practice.

Carawaystick

You could look at it from a customer point of view also. Would a person needing counsel be better served by a wise experienced fella or a one fresh out of the blocks?

4ensic15

What about the other side. What losing litigant will be happy that he got justice when he learns that counsel on the other side was a former judicial colleague of the judge in the case? Judges tend to socialise with each other a lot as they have to be seen to be impartial. Retired judges are far too close to their former colleagues, know too many of the courts service staff and other insider information to be allowed practise.

nuac

I agree strongly with 4ensics point. Judges do stick together, and same would be true of retired judges.

I note that White says he needs the income to educate his children. Most people by the time they reach the judicial retirement age of 70 would have raised and educated their children.

In any case I presume this family live in Dublin, with easy cycling distance of their university or whatever. Much less expensive to put kids thru college than for a family living away from Dublin or Galway etc.

I see a further problem in that there might be a perception that a judge planning to return to the Bar after retirement was favouring litigants such as the State, Local Authorities, Insurers etc, in the hope that they would brief that ex-judge after his/her retirement. Such litigants have panels of lawyers for their cases. A recently retired judge would have no bother getting on such a panel. It can take young lawyers ages to get on such a panel

Carawaystick

nuac wrote: »

I note that White says he needs the income to educate his children. Most people by the time they reach the judicial retirement age of 70 would have raised and educated their children.

There's no upper age limit on fatherhood, unlike motherhood.


I wonder if

Kevin Cross wrote:

“Because of resources it will take a long time. I urge the parties to be as innovative as possible or we will be drawing our pensions or worse before they are all resolved,

was talking about having to go back to work in the IT article re loads of hip replacement cases

Carawaystick

Anyway the HC said there's no law only tradition barring Mr White going back to work.


http://www.irishtimes.com/news/crime-and-law/courts/high-court/retired-judge-wins-case-to-practise-as-barrister-1.2731062


Also Max Barrett is a fairly quotable fella

Max Barrett via the IT wrote:

“Being a judge is undoubtely[sic] a responsible job, and it is a privilege to be given the job, but ultimately it is just a job.
“The idea it is a sacred office ie connected with some god or dedicated to a religious purpose, and so deserving of veneration, is with every respect to a rightly respected judge, fanciful”.

Squatter

Carawaystick wrote: »

Max Barrett is a fairly quotable fella

He is.

But I must say that to date some of his verdicts have underwhelmed me.

Especially the Moore Street/National Monument one that the State is currently appealing to the Supreme Court.

But congrats to Barry White. He clearly needs a lot more money to support the family's frugal lifestyle!

"As part of his action, Mr White, a father of four, claimed he needs to resume work out of economic necessity and his existing income is not adequate to his family’s needs. He had also suffered cuts of some 38 per cent in his pension entitlements.

The Bar Council and Minister denied any breach of rights and said he had not shown he needed to return out of economic necessity.

It was argued Mr White had had a successful criminal practise before earning between €145-240,000 annually over 12 years as a judge.

He also got a €250,000 lump sum on retirement, had a €78,000 annual pension and previously inherited an estimated €1m plus from his late mother’s estate, the Bar Council argued. His wife is also working."

Andy From Sligo

this story made my blood boil today - he gets/got all the money he has and its still not enough for him? - sounds like greed! ... can you imagine other people on a pension reading that and feeling sorry for him? - I think not!

SEPT 23 1989

Maybe some judges got financially roasted in the crash and need to keep working

Galadriel

Andy From Sligo wrote: »

this story made my blood boil today - he gets/got all the money he has and its still not enough for him? - sounds like greed! ... can you imagine other people on a pension reading that and feeling sorry for him? - I think not!

It's hardly greed if he wants to work for his money

plodder

Carawaystick wrote: »

Anyway the HC said there's no law only tradition barring Mr White going back to work.


http://www.irishtimes.com/news/crime-and-law/courts/high-court/retired-judge-wins-case-to-practise-as-barrister-1.2731062


Also Max Barrett is a fairly quotable fella

From today's IT. Some barristers not happy about it.

... Another said that while he did not think “the walls are going to come crumbling down”, he nevertheless felt uncomfortable about judges coming back into practice, given the size of the country.

“If you have spent years being told by them what to do, their being an authority figure, and the bowing and scraping that goes on . . . It’s like the school principal is now sitting next to you in class.”

You wouldn't know whether you could ask to cog his homework, or what you'd do if he asked to see yours ...?

Andy From Sligo

Galadriel wrote: »

It's hardly greed if he wants to work for his money

there's work ...... and then there's work!

Arcade_Tryer

Squatter wrote: »

But congrats to Barry White. He clearly needs a lot more money to support the family's frugal lifestyle!

"As part of his action, Mr White, a father of four, claimed he needs to resume work out of economic necessity and his existing income is not adequate to his family’s needs. He had also suffered cuts of some 38 per cent in his pension entitlements.

The Bar Council and Minister denied any breach of rights and said he had not shown he needed to return out of economic necessity.

It was argued Mr White had had a successful criminal practise before earning between €145-240,000 annually over 12 years as a judge.

He also got a €250,000 lump sum on retirement, had a €78,000 annual pension and previously inherited an estimated €1m plus from his late mother’s estate, the Bar Council argued. His wife is also working."

How many families is he supporting?

Galadriel wrote: »

It's hardly greed if he wants to work for his money

Plenty of jobs outside of the legal profession.

Galadriel

Arcade_Tryer wrote: »

How many families is he supporting?

Plenty of jobs outside of the legal profession.

If he has 3 million in the bank and wants to work in the legal profession, so what? I don't understand the anger, he's not looking for free money, maybe he wants to work again to keep his family in the style they've become accustomed to but again so what?

Andy From Sligo

Arcade_Tryer wrote: »

....Plenty of jobs outside of the legal profession.

For the 'retired' : B&Q, Homebase, on the tills in Tesco's ...

Andy From Sligo

Galadriel wrote: »

If he has 3 million in the bank and wants to work in the legal profession, so what? I don't understand the anger, he's not looking for free money, maybe he wants to work again to keep his family in the style they've become accustomed to but again so what?

do you not worry about people taking advantages / liberties / taking the pee - in the interests of the public .

Why should some people in this world fall in Sh!t and come up smelling like roses and others have to suffer so much hardship, dont you want even a little bit of an equal world?

Arcade_Tryer

Galadriel wrote: »

If he has 3 million in the bank and wants to work in the legal profession, so what? I don't understand the anger, he's not looking for free money, maybe he wants to work again to keep his family in the style they've become accustomed to but again so what?

It's quite clearly unethical, as has been argued by many in the legal profession, hence the controversy and the consequent court case. But so what? His ability and need to make € is paramount you say? Fair enough. The law obviously supports that argument. But he will have gone down in many people's estimation, both inside and outside the legal profession.

Andy From Sligo

Arcade_Tryer wrote: »

It's quite clearly unethical, as has been argued by many in the legal profession, hence the controversy and the consequent court case. But so what? His ability and need to make € is paramount you say? Fair enough. The law obviously supports that argument. But he will have gone down in many people's estimation, both inside and outside the legal profession.

I suppose with greed comes that he dont care what people inside and outside the profession think about him and what is ethical or not...

Arcade_Tryer

Andy From Sligo wrote: »

I suppose with greed comes that he dont care what people inside and outside the profession think about him and what is ethical or not...

It's never surprising. But still always somewhat saddening.

4ensic15

SEPT 23 1989 wrote: »

Maybe some judges got financially roasted in the crash and need to keep working

Maybe some judges gamble on horses and lose!

BattleCorp

Andy From Sligo wrote: »

do you not worry about people taking advantages / liberties / taking the pee - in the interests of the public .

Why should some people in this world fall in Sh!t and come up smelling like roses and others have to suffer so much hardship, dont you want even a little bit of an equal world?

Why the begrudgery?

Yes, he is on a pension. He earned that while he was a Judge. It might be a good pension but that's neither here nor there. He is looking to go back into private practice. He is not getting extra money from the State. In fact, if he did go back working the State would benefit because he would pay tax on earnings etc., the same as any other PAYE or self employed person.

Arcade_Tryer

BattleCorp wrote: »

Why the begrudgery?

Yes, he is on a pension. He earned that while he was a Judge. It might be a good pension but that's neither here nor there. He is looking to go back into private practice. He is not getting extra money from the State. In fact, if he did go back working the State would benefit because he would pay tax on earnings etc., the same as any other PAYE or self employed person.

That's quite a deflection. And overall a disingenuous argument.

The problem exists in the fact that it is an ethical issue due to the compromising nature of his previous job as a judge with regards his new one as a Barrister. Others in the legal profession know this (some having voiced their concerns privately). And so do you.

BattleCorp

Arcade_Tryer wrote: »

That's quite a deflection. And overall a disingenuous argument.

The problem exists in the fact that it is an ethical issue due to the compromising nature of his previous job as a judge with regards his new one as a Barrister. Others in the legal profession know this (some having voiced their concerns privately). And so do you.

I accept your point about about the ethical issues but that wasn't the point I was replying to. If you see the post that I replied to, that wasn't about ethical issues.

glacial_pace71

I feel it'd be hugely problematic for counsel opposing him, let alone for the judge hearing the case. (The term 'friend' would be just so laced with sarcasm if citing his own judgments).

However, three successive governments have implemented and retained the financial emergency measures (FEMPI). Although it took a populist constitutional amendment the independence of the judiciary was duly undermined in the manner already affecting the independence of the civil service from the government of the day and their obsession with the electoral cycle. White J (??) did take a 30% hit in earnings, which consequently affected the calculation of his pension. (Btw the PRD levy isn't an additional pension contribution, it's just a levy on those in a public service pension scheme. And it was over and beyond the cut in gross pay).

The Government moved the goalposts after he'd taken office. As disdainful as I find his application to return to practice, it's very difficult to endorse corrupting policies of successive governments, which have endorsed/extended the FEMPI legisation.

However, it undermines the administration of justice if a judge of the superior courts can return to practise without any structured 'cooling off' period or restriction on the areas of practice (e.g. perhaps allow the asylum list or admiralty list etc in the High Court but preclude him from the criminal appellate courts in which he would've presided?).