The Honourable Michelle May AM KC was admitted as a barrister in 1978 and took silk in 1993. Her practice specialty was family law. In 1995 she was appointed a judge of the Family Court of Australia, ultimately serving in the Appeal Division of that court for a number of years. She retired from the Court in 2017. She then returned to private practice, acting principally as a mediator and arbitrator. She is a member of Lucinda Chambers in Santos Place. While on the bench, her Honour held positions as President of the Australian Institute of Judicial Administration (“AIJA”), Chair of the Judges Forum of the International Bar Association, and was a fellow of the Australian Academy of Law and the International Academy of Matrimonial Lawyers respectively. In 2021 she was made a life member of the AIJA. Her Honour writes here concerning the issue – for some thorny – of a retired judge returning to practice as a barrister.
An overview
The title of this article comes from the greeting by an ageing rockstar when he saw me on the screen as I commenced a pre-mediation video conference, after my retirement from the Family Court. He meant no offence, and I took none – but his solicitor was very embarrassed and apologised profusely. The solicitor and I now laugh about it.
To return to the legal profession from the world of judging requires a degree of robustness and the support of your family. Understandably, many judges upon retirement decide that there are other things they would prefer to do with their life.
It can be very stressful leaving the protected life of a judge after many years and returning to the profession. First, there is no Associate or Court staff. Second, there is no automatic deference demonstrated by members of the public or other members of the legal profession. The decision as to what to do post-retirement is difficult and I suggest should not be made in a hurry.
“…fear of becoming a feather duster or relevance deprivation is not a good motivation for returning to the profession …”
Times have changed. For a number of reasons, many judges are retiring after 10 years of service – long before they turn 70 – and feel that, even for altruistic reasons, they still have something to contribute to society and the profession.
Almost 22 years ago, Gleeson CJ wrote about “A Changing Judiciary”, in the Australian Law Journal. He said:
Judicial appointment used to be like what matrimony and holy orders used to be like; something entered into upon the basis that, subject to the possibility of relaxation to meet special circumstances, it was intended to be permanent. The possibility that there might be active professional life after service as a judge was not ordinarily in contemplation…
…It was assumed that, once appointed, save for unforeseen circumstances, judges would remain in office for the rest of their professional lives.
Returning to the profession does not suit everyone, particularly judges who retire later in life, who are not in the best health, or after many years of the stressful life of being a judge feel they have had enough.
Serious ethical considerations
I appreciate that some judicial members and other members of the legal profession feel very strongly that judges should not return to the profession once they retire.
Judges, and those who may become judges, should not be deterred by the argument that it is unseemly, particularly where a former judge has something to contribute to the profession and the community.
It may be helpful to those considering a future judicial life to understand that retirement from the bench may not be the end of their legal career. In doing so it is important to note the germane content of the 2011 Barristers’ Rule and the Australasian Institute of Judicial Administration Guide to Judicial Conduct.
2011 Barristers’ Rule 95(n) provides as follows:
A barrister must refuse to accept or retain a brief or instructions to appear before a court if:
the brief is to appear before a court of which the barrister was formerly a member or judicial registrar, or before a court from which appeals lay to a court of which the barrister was formerly a member (except the Federal Court of Australia in case of appeals from the Supreme Court of any State or Territory), and the appearance would occur within 5 years after the barrister ceased to be a member of the court in question where the barrister ceased to be a judge or judicial registrar after the commencement date of this Rule.
There is good reason for this rule. I can say from personal experience that it is embarrassing for judges to have counsel appear before them who they once sat with in court in an appeal division, or were judicial colleagues.
“Mediations require a different set of skills to being a judge, and being a mediator is not a role suited to everybody”
The AIJA has provided very useful guidance about post-judicial life, published for The Council of Chief Justices of Australia and New Zealand. Chapter Seven of the AIJA Guide to Judicial Conduct (Third Edition) is titled “Post-Judicial Activities”. I would highlight the following points:
Former judges should be free to work and contribute to society making use of their qualifications, skills, and experience.
A judge should be careful in engaging in any discussions about future work prior to retirement.
Mediation and arbitration are not considered to be inconsistent with the importance of public confidence in the independence of the judiciary.
Former judges should not appear in a court or tribunal, or act as a solicitor in proceedings, where one of their former judgments is relevant.
Former judges should ensure they do not undertake work without a practicing certificate if it is reasonably arguable it requires a practicing certificate.
The decision to return to the profession: it depends…
Of course, many judges feel that they simply want to retire and this is right for them. Whether a judge chooses to return to practice depends on many factors.
Some of the factors that make it more or less likely a Judge will want to return to private practice are:
How old they are at the time they retire from the Court.
What area of law they have practiced in – a predominately criminal Judge may have more difficulty returning to private practice.
Family situation – for example, if they have a partner who is still working or if they have a family history of working past 65.
How much they still enjoy the law and gain pleasure from assisting people;
Personality – some former judges enjoy the structure of working and would miss the social contact with other lawyers; if a former judge decides to re-enter the world of dispute resolution they cannot be too precious.
The positive aspects of returning to the profession
We also know that humans are fitter and live longer than in the past. Most people enjoy the company of others and a feeling that they are contributing something worthwhile in their lives beyond middle age. Fortunately, the new more flexible workplace combined with technology makes working part time much easier than in the past. I should add, the fear of becoming a feather duster or relevance deprivation is not a good motivation for returning to the profession after judicial life.
“Returning to the profession does not suit everyone …”
The positive aspects include contributing something to the legal community, using skills acquired over many years – in particular to help people resolve disputes, and providing guidance and leadership to the younger members of the profession. It is difficult to do any of these things if after retiring as a judge you do not re-enter the profession in some way. Implicit in this is a remaining interest in the law and being with other lawyers, which I understand some former judges wish to leave behind them.
The negative aspects of returning to the profession
Retiring from the bench to return to private practice is by no means an easy task.
Some of us do not adjust to the fact that our views are not as important to the profession, and indeed the wider community (including our friends) as we perceive they were when we were judicial officers. Time seems to heal that wound, but it varies with the individual.
Inevitably, reading materials and planning for how to handle the parties on the day of a mediation, for example, is quite involved. No two mediations are the same. Mediations require a different set of skills to being a judge, and being a mediator is not a role suited to everybody. A mediator is not the decision maker. Considerable patience is required, a sense of humour, empathy, and a genuine interest in the parties is often the key to a good outcome.
Conclusion
If a retired judge feels willing and able to continue working in the legal profession it can bring many advantages, including a continued interest in the law coupled with the social engagement that affords. For those considering judicial appointment, or returning to the profession after judicial service, it is essential to remember that the conduct of a former judicial officer should never affect public confidence in the integrity of the judiciary. Nothing that a former judicial officer does after retirement should detract from the great privilege it is to have been a judge.
