Kerans, Roger Philip

English

bepress Legal Repository

Retired and Working

University of Arkansas at Little Rock: UALR Bowen Law Repository

The Journal of Appellate Practice and Process Volume 8 Issue 2 Article 8 2006 Retired and Working Roger Philip Kerans Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess  Part of the Judges Commons, and the Legal Profession Commons Recommended Citation Roger Philip Kerans, Retired and Working, 8 J. APP. PRAC. & PROCESS 271 (2006). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol8/iss2/8 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. RETIRED AND WORKINGRoger Philip Kerans*I retired from the Bench at sixty-three, after ten years as atrial judge and seventeen as an appeal judge. In Canada, judgesare appointed for "life," which constitutionally ends at age 75.So why quit twelve years before I was required to do so?Therein lies a tale.When we were young, my law partner and I decided that astimulating lifestyle requires a career change every decade or so,and we both tried to do that. He did it by moving in and out ofpolitics, but that was not for me. Because I had started my careeras trial judge with the District Court and Queen's Bench inAlberta, the move from trial to appeal work when I wasappointed to the Court of Appeal was like a career change forme, and I found both careers stimulating. But after seventeenyears as an appeal judge, I was finding little in the way of newchallenges. And it was learning as much as we could from newchallenges to which my partner and I had committed ourselveslong before.I confess that I hesitated to consider any form of aretirement career. To return to a lawyer's career or to move to adifferent career after retirement would be to buck a strongtradition, one that held sway through generations for Canadianand British judges. Followed throughout the BritishCommonwealth, that limiting tradition was expressed this wayby an Irish Court: "[W]ith security of tenure and fixed andadequate remuneration and pension, the practice of theprofession of the law is abandoned [forever] by the personappointed."' Although it is in form addressed only to the* Judge, Court of Appeal of Alberta, 1980-1997. Since 1998, Mr. Kerans has worked as amediator, arbitrator, law school teacher, and author, and has also been engaged to conductseveral inquiries and special studies.1. Re Solicitors Act and O'Connor [1930] I.R. 623, 631.THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 8, No. 2 (Fall 2006)THE JOURNAL OF APPELLATE PRACTICE AND PROCESSsituation of the judge who considers a return to the practice oflaw, the spirit of that decision would apply to his taking up anyremunerated activity. And so it was in Canada: The Canadiantradition was that a retired judge grew roses, and little else.Times change. Canadian judges do not continue to sit intotheir nineties today, as they did in my youth. When the Canadianconstitution was amended in 1958 to require judges to leave thebench at seventy-five, that age was widely accepted as a fair lineto draw between competence and senility. Fifty years later,better health has produced improved longevity, and many judgesare keen to work after seventy-five. Moreover, Canadians haveaccepted the idea of burnout, and now permit judges who are asyoung as sixty-five to retire. It seems inevitable, then, thatjudges will increasingly plan to have post-retirement careers.This will raise many interesting issues, but I will address hereonly those that I encountered.I had a good pension upon retirement, and was notuncomfortable, but having lived on a judge's salary since agethirty-six, I was certainly not rich. I decided in consequence thatI should plan on a second career, and I started by trying to makea list of the activities that I would find most stimulating and forwhich I had some merchantable skills. Outside the law, it was anembarrassingly short list. Inside the law, and mindful oftradition, I thought of teaching and writing. I got into both, andenjoyed them, but they had limits.When I started teaching, I immediately ran into therestraints any well-run law school would impose. I suppose theywere all reasonable, but they were not for me. I did not want tomove out of one institutional box into another. Writing, on theother hand, was fun. Not well paid, but fun. I wrote mostly aboutlegal and judicial issues for the Comment page in newspapers.2 Isoon learned that the content would before very long becomethin indeed if I was to keep this up on a regular basis, which wasa daunting thought for me after years of mocking hackjournalism and complaining about columnists who continuewriting when they have nothing to say. I stuck it out for about2. See e.g. Roger Philip Kerans, Advice to the Next Chief Justice of Canada: Don'tOverstay Your Welcome A 19 Globe & Mail (Canada) (Nov. i, 1999).AFTER THE BENCH - KERANSthree years, but then I realized that it was time to move on,although I keep my hand in still.3Just before I retired, I had asked a lawyer friend for adviceabout a second career, and he immediately offered me a positionat his large and successful firm. I had misgivings. In Canada, aretired judge now may return to law practice, but there are somerestraints. In most provinces, he or she is not to appear beforehis or her former colleagues.4 Some provinces have even morestringent rules. I was also intimidated by the Code of Ethics forretired Canadian senior officials, which then suggested that onehave no business contacts for two years after leavinggovernment service with people with whom one dealt in one'sprevious life.5 It did not expressly apply to judges, but I thoughtit was a good guide. So I agreed to go to the firm on thecondition that I never went to court and, for two years, nevermet with clients. The firm kindly agreed, and tried neverthelessto make use of me, mainly as an adviser to lawyers who wereworking in the real world of files and clients.Many retired judges in Canada take positions like this, andthey enjoy it. In the end, though, it was not right for me. I hadmany interesting experiences, and yet I found that I felt toomuch on the periphery of events, something that I was un-usedto. I lasted five years, but I should have quit sooner.Soon after I had retired, a lawyer had asked me to do amediation. I had to confess that I knew nothing about it, anddeclined the proffered engagement, explaining that mediationhad not existed when I practiced law the first time around. Notlong afterwards, however, I came to know of a firm of mediatorsin Toronto, who mainly comprise retired judges. They invitedme aboard and trained me as a mediator.3. See e.g. Roger P. Kerans & Kim M. Willey, Standards of Review Applied byAppellate Courts (2d ed. Juriliber Ltd. 2006).4. See e.g. John Sopinka, Must a Judge Be a Monk-Revisited, 1996 U.N.B.L.J. 167,173 (citing Saskatchewan's Legal Profession Act and New Brunswick's Law Society Act,and noting that "Saskatchewan forbids a former judge from appearing before a court in theprovince for one or two years depending on the length of judicial service," and that "NewBrunswick imposes a waiting period of five years").5. The restricted period appears now to be only one year. See Treas. Bd. of CanadaSecretariat, Values and Ethics Code for the Public Service ch. 3 (as modified June 19,2003), http://www.tbs-sct.gc.ca/pubspol/hrpubs/TB_851/vec-cvele.asp (accessed Apr.18, 2007; copy on file with Journal of Appellate Practice and Process).THE JOURNAL OF APPELLATE PRACTICE AND PROCESSAlthough I went into mediation more out of curiosity thananything else, I found that I seem to have a talent for it, and Ihave enjoyed this work as much as anything I have done in mylife. The goal of mediation, of course, is a settlement agreement,and I get a tremendous sense of accomplishment when I see theparties sign the agreement that settles their differences afterbattling for years. The work is also very challenging, because Imust deal with both counsel and client, and must try to opentheir eyes to satisfactory outcomes that they at first cannot see.So here I am, ten years after leaving the bench, in businessfor myself at age seventy-four. I work out of my home office,communicating by email with my assistant and my lawyer-clients. I am on the road a lot, as I am called on to do mediationsall around Western Canada. This is not something that wouldinterest every retired judge I know, but I love it. And I think Imay have an advantage over some other retired judges whomight consider a mediation practice: I do not play golf, so Inever have to worry about my professional commitmentsrequiring me to cancel a tee time.

https://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1226&amp;context=appellatepracticeprocess

Retired and Working

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

University of Arkansas at Little Rock: UALR Bowen Law Repository