Can a Tribunal’s Former Counsel Appear Before the Tribunal? A Comment on Certain Container Chassis

Abstract

Lawyer mobility has been recognized as an important but not determinative consideration in legal ethics, particularly when it comes to conflicts of interest. Mobility poses particular issues for counsel to a tribunal. Those counsel may well at some point leave that position and pursue other opportunities. Prospective opportunities may sometimes involve appearing as counsel for a party before the same tribunal – especially where the tribunal operates in a highly specialized area of law. Can a lawyer appear before a tribunal if they were previously counsel to that tribunal? This discrete issue, though it rarely arises in the case law, presents unique considerations for analysis at the intersection of administrative law and legal ethics. In this comment, I analyze and critique the reasons of the Canadian International Trade Tribunal in Certain Container Chassis for declining to remove such a lawyer from a matter before it. I reconceptualize the Tribunal’s analysis  into two separate questions and then add a third question. I conclude that, aside from confidentiality issues, a context- dependant analysis is preferable to an absolute rule.