Senior Counsel: The Best Barristers or a Popularity Contest?

By Paul Gregoire and Ugur Nedim

Last week, NSW Bar Association president Noel Hutley SC announced this year’s appointments to the coveted position of ‘silk’, or senior counsel, previously known as Queen’s counsel.

Amongst the 15 barristers who received the honour, three were women. This makes it the third year in a row that three female barristers have been appointed to silk.

NSW Bar Association figures suggest there are now 395 silks in NSW, only 40 of whom are women, equating to just 10.13 percent.

Highly sought after title

The title of silk is a highly sought-after, as it allows barristers to instantly charge extra for their services, as well as place the abbreviation SC after their name, distinguishing them from other barristers who are all known as ‘junior counsel’ regardless of their experience or ability.

There’s been a great deal of controversy in recent years surrounding the appointment process for senior counsel in NSW. Some candidates have gone as far as to take the NSW Bar Association to court, after their applications were knocked back.

Indeed, Sydney barrister Mary Walker took the Association to the federal court after her application was denied last year.

She sought a declaration that the Association had treated her unfairly, claiming the silk selection protocol should not shut her out simply because she specialises in mediations, rather than being a “practising advocate.”

On July 12 this year, federal court judge Anthony Besanko found that the selection protocol was in keeping with the Association’s policy document, which did not create legal rights that could be ruled on by courts.

He rejected Ms Walker’s claim that she’d been treated in a discriminatory manner.

There was also the case of Sydney barrister David Smallbone, whose 2014 application for silk was rejected after he submitted it 12 minutes after the 5pm deadline.

He took the Association to the Supreme Court of NSW, who dismissed his case.

Views expressed by the profession

After the Supreme Court’s decision, Sydney barrister George Thomas led a campaign to remove the secrecy surrounding the silk selection process, which he believes should be based on objective criteria and subject to public scrutiny.

“Decision on applications for silk should be accompanied by reasons and barristers applying for silk should have the opportunity of responding to any adverse material before a decision is made,” Mr Thomas said. “It is no different to any decision made by any administrative body, tribunal or court of law.”

He continued “… blind Freddie can see that the process of seeking silk is a nonsense… It should not be a popularity contest.”

“The silk selection process is bad. It is rotten to the core. It has no justification. Everyone knows it.”

“When we have clients who come to us with complaints of this kind, of decisions being made in secret, of no reasons, no recourse, we are up in arms for our clients and run off to court commencing proceedings… And yet we squib our own.”

Barrister Peter Skinner joined Mr Thomas in a request for the Bar Association to provide reasons for refusing applications for silk. Mr Skinner said that if his request is denied, “I will be doing something about it”, adding:

“And if I look at the material and I see I have been badly dealt with I will be doing something – but I have not yet formed a view on that because I have not received a response”

Other criticism from within the ranks

Behind closed doors, there are many other barristers who find the position of senior counsel to be antiquated and irrelevant – a tradition that’s carried on more for financial gain than anything else.

They’ll tell you that in the past, silks would only take on extremely complex cases, always with a junior counsel to assist, and they made up only a small portion of the bar.

But this all changed with the abolition of the ‘two counsel rule’ in the 1980s – a rule which said that a silk could not appear in court without a junior counsel.

Today, there’s more senior counsel than ever before. In 1993, there were 1,497 barristers in NSW, with 201 (13.4 percent) appointed to silk. Last year, out of there were 392 silks out of 2,324 barristers (16.8 percent).

Silks now often work alone in court on all sorts of cases, and as a result of their title, they can demand and obtain higher fees than other barristers.

Queensland’s review of the silk selection protocol

In March 2007, the Bar Association of Queensland set up a sub-committee to undertake a review of the protocol for the appointment of senior counsel in that state.

The review was undertaken after George Brandis – then Queensland senator and now federal attorney-general – was appointed to the position of senior counsel in November 2006, despite not having practised law for several years.

The sub-committee delivered its report on May 11 that year, making several recommendations including “that the appointment process be tailored to identify those applicants whose ‘learning, skill and ability’ as barristers warrant their appointments.”

On the issue of Brandis’ appointment, the committee found that his service as a senator fulfilled an “exceptional circumstances” exemption criterion.

But many were critical of Brandis’ appointment, saying it was based more on politics and popularity within the higher echelons of society than his ability as a lawyer.

Indeed, many within the profession vehemently disagree with decisions made about the appointment of silks each year, claiming some of decisions are based more on popularity – or ‘who you know’ – than a barrister’s ability as a courtroom advocate.

An unfair advantage

One of the Queensland sub-committee members, lawyer Mark Plunkett, produced a minority report on May 15, calling for the abolition of silks unless major reforms were made.

Plunkett pointed out that the sub-committee had found many regular barristers believed the silk protocol to be “badly flawed”, with a number of “underlying deficiencies in the current institution of silk.”

Prior to the abolition of the two counsel rule, silks were considered a “worthy institution,” Plunkett wrote, but since then there’s been an accelerated decline in their standing.

He went onto describe a situation where a “solo silk has an unfair marketing advantage over his or her non-silk colleagues, often to the substantial financial detriment of the latter.”

According to Plunkett, the situation deprives highly capable junior barristers of opportunities to get the most sought-after cases, while solo silks can charge a premium for doing a junior’s work.

He went onto say that the abolition of senior counsel would “remove a ground of dissension” amongst barristers, some of whom “resent silks” and regard them as “a non-deserving aristocracy.”

“If a return to the new two counsel rule is not considered appropriate,” Plunkett concluded, “the institution of silk should be abolished.”

High Court judge weighs in

And Plunkett isn’t the only vocal critic of the title. High Court judge Susan Kiefel SC gave a speech to the Queensland Bar Association in March 2012, where she questioned the validity of the position.

The justice – who, in 1987, was the first female to be appointed to senior counsel in Queensland – said that the appointment to silk is not just an acknowledgement of an individual’s ability, but also a recognition of their leadership qualities.

Her Honour pointed out that since the two counsel rule was abolished, the senior counsel is leading no one in court. She outlined that there’s a growing practice of two silks appearing in court together, especially when representing interests such as big tobacco.

“The practice would seem to diminish the basis for appointments to a mere recognition of a level of ability,” the justice said. “If that be so, the question is, whether that is sufficient for its retention.”

Return of the QC

Yet it seems highly unlikely that the time-honoured convention of silk will be abolished in Queensland any time soon.

In a move that hearkens back to the colonial era, the Queensland Bar Association restored the title of ‘Queen’s counsel’ in 2013, acknowledging the relevance of the monarchy.

Victoria followed suit in 2014, giving silks the option to either choose the title of senior counsel or Queen’s counsel.

And even though the former president of the NSW Bar Association Phillip Boulten SC ridiculed Queensland’s move at the time, there’s been a push by many at the bar to have the title of QC reinstated here too.

Image credit: Sydney Morning Herald.

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