FEATURE ARTICLE -
Issue 22 Articles, Issue 22: Nov 2007
Silk
In the October edition of Hearsay (issue 21), I summarised the process for appointment of Senior Counsel up to the end of the involvement of the Senior Counsel Consultation Group (“SCCG”), when the President delivers to the Chief Justice the list of applicants considered by the SCCG to satisfy sufficient of the Criteria for Appointment to be suitable for consideration for appointment.
Under the Protocol, that list forms part of the information taken into account by the Chief Justice in deciding whether any additional Senior Counsel, and if so who, should be appointed.
The Chief Justice has authorised me to publish the following description of the process he has adopted in making his decisions under the Protocol:
“When the Chief Justice receives the applications for appointment as senior counsel and the SCCG’s recommendations he invites comment from a number of people, generally the Chief Judge of the District Court, the senior Federal Court judge in Brisbane, and the senior Family Court judge in Brisbane. He then provides all of the material, including those comments, to all of the judges of the Supreme Court, who make their own assessments of who should be appointed, who may be appointed, and who should not be appointed.
All those contributions are collated and then the judges meet for a comprehensive discussion of what appointments should be made. It may be assumed that where applicants have nominated judges as a source of relevant information, those judges will bring their views to the attention of the judges’ meeting more broadly.
The process is intensely collegial and the result reflects the corporate view of the Supreme Court judges.”
In summary, under the current protocol the Chief Justice decides which, if any, applicants should be appointed as Senior Counsel and that decision is made following extensive consultation, including with the Bar at an early stage (through the SCCG) and with the judges.
That structure is very well designed to identify those barristers whose standing and achievements justify an expectation, on the part of those who may need their services as well as on the part of the judiciary and the public, that they can provide outstanding services as advocates and advisers, to the good of the administration of justice.
Nevertheless, it is appropriate to review the protocol from time to time to ensure that it is working as effectively as practicable.
The Council’s review of the protocol
The report of the subcommittee asked by Council to review the protocol for the appointment of Senior Counsel (and the subsequent “minority report” by one of the committee’s members), both published in the June edition of Hearsay, issue 18, suggested some possible changes.
Accordingly, the Council has spent a deal of time considering possible amendments to the protocol.
As part of that process, a month or so ago I received a joint opinion that I had earlier sought for the Association from a senior silk and a junior on a couple of significant legal issues arising out of those reports.
At the October Council meeting, Council discussed the joint opinion and the terms of draft amended criteria and protocol documents earlier prepared for this purpose, and (subject to a couple of points, including some further drafting changes) authorised me to publish those amended drafts.
These drafts are published in this edition. I emphasise that they are drafts prepared to stimulate informed discussion: in addition to the Council’s intention to consider any submissions made by members, the Council would not contemplate making any changes without the Chief Justice’s prior approval.
Many, but not all, of the suggestions made in the subcommittee’s report reviewing the protocol have been taken up in these drafts.
I’ll mention a few of the more significant issues considered by Council.
Explanations to unsuccessful applicants
The drafts include a new provision to the effect that the President shall upon the request of an unsuccessful applicant discuss with the applicant his or her application.
Absolute confidentiality in the responses made by those consulted during the consultation process is essential. This is a common feature of similar processes in many contexts. On the other hand, the Council is sympathetic to the view that an applicant who is not included on the SCCG’s list has an interest in having an explanation for that. This draft provision, if approved, would allow for an explanation to be given in terms that do not allow any prospect of a breach of the necessarily strict confidentiality of the consultation process.
The role of the President and the Vice-President
The President and Vice-President are ex officio members of the SCCG. The drafts include provision for the expansion of the membership of the SCCG to ensure that all major specialist jurisdictions are directly represented. The Council’s view was also that the President and Vice-President should remain members of the SCCG: though this is an onerous obligation for the President and Vice-President every year (the other participants change each year), it is of such importance that members are entitled to expect the leaders of their Association to undertake it.
The “two counsel rule”
The draft does not include any provision for the re-introduction of the “two counsel” rule advocated in the “minority report” and, in a different form, discussed as a possible change in the subcommittee’s report. I will identify some of the main reasons for Council’s view that this should not be in the draft.
Abolition of the rule
The two counsel rule was expressed in different forms at different times, but in essence (and subject to some significant exceptions) it required that silks not appear without a junior. The rule was abolished in 1991 at a special general meeting of the Council called for that purpose. It was a controversial issue, but my impression, as I recall the meeting, is that most present thought that we had no practical choice but to abolish the mandatory rule in light of strong antagonism to it from governments, regulators, solicitors, and others.
Should the rule be re-introduced now?
Many silks continue to practise in a way that is generally consistent with the former rule, as is their right, but re-introduction of the rule would make that mandatory for all. I have seen no evidence to suggest that an attempt to re-introduce the two counsel rule would encounter less opposition to it than existed in 1991.
It is also worth recalling that a very significant proportion of today’s practising senior counsel applied for appointment and were appointed over the last 16 years in the legitimate expectation that they were entitled to practise without the mandatory application of the two counsel rule. The re-introduction of a mandatory rule applying to all would retrospectively deny that expectation.
There is also a legal issue to be confronted. It is not that the rule would contravene the Competition Code of Queensland (enacted under the Competition Policy Reform (Queensland) Act 1996) or the Trade Practice Act 1974: the Council’s view — confirmed by the legal advice it has received – is that there probably would be no such contravention (although we might anticipate a dispute). Rather, assuming the validity of such a rule, the difficulty lies in the re-organisation of the profession in the years since it was abolished.
The two counsel rule was formerly one of the Association’s ethical rules. Our ethical rules are now contained in the Barristers Rule 2007. This has statutory force under the Legal Profession Act 2007. The Council’s view — again confirmed by the legal advice it has received — is that it would be impractical to attempt to re-introduce the rule in any form other than by amendment of the Barristers Rule 2007.
Any such amendment would require government’s approval.
State and Territory governments have adopted a largely uniform approach to significant provisions of the legislation. For that reason, our immediate past President undertook to seek the Australian Bar Association’s view to re-introduction of the two counsel rule. I have since fulfilled that undertaking. There is no indication that the Australian Bar Association would support re-introduction of the rule.
Conclusions
In summary, the Council’s view is that, as things presently stand, it would be pointless and counter-productive now to attempt to have the two counsel rule re-introduced.
This does not bear on the status of senior counsel. The two counsel rule never was essential to the status of silk. It existed as a mandatory rule only for a relatively short period in the history of silk, and it was far from being universal.
On the other hand, the abolition of the two counsel rule removed a natural filter for applications, because it had deterred applications from those whose practices would not bear its burden. That and the great increase in our numbers over the years underline the importance of a careful and effective appointment process and its rigorous application in practice to ensure that the public interest in the identification of the leaders of the Bar is properly served.
Request for submissions about these drafts
The purpose of publishing these provisional drafts is to focus discussion upon the merits and drafting of particular amendments, so that any submissions made by members will be of practical assistance in settling any proposed amendments.
Those who wish to comment are asked to make a submission to the office of the Association by 1st December 2007, so that submissions can be collated and analysed, any desired changes can be implemented in ample time for the commencement of the process in 2008.
Hugh Fraser
13 November 2007
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Criteria for Appointment
The designation of Senior Counsel provides a public identification of barristers whose standing and achievements justify an expectation, on the part of those who may need their services as well as on the part of the judiciary and the public, that they can provide outstanding services as advocates and advisers, to the good of the administration of justice.
As a recognition based on the opinions of those best placed to judge barristers’ qualities, the designation of Senior Counsel also provides a goal for the worthy ambition of junior counsel, and should encourage them to improve and maintain their professional qualities.
1. Applicants are normally expected to have at least twelve years experience at the Bar before they apply. Applicants with less than this time in practice are unlikely to have sufficient experience to enable them to fulfil the criteria and are therefore unlikely to be successful in their application.
2. Unless there are exceptional circumstances, appointment as Senior Counsel will be restricted to practising barristers.
3. The qualities required to a high degree before appointment as Senior Counsel are skill and learning, integrity and honesty, independence, diligence and experience.
a. Senior Counsel must be learned in the law so as to provide sound guidance to their clients and to assist in the judicial interpretation and development of the law.
b. Senior Counsel must be skilled in the presentation and testing of litigants’ cases, so as to enhance the likelihood of just outcomes in adversarial proceedings.
c. Senior Counsel must be accomplished in the giving of advice: both as to the most appropriate way to conduct litigation, and as to the most appropriate way in which problems might be resolved outside the traditional system, such as through mediation and other non-judicial means of achieving resolution of conflict.
d. Senior Counsel must be worthy of confidence and implicit trust by the judiciary and their colleagues at all times, so as to advance the open, fair and efficient administration of justice. Senior Counsel must have a history of honesty, discretion and plain dealing with professional colleagues, lay and professional clients and the courts.
e. Senior Counsel must be committed to the discharge of counsel’s duty to the court, especially in cases where that duty may conflict with clients’ interests.
f. Senior Counsel who are in private practice must honour the cab-rank rules; namely, the duty to accept briefs to appear for which they are competent and available, regardless of any personal opinions of the parties or the causes, and subject only to exceptions related to appropriate fees and conflicting obligations.
g. Senior Counsel must have the capacity and willingness to devote themselves to the vigorous advancement of their clients’ interests and to have demonstrated an independence of mind and moral courage in so doing.
h. Senior Counsel must have the perspective and knowledge of legal practice acquired over a considerable period.
i. Senior Counsel must have demonstrated a commitment to the advancement of justice and the profession, for example, through the provision of assistance and service to the Bar Association, or through participating in pro bono schemes, or in such other ways designed to achieve a similar outcome.
j. In order for the foregoing qualities to have been properly developed and tested, it is expected that applicants for appointment as Senior Counsel should have practised for a considerable time. During this time it is expected (without being exhaustive) that the applicants’ practices will demonstrate some or all of the following: experience in arguing cases on appeal; a position of leadership in a specialist jurisdiction; experience in conducting major cases in which the other party is represented by senior counsel; considerable practice in giving advice in specialist fields of law; and experience in conducting cases with a junior.
Appointment and Consultation Process
The process for the appointment of Senior Counsel shall be as follows:
1. At the meeting of the Bar Council in May of each year the Senior Counsel Consultation Group (SCCG) shall be appointed. The SCCG shall consist of:
the President, the Vice-President, and three six senior counsel nominated by the President, and approved by the Council, not more than one of whom may be a member of the Council, and comprising to the extent that Council considers it practicable, one silk practising in each of the jurisdictions of Planning and Environment, Commercial and Equity, Common Law and Personal Injury, Family Law, Administrative Law and Criminal Law.
2. Any barrister wishing to apply for appointment must make application by completing the approved form and sending it to the Secretary so that it is received no later than the last Friday in August in that year. The President may, in exceptional circumstances accept a later application provided that it is received within seven (7) days of the last Friday in August of that year.
3. In addition to other matters in the approved form of application, the applicant:
(a) should name substantive matters in which the applicant has recently been involved;
(b) should identify in respect of each such matter the opponent or opponents of the applicant in that matter.
(c) may nominate a number of referees including, if desired by the applicant, solicitors by whom the applicant has been briefed in recent litigation, and who may be consulted by the SCCG in respect of the application.
4. A full list of all those who have sought appointment will be made available to any member who wishes to see it.
5. On the first working day after the final date on which late applications may be accepted by the President, the Secretary shall provide to each member of the SCCG a complete copy of all applications which were made in accordance with these provisions.
6. The members of the SCCG shall consider the applications and, by reference to the information contained in them and the Criteria for Appointment, seek comments from people who would have knowledge of a particular applicant or applicants, in the following categories:
(a) Senior counsel in actual practice,
(b) Junior counsel in actual practice who have not made application for silk during the year in question, and
(c) Members of courts and tribunals (whose comments may be sought through the senior judge or member of the court or tribunal concerned).
7. The SCCG shall only seek, and have regard to, comment based upon personal knowledge of the applicant.
8. A member or members of the SCCG shall seek to interview the recent opponents of the applicants identified by the applicants and may interview referees identified by the applicants, and shall report to the SCCG accordingly.
9. After all comments have been received tThe SCCG may, if it thinks appropriate, seek further information from any applicant or any person who, in its opinion, would be able to assist it in its deliberations.
10. By no later than the 30 September, the SCCG shall provide the President with a list of those applicants who are considered by it to satisfy sufficient of the Criteria for Appointment to be suitable for consideration for appointment.
11. On the first working day after receipt of the list from the SCCG the President shall provide the Chief Justice with:
(a) A list of all applicants (together with their applications)
(b) The list provided by the SCCG
12. Upon receipt of that information the Chief Justice shall consider:
(a) whether any additional Senior Counsel in and for the State of Queensland should be appointed in that year, and
(b) if any such appointments are to be made, who should be appointed.
13. Before making either of the decisions referred to above, the Chief Justice shall consult with the judges of the Supreme Court, the Chief Justice of the Federal Court and the President of the Bar Association. Where it is clear that the practice of an applicant is one which is substantially in courts or tribunals other than the Supreme Court or the Federal Court, then the Chief Justice shall consult with the Chief Justice (or nominee) of that court or presiding officer (or nominee) of the tribunal, as the case may be. The Chief Justice may also consult with any other person who in his or her opinion would assist in the process of appointment.
14. In making a decision to appoint an applicant as Senior Counsel the Chief Justice shall take into account the Criteria for Appointment.
15. By the third Wednesday in November the Chief Justice shall:
(a) cause the names of those to be appointed as Senior Counsel to be posted on the Supreme Court web site,
(b) provide the President of the Bar Association with a list of those names, and
(c) make available to the Chief Executive of the Bar Association letters addressed to each of the applicants advising them of the outcome of their application.
16. The Chief Executive shall send each letter to the applicant as follows:
(a) To applicants whose chambers are in Brisbane, hand delivered or by courier;
(b) To applicants whose chambers are outside Brisbane by courier.
17. An unsuccessful applicant may ask the President whether his or her name was on the list referred to in paragraph 8b 11b and the President shall tell the unsuccessful applicant.
18. Where an applicant unsuccessfully applies for appointment as Senior Counsel, the President shall upon the request of the applicant discuss with the applicant his or her application.
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