Hearsay ... the Journal of the Bar Association of Queensland
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From the Editor Print E-mail

from_the_ed_intro.jpgWelcome to the April edition of Hearsay published, in respect of the tradition, in May, albeit at the very beginning.

In last month’s edition we featured an article by Nikki Lloyd on branding of the Bar as a profession, as distinct from the branding of individual barristers. The article sparked some interest from readers, with a variety of feedback received. We hope that the thoughts provoked continue to stir a revision of how we see ourselves as a profession and how we manage our role and in turn our image with the public. 

The reason for being concerned about such things is not self interest. Our profession has played and continues to play a very important role in the administration of justice. It is at risk of being undermined, to the detriment of the administration of justice, if we do not understand its value and take steps to protect its value in the minds of the community as a whole.

Whilst an aspect of the management of our brand is about the communication of its attributes, ultimately our brand can only reflect its inherent underlying value.

Essential to the brand of the Bar then is the quality of the professionals working within it. If the women and men of the Bar are not ably qualified and skilled and do not demonstrate that skill on a day to day basis then our brand, and ultimately our role in the administration of justice, will be tarnished.

Integral then to consideration of the Bar as a profession is a consideration of the standards that we insist upon for admission to the profession, as well as for sustaining the right to be a member of the profession thereafter.

Many years ago there were probably natural filters by virtue of the socio-economic constraints upon entry into a profession such as the Bar that provided some quality control. The advent of the modern economy and more equitable entry into higher education and the professions meant that those old controls were no longer effective to sustain quality.

The introduction of the Bar Practice Course was no doubt a useful devise in those circumstances for improving training of those intending to enter the profession. However, a lack of objective assessment criteria within it may have meant that it was less effective as a filter with respect to the advancement of those into our profession than may otherwise have been the case.

The recent introduction of an entry exam prior to admission to the Bar Practice Course is designed no doubt to provide a more objective measure of competence for the sake of resources devoted to the conduct of the Bar Practice Course, but ultimately with respect to ensuring a higher quality in terms of entrants to the profession.

It remains though the case, we here at Hearsay suspect, that the minimum requirements for commencing practice as a barrister without constraint are substantially less than those which apply to many other professions, including within the practice of law. For medical practitioners, by way of example, the requirements for admission into the necessary specialist disciplines (we should consider advocacy as a specialist discipline within our profession) are far more substantial in terms of time and rigour than what is imposed for our profession.

It is timely to consider then whether admission to the Bar with a full right of private practice should carry a higher onus in terms of practical experience in the law, formal evaluation or time in internship, or some combination of the above.

The hypothesis is that exacting standards for admission into the profession will lead to higher quality of the service provided, which in turn should protect the existence of the profession in what we would otherwise claim to be an indispensible role in the administration of justice.

We do however have to be conscious that the design of the requirements for entry are equitable from the point of view of socio-economic considerations. We will deny our profession and in turn the public some of the best, no doubt,  if the barriers discriminate on any grounds other than ability.

In our last editorial concerning branding, and in the discussion of branding within it, we made reference to the brand of Senior Counsel versus Queen’s Counsel. In the version as originally published reference was made to the diminishment of the brand by the change in title. We wish to point out that it was not intended by the editorial to convey that there were not problems at the time that were genuinely and rightly perceived to justify the change which was approved, by the clear majority vote of the members of the Association. The concern at the time was of the risk of the politicisation of the appointment of Queen’s Counsel because of the dependence upon the politicians within the Executive Council in granting letters patent. Those concerns were genuinely held. The politicisation of the process would undoubtedly have destroyed the brand more so than what has turned out to be the case with respect to the change in title. Nevertheless, the problems with branding remain real. In an article in the Courier Mail on the weekend past a solicitor from Minter Ellison was referred to as “Minter Ellison SC”. There are many stories that can be shared by our members of this increasing progress towards identification of solicitors as Senior Counsel. We do not “own” the title.

The ideal solution then in that regard is for an environment in which the political interference is avoided, but the distinct brand of Queen’s Counsel is preserved.

Finally, on a lighter note, we commend to you the decision of a Canadian court, hyperlinked herein, involving a self represented litigant. It has something in it for everyone, including in the must read footnotes. Judicial readers will appreciate the cathartic nature of the judgment, but also the reference to modern judicial opinion about the absence of need to dissect absurd arguments presented by litigants, usually self represented but perhaps not always. Others will simply enjoy the humorous observations of a perverse defence case, but also a weak prosecution case, by the presiding judge. 

Geoffrey Diehm SC


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