Review of the Protocol … continued (Minority Report)

BY Hearsay

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MINORITY REPORT OF THE SUB-COMMITTEE APPOINTED TO REVIEW THE PROTOCOL FOR THE APPOINTMENT OF SENIOR COUNSEL

A "rush job"

On 1 March 2007, this sub-committee was appointed to:
- identify the strengths and weaknesses of the current process;
- undertake a review of stakeholders’ current understanding of the process;
- identify potential areas for reform or revision of the protocol, together with
- such recommendations as the sub-committee considers appropriate.
The Bar Council requested that the sub-committee report back in time for the matter to be considered at Council’s meeting in late May 2007. This time has been extended. Nevertheless it is acknowledged that as the Chairperson said: “we are under considerable time constraints”.

The sub-committee consulted as widely with the Bar generally as time permitted. Unsurprisingly, some at the Bar support the present protocol, and other suggest changes to it of a “tinkering” nature. However, and this may surprise some, particularly silks, the sub-committee has discovered there is a considerable body of reputable non-silk opinion which considers the protocol to be badly flawed. Indeed, a significant body of opinion considers the protocol to be badly flawed because it reflects underlying deficiencies in the current institution of silk.

Quite apart from the magnitude of the task referred to in the preceding paragraph, a number of appropriate steps have not been possible due to the tight timelines placed upon the sub-committee. Most importantly, the timelines have prevented the fulsome and adequate consultation with all stakeholders that the task necessarily requires. In this regard, it is important to accurately identify who are the relevant stakeholders and why. Relevant stakeholders are not only non-silks, non-silks applying for silk, silks and the judiciary. The stakeholders also ought include litigants and the public interest generally. Arrangements for the proper organisation of the affairs of the Bar, and indeed generally in the administration of justice, should always have a focus upon the needs of litigants and the public interest. If either the protocol for the appointment of silk or the underlying institution of silk does not, on balance, serve these interests then appropriate change needs to occur.

There has not been a proper opportunity, nor perhaps even the authority, to consult with appropriate representatives of the litigants such as the solicitors’ side of the profession and perhaps members of the public, nor even to consult with appropriate guardians of the public interest such as the Queensland Attorney General.

In this regard, it is timely to remember the provisions of the preamble to the 2004 Barristers Rule which, inter alia, provide:

“7. Barristers should be free to choose how they lawfully practice as barristers except only in those cases where the unchecked exercise of the freedom would threaten harm to the greater public interest that barristers’ conduct be honourable, diligent, especially skilled, disinterested and competitive and that access to barristers’ services be enhanced.” [See: Legal Profession (Barristers) Rule 2004 (Q)]

Notwithstanding the commendable hard work of the administrative staff, there has been delay and difficulty in locating from the Association’s archives the records of past debates concerning the two thirds, two counsel rules and previous representations.
It is more essential that this important task not be a rush job. If there is a suspicion of the latter, then any resultant decision by the Bar Council taken upon a consideration of this sub-committee’s report may be viewed merely as a rubber stamp of the existing system in need of reform. That would not be in the interests of the Bar as a whole, nor would it promote the cause of justice.

A once worthy institution

Silk, prior to the abolition of the two counsel rule, was regarded by those barristers who had considerable practice in that system to be a very worthy institution, well adapted to meet the real needs of litigants. Amongst other things, prior to the abolition of the two counsel rule:
- silks only appeared in genuine two counsel cases; concerns over solo silks charging a premium for doing junior’s work did not exist;
- the system provided an excellent “in house” training scheme, even for experienced non-silk counsel and is a crucial part of the skilling process of the Bar;
- the resultant division of work and constructive nature of the dealings between non-silks and silks produced a cohesive and collegiate Bar; and
- the marketplace objectively upheld the standard of those appointed silk; those who were not good enough to command a two counsel practice, were mostly not foolish enough not to risk applying; those who foolishly took that risk and were found out, saw a flourishing junior practice disappear with nothing to replace it and retired from practice.
It is an historical error to conclude that the abolition of the two counsel rule was simply a response to the then Trade Practices Commission’s posturings. The market for legal services was, at that time, greatly deflated. There appears, in fact, to have been insecurity at that time amongst some silks as to the amount of work which would be available to them if the two counsel rule was maintained. The will to oppose the dubious claims of the then Trade Practices Commission about the two counsel rule contravening Part IV of the Trade Practices Act seems to have dissipated in the face of this insecurity.
Amongst other things, it is important for present purposes to remember the history behind making application to be appointed a silk. Given the two counsel rule, it would have been unfair to appoint a barrister a silk if that barrister had not applied.

The current institution of silk

Since the abolition of the two counsel rule, there has been a perception of accelerating decline in the standing of silk.
Silks appearing without non-silks in hearings, trials and mediations are now so commonplace that such silks are commonly mocked as “solo silks”. This seems to have little to do with the impecuniosity of the client base of those concerned. Largely, the client base of solo silks appears to be the “big end of town”, including governments. In other words, the clients in this client base are sophisticated enough to want the advantage of an advocate who has the standing of a silk, but financially stingy enough to refuse to brief the silk to lead a non-silk in the matter. In many cases this financial stinginess may be the result of other drains upon the client’s legal budget. Large law firms nowadays organise their affairs and promote their senior associates as if they were some sort of adequate substitute for non-silk counsel. Such senior associates take on the role of doing the pleadings, which normally went to non-silk counsel. This perhaps explains the decline in the quality of pleadings. It is also an explanation of some substance for the decline in the quality of advocacy, even by silks. The minds of two barristers are, as a general rule, better than one, even one assisted by a senior associate from a large law firm. By contrast, less well resourced litigants under the current system fall to be represented, as they always were, by non-silks appearing alone. Not uncommonly, against silks, mostly not leading another non-silk.
At least part of the difficulty is that the number of silks in practice which has grown as a proportion of barristers in practice. The readiness of some of those who have taken silk to appear without non-silks and to do so in lower courts and tribunals has contributed to a concentration of work in the hands of silks which is perceived to be, and most likely is, at the expense of non-silk members of the bar.
The solo silk has an unfair marketing advantage over his or her non-silk colleagues, often to the substantial financial detriment of the latter. Indeed, when viewed in the context of the whole of the legal profession, the rise of the solo silk deprives deserving and particularly inexperienced non-silks not only of court experience which they desperately lack, but even of opportunities to perform work such as pleadings. Thus there has been a general de-skilling of the Bar which was once achieved by the two-counsel rule for silks.
The rise of the solo silk is an unjustifiable, and an anti-competitive practice. It permits the charging of a premium by the solo silk for doing junior’s work and is contrary to clause 7 of the preamble to the 2004 Barristers Rules.
Moreover, objectively it has had an impact on the standard of those who practice as silk. However, the privilege of being appointed silk enables such silks to charge fees at considerably higher rates than they would have been able to charge for doing the same work, at the same standard, had they not been so appointed. They may take advantage of this privilege, subject as all barristers are to good behaviour, for life. Indeed, this is the case even if their comparative skill and learning, in a relative sense, falls behind non-silk competitors keeping up with an ever changing legal landscape. Under the two counsel rule, the market itself largely addressed these undesirable features.

The case for the re-introduction of the two counsel rule

There is a very strong case for the re-introduction of a modern two counsel rule.
In effect, it would re-introduce an objective market regulator into the process of the selection and appointment of silks.
If this was to occur, it would:
- confine consideration of those to be appointed silk to those whose practices are likely to “carry” a non silk and who will otherwise have established, in the marketplace, their possession of the qualities of silk in their professional practice;
- thereby substantially reduce the workload of the appointor and facilitate the selection process;
- restore the rank of silk to its intended status;
- redress the anti-competitive practices of those who, by taking silk, now gain an unjustifiable and considerable “marketing advantage” over their peers; and
- improve the prospects of non-silks in their practices.
It is not adequate to make this change simply by requiring the making of an aspirational statement from future applicants to appear with a junior in most proceedings. Such a commitment is so vague as to be incapable of satisfactory uniform discharge and enforcement. Further, it would give existing silks an unfair advantage. Existing silks would not be bound by any such commitment.
Nothing less than the introduction of a Barristers Rule mandating a modern two counsel rule where the non-silk being led is to be paid a reasonable and proper fee will suffice. Interstate silks will be caught by the force of the Rule should they attempt to practice in Queensland without a non-silk. Existing silks who wish to have their appointment as silk revoked under the new regime ought be given a reasonable opportunity, say some 12 months after the re-introduction of the Rule, to apply to have their appointments as silk revoked.

The case for abolition

Obviously, if the rank of silk was abolished, the problems with the protocol for the appointment of silk would correspondingly disappear.
If there is not to be meaningful re-introduction of the modern two counsel rule, there is much to be said for this option.
After all, is it not part of a competent solicitor’s duty to be sufficiently familiar with a range of counsel so as to ensure that a counsel appropriate for a given case is retained. As noted earlier, the sub-committee’s range of consultation has not extended to the solicitors’ side of the profession. However, it seems highly unlikely to the sub-committee that the solicitors’ side of the profession has so markedly declined in ability that they require a title after a barrister’s name to determine whether that barrister is suitable to be retained.
The sky does not seem to have fallen down on the administration of justice in the United States of America. There, there is no institution equivalent to silk. Nonetheless, the market for legal services in the United States seems to be able to recognise who are that nation’s best courtroom advocates.
The abolition of silk would serve to remove a growing ground of dissension amongst members of the Bar generally. Some non-silks, it is clear from many submissions made to members of the sub-committee, appear to resent silks, even regarding them as a non-deserving aristocracy at the Bar. This seems to be a change from attitudes which prevailed under the two counsel rule where there was an almost universal consensus that silks were an unquestionable meritocracy.

Selecting the appointing authority

The arrangements concerning the appointing body in Queensland are somewhat unique. Whilst the Chief Justice is the ultimate appointor, a group of five silks (“the SCCG”) submits to the Chief Justice a list of the applicants considered by the SCCG to satisfy sufficient of the criteria for appointment to be suitable for consideration for appointment. The Chief Justice, who also receives a list of all applicants, may then add or delete from the SCCG list when making the appointments of silk for the year.
In substance, but perhaps not in form, the weight which one would expect the Chief Justice to give to the SCCG list, makes it the Bar’s recommendation of those:
- to whom silk should be awarded in that year;
- to whom silk should not be awarded that year.
It is said by some that the principal strength of the current system is that the Chief Justice is the ultimate appointor of silk. It is asserted that because it is the Chief Justice who makes the appointment that necessarily confers the imprimatur not only of the Chief Justice personally, but of the court system which the Chief Justice represents. Provided the ultimate appointments of the Chief Justice reflect a strong consensus of the Bench and Bar as to who should be appointed, then this contention is quite sound. However, if this strong consensus does not exist, what was once a strength becomes very much a weakness. This is because there is under the protocal a lack of transparency in the current process at each stage. The contents of the written applications are not made public. The machinations of the SCCG are secret. The extent to which the Chief Justice finds it necessary to consult is unknown.
The application for silk has wide financial, social and personal consequences for the individuals concerned. Natural justice for adverse material taken into account for rejection of an application is not given to unsuccessful candidates. No reasons for rejection are given at any stage. There of course is no right of review. These basic procedural rights are denied to members of the Bar, but are common place where an administrative decision maker makes a decision affecting livelihood.
Serious difficulties arise when there is a difference of opinion as to the suitability of candidates between the SCCG and the Chief Justice, where some SCCG candidates put forward for appointment are rejected and where some candidates not put forward by the SCCG are appointed, giving rise considerable disquiet expressed amongst members of either the SCCG and/or the Chief Justice in their application of the protocol.
The absence of an objective market regulator on selections such as the two counsel rule in fact reduces the relevant judgments of the SCCG and the Chief Justice to the role of a highly subjective exercise. It is hardly surprising that with an increasingly large Bar excellence in advocacy, like beauty, is in the eye of the beholder.
There has been reported to members of the sub-committee a considerable lack of confidence in the SCCG. As the body which, in substance, conveys the Bar’s recommendation as to who should be appointed silk, the fact that it consists entirely of silks is a source of disquiet for many members. Particularly when candidates who are acknowledged to have good practices are excluded from their recommendation. The widespread nature of this disquiet can be seen from the fact that among members of the Bar the SCCG is frequently referred to as the PIP committee (i.e. patronage and income protection committee). This is plainly a matter where justice not only ought to be done, but be seen to be done. Coupled with the nature of the inadequate selection processes discussed below, the composition of the SCCG is inappropriate at least as a matter of perception.
The best alternative would be for the Queensland Bar Association, if it is to be a truly independent Bar, to select its own leaders. There is an argument that the Queensland Bar should ensure that its future leadership is molded by the Bar itself and not by the Bench.
Moreover, the appointing body should be the whole of the Bar Council itself, for it best represents the accumulated judgment of the Bar Association as a whole.
This is not to deny the courts a role. However, it is the minority view that that is adequately reflected by including a provision in the protocol that the Bar Council shall not appoint any applicant included in the selection committee’s final selection whose appointment the Chief Justice opposes.

The selection method

The present method encourages self promotion. An applicant who does not indulge in singing his or her “own praises” in the application form would appear to be at a considerable disadvantage. To suggest that this should not be a problem as they, by being applicants, aspire to excellence in advocacy, overlooks the fact that they aspire to be advocates on behalf of other persons. In any event, one wonders as to how reliable an outcome is achieved when it depends upon efforts at self promotion.
Such problems are not present when assessment takes place on the basis of the consideration of written references provided by members of the judiciary and opponents.
The current method of selection is still a system of promotion and rejection about which gossip plays a part. The current system of polling of some members of the suitability of candidates as reported to members of the sub-committee is an exercise of unsophisticated and sporadic polling of gossip relate to the criteria. The central feature which still renders it all gossip is that those counsel providing the information are anonymous. Even the content of the information provided is kept from the applicants’ knowledge.
Such a process is fraught with difficulties. Any close knit and competitive profession such as the Bar will inevitably lead to tensions between individuals. The assessment process itself invites other counsel to submit their personal opinions of the applicant. Increasingly, many counsel who are approached for such opinions are reluctant to respond. This gives rise to serious procedural fairness issues as the candidate is not informed of any critical adverse material that may be provided and in any event is given no opportunity to be heard. The sub-committee has heard that many of those whose views are solicited invariably feel embarrassed by participating in such a system.
There are likely to be a number of factors in the declining number of responses being received by the SCCG in their consultation process. The minority view is that one of the reasons, as expressed by some of the members consulted, is that they are reluctant to contribute to such an anonymous process of appraisal. It strikes them as lacking in transparency and procedural fairness to those applicants who are subjected to it. It is contrary to their own sense of fair play and justice as practicing barristers. They see it as a process which does not give the applicant any chance to be aware of, or defend against, any adverse comment, which may be based upon personal bias, misapprehension of facts or misinformation received from third parties.
Again, a system of written references from members of the judiciary and opponents eliminates these problems.
To say of the present selection process that it is equivalent to the selection processes for many equivalent senior professional and business positions is to misunderstand the task at hand. Applicants for those positions are applying for jobs. Applicants for silk are applying (though it comes with responsibilities) for a privilege which will confer considerable economic advantage over their peers. Moreover, there is a public interest involved in the making of each and every appointment. Accordingly, it is a decision making process which is far more akin to those types of decisions which normally attract judicial review than an essentially private decision to choose between various applicants for a job of which the appointor is the employee.
The current selection process makes it impossible to accord to each applicant natural justice. This is a particularly acute matter in respect to the criteria of integrity and will be discussed later. It also makes it impossible to give any reasons, let alone feedback. As the current President of the ABA was recently reported as remarking, surely in this day and age persons in the positions of these applicants legitimately expect and are entitled to such reasons. The failure to give reasons, let alone feedback, makes a mockery of the platitudes stated in the criteria for appointment that the system:

"Should encourage them to improve and maintain their professional qualities”.

The selection process should resemble that applying under the revised process of a QC award for England and Wales with appropriate adaptations so as to make that process conform with the other recommendations of this sub-committee.
Thus, a selection process should include:
- an application with self assessment allowing, in a non self promoting way, evidence to be provided by the applicant against published competencies;
- written references should then be taken from the judiciary and from opponents in sufficient numbers to gauge the merits of the application. These written references should become the primary material upon which the merits of the application are assessed;
- natural justice should be accorded to the applicants from the start;
- the Vice-President should prepare a responsive document in the nature of a feedback report, to be approved by Council, in respect of every failed applicant. The Vice-President should then confer with each failed applicant to discuss that feedback report. The feedback report and those discussions should remain confidential unless the applicant, within 14 days, makes a written request for full reasons for the failure of his or her application;
- upon the applicant requesting reasons for the failure of his or her application, all matters bearing upon his or her application cease to be confidential and enter the public domain;
- within a further 14 days, the Bar Council is to give its reasons for rejecting that applicant’s application;
- within 14 days of receipt of those reasons, that applicant shall be entitled to apply in writing for a review of the Bar Council’s decision to reject his or her application;
- the Bar Council and the applicant shall agree upon a retired judge to review the decision rejecting the applicant’s application as if the matter was a decision to which the Judicial Review Act 1991 applies.
Obviously, a selection process of the type recommended brings with it an increased burden in terms of time and cost not only for members of the Bar Council but also for other stakeholders such as members of the judiciary and opponents who are called upon to give written references. However, if the institution of silk is to have sufficient worth so that it is to be maintained, these burdens ought be shouldered by all concerned. In respect of the increased financial burden placed upon the Bar Council by this improved process, a number of options exist. However, there is much to be said for the proposition that those who benefit from the conferral of the privilege of silk ought collectively bear the cost of maintaining it.

Criteria for appointment: general observations

The appointment process should be tailored to identify those applicants whose “learning skill and ability” as barristers warrant their appointment as silk. The process should be to appoint to silk those persons who are “the nation’s best courtroom advocates”.
It is recommended that this will be best achieved as follows:
- the criteria be amended to identify criteria 3(a), 3(b), 3(c), 3(e), 3(f), 3(g) and 3(h) as embodying the primary criteria for appointment to be that of excellence in ability and practice as a barrister;
- criteria 3(i) be relegated to a subsidiary consideration, useful in differentiating between or amongst those who are otherwise of equal standing upon the primary criteria;
- criteria 3(d) be deleted;
- seniority ought be introduced as a criteria as a subsidiary consideration, useful in differentiating between or amongst those who are otherwise of equal standing upon the primary criteria.
The issue of integrity: criteria 3(d)
Criteria 3(d) is often not inaccurately summarised as the issue of integrity. Criteria 3(d) is as follows:

“3. …

(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.”
A considerable number of non-silks have expressed the view that they are offended by the notion that silks stand possessed of a higher degree of integrity than non-silks. They say, with some considerable force, there is but one standard of integrity for all barristers.
Criteria 3(d) bundles up¬ quite a number of attributes, but undoubtedly suffers from the fault that it suggests two standards of integrity, one applying to silks and the other applying to non-silks.
The integrity of all applicants should be presumed unless and until there has been a finding to the contrary made by some duly authorised body to do so. If proceedings have commenced before such a body and are still pending, in the sub-committee’s view the Bar Council should suspend a determination of that particular application until the duly authorised body has made its finding.
One of the greatest causes of concern among disappointed applicants, creating considerable anguish in some, is an apprehension that behind their backs their integrity has been slurred. This alteration to the protocol would allay such corrosive fears.

Response to Majority Report

Contrary to paragraphs 3 and 6 of the Majority Report, the Sub-Committee received only one written communication entirely supporting the current system. Almost universally to greater or lesser extent the stakeholders consulted desired change.
At paragraphs 7 (f) of the Majority Report reference is made to the increasing practice of solo-silks. Another telling criticism of this practice which is fed by the existing protocol is that it results in a situation where solo-silks charge litigants a premium for doing the work of a non-silk. Unless curbed this systemic flaw in the way the Bar organises its affairs has the prospect of bringing the Bar into disrepute. Valid questions have and will increasingly arise which will be difficult to honestly answer. Such as whether litigants are being over-serviced and over-charged.
The majority report’s recommendations set out at paragraph 14 represent a mere tinkering with the existing protocol insufficient to satisfy the legitimate concerns held about the protocol and the underlying institution of Silk. This minority report recommends more substantive changes in the belief that these best serve the administration of justice, the needs and interests of litigants and the legitimate interests of all members of the Bar.
One further recommendation of the majority report requires specific comment. The majority report recommends that the Council give consideration to requiring only future applicants to make an aspirational statement that they will attempt to conform with the two counsel rule or a variant thereof: see paragraphs 16 and 17 of the majority report. The aspirational statement (not even an undertaking) will place successful future applicants at a disadvantage to existing Silks. This recognition exposes the depths of the problem. The fact of the matter is too many existing Silks are not acting as leaders. Who are they leading, one may well ask, when they appear as solo silks. Why do existing Silks have the right in perpetuity to act as solo-silks. Indeed why is it that Silk is a rank awarded in perpetuity in this day and age? It is difficult to reconcile the maintenance of this entrenched and vested privilege with the Bar Council’s recent preparedness to remove the accreditation of registered mediators on failure to meet two yearly performance standards.

Conclusions and recommendations

In summary my conclusions and recommendations are:-
1. I regret that I was unable to persuade the other members of the sub-committee of many matters which stake holders had persuaded me. Although I have striven conscientiously for unanimity with the other members, (and agree with much in the sub-committee’s report) I feel duty bound to submit a minority report on some very critical differences.
2. Those who have been awarded silk see merit in the system that has rightly recognized their merit. However many of those whose applications have been rejected perceive the system to be horribly deficient. This view is also shared by many who have not been applicants. There is at the Bar a significant number of members (perhaps exceeding one hundred in number) whose applications for silk have been rejected. The lack of transparency in the decision making process that led to their rejection is the source of great angst among members and has been very damaging to the morale and collegiate spirit of the Bar. The wide-spread disquiet about the protocol among members is very internally divisive of the membership.
3. Notwithstanding the commendable hard work of the Chairperson and the conscientiousness, and careful consideration given by all members, the time reporting constraints of the sub-committee has resulted in a “rush job”. Desirable consultation with a broader group of stake-holders including litigants, government and solicitors has not taken place. The level of consultation which has taken place is necessarily qualitative, rather than quantitative in the information it has elicited. Issues which could have been resolved by further definitive inquiry, such as the true impact, if any, of restrictive trade practices legislation have received insufficient consideration.
4. I recommend the re-introduction of the two-counsel rule. Forms of this rule may and have varied. The new two-counsel rule, I recommend should be drawn as Barrister’s Rule. The new two-counsel rule should include an obligation on a silk to ensure that the non-silk he or she is leading is paid a proper fee.
5. If a return to the new two counsel rule is not considered appropriate, the institution of silk should be abolished.
6. If silk remains, then the appointing authority of silk should be the Bar Council itself with a right of veto in the Chief Justice as is the case in New South Wales.
7. In any event, the selection process should resemble that in the revised process for QC award in England and Wales, turning on written references from judges and opponents, according applicant’s natural justice, with written confidential feed back reports, written non-confidential reasons if requested by rejected applicants, and a right of review if required by applicants to a retired judge.
8. In any event, the criteria ought be changed to presume the integrity of applicants, to make service on the committee etc., and seniority subsidiary considerations and to promote all other criteria so that they bring about the selection of the Queensland’s best courtroom advocates.
Mark Plunkett
15 May 2007