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The Australian Financial Review raised legitimate questions about the NSW senior counsel appointment process, but it should not have come at the expense of the barristers it has claimed to help.
There were some issues worthy of scrutiny in The Australian Financial Review’s (AFR) 27 August article, including that a large number of successful candidates came from just four chambers. But what shocked the profession most was its decision to name the 100-odd barristers who have missed out since 2016.
One practitioner and firm head called it “grubby”, another senior lawyer said he was “incensed”, and a current silk found the article to be “entirely inappropriate”. In a notice to members, NSW Bar president Dominic Toomey SC said he had “significant concerns” and requested it be taken down “in its current form”.
In a letter to the editor, Jacob Carswell-Doherty, principal at Jake McKinley, said it left readers “with the impression these barristers are failures without ever using the word”.
“Every barrister on that list now has a searchable record of professional rejection sitting in front of the solicitors who brief them, the clients who retain them, the barristers they appear against and the judges they appear before,” he said.
Speaking to Lawyers Weekly, Carswell-Doherty said there was nothing wrong with scrutinising the NSW silk process, pointing to its lack of transparency and noting “no reasons are given, and the concentration of appointments in four chambers is a story”.
But what the AFR did was examine “the wrong people”.
“On its own thesis, the barristers it named are the ones a closed system has kept out. It left the selection committee alone, named the excluded, and then called them ‘serial applicants’, ‘weeds’ and ‘wannabe silks’,” Carswell-Doherty said.
While the original report has made the rounds – and attracted its fair share of positive reviews, even from those named in the article – the AFR has published a handful of follow-up pieces that doubled down on its decision to identify the barristers and unashamedly called out some of the more negative reactions.
In one, the AFR said naming the barristers “drew attention to [their] qualifications and achievements”. In another, it wrote that nothing could stay private “in the gossipy world of law”.
These subsequent pieces seem to have attracted as much ire as the first, with solicitors and barristers alike taking to social media platforms like LinkedIn to air their grievances.
One barrister – whose negative comments were directly quoted by the AFR legal affairs reporter – said the observations about the Bar’s practices more broadly in ensuing reports “were misinformed, self-serving and equally inappropriate”.
Carswell-Doherty expressed concern for the mental health of the named barristers: “Barristers are human beings. They have families, careers they care about and self-doubt like everyone else.”
In two of the follow-up articles – including one published sans-byline – the AFR said the information was “widely known to legal insiders”, including the 600 solicitors, barristers, and judges who take a pass at the list of applicants each year. The list is also regularly published by law journal Justinian since the 1990s.
While acknowledging this, Carswell-Doherty said there never used to be a count of any barristers’ refusal over 10 years. By compiling the tally and publishing it in the middle of a round, the AFR used information “well outside the purpose it was given for”.
In his letter to the editor, Carswell-Doherty said clause 20 of the Senior Counsel Protocol required the Bar and the selection committee destroy or de-identify everything it holds once the process has concluded and the silk announcement made.
“Gossip is not a record. The AFR made it one,” he told Lawyers Weekly.
Referring to the AFR’s point that nothing stays private, Carswell-Doherty said the idea the barristers “knew what they signed up for and should suck it up” should have been abandoned long ago.
“The Bar has been trying to leave that thinking behind. It funds a confidential counselling service, and it handles refusals in a private meeting with the president.
“The AFR has dragged it back,” Carswell-Doherty said.
The principal lawyer has demanded that the AFR remove the barristers’ names and tally figures from the article, apologise to those impacted by the publicity, and re-release its reporting.
He commended the AFR’s publication of barrister Nigel Cotman’s opinion, who wrote there has been a “culture war that has festered for more than 15 years and remains unsolved”.
Carswell-Doherty said further scrutiny does not need to identify the barristers to make a point: “If this has started a debate about how silk is awarded, good. The profession should have more of them.”
