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The Empire strikes back

The Empire strikes back

The majestic return of the Queen’s Counsel title to two Australian states raises real questions about the underlying motives of those pushing for the change, writes Greg Barns.

The majestic return of the Queen’s Counsel title to two Australian states raises real questions about the underlying motives of those pushing for the change, writes Greg Barns.

The image of the legal profession has never been particularly stellar and right at the moment some in this industry are busy kicking own goals.  The issue that is vexing barristers in Victoria, Queensland and New South Wales is whether they want to be called ‘Queen’s Counsel’ or ‘Senior Counsel.’

‘Who cares’ is what the average user of legal services would say and they would be right, despite some bizarre arguments being put to the contrary by those silks who favour reverting to the colonial relic of QC.

In fact, it is time the legal industry in Australia looked to abolishing the institution of senior counsel. It is elitist, anachronistic and in economic terms makes no sense.

But if that is a bridge too far for this most conservative of industries then at least stop the cringing reversion to QC, a movement started by Jarrod Bleijie, the painfully reactionary Queensland Attorney-General who has now been followed by another conservative, Victorian Attorney-General Robert Clark. 

Australian governments rightly decided over a decade ago that there was no longer any need to tug the forelock to the British monarch, and so we should adopt the Irish system of senior counsel. 

Unfortunately some barristers for a variety of reasons – one suspects chiefly love of the British monarchy, snobbery and perceived status – wanted to hang on to the British tradition. And they have found some political friends in Queensland, Victoria and likely New South Wales.

In order to hide the real reasons for their love of the QC title they are dressing the issue up as one of branding. 

The argument runs like this: in the Asia Pacific legal services market, QC is a well-known brand and associated with legal excellence. SC, it is said, is confusing to legal services consumers.

This is arrant nonsense and there is not a scrap of empirical data to back up this claim.  Take American lawyers. Unlike this little outpost of the UK, the Americans don’t feel the need to wear 18th century costumes in court and call themselves SC or QC. A lawyer is a lawyer.

This does not stop American lawyers doing very nicely in the Asian legal services market.  American lawyers practice in Singapore, Hong Kong and other Asian financial centres. 

Then there is the issue of Irish silks. Again, unlike Australia, Ireland does not fear cutting its apron strings from the UK.  It has had SCs for many years. Is it seriously suggested that Irish silks fare less well in the European Union as opposed to their English counterparts who carry the QC title?

It is time that the Victorian and Queensland Bars, both of which have been eager participants in winding back the clock to re-adopt the QC title, levelled with the community. It is pure and simple elitism to allow barristers to adopt a title which is associated by the community with wealth and prestige.

Silly silks

The whole cringe-worthy exercise brings one to ask this question – why not abolish silks?

Name one other industry where a business can put up its charges on the back of obtaining two letters? If you take silk there is an expectation your fees rise and that you are better than any ‘junior’ barrister – another anachronistic term with its English public school connotations.

The appointment process of silks is opaque at best and depends on word of mouth.  There is no way that the consumer of legal services knows whether it, or he or she is getting value for money in engaging a silk as opposed to a barrister who doesn’t have the magic letters after his or her name.

It is not like the market for cars, where the consumer can read reviews of particular brands’ look and fuel consumption and determine a real value-for-money equation. Nor is it like other industries where exams and peer-reviewed publications and practice can signal to the market that a particular individual provides a superior service.

Finally, the QC/SC office is anathema to true equality before the law. Why should any advocate be favoured over another when it comes to appearing before a court?  Shouldn’t all lawyers, irrespective of age and sense of self importance, be treated equally by the courts?

Even if we will not do the right thing by costumers and democracy by abolishing silks, can Australian lawyers not succumb to the arch conservatism of politicians who love the idea of the Queen of England being heart and centre of a country that is 12,000 kilometres away? 

Barristers who seek to justify why they are returning to a colonial title tell us the real reason, because it ain’t economics.

 

Greg Barns is a barrister in Tasmania with chambers in Hobart and Melbourne. He is a former president of the Australian Lawyers Alliance

 

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The Empire strikes back
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