Question for Lawyer Dopers in other Commonwealth jurisdictions: Do you still have lawyers appointed to the dignity of Queen’s Counsel? If so, is it mainly symbolic, or does it have actual application to the types of cases handled? Does it have partisan political links, or is it more aimed at standing in the profession?
For example, here in Saskatchewan, we still have the position of Queen’s Counsel, but mainly to recognize standing in the profession, with a screening mechanism to keep the appointments on a non-partisan basis. Generally, Q.C.'s are senior counsel, but there’s no expectation that a Q.C. is required for a certain type of case. A non-Q.C. could handle a murder case, for example.
How fortuitous. There’s an article in the latest Law Society Journal (NSW) that discusses this issue. Across Australian jurisdictions:
the title is Senior Counsel (SC) in NSW, VIC, QLD, WA, TAS and ACT;
the title is Queen’s Counsel (QC) in SA and NT.
I don’t practise law (yet!) so I can only give the impression of a recent graduate. It’s my understanding that the award of SC or QC is, in theory, a recognition of eminence in the practice of law at the bar and is supposed to be non-partisan. SCs and QCs can still take on any type of case although I suspect that they tend to be found more often appearing in commercial litigation at the big end of town. Certainly there’s a lot of prestige attached, but the chief practical outcome is simply that SCs and QCs can increase their fees significantly on taking silk.
And there’s the related question: Are there any KC’s (King’s Counsel) left? They would have had to have taken silk more than 55 years ago, so they may have all did out.
My wife’s a barrister. She sometimes works as a Junior to a QC or SC. All new ones are SCs. QCs may become SCs if they so choose. Some do, some don’t - most who do are Labor-leaning. There is always a degree of rumbling about who is made silk, but the process is not partisan. But it’s clubby - there’s nothing to stop a solicitor being made a SC, but they keep on not quite making it.
SCs are customarily more expensive than ordinary members of the Bar. Custom is very important at the Bar - it is, after all, really only custom that separates barristers from solicitors (at least here). It is not unheard of for an eminent barrister to decline silk because they think it would be unprofitable to charge the customary fee and against tradition not to charge it.
As for work, it varies. Some SCs are simply great lawyers and take a very junior barrister along as junior in a case essentially as mentoring at the client’s expense (in the best traditions of the Bar). In other cases, the silk is merely a flashy front to appease a client who wants to spend a lot on representation for appearances sake. My wife has on occasion worked with silks whose involvement in the case was just to stand up and read her submissions and ask her questions. Sometimes this means the silk is just a front, sometimes it means they are bloody good at that bit of the gig. Another case is where a silk delegates (say) the planning part of a property case to a competent junior.
As to Giles’ question, I think that KCs would have become QCs at the time of King’s croaking. Whether there are any QCs remaining who were once KCs I dunno. The oldest QC of my acquaintance was born in 1924 and took silk in 1969.
As you probably know, Northern Piper, Alberta has QCs. They seem to be non-partisan and mainly to recognize standing in the profession, like in Saskatchewan.
I also know that Ontario doesn’t have them any more. But when Ontario did have them, I believe that it was also non-partisan and mainly to recognize standing in the profession.
I know the practise here in Saskatchewan was that the King’s Counsel switched to Queen’s Counsel upon the accession of the Queen. At common law, appointments to Crown offices all lapsed upon the death of the monarch, and they had to be re-appointed. Now, statutes normally provide that the holder of the office continues in officer despite the demise of the Crown, so they became Queen’s Counsel.
The bar isn’t separated in Canada. Any lawyer can appear in court, draft pleadings, and exercise whatever legal function he or she choose.
Technically, in Saskatchewan all members of the bar are both barristers and solicitors - that was the legal language used in the statute to ensure a merged profession.
I don’t know how many of the bar in total are Queen’s Counsel, but some idea is given by the comparision of the total size of the bar to the number of annual appointments.
In Saskatchewan, the Law Society’s 2006 Annual Report [pdf] shows there were 1,514 active members.
Those numbers are both about normal, so it means that each year, about 1% of the bar are appointed Queen’s Counsel.
The qualifications are set out in ss. 2 and 3 of The Queen’s Counsel Act. The appointee must be a member of the Law Socieity of Saskatchewan, resident in the Province, who has been called to the bar in Canada, Great Britain and Ireland.
The same thing happened in Victoria (Australia) but it has failed in its practical effect. All lawyers are barristers and solicitors but barristers in signing the Bar Roll say they will not practice as solicitors. So far that has been more than sufficient to maintain the distinction.
I suppose that technically I was admitted to the New York bar as both an Attorney and Counsellor at Law, which was the former (very former) distinction between lawyers that did not appear in the courts and those that did.
Hawthorne, does that mean that solicitors will practice as both, or do the barristers effectively keep them out of court?
On 4 October 2007 the NSW Bar Association announced the names of those barristers newly appointed Senior Counsel. The announcement included the following statistics:
Solicitors don’t practice as both. They don’t usually try to. They simply don’t see it as their skillset. If they did, they could with minimal effort become barristers.
There are some solicitor advocates. They don’t get “frozen out” AFAICT, although they do lack access to the collegiate vibe of the Bar.
It’s not costless to go to the Bar - there’s the Bar Reader’s course, during which you basically can’t earn money for several months.
A few examples of non barristers doing mainly appearance work:
Peter Faris QC has fallen out with the Bar and left it a couple of times - first over the Bar Council’s then monopoly over renting chambers; and last week over the Bar Ethics Committee’s investigation of him due to his unsubstantiated claims that lots of barristers are druggies.
A guy I know who is a top specialist in an area of property law. A firm he was a partner in went bust due to some naughtiness and he was left with a big slice of the debt. He makes good money and couldn’t afford to go to the Bar for a while, and now it doesn’t matter to him. He appears (as most civil lawyers do) mostly in tribunals, where no-one robes anyway.
Some senior criminal advocates (eg the late Frank Galbally) like to run the whole show or have people they know run the process from start to finish. Part of the deal of being a barrister is that you often come to a case very late in the piece and you can’t choose your clients (the cab rank rule). You also cannot be in a partnership. This can be inconvenient - you can lack good support, be left with badly thought out briefs or loser clients. Being from a firm of solicitors can fix these things.