Guest Post on QCs

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New Queen’s Counsel Law: Taking Us Back to the Dark Ages?

In 2006, the Lawyers and Conveyancers Act replaced the title Queen’s Counsel () with Senior Counsel (SC).  This followed Australia’s republicanising example, where only the Northern Territory has yet to change from to SC.  The 2006 change also made lawyers in firms eligible and purported to make the selection process more transparent. 

SCs are appointed for being “learned in the law”.  They are leaders in the legal profession and set standards of excellence for junior lawyers to meet.  Consumers (and other lawyers) rely on the SC “brand” as a sign of excellence and will pay a premium to use their services.  No one is legally obliged to use SCs so we can assume that this premium measures the economic value of the quality assurance function that the SC brand serves.

The Lawyers and Conveyancers (Amendment) Bill (now in Committee stage), would restore the title of QC and again confine eligibility to barristers sole (not practising in firms) 

Like knighthoods, reinstating QC is a deliberate positioning away from the pro-republican Clark Government.  Constricting the pool of eligible candidates is less understandable and diminishes the value of the branding process to users. 

Well over 100 years ago, the legal profession was freed from the UK segregation of solicitors and their work from barristers and their work.  Late last century, the UK finally caught up.  Any lawyer can now appear in court and be appointed QC. 

With our fused profession though some lawyers choose to be barristers sole, all practising lawyers can appear in all the courts and lead cases, large and small.  Some of our top civil litigators work in law firms.  Crown solicitors – who typically prosecute the largest and most complex criminal cases – are all partners in law firms.  Many busy regional courts are serviced primarily by lawyers in law firms.  Yet, regardless of their skills, experience, judgement, integrity and leadership and never mind the respect in which they are held by judges and the profession, the law change will deem these litigators as unsuitable for the QC rank. 

So why does the Government support such a protectionist measure?  Apparently, because it is “the best way of protecting the traditionally independent status of the rank”.  However, one of the fundamental obligations of all lawyers, not just barristers, is to be independent and free from compromising influences or loyalties when providing services to clients.  The Lawyers’ Code of Conduct devotes an entire chapter to this ethical requirement.  If lawyers practising as barristers and solicitors were inherently less independent than barristers sole, then the courts should restrict the rights of audience.  But they don’t – because there is simply no evidence that lawyers with work colleagues are less suitable for court work than those who choose to work alone. 

Labour has vowed to repeal the changes when next in Government.  But that alone is not a reason for the Government to stand its ground.  The debate over who can be appointed to the rank is not a right/left split nor does it follow traditional party lines. 

This measure is anti-competitive and anachronistic.  It will recreate an artificial divide amongst litigators without any relationship to the quality of legal services.  It flies in the face of the consumer-protection purpose of the LC Act.  Let’s hope that the Government reconsiders the wisdom of such a retrograde law change before the Bill’s next reading.

I’m all fine with going back to QCs, as no one knew what an SC was. We can change the term when we no longer have a Queen. But like Nikki I am puzzled a to why we would restrict the office to sole barristers. If it is meant to be a mark of experience and quality, then why discriminate against partners in law firms that qualify?

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