Guest Post on QCs

October 18th, 2012 at 11:00 am by David Farrar

A guest post by :

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?

18 Responses to “Guest Post on QCs”

  1. davidp (3,864 comments) says:

    I’m baffled why the government would want to establish “ranks” of lawyers? Does it do this for any other occupational group? If so, where do I apply for a Queen’s Programmer title?

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  2. tvb (5,510 comments) says:

    I assume the legislation permits a KC rank when we have a King.

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  3. gazzmaniac (2,842 comments) says:

    Lawyers are a waste of space anyway. They’re glorified clerks.
    Laws should be simple, so that everyone can understand them.
    I did conveyancing on my own house (in QLD) and I still fail to see where the $1300 plus expenses one solicitor quoted me would have gone.

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  4. anonymouse (891 comments) says:

    @tvb, Yip sect 119B it becomes KC at the appropriate time

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  5. Aredhel777 (383 comments) says:

    Ha hahhh, this is a great idea! I’m delighted! I feel as gleeful as when they restored knighthoods. Screw the Clark government.

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  6. slightlyright (105 comments) says:

    It’s actually a rather important issue that I hoped Finlayson / Collins would look at, NZ and some states of Australia together with the US are the only legal systems where the profession is fused.

    “Fused” means that all NZ Laywers are admitted as Barristers and Solicitors of the High Court, meaning they can practice as both, they can have their certificate endorsed Barrister sole, this is on the rise and accounts for about 10-15% of Lawyers which are known as Barristers.

    In the UK etc…. Solicitors primarily do transactional type work, appear in lower courts and tribunals and prepare documents for court, (briefs).

    Barristers have rights of appearance in the superior courts (i.e. High Court and above) and give specialised advice and opinions to Solicitors. They can only act on the instruction of a solictor, (instructing solicitor) and are briefed by the Solicitor on matters which require opinion or appearance in Court (can include lower courts and often does)

    The great advantage in this is that Barristers undergo further training through pupilage (a period under supervision of a Barrister) and are specialists at court proceedings.

    The importance of this cannot be understated having barristers who are familiar with Court process intricately speeds up proceedings substantially, additionally the collegiality of the bar means Barristers can achieve settlement often through direct high level negotiation and further as independant of the client the Barrister when conferencing with the Client can give a cold hard reality check on the risks and legal merits a solicitor may not necessarily be in a position to give. There is the counter argument that Barrristers are dependant on Solicitors for work, but generally to survive as a Barrister you have to be good and its more often the Solicitors begging the Barristers to take briefs in a busy workload.

    There has been a great deal of reform but sadly this is an area overlooked.

    Additionally in UK barristers handle the indicatable (6 months or more jail) side of the criminal courts and the Crown Prosecution Service brief them for that so they too can filter merits of prosecutions in a far more removed manner.

    In NZ we could improve matters significantly if we amended rights of audience to the High Court and Indictable Criminal jurisdiction of the District and High Court to Barristers Sole,

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  7. David Garrett (10,969 comments) says:

    I agree with you Nikki. Although I have asked many people many times, I have never been given a convincing argument for the status quo ante, to which this change seeks to return. And with all due respect to you Slightly, yours is no more convincing an argument than I have heard many times.

    While the Law Society – rightly in my view – knocked the “baby barrister” phenomenon on the head a few years ago, you can still practise for three years in Otorohanga, never go to court, and then set up as a barrister in South Auckland. While it is of course a sound idea, “pupillage” has, to the best of my knowledge, never been a mandatory requirement here.

    I would leave things as they are now, will the small difference that a person elevated to the inner bar can be called a QC or SC according to his or her preference.

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  8. dime (12,985 comments) says:

    Im all for ranking lawyers and to me “qc” means – the dude you call if you go too far when roughing up a hooker 😛

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  9. tvb (5,510 comments) says:

    The rank is a subtle way the Crown can use is patronage to control the legal profession. But on balance the rank is worth having. The anyone in the awkward squad probably will not get it and that is when I get a bit twitchy about the State singling out those lawyers it prefers.

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  10. gazzmaniac (2,842 comments) says:

    In response to slightlyright:
    The way I see it is that having only barristers allowed in court and only under the instruction of a solicitor, means that a client has to pay for a barrister and a solicitor. It’s a pretty good rort for the legal profession if you ask me.

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  11. David Garrett (10,969 comments) says:

    gazz: that’s exactly as it works in the UK…one mouthpiece for the price of two…or one and a half anyway…

    tvb: Spot on…Although I am a SC in Tonga (don’t laugh, their Supreme Court is the equal of our High Court in the standard of its judgments) there is much chance of my becoming one here as being admitted to the priesthood.

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  12. dime (12,985 comments) says:

    DG – are you saying Dime should give you a call if he ever runs foul of the law?

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  13. slightlyright (105 comments) says:

    @ Gazz

    I disagree it is two for the price of one, its work e.g. hearing time that is billed irrespective

    To frame it another way, I think there is some analogy with the medical profession, Physicians do the diagnosing Surgeons do the cutting, yes a Doctor might be able to also do surgery but its probably not a good idea, its a very similiar type of concept,

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  14. gazzmaniac (2,842 comments) says:

    The problem with too many people these days is that they think they can’t do stuff themselves, when in actual fact it is possible. The Law is one of this things – I think that a civics course in fourth form would be of way more use than crap like Shakespeare. It’d let kids know how to do stuff for themselves, instead of them thinking that they have to pay a leech to do it for them.

    You might say that servicing your own vehicle isn’t a good idea, since a person not working on cars every day wouldn’t do as good a job as a professional mechanic. I’d argue the other way, by saying that the person who cares the most about your vehicle is yourself, but that you know when you’re in over your head and you need someoene else to do it.
    Ditto for legal work – the solicitor doesn’t give a crap if a sale falls through, in fact it’s probably to his advantage if it does. The client, however, gives a big crap about it. When I was at the settlement meeting at for my house, at the vendor’s bank, the vendor’s bank’s representative looked at my cheques and said that there wasn’t enough money to discharge the mortgage. I said that there had to be, and that the cheques were exactly the amount that the vendor’s solicitor asked for. But I was told I was wrong. It was the vendor’s solicitor’s first settlement (seriously) and she didn’t know shit from clay, even though she was a good looker. The representative from my bank stayed out of it. It turned out that money had been deposited in the loan account that day, and the big fat lady from the vendor’s bank had checked the balance first thing in the morning and not immediately before the settlement. If I was represented by somebody else and wasn’t there to forcefully demand that the big fat lady go and have another look at her computer (which was all the way at the other end of the bank, such a cruel and demanding person I am), the settlement wouldn’t have happened, which would have been to the detriment of the vendor and myself.
    Lawyers don’t care about their clients, they only care about rorting a simple system that they know people don’t understand.

    I’ll concede that it’s probably a good idea to pay a doctor, since it’s a bit hard to do surgery on yourself.

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  15. David Garrett (10,969 comments) says:

    Slightly: clever analogy with physicians and surgeons…ignoring of course than all physicians have at some point in their careers done surgery as part of their training…They may choose to instead become physicians for any number of reasons other than they were not very good at surgery….

    But you still have countered one of Nikki’s major points: Is the litigation partner of a major law firm who spends most of his time in court – or as much as anyone does these days – any less qualified to be a QC/SC than a barrister sole who does the same? I dont think so.

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  16. slightlyright (105 comments) says:

    David, I take your point but as you know there is an increasing trend for such partners to go the independant bar at some stage of their careers anyway bolstered by their connections at firms for isntructions and they tend to become QC’s with quite rapidly 1-3 years generally

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  17. slightlyright (105 comments) says:

    In terms of the physician side, I’m not necessarily saying they are all bad surgeons, they just have choosen where they wish to exert their skill,

    Likewise Solicitors do continue to litigate inferior courts and do have that experience, its simply barristers are wholly committed to litigation and have conduct of the superior courts exclusively in recognition of that (though many pupil barristers cut their teeth in magistrates etc… but know to survive as a Barrister they need indictable and superior court instruction)

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  18. annie (540 comments) says:

    slightlyright (69) Says:
    October 18th, 2012 at 4:15 pm

    In terms of the physician side, I’m not necessarily saying they are all bad surgeons, they just have choosen where they wish to exert their skill,

    Indeed. Not everyone enjoys plumbing and carpentering. Choice of speciality in medicine is largely a matter of personality and field of interest.

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