Blog - Commentary

Silk cut anyone?

Is the system for selecting silks fit for purpose, asks PJ Kirby QC?

Upholding traditions David Young

Applying for silk is both a lengthy and expensive process: applicants will have spent days completing a long-winded form seeking to demonstrate their competency. Many will have persuaded themselves that a trial before a judge in a parochial court is one of the "12 important cases of substance"  they need to be able to point to - but they are unlikely to convince the judging panel. Many will have struggled to think of at least eight judicial assessors that they would want to be approached for references. If the unpaid time spent filling out the form is not bad enough, these successful applicants will also have had to pay over £4,000 for the privilege - and that’s before all the money that spent on dressing up in ceremonial clothes and throwing the obligatory “thank you and look how grand I am now” party.

So is the silk system worth preserving?

Since the UK's Office of Fair Trading first questioned the QC system as a ‘quality mark’ in 2001in its wholesale review of the competitiveness (or otherwise) of the legal profession, the selection process underwent a steady process of review. Those selected this year will have been through a testing evidence-based procedure to demonstrate their capabilities,  under five headings that demonstrate the selection process evolved from its historic reliance on "patronage" to points of quality that have far more place in the modern business world:

- understanding and using the law;
- written and oral advocacy;
- working with others;
- diversity;
- and integrity.


But do these new criteria go far enough? Is the process sufficiently rigorous to be a true mark of quality? Does it match equivalent assessments and standards in other industries? Certainly it is good news that the system has developed to remove elements of patronage, whether governmental or Inn based. Those appointed this year can congratulate themselves as being recognised not only by members of the judiciary and colleagues, but also by their solicitor clients for their “excellence in advocacy in the higher courts”.

Quality mark

Some say the QC quality mark is worth retaining because clients and international business recognise it as such. However, although the silks system has come a long way from the "nod and a wink" selection method, and although we now have the five criteria against which to assess individuals, the rigour is just not the same as quality marks for other industries.

The level of excellence is not defined, nor is there any mechanism for guaranteeing continuing excellence. Whilst the market can play an effective role in recognising those who continue to demonstrate excellence, surely one of the main points of a quality mark is to protect the market in the first place! There must be a case for periodic review - although concerns about the bureaucracy of a review process and legal challenges to the removal of the title may make this unrealistic in the near future.

And does the current system reflect the way the boundaries between different roles in a legal team are changing in today's legal world? Advocacy begins long before the parties reach the court steps, so solicitors' skill in advocacy should be just as prized (yet solicitor QCs are extremely rare); also, with the growing use of commercial mediation, arbitration and other forms of Alternative Dispute Resolution, the QC mark should not be limited to recognising skill the skill of the advocate in formal court proceedings; moreover, skilful advocacy  is sometimes demonstrated by keeping clients out of court altogether.

References

So why such heavy reliance on references from judicial assessors in the selection process? Whilst it is true that the current application form does  refer to written and oral advocacy and to advocacy within mediations as well as arbitrations and court proceedings, there remains the requirement to provide a minimum of no less than eight judicial assessors. So if a lawyer is particularly successful in using advocacy skill to keep a client  out of court, he or she may be precluded from applying for silk for lack of judicial assessors. A “successful” High Court and Court of Appeal practice may be based on an unwillingness to compromise and a readiness to appeal. The process needs to give greater recognition to the importance of advocacy outside court proceedings - and so it follows that the weight given to judicial assessors needs to be reconsidered.

Lay clients input

The application process should also require input from the lay clients who hitherto have been regarded somewhat patronisingly as being unlikely to have “the requisite knowledge or standing to provide an assessment of assistance to your application.”  Each applicant has to provide between four and six client assessors.The fact that a client assessor is normally an instructing solicitor perpetuates the bias towards members of the Bar in the application process. The fact that the official guidance makes clear that lay clients will not normally be of any use as assessors reflects an outdated and patronising view of the way in which all lawyers, including barristers, conduct their business. Lay clients may be the best people to assess whether the lawyer can work as part of a team, whether he or she can convey complex matters of law in clear and understandable language and whether the lawyer understands the various needs and pressures of the lay client whose interests are being pursued.

More can be done

The silk application process has evolved in a manner that is to be welcomed, but more can be done. Increasing the recognition of ADR and including within the process the views of lay clients are two obvious improvements which would recognise the importance of the client throughout the legal process. We do not need a cut in the number of silks but we do need a process that keeps pace with the realisation that the legal profession is there for the clients and not as a means of welcoming new members to an elitist club.  

P J Kirby QC is a barrister at Hardwicke Chambers.

Posted by:

PJ
Kirby QC

31 March 2014

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