The Silk Road

The QC appointments system is back – but not as we know it. The criteria now include a political correctness test and a need for advocacy experience that most commercial barristers lack. By Matheu Swallow

Despite a 20 per cent drop in pupillages and the greater security, structured career progression and sheer number of job opportunities on the solicitors’ side of the profession, the allure of the bar remains as strong as ever.

Law firms are even facing greater competition from the bar for the best candidates, with chambers no longer shackled by recruiting later than solicitors. The leading commercial sets can also offer better remuneration packages than even the magic circle firms.

And while the life of a barrister no longer revolves solely around the courtroom (most commercial ‘advocacy’ today is paper-based), the ultimate pinnacle of a barrister’s professional achievement continues to be two little letters: QC.

Yes, the status symbol – or quality mark, depending on your point of view – is back. After almost two years, and notwithstanding an expected logjam of applicants and a myriad of associated process problems, barristers can again apply to become Queen’s Counsel.

But this is a much-changed system. Secret soundings from friendly judges have been replaced by a transparent appointments panel led by former High Court Family Division head Dame Elizabeth Butler-Sloss. It will pass its critical eye over applicants, applying a rigorous and defined set of criteria.

When released earlier this year, the ‘competency framework’ for aspiring QCs caused quite a stir. One existing silk, echoing the views of many of his colleagues, said: “I wouldn’t stand a chance of meeting these new criteria.”

The document laying down the new criteria was produced by the Department for Constitutional Affairs, the Law Society and the Bar Council, and divides the framework into four headings: ‘Integrity’, ‘Identifying Arguments’, ‘Presenting Arguments’ and ‘Working with Client and Team’, which must be “demonstrated to a standard of excellence”.

The ‘integrity’ requirements amount to a political correctness test. Aspiring silks must be able to demonstrate “an understanding of diversity and cultural issues”, show they are “aware of their own limitations” and be able to “motivate, listen to and work with other members of the team”. Candidates must also be “honest and straightforward in their professional dealings with all parties”, which includes being candid with clients. They must have “expert knowledge and use it relevantly” and be able to “gain a rapid, incisive overview of complex material and identify the course of action that will produce the best outcome for the client”; they must “communicate a case in a persuasive manner to achieve the best outcome for the client” and “rapidly assimilate the implications of new evidence and respond appropriately”, establishing a productive working relationship with the client.

Although the emphasis on diversity will raise eyebrows at the bar, many barristers also expressed fears that the conditions of advocacy experience will be impossible for most candidates to satisfy, let alone solicitors.

One senior commercial junior on the cusp of silk argues that it is virtually impossible for him and his peers at the commercial bar to gain the requisite advocacy experience, as most have a heavy, paper-based practice and in major complex cases will always be led.

Some account will be taken of written advocacy skills, such as the production of skeleton arguments, but these are also signed off by a leader. The only time juniors will get to their feet in court will be for interlocutory hearings (eg on disclosure, injunctions and summary judgment applications), but there is some doubt as to whether these will be categorised as a matter of substance or complexity for the purposes of assessment.3/4 South Square’s Robin Knowles QC, who with William Blair QC of 3 Verulam Buildings has led the bar’s negotiations on silk reform, is adamant that the new QC status will still mark excellence in advocacy. “This mark is not about expanding the criteria for eligibility of QC,” says Knowles. “The focus is on quality rather than quantity. An excellent advocate is a candidate for the award whether he or she has a large advocacy practice or is a less frequent advocate.”

However, Knowles does reveal that this is not the end of the line for quality marks, and that others are under consideration. “Looking ahead, there’s potential for other marks to be developed that will signify a level of achievement in other areas of legal endeavour,” he says.

Another fear of some barristers is the implication of the selection panel seeking references from clients. They fear that seeking client references will undermine this independence and affect how a barrister runs a case if it is driven by a desire to get a good review. Others fear that they will be forced to breach client confidentiality to provide evidence of professional integrity, but Knowles is confident that this will not be the case.

He also points to the motives for reform. Im particularly pleased with the recognition that this is all about serving the public interest by offering a fair and transparent means of identifying excellence in advocacy in the higher courts, he says.
A little independence, then, may well be the price of a quality mark that the public believes in.