Friday, October 10, 2014

The smouldering saga of Queen's Counsel

Today I received a missive through the DX commending and enclosing what was described as an “excellent” article supporting the case for the reintroduction of Queen’s Counsel.  Such is the enthusiasm of the sender of this article that rather than waste their letterhead they simply photocopied a form letter to their “Dear Colleague”. But I digress.
The “excellent article” appeared in the May 2013 edition of Quadrant, and is so full of spurious conjecture that it cannot be allowed to go unchallenged, having been disinterred for the purposes of the debate now smouldering in NSW.
It begins with the unreferenced assertion that “most lay people in Australia do not know what an SC is.” Let’s assume for one moment that is so (has there been a survey?) it really begs a number of questions.  Do most lay people know what a QC is? Does it matter what lay people think given that, in practical terms, the decision who to brief is substantially made by non-lay people who do know what an SC is? To the extent lay people are choosing a barrister, would it make a difference to their decision if they had it explained to them what an SC is?
There is then the hubris of invoking the “globalisation of law”.  Such recognised experts as the Reverend Fred Nile are quoted as authority for the difficulty Australian senior counsel will have in being chosen to oppose a British Barrister in Singapore if they have SC rather than QC after their name? 
The “legal export industry” of England is then invoked. Somehow calling senior counsel SC rather than QC will impede Australia from becoming “lawyer to the region” in the way that England is “lawyer to the world”.  There are surely much larger impediments to Australia fulfilling that function:  the regular invocation of English law as the law governing contracts and disputes has nothing to do with the choice of post-nominals, but it is the significant reason why major Asian commercial disputes will continue to be fought out by those schooled in English law.  The fact that most of these combatants will have some existing connection to lawyers and advisors in Singapore and Hong Kong is another major structural impediment to the export of Australian legal service into the Asian market. Even the fact that the Singapore International Arbitration Centre has its own smartphone app must be much more of an impediment to Australia attracting legal work than the fact that our post-nominals do not include a royal reference.
It is then acknowledged that a change to QC will not result in Australia being chosen as a seat of arbitration more often than Singapore.  But it is then asserted that it will help “by indicating an understanding of what the international legal market wants and a maturity and level of engagement with that market.”  One wonders how all of the American and European arbitration advocates ever managed to get any work without QC (or SC, or anything else for that matter) after their names.  And one might be forgiven for thinking that actual engagement in the market rather that (post) nominal lip-service might be a much more important factor in a decision about who to brief as advocate, or who to appoint as arbitrator.

Let’s be clear.  The sort of work that is being promoted as a justification for replacing SC with QC is work that is conducted by sophisticated law firms, on behalf of sophisticated clients.  In the absence of some hard evidence (not idle speculation from Fred Nile or Jarrod Bleijie) that barristers with suitable reputation and eminence are missing out on work because they are SC rather than QC, let sleeping dogs lie.

1 comment:

  1. Well said. Clutching for the past doesn't improve anything. Surprised that so many counsel in NSW want to slavishly follow the lead of the Queenslanders.