Jan 10 2012

Lifting the veil of silk

Written by Clarence Rambharat (T&T Express)

Do not believe that the Senior Counsel noise will easily lead to change. The Law Association was pushed here before and nothing came out of it. The AG may wish to provide the data to show whether taxpayers are the ones paying out the bulk of fees earned by senior counsel and their juniors. That may answer the question of why the legal profession has, despite many urgings and Commonwealth precedent, failed to resolve the antiquity of the appointment of silk and the political control of it. What we may find out is that it is not the Senior Counsel earning the oversized fees but the juniors whose selection is entirely a matter of politics.

The Senior Counsel issue jolted former chief justices and eminent seniors but found the Law Association asleep: at best the Association was scheduled to meet one week later in emergency session.

The Law Association’s flat-footedness on the senior counsel issue brought to mind then Chief Justice Sharma’s speech at the opening of the 2003 law term. Sharma cited the work of writer John Mortimer and “a general decrease in the awe and wonder with which the population looks at its established institutions”. If, as people believe, the country has been set upon by pessimists, cynics and doomsayers, many of them have just cause. When a country’s legal profession equivocates while the reasonable man takes the fight to the politicians, what else is left to fall apart?

An important question to be asked is whether clients should pay the increased fees senior counsel are allowed to charge and the two-thirds of seniors’ fees charged by the juniors they are required to use. At the heart of our problem may be that the antiquities of the Senior Counsel title have made litigation expensive and this is not an issue the Law Association wishes to address with any urgency.

The solution is not to fix the process of appointment but challenge the need to confer the title and fee-earning power in the first place. The State has generated the most involved and complex litigation and legal work in the past 25 years. While the pool of Senior Counsel has been small, the pool of juniors commanding high fees from the State has broadened to include a range of experience, quality and areas of specialty.

But invariably, selection of juniors from that pool is heavily political and changes in government have led to changes in the fortunes of juniors.

So while attention is fixed on the appointment of Senior Counsel, the real action is in the selection of juniors who work with “seniors” for the State and earn two-thirds of the seniors’ fee. The public debate must be widened to the combination of political control of litigation and legal work, political control of the appointment of Senior Counsel, political selection of juniors to work with senior counsel for the State and the payment of increased fees to both categories of lawyers.

In that speech at the opening of the 2003 law term, Sharma reopened the Senior Counsel debate in this way. The UK had just started its review of the process for the appointment of Queen’s Counsel. Sharma remarked that “ever since we can remember, the gift of Senior Counsel was always in the Executive. Whatever the reasons, they are not necessary to find out or to rehearse, for it is now clear that in modern constitutional thinking and jurisprudence there can be no justification for politicians making the appointments.”

Sharma then said, “the fact that such an appointment should reside in the hands of politicians can be disconcerting as even a beneficiary might not be sure whether his appointment as Senior Counsel was on the basis of political patronage or merit. I, therefore, invite the leaders of the various legal associations to join with me in seeking to have this anomaly put right. The independence of the bar and, in turn, the independence of the judiciary requires that no politician should be involved in the appointment of Senior Counsel.”

The Law Association, through its then-president Karl Hudson-Phillips QC, responded to Sharma’s comments but eight years later the Association has not resolved even the narrowest elements of the debate.

Now the Senior Counsel debate has turned into a re-enactment of old class, political and North-South disputes. And the Law Association has a responsibility to retreat from this debate and re-examine itself. It is remarkable that from the outset the Association’s name was shoved forward as having been consulted prior to the recent appointments. The Association took more than a week to deny such consultation.

Keep in mind that this is a society, grown distrustful, not by choice but through a barrage of letdowns by people and institutions it has granted high esteem. Public confidence has been weakened not by distrust; distrust has developed through a weakening of institutions and people. Too many exemplars equivocate and too many have become dependent on collateral matters of politics, ethnicity and position in order to formulate opinion.

It seems inevitable that as a self-regulated profession lawyers must resolve the matter and there must be a balance between the profession and the public interest. Matters of fees must be resolved by market forces and the other factors directly relevant to the case at hand. In 2003 Sharma concluded his reference to the appointment of “silk” by pointing out that in the UK “there was some strong criticism from both professionals and members of the public in England who criticised it as being archaic and outmoded and was really seen as ‘a licence to print money'”. No one should be handed a licence to charge for historical factors, irrelevant to the client and the matter of junior’s two-thirds appears to be more urgent than the recognition of eminence.

• Clarence Rambharat is a lawyer and university lecturer

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