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Why it’s time to scrap the QC title

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Justice Secretary Chris Grayling doled out nearly 100 awards yesterday — but wouldn’t it be better to let the market decide on the top lawyers?

QCs

The last few weeks will have been Bolly-tastic down the cutting rooms of a shop that likes to bill itself as London’s oldest tailors.

The run-up to the annual QC ceremony means that all leave is cancelled at outfitters-to-the-legal-stars — Ede & Ravenscroft — as breeches are cut, black stockings wrapped in tissue paper and ribbon and patent leather shoes polished to a military shine.

We English do ceremony so very well — just ask any American, Japanese or even Frenchman kicking their heels on a cold February morning outside Buck House waiting for a guardsman to jeopardise his career by skipping about on the forecourt.

And yesterday it was the turn of the legal profession to take centre stage in the national pageantry as 93 practising lawyers bagged the coveted title of Queen’s Counsel, while four academics, a solicitor and a Ministry of Defence barrister were handed honorary awards.

But does anyone really care? Apart that is from the 99 individuals themselves, their loving families and doubtless their pets and horses. Is the QC title nothing more than professional vanity, with little — if any — practical relevance in either the business world or the cut and thrust of the criminal and public law courts?

A dozen years ago, the process of awarding silk was in disarray. In 2003, then-Lord Chancellor, Derry Irvine, suspended the following year’s appointment round amid a tidal wave of concern that the system was a not-so-thinly-veiled old-boys’ network of patronage.

The process was overhauled — with the creation of a supposedly independent quango, QC Appointments — and the silk road reopened in 2006.

But enthusiasm for the title — even among the legal profession — seems to have waned. This year, there were 50% fewer applications for silk than in 2006.

Why? Perhaps lawyers themselves are coming round to the view that the title is an outmoded trinket that is in some cases more of a millstone.

When defending the QC rank, the Bar Council invokes arguments around the practical usefulness of a quality mark for senior players in the profession. This, it maintains, is helpful for punters, providing them with an easily-recongisable badge of distinction in what would otherwise be an amorphous mass of advocates. The bar hierarchy also draws comparisons with the medical profession and the rank of consultant.

Frankly, that’s nonsense. Medics work in an environment where skills are far more measurable — and what’s more, they can kill patients when things go wrong. So if they fancy a flattering title after slogging it out for years doing 48-hour hospital shifts, who’s complaining?

But lawyers? Many a client might claim to have been driven to contemplate suicide after reading a long-winded and jargon-ridden advice letter or sitting through a tedious conference, but generally punters’ lives are not in the hands of their lawyers.

So why should they among all other professions be afforded the special treatment of what — despite efforts to make the appointments system more transparent — is still more or less a subjective award process?

There are no Queen’s Accountants, Queen’s Architects, Queen’s Cabbies, or, heaven forbid, Queen’s Journalists.

Surely the market should decide on the issue of who are the top performers. And indeed, outside of the rarified ranks of the commercial bar, many practising advocates view the rank of silk as more of a hindrance than a help, undoubtedly explaining why applications have nosedived.

By convention, newly-made up silks are expected to boost their fees. But in a tight and highly competitive market, doing so can kill a practice. Why should clients pay 20% to 30% more for a freshly minted silk, when they could get an equally good senior junior?

Other common law jurisdictions — Australia, New Zealand, Canada and even Ireland — maintain the varying incarnations of the QC badge or its watered down equivalent of senior counsel.

But typically, the US — the biggest common law profession — stands rigidly by a market forces approach. If an advocate is good enough, the clients will come, they will pay top dollar, regardless of whether the lawyer has worn black breeches and a full-bottomed wig for a day before kneeling before a former television producer.

Notably, there isn’t a branch of Ede & Ravenscroft on Fifth Avenue.

25 Comments

Not Amused

It has been severely impacted by the new appointment system (as has the judiciary). The old system worked fine. The new system demonstrably doesn’t work and costs £6,000 (half price if you fail is hardly an incentive).

Maybe if the whole thing hadn’t been turned in to a bureaucratic exercise everything would be better. Maybe if it wasn’t viewed, like everything else, as an opportunity to create off balance sheet public sector workers. Maybe if it was about being good at law rather than stupid random categories and impressing some spoilt lay members. Maybe if they didn’t pay the secretary of the appointments committee £75k (and no doubt give them underlings). Maybe if they didn’t politically load the thing. Maybe if the whole merry go round of quangos* and shady cushy jobs wasn’t just a gravy train for the select few. Maybe if they didn’t make candidates swear on their children’s lives to read the Guardian henceforth. Maybe if …

Maybe if the people who ran us were competent we wouldn’t all be so unhappy.

*I enjoy how the spell check wishes to change quango to guano. This made me smile.

(16)(8)

Not Amused

Oh and, while I rant, yes it is demeaning to see them stuffing their faces with burgers while wearing the costume.

We used to have rules about this. We used to have Jennifer Saunders mocking old people who refused to act with dignity. Now we have QCs behaving like kids. Thanks modernity… That chap from Hardwicke started it all and it’s been getting worse since then.

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Anonymous

Is this the same person as used to post as Occupy the Inns?

(9)(0)

dave

The condescending tone is definitely Occupy the Inns, although if it is, he has toned it down quite a bit

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Dave

what on earth is wrong with them eating burgers? Seriously, get a life and remove that stick from your backside.

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Not Amused

If it’s any consolation, I won’t be listened to.

So next year you can look forward to the next thrilling instalment of ‘middle aged person in a wig doing something stupid’ without fear of us living in a world with dignity and self respect.

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Dave

Since when was eating a burger, or getting the tube, “doing something stupid”?

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Mike

The statistics don’t really suggest that “enthusiasm for the title — even among the legal profession — seems to have waned. This year, there were 50% fewer applications for silk than in 2006.”

Obviously there are fewer applicants this year compared to 2006 – that year had the ‘class of 2004’ and ‘class of 2005’ (when no appointments were made) to add to the potential applicants. Looking at recent years when competitions have returned to being held annually however, the figures are:

2015 – 224 applicants
2014 – 225 applicants
2013 – 183 applicants
2012 – 214 applicants

Doesn’t suggest a terribly large drop in enthusiasm in recent years.

(26)(0)

Dave

Is it just me or was the appointments day a lot earlier this year than last? I was sure it was in March or April but maybe I’m wrong.

On the main question, I like the system. the tradition exudes confidence and like or not does act as a kitemark for quality.

However, the appointments process itself is a laughable farce. They cannot justify the vast expense, which serves only the deter people from applying (particularly from lower earning areas). It is also a but of a stitch up in terms of who gets it. It also lays bare the truth about the bar – that the top QC-making work itself is largely shared among a few select sets, entry to which is clouded by a mist of nepotism and old boys networks. Despite protestations to the contrary.

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Eric

This John Hack fellow must be a septic. More “everything is better on the other side of the pond” nonsense thumbed in amongst assertion without justification. Kindly do one.

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Anonymous

He did say “We English do ceremony so very well” – but this of course overlooks the other parts of the UK – ignorance of geography is an American stereotype!

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Abc

Good grief! QCs smiling and eating on a very proud day of their careers …. Alert the church elders! What a privilege it is to live in a country where somebody could call that ‘indignity’ and keep a straight face.

(7)(0)

DefenceBrief

After reading this, I’m none too sure exactly what the criticism of the QC rank is.

I’m also left bemused by the refutation of the comparison between Consultants and QCs. While the consultant neurosurgeon who operated on me a couple of years ago almost certainly saves many lives every year, the consultant at the local rehab hospital probably saves no lives each year, although he may well improve an awful lot of them. If you don’t think that a QC who saves a 17-year-old wrongly accused of murder from a life sentence hasn’t done an awful lot of good in that young person’s life then I’m not sure what you do think he or she is doing.

Even though much of my work is to do with motoring offences, I still get a number of clients who will ask for a QC to represent them… although admittedly they all change their minds when they hear the costs!

I think that to suggest that the rank of QC does nothing to sell the English and Welsh legal system to litigation tourists (which seems to be the people our current Lord Chancellor is most interest in) strikes me as an extremely naive and out of touch view point.

(12)(0)

Anonymous

‘There are no Queen’s Accountants, Queen’s Architects, Queen’s Cabbies, or, heaven forbid, Queen’s Journalists.’

Inappropriate comparators. None of those are referral professions in the way the bar is. None has a specialism analogous to advocacy. The comparison to surgeons is more apt (high degree of specialism, expertise in a particular skill at the sharp end of practice) but the conclusion that they are so easily distinguishable is wrong (and unsupported by any evidence).

Moreover, the article fails to establish that there is anything wrong with the silk system per se in terms of silk being handed out too easily or clients’ interests being put at risk. It simply suggests that the current system is counter-intuitive and that the market would be a better barometer. Perhaps. Perhaps not though. James Murdoch’s faith in the market being the only guarantor of an independent free press was wrong-headed. And citing our American cousins does not really support the argument. Often it will be the person with the best PR (rather than the best skill set) who wins the business. In that sense, the author is suggesting replacing one set of problems with another.

Conclusion – the article is clickbait pish and I have nibbled.

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Not Amused

I think you’ve built up a utopia in your head that doesn’t reflect reality.

The market already decides on silks. There is a minimum earning level and you have to do X number of high court stuff. In most fields that means trials and in most fields that means you are a defacto high earner/successful at PR.

In addition to that there is the ridiculous charade that is the application process. I don’t think it’s fair for you to criticise the article when you don’t appear to have grasped that.

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Anonymous

I haven’t built up a utopia. The article made a number of unsubstantiated points that I said were bobbins. I didn’t defend the current system in all its glory. I think the fees are ridiculous. I just said the article was pretty hollow, didn’t really identify any substantial defects and its proposed solution was also crap.

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Anonymous

Why should the title Queens Counsel be justified? Not only are the candidates 15 + years call they have undergone a rigorous application process and have proved their worth.

Why shouldnt self employed barristers have the opportunity of promotion?

I have known solicitors to achieve associate status within 4 years of qualifying and will happily tred on anyone’s toes to obtain the title and no one batters an eyelid.

The title of Queens Counsel is achieved by hard work and determination and is well deserved in my opinion …… Burgers or no burgers!!

(5)(0)

Anonymous

Royal warrants are the lay equivalent of QC.

(3)(0)

Barry McG

CHRIST this article is annoying and shit.

What the fuck is the blog supposed to be? All it does is post boring, whining, out-dated PC diatribes, and occasionally try and ruin some poor young lawyer’s career for some minor indiscretion. Oh – and post DEEPLY UNFUNNY and/or sinde pictures taking by bored students.

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Barry McG

*this blog, *snide, and *taken, obviously. Too irritated to type properly.

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Rufus Obscurus

“But typically, the US — the biggest common law profession — stands rigidly by a market forces approach.”

Absolutely. A dogmatic adherence to the fallible economic model of free market capitalism is a reason to ignore the Scottish, Irish, the Australian, the South African, the New Zealand, the Hong Kong bars, not to mention our own traditional way of denoting seniority and competence and advocacy. International doesn’t just mean “the US,” y’know. Even if it did, I’m not sure your fearless championing of truth, justice and the American way understands the difference between our Bar and theirs.

Firstly, look at the peculiar array of titles that US lawyers think up for themselves to denote seniority short of having a stake in the firm: “Senior Associate,” “‘Of Counsel'” for example. At least there is someone assessing whether QCs should be QCs; given that there are no accepted, universal definition of what “Of Counsel” or “Senior Associate” mean, I’m not sure that the American market is as transparent as you misty-eyed marketeering portrays because in ruthless world of big business in the States, anyone can, and often does, give himself/herself a bloody silly title in the name of appearing senior and important. True story: my ex-girlfriend once worked for a small (investor-backed) start up in which, for quite some time, there was one CEO, five senior-vice presidents (not just vice-president, mind), and NO-ONE ELSE. Because that’s what the US market expects.

Even if such odd titles were transparent, they are predicated on individuals working in a firm or company. Without an organisational structure in which to locate themselves, how do predominently self-employed professionals go about advertising their seniority or compentence to place themselves at the upper end of the markt?

Thirdly, this: strike down “QC” and some title will spring up, without an assessment panel behind it, which will become more powerful than you could possibly imagine, because talking yourself up (with or without substance) is what happens in a free market economy, particularly America. Or here. I know his name is a bit taboo on this blog, but what about Alan Bloody Blacker, for heaven’s sake? Is that what you want us all to do?

I’m really not sure you thought this article through.

Obscurus CJ
Chief Justice of Uncommon Pleas

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Rufus Obscurus

Sorry about the typos. Trying day (as it were) in court.

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Not Amused

Goodness, don’t we get excited when someone mentions change?

FYI there is a branch of the UK legal profession who manage alright policing their promotions themselves. Without the dubious assistance of a not obviously fair or helpful public appointment panel. We call them solicitors. And a Partner from Slaughter and May is easily distinguished from a Partner from Crap & Co in the High Street without anyone ever needing a competency based framework.

Personally I find it very very hard to defend the new appointment system. Go look at Jolyon Maugham’s piece – he doesn’t really try. He just waffles a bit about diversity. It’s all just a lot of fluff and regulator speak. Box ticking competency and a transparent commitment to diversity which is shed, snake like, once the appointment is done.

My preference would be the old system back. The new system is definitely awful. So if instead I just abolish the thing and replace it with a partnership system then I can’t see how that is obviously bad – particularly as it takes a braver woman than I to tell the Slaughters Partner that he/she is not as respectable as a silk.

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N'Amusé Pas

you’re only anti-QC because they wouldn’t give you silk because you made bad smells in the interview room.

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LJ Crookshanks

They do look stupid though, don’t they?

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