Queen’s Counsel proposals could be simplified
If proposals to reintroduce the title of Queen’s Counsel proceed as planned, New Zealand would have three classes and several subclasses of Queen’s Counsel/Senior Counsel, the New Zealand Law Society says.
In its submission on the Lawyers and Conveyancers Amendment Bill, the Law Society says the proposed change appears to be policy-based. The submission says opinion among lawyers on the matter is simply too divided for the Law Society to advance any single view likely to meet favour with a significant majority of lawyers.
“Even within the ranks of various groupings of lawyers, where a degree of unanimity might usually be expected there are still quite strongly held opposing positions,” it says.
Focusing on the structure of the proposed legislation to reintroduce Queen’s Counsel, the Law Society says that if enacted in its present form, there will be several categories and sub-categories of Queen’s Counsel/Senior Counsel.
Queen’s Counsel appointed before 1 August 2008 would be free to describe themselves as Queen’s Counsel or to change to Senior Counsel, and could also potentially practise in partnership or as barristers.
Senior Counsel appointed after 31 July 2008 and before commencement of the proposed amendment could describe themselves as Queen’s Counsel or Senior Counsel and to practise either as barristers or otherwise. There would also potentially be four possible sub-categories of Senior Counsel.
Queen’s Counsel who are appointed after commencement of the proposed amendment could only describe themselves as Queen’s Counsel and would have to practise as barristers. All earlier-appointed Queen’s Counsel could, however, move at will between practising as barristers and other forms of practice.
The Law Society suggests that the position could be considerably simplified by requiring all past appointees to be known as Queen’s Counsel and anyone appointed after the law change to practise solely at the separate bar. Those appointed earlier and entitled to practise other than at the separate bar who then chose to practise at the separate bar could not later reverse that decision.
“If this greater simplicity and clarity were thought desirable, some amendment to the Bill would be required by that could be effected fairly readily. We would be willing to assist,” the submission states.
While emphasising its neutrality on the policy considerations behind the appointment of Queen’s Counsel/Senior Counsel, the Law Society says that over many years of debate about the matter there has been repeated concern about the inconsistent quality of appointments, the lack of clarity in the appointments criteria, and the lack of transparency in the process.
The submission states that the objective must be the appointment of only the best people, “distinguished by their outstanding all-round qualities of excellence, integrity, judgement and leadership”.
Notwithstanding the division of opinion among the legal profession, lawyers could be expected to be largely at one on this matter of excellence and leadership and would expect the Law Society to have appropriate input into any necessary recasting of the existing regulations and guidelines relating to appointment.