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Queen's Counsel rank recognises excellence

18 July 2014

The 14 New Zealand lawyers appointed Queen’s Counsel last month was the second-highest number appointed at one time, behind last year’s round of 26 new QCs.

Since the first appointments, 279 lawyers have become King’s or Queen’s Counsel (43 were first appointed when a King was on the throne). For more than a century “taking silk” has been a way of recognising excellence in New Zealand advocacy.

The first-ever round, of 10 KCs in 1907, followed the issuing of regulations by the new Dominion of New Zealand. The appointments were made by the Governor-General in Council with the concurrence of the Chief Justice. Chief Justice Stout nominated the first group from a list of applicants and he appears to have carefully ensured that each of the four main centres was represented, with two each from Auckland, Christchurch and Dunedin, and four from Wellington – which also included the Attorney-General, Sir John Findlay.

While location is obviously not a prime consideration, just over three-quarters of New Zealand’s Queen’s Counsel have come from Auckland and Wellington. It is, of course, relevant that two-thirds of New Zealand barristers are based in those two centres.

Graph showing location of QCs on their appointment

Solicitor-General Frederick Fitchett was not among the first KC appointments and he remains the only Solicitor-General not to be appointed to the rank since 1907 (the 13 subsequent Solicitors-General have all taken silk). Seven Attorneys-General have become QC, although Sir Thomas Webb was appointed six days before leaving office in 1954 and Sir Geoffrey Palmer (originally SC) was appointed to the rank in 2008, well after he had left Parliament.

Of the 279 Queen’s Counsel, 88 have gone on to become judges. Seven (of a total of nine since 1907) have become Chief Justice and six have become President of the Court of Appeal (of a total of 12 since the permanent Court was established).

While the rank brings standing in court and recognition in the legal profession and wider community, it is debatable whether fortune follows fame. As with most successful lawyers, QCs are coy about revealing if the change of letterhead and addition of two letters after their name results in substantially higher fees and more clients.

A survey by Richard Burcher of legal services pricing consultancy Validatum Ltd in 2011 received responses from around two-thirds of New Zealand’s Queen’s Counsel. This found the most common hourly rate was $550 to $649 (for 23% of respondents). At the top end, 7% of respondents billed over $1,050/hour. Mr Burcher says the respondents were a good representation of all Queen’s Counsel, right across the charging range. By way of comparison, a survey of law firm partners at the same time found the most common hourly rate was $341 to $360 (for 16% of respondents) and only 5% of responding partners billed over $400/hour.

Hourly Rates 2011: Queen’s Counsel Validatum Ltd Survey

Chart showing the hourly rate of QCs

Practice management consultant Ashley Balls of LegalBestPractice says there is an expectation – “not always satisfied” – that taking silk allows for higher charge out rates and more work.

“There is certainly evidence to suggest the court lists are shorter than a few years back which could indicate oversupply of seniors and silks or a falloff in cases going to trial – in my view it is the latter,” he says.

Chief High Court Judge Helen Winkelmann’s Report from the High Court 2013, released in April 2014, shows 2,669 new civil proceedings initiated in 2013 (2,827 in 2012) and 317 civil appeals (338). She says 143 civil trials were held in 2013 and 161 in 2012.

Inquiries have indicated a common rate is $500 to $800 per hour for an Auckland Queen’s Counsel. Ashley Balls says a “handful or fewer” appear to be charging up to $1,000 an hour.

“What no one will talk about is whether these sums are being achieved and what discounting is taking place. There is discounting across the entire legal profession,” he says.

“In many cases a recovery rate of 80% to 85% is normal”.

Mr Balls says there is certainly an expectation that charging rates are related to seniority and that increases are anticipated after becoming a Queen’s Counsel.

“That said, there are a few – no more than a handful – specialist senior counsel who have not been offered or not taken silk who command rates at or around those of a QC. Fixed prices are no longer unusual and, like the solicitors’ branch of the profession, is being driven by client demand,” he says.

“My personal view is that supply and demand now favours the buyer and rates are frozen, declining or are fixed. Trial numbers appear to be falling but opinion writing seems to be holding up well. All in all, the senior end of the Bar is, like the rest of the profession, going through structural and irreversible change.”

The latest appointment round included four women in the 14 appointees. Of around 120 lawyers currently practising as Queen’s Counsel, 20 are women. Both Attorney-General Christopher Finlayson QC and the New Zealand Law Society have called for more women to apply for Queen’s Counsel rank.

Law Society Executive Director Christine Grice has noted that women make up 46% of all practising lawyers and 36% of barristers, but only 16% of Queen’s Counsel. In the 2014 round of 97 applications only 21 came from women.

The New Zealand Law Society is working with a number of other lawyer groups to help address the reasons for the relatively low proportion of women QCs.

10% of applicants succeed

Crown Law has provided information on the last nine appointment rounds (this does not include the appointments of Attorney-General Christopher Finlayson QC and Solicitor-General Mike Heron QC on 10 December 2012). This shows that an average of 94 applications have been made for each round, with just under 10% of applications succeeding.

Graph showing application success rates for QC appointments
Over the period 2002 to 2014 all Queen’s Counsel appointees had been in practice for an average of 28.7 years. Female appointees had practised for an average of 26.5 years and male appointees for an average of 29.3 years.

Quick QC Facts

Sir Muir Chilwell held the QC rank for 48 years and 303 days. He was appointed on 11 August 1965 and died on 10 June 2014.

The longest anyone who has not also been appointed to the judiciary has held the rank is believed to be 39 years 67 days for Leonard Leary QC (appointed on 4 February 1952, died on 11 April 1990).

The shortest tenure appears to be that of Christchurch lawyer Thomas Joynt KC who was in the first group of KCs appointed on 7 June 1907. He died just under three months later, on 5 September 1907.

Three generations of the Cooke family have attained the rank: Justice Philip Cooke KC (appointed 28 January 1936), Sir Robin (Lord) Cooke QC (appointed 25 May 1964) and Francis Cooke QC (appointed 27 July 2004).

Four Australians have been appointed QC in New Zealand. Three – all from Melbourne – were appointed in 1994 under a reciprocal admission agreement.

The shortest time between being appointed to the rank and becoming a judge is the split second between the appointment of Sir Henry Ostler KC as a King’s Counsel and then a Judge of the Supreme Court on 2 February 1925. Sir Henry had accepted an offer of appointment to the Supreme Court bench in 1924 on condition that he would not be expected to start until 1925 and that he would first be appointed King’s Counsel.

Auckland’s Shortland Chambers has 12 Queen’s Counsel among its 27 members.

Last updated on the 17th March 2016