Selecting pre-eminent advocates

We are currently in the initial stage of the 2016 Queen’s Counsel appointment round – the stage where the Attorney-General has called for applications.

In just a few days’ time, on 14 March, applications will close, marking the beginning of the actual appointment process.

The rank of Queen’s Counsel, or King’s Counsel when a king sits on England’s throne, has played a long and significant role in the legal profession, dating back to 1597 when Sir Francis Bacon became the first Queen’s Counsel Extraordinary.

The rank recognises “the special relationship with the Crown for New Zealand’s pre-eminent law practitioners,” as the then Justice Minister Judith Collins said in 2012 following the passage of the Lawyers and Conveyancers Amendment Bill that restored Queen’s Counsel in New Zealand.

Although going back more than 400 years to Sir Francis Bacon’s appointment, King’s Counsel emerged into eminence only in the 1830s, when it became a formal recognition of a barrister as a senior member of the profession.

Throughout the history of silk in New Zealand it has marked out senior and pre-eminent members of the profession, primarily barristers. The Governor-General also has discretion to appoint Queen’s Counsel in recognition of their extraordinary contributions to the law in fields other than advocacy. These appointments, however, tend to be small in number.

As we did in our “From the Law Society” column at around this time last year and also in 2014, I would like to encourage women barristers to apply for appointment as Queen’s Counsel.

In a feature entitled Snapshot of the Profession, this issue of LawTalk details some statistics and information about the profession.

The figures show that there is a significant under-representation of women silk who are currently practising. Of the 101 practising Queen’s Counsel, just 17 are women. That is just under 17%.

This percentage compares with around 47% of women in the profession, while the percentage of women entering the profession has been in the low 60s since 2005.

To be eligible for silk, a lawyer needs to cite evidence of lead roles in major litigation in the application to become a QC which demonstrates that they are worthy of being recognised as leaders in the field of advocacy.

So if those of us responsible for briefing barristers are not briefing women, we are not providing women with the opportunities to perform at the higher level necessary to take silk.

I want to be very clear that I am not saying: “don’t brief men”. What I am saying is that it is both to your advantage and your client’s advantage to think creatively and with a very open mind about the appropriate skill set, experience, abilities and other attributes that would best suit the brief.

As well as keeping women in mind when making that evaluation, I would like to see instructing solicitors also thinking about giving younger lawyers – including young men – and those from different cultures, similar opportunities also.

We know from research into unconscious bias that it is very easy to view those who are similar to ourselves as being the “best person for the job”. It requires a certain discipline or intellectual rigour to step out of that mould, but I am confident that lawyers have the ability to do this and hopefully make some excellent choices around those we brief.