Summary
5.189 In Ireland, barristers who have practised for a certain number of years may be admitted to the Inner Bar and be entitled to use the title “Senior Counsel”. According to the Bar Council:
“Senior Counsel (known as “silks”) are the equivalent of Queen’s Counsel in England. They are appointed by the Government from the ranks of Junior Counsel. It is a mark of eminence to be appointed Senior Counsel and Senior Counsel are expected to be extensively experienced in the practice of law over many years and to be in a position to bring a high level of legal knowledge, skill and judgment to bear on any task in which they are professionally engaged.” 231
5.190 Appointment to the Inner Bar is made by the Government. The selection process includes the Chief Justice, in consultation with the President of the High Court, other members of the judiciary and the Chairman of the Bar Council, who consider all applications and notify the Attorney General as to their view. The Attorney General in turn can consult with the judiciary and other senior members of the Bar.232
5.191 A senior counsel holds himself/herself out as having a particular expertise. His/her work is almost exclusively confined to advocacy and advisory work, as, unlike junior counsel, he/she does not draft pleadings.233The title
profession. This quality mark enables a barrister to command a premium for his/her work over and above that of a junior counsel.
5.192 The title of Senior Counsel has also facilitated the practice whereby, when senior and junior counsel are briefed together in a case, the junior charges a fee that is two-thirds of the fee charged by the senior. This distorts price competition among junior counsel because it becomes impossible for clients to determine whether they are being charged a competitive fee. The practice, discussed in more detail in Chapter 6, is anti- competitive and should cease. The rest of this section focuses on the awarding and monitoring of the title Senior Counsel.
5.193 The Competition Authority concludes that the title of Senior Counsel, as currently awarded, may distort competition because it is not a reliable mark of quality. There is no set of transparent criteria for awarding the title, neither is there any ongoing monitoring of quality, nor any procedure for withdrawal of the title in the event of a lessening of quality. The Competition Authority recommends the Government establish objective criteria for awarding the title of Senior Counsel, together with a procedure for monitoring and removing it.
Nature of restraint
5.194 The title of Senior Counsel is a government-sponsored quality mark for the legal profession, currently confined to practising barristers. It is not a reliable mark of quality, because there are no transparent criteria for awarding the title. Neither is there any ongoing monitoring of quality, nor any procedure for withdrawing the mark in the event of a reduction in the level of quality.
Effects of restraint
5.195 As currently awarded (i.e., without objective criteria or monitoring of quality) the title of Senior Counsel has the potential to distort the market for legal services by leading solicitors and their clients to believe without adequate justification that in engaging senior counsel, they are always engaging a lawyer who excels in his/her field or that other practising barristers are not of the same calibre.
5.196 The title of Senior Counsel restricts competition between barristers, because junior and senior counsel do not compete on an equal footing. It is hard for experienced and expert junior counsel to compete with senior counsel for business as consumers believe that senior counsel work is of a higher quality than that of junior counsel. This is not necessarily the case as there are no objective criteria for appointing Senior Counsel.
Rationale offered for restraint
5.197 The Bar Council believes that the title of Senior Counsel is a mark of quality. The title provides information to buyers of legal services indicating that they will receive from senior counsel a higher level of advocacy skills than they would from junior counsel and thus distinguishes between providers of advocacy services. 5.198 Senior counsel hold themselves out in a particular way to provide advocacy services, as they do not get
involved in the preliminary paperwork, drafting pleadings, etc. The title is an indication that a barrister has a different degree of specialisation and does not get involved in certain types of work. The Bar Council believes that advertising would not achieve the same result.
5.199 The Bar Council believes that the title of Senior Counsel should be retained, but agrees that the Government should establish objective criteria for awarding the title, together with a procedure for monitoring and removing it.
International Experience
5.200 In England and Wales in 2003, the Department for Constitutional Affairs published a consultation paper on the future of Queen’s Counsel.234 The paper sought to explore whether the system of appointing Queen’s Counsel
was in the public interest, and whether it commanded public confidence. Based on the responses to the consultation paper a new scheme for appointing Queen’s Counsel in England and Wales was developed by the Bar Council, Law Society and the Department for Constitutional Affairs. The new scheme for appointing Queen’s Counsel was designed to ensure that the public interest was served by establishing a fair and transparent means of identifying excellence of advocacy in the higher courts. To this end new procedures also provide a mechanism for the removal of the title for cause.235
5.201 In Scotland, a recommendation is forwarded by the Lord Justice General to the First Minister, who exercises on the Queen’s behalf her prerogative of appointing Queen’s Counsel.236
5.202 In Queensland applicants are appointed by the Chief Justice from names selected by a group appointed by the Bar. The Chief Justice consults with other judges and the President of the Bar Association 237
5.203 In New South Wales Senior Counsel are appointed by the President of the Bar Association on the recommendation of a selection committee consisting exclusively of members of the Bar. Consultation takes place with barristers outside the selection committee, with the Law Society and with members of the judiciary.238
Analysis of the Competition Authority
5.204 The title of Senior Counsel is intended to be a mark of quality. A quality mark is a signal to consumers designed to help them to overcome the difficulty of knowing less about the quality of the service being offered than does the person offering the service. When a quality mark works as it should, it enhances competition and helps the market for that service to function well. When a quality mark is inappropriately managed, it distorts competition and misleads consumers.
5.205 As a mark of quality, the title of Senior Counsel does not operate well, neither does it achieve the objectives identified by the Bar Council, for the following reasons:
• The title cannot serve as a reliable indication of a higher level of expertise and experience, because of the lack of transparent, objective and public criteria;
• Even if such criteria did exist, the title would not provide a mark of quality to potential clients on an ongoing basis, because of the lack of quality monitoring and of any procedure for withdrawing the title.
5.206 The failure to objectively award and properly monitor the title gives rise to certain problems in the market for legal services.
234 The title of Queen’s Counsel is the UK equivalent of the Irish title of Senior Counsel.
235 Under the new system for appointing Queen’s Counsel, recommendations for appointment will be made by an Independent Selection Panel. The Independent Selection Panel includes a substantial lay membership. It is chaired by an independent member and includes two barristers, two solicitors and a retired senior judge, as well as three further non-lawyer members. See
http://www.qcapplications.org.uk/external/pdf/SummaryOfProcessForQCAward.doc
236 The Lord Justice General consults the Lord Advocate, the senators of the College of Justice, the Dean of the Faculty of Advocates and the Law Society of Scotland before submitting a recommendation to the First Minister. There is provision for feedback to applicants in the process. See http://www.advocates.org.uk/profession/index.html
5.207 First, because it is the practice for barristers who become senior counsel to charge higher fees than they did as junior counsel, the impression is created that their work is always more valuable than that of a junior counsel, which may not be the case. This presents a clear danger that consumers of legal services are being systematically misinformed as to the value of services on offer.
5.208 Second, the courts and the Taxing Master239award higher costs and tax costs at a higher rate for senior
counsel fees than for those of junior counsel, thus making the services of a junior counsel less valuable, although they may not be so in reality.
5.209 In its Preliminary Report, the Competition Authority proposed that the Government should establish objective criteria for awarding the mark, together with a procedure for monitoring and removing it. The Bar Council endorses this proposal, acknowledging that in order to be an effective quality mark the title of Senior Counsel must be awarded in a fair and transparent manner:
“In essence, the Bar Council supports the putting in place of criteria and procedures designed to ensure that the title of Senior Counsel operates effectively as a quality mark.”240
Solution
5.210 The title of Senior Counsel, if transparently awarded and monitored, would be more likely to provide an accurate indication of quality. Any premium associated with retaining Senior Counsel would be justified on the basis of quality and not just by virtue of the title itself.
5.211 The Competition Authority also recommends (in this chapter) that direct access to barristers should be widened. Should this occur a transparently awarded and monitored quality mark could assist buyers of barristers’ services in choosing the best advocate for their needs.
Recommendation 14:
Establish objective criteria for awarding the title of Senior Counsel
Details of Recommendation Action By
The Government should establish objective criteria for the Minister for Justice, Equality and Law awarding, monitoring and withdrawing of the title of Senior Reform
Counsel.
June 2007