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Bar Talk
13 October, 2009  

Silk selection process to be “reviewed” in NSW … Barrister distributes open letter to members of the bar … Bar council asleep at the wheel … Current method of appointment deeply flawed and unacceptable

imageSydney barrister Gregory Curtin, from Sir James Martin Chambers, has made a detailed case against the silk selection system, saying it is unfair and opens the bar to accusations of hypocrisy.

In a letter widely distributed throughout the bar Curtin, who unsuccessfully applied for silk in 2006, 2007 and 2008, said there is a perception that the process operates “capriciously”.

He claims that the judges, barristers and solicitors to whom he has spoken have a “poor opinion” of the bar’s silk protocol.

Curtin accuses the bar council of being “asleep at the wheel” on silk selection. The whole process is handed over each year to a committee, which operates without oversight.

The decision making is secretive, not independent and open to “invalid voting”.

False accusations against applicants are accepted without being checked. The selection committee is not bound by substantive rules of fairness or natural justice.

Further, committee members are not required to disqualify themselves on grounds of apprehended bias.

His most telling point was that in 2007 and 2008 barristers from the same chambers as members of the selection committee were five times more likely to be appointed silk than other applicants.

“It seems unlikely to me that successful silk applicants just happen to be thick on the ground in committee members’ chambers one year, and then thick on the ground in the following year’s committee members chambers.”

There is a requirement that those canvassed for an opinion about the candidates are required to have personal experience of the barrister for or against whom they are “voting” within the last five years.

Curtin said that in his own experience of the process in 2007, the facts suggest that all his “no” votes from silks were from people whose “direct personal experience of me was right on five years previously or greater”.

All “yes” votes from silks were within the five-year period of direct personal experience of his work.

“No checking of votes of any description is presently carried out, even on a randomised sample basis. Under the present protocol, as the senior vice-president tells me, [silk selection] committees can only ‘assume’ that voters comply with the voting requirements.”

As to the “feedback” process (“discussion is too bold a word”), usually in the form of a chat with the president of the bar, Curtin found that in 2007 and 2008 the interviews “concerned matters not found in the criteria set out in the protocol.

“In those two years, not one of the criteria found in the protocol was mentioned. This at a minimum, gives rise to a perception that those applications were rejected, at least partly, for reasons not found in the protocol.”

In 2007, the one item of feedback he received that did fall within the protocol was false.

“That falsity would have been easily uncovered had that year’s committee been required to make a sufficient number of inquiries, in sufficient depth, from people who had actually had some relevant experience of me. Currently there is no such requirement.”

Pressure has been building for years as the number of barristers angry and resentful at the way the silk protocol functions steadily grows.

imageSo much so that the bar council will “review” the protocol. Whether this amounts to tinkering at the edges, as in previous “reviews”, or a determined effort to address fundamental shortcomings, remains to be seen.

Curtin says in his letter he has sent the bar council “provable facts” as to the unfairness of the present way silks and selected. He did not include these provable facts in his letter, but added that if an officer of the bar says no such evidence exists, “then I will revisit my decision not to outline that evidence to you”.

He puts forward seven ideas for reform:

* Silk selection committees to be composed of retired judges. Alternatively it should be a requirement that no committee member be entitled to vote for or against an applicant from their own chambers. Neither the president nor the senior vice-president should be members of the silk selection committee. Instead, they would be responsible for oversight and making sure that the rules of the protocol were followed.

* The five-year rule to be reduced to three. The senior vice-president already agrees with this reform.

* Votes to be weighted in favour of judges votes, as they are better placed to pass judgment on the criteria in the protocol.

* A modest fee of $100 to be introduced, payable by each applicant. This would help defray the costs of checking and compliance.

* The protocol to be strengthened so that the criteria for selection should be the only matters considered.

* Each applicant to supply a “representation search”, identifying the judges and barristers and cases in which they were involved in the proceeding three years.

* The selection committee to make the majority of their inquiries of the judges and barristers identified in the representation searches. “Hearsay comments” would be removed if the committee checked them with the relevant judge or the most senior barrister in the case.

Bar prez Anna Katzmann responded by saying, “a number of assumptions Mr Curtin makes are inaccurate”.

She claims the silk selection committee does not leak information about applications.

She added that it was not accurate to say that senior counsel are “elected”. Using words such as “votes” and “voting” is inappropriate.

However, “all suggestions for improvement are welcome”.

None of Curtin’s substantive complaints were addressed – particularly the claim that the system is skewed in favour of candidates from the same chambers as the selectors.

Senior people at the bar have urged that the committee look at whether candidates regularly appear in the higher courts or against silk. If so, they should be selected.

It’s incredible to discover that this is not already a requirement for silk.

Also, it was suggested in informal submissions to members of the committee that the numbers of new silk this year should be substantially increased with many more women selected.

Earlier this month the “capriciousness” of the system was exposed when it was revealed that at the last minute three new silk were added to the list just before it was announced.

Maybe it’s time to get rid of the ticks and crosses “beauty parade” and implement a regime of rigorous investigation and analysis of the candidates’ achievements.

Download Curtin’s letter in full


Reader Comments

Posted by: Anonymous
Date: October 13, 2009, 2:48 am

Curtin says: "Nevertheless, the Bar Council now has before it the provable facts referred to above. In that event, with one exception, I shall not set them out here for the purely selfish reason of limiting the damage to my future silk prospects incidental to the writing of a letter such as this." Is it really the case that the process goes unquestioned by juniors because of a fear of adverse consequences and by silks because of something akin to complacency? The alternative conclusion would seem to be that there is nothing wrong with the system - which may well be correct. As a person who is not a barrister it would be interesting to hear some anonymous responses from those who are barristers.
Posted by: Anonymous
Date: October 13, 2009, 11:09 pm

What about more of a say so from those that brief counsel! They know who is capable and those that rest on their names or chambers!
Posted by: Anonymous
Date: October 16, 2009, 2:29 am

The author says: "Senior people at the bar have urged that the committee look at whether candidates regularly appear in the higher courts or against silk. If so, they should be selected. Itís incredible to discover that this is not already a requirement for silk." Paragraph 6 of the Senior Counsel Protocol says that one of the qualities required to a high degree before appointment as Senior Counsel is: "...(g) experience: Senior Counsel must have the perspective and knowledge of legal practice acquired over a considerable period. During this time it is expected (without being exhaustive) that the applicantsí practices will demonstrate some or all of the following: i) experience in arguing cases on appeal ii) a position of leadership in a specialist jurisdiction iii) experience in conducting major cases in which the other party is represented by Senior Counsel iv) experience in conducting cases with a junior v) considerable practice in giving advice in specialist fields of law."
Posted by: Anonymous
Date: October 16, 2009, 8:17 pm

Most unsuccessful applicants fail because a substantial majority of the 650 annual responders to the committee questionnaire (ie, other barristers, judges, solicitors, magistrates) make a negative comment (either "No" or "Not Yet"). This apparently happened in Greg Curtin's case in three successive years. The committee which evaluates applicants consists of senior counsel. Usually they are well-known counsel with substantial and successful practices and they tend to come from large, successful Chambers - where talent tends to aggregate. There is substantial competition amongst young barristers to join such Chambers. Those Chambers tend to accumulate deserving applicants for silk. They ought not be handicapped in their applications by reason of the fact that a senior member of their floor has taken on the time-consuming, painstaking, frustrating and thankless task of selecting silk from the applicants. A significant proportion of applicants for silk have completely unrealistic perceptions of their ability and reputation. When they are unsuccessful they become indignant, outraged and melodramatic. Having witnessed this phenomenon over 30 years, in two jurisdictions under various evolving selection systems, I'm no longer surprised at the annual outbursts of disingenuous posturing that follows the announcement of the new appointments. As for "transparency" - the processes by which people are promoted to senior positions in public corporations and the public sector is rarely the subject of full public disclosure. Why should it be? In the case of senior counsel, the "appointment" is essentially a mark of professional distinction, experience and accomplishment which doesn't confer any rights or entitlements. Although many silks use this mark of recognition in the market for legal services as leverage for a higher fee rate (like medical specialists who have obtained various forms of recognition from learned institutions) the market, and the market alone, determines the level of fees they can charge. Mediocre silks don't get much work, and tend to charge less than the most talented junior barristers charge. Many examples of this can be seen at the Sydney and Melbourne bars. Being appointed silk does not confer a special license to charge the public higher fees. Rather, solicitors (many of whom are consulted in the selection process) justifiably trust the system and rely on the appointment system as a rough indicator and guide to talent at the Bar. They are prepared to recommend silks to their clients as exceptionally competent and therefore, as worth higher fees. Why does this require a "transparent" system? If the system was truly transparent, it would almost certainly be humiliating for the unsuccessful applicants who would be confronted a cruel reality check - as their unpopularity with their peers and others is publicly and emphatically disclosed. Precisely why "retired judges" would be better at selecting up and coming talent is entirely unclear. Some retired judges have earned a reputation for capriciousness and declining mental acuity. They are likely to be unfamiliar with many applicants - because they are no longer in the litigation business. But don't let any of this get in the way of a good beat-up, Richard.
Posted by: Anonymous
Date: October 17, 2009, 10:20 pm

The post above suggests that mediocre candidates can get silk. It also begs the question that if the market decides who is good and who isn't and therefore the rates that can be charged - why have silks at all? Let the market rip and get rid of the distortions inherent in the creation of silks. There is one famous non-silk barrister in Sydney, who is among the top five or six charging barristers in town. He has a large demand for his work - without the SC moniker. If barristers are such competitive free-traders they can do without the protective vestiges of a cartel.
Posted by: Anonymous
Date: October 22, 2009, 12:33 am

Each year, the list of successful candidates includes several who are stand out candidates. It also always includes one or more candidates who have no apparent claim to such recognition. This year was no different. The Bar Association touts the process as "transparent" and yet provides no information as to how the votes that are cast are factored into the decision ultimately made. Certainly the popular vote is not the determinant and rumours abound that some votes carry more weight than others. How can there be any public confidence in a process that to an outsider is secretive and arbitrary?