It’s that time of year again when barristers around Australia apply for what is quaintly termed “silk”. Barristers put their reputations in the hands of their peers and judges in order to find out if they can put the letters SC after their name and charge their clients more money as a consequence.
Like wigs and gowns, the office of Senior Counsel is a legal tradition that’s living well past its use by date.
The justification from the legal profession for the office of SC is that it is a mark of excellence – a signal to the consumer about the ability of the individual who has those letters after his or her name.
Nonsense. If the Bars wanted to ensure that they had a system of quality assurance which was meaningful to consumers they would open up the process of appointment of silks rather than simply have judges and barristers decide which of their colleagues is going to get the tick.
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Why not have a transparent process with consumer representatives and a set of objective criteria that applicants must meet before being eligible for silk? This would stop the appointments of politicians like Shane Stone in the Northern Territory, George Brandis in Queensland and even Gareth Evans, who appointed himself silk when he was Attorney-General in the Hawke government.
And it would prevent the office being used to push political agendas as has been the case in recent years in Victoria where Attorney-General Rob Hulls has been urging the appointment of more women silks. This is one case where affirmative action is not warranted.
If the process was more transparent it would also prevent individuals applying for silk simply because they think now is the right time. One aspirant told me a couple of years ago that he was applying for silk simply because his wife thought it would be nice! I know others who apply every year for a decade or more not because they are any better as advocates than they were ten years ago but because they think it’s their turn to become a silk.
But why keep the post at all? What is the economic justification for being able to increase fees by up to 50% overnight simply because you get to put the letters SC after your name? Why should consumers be led to believe that if they employ an expensive silk they will do better in court than with a top class ordinary barrister? And why are silks often given kid glove treatment by courts at the expense of other advocates when justice is meant to be blind?
It’s time the legal profession – which is, after all, a service industry – stopped hoodwinking consumers and abolish silks.