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    « Let me count the ways | Main | Avoiding the discovery train wreck »

    Keeping the bastards honest

    Greg Curtin, member of the NSW bar council who last year agitated for silk selection reform, reviews the new process … A revised protocol supported by “conventions” should made the system more performance focussed

    Concerns were raised last year concerning the method of appointment of silks in New South Wales. The bar council responded with a review of the senior counsel protocol and its administrative arrangements.

    As part of that review, the council sought and received a report from the Hon R.V. Gyles AO QC as to possible improvements that could be made.

    The report was commissioned on the basis that it would provide additional information to the council concerning the protocol.

    Having considered the Gyles report, and further papers circulated by various members, the council agreed last month to make changes to the protocol and its administrative arrangements.

    Some of those changes are found in amendments to the protocol itself.

    However, some are not spelt out in writing and which, for want of a better expression, I’ll call “conventions”.

    Both the written amendments and the conventions were identified by the president, Tom Bathurst QC, to interested members of the bar on June 9. This was followed by a question and answer session.

    The council agreed that the present system by which senior counsel are appointed by the president after consideration by a selection committee, should continue.

    It was also agreed the selection committee should consist of the president, senior vice president, three senior counsel nominated by the president and approved by the council, and one additional person being a distinguished non-practising barrister.

    This year, that distinguished person shall be the Hon Keith Mason QC, the recently retired President of the NSW Court of Appeal, and universally regarded as a person of high integrity.

    His role, in the president’s borrowing of the late Don Chipp’s famous expression, is to “keep the bastards honest” – the “bastards” in this case being the selection committee members.

    One fundamental change to the protocol is that those applying for silk will now be required to submit a list of all of their contested cases in which they were involved in the preceding 18 months (or 12 months for this year), listing the name of the case, the judge, the opposing counsel and the applicant’s solicitor.

    Selection committees will then make oral inquiries of various of the persons identified in order to assess whether an applicant meets the standard required of senior counsel as set out in clauses five and six of the protocol.

    The result is that the new process will be, fundamentally, a performance-based assessment taking into consideration (although not exclusively so) what an applicant has done in the preceding 18 months.

    For many reasons, some may feel at some disadvantage in complying with this requirement, the most obvious being circumstances (which do occur) where an applicant has been involved with one long-running piece of litigation, or has been heavily engaged in preparing larger cases that are resolved before hearing.

    So, in addition to that list of cases, applicants are strongly encouraged to supply any other information they consider will assist a selection committee to assess their suitability.

    If the committee is aware of an applicant’s particular circumstances, then it can make adjustments in its inquiries and deliberations, including contacting any referees an applicant puts forward.

    It is expected the system will be flexible enough to allow selection committees to take an applicant’s individual circumstances into account, as long as the relevant information is supplied.

    One particular matter raised by some barristers was their participation in mediations, either as a mediator or as counsel representing a party to a mediation.

    This will be taken into account if committees are given the details, although as most of what happens in mediations is confidential inquiries will inevitably be limited.

    There will also be changes to the previous tick-a-box system whereby some 600 or so judges, barristers and solicitors received a machine-readable form with options to tick “Yes”, “No” or “Not Yet” if the respondent had personal experience of an applicant within the preceding five years.

    First, the five-year period has been reduced to three years, it being considered that what applicants did four and five years before they applied for silk was unlikely to be of much assistance.

    All judges will continue to receive this form, but the lesser numbers of the barristers and solicitors who receive the form will be those nominated (something in the order of seven silks, seven juniors and seven solicitors for each practice committee) by the heads of various of the bar’s practice committees – e.g. the common law committee.

    The results of this form will be utilised as an adjunct to the list of cases and other relevant information submitted by applicants.

    It will, for example, identify additional potential sources of information for a selection committee if it feels some further inquiries are warranted about an applicant.

    All results of any inquiries made by committee members will be communicated to other committee members.

    Part of the distinguished person’s role will be, in general terms, to ensure that inquiries were of the relevant kind, were sufficiently extensive, that any negative comments were checked with others with relevant experience of an applicant.

    The result will be a targeted, performance-based assessment of an applicant’s abilities, with some natural justice being given to applicants in that negative comments will be checked with others.

    The system will benefit substantially by having an independent, non-practising barrister overseeing the process.

    The president will continue the practice of meeting with any interested unsuccessful applicant for silk and will precisely identify which of the one or more criteria set out in the protocol the committee considered the barrister failed to meet.

    In the course of the council’s deliberations it was noticed that some chambers had been overrepresented on silk selection committees in the past few years, even if this was unintentionally the case.

    In future years, including 2010, selection committee members will be more widely sourced. No committee member will come from the same chambers as another committee member.

    Committee members will not be required to automatically disqualify themselves from taking part in the consideration of applicants from their own chambers, although it will be emphasised to all committee members that if, for any reason, they feel unable to bring an unbiased or impartial mind to any particular application, then they will disqualify themselves.

    The “same chambers” point raised some disquiet at the bar last year and it is expected the new system will alleviate those concerns with the focus being on demonstrated performance rather than, perhaps, general reputation.

    With any new system, unforeseen problems may arise or further possible improvements may suggest themselves.

    Selection committees will report back to the council and the distinguished person shall be asked to independently report as to where improvements can be made.

    No system will be perfect, particular one involving peer-review. Reasonable minds may differ as to how best to make peer assessments, however in my opinion the new system is an excellent outcome.

    Greg Curtin

    Further reading:

    Curtin’s 2009 open letter to members of the bar association

    Gyles’ review of the SC protocol

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