Abolish silks

Sydney SC writes to the editor calling for abolition of the silk system ... Appointments are anachronistic ... It's not a matter of ability, only notability ... Secret blackballing ... "Corrupt" process ... Confessions from an insider who played the game ... From Justinian's Archive, October 24, 2002 

Memo:  Richard Ackland

I am writing to you to comment (favourably) on your article in The Sydney Morning Herald on 27 September 2002 regarding the annual "silk cut". (See article) 

I am a silk of recent origin and readily endorse all you have said in that article (although I will deny it to my colleagues).

The whole system of appointing silk, which once was a means of the Crown recognising the (usually free) service given by particular counsel (somewhat like the Royal Patent given to favoured merchants and providers), is now quite anachronistic and, as it has been adapted over the years, is also now misleading of the public and contrary to the trade practices law of Australia.

The system should be abolished or otherwise reformed to relate it to demonstrable merit and transparency of process. Preferably abolition. 

Alas, it is now so enshrined in the legal system, both here and elsewhere in the "Dear Old Empire", that those, like myself (and, though you may not believe, many other silks and certainly the majority of barristers) are too silenced by the collective weight of those whom the system has served over the years in the name of tradition, that change for the present is about as likely as the abolition of wigs and gowns. 

When one joins the Bar the uninitiated starts with the fanciful notion that to become a silk one must strive to do so on merit. But one soon learns that whilst some may nevertheless be worthy of that rank, you do not get there on merit. You get there by an insidious process of worming you way into, and gradually becoming accepted as, one of the "notables". 

The parameters of this group are undefined and you are not always certain of when you may have been accepted into it. But there are a number of identifying factors that help to spot a "notable" (and to which all hopeful should aspire).

Getting into the "right" chambers, and even on the "right" floor in the "right" chambers, is essential. Having come from the "right" public school and/or with a relative who is or once was a "notable" is a good start and usually a "shoehorn" into the "right" chambers.

However, those criteria are not as critical as they once were, not because of any lowering of the "old boy" standard, but rather by the fact that the "right" kind of money will usually get you into the "right" kind of chambers since the trend of departing barristers (usually going to the Bench) of selling that privilege began some years ago and has now reached quite extraordinary prices.

Alongside the "old boy" standard then is the notion that anyone who can afford to buy-in at such prices must be "notable" and potential silk material. 

But whilst this may give you a head start to becoming a "notable" ... one usually has to get busy in creating for oneself a "notable" profile. 

This involves such things as getting on association committees; standing for election to the Bar Council (which usually attracts over 100 candidates whilst other professional bodies struggle to find volunteers willing to serve their profession); attending boring Bench and Bar dinners; eating regularly in the Bar Association dining room; getting to know the association heavyweights; bringing yourself to notice as the "right" sort of worthy, etc.; and then, after 13 years and certainly not more than 17 or 18 years (in which case you might have left it too late), you start the process of "feeling out" the people who have influence in these matters, a month or two before the invitation to apply is issued (not earlier nor later) and inquire in confidence (which is likely to become known generally within minutes of you doing so) whether they consider you should apply for silk that year. 

Only if you are "encouraged" to do so sufficiently to expect that your application will be favoured, should you then be brave enough to apply. The other 100 or so hopefuls who are silly enough to apply "cold" and to take their chances, are sadly advised indeed. 

Critical in this process is to make sure you are known to the members of the selection committee and, if you are bold enough, you may even extract a tacit commitment of support. After all, if you are on the same floor or meet with and/or socialise with any such member on a regular basis, it is going to be difficult for that person to knock you back and then have to face you later.

In those circumstances it is not too damaging to one's better judgment to be self-convinced that someone you know is more worthy of the appointment than the many other applicants whom you may have no idea what they even look like. 

One may also gain some assistance in this process by making sure your head of chambers is on-side and pressing for another silk for your floor (especially if you have lost one since the last lot were appointed). After all, a floor with a high percentage of seniors to juniors can demand much higher prices for those wishing to get in and this can be a nice little earner for anyone retiring or going to the bench. 

The crazy part of this very flawed and corrupt process is that because the hierarchy has got there under the same system it is blinded by the notion that is all very proper. Yet, every day one of us is in the Equity Court arguing for a client who has been denied the same kind of procedural fairness and lack of transparency. 

When one considers the so-called protocol for appointment of silk it will be seen that any barrister with a reasonable period of time at the Bar (and that is the majority of us) qualifies thereunder. The fact that many more are not appointed is clearly due, as you point out, to a quota that is applied. (This is about 10 percent in NSW and about 20 percent in Victoria?) That quota is also selective as to how many is allowed within particular jurisdictions. (In what way is that not a restrictive trade practice?)

Even sillier, is the fact that the rules of the Bar requires that barristers are to represent the interests of their clients "fearlessly". Yet, whilst that requires barristers to "get up the noses" of some judges and opposing counsel at times, and even to annoy the other side's solicitors, the selection process of silk sets out to invite such judges, senior counsel and litigation solicitors (usually from the larger firms representing the big end of town) to blackball any applicant that may have displeased them.

In this, they do not have to give reason why, nor does a candidate know who is being asked to comment adversely or otherwise upon their application. At the end of the process when the appointments are made all papers are then destroyed. 

It pays therefore, not to be too fearless in representing one's client or to get off-side with judges and others who may have some input into whether you advance to the senior rank and perhaps then to become a judge, or otherwise find that your work and standing within the profession is forever less well recognised.

(Some of my worthy colleagues are known to have been blackballed for years by certain judges, and in one case because it is believed that the judge had formed a personal dislike for the candidate when they were at the Bar together.)

Some years ago, when the State Government vacated this field and left it entirely to the Bar Association, it was suggested that, particularly to demonstrate that the political-type appointments had ceased, there should be in future an independent panel of (say) three retired judges who could examine applications for silk, interview candidates, consider their qualifications and experience and the cases they had conducted, the extent and complexity of their practices, etc, etc, but shock horror! That was quickly rubbished as likely to result in the appointment of silk who did no have the support and acknowledgment of their colleagues (ie, read: may not be a "notable"). 

For my own part, whilst I hope that I am worthy of the rank of silk, I frankly admit that I was going nowhere until I learnt to play the game (not very well but it got me there). It certainly was not a matter of merit because the powers-that-be were not interested in merit. Virtually all counsel have merit. To be silk has nothing to do with it. It's whether you are on of the "notables". 

You will have realised by now that with such revealing observations and comments I am not brave enough to also reveal who I am (as I intended when I commenced this memo). I have weakened in the writing. After all, I have a family who relies on me not being a pariah in my chosen profession, which I would surely become should you be not trusted to maintain my confidence. 

However, I must finally mention that, to some significant extent, the media is also to blame for the perpetuation of this situation because of its constant and unnecessary reference to counsel as QC or SC in the reporting of judicial proceedings.

This perpetuates the myth that in some tangible way the holders of such rank are superior legal beings worthy of the community's special acknowledgment. 

I commend you again for your courage in pursuing this matter which has the support of a great many more barristers than you might think. Alas, all too many of those who condemn the system are regarded as sore losers at not being appointed.

As Lady Bracknell says of society, only those who cannot get into it are against it. 

2 October 2002  

See: SMH, The silk cut, September 27, 2002