Commercial Bar: Making the silk cut
"Don't worry George, most people get turned down on their first application. You're bound to get it next year." That was the friendly advice offered to my father in 1970 by Dick Taverne QC MP, his old Balliol chum and a close government colleague of the then Labour Lord Chancellor, Lord Gardiner. As a nine-year-old, I vividly remember the April morning the following year when George Carman first called himself QC - it was the happiest day of his life.
February 28, 2007 at 09:02 PM
11 minute read
"Don't worry George, most people get turned down on their first application. You're bound to get it next year." That was the friendly advice offered to my father in 1970 by Dick Taverne QC MP, his old Balliol chum and a close government colleague of the then Labour Lord Chancellor, Lord Gardiner. As a nine-year-old, I vividly remember the April morning the following year when George Carman first called himself QC – it was the happiest day of his life.
Last summer's crop of 175 QCs secured a double first: the first new silks since 2003 and the first to be appointed by the Lord Chancellor under a new system – recommended by an independent selection panel from 443 applicants. It had taken a year. Applications opened on 19 July, 2005 with appointments announced on 20 July, 2006. With the 2007 applications already being sorted, what is the new system like? Does it fare any better than the old 'soundings' in finding the best candidates; and what tips can the new QCs offer future applicants?
The application question
"It was a nightmare – very daunting," says Four New Square's David Halpern QC of the application process. James Cross QC of Four Pump Court found it "very time-consuming and pretty arduous". James Rowley QC of Byrom Street Chambers agrees. "I spent three days doing the first draft," he says. "Another day revising it once and then another revising it again."
At 62 pages, the 2007 QC application form is 10 pages shorter than last year and is based on self-assessment. Rowley believes that it asks for crucial information: "Having to spend a long time writing about yourself gives those assessing you a deep insight into each applicant. Those who did not take it seriously might have regretted it."
Serle Court's Khawar Qureshi QC agrees that the form looks unwieldy, but is "very methodical, pivoted on candour and requires an ability to be honest about oneself". He comments: "On the last day of the application process, I came into chambers at six in the morning and started on the form. I had it sent out by courier at four that afternoon. It has to be natural. Revising things is unlikely to yield the honest answer."
Not everyone agrees. One failed candidate, who has re-applied this year, is taking it "even more seriously this time". He recommends "using every bit of space to sell yourself – press the competency buttons with evidential material. Redrafting is very, very important."
King Chambers' Lesley Anderson QC suggests that applicants should not underestimate what is expected: "Give yourself plenty of time. Discuss the application form with others. Timing is everything, and the process of self-assessment is not one which barristers are familiar with."
One of last year's disappointed applicants admits to incorporating suggestions from four different colleagues who reviewed his application this year. Another comments that there was no room for educational qualifications and "you cannot list yourself as Treasury Counsel, for example".
The competencies required of an advocate, say the application guidance notes, are "at the heart of the scheme". One Crown Office Row's Martin Forde QC says: "It was very worrying to be told that if you do not speak to each competency and sub-competency, you might be binned on the form – and not by lawyers but by pure administrators." One unsuccessful candidate cautions against using the "ill-focused, scattergun approach" with which he tried outlining his competencies.
Few the five competency areas reduced from seven last time round – understanding and using the law, oral and written advocacy and working with others – generally present problems. But even here, Halpern believes it is "terribly important" to speak to some non-lawyers. His first draft of 400-word summaries on competencies was "so compressed you had to be not only a lawyer but to have lived my life to understand it. I showed it to my wife who is a GP. She pointed out to me that many of the panel members are not lawyers. That is very important. It had to be less pompous and more intelligible to the intelligent layman."
The integrity competency provokes much comment. "It is very difficult to provide evidence of," says Rowley. Another candidate agrees: "The hardest competency by far – partly because it is nebulous and partly because no one is going to say they have not got it." Anderson does not believe that you can self-assess your integrity: "The emphasis should be rather more on referees doing that. If there is any doubt about my integrity, I am the wrong person to ask."
At 7 King's Bench Walk, which topped last year's QC list with six successful applicants, senior clerk Bernie Hyatt says: "Some members of the Bar have been deemed a tad 'shady' for whatever reason. Integrity? It is 'reflex training' here and neither a clerk nor a practice manager needs to raise these issues with a potential silk applicant."
But Qureshi argues that "as the profession becomes more commercialised and more aggressive, integrity will become more important".
The diversity question
However, the real controversy rests with diversity, which has been elevated from a sub-heading last year to a core competency in 2007. "I was really concerned how to deal with it," Forde says. "Just because I am black does not mean that I necessarily understand diversity. I am from the Caribbean and I have no more understanding of the Muslim community than I have of the Nigerian community."
Anderson sees the diversity category as "somewhat artificial and rather un-British. What you write sounds quite crass since you have to demonstrate it with evidence."
Halpern outlines a view common to many commercial silks: "My practice, Chancery and professional negligence, means I do not have a very diverse client base. But I realise that we all come across diversity in life – if you are attuned to it, you can spot it. It does not have to be someone with a black skin, it could be any kind of minority. I had hoped that being Jewish made me part of a minority group, but apparently not. I am the wrong minority."
Echoing the private views of others, Jonathan Karas of Wilberforce Chambers is unequivocal on the diversity angle, which he has been researching in comparable areas such as academia. Karas sees the inclusion of diversity as "part of a more general attempt in society to measure suitability by reference to criteria other than those by which performance is usually measured. It has nothing to do with the professional service given to clients." He describes it as "a disturbing shift – an attempt at social engineering, which in some contexts can be dangerous. The danger is happening without debate; the Bar is not addressing the issue". Karas argues that diversity should be removed from the criteria for appointing silks.
Referees
"I am pleased that the process is less onerous for referees this year," says James Cross QC, pointing to references now being taken in writing rather than last year's exhaustive round of interviews. Candidates have to list 24 referees: 12 judges, six silks and six solicitors. They must name judges in front of whom they have "appeared substantively in cases of substance" over the past two years. One preferred judge and an alternative is nominated by the candidate. The selection panel then randomly selects a further three judges. In total, four judicial references are taken plus three from silks and two from the solicitors' list.
"If the QC label is supposed to be a badge of excellence and a reflection of core competencies, it is important that judicial concerns are brought to the fore," Qureshi says. "Having 12 judges on the list enables the process to be more random and prevents applicants only selecting judges who will say nice things."
One failed applicant, who could only name seven judges, believes it may have counted against him. Another who missed out suggests that many specialist barristers have the same problem – the risk of "having to put down the name of a judge who can't stand you".
Notifying all referees well in advance is generally seen as a matter of good practice and common courtesy.
Interview techniques
Four of the nine selection panel members are non-lawyers, including the chairman, Sir Duncan Nichol. According to Anderson: "Lay people are there to assess 'Is this a person I would have confidence in?' Some people are uncomfortable being interviewed by a non-lawyer for a legal position. If you are inexperienced in interviews, you may find it more threatening."
Forde advises training, although he concedes that "if an advocate cannot perform in an interview, then they do not deserve the rank". He approached Sherwoods, the management consultancy, where Kate Blackburn conducted a mock interview: "She told me to be more animated about some things, more certain about others. I would really recommend that people use consultants." Anderson, a former training manager with the Norton Rose M5 group, is sceptical about interview training. "You need to come across as yourself," she says. But several of last year's failed applicants talk openly about the time they have since invested in interview training, in the hope that it will boost their chances this time.
"It is odd being interviewed by a panel, none of whom are lawyers," says Halpern. His interview, which was chaired by Nichol, did not go entirely smoothly. "I stupidly turned up 20 minutes late after going to the wrong address," says Halpern. "He was very nice about it. I told him that the reason I wanted to take silk was that I needed a junior to get me to the right address."
More feedback needed
"The more competencies where the selection panel noted lack of evidence of excellence," advise the guidance notes, "the more improved evidence of excellence will need to be available on this occasion." The quality of feedback depends upon who you talk to. However, candidates are assured that each competition is separate and that previous references/applications will not be used in any future application.
David Watts, head of the secretariat that administers the applications, explains: "We write to all unsuccessful applicants and give them feedback on how they have done. The feedback is geared to their personal application." Rowley knows several failed applicants: "Some have knuckled down to apply again, some have said they cannot be bothered – it may be reflection of the feedback they received."
Forde argues that the feedback could and should be better: "It seems to have been driven by PR people who do not understand how the Bar works. There needs to be more transparency; those who have been refused need to be told why, in honest and brutal terms."
Still, one failed applicant says that the feedback she received was "helpful, constructive and to the point".
Rising costs
Of all the changes since last year, the dramatic increase in cost is most striking. The previous application fee of £1,800 has increased to £2,500 (up 39%), while the appointment fee has increased from £2,250 to £3,000 (up 33%). Include VAT and the total now stands at £6,462.50, not including the cost of the appointment ceremony.
Watts explains: "Last year was the first and it was entirely self-financing. The only source of income is the fees we get from applicants. Our assumption was that there would be 500 applicants. In fact, there were 443. So there was a shortfall. Our costs estimate was not as accurate as one might have wished. There were also upfront set-up costs. Being the first year, we had less information to go on than we now have."
Or, put simply, this year's increased fees are making up for last year's shortfall. "My objective is to balance costs with income," confirms Watts.
Qureshi points out that while the costs are tax-deductible, there should be greater transparency: an indication of how many people and how many hours are involved in the process. "If this is the price of the current method, they need to find a way to simplify the system. Start by cutting back the number of questions and referees," Rowley suggests.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All'Almost Impossible'?: Squire Challenge to Sanctions Spotlights Difficulty of Getting Off Administration's List
4 minute read'Never Been More Dynamic': US Law Firm Leaders Reflect on 2024 and Expectations Next Year
7 minute readTrending Stories
- 1Social Media Celebrities Clash in $100M Lawsuit
- 2Federal Judge Sets 2026 Admiralty Bench Trial in Baltimore Bridge Collapse Litigation
- 3Trump Media Accuses Purchaser Rep of Extortion, Harassment After Merger
- 4Judge Slashes $2M in Punitive Damages in Sober-Living Harassment Case
- 5Georgia Supreme Court Honoring Troutman Pepper Partner, Former Chief Justice
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250