Being appointed ‘silk’ or Senior Counsel (SC) is the ‘Holy Grail’ for barristers. It allows them to charge a lot more for their services and gives them a certain ‘cache’ as standing out as the most respected in their profession.
Needless to say, the stakes to attain the rank of Senior Counsel are high. Every year, applications are submitted in July, and appointments are made in October. And every year, the legal profession waits for the disappointments and the disputes over who makes the cut and who misses out.
This year has been no exception, with the Federal court recently ruling against Sydney Barrister Mary Walker who took the New South Wales Bar Association to Court after it rejected her application for Senior Counsel in 2014, and then again last year.
The Bar Association told Ms Walker, who specialises in mediations, that her application was not considered because it was “not within the protocol”.
Oppressive, prejudicial and discriminatory
Unhappy with the decision, Ms Walker sought a series of orders, including a declaration that, in dealing with her application, the association had acted in an “oppressive, unfairly prejudicial or unfairly discriminatory manner”.
It is understood Ms Walker also sought a declaration that NSW Bar Association protocol governing silk appointments – which applies to “practising advocates” – does not exclude barristers who work largely or solely as mediators, rather than appearing in court as advocates.
When Ms Walker’s second attempt was knocked back last year, she met with the Bar Association President and a selection committee representative to ask if they had determined the meaning “practising advocate”.
She was told that: “We had deferred any consideration of that question … until after your application was determined on the merits. Your application was not enough.”
Last week, Federal Court Judge Anthony Besanko noted that the silk selection protocol was “in the nature of a policy document” and did not create legal rights and duties that could be enforced by the Court.
The Judge noted that silks can charge higher fees and that the title of SC is an “identification of an ability to provide outstanding services”, and that there is “no doubt that disappointment, even great disappointment, attends the rejection of an application.”
However, His Honour found that, “it is not any economic interest or potential economic interest which is sufficient to justify the court’s intervention, particularly having regard to the nature of the protocol.”
He rejected Ms Walker’s application on that basis.
This is not the first time, nor is it likely to be the last, that the announcement of successful applicants has caused controversy.
In 2014, Sydney Barrister David Smallbone also took the NSW Bar Association to court after it rejected his application on grounds of “lateness”.
Mr Smallbone missed the submission deadline by just 12 minutes, because he had been held-up in court.
The Smallbone case
Mr Smallbone’s barrister, Malcom Oakes SC, argued that it was unfair for the “guillotine” to fall on his client after a handful of minutes, and that he should be given an extension of time.
He argued the 5pm deadline was “never formally adopted” by the Association’s governing body, the Bar Council, and the real deadline was midnight.
However, the Court dismissed that argument. It was Mr Smallbone’s ninth attempt at being appointed SC, and demonstrates the lengths that some barristers will go in order to obtain the coveted title.
The title of SC often leads to barristers instantly increasing their daily rate by thousands. In some rare cases, a top silk could charge as much as $25,000 per day.
This year’s applications close on July 29.