What Does It Mean to Be a Legal QC?
Defined as heads of the bar, Judiciaries, and legal governing bodies’ most competent and experienced legal professionals, a legal QC acts as a senior practitioner within the legal world and is colloquially referred to simply as a ‘QC.’ The abbreviation QC stands for the title ‘Queen’s Counsel’ (or ‘King’s Counsel’ when the reigning monarch is a king). This prestigious title is given in common law jurisdictions by the reigning monarch to their most senior practitioners.. In some jurisdictions and associations a double star system is used to denote those QCs who are Most Distinguished. For example, Sir James Munby, the recently retired President of the Family Division of the High Court of England and Wales has received recognition as a VC double star (QC*). Although members of the legal profession, judges and magistrates do not have to be a QC , it is reserved for those who have achieved a level of legal acumen that few others can boast. A legal QC will regard themselves as the most distinguished and eminent members of their profession. The title also carries with it the designation ‘silk’ after the silk cloth traditionally worn by barristers. Although the strict number of those who are granted the title QC is difficult to qualify, it is considered to be a mark of the most highly regarded legal professionals in common law jurisdictions. Out of 100 standing cases, a QC is responsible for 20 alongside 30 other barristers, as well as 10 solicitors which comprise the other half of the court case representation. However, a QC will often be deemed too highly experienced for criminal cases and as such, will not usually appear in these sorts of cases where they dominate civil and family matters.
What Is the Role of a Legal QC within the Legal System?
A QC’s main responsibility is the review and finalization of complex case documents like legal briefs and skeleton arguments, as well as supervisions and management of junior barristers.
While the majority of junior barristers are involved in every stage of preparation of an advocate’s case, some QC’s take it upon themselves to personally work with junior barristers to ensure all tasks are completed, typically in the areas of pleadings, witnesses, evidence, notes, and cross-examinations.
Essentially, the QC will take on the bulk of the legal research required for pledging arguments in court and reviews briefs drafted by junior barristers. Once the arguments are made, the QC will monitor proceedings from the bench, guiding the junior barrister through the trial.
QC’s also supervise and provide guidance to junior barristers throughout the trial.
If there are multiple advocates representing a client, the QC typically leads the room, taking charge of opening and closing statements, direct examinations, and leading the client’s legal strategy.
QC’s are not barristers who once served as judges, but they do have experience presiding over courts – or at least large portions of them. However, in obvious contrast to judges, they are recognized advocates of the legal system, not arbiters.
Due to their level of experienced in the courtroom, QCs are respected professionals and leaders among the legal community. Curiously, a lesser-known alternative name for QCs is "Silks," due to the ceremonial silk gowns they wear when attending court.
On that same note, due to their rank, it’s customary to refer to QCs as "Senior Counsel," even if they’re a former judge.
How to Become a Legal QC: The Process Explained
For those who aspire to be recognized as a legal QC, either in their own jurisdiction or internationally, there are some qualifications or requirements they will need to satisfy. Not every QC scheme does require an application of this type, but for those who do, the following is a helpful guide when it comes to practical steps on qualifications and process requirements.
A typical selection criteria applied to the individual QC is:
• Experience as counsel in conduct of a substantial part of the relevant cases in the relevant court or tribunal or their equivalent in other jurisdictions.
• Expertise in specialist areas of practice arising out of the decisions in the relevant court or tribunal or their equivalent in other jurisdictions.
• Experience and skill in presenting submissions by way of oral advocacy in the relevant court or tribunal or their equivalent in other jurisdictions.
• Ability to conduct cases in respect of issues in dispute in a particular area of law or process.
Most usual requirements might include:
• 10 years’ experience following qualification.
• Substantial court experience.
• Extensive experience appearing in the relevant appellate court (including the Court of Appeal or equivalent).
• Awareness of relevant area of legal jurisprudence in international context.
• Knowledge of relevant professional rules.
The selection process is rigorous, particularly for those who have not previously undertaken any form of QC-type assessment. There is little margin for error when it comes to preparation of any application that I have seen, with strict requirements being set in terms of font, paper colours, although only a handful of pages or excerpts of court transcripts were usually required to support the biography. Documents required in support of the application included a introductory letter, the biography, supporting documentation (i.e., an excerpt from a transcript), a list of appearance details, details of tribunal experience and/or academic qualifications (which could include foreign qualifications). All new QCs will be surprised, and probably very pleased, with the celebratory dinner that is held in their honour, as the success is a hard-won achievement.
Legal QC or barrister: What’s the Difference?
For a standard barrister, only experience matters, and not reputation. A barrister does not have the option of turning down any case. Yet, for a Legal QC, only reputation matters, and not experience. A Legal QC is not allowed to reject any case. However, 10 years of experience do matter.
Many people ask me why there is a difference between a standard barrister and a Legal QC. I believe the reason for the difference lies in the fact that Legal QCs are regarded as experts in their field of law, and are therefore expected to be able to handle more complex legal issues.
The best way to understand the differences between a standard barrister and a Legal QC is to consider a football team. Even though a reserve player may have a lot of experience, the coach will not let him play the final game, so to speak. That is the big difference between a Legal QC and a standard barrister – a specialisation in one particular area.
Just like how a football coach will put all his money on the reserve player, I would suggest that if you are ever in litigation that involves legal complexities, you should get the best legal brains to handle the case.
How Legal QCs Influence the Outcome of a Case
A pivotal moment for the involvement of a Legal QC was in the landmark case of R v Evans in 1998. The defence were instructed by the UK Government’s Legal Services Commission (a government department) to represent Barry Evans, who had been found guilty of attempting to blackmail the previous government. At trial, Evans had been warned by the trial judge that, should he insist on pursuing a particular argument, he would be a party to further criminal contempt proceedings himself. His defence solicitors decided not to pursue that argument and Evans was convicted. After a lengthy appeal process Evans’ conviction was ultimately overturned on the basis of that flawed piece of legal advice, which was said to amount to a gross negligence by Evans’ lawyers. The Criminal Cases Review Commission (then) re-examined the case and referred the conviction back to the Court of Appeal which quashed Mr Evan’s conviction based on the improper conduct of his lawyers. Out of this case formed the Criminal Defence Service’s Right to Complain about Special Services, which was then superseded by the Pro Bono Protocol 2001 set up by the [then] Solicitors Regulation Authority. Cases like R v Evans showed that even with the best possible barristers and the most specialist cases, without the assistance of the keen-eyed QC , errors can still be found and lead to the overturning of convictions. Even with all possible qualifications a QC may obtain, there is still the inherent human element that has the potential to result in errors and therefore overturned convictions based on those errors. It is important to remember that even if you have the most highly qualified barrister, those qualifications will mean nothing if the barrister is unrepresented in court proceedings. Equally, however, and perhaps more importantly, is the fact that it is essential that QCs are also prepared to challenge their instructions and "make sure justice is done". It may not be a particularly appealing side of practice, arguing against the person who is potentially your employer and can have a direct impact on your future career path, but in all reality it is still a key part of what a barrister must do in order to ensure justice is delivered. In cases where QCs have often been involved the successful overturning of wrongful convictions can be seen in many cases. For example, in 2008 Mrs Doris Duffy was convicted of the murder of her Husband but the decision was quashed at the Court of Appeal after the involvement of the QC Mr Howard Godfrey. In 2001, the Court of Appeals quashed the convictions of three men involved in a violent robbery.
Recent Developments Concerning Legal QCs
Recent reforms in many jurisdictions have served to erode the status of the QC (now known as Senior Counsel in some jurisdictions) in favour of a greater emphasis on performance and peer review. This is in direct response, as indicated by the various Law Societies and Bar Councils of the relevant jurisdictions, to the perception that the pre 1990s way of appointing QCs, solely by reference to seniority and self nomination, did not guarantee quality or excellence in the same way as current systems, which look to the expertise of the advocate seeking Silk status, as well as the opinion of his or her peers.
In Ireland reforms introduced in 2004, following the report of The Review Group on the Administration of Justice (The (Woods Group) resulted in the creation of an Independent Bar Management Structure (IBMS), which oversees the structure of appointments at the Senior and Junior Bar, the continuing education and development of barristers, the marketing of barristers’ services, the processing of complaints and dispute resolution. The IBMS is comprised of a number of independent committees (or wings, as they are known), including the Management Committee, which deals with all routine and day-to-day matters and is guided by a fundamental underpinning of enhanced independence and accountability, as well as a dedication to ensuring excellence among the membership.
In England and Wales and Canada, reform since 1990 has seen the introduction of the silk appointment system to replace the more traditional ‘barristerian’ informal ‘take it or leave it’ approach to promotion of experienced junior barristers within chambers. In the latter, barristers could call themselves ‘Queen’s Counsel’ or ‘Silk’, advertising themselves as such in printed materials, following approval from the heads of their chambers, without any recourse to outside expertise or peer review. Whilst attracting some criticism in terms of the degree of independence and objectivity to which those administering the system were held (and indeed complaints against those that wrongly retained their qc status), this system, in place for over two decades, has allowed the relative status of Senior Counsel to be maintained across a number of common law jurisdictions.
In Canada, for example, the appointment process, likening that of the IBMS for Ireland, now encompasses:
•peer review;
•public advertisement;
•a formal application process;
•the requirement that candidates demonstrate experience in complex litigation;
•lawyers’ notables, professional associations, and public interest organizations being invited to make submissions on behalf of a candidate;
•the roles of the Chief Justice of each province, of Canada, and the Governor General being further defined; and
•the final decision-making processes in Ottawa involving the Minister of Justice, the Governor General and the Prime Minister.
In 2001 New Zealand followed suit, splitting the role of the Judge and QC. In a move reflecting the Government’s desire to enhance access to justice when selecting Judges, the Court of Appeal was given the narrow discretion to appoint barristers of experience and competence to the highest level.
The awarding of the title of Senior Counsel in the USA is dependent on a range of state laws. California for example, recognises two levels of the title: a full bar admission for at least 10 years; and a legal specialty certification. However, the American College of Trial Lawyers (ACTL) also promotes individual commitment to the mastery of advocacy skills as a member of the College, based on the recommendation, peer review, and rigorous screening process.
Regardless of the mechanism for recognition, the common goal of all of these reforms has been to seek to instill objective, independent objectivity into the appointment of those who are considered to be at the pinnacle of their profession.
The Future of Legal QC
As we move into the coming decades the need for competent QC lawyers will only increase. While freelancers will be challenged to stay in front of technology and keep up with evolving rules and protocols, there is, ironically, opportunity in the face of technology driven change. QC lawyers are the ones who know the rules, and they will need to partner with their clients on a level of quality control that can only be delivered by trained experts. As automation and AI dramatically change the nature of tasks and roles at many companies, the need for review work by experts may become permanent.
Technology based review platforms are increasingly becoming the norm. Global databases and cloud computing are changing the nature of data storage and review so that companies can now outsource online review capabilities to any qualified QC expert around the world. The ability to manage review teams, manage work flow, assess risk, manage conflicts of interest and approve final documents is now possible from a centralized platform with built-in efficiencies hat support the process at every level. For example, QC providers can now communicate and organize work flow for teams of thousands of reviewers across jurisdictions, time zones and languages. More importantly, one central view now tracks the entire review process in real time, as it unfolds during a matter. It is not just alerts sent out only at the end of the day by email.
In addition, many QC lawyers who currently work with larger organizations now have the experience and expertise to work properly with smaller groups, both ad hoc and centralized. For example, a number of large law departments are starting to rely on world class QC providers to slow down the litigation process, in a good way, by taking the time required to set proper protocols and limits and create value from the outset.
During the past year, many of the major legal vendors have been scooped up by the Big 4 accounting firms and other private equity backed mega-outfits . Some are no longer in the game, but those who remain are growing larger. For now, clients seem to tolerate their expansions, but will they continue to do so? The reality of the business side of the practice of law has become indistinguishable from the role of the inside client lawyers; both are managers of budgets, operations and risk. However, clients and in-house lawyers have a choice, and that choice is increasingly turning toward boutique service providers who have strong reputations for delivery of cost effective and high-quality QC services. In this era of consolidation, smaller rivals are picking off legal market share not by charging less, but by providing a better experience. Litigation is now handled at lower cost and higher quality by a nimble and focused specialists, not by the use of larger providers whose growth is fueled more by acquisition and consolidation than process improvement. As clients seek to bring cost down by simplifying their operations and delegating lower level matters to vendors, QC specialists are well-positioned to capitalize.
The next 20 years are likely to bring continued challenges to conventional lawyering. The volume of transactions to be reviewed will only increase, as will the demand for more and cheaper mediation and arbitration. More people will take the leap into establishing their own practice, or leave practice altogether to take on consulting work in non-legal areas like regulatory compliance and public relations. The savvy legal QC professional should be able to adapt her knowledge and skills to work with these unexpected forms of legal work and to provide high value services without competition from the powerful mega-firms who dominate the legal landscape now. QC lawyers are less impacted by trends in firm business models and are more focused on how to improve value-in-use for their clients. The challenge for QC providers is to build business operations and delivery models that are agile, service oriented, and knowledgeable about the emerging legal landscape.