ROAD TO SILKEN SEDUCTION
It is indeed heartening to see that the Honourable Attorney General has decided that there needs to be an overhaul of the entire system for the assessment and award of silk in this country. What is of some disquiet though, is that by appointing Mr Samraj Harripaul, the chairman of the Law Reform Commission to prepare a Green Paper in this regard, he unfortunately places Mr Harripaul in a rather invidious position. Mr Harripaul was among this very group of silks which has attracted so much attention and scrutiny, so that any recommendations, proposals or suggestions emanating from him in this regard would be likely viewed with rose coloured lenses, and be open to even more public scrutiny and objection.That apart, the objectives of the Attorney General are laudable insofar as he seeks to have us look at this British tradition inherited as a legacy of our colonial past. But while discussion on these issues is welcomed, I am of the considered opinion that we as attorneys must first and foremost examine our primary role and duty, which is to serve the needs of the public. Taken from that standpoint, we would be forced to ask ourselves, what is the real benefit and value to the public of this entire system of silk and Senior Counsel status? Has it in fact become not much more than a road to silken seduction, a means of achieving self-praise, self-enrichment and self-aggrandisement? How does the public really benefit from this?
It is, of course, of benefit to the public for them to know who are the good lawyers and who are not. And while there may be merit in the suggestion of Senior Counsel Israel Khan that we scrap the system entirely, it think it behooves a mature thinking society to move a bit beyond this and not just debunk the system without any replacement or alternative system. Surely, we should consider getting rid of the Senior Counsel system. But what we truly need is a proper, measurable, transparent and fair process whereby attorneys can be assessed and even graded for the benefit of the public. This way, there will be no ambiguity or obfuscation as to who are the good, mediocre, great or super attorneys and who are not. It helps the public to know who are the specialists in the respective areas and who are not. This would now be something useful and relevant to the public so that they can be guided when they are seeking attorneys as specialists or as exceptional advocates in certain areas. A useful starting point would be to look at the present system that is in place by way of the practice direction given in 2007, whereby bands of A to E were assigned to attorneys for the guidance of setting fees. (SEE TABLE 1)
From this table it can be seen that these guidelines for fees are unfortunately based only on an attorney’s years of call at the Bar. The problem with this is that you may have a situation whereby an attorney may be in practice for “donkeys years”, to use the local parlance, and still may not be sharp, up-to-date and current with recent judgements, precedents, cases and authorities. The attorney may not be abreast of recent changes in legislation and regulations and may not really be giving the kind of quality or service that so many years of practice should reflect. We therefore need to look at changing it to a purely merit based system, which I propose as follows: • We make it a purely voluntary system, so that if an attorney does not wish to participate in the grading system he is free to do so and can happily remain at the lowest tier and rung of the ladder and his fees would be reflective of same.
• We introduce a new grading system—A to E, with E being the lowest and A being the highest, so that immediately upon entering practice you start off as an E class attorney and you work your way up the ladder towards the pinnacle of professional excellence and recognised standards by becoming an A class attorney.
• After every four years of practice in a grade, an attorney would be eligible to sit the exams and then apply for promotion to the next higher grade. Thus, in a minimum of 16 years it could be possible for a really exceptional attorney to become “A” class, at the pinnacle of the profession and enjoy all the perks, privileges and profits which would flow therefrom.
• This ensures that there must be at least 16 years in practice before anyone can even contemplate applying to become an “A” class attorney. More importantly, by this systematic grading and continuous assessment, the public will be well aware and know that someone who reaches “A” class level has been tried and tested over time, passing all the successive levels along the way towards becoming truly “A” class.
• The grading system must involve an assessment of the exam results, the track record and novel cases or areas of development/specialisation of the law that the attorney has been involved in, their portfolio of public/pro bono service and their general contributions to the improvement, development and enhancement of the legal profession as a whole.
• A panel of individuals from the Council of Legal Education, a couple retired judges, and representatives from the Law Association and the Judicial and Legal Services Commission could comprise the panel and be responsible for the setting and/or vetting of the exams and the assessment of attorneys at the relevant stages.
This would present the public with a much more useful, pragmatic and progressive guide to assessing and choosing attorneys on the basis proven skill and competence, and would remove all the secrecy, appearance of bias and/or political interference, once we get off this road to silken seduction.
Band A Instructing under 5 years call
Advocate under 5 years call
Band B Instructing over 5 years but under 10 years call
Advocating over 5 years but under 10 years call
Band C Instructing over 10 years but under 20 years call
Advocating over 10 years but under 20 years call
Band D Instructing over 20 years call
Advocate over 20 years call
Band E Senior Counsel/Queen’s Counsel
Extracted From: Trinidad Guardian Newspaper