King's Counsel
A King's Counsel is a senior lawyer, usually a barrister, appointed by the monarch of some Commonwealth realms as a "counsel learned in the law". When the reigning monarch is a woman, the title is Queen's Counsel.
The position originated in England and Wales but is now to be found in other Commonwealth realms. Some jurisdictions have retained the designation, while others have either abolished the appointment or renamed it so as to remove its monarchical nomenclature – for example, to "Senior Counsel" or "Senior Advocate".
Appointment as King's Counsel is an office recognised by courts. KCs in the UK have the privilege of sitting within the inner bar of court. As members wear silk gowns of a particular design, appointment as King's Counsel is known informally as taking silk and KCs are often colloquially called silks. Appointments are made from within the legal profession, sometimes after an application process administered by a legal professional association. This process is designed to yield appointees based on merit and, it is said, not a particular level of experience. Nevertheless, successful applicants are normally barristers with at least 10-15 years of experience.
In most Canadian jurisdictions, the designation is regulated by statute, such as the King's Counsel Act of British Columbia, that requires the candidates to have a minimum five years of experience, and to have made an outstanding contribution to the practice of law with high professional standards and good character and repute.
Historical origins in England and Wales
Historical background
The attorney general, solicitor-general and king's serjeants were King's Counsel in Ordinary in the Kingdom of England. The first Queen's Counsel Extraordinary was Sir Francis Bacon, who was given a patent giving him precedence at the Bar in 1597, and formally styled King's Counsel in 1603. The right of precedence before the Court granted to Bacon became a hallmark of the early King's Counsel. True to their name, King's and Queen's Counsel initially were representatives of the Crown. The right of precedence and pre-audience bestowed upon them – a form of seniority that allowed them to address the court before others – allowed for the swift resolution of Crown litigation.The new rank of King's Counsel contributed to the gradual obsolescence of the formerly more senior serjeant-at-law by superseding it. The attorney-general and solicitor-general had similarly succeeded the king's serjeants as leaders of the Bar in Tudor times, though not technically senior until 1623, except for the two senior king's serjeants, and 1813, respectively.
King's Counsel came to prominence during the early 1830s, prior to which they were relatively few in number. It became the standard means to recognise a barrister as a senior member of the profession, and the numbers multiplied accordingly. It became of greater professional importance to become a KC, and the serjeants gradually declined. The KCs inherited the prestige of the serjeants and their priority before the courts. The earliest English law list, published in 1775, lists 165 members of the Bar, of whom 14 were King's Counsel, a proportion of about 8.5%. roughly the same proportion existed, though the number of barristers had increased to about 12,250 in independent practice.
In 1839, the number of Queen's Counsel was seventy. In 1882, the number of Queen's Counsel was 187. The list of Queen's Counsel in the Law List of 1897 gave the names of 238, of whom hardly one third appeared to be in actual practice. In 1959, the number of practising Queen's Counsel was 181. In each of the five years up to 1970, the number of practising Queen's Counsel was 208, 209, 221, 236 and 262, respectively. In each of the years 1973 to 1978, the number of practising Queen's Counsel was 329, 345, 370, 372, 384 and 404, respectively. In 1989, the number of practising Queen's Counsel was 601. In each of the years 1991 to 2000, the number of practising Queen's Counsel was 736, 760, 797, 845, 891, 925, 974, 1006, 1043, and 1072, respectively.
In the 19th century in England, the position was primarily one of rank within the profession, giving the holder certain rights and privileges in the courts. They were ranked as senior counsel, and took precedence in argument after the Attorney General and the Solicitor General of England. Barristers who were not King's Counsel were termed junior barristers, and followed senior barristers in argument. King's Counsel normally always appeared in courts with a junior barrister, and led the direction of the case. The junior barrister on a case could not disagree with the direction determined by the senior barrister.
On colonial appeals to the Judicial Committee of the Privy Council, established in 1833, the rule originally was that the case had to be led by a Queen's Counsel from England, even if the colonial counsel held the same rank in the colonial courts. This rule was not eliminated until 1884, half a century after the establishment of the Judicial Committee.
Gradually, the appointment as King's Counsel or Queen's Counsel shifted from a vocational calling to a badge of honour and prestige. In 1898, Lord Watson noted in his opinion in Attorney General of the Dominion of Canada v. Attorney General for the Province of Ontario, writing on behalf of the Judicial Committee of the Privy Council, that:
Restrictions
Until the late 19th century, some barristers were granted a patent of precedence in order to obtain the same precedence as a KC without the concomitant restrictions. King's Counsel were originally considered an office of profit and hence, under the Act of Settlement 1701, incompatible with membership of the House of Commons. KCs were also required to take the Oath of Supremacy, which Daniel O'Connell refused as a Roman Catholic. Despite being the most prominent and best-paid barrister in Ireland, he was a junior counsel for 30 years until granted a patent of precedence in 1831.From the beginning, KCs were not allowed to appear against the Crown without a special licence, but this was generally given as a formality. This stipulation was particularly important in criminal cases, which are mostly brought in the name of the Crown. The result was that, until 1920 in England and Wales, KCs had to have a licence to appear in criminal cases for the defence. King's Counsel and serjeants were prohibited, at least from the mid-nineteenth century, from drafting pleadings alone; a junior barrister had to be retained. They could not appear in judges' chambers or inferior courts, either, other than in exceptional cases. They were not permitted to appear in court without a junior barrister, and they had to have barristers' chambers in London.
These restrictions had a number of consequences: they made the taking of silk something of a professional risk, because the appointment abolished some of the staple work of the junior barrister; they made the use of leading counsel more expensive, and therefore ensured that they were retained only in more important cases; and they protected the work of the junior bar, which could not be excluded by the retention of leading counsel. By the end of the twentieth century, however, all of these rules had been abolished. Appointment as QC has been said to be a matter of status and prestige only, with no formal disadvantages.
In the 21st century, King's Counsel continue to have the seniority in audience, following the Attorney General and the Solicitor General. It is still the rule that junior counsel must follow the lead of senior counsel in pleading a case, and cannot depart from senior counsel's approach to the issues.
Women appointed
The first woman appointed King's Counsel was Helen Kinnear in Canada in 1934. The first women to be appointed as King's Counsel in England and Wales were Helena Normanton and Rose Heilbron in 1949. They were preceded by Margaret Kidd KC appointed a KC in Scotland in 1948. In Australia, the first QC appointed was Roma Mitchell, appointed 1962, who later became the first female Justice of the Supreme Court of South Australia, and then the first female Acting Chief Justice.Recent developments in the United Kingdom
England and Wales
In 1994, solicitors of England and Wales became entitled to gain rights of audience in the higher courts, and some 275 were so entitled in 1995. In 1995, these solicitors became entitled to apply for appointment as Queen's Counsel. The first two solicitors were appointed on 27 March 1997, out of 68 new QCs. These were Arthur Marriott, partner in the London office of the Wilmer Cutler Pickering Hale and Dorr, and Lawrence Collins, a partner in the City of London law firm Herbert Smith. Collins was subsequently appointed a High Court judge and ultimately a Justice of the Supreme Court of the United Kingdom.The appointment of new Queen's Counsel was suspended in 2003, and it was widely expected that the system would be abolished. However, a vigorous campaign was mounted in defence of the system. Supporters included those who considered it as an independent indication of excellence to those who did not have much else to go on, and those who contended that it was a means whereby the most able barristers from ethnic minorities could advance and overcome prejudice as well as better represent members of an increasingly diverse society.
The government's focus switched from abolition to reform and, in particular, reform of the much-criticised "secret soundings" of judges and other establishment legal figures upon which the old system was based. This was held to be inappropriate and unfair given the size of the modern profession, as well as a possible source of improper government patronage, and discriminatory against part-time workers, women, and ethnic minorities.
In November 2004, after much public debate in favour of and against retaining the title, the government announced that appointments of Queen's Counsel in England would be resumed but that future appointees would be chosen not by the government but by a nine-member panel, the Queen's Counsel Selection Panel, chaired by a lay person, to include two barristers, two solicitors, one retired judge, and three non-lawyers. Formally, the appointment remains a royal one made on the advice of the Lord Chancellor, but without comment on individual applications. The Lord Chancellor supervises the process and reviews the panel's recommendations in general terms.
Application forms under the new system were released in July 2005 and the appointment of 175 new Queen's Counsel was announced on 20 July 2006. A total of 443 people had applied. Of the 175 appointed, 33 were women, 10 were ethnic minorities, and four were solicitors. Six people were also appointed QC honoris causa.