Appointing Senior Counsel – wrong priority, wrong approach

May 24, 2014 News

By Christopher Ram

Introduction
Depending on the background and interest of who one asks, their responses to identify the principal challenges facing the legal system could include the length of time cases take to conclude; the non-pursuit of cases because the victims don’t want to proceed; the unscrupulousness of some lawyers, especially when dealing with “vulnerable” clients; for groups who deal with women and child victims of violence, the willingness of many lawyers to defend their client by subjecting the victim to a second abuse; and access to justice.

Christopher Ram

Those with a greater familiarity with the legal system may identify the thousands of cases still to be scheduled for hearing by the courts (a case of justice delayed being justice denied); the non-functioning of the Judicial Service Commission, charged by the Constitution with responsibility to make recommendations on the appointment of judges and for the appointment, discipline and removal of the majority of senior judicial officers; the inordinate delay by some judges in providing written decisions despite the passage of legislation to remedy this mischief; the quality of submissions by attorneys and the resulting quality of the decisions by the courts; and misconduct by attorneys at law – senior and junior – including the egregious violations of the code of practice for attorneys prescribed by law.
Still others may express concerns about the situation whereby the offices of Chancellor and Chief Justice have for years been held by acting appointees, a situation clearly not contemplated by the Constitution; the low esteem in which the legal profession is held; the failure of the legal profession, including existing Senior Counsel, to speak out on violations of the Constitution and the rule of law; and the unawareness of any case whereby the Legal Practitioners Committee, the legal disciplinary body empowered to sanction attorneys-at-law for professional misconduct has actually disciplined anyone seriously.
Some may even list as their concerns, the failure to attract persons of the highest calibre and competence to the Judiciary and the magistracy; the perception that the legal profession defends and protects the brethren and sisters; the grave inadequacies of the Office of Director of Public Prosecutions including the failure to competently prosecute thousands of matters in the magistrates courts by poorly trained and incompetent police prosecutors; and the way certain persons seem immune from prosecution. And quite likely too, the apparently growing impotence of the state to secure high court convictions in serious criminal matters with the long acknowledged aversion to have indictable trials for serious firearm and narcotic offences.

Dignity
It appears, however, that these concerns do not coincide with the priorities of those who occupy the higher levels of the judicial and legal world. Perhaps it is because the problems identified above have been around for so long, consuming all, so that they can no longer recognise the public’s dismay, dissatisfaction and disrespect for the profession and the legal system.
Instead, now engaging attention is a process aimed at selecting persons for recommendation to the political directorate for elevation to the “dignity of senior counsel”, the language used in an advertisement currently running in the media appointment as senior counsel.
The classification of legal practitioners between senior counsel and (junior) counsel is a peculiarity of the common law system which Commonwealth countries have inherited from England. Some Commonwealth countries have debated the merit and justification of the class distinction and in some states the practice of appointing Queen’s Counsel, or Senior Counsel in republican countries, has been discontinued.
Indeed, in England itself, the Tony Blair Government reviewed the case for the continuation of the designation of Queen’s Counsel. While the decision was made in 2003 to retain it, it is instructive to note the reason for retention given by Lord Falconer of Thoroton (then Lord Chancellor) who told the House of Lords:
“We felt it was wrong to abolish the rank of QC when there was considerable evidence that it benefited the market – in particular, so far as concerned the international business that came to London in relation to legal services.”
Having decided the issue on economic grounds, England then amended the process of selection to include non-lawyers, to remove political influences, and to make the process more transparent. The economic justification is also being used in Australia whose lawyers practise in Singapore, Hong Kong and Malaysia.
With our growing reputation for being legal mendicants, it may well be that the days of Guyana’s lawyers being recognized within the region for scholarship and high standards has been forever lost.

Wrong priority, wrong approach
Here in Guyana, amidst all the unresolved challenges referred to above, the appointment of several attorneys as senior counsel now takes centre stage, controlled entirely by members of the profession and applying, essentially, the eligibility criteria for appointment used in England.
I think this is entirely misconceived. In England the rule of law prevails and the profession would be outraged if any government or government minister acts unconstitutionally, unlawfully or improperly. On a regular basis there, lawyers are disciplined and disbarred for professional misconduct, while the commingling of clients’ funds would be considered egregious, punishable by expulsion.
The legal professional bodies are respected and are competent to enforce the legal rules. It would be unthinkable that a convicted criminal can practise at the bar in England and that the professional bodies will remain silent. As a rule, lawyers show respect for their clients and the rules regarding charging of fees are more transparent and honourable.
By contrast, in Guyana, the stories of misconduct by attorneys at law are legendary and are retold as matters for humour rather than offense and embarrassment. Whenever I express disappointment and dismay I am told “Ram, you have not seen anything yet “.
A number of clients of other attorneys have complained to me about the sheer lack of professionalism, and in some cases, dishonesty bordering on fraud by their attorneys. When I suggest that they take the matter to the Legal Practitioners Committee established by law to investigate complaints against attorneys at law, they express fear of the consequences and for the deposits paid their attorneys, sometimes without receiving a receipt.
There is no Continuing Professional Education and it is anyone’s guess whether attorneys are familiar with the Code of Conduct set out in the Fourth Schedule to the Legal Practitioners Act. It is no surprise then that breaches of the Code are a routine occurrence among junior and senior lawyers and it would be interesting to ascertain how many attorneys keep “[clients’] money in a bank account separate from their own”, as the Code requires.
One attorney who practices in the magistrates’ courts was telling me only a couple of days ago of the collusion between attorneys at law and prosecutors for bail to be refused at the level of the magistrates’ courts so that higher fees can be demanded from clients when an application is made to the High Court, during what some rather unscrupulous lawyers now call the happy hour, for six-figure fees.

Conclusion
Given the personal agenda and private and professional interests involved, the process for the appointment of senior counsel will no doubt proceed, and no doubt, sadly too, the dysfunction in the legal system will continue.
Yet, in the public interest, I hope that the senior members of the legal architecture can be moved to advocate for the problems confronting the legal system to be addressed urgently.
In this regard, they may wish to consider whether the reconstitution of the Judicial Service Commission or the reforming of the Legal Practitioners Committee would be sufficient to resolve the problems or whether we need a Commission of Inquiry into the justice system to identify and deal with the problems holistically. Other common law countries review their legal system routinely. There is a lot we can learn from them.
I respectfully submit that the case for appointing senior counsel can hardly be placed ahead of sincere attempts to fix the far more serious, important and urgent problems facing the justice system. I doubt that anyone will suggest that such appointments are even relevant at this stage, or conducive to addressing those problems.
But if we have to engage in an exercise about senior counsel let us have an open discussion involving the public whether the distinction has served the public interest or whether it should be abolished altogether.
And if at the end of the day it is decided to retain the category, let the selection process and panel include non-lawyers. If lawyers honestly believe that they serve the public interest, they can hardly justify