31 Dec 2011

Awarding oneself Silk–narcissism of a higher order.

As one of the longer standing ‘silks’, it is entirely appropriate that I should publicly welcome my colleagues in private practice at the Bar on their elevation to the Inner Bar. It is first time since the honour has been given to so many at the same time.

However, one must be careful not to give the impression that lawyers are a special breed who have a double entitlement to national honours. The award of silk should be limited to practising advocates who have distinguished themselves at the bar and not for lawyers who, for example, have distinguished themselves in other areas of public service not connected with the law. For them there is always the system of national awards if they are deserving.

I limit my welcome to practising members of the Bar and leave it to others to welcome those members of the judiciary who have surprisingly given in to accepting a title which is usually handed back, not granted, on elevation to the bench. The fact that in the past a Chief Justice was able to persuade a former Prime Minister to deviate from protocol and award the Chief Justice ‘silk’ is really no excuse for participating in the same breach of protocol in 2011. It raises the question of why these worthy gentlemen were overlooked before their elevation to the Bench.

It used to be that a short but very dignified sitting of the High Court was convened by the Chief Justice for the purpose of welcoming new “silks”. Existing “silks” were invited to attend. The new “silks” in their new robes sat at the outer Bar or second row of tables. The Court sat and the new ‘silks’ were addressed by the Chief Justice — “Mr X , do you move,” — whereupon the person moved from the second row of tables to the front row reserved for “silks”. No further addresses took place.

The Court rose and the new “silks” were welcomed by their colleagues. It is difficult to see how such a sitting could be held for a sitting Judge whose misguided vanity has persuaded him to accept silk.

It is only in the recent past that there was any deviation from the unwritten rule that “silk” was essentially for advocates and not for those practitioners who did not have audience or the right to appear and argue in the High Court. This rule effectively excluded solicitors who could only appear in the lower Courts. Since the profession has been merged and there is no longer the division between Barristers and Solicitors, all practitioners are eligible to take “silk”.

However it is still thought by the more discerning that the honour should be reserved for advocates particularly those who defend the liberty and the rights of the citizen in the High Court or the Court of Appeal — not as judges but as advocates. “Silk” has also been given honoris causa to academics who have contributed significantly to legal learning.

The award of “silk” carried considerable prestige but also certain unwritten protocols and conventions. These had a salutary and self policing role on those intrepid enough to apply for the honour. “Silk” was expected to appear at all times with a junior who, if a sole junior, was entitled to be paid a fee equal to 2/3rd that of “silk”.

Those whose vanity exceeded their ability have been known to go without work, not being able to persuade litigants that they were so good that the client should pay for both “silk” and junior.

Perhaps the time has arrived for the profession to have an open discussion on the procedures to be followed and the criteria for the award of the honour. This would insulate the executive from any possible accusation of political patronage in the sharing of the awards.

Karl Hudson-Phillips (in Newsday)

‘Silk’ is the recognition of (traditionally) a barrister to an elevation of ‘seniority’, a recognition by his/her peers on a basis of merit. During the reign of a female Monarch they are known as Queen’s Counsel. or QC. In the time of a male Monarch, King’s Counsel or KC. Trinidad and Tobago, recognising neither King nor Queen, elevates them to Senior Counsel, or SC.

The first ever recognised Silk was Sir Francis Bacon.

Now, in that statement above, Karl Hudson-Phillips was both right, and wrong, in my humble opinion. He was wrong in saying:

“The award of silk should be limited to practising advocates who have distinguished themselves at the bar and not for lawyers who, for example, have distinguished themselves in other areas of public service not connected with the law.”

This has been a traditional view but the rules have been relaxed and solicitors have now been recognised as Silks. One should note that solicitors and barristers are two separate recognised positions in England, the distinction being as follows:

“Before the unification of the Supreme Court under the Judicature Act 1873, solicitors practised in the Chancery Courts, attorneys practised in the Common Law courts and proctors practised in the Ecclesiastical Courts. After 1873 the titles of "attorney" and "proctor" disappeared as terms relating solely to legally qualified persons, being replaced by "Solicitor of the Supreme Court" in all courts.[2] Since the replacement of the House of Lords with the Supreme Court the full title of a solicitor is now “solicitor of the Senior Courts of England and Wales”.[3]

The term "attorney" is however still used under English law to refer to someone legally appointed or empowered (who may but need not be legally qualified) to act for another person. Currently, the term is most commonly used to refer to someone so appointed under the provisions of the Mental Capacity Act 2005 to act in this manner in a Lasting Power of Attorney.

In the English legal system, solicitors traditionally dealt with any legal matter including conducting proceedings in courts although solicitors were required to engage a barrister as advocate in a High Court or above after the profession split in two.” [Wikipedia]

In Trinidad and Tobago, the positions are merged.

Karl Hudson Phillips was right in implying that sitting members of the Judiciary ought not be awarded Silk. I also think it is a bit self-indulgent and narcissistic to award oneself this honour, as did Anand Ramlogan and Kamla Persad-Bissessar. Kamla Persad-Bissessar has not distinguished herself in any way, either as a barrister or solicitor and cannot be said deserving of Silk.

In the case of Ramlogan, I can say he at least deserves the honour, having made his ‘name’ during the course of his career. To award himself the honour is a bit much, isn’t it? Recognition should come from one’s peers, which is why I propose a committee from the Law Association to compile a list of nominees and a vote taken by members to award Silk.

Any thoughts?