QCs in Bermuda?

There are a number of jurisdictions which have a system for the appointment of senior or experienced barristers as Queen’s Counsel or Senior Counsel, following the English and Welsh legal tradition.

Bermuda is somewhat unusual, in that, from 1994 onwards, there has been no system for the local appointment of Queen’s Counsel.

Until 1994, Queen’s Counsel appointments in Bermuda had been made by the Governor, taking into account the views of the Chief Justice of the Supreme Court of Bermuda and the Bermuda Bar Council, pursuant to the Bermuda Bar (Queen’s Counsel) Rules 1988.

These Rules were revoked in 1994, however, following a special vote of the Bermuda Bar Association’s membership, the process having being criticized by some as lacking in transparency and sufficient objectivity.

This would have been all well and good, if it had resulted in a truly level playing field in the Bermuda legal marketplace.

There is an argument, however, that the past 25 years have witnessed a strange form of competition emerge in the Bermuda legal market place (particularly in the provision of advocacy services), whereby foreign QCs (from England and Wales, and occasionally from other jurisdictions such as Canada or Hong Kong) have been admitted to practice as advocates in Bermuda (sometimes only for specific cases, but increasingly on a general basis, when they have taken up residence in Bermuda), while at the same time being allowed to retain and use their foreign QC titles in Bermuda.

It is obviously a very good thing that the Bermudian market can access, and make use of, and attract, the very best in legal talent at the London Bar when it is appropriate or necessary to do so (and equally, if appropriate, the Canadian, Australian, Hong Kong, and Singapore Bars).

But perhaps the time has now come whereby a fair, objective and transparent QC appointment process is opened up to Bermudian lawyers (whether the scheme is administered locally in Bermuda, or in the UK).

Alternatively, perhaps a rule should be introduced whereby no lawyer in Bermuda, or appearing in a Bermuda Court or tribunal, is allowed to use the title QC locally, either professionally or in their marketing literature? This would, of course, be difficult to implement and enforce in practice.

Certain Bar Council representatives have indicated that the Bar Council may be exploring methods by which to effect some reform in this area, but no doubt this is a challenging area in which to establish a consensus and a clear way forward (given the 1994 vote), and it is probably quite low on their list of priorities.

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