QCs in Bermuda – a challenging situation?

400-10 Bermuda Bar Act (Queens Counsel) revocation rules 1994

I have previously written a blogpost on the topic of QCs in Bermuda (or not).

The recent news that a practicing member of the Bermuda Bar has successfully applied for appointment as a Queen’s Counsel of England and Wales has apparently led the Bermuda Bar Council to re-consider the pros and cons of re-introducing a local QC appointment scheme, with a Special General Meeting of the Bermuda Bar Association being planned to debate this particular issue.

Although there is a respectable minority point of view that the QC appointment system should be abolished in every jurisdiction that operates one, that argument has been defeated, thus far, by a majority consensus that has developed as a result of improvements to the fairness, independence, transparency, credibility and public accountability of the appointments process.

In England and Wales, for example, the rank and appointment system were almost abolished in 2003, but the rigour of the current QC Appointments system, as it was introduced in 2005 and further refined thereafter, appears to have restored its credibility, both within the United Kingdom and internationally.

Bermuda’s current approach to the potential appointment, and use, of Queen’s Counsel is clearly unsatisfactory.

The real issue for debate, however, is this: assuming that Bermuda is to re-introduce and maintain a credible local QC appointment scheme (with the necessary support of the Bar, the Judiciary, the Government, the Governor, and members of the public), how should such a system be designed and administered, and by whom, and by what rules should it be governed?

Therein lies the challenge. It would be counter-productive, for example, to reintroduce an appointment system that was designed and administered by the Bermuda Bar Council itself, leading to the appointment of a self-selected group of people on a basis that was less than fully transparent …

In the meantime, it remains to be seen whether any other members of the Bermuda Bar take up the (different) challenge of applying for appointment under the English appointment system (for which all members of the Bermuda Bar are, at least in theory, eligible).

*** UPDATE ***

I thought it might be helpful to update this Blogpost to remind readers of the fact that the Bermuda Bar (Queens Counsel) Rules 1988 (which were a statutory instrument made under section 9 of the Bermuda Bar Act 1974, BR 32/1988), were revoked in 1994 (see the documents available at the top of this Blogpost), amongst apparent dissatisfaction (on the part of a majority of those members of the Bermuda Bar Association interested enough to vote on the topic) with the manner in which the appointments process under those rules was being operated.

Looking at the 1988 rules today, they do seem rather absurd, and probably inappropriate for today’s circumstances and conditions in Bermuda, some 30 years later.

For example:

  • under rule 4, the rank of Queen’s Counsel in Bermuda was said to be open to all practicing lawyers, “whether or not they are in practice as advocates“. But surely the main purpose of such a rank or award (as has been recognised in England and Wales) is that it is only conferred on truly excellent ‘advocates’ (even if a separate class of award, Honoris Causa, might separately be conferred upon very distinguished academics, writers, or corporate lawyers, whose contributions to the law have been very special, for some other reason or another)?
  • under rule 6, the rank of Queen’s Counsel was to be awarded to barristers of at least 15 PQE, who were (subjectively/objectively…?) ‘considered to be of eminent stature in the practice of law in Bermuda‘ and ‘considered to be of the highest standard of professional reputation and integrity’. The lack of precise definition in these two phrases, and the lack of any detailed, objectively ascertainable criteria, is eyebrow-raising today (especially when compared with the level of detail, the defined ‘competencies’, and the supporting evidence that is required under the English appointment system).
  • The application procedure, under rule 7, did not appear to require any uniform application form; nor the provision of any objective (or minimum number of) references or assessments (whether from judges, arbitrators, clients, or fellow professionals); nor the provision of any recent or contemporaneous evidence of excellence. So how were applicants actually assessed? How was it actually determined that they were of ’eminent stature’ or of the ‘highest standard of professional reputation and integrity’?
  • To make matters worse, the applications were determined by the Governor, apparently in his discretion, subject to the opinions of the Chief Justice and the Bar Council. Since the Bar Council is composed of practicing lawyers (elected on an annual basis, often at uncontested elections), the Bar Council can hardly be, or be seen to be, independent or objective. And while the Chief Justice is no doubt one of the independent judges that is – or should be – best placed to contribute to an assessment of an applicant’s qualities as an advocate, what of the views and opinions of the other judges of the Supreme Court, the Court of Appeal, and the Privy Council, and the views of arbitrators, tribunal panel members, magistrates, or mediators? Were these views to be canvassed and volunteered by the applicant as part of his application? Or were these to be ascertained through a process of secret soundings on the part of the Chief Justice? And to what extent could an advocate maintain a fearless approach to his advocacy before the Chief Justice, in those circumstances?
  • the total number of Queen’s Counsel for Bermuda was subject to an upper cap, that there should never be more than 10% of the total number of Bermudian barristers practicing at any one time that are recognised as QCs. The 10% figure is, one might argue, far too high for today’s environment, in circumstances where there are now about 450 practicing barristers in Bermuda (a much larger number than existed in 1988), many of whom focus entirely on corporate, trusts, or non-contentious legal business. Bermuda clearly has no need for 45 Queen’s Counsel at any one time – indeed, it is unclear whether there are even 45 full-time practicing advocates and litigators at the Bermuda Bar. So, whatever ‘cap’ is to be imposed (whether legally or in practice), it must surely be a number much lower than 45 – and spread out over time!

If anybody actually reads this Blog, or has an interest in this topic, I am open to feedback…

 

 

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