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Senior Counsel scheme may be changed
©Reproduced by permission of the Singapore Academy of Law,
publisher of Inter Se
Inter Se approached the Senior Counsel Committee for an understanding of the Senior Counsel Scheme ("SC Scheme") from those who evaluate and select from its applicants. The Honourable the Chief Jusice Chan Sek Keong, a representative of the Selection Committee, delves into some of the questions we posed and shares his views on them.
What circumstances led to the implementation of the SC Scheme in Singapore in
1997? Was it a matter of natural progression, having cut formal legal ties with
England in the early 1990s? Or was the Scheme started to provide a career path
for practitioners? Would not competence, reputation and previous experience
provide adequate distinction? How important was it, at that time, to put in
place a scheme that would allow the Singapore legal community to develop its own
pantheon of respected advocates?
It was extremely important for Singapore to put in place a
formal scheme whereby our best advocates would be accorded due recognition by
the Judiciary for their legal expertise and advocacy skills. In the absence of a
such a scheme and the easy availability of Queen’s Counsel (“QC”) to plead in
our courts, it was inevitable that however good or skilful our advocates might
be, they would be looked upon by litigants and the public as second–class
litigators and inferior to any QC, whatever his seniority might be. This did not
reflect the reality in many cases, although in general it had to be conceded
that the best QC was a notch above our best advocate.
In other words, without a formal SC Scheme, we could end up
short–changing our own lawyers. The situation was, unfortunately, exacerbated by
the perception that QC would get a better hearing from the Judiciary than local
advocates, with the result that if one party appointed a QC to represent him,
his opponent felt that his case would not be given the same consideration if he
did not appoint another QC to represent him. In order to build up our own corps
of advocates that could be immediately recognisable by prospective litigants and
also by other advocates and solicitors, the SC Scheme was introduced. Such a
public recognition would also serve as an incentive for advocates to improve and
enhance their legal expertise and advocacy skills in order to attain that
status.
Clearly, the SC Scheme is patterned on the tradition of QC in England. Is the
Senior Counsel (“SC”) simply “Singapore’s equivalent to the QC”?
The SC Scheme was, of course, based on the English QC scheme which had a long history and was recognised throughout the common law world as being able to identify the best and most skilful advocates to provide the best legal services that money could buy. The English QC Bar is a relatively large Bar made up of a sufficient number of barristers to specialise in all areas of law, however esoteric they may be. The English QC Bar enjoys the advantages of volume and depth in terms of the types of legal problems in all fields of law that come before the courts. Singapore is a small jurisdiction, but there is no reason why in most areas of law practice, our SC are not in a position to offer legal advice or services of a quality equal to many of them. A Singapore SC is not simply an English QC transplanted with all the cultural values and prejudices of an English QC. A Singapore SC, having lived and worked in Singapore all his life, and enured to the cultural values of a Singaporean, may not necessarily view a legal dispute in the same way as an English QC.
So we need to take into account the societal context in which
we have established the SC Scheme. I do not think it is feasible, given our
political, economic and cultural circumstances, that we could or should aim to
produce SC to challenge the role of English QC in the common law world, although
from time to time, it is possible that we may produce a few SC who can match the
best of the English QC in terms of advocacy and mastery of the relevant law. For
example, to my personal knowledge, we have today a number of SC who are equal to
the best QC or at least better than many QC who have appeared before our courts.
The title of SC is awarded to an advocate and solicitor of the Supreme Court
of Singapore or a legal officer who, in the opinion of the Selection Committee,
is deserving of such distinction “by virtue of the person’s ability, standing at
the Bar or special knowledge or experience in law” and “the emphasis ... will be
upon outstanding ability as an advocate, professional integrity and maturity,
extensive grasp of the law as well as a successful practice”. What are the
Selection Committee’s benchmarks for these broad criteria?
In the case of some advocates who have been appointed as SC,
it has not been difficult for the Selection Committee to agree that they
deserved the accolade. In the case of others, there were questions of character.
An advocate might be eloquent or knowledgeable on the law, but one of the most
important qualities we look for is character. It is very difficult to define
character but what we look for is the integrity and honesty of the applicant and
whether we have implicit trust in him in doing the right thing, such as not
misleading the court in small things, citing legal principles out of context.
This means that those advocates who plead before the Court of Appeal often are
the most likely to be noticed and assessed on their character and merits long
before they apply for appointment as SC. Others who appear in the High Court
will of course be assessed by the judges before whom they have appeared.
Are there regular re–appraisals and re–accreditations of SC? If so, what is
the basis? If not, should there be?
The current system does not provide for regular re–appraisals
or re–accreditations of SC. Frankly, we did not think about it when the
legislation was drafted. We might have to reconsider the need for it. In
England, a QC’s normal occupation is to plead in court. Therefore according a
barrister the honour of a QC appointment does not change his normal occupation.
But, because Singapore has a fused profession, many of our SC have been pleading
less and less. So, in order that the SC Scheme does not fall into disrepute
where SC find it more lucrative to evolve into corporate lawyers, I will set up
a committee to see whether we should impose certain conditions for the
appointment of SC in future.
With few exceptions, the appointment of SC is something associated with
advocacy. Section 30(1) of the Legal profession act (Cap 161, 2001 Rev Ed),
however, is framed broadly so that it is possible that non–advocates may be
appointed under it. Is the SC Scheme advocate–centric simply because it has
evolved from a tradition that was reserved for English barristers or has it been
a deliberate decision?
Currently, the SC Scheme is meant for advocates. We are not
contemplating appointing pure corporate lawyers as SC, although we will continue
to appoint first–class academics as SC. One serious problem is that the
Selection Committee may not have the requisite knowledge to assess corporate
lawyers. We cannot rely entirely on the judgment of others for this purpose.
We might consider appointing Legal Officers with the requisite advocacy skills
and legal knowledge as SC if there is a need for it. Currently, the AG and SG
are ex officio SC.
Are the selection criteria different for practising SC and honorary SC?
The selection of honorary SC would be from a very small
circle of academics who have a proven record of outstanding contribution to the
development of the law.
What might be the response to those who argue that in the light of
Singapore’s fused profession, the idea of a scheme for “advocates” only is
introducing a “quasi–split profession” with the majority of complex litigation
work going to a handful of SC?
Whether or not we have the SC Scheme, litigation, whether
simple or complex, had always been confined to a small group of top quality and
experienced advocates. That is inevitable in all professions. A surgeon who has
operated on a 100 cases is likely to be better than one who has just operated on
ten. Experience counts a lot in advocacy. Therefore, the establishment of the SC
Scheme does not create a monopoly of litigation in SC. What it does is merely to
give recognition to the fact that they are already qualified to do the complex
litigation work. It is inevitable that complex litigation work will go more
often to SC than ordinary advocates, especially where the parties are
corporations or institutions with deep pockets.
In July 2002, the UK government published a consultation paper entitled In
the Public Interest? seeking views on the perceived benefits and potential
drawbacks of the QC system. Some of the concerns raised were: does the
conferment of “QC” mean a “licence” for those with the title to charge a higher
fee? Does the award enhance a QC’s competitive position over others? Does the
rank restrict competition and not allow market forces freely to determine the
allocation of resources? Is/will Singapore facing/face similar issues?
Our litigation Bar is a small Bar and most of our best advocates are partners in the largest law firms. That is a natural development because these firms would have the best research and other resources for any litigation. The conferment of the SC title would probably allow an advocate to charge fees that are commensurate with this standing. But, I do not think that it is a licence to charge higher fees. After all, the client has a choice. He does not have to pay the proposed fees because there are enough SC in the pool of SC to cater to the needs of clients. The SC Scheme does not restrict competition in any way, although it has to be admitted that the problem of SC being conflicted out of difficult cases can be a serious problem. However, I should add that the current composition of the Court of Appeal is such that a party with a good case on the law and/or the facts is not likely to lose the case because his advocate is less accomplished or skilful than the advocate of the other party.
Are there plans to admit increasing numbers of non–litigation practitioners as SC on the grounds that specialist knowledge of the law and high regard by the Bar is manifesting in increasingly diverse ways and the advocate–solicitor dichotomy is inappropriate to our local context? Is more being done to recognise potential honorary SC who specialise in areas of the law where the majority of his or her work is on paper or is directed towards achieving resolution out of court, eg, lawyers in trust, tax, employment law?
There are no plans to appoint non–litigators as SC, apart
from qualified academics. Top corporate lawyers are constantly subjected to
evaluation and scrutiny by their clients for the quality of their work. The
Asian Legal Business awards and also the rankings of the Legal 500 directory are
probably better guides to the quality of work of our non–litigation lawyers,
especially the corporate lawyers. We must be focused on what we are trying to
achieve through the SC Scheme. For the moment, the senior judges are in the best
position to judge who are the best and most trusted advocates of the day. In
contrast, the commercial sector is in the best position to judge whether they
are getting the best value for the fees they pay to their corporate counsel.
The appointment as SC is on an applications basis. Why is this so? Has this
approach in any way prevented due credit from being given to the deserving? Is
there an avenue for review for unsuccessful candidates?
There was no particular reason why we could not have adopted a scheme of appointing SC. But it cannot be a criticism of the Scheme because an application has to be made. If an advocate believes that he has all the qualities of an SC and deserves the appointment, he should apply to be so appointed. I do not see how an application system has prevented due credit from being given to the deserving. There is no reason why an advocate should be appointed as SC if he shows no interest in being an SC. But this is not an inflexible system. It is not uncommon for a deserving advocate to be given encouragement or some hint that he is fit to be appointed as SC.
There is no review for unsuccessful applicants. They can
apply as often as they think they have a chance of being appointed. Not all
first–time applications succeed. In any case, all applications are confidential
and members of the panel will take sufficient steps to respect their
confidentiality.
In Inter Se Print (Jul–Dec 2007), the Chief Justice remarked that
“Senior Counsel must act as role models for the young lawyers”. Is there a
mentoring scheme in place? How may Senior Counsels fulfil this role effectively?
Role models are not supposed to act as mentors but simply to serve and act as examples of what a model SC should be, ie, to display the qualities that we look for in an SC, such as: (a) having a high standard of advocacy in terms of articulation of arguments; (b) displaying knowledge of the substantive law relevant to the dispute; (c) having the ability to marshal complex facts and simplify them for legal exposition; (d) demonstrating mastery of legal procedure; (e) having the ability to think on his feet and produce sensible rebuttals of contrary arguments or a state of mind that can deal with unexpected difficulties or events; (f) conducting himself or herself with courtesy to the court; and (g) most importantly, being exemplary in ethical conduct and professionalism and someone whom junior advocates can look up to and emulate.
In Confucian terms, he would be regarded as a “superior”
advocate.
Inter Se thanks the Chief Justice for agreeing to this interview.