The independence of the Judiciary,” he said, “is totally incompatible with holding a title which required service to the Crown/State/Government.”
In a lengthy open letter to Newsday yesterday addressed to young attorneys-at- law in which he gives the history and practices with respect to the taking of Silk, Hudson-Phillips said it was “a grave matter and a serious contradiction for a judge to request or accept Silk if offered.”
“It flies in the face of the hallowed principle of the Separation of Powers. It also compromises the perception of both the Judiciary and the Bar,” he argued. Hudson-Phillips’ letter followed a ceremony last week in which President George Maxwell Richards handed instruments of appointment as senior counsel (Silk) to 16 attorneys including Archie and Kangaloo as well as Prime Minister Kamla Persad-Bissessar, Attorney General Anand Ramlogan and Director of Public Prosecutions Roger Gaspard.
Hudson-Phillips questioned whether the new Judicial Silks would pay the annual subscription fee that all Silks pay of $6,000 to the Law Association and attend meetings of that body discussing relations with the judges? Would this annual subscription be paid by the judges or the State? Would they make the compulsory contribution to the Compensation Fund out of which aggrieved litigants are paid for “bad” work by lawyers? He also asked whether the contribution covered judgments and loss occasioned by judicial delays as well.
Hudson-Phillips also quoted precedent for Silk returning his instrument or Letters Patent the last of which occurred in this region in Jamaica when Ian Ramsay, QC returned his Letters Patent to show his disapproval of judicial conduct in a particular matter.
“Perhaps the time has come for appropriate legislation to be passed setting up a Board for the appointment of Senior Counsel. The Board should have an appropriate mix of members from the past and present judges, practising attorneys-at-law and knowledgeable lay persons of proven integrity. Rules should be legislated for the criteria expected to be met by applicants as well as the standards to be maintained and obligations imposed on Silks, he said.
“Institutions which it has taken centuries to build up can so easily be destroyed over night by the insensitive and thoughtless. It will take as long again to rebuild what has been destroyed on the altar of vanity. And this does not only apply to the legal profession. Holders of high office in all departments of State have a responsibility to ensure that the institutions over which they preside are as strong at the end of their terms of office – at any rate not weaker – as when they assumed leadership of them. The State and its agencies have a responsibility to set standards of total rectitude and fairness in all of the Institutions of the People,” he said and concluded, “Let us act quickly before there is nothing left of which to be proud in the legal profession in Trinidad and Tobago.”
Hudson-Phillips’ letter also listed famous advocates who impacted national life in Trinidad and Tobago. He referred to Sir Gaston Johnston, “leader of the criminal bar and renowned cross examiner”; Sir Lennox O’Reilly, “silver tongued legendary advocate”; Sir Leonard Courtenay Hannays, “pleader par excellence and the sharpest of wits”; Sir Hugh Wooding, “the consummate advocate and lawyers’ lawyer”; Lionel Seemungal, “the cerebral and multi-talented”; and Tajmool Hosein “perhaps the cleverest and most industrious of the modern lot who is still with us.”
Since the 16 appointments on December 30, there have been questions raised as to the propriety of the entire system of attaining Silk and calls for a more transparent approach to bestowing the title. Questions have also been raised over the role of the Prime Minister bestowing the title on herself seeing that she is the office-holder who recommends the appointments. The following is an open letter to young attorneys written by Karl Hudson-Phillips QC in which he discusses the appointments of senior counsels, or silks, and the legal profession.
My letter on the recent appointment of Senior Counsel has exposed a surprising lack of understanding about the legal profession not just by the public but also by members of the profession as well.
As expected, I have attracted comment from those who wish to cheapen public discussion by descending to the personal while hiding behind assumed names. When something is seriously wrong one must have the courage to speak up and openly. Wrong must not be made right by silence. One should never stop casting pearls.
At least I have achieved the objective of drawing the attention of the public to the issues which need to be addressed openly, soberly and dispassionately. Fundamentally it shows a serious ignorance of an important national institution which should not be allowed to pass. I think that I owe the public an apology for not being more explicit in what I had to say.
If I were asked to describe the legal profession I would say that it can best be described as vertical rather than horizontal.
Historically, the standards, structure and success in it are more like a ladder than flat like the horizon. It operates best when professional work is divided among specialists who themselves are placed in an order of hierarchy. Seniority and standing determine status in the legal profession. Date of call or joining the profession gives one’s order of precedence. Managing clerks are the ‘sergeant majors’ in properly run advocates’ chambers.
Pupils defer to juniors, solicitors and instructing attorneys to counsel, juniors to Silks, Silks to senior Silks. Judges rank from date of appointment or date of promotion in an unwritten but binding set of protocols and understandings. To be proper, we address each other always by surname although the more familiar Americanism of addressing by first names is creeping in. Judges are ‘My Lord or Lady”. Not so long ago we charged in guineas – twenty one shillings to the pound of $4.80 making for $5.04. The extra shilling was for the Managing Clerk. Each of us has a registered number called a Bar number which has to be used on filing documents to authenticate our practice status. It is like no other profession. The only ministerial office for which it is generally accepted that the holder must have a particular professional qualification is the post of Attorney General. He is always an Attorney-at-Law.
The legal profession in Trinidad & Tobago is now merged. This means that there is no longer the distinction between Solicitors and Barristers. Loosely speaking, Barristers were the lawyers who appeared and argued on behalf of clients both in the Magistrates’ and Supreme Courts in both of which they are said to have audience.
Solicitors on the other hand could only appear and argue in the Magistrates’ Courts. They did not have audience before the Judges in the High Court. The role of a Solicitor in relation to litigation was to instruct the Barristers who had audience in the Supreme Court.
In the past Barristers and Solicitors went through different systems of legal education. Barristers had to become members of the Inns of Court in London.
They had to pass exams set by the Bar Council of the United Kingdom and on passing the Bar finals were eligible for call to the Bar in the United Kingdom and automatically in Trinidad and Tobago. Apart from passing the Bar final examination, Barristers were required to register at an Inn of Court and spend a minimum number of terms by personally attending dinners in Hall. Without having registered the minimum number of terms, even though one had passed the Bar final examination one could not be called to the Bar.
Solicitors on the other hand took exams set by the Incorporated Law Society of the United Kingdom and had to be articled to a registered Solicitor. Articles could be served either here in Trinidad and Tobago or any Commonwealth country which recognised the Incorporated Law Society of the United Kingdom as the accrediting body for Solicitors.
On passing the final exam of the Incorporated Law Society of the United Kingdom the person was admitted to the Roll of Solicitors in Trinidad and Tobago.
Simply and very basically put, the Solicitors were the lawyers who took statements from witnesses and sent a Brief to Barristers for opinions and advice. If the advice was that the client should file a writ or commence an action, the Barrister would draft the claim and the pleadings and these would be filed by the Solicitor. Thereafter, the Solicitor worked on the advice of the Barrister/Counsel. Barristers never met and interviewed witnesses except in criminal cases. They worked for honouraria and at one time could not sue for fees owed.
In addition to instructing Counsel, Solicitors did the majority of conveyancing or the drafting and filing of deeds concerning the transfer and mortgaging of lands, the probating of wills and applications for the grant and the administration of estates of the deceased.
They could also give advice to standing clients. Barristers were permitted to but rarely did conveyancing unless they were conveyancing counsel. In this case counsel would have experienced conveyancing clerks who did the searches and often the final deeds to be signed off on by counsel.
In this way Solicitors or conveyancing counsel were never classified or considered as advocates because they were not permitted to and did not appear as advocates in the highest courts. That is how it used to be. This caused no hardship nor was it discriminatory as a person was free to decide if he or she wanted to be an advocate, conveyancer or a solicitor. It is now a matter of choice and inclination. This structure of the profession is what used to pertain and to a large extent still does for example in the United Kingdom.
It is from there that Trinidad & Tobago and the majority of the Commonwealth countries inherited the structure of their legal professions.
More recently, in several Commonwealth countries, including the whole English speaking Caribbean, the legal profession has been merged. There is no longer the formal distinction between those doing the work of solicitors and those practicing as barristers or advocates and all members of the profession are now referred to as Attorneys-at-Law.
Now, both are equally eligible to appear in all Courts. This is the logical result of the fact that the legal training for lawyers in the Caribbean has been unified. All Attorneys-at-Law, whether they intend to be advocates or non-advocates, receive exactly the same professional training at the Hugh Wooding Law School in Trinidad and Tobago or its equivalent in Jamaica and the Bahamas or elsewhere in a country where the common law is practised. This made the professional division between solicitors and advocates unsustainable.
So now, once a person qualifies as an Attorney-at-Law in the Commonwealth Caribbean, he/she can appear and argue before all and any Court or Tribunal for which admission to the Bar is a requirement if he/she so wishes. This notwithstanding, there are still those who naturally practice as advocates and those who prefer to do the type of work formerly done by solicitors. Some practitioners do a combination of both types of work. But this is purely a matter of individual choice and aptitude or more correctly temperament.
All are not born to be advocates just as all are not cut out to sit in chambers and draft deeds and instruct advocates. Both functions require a particular temperament, flair and skill. Advocates tend to be the extroverts and orators impacting on the public while the instructing attorneys perform work that is less in the public face. This has been so since the days of famous advocates like Cicero in ancient Rome. His addresses for the defence in Cicero pro Milone and for the prosecution in Cicero in Verrem were prescribed texts in Latin at one time for the Higher School Certificate (now ‘A’levels). The speeches of Sir Hartley Shawcross and Judge Robert Jackson for the prosecution in the Nuremberg trials of World War II Nazi war criminals are considered classics worth reading by all. All young Attorneys-at-Law should read the addresses of counsel in the series Notable British Trials.
Right through the centuries famous advocates have impacted national life in common law countries of which Trinidad and Tobago is no exception. Some of the great advocates in Trinidad and Tobago in the last century were for example Sir Gaston Johnson leader of the criminal bar and renown cross examiner; Sir Lennox O’Reilly, silver tongued legendary advocate; Sir Leonard Courtenay Hannays, pleader par excellence and the sharpest of wits; Sir Hugh Oliver Beresford Wooding, the consummate advocate and lawyers’ lawyer; Lionel Seemungal, the cerebral and multi talented; lest one forget, Tajmool Hosein, perhaps the cleverest and most industrious of the modern lot who is still with us. They all took ‘Silk’ and O’Reilly, Hannays and Gaston Johnson were knighted while at the Bar. Wooding was knighted on his appointment as the first Chief Justice of independent Trinidad and Tobago. I mean no disrespect by not mentioning others.
Historically it has always been the advocates who impacted and shaped not only the public perception of the legal profession but often the course of public events. For this they were recognised in a particular way by the Monarch – both Kings and Queens. Although there are different versions of the origin of the rank of King’s Counsel (when there is a King) and Queen’s Counsel (when there is a Queen), at least by the 19th century the office of His/Her Majesty’s Counsel was firmly established. It was an honorific title given in the name of the sovereign by Letters Patent to distinguished advocates (never solicitors) which carried considerable prestige and privileges but also certain obligations. None other than distinguished advocates were ever given the title.
To distinguish them from other barristers, they wore gowns which were tailored differently from those of ordinary barristers. Ordinary barristers wore gowns of a material called ‘stuff’ with a pouch hanging from the yoke at the back in which grateful clients were supposed to slip fees or honoraria. KC’s and QC’s gowns were made of Silk – hence the term ‘Silk’ – which was differently cut with a square collar and long sleeves after the fashion of the Master of Arts gown. Gowns are not supposed to be worn in public. Junior barrister carried theirs in a blue bag with their initials, but ‘Silk’ was entitled to an initialed red bag and to wear longer bands and other garb on ceremonial occasions not applicable here. Solicitors never had bags, blue or red, as they did not have gowns. The tradition built up that ‘Silk’ would give a red bag to junior who had performed creditably for ‘Silk’ in a case. Junior was expected to do the first draft of pleadings and to carry ‘Silks’ red bag and books to Court and place them at the front table where ‘Silk’ sat.
‘Silks’ sat at the front table or bar which was reserved exclusively for them and kept vacant even when no Silk was in Court. Juniors and instructing attorneys sat behind. ‘Silks’ were entitled to be heard by the Court as soon as conveniently possible after they appeared robed in Court regardless of whatever matter was in progress. The Judge or presiding officer at the soonest convenient time would pause and address ‘Silk’ – Mr A – ‘what can we do for you today” or some such appropriate words.
In fact junior barristers addressing the court were expected, on seeing Silk sit at the front table in robes, to draw the attention of the Judge to the presence of Silk and give way.
Originally ‘Silks’ could not accept a brief to defend an accused in a criminal matter unless permission was obtained from the Crown/State. This was on the principle that all criminal prosecutions were at the suit of the King or Queen hence Rex v John or Regina v James depending on whether a king or queen was on the throne.
‘Silk’ could not appear against the King or Queen without permission, being One of His/Her Majesty’s Counsel. It was also expected that at any time the Sovereign or State could offer a brief to ‘Silk’ which could not be refused except for very good reason.
Because of his/her eminence, Silk was not permitted to appear at anytime without a junior. In Court, Silk was always announced by his junior – rarely by himself. By convention junior to Silk had to be paid 2/3rd’s of Silk’s fee if the sole junior in the matter. The client then had to pay ‘Silk’ plus junior plus instructing solicitor. That is why it has been said that many a promising junior who, as the saying goes, was ‘force ripe’ and took ‘Silk’ prematurely ended up starving or retiring from the profession early.
The Attorney General and Silk. The Attorney General from time immemorial has been considered the titular head of the Bar. In Trinidad and Tobago, the Attorney General is appointed by the Prime Minister and the Cabinet is not fully constituted without an Attorney General. Section 75 of the Constitution says that the Cabinet shall consist of the Prime Minister and such number of other Ministers (of whom one shall be the Attorney General). The Attorney General is responsible for the administration of legal affairs in Trinidad and Tobago. I am unaware of a case in the United Kingdom where an Attorney General has not already taken Silk before his appointment. The same is true of Judges. In Trinidad and Tobago, successive Prime Ministers have not been able to persuade existing Silks/Senior Counsel to accept the position of Attorney General. However, once appointed, the Attorney General is considered by the profession to be titular Head of the Bar and for that reason entitled to take Silk. Whether or not he does is his decision as to whether he can “carry” the title when he is no longer Attorney General and returns to private practice. In the past those Attorneys General undeserving of Silk who took it did not practice as advocates on their return to private practice. It is noteworthy that at least three (3) former Attorneys General did not take Silk probably respecting the convention that it was an accolade exclusively for advocates.
As with most things, the institution has ‘morphed’ over the years and different countries have developed their own systems of conferring ‘Silk’. Some features of the rank have changed. In Trinidad and Tobago when we became a republic the title was translated to ‘Senior Counsel’. Elevation to the title is still referred to as taking ‘Silk’. But no change was considered to have taken place to the incidents of the title. ‘Silk’ continued to wear different gowns, carry a red bag and to be accorded precedence by judges who understood the meaning of the institution. The expectation is still that it is a rank for those who choose the risky career of advocate and succeed.
Over the years, different administrations have shown an interest in making the appointment process for Silks more transparent. Successor administrations have not followed through and there seems to be a departure from and ignoring of the purpose for which the title was created originally. It has never been that Silk was given to any but lead advocates of impeccable ability and the highest reputation and standing at the practicing Bar. In the past, when the Courts and the profession insisted that ‘Silk’ must appear at all time with junior, lawyers whose reputations could not carry the title would simply not apply or do so at their peril. I am aware that in other jurisdictions as well as in Trinidad and Tobago, ‘Silk’ no longer is obliged to appear with junior. This has opened the veritable flood gates. Perhaps the former rule should be reinstituted. This would be a sure and absolutely fair way of ensuring the maintenance of the high standards by those who applied for Silk. Because ‘Silks were to be available to the Crown, it stood to reason that on elevation to the bench, ‘Silks’ had to return ‘Silk’. This basically meant no longer using the title. The independence of the judiciary is totally incompatible with holding a title which required service to the Crown/State/Government. Those who know what ‘Silk’ is all about should be aware of this. It is a grave matter and a serious contradiction for a judge to request or accept ‘Silk’ if offered. It flies in the face of the hallowed principle of the Separation of Powers. It also compromises the perception of the independence of both the Judiciary and the Bar.
Will the new Judicial Silks pay the annual subscription fee that all Silks pay of $6,000 to the Law Association and attend meetings of that body discussing relations with the judges? Will this annual subscription be paid by the Judges or the State? Will they also make the compulsory contribution to the Compensation Fund out of which aggrieved litigants are paid for ‘bad’ work by lawyers? Will this cover judgments and loss occasioned by judicial delays as well? And so the list goes on.
There is precedent for Silk returning his instrument or Letters patent. This last occurred in this region in Jamaica when Ian Ramsay, QC returned his Letters Patent to show his disapproval of judicial conduct in a particular matter. It is my considered opinion that the judges who recently accepted ‘Silk’ should return their instruments forthwith as an act done ‘per incuriam’ (the Judges will understand this Latin phrase). Merely to read the instrument should be sufficient argument — unless of course that too has changed. The instrument used to read that Silk was given “the liberty of sitting and practising within the Bar of the Republic of Trinidad and Tobago as any Senior Counsel...”.
As far as giving non-advocate instructing lawyers Silk, one can contemplate some rather untidy if not amusing situations. Non-advocate instructing attorneys who take ‘Silk’ have to sit at the front table (it is an entitlement of Silk) and instruct an advocate who may not be Silk and is therefore seated at the second row of tables. This would involve a certain amount of “Silk’ turning his/ her back on the judge to instruct counsel. Worse, it may mean ‘Silk’ robed as such sitting at the second table instructing junior advocate! In Trinidad ‘Silk’ has been given as an honour to visiting dignitaries who were lawyers. This is the grant of a category of ‘honourary Silk’ which is unobjectionable. In other jurisdictions, the honour has been given honoris causa to academics and others who have made significant contributions to the legal profession or legal learning. Perhaps the time has come for appropriate legislation to be passed setting up a Board for the appointment of Senior Counsel. The Board should have an appropriate mix of members from the past and present judges, practicing Attorneys-at-Law and knowledgeable lay persons of proven integrity. Rules should be legislated for the criteria expected to be met by applicants as well as the standards to be maintained and obligations imposed on ‘Silks’.
Institutions which it has taken centuries to build up can so easily be destroyed over night by the insensitive and thoughtless. It will take as long again to rebuild what has been destroyed on the altar of vanity. And this does not only apply to the legal profession. Holders of high office in all departments of State have a responsibility to ensure that the institutions over which they preside are as strong at the end of their terms of office – at any rate not weaker – as when they assumed leadership of them. The State and its agencies have a responsibility to set standards of total rectitude and fairness in all of the Institutions of the People. Let us act quickly before there is nothing left of which to be proud in the legal profession in Trinidad and Tobago.
3rd January 2012.
Footnote: The photographs of Sir Lennox O’Reilly, KC and Sir Courtenay Hannays, QC were borrowed
from the book The Life and Times of
H.O.B. Wooding by Dr Selwyn Ryan.