Barristers also provide specialist legal advice to solicitors, which therefore draws some comparison to the medical profession, whereby solicitors can be seen as general practitioners while barristers are specialists in advocacy or advisory services.

As explained by Epstein, the barrister-solicitor distinction dates from the 13th century, when English courts held that only advocates who had regularly come before them could argue a litigant’s case. An advocate was allowed to enter the picture only at the final argument stage, so that the litigant had to make the initial pleadings himself. Advocates were precursors to barristers.

By the 15th century, litigants were allowed to hire out-of-court attorneys to submit pleadings in writing, and these attorneys were precursors to solicitors. As the demand for legal services increased with economic development, so did the need for courtroom advocates. Inns of Court arose to train and regulate the advocates — drawn exclusively from the upper classes — as the only people authorised to appear before high-court judges. In the 16th century, the division between barristers and solicitors became fixed. Clients dealt only with solicitors, and solicitors arranged for barristers.

Epstein argues that this historical baggage provides scant reason for such a market division, and I agree with this contention. One argument in support of the continued split in the profession is that having an independent barrister reviewing a cause of action gives the client a fresh and independent opinion from an expert in the field, something that rarely happens in jurisdictions with fused professions. Another is that by having recourse to all of the specialist barristers at the Bar, it levels the playing field by enabling smaller firms, who could not maintain large specialist departments, to compete with larger firms.

One clear disadvantange of maintaining a split profession is that of possibly high legal fees. Multiplicity of legal advisers will necessarily lead to higher costs.

In England and Wales, the clear demarcation between barristers and solicitors have eroded with solicitors also enjoying rights of audience if they become qualified as solicitor-advocates. Solicitor-advocates can also enjoy the title of Queen Counsel. Further, larger solicitor firms have also started to hire barristers to act as their specialist in-house Counsel.

This post does not propose to cover in-depth the vast span of this topic, and I have not been able to flesh out the advantages or disadvantages of maintaining either a fused or split profession. I would however like to invite views though on these issues.

It is noted that in 2004, in the Review of the Regulatory Framework for Legal Services in England and Wales, dubbed the Clementi Report, Sir David Clementi did examine the present framework of the provision of legal services in England and Wales. The Report did touch on the split in the barrister and solicitor profession. While making no recommendations on converting to a fused profession (it appears that the Report did not consider such a step), there were recommendations made in creating alternative business structures which would allow solicitors and barristers to enter into partnership together, as well as entering into partnerships with non-lawyers.

This post was also brought about by this interesting article on a QC who had requalified as a solicitor to head the advocacy unit of Herbert Smith.

I have many fond memories of my short attachment stint there, where I was still in law school, and being exposed to litigation for the first time. Was lucky to drop in just before a trial started, helped to research several points of law, and then had a chance to see senior counsel in action.

But back to the points raised in the article, and to highlight two sections:

One way he believes TSMP can attain this goal is by hiring the best practitioners. ‘We pay the highest starting salary in Singapore now – $5,000,’ he says. ‘Law graduates these days have so many options that we find that this is one of the ways to attract and retain the best.’

Allco Commercial REIT is listed on the Singapore Stock Exchange, with assets in Singapore and Australia.

On 12 March 2008, Allco managed to obtain an injunction to restrain Moody’s from issuing a downgrade on the trust. The injunction also prevented Moody’s from holding any meeting or discussion to review Allco’s credit rating.

Presumably this injunction was applied and granted ex parte, which resulted in Moody’s applying to set aside the injunction.

Quoting from the Straits Times today:

Allco Commercial Real Estate Investment Trust (Reit) felt a $620 million bank refinancing deal could be jeopardised by a downgrade, according to court documents obtained by The Straits Times.

In an affidavit, Allco Singapore chief executive Nicholas McGrath said he was shocked to hear of the planned downgrade as he had been assured by Moody’s that its panel would not decide on Allco’s rating until today.

‘I also informed Moody’s that it was crucial that there was no revision of Allco Reit’s rating before the requisite credit approvals from its bankers were obtained for the refinancing of its debts worth $620 million.’

But Mr Peter Choy, a vice-president and senior credit officer at Moody’s Investors Service, said in an affidavit that the agency had made no such assurances.

He said: ‘If there was ever any suggestion that Moody’s customers could control or influence its ratings, the market would no longer trust the ratings that it gives.’

It will be interesting reading the legal arguments both for and against such an injunction, and the written grounds of judgment are not out yet. From a cursory examination, it seems difficult for Allco to establish any right for such an injunction, in that there is no serious issue to be tried. But the injunction did get past the ex parte stage, and Allco’s Counsel must have convinced the Judge that there were some merits.

This hasn’t been the first time that such an injunction has been sought against a credit rating agency. In 2003, Tranz Rail Holdings Ltd had tried to obtain an injunction from the High Court of New Zealand against Standard & Poor to restrain it from issuing a press release confirming a downgrade in rating. This application was subsequently withdrawn.

Highlighting just two sections from the article:

A large part of the war occurs in the correspondence. I give the same level of consideration to drafting letters to the other side as I do to writing formal opinions. “Dear Judge” letters, I call them, because even if they’re written before litigation has commenced, they should always be drafted with the eyes of the judge in mind. They’re your opportunity to show not only that your client has behaved reasonably and sensibly from the beginning, but — and this is crucial for getting your costs if you win — that you’ve grasped the essential legal issues early on and have stuck to them.

These are otherwise known as the “self-serving” letters. Especially useful prior to the commencement of litigation, and even prior to lawyers officially coming on record and issuing letters. Lawyers can assist their client in drafting letters on client letterheads to further strengthen the client’s position in view of imminent litigation. A common example which crops up is that parties tend to not put their complaints down in writing. Or too much negotiation and communication take place verbally and over the phone. A “Dear Judge” letter can help flesh out the breaches of a contract or complaints. It can help solidify the exact terms of the contract, some of which may not be in writing, some may be implied, some may have been negotiated verbally.

Some people love to seem so clever. When I was younger I used to think that I was too stupid to understand those documents where you have to read a paragraph several times in order to understand it. But gradually I realised that the problem was that some people simply have a drafting style that is far too complex. Look at the speeches of the great House of Lords judges of our day: beautifully written but in plain, clear English.

This is the common complaint of ‘legalese’. How many times have we seen the use of double negatives cropping up in a sentence we draft?

“It cannot be said that the Defendant is not in breach of his obligations….”

One my pet peeves is seeing the overuse of words such as “herewith” or “therein“. There are too many cover letters which use the phrase “We enclose herewith a copy of the affidavit.” It can simply be abbreviated to “We enclose a copy of the affidavit.”

I would highly recommend that all lawyers pick up these books from Bryan A. Garner, The Winning Brief and Legal Writing in Plain English. The author provides very detailed technical tips in improving the way you draft letters and draft written submissions. It is not merely a case of cutting out the legalese, but the books help you to present your arguments across more effectively, how to make use of headers, effective use of punctuation and how to format your points. You then realise that it takes a lot of effort to write better, and you realise the number of bad habits you have picked up.

Just to highlight some examples from the books:

(i) Use the active voice rather than the passive

A simple way to remember this is that being active, you are doing something. The passive indicates something being done to you. An easy test in spotting the passive voice: if you see a be-verb (eg. is, are, was) followed by a past participle (usually a verb ending in –ed), then you have a passive voice construction. So here is an example on how you convert the passive voice into the active one:

passive: This is the legal question which has to be determined by the court.

active: The court will have to determine this legal question.

The advantages of the active voice is that it usually requires fewer words, and it better reflects a chronologically ordered sequence, active: actor -> action -> recipient of action, rather than passive: recipient of action -> action -> actor.

(ii) Turn -ion words into verbs when you can

This is something which I think a lot of us do without thinking. For instance, instead of “someone was in violation of the law”, we can state that “someone has violated the law.”

The advantages of editing -ion words are that you will avoid inert be-verbs by replacing them with action verbs , and you’ll humanise the text by saying who does what.

Let’s apply both examples to the following sentence (which is the way I may have drafted ordinarily):

“A revocation application will normally receive no consideration by the board unless there have been no sales for two consecutive years.”

Switch it around to:

“The board will normally not consider a revocation application unless there have been no sales for two consecutive years.”

Queen’s Counsel are barristers, and more recently advocate-solicitors, appointed by patent to be one of Her Majesty’s counsel learned in the law. It has become a mark of recognition of a leading counsel.

History of the Queen’s Counsel

In the late 16th century, a body of counsel were appointed to give assistance and advice to the Solicitor-General and Attorney-General. They were often consulted in capital cases and in cases of state. Queen’s Counsel were at that time expected to become advocates on behalf of the Sovereign. During the reign of a king they were called King’s Counsel.From the beginning, they were not allowed to appear against the Crown without a special licence, but this was generally given as a formality. This was particularly important in criminal cases, which are mostly brought in the name of the Crown, with the result that, until 1920 in England and Wales, King’s and Queen’s Counsel had to have a licence to appear in criminal cases for the defence.

Such limitations have since been removed over the centuries, and the office has now become purely honorary and is a recognition of achievement in the legal profession. While it used to be purely confined to barristers, advocate-solicitors have now also been appointed as QCs.

Lawyers who have been appointed as a QC are entitled to wear silk gowns, rather than the ordinary cotton or “stuff” gowns when they appear in court, hence becoming a QC is termed “taking silk” for this reason.

Other jurisdictions

Some Commonwealth countries had also adopted the QC nomenclature, for instance Australia, New Zealand, and Hong Kong. The title of Queen’s Counsel has largely been replaced with the title of Senior Counsel instead.

Singapore initiated its own Senior Counsel Scheme in 1997 to recognise outstanding advocates. You can read this interesting interview with the Senior Counsel Selection Committee, an extract as follows:

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.
Also read this interview with 3 SCs. Highly recommended reading.

A Malaysian Senior Counsel Scheme?

Malaysia does not have any such QC or SC scheme in place. While it is legitimate to stress the importance of giving recognition to outstanding advocates, I would be very fearful of any such system being implemented. The risk of abuse is too great. I can see the grave danger of it being converted into a form of political patronage (if the government has any say in the appointment of SCs).

Lawyers here in Malaysia already point to the lack of transparency and the evident abuse in the judicial appointments system (this is with reference to the recent facts being unearthed before the Royal Commission enquiring into the Lingam tape). I am sad to say that just like for most things in Malaysia, any Malaysian Senior Counsel appointments would possibly be influenced through political connections or even racial quotas, rather than true meritocracy.

I thought the stand-out session was the one in relation to “IT: How Does It Make Us Mighty?” It demonstrated that when you have a good panel of speakers, giving different perspectives, as well as a good moderator to control the flow of speakers as well as the audience participation, you can get a very interesting session. Issues such as whether BlackBerry is a tool of empowerment or enslavement was touched on, as well as the impact of technology on the speed and pace of practice. Instantaneous responses are now expected, the lines are blurred between office and out-of-office hours. We are a service industry, and we are there to service the needs of clients, so we will have to increasingly cope with almost round-the-clock queries especially with clients from different time zones. If you aren’t going to step up to face such demands, there will be another lawyer to the left and to the right of you who will.

I have to admit that I had given little thought before this on how different legal practice could be outside of KL. But it was good on the part of the moderator to emphasise that the IT needs of a small law firm in one of the smaller states would be vastly different from the IT necessities expounded by some of the members of the panel. A lawyer from Ipoh spoke of how her law firm did not have a computer at all, but that did not get in the way of the firm’s practice. The firm’s clients could be illiterate but a very successful businessmen, so the concept of emails or even letters would be something very foreign. Another lawyer from Kelantan explained how different practice was like in that state. There were no such long working hours, and the concept of a client contacting you past 5.30pm was virtually unheard of.

It was good for that session to highlight the dichotomy between practice in a large law firm in KL, and perhaps the smaller firms outside of KL. Inevitably though, as clients’ needs evolve, even in the smaller towns, law firms will be forced to embrace more and more of IT. The illiterate quarry owner will soon hand over the quarry to his IT-savvy children, and then the law firm or lawyers will also be forced to change the way they practice.

In contrast to that IT session, which remained focused on the topic at hand, some of the other sessions were a little bit less successful. For instance, in the first session, “The New Lawyers: Gen Y” started off well I thought, with the various speakers, me included, giving different viewpoints on this new concept of Generation Y. A mere marketing term or something that really exists? The moderator had an idea on which points he wanted to develop, but the danger of these interactive talk-show style sessions is that it may slowly move off-point or become a complaining session. While it is good to use personal experiences or anecdotes to highlight certain points, I certainly didn’t want to see the session slowly end up focusing only on the bad experiences some of the lawyers had during their pupillage.

I think the scope of the topics for the YL Convention was wide and it should have been very interesting. While some of the sessions were a big success, some were quite a let-down. It actually boils down quite a lot to the strength of your speakers. Maybe future organisors should use less on the “talk-show” format which was widely used at this Convention. While it provides for a very interesting discussion, there is the danger of the session going off-point without a strong moderator. There should be a balance of the talk-show format as well as the conventional presentation of papers, but maybe then with more time allocated to Q&A and interaction. It allows participants to have physical papers to take away and read, and it also forces the speakers to be focused in their delivery and to come prepared. I am still a fan of the talk-show format though, and that format depends a lot on the moderator setting out clear guidelines on the different aspect each speaker should touch on.

The convention is so multi-faceted and it covers a wide range of topics which I think is highly relevant to all young practitioners everywhere. The panelists and speakers will be young lawyers, senior practitioners, law academics, all giving different view points.