“Silk” with Strings Attached - Who Gets to be a Kings Counsel?

by brian lee & sahil hira

Introduction 

Major criminal trials, complex corporate disputes, and high-profile civil law cases all typically lie within the hands of King’s Counsel (KC) lawyers, traditionally known as “silks”. Prior, the qualifications to acquire the title were straightforward. Candidates had to demonstrate excellence, expert legal knowledge, independence and leadership. However, in 2019, this criteria was amended. Now, candidates must also have a commitment to improving access to justice.  

Part II of this article outlines the requirements of the KC appointment process before and after the 2019 amendment. Part III touches on the rationale behind the amendment and Part IV explores the concerns raised about implementing this amendment. Part V considers where these competing positions leave the debate and which is more persuasive of the two.

Requirements to Become a KC 

The title of a KC is exclusively awarded to independent barristers who display overarching excellence within their career. 

This rank is one that is highly sought after by almost all lawyers, beyond the prestige, appointment as KC commands hourly rates of up to $1500 an hour.

While this may seem straightforward, it shall not undermine the high standard candidates must meet. The requirements, as mentioned in the introduction, along with the high standard of excellence, make for a rigorous procedure, both before and after the 2019 amendment. The selection process itself involves sending a written outline to the Solicitor-General, drawing upon the candidate's current practice, and the most significant examples that align with the KC criteria. The Solicitor-General will then consult the New Zealand Law Society and Bar Association and convey their views to the Attorney-General. 

In 2019, the further requirement of commitment to improving access to justice was added under changes by Attorney-General David Parker and Chief Justice Winkelman. This requires a history of personal contribution to advancing better access to justice. This is shown through undertaking legal aid work, supporting community-based law centres, taking on  honorary positions or engaging in pro bono work. For the first time, this moves away from an approach squarely focused on courtroom excellence, and invites a new approach to what a KC requires.

The Rationale Behind the Change

Deborah Manning, a barrister and senior lecturer at the AUT Law School, proposed the reform, frustrated by the gap between what the profession said about access to justice and what it actually did. This was not to act as a symbolic recognition of good citizenship, but rather, a response to the practical shortages. Too few of the profession’s most capable advocates were engaging with the cases where representation was hardest to secure. 

Chief Justice Winkelmann, sworn in the same year the criterion was introduced, showed her own concerns that, “the cost of legal representation is so great that it is only the well-to-do who can afford a lawyer to represent them in court”. The Attorney-General at the time, David Parker had also raised a related concern calling on the legal profession to increase the pro bono legal services it provided to the civil market. Thus a lawyer's commitment to improving access to justice became a criterion for KC appointment.

This problem reflected a shared concern held at the utmost senior levels of our profession and judiciary. Access to justice in Aotearoa New Zealand had become too significant to be left silent on. 

Concerns Raised

Although on paper, the addition of the access-to-justice requirement seems fitting, it has faced levels of scrutiny and criticism. Lady Deborah Chambers KC comments that this addition can, in turn, diminish the position of a KC and impinge on that mark of excellence. Claiming that the position of a KC was never meant to represent general honour or be a symbol for public service, thus, the strong sense of reliability in finding the upper echelon of barristers has been diminished. Undermining what traditionally was thought to be the role of a KC, a “consumer-signal purpose”: the idea that the KC rank only exists to serve paying clients.

Another point Chambers raises is that this requirement incentivises tick-box behaviour. For example, doing pro bono work up until appointment, then quietly stopping. It may seem that making access to justice a requirement is too rigid for its nature. Rather, it should operate as a more customary requirement.

Chambers finally adds that this requirement is a burden which lies unequally. Becoming a silk is already a rigorous process, often coinciding with the time when young women are raising their children. Adding community work to this equation makes this nearly impossible for these women.

Where This Leaves Us

As Manning puts it, “the letters KC should mean something … They also speak to the profession itself about what is valued, what is expected, and what it means to hold its most senior rank”.

Reflecting on this, we can see the tension between two positions of what the KC rank exists to signify. A purely “consumer signal purpose” that guarantees technical excellence, or Mannings’ dual function approach which provides both a signal to clients and equally a statement by the profession about what it expects of its senior members. The second function, highlights the importance of access to justice not as a cause a senior lawyer might choose to support, but a part of the environment the entire profession already operates within, whether any individual practice touches it directly or not.

Manning's position, that a title reserved for the professions most trusted advocates, should reasonably be expected to reflect the collective's priorities and not only the preferences of clients able to instruct on that level, is the one we find more persuasive. She notes that the “average” client engaging a KC is not representative of the average New Zealander, given KC rates are typically between $900 and $1500 an hour.

Law as we know it, is not just a service for those who can afford it. At its core, it is the means by which people rely on to protect what matters most to them.

Weighing access to justice against merit, is not about rewarding voluntarism or treating pro bono as evidence of good character, but instead is about what sustained engagement with underserved clients really reveals. Whether the advocate's excellence has only been tested where resources are plentiful, or also when they run out, and whether cost has ever stood between an individual they represented and the outcome they needed. In our view, courtroom skill alone cannot completely answer this question.

Perhaps the resistance and continuing debate runs deeper than a “yes or no” conversation on how the criterion is applied. Accepting it means that advocacy and skill, despite being exceptional, may no longer be the complete measure of seniority. For a profession long organised around exactly that measure, that is no small concession. However, what is disheartening to see is that a disagreement which began over contribution to access to justice in this process has become whether contribution should count at all.

In our view, the disagreement was never about whether the access to justice work and required pro bono hours belong on an application form; but rather, a question of who a KC is answerable to. A rank that only asks its senior members to excel within a system working for them, without ever asking whether they have engaged with those it is failing, disproportionately producing advocates who are highly accomplished yet increasingly disconnected from the people who the profession exists to serve. 

Conclusion 

The 2019 amendment added a second harder question to the KC rank: whether they have stood on the other side of the system, where the system does not work as it should. We think that shift was right. What changed was not the value placed on excellence, but what the profession is prepared to say excellence should account for. 

These changes do not call for a lesser test of merit, but instead, a more honest one. As access to legal services and help becomes harder to come by for more New Zealanders, this is not a question the profession can afford to treat as optional. What is really at stake goes beyond settling what “merit” requires. It is a choice about the kind of profession the law intends to be and with that in mind, we believe it is one worth making deliberately, rather than defaulting back to a narrower measure of excellence because it is more familiar.

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