Focus: The 2010-11 Silk Round: Raw silk

This year’s group of newly created QCs may be the largest ever, but the honour is just one step towards building a reputation

 It is one of the most daunting tasks any barrister will ever take on; it takes more than a year to complete; it requires a stack of cash; and the chances of success are less than 50-50. So why would any barrister apply to become a QC?

On 1 March the QC Selection Panel told 120 barristers that their silk applications had been successful. At 47.8 per cent this was the highest ­success rate for applications since 1995, although last year more lawyers achieved the goal (129 of the 275 who applied, a still solid 44.3 per cent).

The application process was ­shaken up in 2009 when the panel shifted to a competency-based ­system. This means that, rather than filling a quota, silks are promoted on an even basis, with everyone filling in the same form and being required to meet the same criteria.

“The process itself is quite hard,” admits Monckton Chambers’ Daniel Beard, who was one of the chosen few. “The form’s specific and there are constraints on wordcounts. It’s quite a discipline, because you don’t think about the work you’re doing when you’re doing it, and you don’t want to appear pompous about the work you’ve been doing.”

Discomfort zone

Sherwood consultant Kate Blackburn, who regularly coaches barristers applying for silk, says the competency-based application system puts­barristers squarely outside their ­comfort zones.

“It’s about putting yourself in the public view and any failures after that will be public,” she explains. “The biggest issue for barristers is that they have to be self-aware. They’re self-employed and can sometimes live in a bubble where they aren’t given feedback. It causes them discomfort to go outside that bubble.”

Wannabe silks must have appeared in 12 substantive cases in the past two years and provide the application panel with 24 referees, 12 of whom should come from the senior judiciary.

“It’s a time-consuming process,” comments Monckton’s Paul Harris, who was one of a trio of new silks at the set. “Disappointingly time-consuming and unnecessarily time-consuming. Don’t do it unless you’re completely committed to it.”

It is for this reason, says Matrix Chambers chief executive Lindsay Scott, that her set starts working with aspiring silks four years before they begin to apply.

“You need to know how the ­competency-based system works – you have to have enough of the right cases and know that your practice will be sustainable once you’ve taken silk,” she says.

“Part of our role is to look at a ­barrister’s practice and prepare them to get to the stage where they can apply for silk,” explains 39 Essex Street director of clerking David Barnes. “Having the right depth of exposure before the different tribunals takes time – you need to plan it for two or three years. The aim is that you have clients who instruct you as a senior junior and you take them with you when you go to silk.”

Making the change

This is the challenge facing newly appointed commercial silks.

Fountain Court’s Derrick Dale QC took silk last year, when the set gained five in a bumper round compared with one, Andrew Mitchell, this year. He believes it can take up to four years to become an established silk.

“It’s a transition – it doesn’t ­happen just like that,” he says. “My junior practice has started to drop off, you become a small fish in a big pond and you start to get involved in cases where there are larger teams involved – often ones that have two silks.”

The transition takes around three or four years, Dale maintains. “The key,” he says, “is to make sure your existing client base keeps trusting you and thinking that you’re the right person to lead cases.”

It may be hard work, but as ­Blackburn points out, these barristers are among the most brilliant minds in the country. Hard work is no issue. For them the long-term benefits far outweigh short-term nerves.

“I’ve been practising for 20 years and in the past 12 months I’ve had five or six cases that have gone to someone else because they’re in silk,” says 39 Essex Street’s Rohan Pershad, who was successful in his application. As a clinical negligence barrister, Pershad is instructedregularly by insurers to defend major matters.

“I’ve been swamped as a junior but not able to take on bigger cases because of it – last week I settled a £46,000 case,” he adds somewhat exasperatedly. “There comes a time when you have to move on.”

Fountain Court’s Andrew Mitchell agrees. “I’ve had a junior silks practice for a few years now,” he says. “It can be quite frustrating when corporate clients at the end start putting silks above you when solicitors would be happy to instruct you.”

Brick Court Chambers’ Danny Jowell reveals that he was being ­pressured into applying by clients and clerks, but that ultimately it was his own decision to take the plunge.

“All barristers think of it as a hope, but it’s not necessarily at the ­forefront of your mind when you start out,” he maintains. “It comes quite late in your career. You should only apply if you think you’re ready.”

Newly appointed silks talk about gaining a newfound respect from clients, solicitors, their peers, juniors and, perhaps most importantly, the judiciary.

“It’s absolutely about perceptions,” comments Dale. “It’s a maturing ­transition and a demarcation from junior. It wasn’t just the judges who listened to me differently, the juniors did too – and the solicitors.”

“In my chambers there are a lot of people bringing in a huge amount of work,” Monckton’s Harris says. “On the few occasions I’ve brought in silk work I’ve passed it on and I hope that will continue. It’s a symbiotic relationship and it seems to work for us.”

QC – quality counts

Aside from the respect, there is the obvious financial gain. Silks are ­reluctant to talk about rate rises and many insist they will continue ­charging the average senior junior’s hourly commercial rate of £300.

39 Essex Street’s Barnes is more candid. “A commercial rate of £300 could go up to £375, up by about 20 per cent as they gain experience as a silk,” he confirms. “It comes down to the client relationship. We need a flexible approach. When you’re doing high-quality work for high-quality clients, money comes second.”

For lawyers who work on an hourly rate to achieve targets set by their firms, this might seem an unusual notion, but barristers, who are self-employed, need to be commercially savvy to keep clients coming back.

“For me it’s business as usual,” insists Mitchell. “I don’t believe in ramping up fees. It’s a mistake – you need to earn your reputation.”

The biggest attraction of taking silk is that it gives barristers the opportunity to lead cases and ­conduct advocacy in the country’s most prestigious cases. After all, that is the reason many lawyers choose the bar over life as a solicitor in the first place.

The new silks are part of a ­shrinking band of elite barristers in a profession that is being pressured into finding innovative ways of working. Top ­commercial silks ­command ­substantial fees, but the new group of barristers knows that the promised land is still several years away.

Nevertheless, the desire to appear in the country’s leading cases and make a contribution to the law as it develops is what these barristers have trained for throughout their careers. Attaining silk brings them one step closer to that goal.

Moving closer to the peak of practice

Richard Boulton, One Essex Court

Looking solely at the year of his call to the bar, 2003, one might think One Essex Court’s Richard Boulton is the youngest silk ­appointment in the 2010-11 round.

In reality the law is Boulton’s second successful career. Before he began his legal life at the age of 42 he spent 20 years as an accountant, rising to become global managing partner of Arthur Andersen’s business consulting unit.

“When I left university I wanted to be a barrister but I couldn’t afford to train,” he relates. “I went to be an accountant and got sucked in. Eighteen years later I left and went to Guildford College of Law aged 42.”

Boulton believes it was the commercial skills he picked up in his time as an accountant that helped him achieve silk in such a short space of time.

“I’ll probably be worse than many other silks when it comes to my knowledge of the law, but I’m probably ahead of them in terms of commercial management, and that’s what my clients come to me for,” he asserts.

Boulton says applying for silk was the only option after he made such a risky career change.

“I can’t complain – I made it reasonably quickly,” he says.

He maintains that aspiring silks must be persistent, driven and work hard.

“You have to be motivated to see it through, because you will have low points,” Boulton concludes.

Andrew Mitchell, Fountain Court

Fountain Court’s Andrew Mitchell was part of the team that ­represented Barclays Bank in its fight against the OFT over bank charges.

In that case he worked with his legal role models, Brick Court Chambers’ Jonathan Sumption QC and Fountain Court’s Michael Brindle QC.

Yet Mitchell believes it was the cases in which he led the advocacy that made his application successful.

“Doing big, sexy cases isn’t enough – you have to stand on your own two feet,” he asserts.

The transition from senior junior to silk may be lengthy, but Mitchell believes it is easier now than previously.

“The transition’s more gentle,” he says. “In the old days juniors stuck to junior work and silks never did the paperwork. Nowadays there’s no justification for not doing your paperwork.”

Mitchell’s top tip for those applying for silk is to contact referees personally and choose peers from outside your own chambers.

Rohan Pershad , 39 Essex Street

Clinical negligence barrister Rohan Pershad says there were three ­reasons he applied for silk: first, his clients asked him to; second, he was ­missing out on top cases because he did not have the title; and third, because he is “bloody-minded”.

“I went to an inner-city comprehensive school 25 years ago,” he explains. “A teacher told me I’d never be a barrister. Part of my journey was motivated by that.”

As a young barrister, Pershad says, he was intimidated by his peers.

“At the beginning it does get to you,” he admits. “I had to go to 24 dinings at Lincoln’s Inn and when the snuff box was passed around I didn’t know what was happening.”

Pershad says that appearing as a junior in defence of a group litigation action against oil company Trafigura helped his application for silk, but it is not only about being involved in headline-grabbing cases.

“You need a range of cases,” he insists. “The appointment panel’s sensible enough to realise there are a range of skills required.”

Pershad says the most significant challenge now is to maintain ’team player’ credentials.

“It’s absolutely vital that as a silk you see yourself as part of a team,” he insists. “The days of the razor-sharp QC leader have gone, and solicitor clients want you to work as part of a team. The last thing people want these days is an arrogant silk – they want someone who’s reliable.”

Pershad was 39 Essex Street’s 39th tenant, having trained at Crown Office Chambers.

“Don’t apply until you have a critical number of significant judges [as referees],” he adds.