Q: What Is A Special Counsel?
A: A Special Counsel is really an in-house Barrister (that is a Solicitor).
To appreciate the significance of this it is necessary to explain the difference between a Barrister and a Solicitor – separate branches of the legal profession.
Q: Why Do Barristers Wear Black Robes and Wigs?
A: Barristers traditionally wear the black robes and the horsehair wigs. Why? The profession is still mourning the death of Queen Anne who died in 1714. We are not kidding you. (Pity about the other 10 monarchs between her and Elizabeth II. Apparently, their passing did not upset the Barristers and the Solicitors have yet to mourn a Monarch since).
Levity aside the point we make is it is an antiquated division. As early as 1946 the legal zealot Professor Gower wrote:
“[A]ny objection that the divided legal system is an essential element of a common law system is sufficiently disproved by the United States and many of the dominions that have found no difficulty in discarding it” (1)
Although not as pronounced as the USA, all Australian jurisdictions except Qld and NSW have followed suit. Power is subtly draining from the Bar, wigs are seldom worn and are expressly prohibited in the Federal Courts. Robes are rarely worn in civil litigation.
The tide to sweep away the Bar is gaining momentum. The big UK law firms have begun recruiting QC’s as Special Counsel.
Like a Barrister, Special Counsel can:
- Draft a pleading;
- Provide a written opinion on the prospects of your case and quantum;
- Be approached by you on a daily basis (although many Barristers only meet their client twice, once on the day of hearing and if lucky at a preliminary conference);
- Appear in any Court on any matter.?
Unlike a Barrister, Special Counsel will not:
- ‘Flick’ you to another Barrister at the last minute. This is a time-honoured practice at the Bar. The Barrister you engage, trust with your litigation in the months leading up to your hearing often takes another brief and gives you another Barrister the day before. Although often of commensurate quality this is a risk you should not take.
- Have a chat with his chamber’s colleague the night before and impose upon you a settlement you do not want;
- Duplicate effort. With a Special Counsel you get two lawyers for the price of one;
- Be prohibited from filing a pleading in a Court.
That said, at Aylward Game we do recognize that Superior Courts do expect to be addressed by Barristers and have a stable of appropriately qualified senior Barristers to do so. But for less complex matters our Special Counsel has appeared in numerous trials and applications throughout Australia for near on a decade and can save you money.
Aylward Game Solicitors Special Counsel is Guy Sara and you can visit his profile here.
(1) (1946) 9 Mod LR 211 at 223;