Barrister Deborah Manning. Photo / Mark Mitchell
The bar, the judiciary and the Law Society often speak of the need for lawyers to contribute to access to justice, and I was tired of the gap between what was professed and what was actually happening. As the Court of Appeal has observed, accepting obligations in principle while giving them no effect in practice risks treating them as “mere window dressing”.
I argued that KCs should have spent time doing legal aid work, not as a gesture or tick-box exercise, but because it is part of our professional obligation to the rule of law.
The access gap in the senior courts is real and longstanding. There has been a persistent shortage of experienced senior counsel willing to take on legal aid cases, particularly in the superior courts. That is not a peripheral issue. It goes to the heart of whether the justice system works for all New Zealanders.
I also argued against making pro bono work a standalone criterion in the KC appointment process. To me, it is too diffuse. Pro bono can be directed towards relatively privileged organisations and depends on perceptions of “deserving” clients. Legal aid is more structural, more transparent, and more directly tied to the access gap the criterion was designed to address. In that sense, I share some concern about how broadly the current criterion has been drawn.
But Chambers’ article goes much further than that, and in my view misses the point about the criteria and the people who work within them.
The suggestion that an outstanding candidate could be “edged out” by a less capable one with stronger pro bono credentials does not reflect how the criteria operate. Excellence is the overriding requirement. It does not yield to community work credits.
The framing of the legal aid criterion as burdensome also deserves scrutiny. We are talking about lawyers who have typically spent decades in practice. The expectation is not years of legal aid work. Even one or two cases over a career of that length would be meaningful when the baseline, for many senior practitioners, has been none.
Lady Deborah Chambers, KC
The difference between these positions is not simply about workload or fairness. It reflects two ways of understanding professional identity. One sees KC primarily as a signal to the market: a designation of elite advocacy skill for those who can afford it. The other sees it as a signal within the profession itself: that those who hold its highest rank have, at some point in their careers, engaged with the parts of the system where the need is greatest, not only where the fees are.
The question is not why we expect future KCs to have contributed to access to justice, but why it was ever acceptable that they did not.
The argument that the criterion disproportionately burdens younger women also deserves closer examination. Access-to-justice work is part of the pathway to senior courts, not a diversion from it. Refugee, prisoner rights, ACC and serious criminal cases generate real appellate work at the highest levels. The criterion does not require a volume of work that would overwhelm a practice. Properly understood, it recognises and values work already being carried by many in the profession.
“Trust the silks to do pro bono” is not a structural answer. Pro bono depends on networks and discretion, and tends to favour those already connected. Access to justice requires more than goodwill. It requires a profession that treats it as an ongoing obligation. It is also worth noting that the “average” client engaging a KC is not representative of the average New Zealander (KC rates are typically between $900 and $1500 an hour).
Deborah Manning in 2020. Photo / Anna Leask
There is one point in Chambers’ article that does warrant consideration: the suggestion of an honorary KC category for academics, parliamentarians, and others who have made significant contributions to the law outside advocacy practice. That is a conversation worth having.
What I do not accept, however, is the suggestion implicit throughout the article that lawyers engaged in access-to-justice work are somehow less technically capable, or that the aspiration to hold the KC title should come without any expectation that those who carry it have used their position in service of the system that sustains it.
New Zealand has a serious access-to-justice problem, and it is well documented. Many people struggle to pay for any legal assistance, let alone those on or below the poverty line. Chambers’ article does not ask what role King’s Counsel should play in addressing this structural issue. It should.
At the same time that I proposed the criterion, I considered proposing a public register of access-to-justice work undertaken by KCs as a transparency mechanism and a way to identify available expertise. I continue to find it difficult to identify senior counsel willing to take on complex cases in this space. If the profession is confident in its contribution, a register would demonstrate that. If not, that is something the profession and the public are entitled to understand.
The letters KC should mean something. They always have. But they do not speak only to clients. They also speak to the profession itself about what is valued, what is expected, and what it means to hold its most senior rank.
Deborah Manning is a barrister and lecturer in law at Auckland University of Technology.
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