Kings Counsel title should reward courtroom excellence, not community virtue – Deborah Chambers

On paper it sounds noble. In practice it is a serious distortion of what KC is for and it runs directly counter to the consumer-signal purpose of the rank. It runs the risk that a candidate with strong pro bono credentials but only solid (not outstanding) advocacy edges out someone with exceptional courtroom skills but less community work. It favours privileged candidates who are economically able and have sufficient time to carry non-paying clients on complicated and time-consuming matters.

The average client hiring silk does not care whether the barrister has logged hundreds of hours on community law centre files. They care about whether that barrister can run a complex case, cross-examine effectively, and win. Even though criminal and civil legal aid work already counts toward the criterion, the requirement still creates perverse incentives. Civil and commercial (“black letter”) barristers, in particular, report being pressed for additional approved pro bono or community work. Feedback such as: “You haven’t done enough pro bono to become a KC.” is talked about. This ignores the obvious point that an outstanding KC arguing complex civil matters well and with integrity does contribute significantly to the rule of law. So much of our economy is based on the civil legal system running well.

Forcing the contribution encourages tick-box behaviour: Do the approved variety of pro bono long enough to get the silk, then quietly stop once the letters arrive.

The undertaking of pro bono work might be viewed as a peripheral consideration, but it should not be elevated to a requirement. Far better to maintain an informal expectation and emphasise that once appointed, a KC will give something back. Most KCs already do one or two significantly reduced or no-fee cases at any time, as we should. We are well placed to do so with seniority. A well-run merit-based system provides clarity in a complex market. We should promote the best people and trust that they will be good leaders of the profession and conscious of access to justice issues in the way they practise law. That would prevent turning the pre-appointment process into a political signalling exercise.

The burden falls especially heavily on younger women. The years when a barrister sole is building the high-volume, high-complexity practice needed for silk often coincide with having small children. Running chambers while juggling family life is already punishing. Adding inflexible community law centre commitments or emotionally draining extra legal aid files can be disproportionately difficult. KC is not the Jacinda Ardern award for kindness.

New Zealand stands out on a limb here. In England and Wales, the reformed KC system uses a structured competency framework that includes leadership and diversity, but it does not impose a standalone mandatory criterion requiring personal pro bono hours. Advocacy excellence in higher courts remains the dominant test. We have gone further and, in my view, in the wrong direction.

Judges should not be the ones deciding what pro bono “counts” and which does not. The current system allows them, with the flourish of a judicial pen, to play grand policy maker. Candidates have rapidly guessed that the relevant commitment to justice is unlikely to be pro bono work for, say, the Act Party and look instead for instructions from Treaty claimants or similar liberal left orthodoxy aligned access to justice cases. It encourages creative engineering for society to suit their tastes. When well-meaning judges shape policy through such appointments, the greatest danger is that the public will be duped by good intentions into accepting an alteration to the legal system with significant repercussions. Few people dare to speak out publicly and criticise, either because they hope to become a KC themselves or because they fear how a judge might view them when they next appear in court. But plenty of criticism is discussed internally. Hierarchy and deference are deeply ingrained in our small legal and judicial community.

Pro bono work should not be elevated to a requirement, says Deborah Chambers, KC. Photo / 123rf

The second problem is that KC continues to be awarded to legal academics, Chief Parliamentary Counsel and Attorneys-General. These are learned people who have contributed to the law in other ways. But they have not spent 20 or 30 years sharpening their advocacy on the courtroom floor. They are not the people you would instinctively call when your liberty, your fortune or your reputation is on the line.

This turns KC into a bauble of office, a polite honour rather than a hard-earned professional distinction. If the state wishes to recognise distinguished public service or academic achievement, there are already mechanisms: knighthoods, CNZM appointments, or even a new category of “KC (honorary)” clearly marked as different from practising silk. The pure rank of KC should be reserved for those whose primary reputation is as outstanding advocates.

The inclusion of the 2019 access-to-justice criterion, the uptick in appointing non-advocates, and the retention of an opaque process involving “secret soundings” together suggest a quiet shift in what the rank is for. It is moving from a consumer protection mechanism rooted in advocacy excellence toward something that rewards a particular set of values and career paths.

That should worry every practising barrister and every future client. When the stakes are highest, when you really are about to be taken to the cleaners, or face prison, or watch your life’s work unravel, you should not have to wonder whether the letters KC after a name reflect courtroom mastery or merely the right sort of community service and political alignment.

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