16 March 2006

Rumpole and the Old Boy Net, Newfoundland and Labrador version

What would Horace think?

No point in being Premier if you can't put your brother and former law partners in silk.

The Queen's Counsel (Q.C.) list was announced today.

Among the lawyers now entitled to wear silk:

* Tommy Williams, the Premier's brother and a partner at O'Dea Earle, proud sponsors of the Rogers Cable program Out of the Fog, which has another strong connection to the Premier;

* Steve Marshall, the Premier's former law partner and the guy who navigated the assault case involving Danny's son through the court of public opinion;

* Glenda Best, another partner at Danny's old chambers;

* Stephanie Newell, a partner at Danny's brother's chambers;

* Tom Fraize, a long-time Conservative operative;

* Brian Murphy, a former law partner of the current Minister of Justice, Tom Marshall; and,

* Valerie Marshall, whose father is Bill Marshall, former Tory cabinet minister under Frank Moores and Brian Peckford, retired justice of the Supreme Court Trials Division and the guy who served on Danny's transition team. He's also the fellow who gave us the term "rack of Confederation".

The other Q.C. is Edward Cardwell, a Crown prosecutor, who has no apparent political connections despite being the namesake of the British secretary of war who abolished the practice of purchasing commissions in the British army (1870).

Under the Queen's Counsel Act, the appointments are made by the Lieutenant Governor in Council - that is, the cabinet - on recommendation of the Minister of Justice. The Minister is required to consult with the Legal Appointments Board, a body appointed by cabinet.

The Q.C. Act does not contain any basis for making the appointments, such as merit or exceptional contribution to the practice of law, noting only that someone is "right" to be appointed as being "learned in the law".

In other jurisdictions, the appellation Queen's Counsel recognizes exceptional merit and contribution to the legal profession. Unfortunately, no one can make a clear determination of the merit of any of the local Q.C. appointments since the news release announcing them contained only the sketchiest of biographies.

In jurisdictions still making Q.C. appointments, the practice has come under review from time to time. Quebec stopped the practice of making such appointments in 1976 and Ontario did likewise in 1985. In Manitoba, Queen's Counsel have been replaced by Senior Counsel, an appointment made entirely by the Law Society of Manitoba. This is similar to the practice now followed in Australia, where in at least one jurisdiction there are clear definitions of the criteria for designation as Senior Counsel.

Now while there should be no doubt that all the new silks in today's announcement
are fine individuals and lawyers, this list draws to attention the extent to which a title which should be an honour may at the very least appear to be tainted by personal and/or political connections to the people making the appointments. It is astonishing that fully seven of the eight appointments have obvious connections to the Premier, the Minister of Justice or the political party to which they belong.

To put this in perspective, the 2004 list contained some individuals like Glen Roebothan, who is the Premier's former law partner. However, out of the 10 lawyers who took silk, there is a much greater diversity in the appointments both in terms of the type of practice represented or even the firms involved.

Similarly, in 2005, while another of the Premier's former law partners took silk, the list is diverse in the firms involved and in the areas of the province from which the Q.C.s come.

Two of the appointments, namely Jerome Kennedy and Randy Piercy are eminent barristers with impressive records in the criminal courts. Few could question the appropriateness of those two appointments, in particular.

It's time to change the practice of appointing Queen's Counsel in Newfoundland and Labrador. Take it out of the hands of the Premier and cabinet and give the responsibility to lawyers themselves and judges, as done in Australia and Manitoba. Then the honour can be the deserved recognition of one's peers.

Publicly recognizing exceptional performance is one mark of a society that encourages the pursuit of excellence.

Sadly, it appears the Q.C. list, like the Order of Newfoundland and Labrador may be headed back to the days when what you got depended on who you knew.