Is it right that QCs worry what judges think about them?

MOST of us at sometime will instruct a lawyer and, the more serious the matter, the keener we are to instruct someone who is good, if not the best in the field.

We ascertain this by track record, recommendation, reputation and previous cases. We can also take some comfort if they are one of the top in their field, as they will have achieved that record against competition from other lawyers in the area.

But there are a group of lawyers who are given a special status over and above healthy competition. They are what is known as QCs. The latest round of applications for elevation to such a status is currently under way. Once achieved, this special status allows those appointed to charge higher fees than even those doing the same job.

What is more, in addition to this they are allowed to bring in another lawyer, known as a junior counsel, to assist him or her with a job, who in turn can charge about two-thirds of what the QC's fee is. That is all very well if you can afford it, but it can hit you particularly hard if you are on the losing side where your opponent has employed such persons. You will have to pay their bill. There is nothing that you can do about it because that is what the system allows.

These QCs also have a special status before the judges. After all, as we will see, it was they who picked them. That special status is difficult to define but it may have something to do with them being given more respect by the judges.

That may be particularly galling if you have not employed such a QC with junior counsel. Indeed, it may force you into doing so, so that you may gain somewhat intangibly from that standing and of course pay more for the privilege.

Yet if someone is a member of that group, it is in fact no guarantee that they will be one of the best in their field. They may have gained that status some time ago, and it is for life. Past performance, as we know, is no guarantee of future performance.

So how does one become a member of that special group? Membership is something that many aspire to, and it boils down to being picked by the judges before whom they appear. Would-be QCs submit a written application to the Lord President, who then does a round-robin of all the judges who may or may not know them and then come back with a "do not know", "yes" or "no".

Should there have been a "no", applicants can (and they may not, for fear of upsetting anyone), ask for the reasons given. They will certainly not be able to challenge what a particular judge has or has not said about them. There is also no prospect of review or appeal. All this is somewhat surprising, in a process in which judges themselves are involved, who should have regard to natural justice.

It may also cause some unease for those having to use the legal process to consider that while they would expect the person advocating their case to have their interests in mind, and comply with the duties to the court, they may also be acting in their own interests - as the judge before whom they are appearing may, ultimately, have a say in assessing them for that special status, their earning-power and career.

The system is thought to be so anti-competitive that the Office of Fair Trading (OFT) wishes the status to be abolished. One can, perhaps, see why. However, that seems to have been a step too far. England, Wales and Northern Ireland have instead revised the whole process and removed from it the most offending part, namely the involvement of judges in the process. However, the jury is still out, as far as the OFT is concerned, and they have reserved their position to look at the matter again.

In Scotland, we have done the least - arguably, next to nothing. An observer was appointed by the Scottish Executive to look at the process and report his observations. Their report was discreetly posted on the website.

Looking at the website, there is something of an anticlimax. The observer - Roy Cameron, from a police background (and one wonders what this has to do with this process) - has found it seems that, apart from some required tinkering, all is well and because we are such a close knit community in Scotland we can distinguish ourselves from England and Wales.

That, however, does not distinguish us from Northern Ireland. Indeed, it is because we are a close-knit community - and some no doubt closer in that community than others - that objectivity and openness is all the more necessary.

It is interesting that the Executive in proclaiming its efforts in making the legal profession more competitive, open and accountable has singularly failed to grasp this nettle and, in particular, the challenge thrown down by the OFT. The tinkering will not do.

• Frank Maguire is a solicitor advocate and senior partner with Thompsons Solicitors.