Counsel of Perfection
Counsel is a term used to mean different things in different countries. In the United States for example all lawyers conducting cases will be referred to as counsel. However in England and Wales for a considerable period of time referring to someone as counsel has meant one thing. That the person concerned is a barrister.
More recently a disturbing trend started with certain firms of solicitors. What they are doing is applying the title of Counsel to members of their staff. This is a grander sounding title than consultant etc, and will no doubt give the impression that the person concerned has an important role (as they probably do have within the firm). The problem is that the word here is associated with barristers. Any popular view that the position of Counsel is an important one has developed because of the reputation of the Bar with the word Counsel being applied to barristers.
Indeed often the words Counsel and barrister are used interchangeably. Instructions to Counsel. Counsel's opinion. Leading Counsel, Junior Counsel, Counsel's closing submissions. It is no surprise that the magazine for barristers is itself called Counsel. Anything which interferes with the reputation in the word and its exclusive use here as applied to barristers would be damaging for the Bar.
Many members of the public are likely to become confused with the term being applied to solicitors’ employees (and may well consider that they are barristers). At the moment use of the title as applied to solicitors is infrequent. However if something is not done about it then that frequency could increase. At some stage if no action is taken, there may come a point at which the word Counsel has ceased to be associated exclusively with the Bar but is now associated with solicitors as well. People will assume that all Counsel are effectively the same. The training for the Bar, including pupillage, and advocacy experience obtained as a referral advocates rather than persons operating within a firm, means that the professions with their different experience are very different. Solicitors and barristers are definitely not the same: whilst that of course does not mean that some solicitors might not be highly effective advocates, it does not affect that important difference.
The Bar has a sufficient reputation to protect in the word Counsel, as specialist Counsel (a barrister!) has already advised in respect of at least one Specialist Bar Association. Through the Bar Council it should take action.
There are some who will say this is taking a sledgehammer to crack a nut when very few solicitors will be using the term. However whilst it may start with just a few people in City firms, given that post-Legal Services Act there are likely to be more in-house advocates then the potential for confusion is manifest. Once solicitors can call themselves Counsel, then that is precisely what the tidal wave of new advocates will call themselves. It should also be borne in mind that there are likely to be a lot of them since under the new arrangements they will be doing much of the criminal work. Once exclusive use of the title is lost it will be impossible to put the genie back in the bottle, and it will make it much harder for all parts of the Bar to prosper by identifying its exclusive status as specialist referral advocates and advisers. The only true counsel of perfection is that exclusive use of the title must be protected by barristers ASAP.