Use of the term ‘Senior Legal Counsel’


18 Mar 2020

As described by the Australian Bar Association, Senior Counsel are barristers of “seniority and eminence”, and “the designation of Senior Counsel provides a public identification of barristers whose standing and achievements justify an expectation, on the part of those who may need their services as well as on the part of the judiciary and the public, that they can provide outstanding services as advocates and advisors, to the good of the administration of justice”.

In addition, regulation 5(2) of the Legal Profession Regulations 2009, made under section 14(2) of the Legal Profession Act 2008, provides that the entitlement to use the title of ‘Senior Counsel’ or ‘SC’ extends to an Australian lawyer who holds the status of Senior Counsel, as recognised by the High Court of Australia or a Supreme Court of any jurisdiction.

The Legal Practice Board (Board) has recently conducted an enquiry and considered submissions received in relation the use of the term ‘senior legal counsel’ in Western Australia by some practitioners who do not hold the status of Senior Counsel.

The Board is aware that the term ‘senior legal counsel’ has for many years been used by practitioners employed ‘in-house’ by government entities and private corporations. In view of their limited dealings with members of the public, the Board considers that there is likely to be less scope for members of the public to be misled by use of the term ‘senior legal counsel’ by such practitioners than by practitioners who are not employed ‘in-house’.

Having said the above, the Board is of the view that use of the word ‘senior’ in
conjunction with the word ‘counsel’ may be misleading, whatever other descriptor may be employed, depending on the circumstances.

In particular, the Board considers that the term is likely to mislead if used by a practitioner:

  • whether ‘in-house’ or not, in correspondence with, or in the course of participating in any other activities involving, a member of the public (particularly if the member of the public is self-represented); or
  • who is not an ‘in-house’ practitioner (particularly if the work of the practitioner involves providing advice about litigious matters or appearing in Court).
 
It follows that:
  • care should be taken by any ‘in-house’ practitioner in using the term ‘senior legal counsel’, particularly where members of the public are involved; and
  • the term should not be used by a practitioner engaged or employed in private practice, or by a practitioner engaged in any other capacity where there is potential for a member of the public to be misled.
 
Finally, the Board cautions all practitioners to be mindful of their legal obligation not to mislead the court, members of the public, other practitioners and their clients regarding the skill, expertise or degree of seniority purportedly held by them, and reserves the right to deal with matters where that obligation is shown to have been breached.