King’s Counsel
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Office anthropology™
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King’s Counsel
/kɪŋz ˈkaʊns(ə)l/ (n.)
Senior, brainy, court lawyers. The JC is lucky enough to know a few, largely because he shares with them a fondness for cricket.
Until 2022 known as Queen’s Counsel (gawdblessah), King’s Counsel are excellent men and women to a one, but they engage in a part of the legal process of which the JC is committed to steering as clear as he can: litigation.
Not just because suing and being sued is hard, gives you a tension headache and is beset with fiddly, procedural bear traps — all true — but because the road is strewn with absurd conventions, unarticulated rules of etiquette and modes of behaviour that you have to get formally; right, hang whether you were right in substance.
Litigators are from Mars, commercial lawyers from Venus
In legal practice, court lawyering is golf you see, and the JC is a cricket kind of fellow, not just in pastime, but by disposition. Litigation is combative: its etiquette masks fundamental ugliness and pointlessness. None of the ostensible participants benefits. Commerce, on the other hand, is co-operative. “Being a good sport” is a point of substance and not form.
There is also the small matter that, for a self-respecting contracts lawyer, even talking to a Queen’s Counsel — to any litigator, really — except one you are standing next to in the slips — is a confession of professional failure. We commercial solicitors cannot notch our belt with conquests; there are no kill emblems pasted on our fuselage. We must take our pleasures another way. We play an infinite, and not a finite game.
We do this by our affability; our lack of rancour; we succeed when we see our clients going peaceably about their business, promenading down the high street in their finery, waving cheerily at us from the wheel of the fancy motorcar our careful stewardship of their affairs has helped them acquire.
We are like dogs in the nighttime: you know us because we do not bark. We mark our performance by the lack of cuts, scrapes, bruises and abrasions on our pretty faces. Our measure of success is contracts so clear that no one would dream of disputing what they mean.
Sources of contract expertise
For the most part, financial services professionals know enough of what they are about that their contracts — the “verbiage”, so to speak — don’t fall to be considered by the courts. When they do, it usually follows some cataclysmic failure, whereupon institutions that were conventionally understood to be immortal, impervious to even minor shortcoming and managed by enlightened auteurs turn out to have been in the ands of rank amateurs and glib morons.
Such revelations tend to be cyclical; over-lionised dullards may go years or even decades without being exposed. But, suddenly, Lehman, you know. Enron. Our world is all at once awash with litigation — much of it conducted by, on behalf of and in front of people with barely the first idea about the complexities of financial services contracts; things subject matter experts take entirely as read.
Now, just the same thing goes for litigators. Just as commercial lawyers hate litigation, litigators hate financial markets transactions. They’re hard, they give you a tension headache, they are beset with fiddly, procedural bear traps, and the road to their comprehension is strewn with absurd conventions, unspoken rules of etiquette and modes of behaviour that you have to get formally; right, hang whether you were right in substance.
Everyone knows it is much more fun cross-examining Mrs. Pinterman about her alibi, establishing a mens rea and objecting to things. I mean security waterfalls? COME ON. But, and for just that reason, ISDA Master Agreements, which we in-house legal eagles find quotidian and workaday, court lawyers regard as exotic if distasteful butterflies — moths, really — to be pinned, labeled and enclosed in glass cages.
We commercial lawyers live with them, animate them, give them life every day of our careers. We know them, deeply, in a way no litigator, let alone a Queen’s Counsel ever could, or would want to.
Who should answer curly questions on ISDAs?
Now that being as it may, and however distasteful she may find it, every now and then a litigator walk into an ISDA Master Agreement or two — like Clapham omnibuses, they tend to come along in clumps — should a thorny question arise, as to the metaphysical chassis or jurisprudential premise on which an ISDA Master Agreement, or a 2010 GMSLA, or a Global Master Repurchase Agreement is engineered. It doesn’t happen often but, when half a billion dollars is at stake, it is amazing how sharply the mind focuses on what might once have seemed a dusty academic conceptualisation. Philosophical questions like these — arcane, abstruse, recondite — are apt to perplex magic circle partners — whose predecessors, let it be said, wrote the damn things, back in the day — especially where they haven’t seen an actual ISDA cross the desk in fifteen years.
So, if one wanted a sensible answer on just such a curly question, whom would a sensible person ask?
My friends, I would ask an expert. Someone who lives, breathes, and makes an honest livelihood out of manipulating these contracts. Who is daily engaged in the cut-and-thrust of disabusing the school leavers from Bucharest who are lined up against her, of the misconceptions in their playbooks about the delegation arrangements in their custody form. Someone who has spent twenty years in the doc unit.
To be sure, end-users are falling over themselves to rid themselves of these people and replace them with school-leavers in Bucharest, but they are a tenacious bunch. Many are still around. If anyone will know how an ISDA is meant to work, these people will.
Yet, by immovable convention it is not this cohort to whom magic circle law firms turn in their moments of greatest need. Instead, they ask the one group in the world who charge more than they do, and who are less likely to have a practical clue what the right answer should be: Queen’s Counsel.