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Renewed push on briefing practices

News

Cite as: (2003) 77(9) LIJ, p.26

The Law Institute and Victorian Bar have agreed to improve briefing practices for women barristers. The resolution follows Supreme Court Justice Marilyn Warren’s public call for real progress on the road to equal opportunity.

The Law Institute and Victorian Bar have committed to a campaign over the coming months designed to increase awareness within the legal profession of the need for equal opportunity briefing practices.

At a meeting on 31 July, the professional associations decided to target law firms, senior barristers and clerks in the hope it would lead to the briefing of more women barristers and in more senior work.

However, the Women Barristers Association (WBA) said the campaign did not go far enough and has called on the state government to show leadership on the issue.

The campaign will include:

  • the Institute sending to its members the Bar’s Model Briefing Policy and the results from the latest appearances survey;
  • the Institute placing on its website a link to the women barristers directory housed at the Bar’s website;
  • both organisations organising lunchtime meetings between women barristers and law firms to discuss equal opportunity briefing practices;
  • the Bar conducting a seminar for barristers’ clerks on the Model Briefing Policy;
  • the Bar advising senior barristers on what they can do to make sure junior women barristers are briefed more often and in more senior matters.

The decision to renew the attack on poor briefing levels comes more than two months after Supreme Court Justice Marilyn Warren’s blunt appraisal of the current plight of women barristers (see cover story, “Keeping gender on the agenda,” July 2003, LIJ, pages 16-20).

In a speech delivered at the Victorian Women Lawyer Achievement Awards on 15 May, Justice Warren said the pace of change had slowed and that briefing levels for women barristers in some areas had deteriorated.

This has since been confirmed by the initial findings of the Bar’s Equality Before the Law Committee’s Draft Report on Survey of Appearances (which was being completed at the time of writing this article but parts of which have been seen by the LIJ).

The article created enormous interest in the issue within the legal profession, sparking the greatest number of letters to the editor of the LIJ on any issue in recent years.

Equality Before the Law Committee chair Frances Millane said the meeting between the two professional associations had been positive, with the Institute agreeing to help the Bar “sell the message”.

“To some extent the Model Briefing Policy and the issues that the Bar has been trying to direct attention to since the Equality of Opportunity for Women at the Victorian Bar report in 1998 is understood by many practitioners,” she said.

“Some of them would have been informed by it and have tried to develop better practising models.

“But what we possibly haven’t done as well as we could have is not only promote the policy, but bring to the attention of practitioners an empirical basis for doing what they’re doing.”

Ms Millane denied the step-up in action to tackle the problems had been a direct result of Justice Warren’s speech since many of the proposals adopted by the Institute and the Bar had been formed over many months.

She said what the speech did achieve was to put the spotlight back on to the problem and allow the profession to know what was being done to tackle it.

Apart from the action agreed to by the Institute and the Bar, the Equality Before the Law Committee is in discussions with Westpac and Victoria Legal Aid to develop better equal opportunity briefing practices.

Institute president Bill O’Shea hoped the campaign would have a positive impact on current briefing levels.

He said there was a mindset among law firms, barristers and clerks that they were not prepared to brief women in areas in which they have not briefed them before.

“They need to be a bit more daring in regards to their briefing practices,” Mr O’Shea said.

“There is a stereotyping of women barristers into certain categories and that’s not a good thing.”

He said the Institute Council would be asked to formally endorse the Model Briefing Policy at its 28 August meeting.

However, the latest steps to tackle the problem of poor briefing levels for women barristers has been attacked by the WBA.

WBA convenor Fiona McLeod said that while the latest steps were “very useful and very appropriate” they did not go far enough.

“It strikes me that after five years of effort by the Bar Council, its various working parties and the WBA that something more drastic is called for.”

Ms McLeod said what was needed was for the Bar and state Attorney-General Rob Hulls to adopt a combined approach to tackling the problem.

This would include insisting on the adoption of the Model Briefing Policy by all firms doing government work and the auditing of briefing practices of those firms, which would include all non-government work.

She said Mr Hulls should require all government departments and statutory authorities to adopt the Model Briefing Policy and report regularly on their compliance.

The policy should also be used in royal commissions and inquiries in which the government is paying for legal representation.

Ms McLeod said that unless firms saw that “there’s a stick and there’s a carrot” then they would never see the need to change their current briefing practices.

“If you don’t have the person that counts, the person with the purse, the Attorney-General saying that he now requires this ... then practices will not change.”

A spokesman for Mr Hulls said the Attorney-General would be interested to have a look at any proposal that would fit with his aim to break the “glass ceiling” for women lawyers.

“We are always looking for ways for the best and brightest legal minds to get the work, not just the usual suspects and that obviously includes those from outside the old boys network,” he said.

The spokesman said the 33 firms on the government services legal panel needed to show, among other things, a commitment to equal opportunity principles when tendering for work. He added that government departments must adhere to equal opportunity briefing practices when retaining legal representation for royal commissions.

While the WBA has called for more forceful action, the current campaign has received the backing of Victorian Women Lawyers (VWL) and Liberty Victoria.

VWL convenor Jo Renkin said there needed to be a positive attitude towards any measures designed to remedy the current briefing situation.

VWL has agreed to send out the Model Briefing Policy to its members.

Liberty Victoria immediate past president and barrister of almost 20 years Chris Maxwell QC said the removal of discrimination on grounds of gender was a vital human rights concern.

He said the need to provide true equal opportunity at the Bar was necessary not only for women barristers, but for the community at large in providing a model of achievement for young women.

“There is another community benefit in that the kind of legal service we deliver to the community and whether in our advice to them or our representation of them in court, should reflect the gender balance in society.”

The debate over what needs to be done to remedy the problem comes as more figures are released from the Bar’s Draft Report on Survey of Appearances.

The report contains figures from a survey of court appearances in the Federal Court, Family Court, Court of Appeal, Supreme Court, County Court and the Victorian Civil and Administrative Tribunal (VCAT).

The report has found that despite women comprising 18.6 per cent of the Bar, the volume of trial and other senior work was well below that figure.

Among the more noteworthy findings were:

  • of 52 appearances by silks between September and November 2001 before the Court of Appeal, none were women;
  • in Supreme Court trials women made up only 13.3 per cent of junior appearances and 16 per cent of silk appearances;
  • not one female silk was briefed in a serious injury application heard before the County Court; and
  • while women barristers rarely appeared in VCAT cases, about 21 per cent of hearings involved an appearance by a female solicitor.

The only courts that saw women barristers being briefed at or above their Bar-wide representation level were the Family and Federal Courts.

The draft report contains four recommendations, although there was a possibility of further recommendations being added before the report was finalised.

These recommendations included the involvement of the Law Institute in promoting the Model Briefing Policy, which is part of the course of action agreed on, and the wide circulation of the results of the appearances survey.

Third, the Bar will be required to undertake a review and audit of the recommendations made in the 1998 report to “identify strategies for addressing gendered briefing practices”.

Fourth, the courts and VCAT will be asked to formally establish measures for collecting data on briefing practices for inclusion in their annual reports.

For a copy of the Model Briefing Policy, go to http://www.vicbar.com.au.

Jason Silverii

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