Equitable briefing must be better ‘embedded’ in-house
For in-house counsel to effectively utilise equitable briefing policies, organisations need to make it a part of their culture, according to this Westpac lawyer.
The Equitable Briefing Policy, launched in 2016 by the Law Council of Australia, intended to address the pay gap and underrepresentation of female barristers and support the progression and retention of women in the courts.
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But recent findings in the ACC Australia Trends Survey show that the policy has not been widely adopted in the profession; only 13 per cent of respondents said their organisation had an equitable briefing policy and consciously aimed to meet it. Some organisations, however, are finding that having the right policies in place means they can easily meet the targets set out in the policy.
Talitha Fishburn is a barrister at Black Chambers in Sydney and Paul Green is a senior lawyer in the customer management legal team at Westpac Group. Speaking recently on the Corporate Counsel Show, Mr Green said that since the policy’s inception in 2016, Westpac has been a “strong advocate” for it.
“In each year, since then, we’ve either met or exceeded the briefing targets set out in the policy. It is really mystifying that there are organisations out there that just have no awareness at all about the policy,” he said.
“When we signed up to it, we made a firm commitment and wanted to make sure that we were going to give life to it and achieve its goals, and not do it in some half-hearted way.
“And [one of our policies is] simply ensuring that every time you brief counsel, you are provided with names and information about women barristers. That’s probably the main thing that’s helped us achieve the aims of the policy,” Mr Green added.
Whilst the Equitable Briefing Policy has not been taken up as widely as needed in the profession, Westpac’s company culture has meant not adopting the policy is inexcusable.
“Westpac itself has long been a place that highly values women in leadership. I think perhaps it’s just part of the culture here. I know in the training and onboarding material that we have for new people starting with us, there is information in there about the policy and our commitment to it,” Mr Green added.
“And so, there’s not really an excuse for anyone who is in the business of briefing council to not clearly understand what our position is.”
Adhering to the policy shouldn’t be a difficult task for in-house counsel, added Mr Green.
“It is not onerous to sign up to this policy and give life to it. In signing up to it really, you’re committing to making reasonable endeavours to brief women barristers and you’re encouraged to meet particular targets that are set for briefing senior counsel and junior counsel. And there’s a commitment to provide an annual confidential report of data. And none of that is difficult,” he said.
“The way that Westpac gives life to the policy and to make sure that we achieve its goals, is it’s embedded as one of the ways that we work. It’s as easy as every time a decision has to be made about briefing council, we expect that our panel firm will provide a list of recommendations and that that list will always include women barristers.
“And from time to time, a list will come through, and this happened to me very recently, a list came through and there were no women on it. But you make it clear that that’s not acceptable. And you send the list back and you ask the law firm to have another go at it. And that’s not a difficult thing to do,” Mr Green continued.
Ms Fishburn is briefed by both private firms on behalf of bigger organisations, as well as directly by corporate counsel – but recognised that a number of briefs she’s received since the inception of the policy have been from those who have adopted the policy.
“In recent years there has been a real emphasis on getting to know female barristers more. So, I think before you can brief someone, you need to know a bit more about them, obviously. So, there’s definitely been an increased trend of networking events involving females.
“There’s been a conscious decision, I think, to involve females in speaking events. And I think that’s a really organic, simple way of a networking relationship to inspire confidence in the woman, rather than just looking at a list of names and thinking, well, I’ll go with that person. It’s actually facilitating meaningful relationships being formed,” she said.
“So, I think that’s definitely something that law firms and in-house environments are working towards. And I personally feel that I’ve been a participant in some of those initiatives and that’s been good.”
However, as a result of the pandemic, in-person networking events have been few and far between. In addition, Mr Green said that virtual courtrooms had also proved to be a challenge in recognising and getting to know female barristers.
“Where you might sit waiting for your matter to be reached in a list, and you would see barristers on their feet and doing a great job and making a note of who they are. Or asking someone who they are and going back and finding out about them. Or sharing with your team that you saw a great barrister today on their feet, and we should give them a go,” he said.
“With those opportunities limited, we need to think about alternatives. And there’s no easy answer. I know that Westpac practising day has generally held an annual networking event for women barristers and all of its in-house lawyers.”
Additionally, Westpac has been engaging female barristers to deliver seminars and workshops directly to Westpac staff to ensure they meet more female barristers to brief.
“We’ve got to try to find other ways to keep up those connections that will result in us making new connections and meeting more and more barristers. Because ultimately, what I’ve seen is, the benefit of the policy has been really that it simply broadens the pool of barristers for us to use and that we have experience working with and we’re comfortable working with,” he said.
“And why wouldn’t we want to continue to do that? Why wouldn’t we want to continue to broaden that pool and broaden and deepen those relationships?”
The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Talitha Fishburn and Paul Green click below: