THE 33 law firms on the Victorian Government’s legal services panel are set to bear the brunt of fallout over new evidence pointing towards briefing practices that discriminate against female barristers.
Released last week, the survey by the Equality Before the Law Committee of the Victorian Bar found that female barristers were responsible for only 13.7 per cent of 3,606 appearances in 2001/02, despite accounting for 18.6 per cent of the Bar.
Convenor of the Victorian Women Barristers’ Association, Fiona McLeod, said only rates above 18.6 per cent — which would represent exactly proportionate briefs to numbers — should be tolerated.
“And that would be a bare minimum,” she said. “An absolute bare minimum.”
In the wake of the findings, state Attorney-General Rob Hulls is understood to be seriously contemplating a recommendation from barristers to extend the model briefing policy to all work performed by those on the panel.
If Hulls, who since assuming office has campaigned fiercely for equality on Victoria’s benches, agrees, all panel firms will be contractually required to adopt the policy and prove compliance via annual reports for private, as well as public, matters.
The Bar is now eagerly awaiting the first batch of reports, each of which will detail what percentage of female barristers have been briefed. The types of matters briefed and stage of referral will also be reported.
McLeod acknowledged the support Hulls had given female lawyers, and called on him to continue to demonstrate his stance.
“I think it is now necessary to require law firms to adopt model briefing across all areas of practice,” she said. “A system to audit services should also be implemented to monitor whether females are being given minor, interlocutory roles.”
The latest statistics were taken from court and Victorian Civil and Administrative Tribunal (VCAT) appearances. A snapshot from the Federal Court of Australia between August and October 2001 revealed a 15.1 per cent briefing rate from private firms to female barristers — more than five points below the overall 20.5 per cent of appearances.
Government agencies and the AGS flagged 87.5 and 24.4 per cent respectively.
Furthermore, more than half the 52 Federal Court appearances from women barristers during that period were directions hearings.
According to McLeod, who transferred to the Bar in 1991 from Cornwall Stoddart, such trends provide ample disincentive for other female solicitors to follow her lead.
Asked why she thought female barristers were consistently receiving the cold shoulder, McLeod said: “There’s a variety of sticks and carrots, but it in essence comes down to attitude. There’s an assumption that with time there will be sufficient women at the Bar to generate their own momentum, but that’s not happening.”
When pressed further she agreed that ‘the old boys club’ attitude did play a role.
“Solicitors aren’t sending [female barristers] briefs because they are operating under unconscious assumptions about what makes a good barrister,” she said. “Rather than doing their research properly, firms are falling back on these assumptions and the names of women are not coming up often enough.”
Peter Hay, CEO of Freehills — one of the government’s panel firms — said briefing practice was the responsibility of independent directing partners.
He was yet to view the report, but claimed the firm did “not measure its practices by gender”.
“We brief the best barrister regardless of whether they are male or female,” he said.
Hay did add, however, that there was nothing to be lost by reviewing the process.
“I’m always worried about internal policies that deal with gender issues. If there are question marks over selection of barristers on the basis of gender, then that is something we should all look at.”
The Law Institute of Victoria (LIV) has swiftly acknowledged that more work needs to be done to inform firms of the gulf. It has commenced reminding all solicitors about the MBP and is updating them on the findings of the survey.
A hyperlink connecting the LIV’s website to the Bar’s Women Barristers’ Directory will also be established.