THE MODEL Briefing Policy (MBP) used by Victoria’s Government to ensure panel law firms outsource work to barristers regardless of gender will be used as a blueprint for a national code, currently being drafted by the Law Council of Australia (LCA).
As well as other state and territory governments, private law firms and in-house counsel of Australia’s Top 100 ASX companies will be expected to adopt the completed policy.
Following on from disturbing findings emerging from the Victorian Bar last month, which revealed that only 13.2 per cent of court appearances were being made by female barristers despite them representing almost one-fifth of its ranks, the LCA has swung into action.
Its Equalising Opportunities in the Law (EOL) committee quickly moved to form a sub-group to respond to the findings. Dominique Hogan-Doran, EOL chair and president of Australian Women Lawyers, said formulating an overall policy was the group’s main priority.
“We want to find a permanent policy consensus that all lawyers can refer to,” she said. “We want to get everyone reviewing their briefing policies and moving forward together.”
Hogan-Doran said the unilateral MBP would be “essentially the same in substance” as that promoted by Victorian Attorney-General Rob Hulls and the Bar. While mandating that the 33 firms on the government’s panel brief out work according to skill and competency alone, the policy also requires signatories to keep a record of their briefs and make themselves familiar with the Women Barristers’ Directory.
The initiative has already captured the attention of newly appointed LCA president Bob Gotterson QC. A former EOL chair himself, Gotterson promised to “take a particular interest” in the committee’s work during his term.
Earlier this month, Hogan-Doran raised the idea with Federal Attorney-General Daryl Williams, who was cool on the idea. His government colleague, Assistant Treasurer Senator Helen Coonan, however, has pledged to vigorously support it.
Although he was reluctant to adopt any MDP dictating how the department’s legal service providers should brief, Williams is understood to have given his approval for a study into the appearances of women barristers in the Federal Court.
On a state level, Hogan-Doran said a copy of the MDP had already been sent to NSW Attorney-General Bob Debus, with similar correspondence to be issued to fellow ministers in the near future.
But while governments were first on the hit list, she agreed real headway would be made by alerting private law firms and in-house counsel.
“It’s a different type of issue for companies to adopt and implement a policy like this,” she said.
Convenor of Victorian Women Barristers, Fiona McLeod, was in no doubt that the private sector would be toughest to crack.
“Addressing the way private work is briefed, especially in the huge commercial area, is the most difficult,” she said. “Clerks tell us that some firms still don’t have any women barristers on their lists.”
Since the release of the damning survey, many firms have taken umbrage to suggestions that briefings were made on the basis of gender. But for McLeod, the figures don’t appear to be supporting those assertions.
“Firms have to look at their own briefing practices. Adopting a policy is incentive to promote themselves as good corporate citizens to their staff and clients,” she said.
Speaking on behalf of the body representing in-house departments, Australian Corporate Lawyers Association (ACLA) CEO Peter Turner said the guild was not yet ready to become “embroiled” in the issue.
“It is a matter for our members to look at, but we are a little bit reticent to force concepts on people,” he said.