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It’s time to change the rules

It’s time to change the rules

With the rise of the #MeToo movement, the spotlight has been shone on how our society treats women, writes Christine Smyth.

At the heart of this movement is a focus on how our legal system treats women. There are well documented sexual harassment issues publicly aired in the New Zealand profession. There is no reason to doubt the situation is replicated throughout Australia as we are just starting to see in some high-profile matters recently reported.

It has always been the case, that overall, our legal profession does not treat its female lawyers equitably. The research reveals that there are clear road blocks to women progressing in their legal careers (see the NARS report). As a result, talented female lawyers abandon the law for successful careers in other disciplines-to our profession’s great detriment.

Then there is the issue of wages. The evidence reveals the legal profession has a gendered pay gap.

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If the legal profession cannot treat its female solicitors with equality, then it makes it difficult for the community to have faith in the justice system to ensure that women in our community are treated with equality.

One program that seeks to right this wrong is the Equitable Briefing Policy for female barristers. While laudable, it is, in many ways, divisive, as are many initiatives that attempt to right wrongs. Some cynics might say deliberately so, particularly in Queensland where the profession is not fused.

The Equitable Briefing Policy is to be applauded in attempting to create a mechanism where female barristers are treated with respect and dignity, reflected in high-quality matters and equal pay. However, its main premise is that solicitors and law firms are not briefing female barristers with good quality briefs and paying them the same as their male counterparts.

The thing is, inequity in the legal profession in Queensland is not a problem that is confined to female barristers. Those same firms have systemically failed to treat their female solicitors equitably, despite many lauded programs that speak to the issue, without rectifying it.

Female solicitors now make up the bulk of the profession in Queensland, but they continue, daily, to face age old problems of equality and respect.

Female solicitors undertake significant advocacy in our courts for clients.

There is a mischaracterisation of advocacy underpinning the equitable briefing policy. The policy promulgates a public perception that appearances in the higher courts on complex trials is where the bulk of skilled or perhaps specialist advocacy takes place. There is no doubting that advocacy in those courts must be of the highest quality. But that does not mean advocacy elsewhere is of a lesser worth and quality.

Skilled advocacy takes place across a broad range of legal institutions responsible for decision making and they often do not involve trials.

In addition to the higher courts our legal system has numerous tribunals, courts of enquiries, commissions and so on. For example, in Queensland, QCAT is responsible for administering hundreds of pieces of legislation, for which clients have matters heard and are represented daily by solicitors.

Then there is the Federal Circuit Court where there are numerous daily court applications. While the majority of those matters are family law matters, this court is responsible for other federal laws, including laws that place the might of Commonwealth against the individual, such as Human Rights, Migration Law, and Consumer law, to name a few. Advocacy here is of a critical nature, affecting the freedom and rights of our citizens. Nothing could be more important, yet it remains woefully underfunded.

Everyday thousands of female solicitors are appearing in these courts and tribunals on behalf of Queenslanders. And many of our female solicitors work in conditions that would shock our community, who through no fault of their own believe that all lawyers earn high incomes and work in flashy offices.

Take the median annual Australian wage. The bulk of female solicitors undertaking this important and critical advocacy struggle to make that wage; those who strike out on their own as sole practitioners can only dream of it. They work extraordinarily long hours late into the night, and on weekends to prepare matters without any additional remuneration.

How is their struggle any less than their female counterparts at the bar? I ask this question not to be divisive, but to highlight the divisive nature of a policy that focuses purely on one branch of the profession. In Queensland there are a mere 241 female barristers, compared the 6,500 female Solicitors. Why are we being divided?

While its aspirations are worthy, the Equitable Briefing Policy simmers with tokenism. A band-aid solution to a bigger problem that continues to be ignored, not just by the profession but importantly by stakeholders who are the source of work for the profession.

It’s time to change the rules.

Government as the main stakeholder has a responsibility in leading and effecting change, not just for a select few, but for the whole.

Government is not just responsible for engaging law firms to undertake its work, it funds numerous programs and services to which solicitors provide services to clients. The most significant of which is Legal Aid.

Many Criminal and Family Law matters are funded by Legal Aid. We all sympathise with the burden of the Legal Aid Office whose funding is at appalling levels.

Vast numbers of female solicitors undertake criminal and family law work funded by Legal Aid. These solicitors are the ones picking up the pieces, working the extra hours, taking home the smallest of wages, barely able to make ends meet. That is not to say it is not an issue for our male counterparts, nor female barristers, simply that it is an issue for the solicitors branch of the profession which constitutes more than 50 per cent female solicitors, into the thousands.

Layer the pay gap with other systemic pressures which result in serious psychological harm to our solicitors, and you begin to understand why women abandon the law in droves.

By way of mere example, there are numerous reports of discriminatory treatment when it comes to female solicitors, a significant one being the policing of their clothing, particularly with some sectors of government institutions. In Queensland female solicitors have been routinely denied the right to see clients in prisons, based purely on the arbitrary assessment of prison officers as to the suitability of their clothing that otherwise is considered professional attire.

Our government has adopted the equitable briefing policy for the bar, but it should also ensure that its engagement practices of law firms equally consider the treatment of employed female solicitors, both within law firms and its own institutions in which members of the legal profession work.

For example, immediate steps should be taken to build in to the tender processes, criteria that ensures law firms undertake to appoint female solicitors on matters, not just in background research but in frontline, high-profile aspects. That should also include checks and balances to ensure that female solicitors are receiving equal pay for equal work, before awarding funding. Government should also create a Judicial Commission and our government funded institutions ought to have protections built in to ensure true equality for female solicitors and the profession as a whole.

Christine Smyth is a partner at Robbins Watson Solicitors and former president of Queensland Law Society. 

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