The notoriously conservative Bar appears determined to modernise. But are recent reforms enough to bring barristers in line with the rest of the profession? Leanne Mezrani reports.

There is rivalry in today’s Bar – and not between opposing counsel in the courtroom. Two groups with very different views are emerging: trailblazers and those determined to stick to centuries-old traditions that are at once distinguished and stifling. On the surface it appears the Bar is dominated by the latter, but recent reforms, while modest when compared to the rapidly-changing legal market, depict a profession ready for change.

Just as the commercially-focused law firms have expanded into new markets, so barristers are looking interstate and overseas for opportunities, according to Michael Colbran, vice president of the Australian Bar Association (ABA).

Due to its proximity and thriving legal market, Asia has piqued the interest of barristers, says Colbran, who points to the increase in international arbitration work, particularly as Australia raises its profile as a neutral seat for cross-border disputes.

“The Bar is starting to open its eyes to opportunities in Asia,” he says.

Colbran believes barristers will be sought after in Asia when the local legal market becomes a “truly national market, rather than a whole lot of separate markets”. This requires uniformity of professional standards, which he hopes will be achieved through National Legal Profession Reform (NLPR).

While he points out that NLPR should allow certain exceptions, particularly to accommodate challenging circumstances in regional and remote areas, Colbran reiterates that commonality of rules promotes a stronger and more efficient relationship between the Bar and the rest of the legal profession.

“In the interests of efficient operation of the legal system it is economically sensible for there to be coherence in admissions principles,” he says.

Another by-product of NLPR is “increased portability” of barristers, Colbran continues. He says a set of national standards, which he advised on as an executive of the Law Council of Australia, will encourage barristers to move between states.

Craig Colvin, ABA president, also supports NLPR as long it does not undermine the independence of lawyers. He believes the right of lawyers to legal practices and their ethical duties should be “free from the potential for direct governmental control or influence” under proposed National Legal Profession legislation.

He explains that governments should not interfere in a barrister’s decision to accept a brief to act for parties whose cause is not supported by the government of the day or the majority of people in society at the time. “Barristers observe an ethical obligation to accept the next case on offer and this is an important protection for the interests of minorities or the marginalised in a modern democracy,” he adds.

In an effort to self regulate, the ABA has been developing rules of its own, including National Model Conduct Rules. These have been adopted with the support of all state and territory Bar associations, and steps are underway for those national rules to be adopted throughout Australia, says Colvin.

The ABA also plans to introduce common standards for entry to practise as a barrister in each of the jurisdictions. “These national initiatives support the ongoing work in training and education at the local Bar level,” he adds.

Increased transparency

Fiona McLeod, Victorian Bar senior vice chairperson, says Colvin’s comments are true of the Victorian Bar, where members are involved in the work of the ABA, including advocacy programs and conferences.

But the most significant reform this year was an independent move by the Victorian Bar to introduce a new senior counsel appointment process that involves a committee of legal professionals giving advice to the chief justice.

With the silk selection for 2012 currently underway in Victoria, McLeod says the changes have resulted in a process that is better articulated and selection criteria that is explained in more detail.

“This means that all applicants can address the selection criteria directly in their applications and put the strongest case forward for their appointment,” she explains.

Under the new system, which will be piloted for a year, a committee of senior members of the profession will make a preliminary assessment of candidates. The committee then recommends candidates they believe to be worthy of appointment based on satisfaction of selection criteria. But the final decision still rests with Chief Justice Marilyn Warren AC.

The decision to overhaul Victoria’s silk appointment process followed Chief Justice Warren’s announcement to the Bar that she no longer had the capacity to handle the process. Aside from lightening the chief justice’s workload, the new process provides an opportunity for the advisory committee to provide direct feedback to unsuccessful candidates.

“We can tell someone they didn’t make the shortlist, not just because of the chief justice’s view, but with specific feedback about why the application fell down,” says McLeod.

“This will assist unsuccessful candidates in addressing and strengthening those aspects of their practice.”

McLeod admits the Victorian Bar took cues from the New South Wales model for silk appointments, which is currently soliciting the opinions of barristers, judges and solicitors around the state on the performance of 117 barristers who applied to become senior counsel this year.

The process was amended after a successful legal challenge by barrister David Smallbone, who last year won the right to see the feedback under privacy legislation. All applicants were subsequently given the option of advising referees they would seek access to their comments.

Another recent reform in NSW was the inclusion of an explicit statement in the silk protocol that a flexible or part-time practice is not a barrier to being appointed silk.

Jane Needham, junior vice-president of the Bar Association of NSW, applied for silk in 2004.The mother of three explains that she moved in and out of full-time practice following the birth of her first child in 2002, which she found “surprisingly easy if you are disciplined”. She felt her flexible work arrangement could be a barrier to silk selection, despite her 14 years’ experience at the Bar.

However, Needham was duly appointed a silk in 2004. She feels her experience in being appointed a senior counsel after two years practising part-time should give heart to barristers practising flexibly who seek silk selection. 

Diverse initiatives

Since then, Needham has been involved in a number of efforts to promote equal opportunity and diversity in the NSW Bar. In June, the Bar Association of NSW Bar Council held an all-day strategy meeting, where streamlining access to reader’s rooms to promote equal opportunity was discussed.

The council resolved to compile information about each of the chambers’ floors, including the type of accommodation, fees charged to readers and timing of acceptance of applications. The ultimate aim is to develop a comprehensive listing of reader’s rooms, giving details for each floor.

Greater transparency around reader selection, which is currently performed on an ad basis, will make the process fairer and assist in promoting diversity at the Bar, according to Needham.

“It means those who aren’t already connected to particular floors or ‘in the know’ will be able to be considered for a spread of reader’s rooms rather than the ones that are available when they happen to apply.

“That would give people who aren’t your traditional applicant – someone related to or who knows someone in the law who can give them inside running – greater opportunities.”

The Bar Council is also developing a diversity and equity policy, which Needham says is “in a good state of advancement”, as well as a Return to Work program and resource pack, which would seek to address poor retention rates in the NSW Bar, particularly among women who have recently taken on senior positions.

Having had a flexible practice for 10 years, Needham says she is a “huge advocate” of these new projects that aim to not only increase diversity but also respect for the concept of diversity. She admits the Bar needs to reject the perception that 60 hours is the minimum working week for a barrister. On a positive note, she adds that judges are becoming more receptive to flexible work arrangements and family issues when setting court timetables.

“Attitudes are changing,” Needham adds.

Outdated perceptions of the skills needed to be an effective barrister are also being challenged, she continues, referring to comments made by High Court judge Virginia Bell on rhetoric.  

In a keynote at the Australian Women Lawyers conference in August, Bell dismissed the idea that rhetoric is the mark of an effective barrister. She argued that the view that a barrister must have “a commanding physical presence ... and voice, and an eloquence of style and address” is a myth that discriminates against women.

This “irrational” opinion is one of the reasons why female barristers are not receiving the same quality of work as men of similar experience and ability, she told delegates: “There exists an impression that men are superior to women in the ability to present a case in court.”

Needham agrees that, on occasion, there is client resistance to working with a female barrister. She believes that clients need to be educated on this issue, echoing Bell’s plea to lawyers to “redress this misconception in their discussions with clients”.

Bell also claimed that judges today prefer reason, rather than style of delivery, to dominate court proceedings – a view Needham shares.

“I don’t believe there is any perception by judges that women are any less capable than men,” Needham says.

While Bell believes there is no longer a place for colourful advocacy in modern litigation, letting go of traditions does not come easily to barristers, who have been bewigged and robed for centuries, despite the impracticality of this attire in Sydney’s summer months. However, the changes of the past year may very well be a sign of things to come as visionaries at the Bar, who are increasing in number, are making moves to modernise what is often perceived as the stuffy barristers’ profession.