Minister hails policy aimed at equality of opportunity for women and men barristers in issuing briefs

A policy aimed at ensuring that equality of opportunity between women and men barristers when it comes to issuing briefs is “a reality rather than an aspiration” has been launched by a Government minister.

It is important that the legal profession “is representative of the people it serves”, said the Minister of State at the Department of Justice and Equality with responsibility for Law Reform, James Browne, when officially launching The Bar of Ireland’s Equitable Briefing Policy.

Mr Browne said he welcomed a policy “which seeks to make equality of opportunity in the legal profession a reality rather than an aspiration”.

“One of my Department’s key priorities is improving access to justice, which means widening access and removing barriers to the justice system, so it meets the needs of the public, society and business,” he said. The equitable briefing policy “speaks to the other side of ensuring access to justice which means giving all people access to legal practice as a profession.”

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The president of the High Court, Mr Justice David Barniville, who also attended the launch event in Dublin on Thursday, said he supported the objective of the policy but wanted to stress the choice of barrister must always be with the client and solicitor.

The aim should always be that the best barrister is briefed, there must be equal opportunity for all and clients need to know there are brilliant women as well as brilliant men barristers, he said.

One has to wonder why there are areas of practice that women have been traditionally pigeonholed into, such as family law, and why more women are not instructed in commercial cases, he said. The latter situation is improving but there “is a lot of territory to go”.

In response to questions, the judge said there is no real disagreement about the objective of the policy but it is “quite controversial” in terms of the detail. He hoped people would not get “hung up” about the detail and focus instead on the objective, he said.

Attorney General Rossa Fanning said his office has a statutory duty to ensure a fair and equitable policy of briefing counsel and he has taken some steps in that regard since assuming office, including updating the nomination of counsel form on his office’s website.

The Bar has always been competitive and the biggest problem has consistently been that there is not enough work to go around, he said. While equitable briefing is not “a panacea” for those seeking to establish themselves, it can “help level the playing pitch”, he said.

Bar council chair Sara Phelan said the policy is not all about women and there are some areas of law where there is a perception that women are briefed more than men and vice versa.

The aim is to ensure a level playing pitch and equal opportunity and the hope is that all barristers will start at “Ground Zero”, she said. The Bar has a role to play in that respect, including by promoting members via its website and through networking events.

Various studies, she noted, have shown the lack of progression of women to senior positions in employment is not only attributable to caring responsibilities and that unconscious bias is another factor at play. Raised awareness will help address that, she said.

Caoimhe Clarkin, a partner and head of litigation/regulatory at law firm DLA Piper, said it was delighted to support this “important driver of cultural change in the legal profession”. Any policy which encourages the attraction, retention and progression of women members of the Bar should be welcomed and endorsed, she said.

The equitable briefing policy seeks to ensure all areas of legal practice “benefit from the contribution of all genders” and to address the underrepresentation of women counsel at senior levels and before the superior courts.

Just 20 per cent of senior counsel are women. In January 2023, of a total 1,366 male counsel, there were 296 seniors and 1,070 juniors. Of a total 777 women counsel, there were 74 seniors and 703 juniors. The ratio of male senior to male junior counsel is 1:3 while that of women senior to junior women counsel is 1:9.

Under the policy, those involved in briefing lawyers – solicitor firms, in-house legal departments, State bodies and counsel – are asked, once satisfied the required standard of expertise, skill and seniority has been met, to “use their best endeavours” to consider gender when choosing counsel. Briefing entities who sign up to the policy will be required, inter alia, to give “genuine consideration” to woman counsel with a view to increasing the number of women briefed in practice areas where they are infrequently briefed.