Setting the bar in uncertain times for the law library

These are uncertain times for the Law Library. The economic collapse has meant that an increasing number of barristers are in competition for a smaller amount of work, while fees – at least for State work, for which hard figures are available – have diminished by almost 40 per cent. As the high rate of departure among younger members indicates, a divide that has long existed – between those at the top who earn millions and more recent starters who can struggle to make ends meet – is growing even wider. Added to the mix is a public image still marked by the popular memory of the tribunals as conveyor-belts of cash for the lawyers.

But the greatest source of uncertainty stems from a larger debate about the future of the legal profession itself. Ever since then Minister for Justice Alan Shatter published the first iteration of his Legal Services Regulation Bill in October 2011, the profession has been grappling with the implications of what could turn out to be the biggest shake-up the sector has seen since the creation of the State. It has been a long, occasionally acrimonious saga. Today, more than three years after the Bill was first published, it has yet to make it onto the statute books.

"Morale is not particularly high, although people are resilient," says David Barniville, the new chairman of the Bar Council, which represents barristers and runs the Law Library. "The fact that the Legal Services Bill has been hanging around for so long, people don't know what's ultimately going to happen. And when you have uncertainty, then that tends to lead to low morale."

Yet for all the changes barristers have had to accept – not least the introduction of independent regulation, which the Bar Council initially opposed – there is also a sense that the mood has changed. Whereas a few years ago the Bar Council warned that the independent Bar was under mortal threat, today Mr Barniville, who as vice-chairman was heavily involved in discussions on the Bill, professes himself “very confident that the independent Bar will survive and flourish”.

That shift in mood is partly due to changes that Mr Shatter accepted, including amendments that shored up the independence from Government of the new regulator that will oversee the legal profession. It's also linked to a striking change in the atmosphere between Government Buildings and the Four Courts. Relations between the Bar Council and Mr Shatter were famously awkward, but the tone of engagement shifted dramatically when Frances Fitzgerald replaced him early last summer. Whereas senior Bar Council figures used to complain they couldn't even get Mr Shatter to meet them for formal one-on-ones, his successor has made a point of opening her door and calming the rhetoric. "Certainly the mood is better," says Mr Barniville. "We have been trying to be constructive and look forward and not dwell on any issues that may have arisen in the past."

Multi-disciplinary partnerships

A different tone is one thing; whether it translates into new policy is another. The Bar Council remains strongly opposed to proposals to allow multi-disciplinary partnerships (MDPs), where lawyers, accountants and other professionals could operate under one roof. It argues such structures would not reduce costs and would reduce access to justice. Mr Barniville points out that MDPs were not a requirement of the EU-IMF troika, and says that in jurisdictions where they were introduced, including

New South Wales

and

Queensland

, barristers are prohibited from joining.

The latest version of the Bill states that MDPs will be set up after a six-month period, during which time the new regulatory authority will decide how they should be regulated. The Bar Council believes the regulator should be empowered to carry out a thorough analysis of the proposal and to recommend to Government whether they should be introduced or not. “We have said they should have a proper research function where they look at this properly, coldly, without necessarily having any predetermined ideas about it,” says Mr Barniville.

For most people, the key test of the new legislation will be whether it can bring legal costs down. The new structures for regulation and discipline won’t do that, Mr Barniville believes. If anything, given that they will be funded with a levy on practitioners, they will push costs up. But he believes the Bill’s changes to the costs regime will make it more open and transparent.

The long-awaited Bill is one of the incoming chairman’s priorities, but there are other areas where he hopes to make progress during what is typically a two-year term. One is the position of younger members. Today, 60 per cent of the law library’s members have been in practice for less than 10 years. Many of them have part-time jobs as teachers, waiters – even security guards – just to make ends meet. A common internal criticism of the Bar Council is that it is too concerned with the interests of established older members. In response, it has tried to encourage State bodies such as the Attorney General’s Office and the Chief State Solicitor’s Office to spread the work around. Mr Barniville says he wants to intensify this, making the case that younger barristers are often more competitively priced, flexible and exceptionally smart. “I would like to see more effort put into that and to see are we achieving anything. Some people are getting work, but not at the levels that you would like to see.”

Position of women

Another concern is the position of women at the Bar. Some of the leading barristers may be women, and women are beginning to outnumber men in the junior ranks, but there is a significant fall-off of women in their 30s. “There is a problem, I think, after a few years, if a woman decides to have a family,” Barniville says. “There isn’t the degree of flexibility for women in that position. If they take time off, they’re obviously worried they’re going to lose their practice. They’re worried that when they come back they won’t be able to get back on the treadmill. That has meant that there has been a kind of squeeze: as people get more senior, it’s more difficult to retain women at the Bar.”

The trend is driven home by figures which show just 16 per cent of senior counsel are women. One batch of 19 new silks earlier this term included just three women. In response, the Bar Council plans to set up a working group on the issue. “It has been a problem everywhere, and it may be an insoluble problem, but we haven’t really done anything about that yet.”

The debate over the Legal Services Bill has given the Bar Council greater prominence in recent years. Its lobbying has brought its members into politicians’ offices and TV studios. It also has active volunteering arms, notably its well-subscribed Voluntary Assistance Scheme, which provides pro bono legal work for charities and other organisations. Mr Barniville says the latter is a source of great pride to the council. But he believes there is room for barristers to take on a greater role in civil society.

“We have tended to be seen as elitist, staying out of things, and I think we have a much greater role to play in public life,” he says. It might also help with that image problem. “The only way you will change a perception is if you start getting out and talking to people. That’s why we would like to encourage people to engage more outside the profession itself, so that people can see ‘this isn’t full of wealthy, middle-aged, overweight males’, that the profession is dominated much more by women now, much more by people who are – if they’re lucky – earning a reasonable income, but probably struggling to get by in most cases.”