Exclusive ... Comments received from members on the NSW bar's draft strategic plan ... Groping for a view of the future ... Great struggles with solicitors ... Fee recovery strategies ... Commitment to diversity ... What do barristers have to offer? ... Marketing and more bang for bucks ... Creating an identity ... Better diets ... Access to legal information ... Massive work ahead for the bar association to become relevant
Where to next?
See: Original draft strategic plan
See: Charting the future
David McLure
Seven Wentworth Chambers
(1) Received from David McLure June 22, 2012
I am writing to you in response to the invitation to comment on the draft strategic plan.
I wish to make one observation. My view is that the Bar Association's website needs to be dramatically improved. It has served us well up until now, but with no disrespect to all the hard working people who maintain it, I believe the time has come for an overhaul.
The home page of the website is a confusing conglomeration of unrelated topics, e.g. professional indemnity insurance and equal opportunity at the Bar. I think the home page needs to be simplified into some basic statements of who we are and what we do, with links to various other pages focussing on particular topics. Why wouldn't the home page simply say something like this:
Members of the New South Wales Bar hold themselves out to be highly skilled legal practitioners and experts in written and oral advocacy. Members of the Bar may be engaged by solicitors, corporations and individuals.
The roles of the New South Wales Bar Association are to:
(a) promote the public good in relation to legal matters viewed in the broadest context;
(b) promote collegiality and mutual assistance among its members;
(c) represent the interests of its members in dealings with government, the broader legal profession, the media and the community;
(d) promote fair and honourable practice amongst its barristers;
(e) through the statutory role of its Council, assist in matters of professional discipline of members and the resolution of complaints against them.
I would then suggest a number of tabs or linking pages, such as:
- Briefing barristers
- Barristers' directory
- Professional conduct and ethics
- Publications
- Media
- Members' services
- Contact us
These are quick and rough ideas. No doubt they can be improved.
(2) Received from David McLure July 5, 2012
Paragraph 10 of the draft strategic plan says:
Much cannot be undone. Solicitors will continue to brief the bar later in matters or not at all. But a close collaboration is needed with all sizes of solicitors' firms to see how we can best work with them. Corporate counsel have expressed an increased willingness to brief the bar directly and this needs to be encouraged.
I would like to see the Bar Association through the website and other means highlight the advantages of the Bar in comparison to law firms, such as:
- Cost competitive
- Genuine expertise in conducting dispute resolution processes
- Independence
- The person who gives the advice actually runs the case.
These and other themes were discussed by Bret Walker in his address to the St James Ethics Centre in 2005.
I appreciate that some of these points are contentious and difficult to make without seeming a little too brash. However, if they were made by someone credible and independent, based on some proper analysis, it could be quite persuasive to consumers (especially corporate counsel and government) and even to solicitors.
What if the Bar Association engaged a high profile management consultancy firm like Accenture / McKinsey / Deloitte etc., to write a report analysing the role of barristers in the provision of legal services? This could be used to promote the Bar to corporate general counsel and government. The report could be briefed to the media and published on the website. It would be developed into an annual review.
An independent consultant could credibly, and based on actual marked research, make a point like the one made by White J in April Fine Paper Macao Commercial Offshore Ltd v Moore Business Systems Australia Ltd (2009) 75 NSWLR 619; [2009] NSWSC 867 at [26]:
'In a usual case of commercial litigation, counsel, at least junior counsel, should be briefed early. Where there is work that can be done either by the solicitor or by junior counsel, and, as often happens, junior counsel is more experienced than the solicitor and charges at a significantly lower rate, then the solicitor's duty to his or her client is to ensure that the work is done at the lower cost. That general statement is, of course, subject to the ability of the individual legal practitioners involved. But very often one sees work done by a solicitor in a firm which could be done equally well or better at a fraction of the cost by junior counsel with considerably more experience as a litigation solicitor and with more expertise.'
To illustrate this point, White J referred to the defendant's solicitor's hourly rate of $440 for a legal practitioner admitted in July 2004 with limited litigation experience. By comparison, junior counsel who was admitted as a legal practitioner in 2002 and admitted to the Bar in June 2008, charged only $250 per hour.
I think an exercise such as this would be valuable, because I believe that there is a lot of work now being done by solicitors that the Bar could do better and cheaper. I suspect that a lot of consumers of legal services don't know that most barristers of say 5 years' experience charge at a rate much lower than a solicitor of the same experience. Equally, I think it would be valuable to emphasise to consumers that the Bar does not operate on what might be thought to be the inefficient mode of partner + senior associate + junior solicitor/s combining to prepare a piece of written advice on a dispute that they will probably not be called on to present to a court or tribunal. Independent analysis and commentary by a credible organisation on the way barristers work in comparison to law firms would be capable of gaining real attention in the market.
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M G McHugh
16 Wardell Chambers
Received July 4, 2012
Re the draft Bar Assoc strategic plan - please forward these few comments onto the committee at your convenience, along with my support for their efforts to date.
Relevant to the heading 'Move to a national profession' and para [7] of the circulated document: National standards of education and admission to the profession ought also be part of this process. Currently only some states have Bar Exams as we know them in NSW and do not have the equivalent of what I understand is the well respected NSW Bar Course run by the Association. Equivalents ought be part of the profession in every state if we are to have anything like a truly national profession. Economics of scale arguments against the practicalities of such an approach need to be overcome, perhaps by the larger state associations assisting in the provision of materials and by utilising the legal apparatus already in each state - the courts in each state ultimately obtain the benefit of well trained judges from the ranks of barristers.
Perhaps more broadly relevant and applicable under the heading 'Continued community and court concern about the cost of litigation' and para [13]:
The Practice Development committee is undertaking work in this area (it is also particularly targeting corporate counsel as an area for direct briefing), suggesting ways to both assist the Bar and the courts through the use of courts rules and practice notes. I am not suggesting it be the committee to engage with the courts as proposed in para [13] – only to give notice of what is being done.
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Farid Assaf
Banco Chambers
(1) Received from Farid Assaf July 4, 2012 via Justin Gleeson
Congratulations on the draft strategic plan. I think it reads well and identifies the key challenges ahead.
In relation to the challenges that may lie ahead for the Bar, I thought I would bring to your attention two recent letters in the New South Wales Law Society Journal questioning solicitor's responsibilities for counsel's fees. In my view, the letters make for troubling reading. The two letters are set out below.
It is not clear if the sentiments expressed below are widely shared amongst solicitors. Even so, I think it would be desirable for the Bar Association to at least have a stance on this issue.
I hope this is of some interest to you.
Responsibility for counsel's fees (LSJ – May 2012)
Having just been successfully sued by senior counsel over a $28,000 claim for unpaid fees, I am less than happy. This amount represented a mere fraction of what senior counsel had been paid over the prior 12 months before the client group had gone bust.
Why are we responsible to cover counsel's fees?
The Bar's argument is, as I understand it, that he or she:
1. does not know the client;
2. has no knowledge of the client's credit worthiness;
3. should be free from worrying about payment and concentrate on the brief; and
4. does not maintain a trust account.
These arguments have never curried much favour with me. However, in circumstances where counsel had no right to sue to recover fees, it was fair solicitors should be honour-bound to pay counsel. As we all know, the right for counsel to sue to recover fees became available in the 1993 amendments to the Legal Profession Act 1987.
It is not common knowledge within the profession that if an adjudicating body finds there was no enforceable agreement between solicitor and barrister, the solicitor may nevertheless still be honour-bound to pay outstanding fees or risk the ignominy of being named in a judgment as being a dishonourable person, expressly or inferentially (Keesing v Adams [1010] NSWSC 336 at [36] per Brereton J).
Even if we concede that the 'no trust account' point has some substance, every litigator knows it is unrealistic to cover future fees adequately and at all times throughout litigation, especially protracted and complex litigation. Counsel will rarely agree to fix fees; so how can we as solicitors possibly know how much to deposit into trust to cover counsel's fees.
I concede that I am having a bit of a whinge here. However, why are we so compliant with this ancient responsibility or obligation to counsel? This absurd servitude must end. Counsel should be thankful we refer our clients to them as we are when existing clients refer new clients to us.
These are difficult financial times and going guarantor for counsel's fees is no longer acceptable to me. I now only engage counsel who will enter into a costs agreement directly with the client. If not, I brief elsewhere or do the job myself. It should be remembered that s.83(4) of the Legal Profession Act 2004 and its earlier equivalents provides: 'A barrister may enter into a contract with the client even though the barrister has accepted a brief from a solicitor in the matter.'
Counsel may still render services in the old way with no right to recover fees at law and is left with 'extra-curial remedies' (Keesing v Adams [23]), which I assume means black booked, blackballed and generally defamed as a thoroughly disreputable person in failing to meet a debt of honour.
I continue to be prepared to give my personal assurance to use my best endeavours to assist counsel in being paid and paid promptly, but no legal obligation is to arise from this undertaking.
If I am a lone voice in this issue, I shall not ultimately succeed. However, if all litigators stand firm, counsel will have to bend and contract directly with the client or starve. Have I enlivened your support? Are you with me on this?
Phillip Biber
Sydney
~~~~
A fabulous lurk (LSJ – July 2012)
Yes, Phillip Biber, I am with you ('Responsibility for counsel's fees', Letters, LSJ May 2012): it is time for us to abdicate responsibility for counsel's fees and in so doing, see the end of that fabulous lurk, The Cancellation Fee. I can't wait to see how counsel will justify The Cancellation Fee to the average punter.
The inability to run a trust account argument is otiose as counsel can take a retainer. The argument that they don't know the punter or the credit worthiness of same is the same issue we often face. Again, they can't take a retainer and/or security for fees. They are business people, as we are, and should take on the worry of their own cash flow positions and debt recovery.
Solicitors have to run the litigation, manage the client. Manage counsel, worry about being paid, and need no added burdens.
I call on the president of the Law Society to inform the president of the Bar Association forthwith that solicitors will no longer guarantee counsel's fees.
Deborah Searle
Sydney
(2) Received from Farid Assaf July 10, 2012 via Justin Gleeson
Just a few more thoughts:
The mention in the Draft Strategic Plan of the importance of in-house lawyers is an important insight. We do after all represent exceptional value when compared to solicitors and I think in-house lawyers area potentially important strategic market at the bar. I'm a big fan of promoting the bar generally but particularly to in-house lawyers where I think the bar can make real inroads into market share for legal services. I suspect as a group we could probably do more to promote ourselves in this respect.
You have no doubt seen the 2010 report from Nicholas Green QC into the future of the UK Bar. I don't necessarily agree with everything Green QC recommends but I am impressed with the scope and rigour of his analysis. For what it's worth, I think the respective Australian Bars could do with a similar review.
If I can be of any assistance please do not hesitate to let me know.
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Tony Payne
Sixth Floor Wentworth Chambers
Received July 5, 2012
I've read the draft strategic plan and think it is a very impressive piece of work. I look forward to its implementation. Please record my thanks to the Committee.
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Duncan Graham
Maurice Byers Chambers
Received July 5, 2012 via Mary Walker
Could I suggest also for the plan that it include:
1. Barristers having the option to incorporate their practices (like doctors) for whatever benefits that may follow (e.g. Tax benefits). There is no present legitimate reason to justify the inability to have flexibility in the structure of a barrister's business.
2. The ability to engage 'locus' when a barrister is on leave or unavailable through being in a trial. Again, this is based on a medical practitioner mode - it would enable chambers work to be completed in the absence of a barrister - there would have to be disclosure to solicitors, but this should be investigated. It complements the proposals recognising the practical realities of being a solo practitioner.
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Patricia Lowson
HB Higgins Chambers
Received July 5, 2012 via Kate Traill
I have read the proposed strategic plan for the NSW Bar Association and am writing to express my views about the weak-as-water 'commitment' at paragraph 17.
If the NSWBA is going to include any reference to diversity of membership at the Bar, it should do so with some commitment to undertaking (and paying for) some robust research into why those fitting the categorisation of diversity (presumably, non-white, non-male, but perhaps also non-private school and no family connections to the law)
(i) elect, or don't elect, to come to the Bar
(ii) stay, or don't stay, at the Bar.
Whilst it appears that the proportion of the Bar who are female has increased from around 13% to 23% between 2000 and 2010, and whilst the proportion of female barristers who are silks has increased from 3% to 5.4% over the same period, there is no context for this data, no way of knowing precisely why it has happened, no analysis to know whether these increases are relatively 'good' or 'bad' in the context of availability of law graduates, and no way of forecasting whether there will continue to be an incremental change or whether this represents another plateau in this one area of diversity'. For example, the proportion of male barristers who are silks has increased from 14% to 18% over the same period, meaning that the increase in female silks may in fact reflect the status quo.
I am not an expert statistician, which is one reason why I am advocating for some in-depth research into the career paths of female barristers (and other 'diverse' groups), as well as some comparative data to see whether there are different things driving lawyers in their decision to come (or not to come) to the Bar.
I have focussed on females as my area of personal interest, but I note that the statistics on indigenous barristers that were the point of discussion at the Mum Shirl fundraiser in early June this year were simply shocking.
If there is not such a commitment in the proposed strategic plan, then I suggest dropping the issue altogether - in its current form paragraph 17 is embarrassing.
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Geoff Slater – Vicbar
Owen Dixon Chambers West
(1) Received from Geoff Slater July 8, 2012
The critical issue is this: we have no empirical data on income and the trends. For example, I know that the big law firms spend less than 5% of revenue on the bar.
All we have to sell is (i) specialist expertise (ii) relationship with the bench and (iii) on demand capacity and finally (iv) blame shifting to sugar coat bad news after a solicitor has reached the end of client funds. For example, why can't we incorporate? If we are so independent (as we claim), why not (assume common sense applies here, i.e. no captive solicitor referrals, insurance etc) and leave to free enterprise and innovation.
I would like to participate, but the older generation of the bar wants the status quo and when they are gone it will be too late (if not already).
How serious is this?
(2) Received from Geoff Slater July 15, 2012
This was a friendly note; not a submission. If that is what you want, I would be very happy to do a submission. I am extremely interested in empirical data, and refer you to the ABS report on barristers, 8667.0 – Legal Services, Australia, 2007-08.
This tells part of the story, but breaks by not having a longitudinal study of incomes (perhaps from fee books of retired barristers) from say 1979 to 2009 and the number of briefs.
As a fairly new barrister, but with a good commercial practice, I am dismayed at partners of solicitors firms wanting to act as junior to silks; that we do not have accredited specialisation; that we compete at a huge disadvantage by (i) being unable to incorporate that make access to finance and factoring easier (ii) no serious marketing intelligence or budget compared to the big 4 that spend 3% of revenue on marketing (FRN legal benchmarking the big firms is the source of that data, and friends who are partners) and that we face solicitors who sell their home brand like supermarkets that undermines us. Just go to any direction hearing and look at who is there.
Finally, have a look at security of cost affidavits. Divide barristers fees as a proportion. That tells the whole story of where we are relegated to. Solicitors are no longer a referral base: they are potent competitors with an acute conflict over a shrinking pie and allocating credit risk, regardless of legal form. Some make it explicit they are only agents of the client and have no liability to pay counsel.
Times are not changing - they already have. My survival was by networking and many direct brief with corporates bypassing firms. You should also look at Greenwood SC and White J on barristers v solicitor bang for buck. We can start by an immediate repeal over the ban on incorporation and allow that much claimed 'independence' of barristers to determine their own future and business vehicle structure. There are many thinking of jumping from the bar to do that, but still working as barristers by function.
The real fracture lines are between those with the referral network and/or homes paid off who like the status quo that served them so well versus the new and future members of the bar who face a much harsher environment post conveyancing and PI (that has forced solicitors to try their hand at litigation) and a five-fold number of law graduates I used FPOI to get the stats on.
I would like to join your committee - I have a lot of data and ideas, assuming we really are interested in long term survival and not just making noises that leads nowhere or takes so long it will be too late, if not already. We have no time to lose. Maybe the Chair and I could have a coffee and catch up? Call me.
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The Women Barristers Forum
c/- Amy Douglas Baker Sixth Floor St James Hall
Received 18 July
The Women Barristers Forum has considered the Bar Association's draft strategic plan circulated in InBrief on 5 July 2012. We thank you for the opportunity to comment on this document.
Reference is made to clause 17, the 'Diversity of membership of the Bar' clause.
Having also considered the report to the Bar Council by Ms Trish McDonald SC, Chair, Equal Opportunity Committee dated May 2012, which was adopted by Bar Council at its June meeting, and consistent with clause 4(h) of the draft Strategic Plan, we ask that the Bar Council consider an expanded clause along the following line:
17. Recognising the strength and advantages of diversity in the legal profession, the Association will promote equality of opportunity and participation at the Bar, reducing barriers to participation and advancement based on gender, race, disability, sexuality or social background, by:
17.1 Continuing review and enhancement of Association's current policies (including Equal Opportunity policy at present in development, Sexual Harassment and Discrimination Policy, Equitable Briefing Policy) through the Equal Opportunity Committee, Women Barristers Forum and otherwise;
17.2 Further development of the Association's current policies by action including:
Continuing of support for the mentoring programme;
Encouraging individual barristers to recommend the briefing of suitably qualified and experienced female junior and senior counsel where appropriate;
Supporting and encouraging the adoption and implementation of an equitable briefing policy by law firms, government and clients;
Encouraging individual chambers to adopt a diverse approach to provision of chambers, especially readers' rooms;
Renewing communication with Commonwealth and State AGs about Government implementation of the Equal Opportunity Policy;
Promoting awareness of the value of diversity and equitable advancement across the Bar through steps such as leading by example, publication of the Association's Equal Opportunity Policy and articles in InBrief and Bar News, direct communication with chambers and individual barristers.
WBF sees such a clause as affirming diversity and equality and identifying specific tasks to be undertaken. Such a clause is consistent with the Strategic Plan's aim 'to chart some of the key objectives of the Association, and strategies to achieve them, over the next 2-3 years', as set out in clause 1. It is also consistent with clause 4(h) in moving towards equality of participation at the Bar.
If WBF can be of further assistance, please do not hesitate to contact the Committee care of the Committee Secretary.
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Alistair A Henskens SC
9th Floor Selborne Chambers
Received July 18
I have read the document and have the following comments.
1. I agree generally with the areas identified.
2. As a matter of emphasis, I consider that the greatest challenge to the bar is the second last of the areas identified – the cost of litigation. To my observation litigants (corporate or individual) are being financially exhausted before barristers have the opportunity to do our key work – the presentation of cases in court. Many worthwhile cases settle at mediation only because the clients are financially exhausted by that point. I am of the view that the pre-trial processes of the court, discovery, preparation of affidavits in advance of hearings, written submissions, chronologies and the like in advance of the commencement of the hearing, have greatly in recent years added to the wasted costs of litigation. The rules are geared towards incurring those costs even if the matter does not proceed to a final judgment where that degree of pre-trial preparation assists the writing of a judgment but not the parties if the matters resolves before that time. I would like to see the bar promoted as the most cost efficient part of the litigation process instead of the perception (largely because of our status) that we are the most expensive.
3. I think that the strategic plan should also include promotion by the bar of appropriate work life balance at the bar. We have a very stressful occupation. The non-compulsory sabbatical floated in paragraph 12 is a good idea but a balanced lifestyle and stress management must be ongoing. The benefits of holidays quickly wear off and good dietary, fitness and other lifestyle habits are important for barristers. I think that initiatives like yoga etc, should be continued and promoted. Many of the more successful barristers do respect a healthy lifestyle and stress management but many do not.
4. Aligned with 3, I think that more guidance should be given to members of the bar as to their financial management. The aim should be to assist barristers to have a degree of financial security within say 8 years of coming to the bar. Conservative financial management will take one less pressure off many barristers. At the moment, I think it is hit and miss whether an individual barrister has a good financial strategy in place of the management of, superannuation etc. As these issues are faced by us all, a collective sharing of good practice and sound conservative financial should be possible.
5. I would like to see more measures promoted to enhance the camaraderie of the bar. The bench and bar lunches are excellent and should be expanded. Other means to get the bar together should be promoted.
6. As solicitors continue to use the junior bar as pseudo litigation solicitors, many junior barristers are not becoming experienced in the cross examination of witnesses and the presentation of legal argument. The bar will continue to lose work to solicitors unless we can maintain a body of skilled junior advocates who can in turn operate as skilful senior counsel in the fullness of time. When I was in the first few years of the bar, I had the opportunity run many long cases without a leader. Today, I see barristers in my chambers with good practices too infrequently running cases and cross examining witnesses. I think that on-going training to maintain the essential barrister's skills is important. At the moment, I do not think that the CPD program is directed sufficiently to topics of practical use to barristers like good cross examination technique etc. and more hands on seminars addressing the skills of a barrister may be necessary. In particular, whilst the bar practice course is excellent, I am concerned whether more practical refresher courses are needed in the period 3-8 years after the course has completed. I find the CPD program generally as a wasted opportunity to experience genuinely beneficial continuing education. Too often I attend all-day CPD and found most of it useless to my practice and not of any intellectual benefit. I would like to see us develop a much more practically focussed and designed CPD program. There is only about one or two presentations in a day that I consider useful under the present system.
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Eva Elbourne
13th Floor St James Hall Chambers
Received 18 July
I wonder whether consideration has been given to addressing any readers' issues. Specifically, there is no consistency about whether the floor gives them work, what they are charged in floor fees, availability of a room on an ongoing basis, etc. I appreciate the choice of floor to read on pre-dates the Bar Course, but I wonder whether a central register kept by the BA advising of that information generally, and specifically each floor's policy on some of those matters, would be of assistance. The current practice of ringing and enquiring or asking someone you already know does not really make for an informed choice. For example, some floors do not charge floor fees at all for readers, others charge quite a lot. This is not an issue for those with good contacts, but in the interests of equality I would like it to be more accessible. Maybe also a list of those barristers approved to take readers who are willing to do so, together with their areas of practice?
Also, maybe the 2nd year mentoring scheme could have a follow up at say 5 years? I have seen many women in particular fail to return to the Bar after having kids, although I do note Jane Needham SC's recent excellent seminar attempted to redress it. My observation after 5 years at the Bar is that women appear more in the lower courts, and men receive more of the (better paid) briefs in the higher courts. Perhaps the EOC is addressing this already, but it is quite obvious in some lists in the Supreme Court, and backed by Victorian studies. Like the equal pay issue, I suspect it is a faint hope that over time it will solve itself.
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David M Jay
6 and 7 St James Hall Chambers
Received July 18
I have some short comments on the draft strategic plan.
In my view one aspect which is missing is raising or (alternatively) improving the identity of the NSW Bar Association in the mind of the public and non-legal professionals. I consider that most people who are not members of the legal profession have little or no idea of the Bar Association or what its purpose is. In marketing terms it is the concept of creating an identifiable "brand" for the Bar Association. By that I don't mean a new logo and a set of 'corporate goals'.
I mean creating an identity which people associate with wise legal counsel on relevant public topics in the legal sphere. A practical example is when the High Court hands down a decision which has significant consequences, for instance ASIC v Hellicar [2012] HCA 18 and its effect on company directors. When TV or radio (ie 7.30 Report and Radio national) sought to obtain an insight into the case I heard interviews with Professor George Williams (a barrister) and Bob Austin. In my view the Bar Association could readily raise its profile to the public (or in this case to the board of public companies) by being the first and most authoritative reference point for comment. It would be for the Bar Association to decide which matters it felt appropriate to comment on (not complaints about the conduct of the Local Court Magistrates for instance).
The reason Professor Williams is so often sought for comment, I assume, is that he is available and has a reasoned opinion. The Bar Association should dominate this territory. By raising the public profile of the Bar Association through relevant means it also gives gravitas to submissions made in support of points 3(a) and 3(c) of the Strategic Plan.
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Nick Tiffin
Barristers Clerks Association
Received July 19
The Barristers' Clerks' Association will comment on the draft Strategic Plan as follows. We refer to the paragraph numbers in the proposed Strategic Plan were applicable.
2. Barristers' Clerks should be mentioned as part of the make up of the Association as a number of members are members and believe we are an important part of the way the Bar works.
5. Providing no additional focus upon the functions of the Bar Association that it is currently doing 'reasonably well' does not seem to be an effective way in which to strive for improvement and excellence. Focussing on streamlining and performing the Bar Association's current functions as economically and effectively as possible should definitely be a core ingredient of any strategic plan for the Bar as this would free up resources for new ideas and projects.
8. A long term project to obtain admission for New South Wales practitioners in Hong Kong and Singapore is an admirable goal, but by the time we succeed at that, there will be a number of other jurisdictions competing for their work. We should aim high now and start working towards simple admission in all Commonwealth jurisdictions (especially the United Kingdom) as well as India, Mainland China, Russia, Vietnam, Malaysia, the Middle East and all the growing economies of our region. Barriers to admission/practice in foreign jurisdictions must be overcome to encourage competitiveness. These barriers are professional protectionism which runs counter to a robust and productive internationally-focussed profession in New South Wales and the region. The traditional sway of the English Bar in its former colonies needs to be countered and reciprocal rights given to foreign practitioners.
9. The increase in ADR mandates compulsory and on-going ADR education and awareness. This should be the focus of efforts, with proper regulation, certification and recognition of all ADR practitioners-arbitrators, mediators etc, and separate listing on the Bar Association website.
10. Marketing the Bar is a very worthwhile activity and goal and on a Chambers level has shown great results. There is no reason why the Bar could not set up a committee for marketing. They could invite representation from those sets of Chambers who are willing and interested in participating and use the resources of those floors (that they are willing to commit) as well as those of the Association to promote the Bar generally. Just as the Bar should support a presence at leading meetings of international practitioners, they should also have a presence at as many relevant meetings of practitioners, both in-house and in private practice, all around Australia as is possible. This would also most likely see a much higher return for our marketing dollars and efforts than aiming only for an increase in international work.
The Bar should see the rise of Corporate Counsel wanting to brief the Bar direct as a spectacular opportunity and not a cause for concern. The Bar Association should offer to provide the Australian Corporate Lawyers Association, the professional association for in-house lawyers (along with other relevant organisations), with education, via MCLE presentation as to the potential efficiency and cost-effectiveness of briefing the Bar direct. It needs to be made clear to potential clients that briefing the Bar is not just a last resort when litigation is imminent but a good strategic move early on.
11. One of the biggest challenges facing the individual practitioner would be fee recovery. Bad debts cripple practices. The Office of the Legal Services Commissioner has proved to be a paper tiger, and the Bar Association is generally unwilling/unable to take action in fee recovery, as is the Law Society. The archaic and anachronistic situation we have at present must be reformed to encompass enforceable fee agreements and clear and actionable mechanisms to recover unpaid fees.
12. Pilot schemes for online booking of barristers need to be dealt with via the clerks, and not the Bar Association. In the past for pro bono matters a member of the Bar Association would refer matters to a senior clerk to find suitable counsel (not necessarily with their chambers). This, in the interim, would be a better way of dealing with online bookings.
Over the past several years, clerks and other members of chambers have discussed the work/life balance of members. It has become important for members of the Bar to ensure holidays and time away from chambers are as important as working.
The budgets set by floors and fees charged by barristers for duty performed do not allow for additional funds to be charged by chambers to provide a "sinking fund" for member's sabbaticals. It has always been that should members wish to take extended leave of absence from chambers that a licensee would take over the outgoings in that person's absence.
16. The NSW Bar Association should introduce a paid presidency (like the NSW Law Society or the UK Bar) where the President gives up practice for the term of their presidency in order to focus on driving the initiatives and programmes of the Bar. This would be the best way to contribute in a (crowded) domain – by having a high level, respected Member of the Bar having the time and opportunity to get the Bar's views heard by parliament and the public. This, of course, could not happen within the next 3 years, but should be considered to move the Bar forward over the next 10 years.
In conclusion, we would also suggest that representatives of the Clerks' Association be involved in any planning for the Bar in the future.
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D E Grieve QC
Blackstone Chambers
July 19
I respond to the invitation to comment on the proposed strategic plan.
There is no doubt that barristers' services are far less in demand than they were in years past. There are doubtless many reasons for this. In my view, the most significant contributor is the substantial increases in the cost of litigation which have occurred in the past decade or so. In turn, I attribute that in large measure to the judiciary's affection for case management and the plethora of paperwork that goes with it. Perhaps the most sardonic joke played on the public by the State legislature was its enactment of Civil Procedure Act 2005; I am sure the word 'facilitate' in section 56(1) was meant to be 'frustrate'.
By way of example, one only needs to glance at Practice Note SC CL 5 to appreciate the extent of this march of judicial bureaucracy. Paragraph 29 of that begs the question: are not the parties' pleadings intended to define the issues? Another example is to be found in UPCR51.36 (2), a rule usually honoured in the breach rather than the observance. In many cases compliance with that rule consumes countless hours but I have seldom experienced the Court of Appeal giving any more than cursory consideration to a statement made under it.
It is with these thoughts in mind that I suggest that paragraph 13 of the draft may usefully be amended by adding (after the word 'productivity') something to the effect: 'by conducting a wholesale review of the rules and practice notes with the object of eliminating all procedural requirements the cost of compliance with which is disproportionate to their contribution to the efficient dispatch of litigation.'
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Michael Green
13th Floor St James Hall
Received July 18
(1) Apologised for his lateness and advised he will forward comments week commencing 23 July.
Received July 23
(2) There are three matters emerging from your committee's draft plan, which might be given more prominence:
(a) the imperative that bar associations of each of the states and territories work together to avoid duplication and identify specific opportunities for resource and cost sharing;
(b) the formulation of a set of simple guiding values which define the culture of our association and its membership, and which allow for better public understanding; and
(c) the study of the changing nature of legal practice and dispute resolution, both in Australia and elsewhere, and a deep understanding of the composition of the bar association across various dimensions,
I will discuss these in turn.
Working with other bar associations
The draft plan acknowledges the need for renewed collaboration between the interstate bars to assist the move to a national profession.
The need for collaboration is more fundamental and exists whether a national scheme emerges or not. This is because every bar association (and law society) shares a set of core values; a just legal system, access to justice, legislative and regulatory reform, continuing education, and the independence of its members.
I suggest that obtaining an acknowledgment of these shared core values from each of the bar associations should be an activity required by the strategic plan. This is not merely the 'advancement of common goals'. (I recognise that bar associations already give voice to some of these values through the ABA and the Law Council of Australia.)
Perhaps the best way would be to require the Bar Association to seek to enter into memoranda of understanding with other associations (including the Law Society) as to how each might work together to further their common heritage through a commitment to resource co-ordination and collaboration concerning these core issues. By taking this step, the Bar Association:
(a) places these core values into a national context and helps the community to understand that the independent bar has an important role to play beyond the self-interest of its members;
(b) creates a national policy agenda, instead of responding to one imposed by others;
(c) facilitates it and other bar associations speaking with a common voice on many issues arid coming to the aid of each other (beyond that which might be appropriate by the ABA);
(d) provides a mechanism which may help to avoid an unseemly public 'brawl' between associations over parochial issues;
(e) obtains the benefit of information sharing, cost sharing, and experimentation in activities with no regional differences, such as through joint development of policies concerning the use of information technology and the development of briefing practices which ensure equality of participation; and
(f) is able to concentrate its resources more effectively on matters where it has or ought to have a competitive advantage.
In this context, one area needing careful attention is the encouragement of Australia as a destination for international litigation (or, as the draft plan puts it 'a local hub of excellence in the resolution of disputes with an international element'). In recent years, various Australian bar associations have endeavoured to send delegations to encourage Australia as a place to host trans-national litigation or for Australian lawyers to be involved.
To a foreign observer, an unseemly rivalry between, say the NSW and Victorian Bars as to which place or group is better may lead to neither obtaining an advantage. Moreover, sending separate delegations to engage in the same pre-market activity is expensive and counter-productive. It does not improve outcomes for off-shore consumers or on-shore providers.
The memoranda of understanding to which I have referred should encompass this international marketing activity and seek to co-ordinate and moderate it for the common benefit.
Simple guiding values
While the Barristers' Rules specify the professional standards required of a legal practitioner acting as a barrister, they do little to make pellucid the precepts of the independent bar: for example, the transcendent importance of collegiality while retaining independence.
Now more than ever, there is a great need for a strong sense of community and commitment by members of the Association to the concept of a legal profession as opposed to practitioners merely subject to the same regulatory regime.
The formulation of effective but simple guiding values is no easy task. If done effectively undertaking the exercise will allow the Association to re-engage with its increasingly diverse membership and bring about a shared sense of purpose. It will permit the independent bar to carve out a distinct role for itself in the future of legal practice. It will help the Association formulate objectives to embrace these values in its work.
Studying the changing nature of legal practice and dispute resolution
As the draft plan suggests, the Association should lead debate and shape it. The members of the Association are not mere passengers upon the Ship of Law. Society expects us to engage with these issues and to seek better outcomes in the public interest.
There is a considerable amount of interesting and important work taking place in the United States and the United Kingdom which throws light upon the changing nature of legal practice, particularly in large law firms. This scholarship should be brought to the attention of members.
There are similarly important effects brought about by changes in dispute resolution practice. Quite apart from the disastrous effect on many of the established practices and structures of the independent bar, not all of this good for society, or for the institutions we seek to uphold and defend.
An aspect of the cost of access to justice is the ever increasing and disproportionate cost of access to legal information necessary for the provision of legal services. Similar issues in scientific publishing have caused a near revolution amongst the ranks of scientists and librarians. The Association has remained mute. This is regrettable.
When I set up BarNet in 2000 as a not-for-profit entity with a small group of members of other chambers, I did so to give those participating chambers the functional equivalent of resources only available to practitioners in large national firms. Now that BarNet reaches the majority of the New South Wales Bar, if the Association considers it expedient, a number of the functions performed by BarNet might be transferred to the Association's control.
It the strategic plan only engages with these issues when the practical effects are first felt, the opportunities to shape public debate and create protective structures to ameliorate the effects may be lost.
The stance of the Association should be policy leadership on issues affecting members and legal practice generally. With a co-ordinated national approach through memoranda of understanding, such activity might be more efficiently and effectively shared amongst like-minded associations.
One aspect requiring immediate work is to report upon the demography of each independent bar and how that may be changing. The Bar Association used to provide this information in respect of its own members. It should be continued.
I welcome discussing these issues with you and other members of the committee.
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See: Original draft strategic plan
See: Charting the future