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Damien Carrick: Hello, welcome to the Law Report, Damien Carrick with you. It's official, across Australia, women outnumber men in the legal profession. That's the finding of new research released last week. To explore the findings of the 2016 national profile of solicitors, I'm joined by Pauline Wright, president of the New South Wales Law Society, the organisation which commissions this annual snapshot of the profession.

Pauline Wright, this tipping of the scales, it's quite a milestone.

Pauline Wright: It really is an important moment. We've found now that we are just over 50% of the total practitioners in Australia, and that's 50.1%. For the first time ever we've just overtaken men in numbers. Women have been outnumbering men for quite some years coming out of university, but that takes a little bit of time to filter through to equal numbers actually practising in the profession, but it has now happened.

Damien Carrick: And is the number of solicitors growing overall? Is this a growing profession?

Pauline Wright: It is a growing profession. Obviously the numbers of solicitors is growing, but then the whole population of Australia is growing too, so it's probably in line with what's going on in the economy in terms of service industries, information industries. So the law is a growing area.

Damien Carrick: From the report I saw that there had been a 24% increase in the last five years. There was something like 57,000 in 2011, up to 71,000 in late 2016, so a considerable jump. It looks like it's a healthy industry.

Pauline Wright: Yes, there are a lot of people out there who would say that it's a difficult industry these days, that there's a lot more competition, and there are a lot more lawyers out there for a market that isn't necessarily growing as quickly as the numbers of lawyers is growing.

Damien Carrick: Pauline Wright, president of the New South Wales Law Society, the industry association which represents the state's 27,000 solicitors. And according to the latest figures released last week, there are now 71,500 solicitors right across Australia.

Our legal profession has two branches; solicitors who provide advice, prepare documents, prepare litigation and sometimes represent their clients in court. And also we have barristers, far fewer in number. They are self-employed and they specialise in courtroom advocacy and litigation, and for the most part they are briefed by solicitors who have done the legwork.

As you've just heard, women solicitors now outnumber male solicitors, but at the bar the numbers are still skewed in favour of men. Jennifer Batrouney QC, the president of the Victorian Bar, joins me now. Jennifer Batrouney, in Victoria how many female barristers are there?

Jennifer Batrouney: Well, at the Victorian Bar we have a total of about 2,000 practising barristers, and of those 2,000, women make up about 30% of that number. The real stark differences when we talk about senior counsel or silk, there are only 12% of silks who are women, although at the younger end of the barristers market, of the barristers that are under 10 years at the Victorian Bar, women number 43%. So it's a very bottom-heavy or young-heavy market.

Damien Carrick: And why do you think that there are fewer women barristers, both at the bottom end and at the top end, than there are solicitors?

Jennifer Batrouney: I can't think of any reason, other than perhaps women feel that they are better off being solicitors, but that's perhaps because they don't feel confident to be barristers, whereas they really should, there's no reason why women can't and aren't very good barristers.

Damien Carrick: Pauline Wright, but what are the figures at the New South Wales Bar, do you know?

Pauline Wright: I think they are not dissimilar, and particularly at the top end in terms of the senior counsel it would be quite low, just as it is in Victoria. The new leaders coming through, definitely there are more women. I think one of the reasons, at least in New South Wales that women perhaps don't go to the Bar as frequently, and it's something that the profession has been addressing nationally, is inequitable briefing policy. There's a perception for women that they are not going to get the briefs that their male colleagues might get. So I think they go for more secure work environments and ones that can give them certainty of income, such as being corporate lawyers, that is in-house in a company.

Damien Carrick: Let's talk about in-house lawyers in a moment. This equitable briefing policy, what is it?

Pauline Wright: What it means is when we are, as law firms, thinking about who to brief in a particular matter, if we've got a court matter for a client, we start thinking in terms of what women are available to do that job who are as good as or better than the men. So we actually need to consciously turn our minds to it because there tends to be a pattern of briefing the same people over and again. So equitable briefing means just consciously turning our minds to who is going to be the best person for the job, male and female.

Damien Carrick: And attached to that conscious changing of minds is also some targets in terms of the money which is directed to the numbers of women who get the briefs and also to the amount of money attached to those briefs. What are those targets?

Pauline Wright: They are voluntary targets, so nobody is going to want people to see it as a rule, but we do aim for women barristers to make up at least 20% of all briefs.

Damien Carrick: And 20% of the value of all briefs as well, right?

Pauline Wright: That's right, so there is no advantage to women barristers getting briefs that are not lucrative for them, so we want to be fair.

Damien Carrick: And the idea is that over the years, that will increase. So the target is I think by July 1, 2018, that it should be something like 30% of all briefs and 30% of the valuable briefs, so the idea is it should escalate over time, yes?

Pauline Wright: That's exactly right, and by then you would be thinking that the senior ranks of the Bar would be higher and higher as the years go by. So when you need a silk, then you'd be using a woman silk as much as you would be a male silk ultimately.

Damien Carrick: You're talking there about senior barristers, senior counsel or Queen's Counsel, which are known as silk. So who has signed up to this equitable briefing policy?

Pauline Wright: Law firms, government in-house teams, and also corporate in-house teams.

Damien Carrick: Are they signing up en masse or is it something which is happening slowly and incrementally?

Pauline Wright: I'd say that it's in-between those two things. It's more than slow and incremental, we've actually had a really heartening response to it. But to say it's en masse is probably an exaggeration.

Damien Carrick: Jennifer Batrouney QC, do you and does your organisation support this equitable briefing policy?

Jennifer Batrouney: Yes, the Victorian Bar have adopted the equitable briefing policy, and a number of senior counsel as well have signed up to the equitable briefing policy, so that when a silk is considering what a junior to use in a matter, the silk will consider whether or not there is an appropriately qualified woman to do the work as well. So it's important to emphasise…

Damien Carrick: To work alongside them in the case?

Jennifer Batrouney: Yes. It's important to emphasise that the policy does not mandate that a woman should be chosen over a man, simply that when thinking about who to allocate the brief to, one should consider whether or not there is an appropriate woman who is available and qualified to do the job.

Damien Carrick: This isn't without controversy, is it. We've been having a conversation all across Australia about whether or not we should have quotas on directors in boardrooms. There have been a number of people who have spoken out against this. Sydney SC Jeffrey Phillips in The Australian a few months ago described it as 'social engineering' and 'Orwellian-sounding'. Can you understand why people might think this isn't a good idea?

Jennifer Batrouney: I can understand why they might think it isn't, but it might be because they don't understand that the statistics bear out the fact that women are not getting briefed at the same percentage as their numbers are at the Bar. So as a statistical fact, that affects our membership. We need to address that.

Damien Carrick: Jeffrey Phillips SC wrote that this would have an impact on male barristers who are very good at what they do but they will effectively be pushed aside.

Pauline Wright: I don't accept that, I don't think the male barristers should be feeling that they going to be pushed aside at all. It's a question of making sure that the people that the legal profession serves are getting the right person for the job, whether that person be male or female. Nobody should be feeling threatened or pushed aside, it's just the best person available for the job.

Damien Carrick: One criticism is that solicitors will, in order to comply with this policy, solicitors or whoever else is approaching the barrister, will not choose the barrister who they believe is the best advocate, and that could in effect compromise a client's prospects of success.

Pauline Wright: If that was going to be what would happen, then I don't think anybody would support it, but that is not what will happen. People are not going to brief a woman just because she is a woman, they are going to brief her because she is a good woman who will do the job well. It's just a question of opening your mind to make sure that you are considering who the best talent is in any given matter. And you've got to have at least aspirational targets, because if you don't have a target then you are never going to be able to measure your success against anything and you can't see if you are actually getting to a fair position if you don't have those targets in place.

Damien Carrick: Do you understand or have any sympathy for the concerns expressed by some about this policy?

Jennifer Batrouney: I understand that they might think that they are going to be pushed aside, but as Pauline said, that is not the intention of the policy. It is simply to bring women to the front of mind.

Damien Carrick: And can I ask, are the targets being met? Have we reached the 20% mark so far? Are we on track to meet the 30% mark I think in July 2018?

Jennifer Batrouney: I don't think the statistics have gone in yet. Pauline would be probably better placed to answer that than I would be. To the extent at which it is a Law Council equitable briefing policy, I think the stats don't go in I think until later, Pauline?

Pauline Wright: I think that's exactly right, Jen, the stats aren't in, and it will be different in different sectors. I'm fairly sure that the early indications are that it's going well in government in particular. It is going to take a bit more time to compile it for the private profession because it's so disparate.

Damien Carrick: And you published the names of the people who have signed up to the equitable briefing policy, is that right?

Pauline Wright: Yes, there is a list of people who have signed up. I think it's good, it's something that they can say to their corporate clients in particular who like these equitable briefing policies, to say, look, we are making an effort to be equitable across the board, we will get you the best service that we can, but we are also trying to be fair. I think there is broad agreement across the profession that it's a good thing. There would be the odd person who wouldn't feel like that, and for them, the old adage that 'to the privileged, equality feels like oppression' probably applies.

Damien Carrick: You're listening to the Law Report on ABC RN, ABC News Radio and Radio Australia, or of course you might be listening to our podcast, easily obtainable from your mobile on the wonderful ABC app, or wherever you get your podcasts, including of course iTunes. And if you are at iTunes, please rate and review the show, we love to get your feedback.

Today I'm speaking with Pauline Wright, president of the New South Wales Law Society, and Jennifer Batrouney QC, president of the Victorian Bar. We are talking about the changing gender profile of the legal profession. Around Australia there are now more women solicitors than male solicitors, but at the Bar there are still considerably more male barristers than female barristers.

I'm wondering if we can come back and talk about solicitors. We now have slightly more women solicitors than male solicitors all around the country, but what about at the top level of solicitors? Solicitors can work in private practice, they can work in-house with corporations. They can also work for government. When it comes to that private practice element where you are working essentially in partnerships, what are the numbers, Pauline Wright, when it comes to who is at the top of the heap? How many women partners are there, what percentage of partners are women?

Pauline Wright: It's about 25% now, that is about a quarter. It's growing but it's growing only fairly slowly. I think it was 24.4% last year this time, it is now 25.2%, so it's a slow growth. It's an indicator that more needs to be done because there has been significantly more than 50% of women graduating for quite some years. So something does need to be done to address it. And the Law Society of New South Wales in order to do that introduced a similar thing to the equitable briefing policy, a charter for the advancement of women in the profession in October 2016, and we've had 142 signatories from law firms and other organisations since then. It's been quite well received by the profession, I've got to say.

Damien Carrick: There are kind of two forms of partners. There are equity partners, they get a percentage of the profits from the partnership, and salary partners who get a good salary but don't have equity. Do we know what the differences are between women partners and male partners in terms of falling into either category?

Pauline Wright: There are definitely more salaried partners who are female than there are equity partners who are female. So write up the top echelons of the profession, in the solicitors' branch of the profession, there is definitely an inequity between male and female.

Damien Carrick: So another really interesting trend in the study which has been released has been about where solicitors are working. Traditionally you kind of think of them as working in private practice, but that majority is kind of shrinking down, isn't it.

Pauline Wright: Yes, that's right. We've had a fall in the proportion of solicitors working in private practice, from 75% to 69% in the past five years. We can see that there has been a corresponding growth in the number of solicitors working in the corporate sector and in-house and government.

Damien Carrick: Can you correlate those trends with the gender composition?

Pauline Wright: What we can see is during the time that that's happened there has been an increase in women coming into the profession, and there has been an increase in the number of women working in-house, both in corporate and in government. So you find quite high percentages of women in the corporate sector in that five years, 2011 to 2016, there was a 59% increase in the number of solicitors working in that sector compared to 17% in the private. So I think that's quite telling, and you see that there are much higher numbers of women in the corporate sector.

Damien Carrick: Why might that be?

Pauline Wright: Well, look, we are all surmising what it might be. One of the things that is said anecdotally is that working in-house in corporate sector provides some flexibility, so you can have flexy hours, you can do some work from home, you can be a bit of a master of your own destiny. And when you've got childcare responsibilities or parental care responsibilities, that can help. And we know that women still bear the burden of most childcare and parent care responsibilities.

Damien Carrick: They are sort of more conventional employees, they are not tied to the billable hour model of private law firms.

Pauline Wright: That's right. Obviously the corporate employers expect them to achieve and there may be some time costing elements involved, but you are not strictly bound to it in the same way that traditional private law firms are.

Damien Carrick: I want to come back to the areas of law where women practice. Are they equally spread across all areas of law? Jennifer Batrouney QC, you are a tax barrister, is it 50/50 at the tax Bar in Melbourne, or do women tend to be more prominent in some areas of the law, say family law?

Jennifer Batrouney: To answer your first question, the tax Bar is probably disproportionately high in women…

Damien Carrick: Well, I take it all back!

Jennifer Batrouney: …being an area where brains rather than brawn are what wins the day. And women are well represented in general commercial areas. Traditionally they have been represented well in family law, although not in the high-end money disputes, that tends to be dominated by male silks. But I think it's generally spread throughout the areas of practice, common law, criminal law. There's good numbers of female barristers throughout those practice areas.

Damien Carrick: Pauline Wright, what about amongst solicitors?

Pauline Wright: I think it's a similar pattern in a sense. You've got the…the commercial lawyers tend to congregate in the large law firms, you've got a certainty of employment and some degree when you get to the senior ranks of flexibility, and similarly in-house corporate, those sort of commercial lawyers are well represented by women. When you come down to criminal law there is still a majority of male practitioners in that particular area in New South Wales. It's getting closer to equal but there is a preponderance of males, specifically doing criminal law advocacy work, but that is equalising over time. Family law, the same as Jennifer has indicated, you see there is a preponderance of women in there. But as you get the more complex end of it you see the male teams in court.

Damien Carrick: And that's just because those people have been around for a long, long time?

Pauline Wright: I think that's right. I think it's really a reflection of time and I do believe that that will also equalise in time. But there are things we have to do to make sure that unconscious bias isn't having an impact on that. And we need to retain women practitioners. We see a drop-off of women practitioners from ages in their 30s to early 40s, there is a drop-off of numbers leaving the profession in that time. Some of them come back and some don't. That's an important thing to do, and to retain them we've got to make sure that they are getting paid equally for equal work and promoting and supporting and mentoring women in the profession to make sure that they do advance to the more senior roles in the profession.

Damien Carrick: Now, so far, Jennifer Batrouney you've been nodding as Pauline has been speaking, you've been very much on the same page but I'd like to go into territory where you might not be so simpatico. Another trend that has emerged in recent times is the direct briefing of barristers. Traditionally a client goes and sees a solicitor, the solicitor says right, let's do all the preparatory work, now it's take it to court and you go off and you brief a barrister. Jennifer Batrouney, what is direct briefing?

Jennifer Batrouney: Direct briefing takes a number of forms, so in my area, in tax work, I'm often briefed directly by the corporate client. So rather than the corporate client going to a law firm and asking the law firm to prepare a brief for me to answer questions, the corporate client will come directly to me.

Damien Carrick: And you're talking there are about, say, the accountants or other people at the firm, as opposed to the in-house lawyer.

Jennifer Batrouney: It does still tend to be the in-house lawyer that does brief directly, but it need not to be, it can be an accountant. The other form we see is a direct briefing of criminal barristers in lower court matters. So if it's a drink driving offence or something like that we have a barrister-connect portal which operates through the clerks at the Victorian Bar who are the people who allocate work to the barristers. It's a way in which we try and increase access to justice and by lowering the costs associated with challenging a drink driving offence in the magistrates' courts, in the lower courts. You will rarely, if ever, find a direct briefing taking place in the higher courts. The more complex matter gets, the more the solicitors come into their own in preparing all the back office work that needs to be done before you actually get into the court itself.

Damien Carrick: And this is a relatively new development, isn't it.

Jennifer Batrouney: It is a relatively new development, a couple of years, yes.

Damien Carrick: And it's taken off in Victoria, as I understand, more than in other parts of the country.

Jennifer Batrouney: I can't say what's happening in other parts of the country, but it certainly has been very popular in Victoria, yes.

Damien Carrick: I know some solicitors have expressed disquiet about this, about the barristers kind of muscling in on their territory. Pauline Wright, what's your view? Is that something that you've heard as well?

Pauline Wright: Look, I think it is, because our view is that the best outcome is to have the best team for the job, and when you…as Jennifer has correctly said, when you've got a complex matter, the best team is to have a solicitor working for you, gathering the evidence, getting it together, and then joining forces with the right barrister with the right expertise and skills to bring that matter to trial. That's the ultimate team.

Damien Carrick: I saw one blog post by a prominent Melbourne lawyer who was saying, look, the thing about solicitors is they have a lot of support staff working for them, collecting the information, and solicitors and their support staff spend time getting the instructions, doing all the preparatory work with these very experienced people and crossing all the Ts, dotting all the Is, and barristers tend to be these lone wolves who are very sharp and nimble but maybe they're not so good at that stuff and that's not maybe in the best interest of the client to go down that path.

Jennifer Batrouney: Well, careful with the description of lone wolves, I'm not sure that barristers would like themselves described as lone wolves, more specialist advocates would be more appropriate.

Damien Carrick: You'd say that there is a place for barristers to be directly briefed?

Jennifer Batrouney: Absolutely, and it happens all the time. It's simply a question of efficiency. It doesn't happen every time and nor should it happen every time; as Pauline said, there's horses for courses. But again, speaking generally, a barrister will have a much lower charge out rate than a solicitor of the same years of expertise because a barrister doesn't have the enormous overheads of the big Sydney offices, Melbourne offices et cetera…

Damien Carrick: The hot and cold running staff.

Jennifer Batrouney: Well indeed. At the Victorian Bar you'll be amazed at how many of our barristers have got qualifications from Oxford, Cambridge, and yet when they come to the Bar their charge out rates as a barrister are half what their charge out rates would have been as a solicitor. So they are often a better value proposition for the client at the end of the day, to use a junior barrister than to use a junior solicitor to do the same sort of work. It's simply a value proposition.

Damien Carrick: Pauline Wright?

Pauline Wright: Yes, I don't doubt that that might be the case for large law firms whose hourly rates are really very highly for senior lawyers, as it should be, because they are incredibly experienced and skilled. But you'd also find incredibly skilled and experienced solicitors in the regions and the suburbs who have been in practice for very many years, sometimes 20, 30 years, whose charge out rates are similar to these junior barristers. So the value proposition, if you have a good, trusted local solicitor, is very high if you are using that person with all that experience. So it depends on the matter, it depends on what skills you need and who is going to give them to you.

Damien Carrick: Pauline Wright, has direct briefing in terms of the criminal law taken off in New South Wales, the way we've been told it has in Victoria?

Pauline Wright: Not really, no, not in criminal cases. Certainly in the corporate area, say local government organisations to barristers practising in environmental and planning law, that happens quite frequently. It certainly happens from corporate in-house legal teams briefing to barristers. But in criminal matters, no, not really.

Damien Carrick: A final question to both of you. If we were to have this conversation in five years, what changes and trends do you imagine we would be talking about?

Jennifer Batrouney: Technology, robotic decisions being made by robot courts I think. There's a lot of talk about how technology is going to really change the way things are done. I think proceedings that are run in court will be podcasts, so that people can see them happening as they go, they will be able to view court proceedings from their own homes. I think we will have to become much more nimble in what we do. We would of course say that barristers are better at doing that. I see the big law firms and accounting firms really trying to cut down on their office space, there are hot-desking, things like that. They are encouraging people to work from home. Whereas barristers have been doing that for years already, and that's why the Bar is in fact a fabulous place to have a family, is that you can work from home. It doesn't matter whether you are at home or in chambers, as long as you are getting the work done it doesn't matter. So they are the sort of things I think we will be talking about.

Pauline Wright: Yes, I think that's right. I think technology is going to be very much more evident in the law. We are going to find that some of the exercises that we have to do as solicitors today, there's a process called discovery which means going through miles and miles of lever arch folders worth of material to make a commercial litigation matter to court. That's going to be able to be done really quickly in a matter of milliseconds by technology rather than many, many hours for a junior solicitor going through those files. That's going to be one big change.

We are going to be seeing more use of online aspects to courts, more giving of evidence from remote places. I think there are dangers in that personally, but I think we are going to see it particularly in civil disputes and certainly online dispute resolution of civil claims, I think we are going to see that sooner rather than later.

Damien Carrick: Pauline Wright, president of the New South Wales Law Society, and Jennifer Batrouney QC, president of the Victorian Bar, thank you so much for speaking to the Law Report.

Jennifer Batrouney: Thank you very much.

Pauline Wright: That's a pleasure, thank you.

Damien Carrick: That's the Law Report for this week. A big thanks to producer Anita Barraud and also to technical producer Kieran Ruffles. Do visit the RN website, there you can find podcasts and transcripts of all our programs, and also feature articles on many of our stories. I'm Damien Carrick, talk to you next week with more law.