In a world of accelerating technological development, the legal profession and the bar are hardly immune from the need for change. The policy dilemma for the NSW Bar Council is that the bar might not be changing fast enough.
Over the past 14 years the total number of practising barristers in NSW has increased by only 221. During this same period, the total number of practising solicitors in NSW has increased by more than 13,400. While the NSW bar has not grown much, numerically speaking, it has grown older. Nearly one-third of practising barristers are 60 or over. Most of those are men. Of the current 2362 practising barristers in NSW, only 525 (22.2 per cent) are women.
One principal aim of my presidency is to recruit more women to the bar. This is vital to ensuring the NSW bar remains the largest and strongest independent bar in Australia. Bodies such as the Institute of Company Directors make the point that diversity is a crucial element of good governance. Former High Court Justice Michael McHugh has put persuasively the need for diversity on the High Court bench as follows: “The need to maintain public confidence in the legitimacy and impartiality of the justice system is to me an unanswerable argument for having a judiciary in which men and women are equally represented.”
These considerations apply equally to the legal profession.
A dynamic and permeable independent bar, which attracts and retains the best advocates, irrespective of gender, ethnicity and socio-economic background, must eventually resemble the community from which it attracts talent.
To this end the NSW Bar Association is pursuing a range of initiatives to promote and achieve greater opportunities for women at the bar. One of the bar association’s objectives in its new strategic plan is to increase the adoption of the equitable briefing policy by clients, solicitors, government, barristers’ clerks and barristers, and ensure its implementation. The policy seeks to achieve cultural and attitudinal change within the legal profession with respect to gender briefing practices, so as to maximise choices for legal practitioners and their clients, promote the full use of the independent bar and optimise opportunities for practice development of all barristers.
Contrary to the rhetoric of its critics, the policy requires those briefing counsel to consider briefing a suitable female barrister — it does not impose a requirement to do so. The policy also provides for reporting measures so that changes to briefing practices over time can be monitored. It does not mean that counsel should not be appointed on merit but that prospective counsel should be considered equally.
To ensure that the bar remains the pre-eminent source of specialised advocacy services, each of us needs to contribute to the teaching and mentoring of colleagues to assist them in developing successful practices which in turn will help talented practitioners to deal with the challenges of sole practice and retain talent at the bar.
To this end the association has run a successful mentoring program over the past few years to assist junior barristers to come to terms with these challenges.
The program is particularly suited for new female barristers and those with a culturally diverse heritage who may not have the same support networks as those from more traditional legal backgrounds.
The concept of diversity of course involves far more than gender.
We are also committed through our strategic plan to improve diversity at the bar and promote and ensure equality of opportunity irrespective of age, physical disability, class, gender, ethnicity, sexual orientation and religion.
These days the NSW bar has an active social media presence which provides the bar’s messages to new, more diverse professional and demographic groups. In particular, they are being seen by law students and solicitors.
It is not unusual for one of the association’s tweets or posts to reach an audience many times the size of the bar itself.
Not only is this helpful in propagating the association’s policy message, but, just as importantly, it also helps to demystify the NSW bar and make it an institution with which an increasingly diverse range of people can identify and see as a career choice.
In the past the bar was perceived as a largely homogenous group practising in isolation from a changing community.
More recently the bar has acknowledged the strength and renewal that comes from genuine diversity and we are actively encouraging and pursuing programs aimed at a more balanced demographic among our members.
I must emphasise again that we are not seeking to promote anything beyond the progression on merit at the bar, but seeking to broaden the pool of meritorious candidates.
At a time when the bar is faced with myriad challenges, it is this very diversity that will provide us with the means and competencies to survive and thrive in the years to come. Arthur Moses SC is president of the NSW Bar Association.
This article was published in The Australian on Friday, 3 November 2017.