Equitable briefing

Talent is everywhere, opportunity is not: why equitable briefing is the most pressing practice issue for the Bar in 2020 – writes Lucy Barbet

In 2019 we celebrated the first 100 years of Women in Law. Much has been written about gender equality at the Bar yet inequality still exists. The picture is definitely improving; in 2017/2018, more women than men were offered a tenancy. But overall, there are 40% more men than women practising at the Bar. Why this discrepancy? Because there are still more senior men than women at the Bar.

Things were very different for women at the Bar, even as recently as 20-30 years ago. As a young clerk in the early 90s, I recall my shock that a junior female barrister with a phenomenal practice was giving up her career to have children. She had worked so hard – Oxbridge graduate, junior counsel in a top-ranking set – why should she give it all up to be a mother? Back then, career options as a mother at the Bar were pretty limited. It seemed to me that you either handed the care of your children to a full-time nanny and almost pretended that they didn’t exist, or you gave up your career. A combination of the two roles was rarely considered viable, if it was considered at all. We often discuss the lack of senior women in the judiciary, and in my opinion, this is part of the reason why.

But things are different now, aren’t they? Many chambers support flexible or part-time working for members with caring responsibilities. Many make it easier for members to work part time, with return to work policies and rent holidays etc. All chambers must comply with the BSB Equality and Diversity Rules and specifically with rC110(3)(i) of the Code of Conduct contained in the Bar Standards Board Handbook. Having these policies in place is a huge step forward from 30 years ago and undoubtedly a good thing.

But what about the career progression of these women barristers? This is where we hit a problem. Retention and progression of women at the Bar has become the most pressing issue. Why are women of around 10 years’ call leaving the Bar, and what can we do to prevent that loss?

Fair opportunity to succeed

First, we must ensure that they have the opportunity to succeed, and to be instructed in the type of cases that build a successful career, whether these cases come in as solicitors’ requests for specific counsel, as unallocated work distributed by clerks, or through leaders bringing in juniors. We can monitor allocation of work through regular practice reviews with our barristers, by looking at income and work done and discussing career paths and professional aspirations for the next year. Many of the major law firms (and their clients) are alive to diversity when instructing counsel and are open to working with clerks and barristers to instruct more diverse teams.

Clerks must also play their part to ensure equitable briefing when distributing unallocated cases. An easy place to begin is by monitoring work via chambers diary and fee management system. One of the two main software systems used by chambers allows for opportunity reporting (LEX) and a recent upgrade in the other will now also allow this facility (MLC). This means that each enquiry that comes into chambers can be entered onto the system as an opportunity and clerks can record the names of all counsel that were requested or considered for the instructions, even if unavailable. Clerks can then use this data to check that work is being fairly allocated and that no one is being overlooked, particularly with regard to protected characteristics. Counsel can also view this information and, in my own chambers, an individual’s opportunity report is discussed during a practice review.

However, not all chambers who have access to opportunity reporting are using it. Two years ago, I ran a workshop at the annual IBC conference explaining how to use the system and the need for using it. We, the IBC, need to do more to encourage all chambers to use it.

Things are slightly different in family and criminal sets, where the work is allocated on a significantly tighter turnaround and much comes down to availability. This makes it harder to find the time to enter the brief as an opportunity. Having sat in a criminal clerks’ room for an afternoon, I can see how this is not necessarily practical at the time the lists come out. Our challenge is to find a way to make it work.

We must also be alive to the choice of juniors by leaders in Chambers. Leaders will have built up a professional relationship with certain juniors and will want to work with someone they know and can rely on. Our job as clerks is to make sure that they have names of a diverse range of available and suitable juniors. We can’t decide for them but we can broaden their options, just as we can when solicitors call to request counsel.

Making a career work

Secondly, as the retention problem hits at around 10 years’ call, we need to make a career at the Bar work for women at this stage in their lives. We must ensure that all chambers have practical and supportive parental leave and return to work policies, which set out clear steps to be followed before, during and after leave. The Western Circuit Women’s Forum’s recently published Back to the Bar Best Practice Guide: Retention and Progression after Parental Leave is an excellent example of a robust and sensible plan and can be used by chambers to design their own policy (see: bit.ly/wcwfback2bar).

We should also encourage senior women in chambers to act as formal or informal mentors to more junior colleagues, and to share their experience. Clerks to barristers returning from parental leave must be supportive, sensitive and positive. Talk to them about what they want for their career rather than making assumptions; they will make individual choices about hearings out of the jurisdiction which need an overnight stay, how early they can get in or how late they can stay, and which days they will work at home etc. It is also important to arrange networking events and introductions at times and places that are accessible to all members. If every event is held before or after work, those with caring responsibilities may not get a fair and equal opportunity to attend.

We all (clerks, barristers and – dare I say – solicitors) need to be more understanding in our attitude to returners. Becoming a parent is life-changing. Women are still predominantly seen as the primary carer, who may need to order school uniform before writing a skeleton (a true anecdote from a very successful barrister with a working partner). So please, if asked for flexibility with turnaround times, working patterns, or for hearings no more than an hour’s travel from their home, show some empathy and understanding.

Finally, we can try to guard against any form of favouritism or discrimination, or conscious or unconscious bias. The IBC and the Bar Council provide E&D training, and the IBC runs an excellent Returning to Work seminar, courtesy of Cliff Holland of Old Square Tax Chambers. Please make sure that your staff and barrister training on this is up to date. Senior clerks have a responsibility to maintain an inclusive culture. Banter can become bullying. Favouritism, cosy lunches or drinkies, can make people feel excluded. If the Bar is to succeed for another 100 years, we will need to include women equally in its success.

An equitable briefing checklist

  • Monitor allocation of cases through regular practice reviews, looking at income and work done. Discuss career paths and professional aspirations for the next year.
  • Ensure equitable briefing when distributing unallocated cases to counsel. Start monitoring via diary and fee management systems.
  • Be alive to the choice of juniors by leaders, and supply leaders with a diverse list of available and suitable juniors.
  • Ensure that chambers has practical and supportive parental leave and return to work policies, which set out clear steps to be followed before, during and after leave.
  • Encourage senior women in chambers to act as formal or informal mentors to juniors, and share their experience.
  • Clerks to barristers returning from parental leave should be supportive, sensitive and positive. Ask what they want for their career rather than make assumptions.
  • If asked for flexibility with turnaround times, working patterns, or for hearings no more than an hour’s travel from their home, show some understanding and be accommodating where possible.
  • Guard against any form of favouritism or discrimination, or conscious or unconscious bias: make sure that staff and barrister training is up to date.

Further reading

The hard data on inequitable briefing: ‘Gender at the Bar: fair access to work (3)’, HHJ Emma Nott, Counsel December 2019; ‘How gendered instructions at the employment Bar are scuppering female barristers’ ambitions for silk’, The Lawyer July 2019: counselmagazine.co.uk; thelawyer.com

Western Circuit Women’s Forum’s recently published Back to the Bar Best Practice Guide: Retention and Progression after Parental Leave is a robust and sensible plan and can be used by chambers to design their own policy: bit.ly/wcwfback2bar

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Lucy Barbet

Lucy Barbet is Chair of the Institute of Barristers’ Clerks. She is Joint Senior Clerk at 11KBW