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	Alternative Law Journal

Gender and legal practice^[1]

The relevance of gender to practice as a barrister.

Rosemary Hunter & Helen McKelvie

Rosemary Hunter works at the Justice Research Centre, Sydney. Helen McKelvie works at the Victorian Institute for Forensic Medicine.

In 1997, the Victorian Bar Council commissioned the authors to undertake research on equality of opportunity for women at the Victorian Bar. The report resulting from this research, Equality of Opportunity for Women at the Victorian Bar (Victorian Bar Council, 1998), was the subject of a seminar organised by the Bar Council in October 1998, shortly after its release. At the seminar, invited speakers gave official and personal responses to the report. One response from a senior barrister took issue with many aspects of the report. She concluded that in her view, ‘gender is an incidental characteristic to practice as a barrister’.[2]

The image of the lawyer as gender-neutral technician is central to liberal legalism. Within this philosophy, the role of the lawyer is to apply his or her legal skills and knowledge on behalf of clients and in accordance with his or her duties to the court. Advancement in the profession, such as appointment as a partner in a law firm, as a Queens Counsel, or to the bench, follows from the development of high level skills and knowledge. So long as all lawyers have equal opportunities to develop skills and knowledge — which is assumed to be the case — gender truly is incidental to practice as a barrister, solicitor or judge. It forms no part of the definition, acquisition or recognition of legal ‘merit’. This widely-held view has given rise to questions such as ‘will women judges [or solicitors, or barristers] make a difference?’[3] In theory, they should not, since in the application of technical ability, it makes no difference whether the technician is a man or a woman.

Of course, this account of lawyering has been subject to challenge from many critical theorists, ranging from legal realists to feminist legal scholars. The aim of this article is not to make a further theoretical contribution to the debate, but to present some of the findings from our study of the Victorian Bar, which demonstrate ways in which gender is, or is not, relevant to practice as a barrister.[4] The findings are derived from interviews with male and female barristers, solicitors, judges, barristers’ clerks, and former barristers. Interviewees were selected by means of stratified random sampling from each target group, in order to ensure a sufficient mix of female and male barristers of varying seniority, solicitors of varying seniority and from different sized firms and government agencies, judges from different courts, and clerks running different types of lists. The interviews were supplemented by a study of court appearances by male and female barristers over a three-month period in five courts in Victoria — the Court of Appeal, Supreme Court Trial Division, County Court, Federal Court and Family Court — and the General Division of the Victorian Administrative Appeals Tribunal. Details of the gender profile of the Bar as a whole, and of barrister, solicitor and judicial interviewees, are shown in Tables 1 to 4. In addition, five of the 12 barristers’ clerks were interviewed, together with five female and five male barristers who had left the Bar in the previous five years. The court appearances study captured a total of 805 cases. The distribution of those cases in the courts and tribunal included in the study is shown in Figure 1.

Table 1: Victorian Barristers, December 1997

Table 2: Barristers Interviewed

Table 3: Solicitors Interviewed

Table 4: Judges, Magistrates and Tribunal Members Interviewed

Figure 1: Cases in Court Appearances Study by Court/Tribunal

Gender and the acquisition of skills as a barrister

Any discussion of gender and legal practice must begin with the observation that law is a historically male-dominated profession. The gender breakdown of the Victorian Bar (Table 1) shows that the Bar is still a predominantly male institution. A threshold question that often arises in considering the position of women in the legal profession is whether women actually want to acquire legal merit in the same way as men. That is, to the extent that women may enter the profession with different aspirations from men, it is conceded that gender may have a role to play at the point of entry. This, in turn, is frequently proffered as an explanation for why women have not ‘succeeded’ in the profession at the same rate as men. In the context of the Bar, it may explain why there are so few women in the senior ranks (see Table 1), and why the representation of women at that level does not match their representation in law school classrooms 20 years ago (over 30%),[5] let alone now (over 50%).[6]

Our interviews with barristers comprehensively debunked this suggestion. The women and men interviewed had joined the Bar for substantially similar reasons, and the women were, if anything, more conventionally ambitious than their male counterparts. For example, more women than men aspired to take silk, to attain judicial appointment, to make (more) money, and to gain credibility and/or recognition for their skills at the Bar. By contrast, the goals articulated by men tended to be more directed towards individual satisfaction: to maintain their current lifestyle, to do good or interesting work, and to have a busy practice. To the extent that there was a gender difference in aspirations, then, it was not in the direction predicted by the apologists. On the other hand, women saw more and different barriers standing in the way of the achievement of their aspirations than did men, and several of the barriers identified by women were specifically gendered: solicitors’ reluctance to brief women, and (in the context of women continuing to take primary responsibility for parenting and domestic arrangements) the demands of children and family and the need to work very long hours. These findings point to women’s low level of representation and seniority being more attributable to a lack of equality of opportunity in the way work at the Bar is organised and distributed, than to women’s different choices about how they want to practise.

The issues mentioned by women barristers as possible barriers to their advancement at the Bar — the impact of family responsibilities, and solicitors’ briefing practices — were explored in the interviews with barristers, former barristers, solicitors and clerks. In addition, the court appearances study provided evidence of the outcomes of briefing practices.

Family responsibilities

In relation to relative family responsibilities, 19 of the male barristers and 15 of the female barristers interviewed had children. The majority of the fathers (14) had wives or partners who had taken, or were taking, the role of primary carer on a full-time basis. By contrast, none of the 15 mothers had a partner who had taken primary responsibility for the care of the household and children. While two women had raised their children before coming to the Bar, the others were juggling multiple roles not attempted by most of their male colleagues. Many of the men said that having children had motivated them to work hard in order to financially support their families, but had not otherwise had an impact on their careers. Almost all of the women said having children had had an ‘enormous impact’ on the way they were able to practise. They spoke about limiting the type of work they could take on, limiting their hours or working part-time, or limiting where they could work, in order to accommodate their family demands, thus limiting their capacity to accumulate skills and experience. Taking an extended period of leave for childbirth or to care for young children also meant both loss of skills and opportunity for relevant experience (in the eyes  of some) and the loss of solicitor contacts, meaning that when returning to the Bar, women who had not had well-established practices virtually had to start again. Or they did not return at all. Of the former barristers interviewed, two of the five women but none of the five men had left the Bar for reasons directly related to the impact of family responsibilities on their practices.

Briefing

The attitudes of solicitors are crucial in determining whether and what kinds of work barristers receive. The interviews showed that in the abstract, the views expressed by solicitors about what they would look for in a barrister were not gender biased. Rather, the influence of gender in the briefing process was more subtle. Personal contacts and rapport between barristers and solicitors are all-important. To the extent that senior male solicitors have control over briefing, this tends to advantage male barristers through the operation of homosocial networks. Comparable women’s networks are not yet well-established and in any case, it would be a rare female solicitor whose connections were exclusively female. Many solicitors lacked knowledge of women barristers practising in their areas, and lacked incentive to seek them out.

In addition, some solicitors did reveal double standards and discriminatory practices in selecting barristers for particular cases. For example, two solicitors said they would not brief female barristers whom they associated with the ‘other side’ in criminal or government agency work, but admitted they would not discount male barristers who accepted briefs for the ‘other side’. A few women solicitors said that when acting for women clients, they would try to ‘balance’ their side by briefing a male barrister (whereas there is no perceived need for ‘balance’ when a male solicitor representing a male client briefs a male barrister) or they sometimes felt pressured by ‘high powered commercial clients’ not to brief a woman.

Barristers’ clerks play some role in introducing barristers to solicitors, particularly when solicitors do not have a particular barrister in mind for a brief, but ring the clerk and offer the brief to whoever is available, in the clerk’s discretion. This category of work, known as ‘floating’ work, was generally agreed to have diminished markedly in recent years, so clerks have much less power than formerly to ‘make or break’ a barrister’s career. There is, however, still some opportunity for very junior barristers to obtain floating work. Also, solicitors may ask a clerk to provide a list of available barristers for a particular matter, and inclusion on the list gives a barrister at least a chance of receiving that brief, plus the benefit of having their name brought to the solicitor’s attention for other matters of that kind. Opinions varied as to whether clerks gave women a ‘fair go’ in these processes. One male former barrister noted that ‘just about everyone who was not earning a whole lot of money had some degree of paranoia about whether the floating briefs were being distributed fairly, but there was no way of knowing’. More women than men, however, expressed anxiety or concern about this aspect of the briefing process, and one woman who had left the Bar considered she had received ‘quite blatant sex discrimination’ from her clerk in respect of floating work and of general support in developing her practice. Thus, the clerk’s attitude to women barristers may also impact on their ability to gain experience early in their careers.

The court appearances study suggested gendered patterns in the briefing opportunities afforded to women and men in the courts and tribunal studied, with individual women, and women overall, enjoying a narrower range of briefing opportunities than their male colleagues. Among other indicators, a higher proportion of men than of women on the Bar Roll appeared in the Supreme Court Trial Division and Court of Appeal during the study. This disparity was not simply attributable to the relative seniority of female and male barristers at the Bar, since analysis of the seniority distribution of barristers appearing in those courts showed that higher court work was not reserved for more senior barristers, but was available to barristers of all levels of seniority. Indeed, the profile of male barristers appearing in the Supreme Court and the Court of Appeal was the same as their profile across all of the jurisdictions studied. The profiles did differ for women, however, with women appearing in the two higher courts being more senior on average than all women appearing in the study.

Other indicators of the relative opportunities available to female and male barristers to build their skills, knowledge and reputations were the numbers of women and men undertaking junior work (that is, appearing as junior counsel with a QC), and making multiple appearances, in the selected courts and tribunal during the three-month study period. There were 207 appearances by junior counsel in the study, of which 179 were made by men, and 28 by women; 101 barristers appeared more than three times in the study (that is, an average of more than once per month): 14 females and 87 males. When the relative proportions of men and women at the (junior) Bar are taken into account, the differences were not statistically significant. However, women’s representation in these activities was proportionately lower than men’s. Women were significantly underrepresented in cases running for longer than one day (7.7%), and overrepresented in appearances of an hour or less (19.6%).[7] In this respect, women were clearly afforded less opportunity to develop their advocacy skills.

Moreover, women were noticeably underrepresented in the Trial Division of the Supreme Court (4.6% of appearances), and more generally in commercial, common law and personal injuries cases (8.2%, 6.4% and 6.0% of appearances respectively). Conversely, women were overrepresented in Family Court appearances (32.2%), but the case sample indicated a higher volume of appearance work available in the commercial and personal injuries areas than in family law. Female barristers were also significantly under-represented in jury trials, both criminal and civil (3.9% of appearances),[8] with criminal prosecution work providing virtually the only means for women to gain trial experience. These figures show very different opportunities available to women and men to acquire ‘merit’ in their chosen areas.

Mentoring and information exchange

A third area in which women are disadvantaged is in opportunities for younger barristers to benefit from the knowledge and advice of more senior members of the Bar. Every new ‘reader’ at the Bar must arrange a more senior ‘mentor’ (formerly known as a ‘master’), who must be a barrister of at least 10 years standing, but not a QC. From our interviews, this formal system appears to have quite variable results for both women and men. Barristers may also find an informal mentor or mentors who may help to foster their careers, but twice as many women as men interviewed said they had not had such a mentor. Some pointed out that it was more difficult for women to find compatible mentors of the formal or informal kind, since there are so few senior women at the Bar, and senior men tend to have more in common with younger men than with younger women. More generally, the interviews indicated that women were excluded or felt alienated from masculine social networks, lunching and drinking rituals and other social events,[9] which provided opportunities to get to know and to learn from more experienced barristers.

For all of these reasons, the acquisition of skills as a barrister is clearly not a gender-neutral process. Female and male barristers do not have equal opportunities to develop ‘merit’, and hence to progress at the Bar. And even if they did have equal opportunities to acquire skills, this does not mean they would be equally recognised.

Gender and the recognition of skills as a barrister

The research findings included a number of ways in which gender appeared to impact on recognition of skills as a barrister. First, women generally find it more difficult to gain entry to, and support from, the ‘mainstream’ of the Bar. Many of the interviewees acknowledged that gaining peer recognition in this context can result in significant career benefits.

Female barristers and some of their male colleagues also identified a high level of criticism of female barristers around the Bar, especially in relation to appointments of women as QCs or to the bench, and in some contexts, issues of sexuality being used to undermine women’s professional credibility. This highlighting of gender and sexuality ahead of acknowledgment of women’s abilities as barristers was also noted in relation to male barristers’ responses to women in the courtroom (although expressions of judicial gender bias were considered to be relatively rare in recent years). As Margaret Thornton has pointed out, put-downs and sexualisation discredit women as authoritative legal knowers,[10] placing them outside the charmed circle of ‘real’ barristers and reasserting their ‘appropriate’ feminine roles.

When asked for suggestions as to how a more gender-balanced bench may be achieved, a number of barristers identified a need for greater acceptance and support for women at the Bar, to enable more women to gain the experience and maturity required for judicial appointment. Appropriate forms of recognition, rather than denigration, thus have important ramifications for women’s advancement.

Gender and the definition of skills as a barrister

Equal employment opportunity practitioners have long argued for the need to subject the definition of ‘merit’ in any given field to critical scrutiny.[11] This is also true of the Bar, where various gendered definitions of ‘merit’ apparently prevail.

Gendered capacities?

Many clients, clerks, solicitors and barristers themselves share the view that some types of work are simply better done by men, while women are better suited to other types of work. Usually these views are based on traditional gender stereotypes: of women being more sympathetic, conciliatory and efficient, and men being tougher, more able to ‘kick heads’ and ‘thump tables’.

More then half of the solicitors interviewed said they had had clients who specified a preference for either a male or female barrister. This seemed to occur most frequently in family law and criminal matters, or cases considered to be ‘female-sensitive’, such as crimes compensation, or medical negligence cases involving ‘women’s business’. In addition, over a quarter of the solicitors said they made assumptions about their clients’ gender preferences, without the matter necessarily being discussed. Older male clients from European or Asian backgrounds were often assumed not to want a woman to represent them, and some solicitors (both male and female) also tried to ‘protect’ female barristers from obnoxious male clients. While a few solicitors took the attitude that they would brief the best person for the job, regardless of gender or the client’s prejudices, in other cases it appeared that the client’s express or assumed preferences accorded with the solicitor’s own gendered beliefs.

The gender division of labour in the legal profession as a whole is well documented, with women being clustered in lower prestige, less well remunerated positions such as community legal work, government employment, and as employee solicitors rather than partners, managers, barristers or judges.[12] The research also demonstrated a gender division of labour at the Bar, with women being particularly clustered in the family law and child welfare area, often finding themselves ‘encouraged’ in that direction by their clerks. Contradictory views were held about women’s suitability or otherwise for criminal cases (particularly prosecuting sexual offences), however the court appearances study, as noted earlier, clearly showed the predominance of the view that women are ‘not tough enough’ to handle criminal trials. One judge described the problem thus:

that side of the profession ... is ... hand to hand combat of a personal kind. Women make very good soldiers in a modern army, because they are required to pull a trigger on a weapon that kills someone 500 or 1000 yards away ... they are not very good at bayonet fighting. [In the courtroom] it is very much hand to hand, or mind to mind combat.

Women were seen as suitable for Magistrates Court matters, Practice Court and interlocutory work in the higher courts, research and advice work, but not necessarily for heavier assignments. It should be stressed that these views were not held by all players, and some actively rejected them. Their presence in the system, however, continues to have an impact on women barristers’ careers.

Advocacy tactics

In the courtroom itself, women face a physical setting which was not designed for them, and which in many cases advantages those of larger stature and deeper voice. This is not entirely a gender issue, since short men with higher pitched voices are confronted with a similar challenge. In general, too, it appears that female barristers have been largely successful in finding their own ways of being effective advocates. At the same time, however, a barrister’s traditional courtroom arsenal includes the ability to engage in gameplaying tactics to gain the upper hand over their opponent. The research findings suggest that male barristers are more likely to initiate and be comfortable with such tactics. While some women learn how to play them, the interviews indicated that they are more likely, at least initially, to find them alienating and confusing.

Long hours and continuous practice

Lastly, the prevailing attitude around mothering and part- time work amongst members of the profession was shown to associate these with lack of commitment or even incompetence. This attitude defines a good barrister as one who works long hours, including weekends, on a continuous basis, and does not have (or acknowledge) competing demands on her time. It follows that this barrister has a full-time, home-maker partner to take care of the family — something that women barristers find it hard to come by. It appears from our interviews that male barristers (especially younger ones) are also beginning to identify the negative effects on themselves and their families of continuing to adhere to traditional models of practice at the Bar. Some of the interviews also pointed to male barristers finding it harder to establish or maintain dedicated domestic support systems, with social changes challenging the ongoing viability of the traditional model. For the time being, however, long hours and the acquisition of experience and seniority through practice uninterrupted by childrearing remain part of the definition of barristerial merit. It was interesting to discover that barristers who had taken extended leave from the Bar for reasons other than parenting had not experienced any stigma and had far fewer difficulties re-establishing their practices when they returned to the Bar. By contrast, the research suggests that competing family responsibilities, and attitudes at the Bar towards them, are possibly the largest contributing factors to women leaving the Bar.

Conclusion

Our research into the Victorian Bar clearly demonstrates the many ways that gender is relevant to practice as a barrister. Furthermore, interactions between gender and age, class, ethnicity, sexuality and other aspects of identity may impact in different ways on the acquisition, recognition and definition of skills and knowledge as a barrister. Our interview sample was too small to enable us to draw meaningful conclusions on most of these points, although some differences did emerge between the experiences of older and younger women barristers, both in terms of changing manifestations of gender bias, and changing perceptions of and reactions to gender biased attitudes and treatment. The Victorian Bar Council has also recognised that gender has played a negative role in the career prospects of women at the Victorian Bar, and is currently working on a range of initiatives in response to the report on Equality of Opportunity for Women at the Victorian Bar, addressing both opportunities for the acquisition of skills and knowledge as a barrister, and aspects of Bar culture that go to the recognition and definition of merit. These efforts are to be commended.

We do not, however, subscribe to the liberal ideal that gender should simply become irrelevant to practice as a barrister. Rather, by virtue of its history and its place in the legal and social order, the Bar is an inescapably gendered institution, and being a barrister is an inevitably gendered practice. The issue is, what meanings are ascribed to gender? Can it work in a way that does not have a systemically adverse impact on women? For example, gendered male barristers could also be recognised as fathers, gender essentialism in beliefs about suitability for particular kinds of work could be challenged and disrupted, and gender differences could be valued rather than stigmatised. Gender cannot be banished from the script, but it can be written and performed in new, more inclusive and interesting ways. Can women barristers make that much of a difference?

References

[1] This article is based on research commissioned and funded by the Victorian Bar Council, and undertaken under the auspices of the Centre for Employment and Labour Relations Law, Faculty of Law, The University of Melbourne, and the Justice Research Centre, an independent, public interest research organisation established by the Law Foundation of New South Wales.
[2] It should be noted that this barrister is not alone among her colleagues in holding this view. As indicated in Table 2, several senior female barristers were interviewed as part of the research. Their experiences and views of the Bar are represented in the report, and will also be explored further by the authors in a forthcoming article.
[3] For example, Wilson, Madame Justice Bertha, ‘Will Women Judges Really Make a Difference?’ (1990) 28 Osgoode Hall Law Journal 507.
[4] Since the focus of the study was on the identification of any barriers to women’s advancement at the Victorian Bar, the research report, and this article, are primarily concerned with the negative ways in which gender impacts on women’s practice as barristers. The positive impact of gender for male barristers is documented as a corollary. It should also be noted that some interviewees saw advantages attaching to being a woman at the Bar. However, these advantages were not consistently identified; nor were they borne out by the statistical record.
[5] Gaudron, Hon. Justice Mary, ‘Speech to Launch Australian Women Lawyers’ (1998) 72 Australian Law Journal 119 at 121.
[6] Australian Law Reform Commission, Report No. 69, Part II — Equality Before the Law: Women’s Equality, AGPS, Canberra, 1994, p.176.
[7] χ² = 41.044, df = 8, p << 0.001.
[8] χ² = 16.633, df = 1, p << 0.001.
[9] See also Thornton, M., Dissonance and Distrust: Women in the Legal Profession, Oxford University Press, Melbourne, 1996, pp.166-77.
[10] Thornton, M., above, pp.134-36.
[11] See for example, Burton, C., Redefining Merit, Affirmative Action Agency Monograph No.2, 1988; Thornton, M., ‘Affirmative Action, Merit and the Liberal State’ (1985) 2 Australian Journal of Law and Society 28.

[12] See for example, Keys Young, Research on Gender Bias and Women Working in the Legal Profession: Report, NSW Department for Women, March 1995; Menkel-Meadow, C., ‘Feminization of the Legal Profession: the Comparative Sociology of Women Lawyers’, in R. Abel and P. Lewis (eds), Lawyers in Society: An Overview, University of California Press, 1995; Roach Anleu, S., ‘Women in the Legal Profession’ (1992) 66 Law Institute Journal 162; Weisbrot, D., Australian Lawyers, Longman Cheshire, 1990, pp.87-88.