Misconceptions of Some New Barristers

In the fine tradition of “10 Things I Hate About You”, it occurred to me that – perhaps to the chagrin of some – I ought ventilate the misconceptions of some newly practising barristers that I have discerned, and which I too, in part, harboured when a young counsel.

Practice as counsel is an unusual vocation. It entails self-employment as a subcontractor advocate in the competitive adversarial justice system, bound by a “cab rank “ rule, owing a duty to the client but a prevailing duty to the system of justice and ordinarily practising as a member of chambers sharing common practice expenses but not fees.

Misconceptions about practice abound.  One finds that within 3 to 5 – but sometime more – years of practice, such misconceptions fall away.  Reality intervenes.

In no particular order, I canvass below some of those misconceptions.  I challenge the barrister reader to declare that they never held any of them.

1. “I am a young professional with a law degree, and a graduate of the Bar Practice Course,  so solicitors should brief me without hesitation”

Our challenge when acting as counsel is to, fearlessly and comprehensively, advise clients on their prospects and to appear at court before judges who (on occasions) seem determined to skin us alive.

The newly admitted barrister may pose the proposition: having completed studies –involving two tertiary degrees – and working for a firm of solicitors for several years, and completing the Bar Practice Course, why would solicitors not be falling over themselves to brief me?

There is a succinct answer to this: the lack of experience of counsel. 

Reality dictates that acting as counsel is a task which one cannot learn merely by legal study, prior legal experience as a solicitor, reading advocacy books and listening to the war stories of the senior bar, but rather requires the blood, sweat and tears of undertaking practice for a number of years.

Even the cut and thrust of practice as a solicitor for several years, or longer, will not adequately equip a freshly admitted, or even slightly dented, barrister with the ability to fully and consistently cope with the rigours of practice. 

Conducting efficiently the adducing of and objection (or not) to evidence and cross-examination, making persuasive oral submissions and responding sensibly on one’s feet to judicial inquiry about evidence, law and submissions made, are critical learned tasks.

One needs to do it, and often, in order to put oneself in the best position to undertake the task to a reasonable, and ever higher, standard. Self – confidence, while an essential character trait for counsel, is not sufficient to cut the mustard.

2. “My chambers owes me a living; my chamber members should recommend me as their junior or to brief if they are unavailable”

To be a member of a good set of chambers is the desire of most barristers. At the base of that desire is the company of colleagues with whom you will mix as counsel – and often socially – on a daily basis.  In addition, one might piously hope that silk members of chambers, and other barristers who are jammed or unavailable, would recommend to their solicitors that their chamber colleagues be briefed.

But this hope does not routinely ensue, or if so does not inexorably accrue such briefing. So much is a function of many things.

In part, so much is founded in solicitors having their own stable of counsel, which does not align with the complement of the barristers within any chambers. Furthermore – as noted above under misconception 1 – counsel may be insufficiently experienced per se, or in the brief practice area, to attract such recommendation, or attract it successfully.

Ultimately, it is up to the individual barrister to carve their own niche at the bar.  Undoubtedly, from time to time, junior and other briefs will be spawned by recommendations from other members of chambers.  But they are not for the asking, nor will suffice to sustain practice. You need paddle your own canoe!

3. “I am already at work for 10 hours a day, 6 days a week, so I am not available outside of hours to solicitors, by email or telephone”

While I concede that the view of barristers may differ on this topic, I find it extraordinary that counsel – who often, as they hope, would be briefed frequently in court such that they are not always available from about 9 am (with preparation) until about 5 pm (when they return from court) – would not make themselves available outside of hours to respond to necessary enquiry.

A barrister is a self-employed independent advocacy sub-contractor professional.  Out of hours requests for urgent advice, clarification of an important issue in an existing brief or availability to be briefed often need be addressed promptly. Tradies do it, so why not barristers? It is an occasional, not persistent, occurrence, so why resist?

Nothing is more irritating to a solicitor when they cannot contact counsel promptly and are left hanging. Apart from any other consideration, it tends to portray lack of interest in being briefed on an ongoing basis.

4. “I’m a busy person so I will answer emails or telephone calls from solicitors or other counsel only when able”

This misconception is related to misconception 3 above. 

Suffice it to say it is irritating for a solicitor – or a counsel who is briefed with you or against you in a matter – not to receive a response, in a reasonable time, to an enquiring email or telephone call made during working hours.

Sure, the matter in which counsel is briefed and engaged in on any particular day ought be the subject of their principal focus, but that does not give them a licence to ignore the fact that the nature of the profession of a barrister is to service the requirements of others who seek your responsive attention.

The issue is capable of ready management.

First, if a receptionist or group personal assistant will be answering your phone in your absence, arm them with information pertaining to your current court (or other) commitment so that the inquiring solicitor can enjoy some idea as to by when a response is likely. Also give such person access to your electronic diary so that availability enquiries by phone can be addressed, even if tentatively.

Second, unanswered emails (in particular) or telephone messages can be responded to before and after court hours, with apt priority, and those to whom a response is made can if necessary be the subject of polite advice that you are otherwise engaged, but you are happy to briefly respond until better able to do so at length.

Apart from any other consideration, it is discourteous to do otherwise.

5. “I am happy to work 7 days a week, and only take 2 weeks holiday a year”

The barrister who works 12 hours a day, 7 days a week and takes 2 weeks holiday a year is heading for early burnout.

No doubt solicitors are looking for a barrister who is industrious and keen, but the usual consequence of excessive hours of work is that the barrister cannot keep it up – either because they acquire too much work which they cannot service, or or suffer consequent ill-health or relationship breakdown – and their lives and practice turn to dust.

In my experience – as long as they receive adequate notification that counsel will be taking time off in a few months to go on holidays or leave, in particular with loved ones – solicitors appreciate that they are briefing a young barrister who has their work/life balance sorted, and will be in it for the long term.  Solicitors who are of a different view are best to be avoided; by parity of reasoning, their continuing in practice is a doubtful prospect.

6. “I cannot understand why my solicitor and my client do not accept my advice about settlement (or procedure)”

The incidence of non-acceptance of advice of counsel, broadly speaking, is inversely proportional to their experience; the more experienced counsel is, the more likely their advice routinely will be accepted. So much is understandable.

More importantly, however, counsel need remember that they are merely providing advice in respect of the litigated cause or dispute, not dictating the course of action the client must adopt. 

In our legal system, the role of counsel – informed by their ethical obligations (see misconception 7 below) – includes giving advice to clients, through our briefing solicitors, when requested, and sometimes proactively if circumstances require. There is no obligation to accept that advice, as the solicitor or client may harbour a contrary view.  Indeed, that contrary view may prove correct, but that is not the point because it is the client only who is directly impacted by the ultimate outcome.

All counsel, however experienced, will feel some irritation at advice proffered not being accepted, but that is just part of the game.  For counsel to take it to heart is – purely and simply – hubris. Get on with what you have to do!

7. “I have to argue every point because my solicitor and client want me to, and they are paying my fees”

Counsel ought be respectful of, but avoid being slavish to, the argument and evidence dictates and preferences of the briefing solicitor and client. A barrister is an officer of the court, owing a higher duty to the system of justice, notwithstanding the concomitant duty owed to the briefing solicitor and client.

The Barristers Rule 2011 expressly provide, in effect, that not only may counsel not argue a point which they consider to be unarguable, but also that they ought not argue weak points that they consider will be wasting the court’s time.

Certainly counsel should always sit down and explain carefully to solicitor and client why it is that the point or points in question are unarguable, or that to argue same (or lead certain evidence) would be a waste of the court’s time and only attract unnecessary judicial irritation.  Usually that will mollify solicitor and client, but not always.  The solicitor, if experienced, may well persuade counsel to the contrary.

Importantly, a barrister need scrupulously discharge their ethical obligations, and not attract a reputation with the judiciary as an poor, unreliable or unethical practitioner. Do otherwise, and you best take up a different calling.

8. “I am a busy barrister, so Continuing Professional Development is a waste of time and effort for me; I only do it to keep my practising certificate”

How many times have I heard the shallow at our bar declare this, and some of those had more than the said 3 to 5 years’ experience.

To be busy as a barrister does not mean necessarily that you are going about your craft in the right way in every respect.

To the contrary, you may be cultivating and persisting in erroneous or out-dated substantive law, procedural or ethical practices, notwithstanding that you are not corrected by your peers or the judiciary. There will be new practices and law afoot which you need master before they permeate through to daily court practice. Why would you not want to get ahead of the game?

CPD is a critical part of any professional’s practice. Indeed, the 10 CPD points – with some compulsory subjects as part of that – which barristers are obliged to accumulate annually in order to renew a practising certificate is much less than what is required in almost all other professions.

Every barrister – in the writer’s view – ought attend regular CPD sessions in their practice and the compulsory spheres, even if to do so results in a surfeit of CPD points. Offer, too, to present or assist in CPD sessions, as that affords even better learning.

Attendance on CPD occasions where solicitors are present in the audience – and asking questions – will often afford an encouragement of those solicitors to brief you on account of your interest (and apparent expertise) in the legal sphere in question.

9. “That judge (or tribunal member) is a ba*tard to appear before (or does not like me or my client)”

I defy any barrister to declare they never have said or thought such a thing. But, in truth, the proposition only has to be stated in abstract to be quickly dismissed.

Personalities differ. In consequence, clashes can occur in any professional discourse. No doubt this can happen even between counsel and members of the judiciary, but infrequently.

Fortunately in our democratic society we enjoy an independent and well trained judiciary. They have an important task to discharge in any dispute that comes before them, namely to attend the prescribed procedure, evidence, substantive law and argument, make necessary interlocutory rulings and then deliver or facilitate a timely adjudication or jury verdict. Counsel are charged with assisting the court in that regard.

In the occasional clashes that do occur between counsel and the judiciary, the invariable  genesis is an argument over evidence adduced or submission made which requires critical evaluation by the judge in order to properly understand the import of it, sometimes because the evidence is plainly objectionable or submission weak. So much has nothing to do with a judge being disposed against a particular counsel (or client), nor generally indisposed, but rather is part of the cut and thrust of the adversarial system.

In short, counsel should get over it, and concentrate on abiding the cardinal rules of good advocacy:  prepare well, construct and advance the best possible case theory, and conduct and argue the case – persuasively and ethically – so as to make it as easy as possible for the judge to find in favour of their client. So abided, clashes with the bench will be few and far between.

10. “That barrister I appeared against is very rude (or unethical)”

Not for one moment am I suggesting that this never occurs but, ordinarily, one should engage in some reality testing and self-examination before concluding it, let alone saying it to colleagues.

Again, counsel practise in an adversarial system. Some degree of tension – if not heat – will exist between opposing counsel in some legal disputes. That need be managed. It should not be used as an excuse for enmity arising at the bar table, or from what ensues thereat.

There will often be disparate views as to the manner in which a case may be conducted within legal and ethical constraints. Be not too quick to judge or condemn others. You may soon be in the same or like position as your opponent in another matter. Be pragmatic; you cannot choose on what side of a dispute you will be briefed.

I have a particular practice which – to the best of my recollection – I have deployed in every court appearance in which I have engaged in the last 40 years. At the end of the hearing, upon the judge leaving court, I always turn to my opposing barrister (or solicitor advocate) and thank them.  Invariably such salutation is reciprocated. Quite apart from common courtesy, what I find is that any tension which has, or may have, developed is dissipated by such exchange.

And, for good measure, I will add an eleventh misconception:

11. “The Bar Association does nothing for me”

Perhaps I have been too involved in the affairs of the Association over the years, and therefore this misconception piques me more than others. Some had the temerity to say it to me when I was President….how foolish of them!

The Bar Association of Queensland has been servicing barristers for over a century. For the many members who serve on the Bar Council and the various Bar committees, the task is unremunerated, involves long hours and is truly selfless in character. In addition, the Association is served by a skilled Chief Executive and staff.

 In truth, the Association, over the years, has served as a professional association (or, perhaps, union) for members, without peer. 

The President, Vice-President and Chief Executive are in frequent consultation with the State Attorney General of the day and their department, and the Chief Justice and other judges of the various courts, State and Federal.  Maintaining a collective professional relationship with such persons is critical.

Frequently, detailed written submissions are made by the Association to Government – State and Federal – on legislation and on issues close to the interests of the bar and the public generally. These are written by experienced Association barrister members. Governments listen to the bar, for good reason. We are those who will be briefed to impugn or uphold legislation enacted. Furthermore, the Association will issue apt media releases and otherwise publicly agitate if Government overreaches.

In addition, the Association affords a raft of other services directly to member barristers.

It undertakes the legislative protocol of issuing practising certificates to barristers annually, that ensuring all barristers are fit and proper persons to practise and carry the requisite minimum insurance (for public and barristers’ reputational benefit respectively).

It provides free access to senior barristers at short notice for confidential ethical advice on issues encountered in practice. This is afforded by the Ethics’ Counsellors’ Committee which I chair.

It conducts the Bar Care Scheme, consisting of member access to free (3 sessions but sometimes more) and confidential psychological counselling.

It initiated and maintains a low cost life and disability insurance scheme for members bereft of medical qualification, one without equal among professional associations of Queensland.

 It initiated and maintains a statutory liability limitation scheme in favour of barristers which caps their potential professional liability (with few exceptions) to the minimum statutory level of insurance cover.

Finally, it provides to the bar full CPD throughout the year, and at the annual conference near the close of the practising certificate year.

Enough said.