Starting at the Bar — Some Brief Observations

Nearly 20 years ago Justice McPherson suspected that there is only one question that occupies the minds of new members of the Bar: Will I succeed at least in making a living at the Bar?1 McPherson J recalled asking that question in September 1965 when he came to the Bar, daunted by being the most junior of 72 barristers in private practice in Brisbane.

There are now more than 800 barristers in private practice in Queensland, and the question posed by McPherson J is no doubt considered by all who have been recently called. This article contains some observations and suggestions directed to those who are new at the Bar, or are considering commencing practice. The author’s background is in commercial law, but the content should be generally relevant, particularly to those who seek to develop a practice in civil litigation.

It is fundamental to establish a budget against which income can be measured. Your budget must take into account your personal expenses (i.e. what it costs to feed, clothe and care for yourself and your dependants), as well as the expenses of maintaining a practice. If a new barrister is able to secure a room to squat in for a period, or which is available at a subsidised rental, then a significant proportion of the practice expense is minimised. Some expenses are unavoidable: robes are required, and it is difficult to imagine practice without a laptop or desktop computer. Subscriptions to commercially published services and reports may be postponed — statutes, rules and forms are readily available online. The Supreme Court Library is freely available, at least to those in Brisbane and contains the largest collection of legal resources in the State. Whatever form of accommodation is taken up, it is likely that colleagues will have copies of or access to reports and textbooks which can be borrowed — the collegiate aspect of practice at the Bar seems undiminished in this regard.

Getting briefs is the thing. Devilling may provide some help with cashflow, but it is the opportunity to appear, or produce sound paperwork in one’s own name, which is treasured by a new barrister. Some of that work will come through flicks and referrals from colleagues. When such an opportunity arrives it should be seized. The singular advantage which a new barrister usually has over more experience colleagues is the ability to devote more time to preparing, researching and undertaking the relevant paperwork, or in preparation for the appearance. This will often mean that the new barrister will have a deeper knowledge of the brief. It also provides the new barrister with the opportunity to conduct more wide-ranging reading of relevant authorities, and in cases where oral evidence is to be given, to spend more time in preparation of evidence in chief and cross-examination. Use these advantages to your benefit. It is not surprising that briefing solicitors are particularly impressed by seeing a new barrister perform well against a more senior colleague, or provide a well-drawn advice or pleading. As to the latter, a quick turn-around of paperwork will leave a favourable impression and, if the work is good, almost certainly garner further briefs.

Ultimately survival at the Bar depends upon being briefed by a sufficient number of solicitors to ensure a relatively steady income. Aside from flicks and referrals, a new barrister should consider submitting papers for publication. Proctor, the monthly journal of the Queensland Law Society, which is widely read and circulated in Queensland, is an obvious publication to which papers might be submitted. But consider carefully the nature and scope of your paper. A topic which is highly specialised, or otherwise unlikely to arise in the day to day practice of solicitors, is unlikely to lead to enquiries as to whether the barrister is available to take a brief. On the other hand, articles which are directed to practical or commonly occurring aspects of practice are likely to be read by many solicitors — and if the article is useful and well-written it is likely that a solicitor who is confronted with such a problem may consider inquiring of the author as to whether he or she is available to take a brief in that area. Consider what are issues of practical application for solicitors involved in, for example conveyancing or succession matters. An article which addresses a current issue in relation to PAMDA forms and their preparation, or their treatment in recent decisions, is likely to be of significant interest to Queensland solicitors. Equally, an article which deals with practical aspects of family provision applications is likely to be interesting to a solicitor in general practice or specialising in that field. The important point is to consider the relevance of the proposed paper to the practice of solicitors. A detailed exposition on some aspect of public international law may well be of interest to those who practice in that field, but is unlikely to generate a flurry of briefs.

A new barrister may wish to join an organisation which is devoted to a particular area of practice (e.g. insurance law, mining law etc.), or a group such as the Queensland Young Lawyers Association. Such organisations provide the opportunity to meet other practitioners, including solicitors, and are devoted to disseminating specialist knowledge and providing opportunities to create contacts between practitioners.

Many such organisations publish newsletters and circulars which also provide an opportunity for a new barrister to submit items for publication.

It is axiomatic that there is no one path to developing a sustainable practice at the Bar. Some barristers will develop a relationship with only a handful of solicitors, even one or two, sources of work which will provide an income sufficient to sustain a practice. Others will develop a broad practice involving intermittent briefs from many firms. Many smaller firms, particularly in suburban and regional areas, are only called upon to brief counsel from time to time. Some barristers will specialise in areas such as industrial law or planning law, where the source of work tends to be concentrated among a smaller pool of firms and solicitors. What is important, when considering the question posed by McPherson J, is developing a sufficient flow of work to sustain the practice. What comprises that sustainable level will, as stated earlier, depend upon the individual’s requirements to meet personal needs and practice expenses.

Not all who commence practice will remain. Putting to one side those who decide that the life of a barrister is not suitable because of the hours involved, or the stress which can attend practice, it is likely that the majority of barristers who do not continue beyond their first year or two cease to do so because they are unable to sustain themselves financially.

McPherson J was called to the Bar in Brisbane at the same time as Ian Callinan, one of the most distinguished barristers to practice in Queensland before his appointment to the High Court. There is reassurance for all new barristers in knowing that every barrister, however senior they may presently be, was once a new junior waiting anxiously for the phone to ring or for a new brief to arrive.

Chris Wilson

1. Queensland Bar News No. 44 June 1993