At The Bar
December 2009
Equitable Briefing Policy to be implemented in 2010 The New Zealand Bar Association will be approaching government agencies and then major law firms to urge them to support a new Equitable Briefing Policy unveiled at the Bar Association’s annual conference in Wellington in September. The policy was launched by Attorney-General Chris Finlayson and the Bar Association plans to roll it out gradually, with an initial focus on government agencies. Speaking at the launch, Bar Association President, Colin Carruthers QC, said that there had been concern for some time that competent women barristers were not being considered for work for which they were well-qualified. The Equitable Briefing Policy aimed to address that by making government agencies and law firms aware that there were female barristers who had skills and experience in specific areas of competence.
The policy, which is available on the Bar Association’s website, states that equitable briefing maximises choices for legal practitioners and their clients, promotes the full use of the independent bar and optimises all counsel’s opportunities for practice development. “The adoption of equitable briefing practices can play an important role in the progression of women in the law, the judiciary and the wider community.” The policy states that it has been formulated for voluntary adoption by both clients and legal practitioners, including in-house counsel, throughout New Zealand. The document states that, in selecting counsel, all reasonable endeavours should be made to – • identify female counsel in the relevant practice area
Mr Carruthers said that barrister Kate Davenport had been the impetus behind the policy, with support from the New South Wales Bar Association’s President Anna Katzmann SC and Justice Michael Slattery. He said that what was beginning to happen in New South Wales was very positive and he believed that it could be replicated in New Zealand.
• genuinely consider engaging such counsel
“I think it is probably an idea not only whose time has come, but which is overdue.”
The policy states that counsel can be identified by searches of the Bar Association’s website – www.nzbar.org.nz. It says that a genuine consideration would have regard to the skills and competency of counsel, regardless of gender, and should avoid inappropriate assumptions about the capacities and aptitude of female and male counsel.
Mr Carruthers said that women were now returning to New Zealand with degrees from institutions such as Harvard and Oxford universities, and it was a source of concern if they went to the bar and did not have the same opportunities as their male counterparts. Ms Davenport said that the goal of the policy was not to insist that women be briefed, but to ensure that they were considered for briefing. It would be suggested to those briefing that, when they put names forward for briefing, they included the name of a competent woman as well. She said that the Bar Association hoped to persuade large law firms and corporations which briefed barristers and agreed to adopt the policy to be in a position to account for the decisions they made when briefing counsel. Mr Carruthers said that the policy would be introduced gradually. The Bar Association wanted to approach the Solicitor-General first, then government agencies and, after that, major law firms.
• regularly monitor and review the engagement of female counsel, and • periodically report on the nature and rate of engagement of female counsel.
“Where there are equally capable male and female counsel available, arbitrary and prejudicial factors should not operate to exclude the engagement of female counsel.” The policy suggests that briefing firms, companies, agencies and other counsel should develop the capacity to collect data and report on briefing outcomes. The data would show the types of briefs; the jurisdictions or forums in which counsel were briefed; whether the matter was interlocutory, a contested hearing or an appeal; the role of counsel as junior or as leading counsel; and the pay rates. The Bar Association suggests that in-house counsel should consider requiring firms engaged by their organisations to ensure that capacity exists to collect such data. Care should continued over...