To Bar or not to Bar
27 March, 2006
Gaurav de Fontgalland, Lawyers Weekly
While some legal practitioners aspire to being called to the Bar, writes Gaurav de Fontgalland , there is unfortunately no easy road map for how to get there.
One of the most significant career choices for a lawyer to make is whether or not they should go to the Bar. Visions of impassioned battles at the Bar table, respectful juniors and rich veins of money fed into multiple bank accounts are compelling draw cards, but the reality of life as a sole practitioner is far from arcadian.
The legal world is not renowned for its friendliness or its accessibility, so the obvious question is, how do lawyers find out what they’re in for? There is no easy way to obtain those essential tips and trade secrets that might guide a lawyer who has decided to stray from the safe path to fortune – if not fame – that is the partnership route.
There are, however, several issues that deserve the attention of the discerning advocate to be.
Thinking outside the firm
Statistics show that for most law students, the first step after university is almost always into a law firm. Whether the firm is small, medium or large, the decision to travel the nine circles of partnership is almost a default one.
Law students are not, however, simply brainwashed into taking that step. Practical or societal reasons are involved as well. For Iona Goodwin, second year lawyer at Harmers Workplace Lawyers, the reasons were clear: "Law firms offer a safe and financially secure environment in which to start your law career. You get to grow your reputation and build your skill with supervision and training."
Another lawyer, who works at a mid-tier property firm, agrees with Goodwin, adding that "most law students don’t know exactly what they want to do straight out of university. Working at a firm allows you a certain degree of flexibility in testing out various practice areas. Of course, if you don’t show some degree of expertise after a year or two you’re in for trouble".
This flexibility, however, even if only for a year or two, may be the most advisable route to a career as a barrister. "Some of us became barristers immediately after completing our degrees," says Justice Marcus Einfeld QC. "I would advise against that now. Spending even just a year making contacts whilst with the prosecution, or at a litigation firm, increases the odds of surviving your first year as a barrister exponentially."
The first advisable step then to becoming a barrister is to explore your affinity with a a range of practice areas, to choose a few, hopefully vaguely related to each other, and then to establish whether you want to be an advocate in the area or not.
Before answering that question, however, you need to ask yourself how do you know you want to be an advocate in the first place?
The trials of being an advocate
The problem for many lawyers in answering that question is that at the tertiary level, (or even, for that matter, at the secondary level), there is very little exposure to what the art of being an advocate involves.
Firstly, the focus is primarily on substantive law. Although the fundamental analysis of substantive law is necessary both for solicitors and barristers, the mingling of oratory, ad libbing and analysis that is the remit of a barrister is something not often discussed at university or school
"Unless you undertake courses or events like the Jessup International Moot, you might easily finish university without ever having experienced advocacy," says a second year private equity lawyer at a top tier firm. "Quite apart from the fact that you won’t have felt what it’s like to get up in front of people, you won't have established whether you’re any good at it."
What this means is that there are fundamental skills and abilities that barristers must possess which are different from those of solicitors.
Skill sets and other requirements
"The ability to read people, in the main, together with a capacity to listen, as well as basic debating skills," says one eminent criminal law QC, when asked whether there are any particular skills that a lawyer wanting to go to the Bar should possess.
So does this mean that a penchant for oratory is a must? What is the difference between a solicitor's submissions in court and those of a barrister? "It is a difference of type, rather than magnitude," says Justice Einfeld. "Barristers and Queens Counsel need to know when to lead." A chief difference, it seems, between barristers and solicitors, lies in the role of the client. Solicitors spend significantly more face time with clients, dealing with the administration and business of the law. Their perspective is geared towards this, especially in smaller firms. Barristers, on the other hand, have a great flexibility of perspective - one day they can be acting for the Commonwealth, the next day against it.
Harry Freedman, partner at boutique law firm Milne, Berry and Berger, says, "Personally, I chose to be a solicitor because I can do whatever a barrister can do. If I want, I can change the structure of my firm to focus on advocacy, or I can travel in a wholly different direction and focus on paper exchanges. Either way, I can engage fee earners who actively work for me. Commercially and practically it's more viable."
Substance versus procedure
"The corollary to all this, of course," Freedman continues, "is that barristers deal intimately with the law itself. They avoid the day to day pettiness of being a solicitor, and get all their information filtered for them so they can focus on a love of the purity of the law."
The skill set required in advocacy is "a very special thing," Freedman suggests. "Solicitors involve themselves with the groundwork of the law; it's really more of a forensic activity that we undertake." This focus on the purity of the law suggests that an intimate knowledge of substantive law is a far more important asset for a barrister than a solicitor.
Finally, in contemplating this major career decision, a solicitor should weigh up whether or not they want to be called to the Bench. A vast majority of judges are barristers. Only very few solicitors become part of the judiciary, a reflection of a difference in mindset.
Administrative aspects
The careers of a solicitor and a barrister also differ in terms of their commercial viability, Freedman says, while according to one commercial and property law barrister-at-law of 30 years, being at the Bar is all about organisation. "You do not have an entire firm to back you up financially," he says. "Although you can share some common resources, such as clerks and photocopiers, the rest of your employment infrastructure is up to you, and you alone."
This has its drawbacks if the barrister is not constantly aware of their case load. "Chambers cost up to $300,000 to buy, which, when you add all the other expenses of life, as well as the fact that you are self-employed, means that you have to cultivate a practice intelligently and carefully," he says.
It is possible, however, when starting out to get a 'reader’s chamber' at large chambers such as Wentworth in Sydney. The advantage of that for a young barrister, says Justice Einfeld, is that "other counsel will always refer extra work to you, providing you are there early in the morning to be available for the opportunity, of course".
The need to be driven
There is very little clear understanding, outside the Bar itself of course, of the steps required to become a barrister. The choice between practising in substantive law or pursuing a career around pure law is critical, as is the need to feel an urge for advocacy and to think carefully about the numbers involved. Other factors, such as networks and the Bench, come into play as well. Ultimately, however, those dreams of impassioned arguments at the Bar table will only come true if you want them to, and don’t mind going it alone.
