Law firms on notice to brief the Bar, but at what cost to the client?

The Australian newspaper published an article on Friday containing comments from Victorian Bar Council president, Jennifer Batrouney QC, in response to the decision of Justice Rares, in Armstrong Scalisi Holdings Pty Ltd v Piscopo (Trustee), in the matter of Collins [2017] FCA 423.

In the decision, Justice Rares took exception with the solicitors’ – that is, Piper Alderman’s – estimated costs, which included the costs of a two-day hearing estimated at $17,000 for preparation, and $21,000 for attendance, when Counsel’s equivalent costs were estimated at a “mere” $6,400.

His Honour (at paragraph 20) observed that the division of work and costs, between the solicitors and Counsel, reflected an ‘inefficient and inappropriate way of dealing with the preparation for, and conduct of, the hearing of a case that should have been substantively prepared and argued at all stages by Counsel’.

His Honour also, at paragraph 21, expressed a view that having Counsel draft and settle pleadings and submissions provided obvious efficiencies and significant savings in fees, and was in keeping with Counsel’s “proper role”.

In response to those comments, Ms Batrouney QC reportedly stated “… judges are fed up with this kind of behaviour(underlining & emphasis added), and further “junior barristers, particularly at the Victorian Bar, have very low overheads in order to commence their profession — in contrast to law firms with massive infrastructure and massive overheads”.

Ms Batrouney’s comments, in the writer’s respectful opinion, are mistaken, for the following reasons:

  1. First, the underlying suggestion that junior barristers are able to perform work in a more cost-effective manner, because of their very low overheads, is not correct. It is the writer’s experience that the fees charged by junior barristers, at least in Queensland, can be eye watering, and there appears to be little correlation between Counsels’ daily rates and their overheads, with rates seemingly set on a carte blanche basis across the board.
  2. Second, as noted by QLS’ immediate Past President, Bill Potts, in a media release published in March last year… there is no need to put a client to the cost of hiring counsel if the solicitor is a capable advocate … “. Whilst the QLS’ media release attracted some ire, there is little room to argue that the premise of the point taken by Mr Potts is wrong – that is, why should a client pay for something that is unnecessary?
  3. Third, in many instances an experienced solicitor will be the capable advocate and an experienced litigation solicitor is more often than not as, (if not more), capable than Counsel in respect to the preparation of pleadings. Of course, it is correct that there may be some efficiencies in Counsel settling submissions in respect to a case that they are to argue but, in respect to the preparation of pleadings, the position occupied by an experienced solicitor, who works with a file, and interfaces with a client, on a regular basis, usually means that they are better able to prepare pleadings, and make forensic determinations (including as to evidence and issues of credibility), based upon a more thorough, robust, understanding of the client’s case.
  4. Fourth, the legal landscape is evolving, with law firms becoming increasing specialised, and whilst the Bar as an institution still has a role to play, any suggestion, (including, with the greatest of respect, by Justice Rares), that “a more general model” for solicitors to do work is somehow inappropriate because “… a separate bar was originally intended to ensure [that work] be done by the specialised and most cost-efficient advocate, namely counsel”, is arguably an outdated, antiquated, ideal.
  5. Fifth, there is a question to be asked as to whether the statements made by Ms Batrouney are founded in the actual belief that it is more economic and efficient to brief Counsel, or whether the statements possibly bely Ms Batrouney’s office as President, and as a member, of the Bar. Perhaps Ms Batrouney was, instead, guided by a duty to advocate a value proposition on behalf of the Bar, in the face of decreasing levels of work being given to junior barristers? Certainly, decreasing levels of work must be causing some concern among junior barristers, with the comments by Mr Potts in the QLS’ media release referred to above having been made in response to concerns put forward by the president of the Queensland Bar Association, Christopher Hughes QC, that “… junior barristers were struggling to gain experience because of the decreasing levels of appropriate work”.
  6. Sixth, if the judiciary is actually “sick and tired” of solicitors performing certain types of work, those concerns have, to the writer’s knowledge, been seldom reported, at least in Queensland. Without more, the decision by Justice Rares must be the exception, not the rule.

The writer has always had a good relationship with members of the Bar in Queensland. However, it is the writer’s opinion that the comments by Ms Batrouney QC are mistaken, and should not have been made.

The one silver lining is that, perhaps, the comments might ignite debate amongst the legal profession which ought, hopefully, prompt some self-reflection by certain members of the Bar as to its current and future role, (as well as the fees currently billed by junior Counsel).


Footnotes

[1]. “Federal court urges law firms to send more work to Bar” (The Australian, Chris Merritt, Legal Affairs Editor, 12 May 2017).