THE LAST WORD

… symbiosis; n; 1 Living together. 2 Biol. An interaction between two dissimilar organisms living in close physical association; esp. one in which each benefits from the other. 3 transf & fig. A relationship or association of mutual advantage between people, organisations, etc.

For centuries, barristers and solicitors in most legal professions based on the English model have had a mutually beneficial symbiotic relationship. It largely still exists in Australia, but it is breaking down. Clear, but not immutable, demarcation lines existed between the two branches of the legal profession. Barristers traditionally provided specialist advocacy and advice to solicitors’ clients. Solicitors, although permitted and qualified to be involved in litigation, generally left in-court advocacy to members of the Bar, particularly in the higher courts. Non-litigious transactional work was the preserve of the solicitors’ branch. The demarcation lines for courtroom work were informally enforced like union demarcation lines. Writing in the Spring 2017 edition of Bar News, the journal of the New South Wales Bar Association, the Association’s new President, Arthur Moses SC thoughtfully raises some of the existential issues facing the Bar. The NSW Bar is ageing and in numerical decline. He writes that one-third of practising barristers are over 60 years of age, and in past 14 years the total number of practising barristers has risen only by 221 whereas the numbers of practising solicitors has risen by 13,400. Work upon which new barristers learnt their skill – such as drawing pleadings, pleas, mentions, notices of motion and shorter hearings – are kept in-house by solicitors, particularly in the larger firms. Most civil matters are sent to mediation which may not have counsel present. Many cases settle at mediation. Many junior barristers in the civil jurisdiction can achieve years of practice without having regularly been in court – examining witnesses and orally persuading judges to see the merit of one’s case. Written submissions may be drafted by the solicitors, some of which may be settled by counsel. Moses correctly opines that the administration of justice is better served by an independent Bar, and enhanced by the efficient conduct of litigation by virtue of the specialisation of barristers as advocates. To be a specialist, one needs regularly to practice and to hone one’s skills. Professional golfers need to hit thousands of golf balls and play under match pressure as much as possible. Boxers staying out of the ring for too long can suffer from “‘ring’ rust”. It is the same in skilled callings like the Bar.

One of the cornerstones of the Bar is the so-called “cab rank rule”: in principle, a barrister is obliged to accept a brief in his or her area of speciality, if available, and if the agreed brief fee will be paid. Solicitors can pick and choose their clients. Lawyers do get typecast, and some barristers can technically wriggle out of inconvenient or potentially career embarrassing matters. Some are known for their plaintiffs’ practices, some for their predilection to act for the defence. John Mortimer’s eponymous character, Horace Rumpole, did not prosecute. However, the purist at the Bar, complying with its best traditions, will put personal business concerns aside and act for the despised, rapacious, traitorous and violent members of our society to ensure that a fair trial ensues and justice is seen to be done. One great attribute of a skilled advocate is the capacity, experience, and preparedness to act on either side of the Bar table. A lot of large firms of solicitors tend to act for one side of the register. A year or so ago a friend, a senior mining executive, needed a solicitor to sue his employer, a mining company. I asked a solicitor of a large international law firm with many clients in the mining industry whether he had a conflict to advise my friend. He replied that his firm could not act for him, not because of a conflict but because his firm only acted for corporations. I asked”: “What, you don’t act for someone with a pulse?” “Correct!” he replied. It is not in the public interest for lawyers to decline briefs with the result that the best advocates may be tied up by large corporate or governmental interests. Our democracy has an interest in having skilled representation available to individuals and organisations – whether popular or not!

Jeffrey Phillips, SC State Chambers, Sydney