Last week I had an at times boisterous dinner with two colleagues with whom I had started at the Bar in 1982. Back when we were readers, it was inconceivable to imagine 25 years into the future. In that period, we have conducted busy, diverse practices. The life of a barrister is both interesting and rewarding but, at times, exhausting, stressful and uncertain. Professionally and personally, there have been good and bad times. As a quarter of a century veteran, what advice can I give to someone commencing this career so as to maximise the good and minimise the bad times?

There are mo universal rules that make a barrister successful. One can mention the usual attributes: intelligence, industry, personality and connections. Perhaps, a good versus bad career could be compared by way of analogy to what Tolstoy said in Anna Karenina concerning families:

          “All unhappy families resemble one another, but each unhappy family is unhappy in its own way.”

Barristers happy in their career are an example to us, those unhappy are a warning.

As a warning to those embarking upon practice brimming with confidence and expectation, evident on the faces at admission ceremonies, it is instructive to consider those for whom it has all gone wrong.

WARNING No 1

The great shame and tragedy for the Bar in recent years has been notorious difficulties some have had with the Australian Taxation Office. The explanations by two now defrocked QCs, spoke of disorganisation and, in the face of mounting and annual problems, despairing immobilism. One, John Cummins, said:

          “I kept as far away from the Income Tax Act as far as possible in my thoughts… All I did was have a few more drinks and blotted it from my mind.”

Another, Clarrie Stephens said he:

          “… became too dependent on non-performing accountants from the early 1980s. … Any reference to ‘tax’ or ‘accountants’ in our house had become a great source of aggravation and tension.”

Many other barristers had serially and seriously failed to meet their taxation obligations. Of one, Justice Roddy Meagher, in considering the myriad excuses presented in mitigation, said:

          “All these facts together to not derogate from the fact that non-filing of tax returns is incompatible with the degree of integrity which the public has the right to expect of a barrister.”

Leaving aside those who might have used the non-filing of tax returns as a deliberate ploy to evade their obligations, one can understand, though not approve of, those whose negligence led them to denial of the problem. As sole traders with uneven cash flow, trying to keep up appearances and lifestyle, looking after others’ problems, it was too easy not to worry about the ATO. As a debtor, the ATO had been somewhat glacial, that is, ominous but slow moving in the collection of its debts. (It took the revenue authorities 40 years to catch up with John Cummins who had never failed a tax return.)

As a young barrister wishing less stress, it is trite to say that one must conduct one’s practice like a business. That is, one needs to devote time and money to its financial administration and credit control. The late payment of fees is an endemic problem at all levels of practice. As an extreme example, only last week I received the final payment for a matter conducted in 1999! Thank God for small mercies, however, not the way to run a business. Keeping one’s books in order with all the relevant accounts and invoices might be unexciting, but is essential. Contacting solicitors who are slow in paying is distasteful and perhaps self-defeating, but necessary. Contingency fees, particularly in these days of tort reform, and pro bono work, need to be kept in perspective. The stark warning these days being, that no matter how capable, understanding or public spirited one is as a counsel, if one’s tax is not paid, you will be disciplined and could be struck off.

WARNING No 2

The fact that this work is mainly conducted in public, in an adversarial context, presents its own kind of anxiety. Recognising the stress engendered by the work, dealing with it and engaging in reduction strategies, are pivotal for a happy life. Not to do so can have debilitating and sometime devastating consequences. Harmful self-medication strategies, particularly with alcohol, may not be the answer. A more extreme case of a destructive coping strategy was that of the recent death of the prominent Melbourne QC, Peter Hayes. He was found dead in an Adelaide hotel room in circumstance suggestive of a drug of dependence overdose. He had had a brilliant career, although, in recent years, it was said that his personal life had suffered which, in turn, led to difficulties at work. It was said that he lived under significant pressure before his death. A colleague, David Galbally QC, in the press in May of this year, said of him:

          “He had mood swings when he was practising, he could be aggressive one minute and positively charming the next. … He lived under enormous pressure as we all do as advocates and I don’t think members of the community understand the pressure we live under when representing people.”

Another extreme example of how one’s emotional life can lead to ruin, presented itself with the conviction of a former Deputy Senior Crown Prosecutor, Patrick Power SC, who was gaoled for downloading child pornography. In his defence, it was said before the New South Wales District Court that he had been “diagnosed with a treatment-resistant depression spectrum disorder” and he was “powerless to stop his compulsive behaviour”. It was also said that “along with the pressure of prosecuting cases such as pack rapes and murders”.

These two sad examples are at one end of the spectrum of emotional problems contributed to by a busy life at the Bar. The NSW Bar Association has recently recognised the problem by instituting a confidential counselling service called Bar Care. Its aim is to assist, in a confidential way, members of the Bar and their immediate members who have personal problems which may be interfering with work and my family life.

However, one should, at the outset, adopt strategies which are designed to avoid and minimise the anxiety which may otherwise become either acute or chronic. Examples of such strategies might  be adjusting the so-called work/life balance, such as taking sufficient breaks between cases, making sure holidays are taken, and trying to keep in touch with one’s family by minimising out-of-hour and weekend work. Further, one ought adopt consistent management plans of ensuring that one’s time at work is efficiently spent by keeping up-to-date with work, returning phone calls, and not taking on too much work, together with recognising when work offered is outside one’s capacity and experience, and not being afraid to ask for additional help. It is little wonder , therefore, that some people are spending lare nights or weekends, just catching up with the minutiae of work.

WARNING No 3

When I first came to the Bar, with in a short time one of the difficulties of life was that there was too much work. In the eighties, there was an abundance of work, particularly in the personal injury area, and it was difficult for young barristers to get it all done. Some barristers in those days had so much work they developed a reputation for being briefed and wither not turning up to conduct cases because they were busy elsewhere, or turning up late or under prepared. In recent times, with various so-called reforms of tort law which have led to a lessening of litigation, the reverse is the problem. Although there is a great number of new specialist tribunals, in an overall sense it is apparent that there us less work to deal with by a greater number of barristers.

A telling example of this problem occurred a couple of years ago when a barrister was struck off for not overcharging a particular client, but for over servicing. Mr Amor-Smith had had 30 years at the Bar. It was apparent from his accounts that his practice had declined. In this particular case, the subject of the complaint, he appeared to have devoted his full attention to it so much so that it almost looked like a job. The allegations against him were not just overservicing, but also that he charged his professional rate for a lot of work which was of a clerical nature. He had charged out at the higher rate for time he had spent photocopying. Even though this was only an isolated matter for this barrister, it was considered to be reprehensible that as an example to others he had his name removed from the roll of practitioners, notwithstanding his otherwise good reputation. It was said that:

          “What occurred was that the barrister had failed to respond satisfactorily to the challenges of a single brief, which raised particular difficulties and was, moreover not properly defined or supervised by his instructing solicitor. In consequence, he developed an obsessive concern to attend meticulously to every detail of the issues raised, with the consequence that he devoted a grossly inordinate time to the brief.”

This presents itself as a warning that when people are underemployed, they are not to expand the billing day by devoting more attention to a brief that what it reasonably requires. It could particularly present itself as a problem for a new barrister, who has insufficient work, to develop an obsession with one particular brief which could have too much time devoted to it and which consequently could amount to professional misconduct. In every matter one needs to make a reasonable assessment in one’s fee disclosure as to what time is required in order to avoid an allegation of overservicing.

In Enemies of Promise, the literary critic Cyril Connolly devoted a book in which he listed the obstacles which might bring a promising writer down. These thoughts identify a few which might bring a barrister unstuck, unfortunately there are many more. As counsel, I would rather be an example than a warning.

JEFFREY PHILLIPS SC

Denman Chambers