Time to put an end to the Old Wigs’ Network

To increase gender diversity on the bench, simply cast a wider net

For many years now, women have graduated from law school in much greater numbers than men, and will soon make up more than half of the profession in Queensland.

It has long been a concern that partners at law firms continue to be overwhelmingly drawn from the male members of the profession, and I have written previously of some of the reasons that contribute to the under-representation of women in our senior ranks.

However, it is clear that this last bastion is falling, and that as the current leaders of law firms retire or move on to other things, that imbalance will be redressed. The fact that almost 50% of admitted solicitors — and Queensland Law Society members — are female (and that number will soon exceed 50%) means that an increase in the percentage of female partners at law firms is inevitable. In what may come as a surprise to laypeople, the legal profession is quite diverse when it comes to gender.

Or, at least, the solicitors’ branch of the profession is; at the Bar, an extraordinary imbalance remains, with about 23% (based on the Bar Association of Queensland Annual Report 2015–2016) of barristers being female. That may well represent the disruption which the solicitors’ profession has caused to the Bar, with most of the advocacy in Queensland’s tribunals and magistrates courts now undertaken by solicitors. Even the District and appellate courts, once the province of the wig-and-gown brigade, are now seeing more and more skilled solicitor-advocates.

This is not a recent trend, and indeed the 24 years I spent as a practising solicitor before joining Queensland Law Society were spent as a solicitor-advocate, and I was far from alone. Indeed, some firms now market to clients on their advocacy abilities, pointing out the cost savings of not having to brief counsel; many clients have embraced this and been very happy with the results.

This means that anyone with a preference for court work can indulge that without having to cast themselves afloat on the sea of uncertainty that comes with being effectively a sole trader. There is no particular difficulty with this — indeed, from the point of view of the client, saving thousands of dollars in a matter is very attractive — and it represents a natural progression for the legal profession itself. The future will no doubt see a smaller, highly specialised Bar, with solicitor-advocates taking over most jurisdictions.

There is one problem with this, however — the Old Wigs’ Network, otherwise known as the tradition of picking judges largely from the ranks of the Bar. With fewer advocates seeing the need to ply their trade as a barrister, the gender diversity of law graduates and solicitors is not flowing through to the barristers’ profession; by seeking judges almost solely from those ranks, the government will never be able to address the gender imbalances in our courts.

Fortunately there are literally scores of experienced, competent and deserving female candidates for judicial appointment in the ranks of Queensland’s solicitors — meaning that the judicial gender imbalance can be easily and quickly addressed simply by looking beyond the Bar for potential judges.

This option would be far better than the current solution, which involves adopting a quota of 30% of all work going to female barristers, on the hypothesis that this will upskill female barristers currently too junior for appointment and get them ready for judicial roles. Apart from the mathematical problem of sending 30% of all work to 23% of the Bar, this involves needless delay. There are female solicitors who could be appointed to the bench right now, with no further training; all that needs to happen is a rejection of the outmoded and now-ineffective tradition of appointing from the Bar.

Simply put, the old trope that all the best advocates are at the Bar is no longer correct (if indeed ever it was) and has not been for a long time. In addition, sticking to it is resulting in the exclusion of deserving women from judicial roles — to the detriment of the legal profession and the community at large.

We cannot wait for the slow integration of the Queensland Bar, especially as less and less work is going to barristers, to address our gender problem, and we do not have to. We simply have to open the door to the judges-in-waiting amongst our state’s solicitors.