This article was written in response to a proposal by an ad hoc Auckland Committee of the Auckland District Law Society to amend the Law Practitioners Act to prohibit a person’s right to practice as a barrister once he/she had been called to the Bar until he/she had worked for another appropriately qualified lawyer for 3 years. As John McLinden saw this as a crude move to suppress what had come to be known in New Zealand as the Baby Bar, and as he had been the first Baby Barrister many years before, he wanted to preserve for others the opportunity that had allowed him to follow his career. The proposal was not implemented.

 

The Baby Bar

A number of recent articles and comments highlighting Aucklander District Law Society and New Zealand Law Society concerns about the alleged unsatisfactory performance of “baby barristers” prompt me to respond. I consider that I can legitimately lay claim to being the granddaddy of the baby Bar. After finishing my professionals at VUW I was admitted one Friday in February 1975, and started practice the following Monday, at the age of 22. The present phenomenon of baby barristers was unknown. The person then next to me in the pecking order was Don Inglis, who combined his practice with a teaching position at Victoria University. He would have been in his late 30’s or early 40’s. Peter McKenzie and George Barton were also practising as academics/barristers. The rest of the Wellington Bar was comprised largely of silks. I was well and truly an orphan (1).

I embarked on practice with a singular confidence in my ability. Singular in the sense that I alone shared that view. But notwithstanding numerous painful lessons along the way, with the generosity of the profession, and the tolerance of the Judiciary, I managed to do quite well. Had there been any restriction on the right to commence practice as a barrister it would have fettered, and may have prevented altogether, a professional life that I have found to be tremendously exciting and enriching. Consequently I am jealous of that right for others and am in principle opposed to any curtailment of it. Given the weak state of the present arguments in favour of restricting practice as a barrister by legislation, my opposition is implacable.

Prominent people in the profession have complained, for as long as I have been a barrister, of the inadequate way graduates are prepared for life in the practice of law. It was a favourite subject of Laurie Southwick QC, who was President of the NZLS when, or soon after I joined the profession. I used to grind my teeth when I would hear him getting stuck into the shortcomings of graduates, and the university system that produced them. But those were the days in which a graduate was expected to start as a registration/filing clerk, notwithstanding his or her education had been aimed at turning out a highly trained and disciplined thinker. To me it seemed a travesty to use a person who had been trained to that calibre to carry out what were essentially mechanical (nonetheless important) tasks.

In the years that have evolved it seems to me that the boot is now well and truly on the other foot. If anyone has been educated as to the proper function of the new graduate, it has been practitioners. By and large the mechanical jobs in a modern firm are done by clerical staff, paralegals, or legal executives. Financial constraints and a much more sophisticated analysis of the management of legal practices means that the majority of graduates are immediately used as fee earners – capitalising on the knowledge that their university education has given them.

Competition to get entry to, and/or maintain a position in law faculties means that the quality of graduates is probably higher than ever. Unfortunately the depressed economy has meant fewer jobs. This has driven graduates into a variety of alternatives, one of which is the Bar. This development has given rise to establishment concern. To me it is a variation on the Southwick theme.

Inasmuch as there may be a problem with the performance of junior barristers, the proposed solution so far by an ad hoc Auckland Committee is to suppress the baby Bar by an amendment to the Law Practitioners Act. In my view this is an immature and unsatisfactory, but not untypical approach. The kneejerk New Zealand response to a problem is to legislate or regulate. It is the easy way out. Undoubtedly the legislation will be myopic. It will be drafted primarily from the perspective of those who are already well established, and who have all the power; second it will use the bludgeon of legislation to effect what the Committee unblushingly admits amounts to a restrictive trade practice by regulating the right of self-employment, to deal with a sensitive professional issue.

In my view the Committee and any others sharing its sentiments should think hard before acting as they have indicated. Why should legislation target the baby Bar? I am sure that if the baby barristers dominated the debate they would suggest introducing legislation requiring established barristers to take them into Court as juniors. It seems senseless and impractical to deal with the problem by legislation; but if that is to be the course, the latter option seems to have some merit to me. I wonder how happy the established Bar would be with that approach.

Proposing to solve the problem by restricting the barrister’s immediate right to practice is to fall well short of an intelligent response – instead of finding a proper answer it deals with the situation by the crude instrument of repression. After all there are not enough jobs at the moment – that is why there are baby barristers – so who is going to employ them if that is what the statutory amendment requires? The answer is no one – but the change will conveniently have got rid of the junior bar. In my view such an approach is to take a giant step backwards. I thought that as a nation we were getting away from restrictive trade practices; as a measure within the legal profession especially, should it not be a step of last resort?

It seemed to me that Graham Viskovic’s analysis of the position (2) pointed towards a creative and constructive answer: participation by the baby barrister as a Court Observer and in the ADLS “Flying Start” programme; involvement in the Police Court and Duty Solicitors Workshop, and a section on entering into practice as a barrister in the IPLS course.

Prior to leaving for England I considered an idea which I think would have gone some way to meeting the needs of the profession, and of the baby Bar. I very much regret I did not have the time to experiment. In the hope that someone else may take the baton, may I give a rough idea of what I had envisaged. It seemed to me that it was a comparatively simple task to get details of fixtures and the names of counsel appearing in them, from the various Courts and Tribunals. If one then had a list of baby barristers, one could then contact counsel appearing in the fixtures, and marry them with a junior. I accept there is plenty of scope for such arrangements to fall through the cracks, but I intended to run a reasonably tight ship, with some supervision and follow up. It seemed to me that it was essential to get officialdom on side. This not only means co-operation from the various registrars, but also from the biggest litigator in the country – the Crown. Traditionally the Crown has confined its use of the profession to those who worked in Crown Solicitors offices, the Crown Law Office, or those on the prosecutor’s panel. But the Crown has enormous scope for education of the junior bar by encouraging its counsel to take baby barristers and junior solicitors into court. The Crown does a vast amount of criminal work. It is in this very area that many of the complaints emanate about the conduct of the junior bar. If the Crown permitted its counsel and Crown Solicitors to take junior counsel into trials on an ad hoc basis, it would give them the opportunity to see how the police process works, to see proper trial practice, and to see how opposing counsel in criminal cases should properly relate to each other. Criminal law in New Zealand has come a long way since 1975. The result of this evolution is that the divisive “them” and “us” syndrome is now much less pronounced than it used to be. In the present environment further bridge building is possible; pollination of the junior defence Bar by the Crown might yield satisfying results. It is certainly a more constructive and imaginative approach than repressive legislation. Before occupying their present positions John McGrath QC and Lowell Goddard QC had extensive experience in private practice. I believe that subject to proper safeguards they would be sympathetic towards some form of Crown junioring system.

The other area where hope lies is with the independent Bar. A significant number of barristers give up their time to juniors in the profession by taking part in litigation skills courses, local and national seminars etc. Nevertheless I believe there is still a massive shortcoming when it comes to educating the baby barristers. There is no doubt that the Bar did well in the 1980’s, is still thriving, and will continue to expand in the 1990’s. It seemed that the great exodus to the Bar in the 1980’s resulted from the realisation that one could make a very good living without the baggage of a partnership, and second, that it was also a good career move. Both those factors are inherently egocentric.

I think there is a real danger that unless the Bar as a whole makes a conscious and determined effort to assist in the practical education of the profession, in due course barristers will be perceived as greedy and self centred. Those in firms who have been left behind by their former litigation partners will have justifiable cause for complaint that solicitors are shouldering the entire burden of employing and training junior members of the profession.

The reality is that too many at the Bar are too busy, too selfish, too lazy or too indifferent to the predicament of the baby bar to go out of their way to bring them into court. It is a rare trial or substantial appeal or banco argument that will not carry a junior, and will not permit payment of some fee. Excuses by silks and senior members of the Bar that they already have juniors from their instructing solicitors simply do not wash. So what if there is a second junior. No Judge I know is likely to raise his eyebrows at such a sight – especially if told of the reason for third counsel. It is an affront to the standards and tradition of the Bar that support should come from this quarter to deal with the baby Bar by repressive legislation. That situation must change by effort from the established practitioner, not the baby barrister. From my limited encounters with the latter, they have guts. They pay their own way through the IPLS course, pay their own admission and practising fees – all costing thousands of dollars, generally when they have very little money; then they launch themselves into the deep end, where almost no-one cares whether they sink or swim. What concern there is is primarily aroused because the powers that be are not concerned about the junior bar’s welfare, but because they are frightened of the damage that might be done to the public, or of the inconvenience the baby barristers might cause to the Courts, because of their lack of practical knowledge. In my experience baby barristers are desperate for work and are anxious to learn. Against them the successful barrister whose main worry is how he or she is going to pay for the next accessory in what is already a luxurious lifestyle, is an unedifying spectacle. I look forward to the day when any decent barrister would be ashamed to appear in a trial without finding a junior, and when that fact is recognised by their fellow practitioners and the Judiciary.

When I was recently back in Wellington I was delighted to see that Don Mathieson QC was advertising for a pupil to work in Woodward Chambers. A small gesture, and impractical for many barristers, but three cheers for his initiative and example.

(1) The Godfather of all baby barristers is of course Sir Robin Cooke [now Lord Cooke of Thorndon], who commenced practice at the Wellington Bar on his return from Cambridge. There would be no case against the baby bar if it were his achievements that were put on the scales. However in deference to the foreseeable argument that, with respect, Lord Cooke was not your average law graduate, I am happy to advance the case on behalf of the junior Bar.

(2) “Should barristers serve an apprenticeship?” Northern Law News 31 July 1992 p2.