Barrister fee records reveal scale of gender inequality

Recently obtained data on State payments to barristers appear to show the glass ceiling has been shattered by women at the bar. A thorough analysis of the data, however, shows this is not the whole truth.

Figures released to The Irish Times under the Freedom of Information Act (Home news, January 7th) reveal fascinating information on distribution by gender of a substantial category of State work to the barristers' profession over the past 10 years.

News reporting on the data tended to concentrate on the earnings of the top-paid barristers briefed for civil work by the Attorney General's office, with Siobhan Stack SC and Sara Moorhead SC topping the list on a cumulative basis from 2002-2013. Mention was also made of Emily Farrell, topping the list in 2011 and 2012.

There may be three female barristers in lead positions on the earnings table, but a closer look at the data shows inequality is still evident in the profession.

An initial analysis of the distribution of payments by gender between 2002 and 2012 shows movement towards more equal distribution over this time period. In 2002, only 17 per cent of a pot of €10.5 million was paid to female barristers. By 2012, they received 36 per cent of a total distribution of €9.4 million.

It is noteworthy that the number of female barristers receiving instructions from the Attorney General’s office remained stable over the time period. Therefore, the more even distribution of payments is not due to an increase in the number of female barristers being briefed. It appears the change is due to female barristers gaining increased seniority and expertise.

There has, however, been a reduction of almost a third in the number of male barristers instructed by the Attorney General’s office. The biggest reduction in a single year occurred between 2006 and 2007, when that number fell 22 per cent. In that year, the number of female barristers instructed fell by 9 per cent.

Immediately following this concentration of the barrister pool, the year 2007 saw an almost 50 per cent increase in the average payment to barristers and a 22 per cent increase in overall payments to barristers. Accordingly, the move towards reducing the number of barristers receiving instructions does not appear to have provided value to the State. Average payments to barristers did not return to 2005 levels until 2012.

Analysis of the figures relating to senior counsel provides further interesting information. Between 2002 and 2012, the number of female senior counsel instructed by the Attorney General’s office grew from 9 per cent to 15 per cent of total senior counsel instructed. Furthermore, the average payment to female senior counsel grew from 47 per cent of the average payment received by male senior counsel in 2002 to 97 per cent of the average payment received by male senior counsel in 2012. Average payment per brief is a different measure which provides startling results. The average payment per brief for female senior counsel is still just 88 per cent of that of male senior counsel, but this is a significant improvement from 58 per cent in 2002.

These figures indicate that female senior counsels are taking more briefs and getting paid less for each brief. Are male senior counsels getting more complicated and time-consuming work or are they charging more for equal services?

Switching to the junior counsel data, over the same time period, the number of female junior barristers instructed grew from 31 per cent to 39 per cent of total junior barristers instructed. Perhaps a larger increase could have been expected in this category, but it is hard to get a gender breakdown of entrants to the profession.

In 2002, the average payment to female junior barristers was 104 per cent of the average payment to male junior barristers. This increased to 158 per cent by 2012. Once again, the average payment per brief data shows this information in a different light. Female junior barristers received 96 per cent of the payment per brief of male junior barristers in 2002. This had reduced to 86 per cent by 2012.

The data gives an excellent snapshot of a significant cross-section of the barristers’ profession. That the numbers of female barristers receiving instructions from the Attorney General’s office has not changed in line with the increased numbers entering the profession is a cause for concern. So also is the concentration of work for a relatively small number of barristers that does little to enhance the experience and income of those outside the very top of the payment lists. It also appears that this concentration of work may have led to higher fees for the State.

The data raises some interesting questions for consideration by the Bar Council and the State and may support implementation of the Bar Council's request that the State initiate a system to disperse work among a greater number of barristers.

Elizabeth Fitzgerald is a freelance solicitor