Why are so few women becoming senior counsel?

Women will soon outnumber men in the law library, but their progress to the ‘inner bar’ has been much slower

Rough justice: in every year since 2003 the number of women appointed to the inner bar has failed to exceed 30 per cent.

Rough justice: in every year since 2003 the number of women appointed to the inner bar has failed to exceed 30 per cent.

Mon, Dec 9, 2013, 01:02

Little progress is being made towards gender quality among senior barristers, with women making up less than a quarter of appointments to the inner bar over the past decade.

Analysis of figures supplied by the Bar Council shows that of the 166 barristers granted senior counsel status by the government since 2003, only 41 have been women.

Yearly breakdowns of the figures show the imbalance shows few signs of correcting itself. Over the last three years only seven women became senior counsel compared to 29 men.

So far this year three women have taken silk compared to seven men.

In every year since 2003 the number of women appointed to the inner bar has failed to exceed 30 per cent, dropping as low as 13 per cent for 2011 and 2010. The one exception is 2007, when three out of eight new senior counsel were women.

The disparity is even starker when compared with the gender make-up of the entire bar which is quickly approaching parity.

Of the country’s 2,269 practising barristers, 43 per cent are female. This is up from 34 per cent in 2003.

The indications are that this trend will continue; 45 per cent of barristers with less than seven years’ experience are women and females make up 60 per cent of this year’s graduating class.

However, when figures for the inner bar are examined, the gender make-up is dramatically different. Over 83 per cent of the 354 silks are male.

Although the progression of female barristers to senior level is slow, the situation has improved in the last 10 years.

Gender in Justice, a wide-ranging, government-funded study from 2003, shows that then only 9 per cent of silks were female, compared to 16 per cent in 2013.

Becoming a senior counsel allows a barrister to charge up to 50 per cent more for their services. It is also a recognised path to a senior judicial position. The majority of positions on the superior court benches are filled by senior counsels.

Barristers can decide to apply for senior counsel status after 10 years in practice, although many elect to remain junior counsel for their whole careers, especially if they have built up a lucrative client base.

Prospective silks apply to the Attorney General, who consults with the Bar Council and judiciary before making a recommendation to the government.

In practice, few applications are refused as barristers usually thoroughly evaluate their chances through informal soundings before applying.

Interestingly, while the jump from junior to senior counsel remains problematic for women, it appears less difficult for them to jump from senior counsel to judge. There are currently 39 female judges in Ireland, 27 per cent of the total. This compares favourably with 21 per cent in 2003.

Last year’s judicial appointments were more evenly split between the genders. Of the 17 appointments, seven were female, including one to the High Court.

As it stands, the Chief Justice, the Director of Public Prosecutions, the Attorney General and the Chief State Solicitor are all women.

Within a few years women will make up the majority of barristers.

Female solicitors are graduating at an even greater rate. So why the pronounced lack of female senior counsel?

Senator Ivana Bacik believes women barristers encounter a “sticky floor” career wise around the time they might consider taking silk.

Ms Bacik, who is a barrister and co-author of the Gender in Justice report, points out that junior counsel usually consider becoming seniors in their late 30s or early 40s, a time when many women are concentrating on raising young families.

“Our research showed that at the point where women are having children, the slow-down in their career is obvious,” Ms Bacik said.

“Women are progressing to the exact same position as men up until around the mid- to late-30s. Then they’re not progressing; they’re taking time out of their careers and the careers aren’t accommodating that.”

Ms Bacik also believes that the lack of transparency in how senior counsel are appointed also discourages women. She says there is a perception that selection is done through “the old boys’ networks” with prospective candidates being evaluated during golf outings and post-court pints.

In recent years the Office of the Attorney General has sought to address this perception.

Candidates for the inner bar now have to meet six clearly stated criteria as well as fill out a 26-page application form. Nonetheless, Ms Bacik believes female barristers still feel less confident about applying than their male counterparts, regardless of whether this is warranted or not.

Stability
A third reason for the lack of women silks might be stability.

Senior counsel, like the “tribunal millionaires” created by Mahon and Moriarty, are the ones who make the big money. However, for many taking silk is like starting again from scratch.

Some seniors price themselves out of the market while their bread and butter case work goes to their junior colleagues. Furthermore, at a time of greater fiscal scrutiny on the legal profession, senior counsel may well find themselves underemployed over the coming years.

There is evidence that women are more likely to seek out a more stable career path. Of the 12 new appointees to the Attorney General’s advisory panel this year, a salaried position with clear advancement opportunities, 10 were female.

Ms Bacik points to studies from other countries which show women tend to opt for the less risky career paths which offer more flexibility and a better work-life balance.

Although the senior counsel statistics appear stagnant, there are signs that the situation will improve in years ahead.

The Bar Council has introduced a maternity leave policy and now allows barristers to take a break from paying their hefty law library fees when taking time off to have a child.

According to Ms Bacik, other changes are more subtle. “Women no longer have to hide their bumps under the gowns so the solicitors won’t know they’re pregnant.

“That culture has changed or is changing. It has now become much more the norm for women to tell solicitors they’re taking off for a month or two.”

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