Why am I paid half the rate of a solicitor?
Junior Junior • Wednesday, April 10, 2013 Baby barristers are such a bargain, so why aren't they snaffled-up? ... Junior Junior says clients should get rid of over-priced panel firms and use in-house solicitors as the go-betweens ... Saves money, which could then be spent on the barrister
I SHOULD be used to it by now, but somehow it still grates.
The other day, after a loss against a solicitor, I was reminded again how little a baby barristers' skill is valued.
The solicitor sought costs and I objected, vainly.
However, to the judge's credit, rather than ordering costs generally, he asked my opposition how much he would charge for the two hours we had been in court.
His hourly rate turned out to be double mine.
Despite the fact I am a brilliantly qualified specialist advocate, I can still only command half the salary of a senior associate.
It just isn't right!
Do clients realise what a bargain a baby barrister is?
We are comparable to buying a handbag online from the US.
Half the price and the quality is just as good. Sometimes better. And sometimes from a season that hasn't even arrived in Australia.
There is also the issue of billing.
Many times I have heard it said that a solicitor likes a barrister to put in a hefty bill, as it makes their bills look more reasonable.
Equally as often, the solicitor is on the blower complaining that the barrister's bill is a bit hefty and if the client pays it first, there won't be anything left for the solicitor.
Sometimes, solicitors start negotiating a smaller bill before they have even sent it to the client.
None of this would be a problem if the client and the barrister could talk to each other.
Fortunately, some smart clients are realising that if there is an in-house lawyer and they approach a baby barrister with work, they will be welcomed with open arms and a bill half the size.
All a baby barrister needs for comfort is a solicitor go-between and there is no reason that person can't be an employee of the client.
Alas, this mutually beneficial arrangement is still the exception rather than the norm.
Hopefully, not forever.
I look forward to the day when in-house counsel remember they are solicitors too and they shouldn't have to pay someone else to do the work they are perfectly capable of doing.
Besides, many in-house lawyers would kill their grandmas' to get their hands on some interesting litigation, rather than farming it out to over-priced panel firms while they perform the front-end drudgery.
Still, I'd love to be able to charge as much at the bar as I once did in private practice.
Cheers,
Junior Junior
Billings, Fees, In-house solicitors 
Reader Comments (3)
In April Fine Paper v Moore Business Systems [2009] NSWSC 867, White J said, at [25] to [27]:
“25 Ms Vojvodic deposes that at this stage of the proceedings junior counsel should only be briefed to settle the commercial list matter and notice of motion for security of costs. I do not agree.
26 In a usual case of commercial litigation, counsel, at least junior counsel, should be briefed early. Where there is work that can be done either by the solicitor or by junior counsel, and, as often happens, junior counsel is more experienced than the solicitor and charges at a significantly lower rate, then the solicitor's duty to his or her client is to ensure that the work is done at the lower cost. That general statement is, of course, subject to the ability of the individual legal practitioners involved. But very often one sees work done by a solicitor in a firm which could be done equally well or better at a fraction of the cost by junior counsel with considerably more experience as a litigation solicitor and with more expertise.
27 In the present case Mr Kumar charges and hourly rate of $400 exclusive of GST. He was admitted as a legal practitioner in July 2004. Prior to taking up his employment as an in house legal counsel with the defendant in 2008, he was employed as an Acting Legal Officer in the New South Wales Office of Liquor Gaming and Racing managing litigation for that department. On the other hand, junior counsel was admitted as a legal practitioner in 2002 and after almost six years of practice was admitted to the Bar in June 2008. His hourly charge is $250 per hour. Mr Kumar is not to be criticised for using counsel too much. If anything, the criticism would be that counsel is not used enough. However, that is not to say that there is any justification for duplicating work, and it does appear to me from Mr Kumar's affidavit that he has allowed for excessive duplication. As to the plaintiff's criticism of the use of junior counsel early in the proceedings, I repeat my observations in Motor Trade Finances Prestige Leasing Pty Ltd v Elderslie Finance Corporation Ltd & Ors [2005] NSWSC 921 at [28] and [29]. I adhere to the view that I there expressed, that a costs assessor should consider whether it is just and reasonable for a losing party to pay more towards a successful party's costs than would have been incurred if the successful party made efficient use of the resources of the junior Bar.”
In Motor Trade Finances Prestige Leasing P/L v Elderslie Finance Corporation Ltd & 2 Ors [2005] NSWSC 921, White J said, at [28] to [29]:
28 A matter of concern, however, is the balance of the estimated work to be done, between work to be done by the three solicitors engaged in the matter for the defendant and counsel. That is significant because the solicitors engaged in the case charge a significantly higher rate than do counsel. Indeed, the most junior solicitor, although a solicitor who is herself a senior solicitor, but only of some nine years standing, charges more per hour than does senior counsel. Whilst I accept that Ms Ball's assessment of the balance of work to be done between counsel on the one hand and solicitors on the other in preparing the matter, is likely to reflect how the work will be divided, that does not appear to me to be an efficient division of labour, having regard to the different rates of charge.
29 It was submitted for the defendants that that is an irrelevant consideration because Miss Ball says that she expects to recover seventy percent of the costs actually incurred on an assessment if the defendants are successful, and that that is the only relevant consideration. I am not satisfied that that is necessarily right. In my view, a costs assessor should consider whether it is just and reasonable for a losing party to pay more for a successful parties' costs than would have been incurred if the successful party made an efficient use of the resources provided by the junior bar…”
Although speaking specifically about commercial litigation, White J's remarks apply equally to most (I say all) litigated matters.
In a paper presented to the Victorian Bar Inaugural CPD Conference of 5 March 2011, the Chief Justice of the Supreme Court of Victoria, the Honourable Marilyn Warren, said:
“All this change in the litigation landscape happened in conjunction with another significant change, the way in which litigation was conducted. Until about the late 1980s, solicitors rarely took a step when acting for a client where there was any prospect of litigation without taking two steps: issuing a brief to counsel to advise very early on prospects, strengths, tactics; later, delivering a brief to advise on evidence – the logic being that the person who would conduct the hearing should determine the way to conduct the hearing.
By the late 1980s and early 1990s, the firms saw the opportunity to minimise, even eradicate, the need for counsel by performing the two functions themselves, keeping the work in house, and especially, keeping the cost within the firm by briefing as late as possible. Additionally, the firms approached litigation on a risk aversion basis. They must cover and promote every point just in case. The Bar largely failed to respond to this development. In commercial litigation the consequences have been dramatic.
In my experience time and again two consequences occur. By the time clients have incurred all the costs of the advice of their solicitors, the prospect of submitting to hearing is prohibitive or, when a barrister runs the case and only uses a fraction of the material collected and advised upon by the solicitors, clients are staggered by the waste and the cost. One step the Bar could take is to make it known to clients that they should brief early and that it will be economical in the long run. Why not advertise in the commercial press:
‘Have you met your barrister yet? How much is your lawyer charging you before you will see your barrister?’.
Now before war breaks out between the Bar and the firms, maybe the Bar should think strategically as to how the firms should work earlier and more collaboratively with the Bar. It should not be assumed that it is in the best interests of the client for work to be kept, and thus the cost, within the firm. Rather the client should be given the best strategic advice as early as possible. The Bar collectively needs to develop a strategy so that the client wants their barrister present during most steps along the way.”
In short: Brief Early, Brief Often.
Yours in unity,
Yet Another Junior Junior
This is exactly the kind of self deluding drivel which one would expect to get from the Bar. Junior Junior lost the argument and her client then got a costs order against them. That means they had to pay her fees and somebody else's fees, but all she can think about, is that her rate is less than the other advocate's hourly rate. Maybe she could write a letter to the Law Council of Australia about a glass ceiling or something.
Using the Bar's logic, every medical centre GP would send patients suffering from headaches to get an MRI scan, in case they had a brain tumour. This would be because some brain tumour specialist thought that if they just checked for headaches more carefully more patients could be saved, because they all started with headaches.
Legal services like anything else in a free economy, are remunerated according to supply and demand. This is 2013, barristers now migrate back to large law firms as partners.
If the bar were really concerned about clients' costs it should end its restrictive and expensive practice of not accepting briefs from clients directly. Barristers' clerks - at least some of whom are legal practitioners anyway - could even expand their services to include the litigation work normally done by solicitors.