The Irish Times today reports on a fairly  dramatic, in fairness disparity between male and female barristers’ fees for State work.

We asked Legal Coffee Drinker, what’s it all about.

Broadsheet: “Legal Coffee Drinker, what’s it all about?”

Legal Coffee Drinker: “The Irish Times has obtained barrister fee payment data from the Attorney-General’s office showing an apparent disparity between male and female barristers in the divvying out of the very substantial sum expended by the State on barristers’ fees. On an average per-brief basis, female barristers earn substantially less, only 86% (Junior Counsel) and 88% (senior counsel) of the payment per brief given to male barristers.”

Broadsheet: “So why are women earning less per brief?”

LCD: “The first possibility is that they are being paid less than men for the same type of work and the second is that they are getting less complicated and lower-paying work than their male colleagues.”

Broadsheet: “That doesn’t sound fair at all.”

LCD: [pause] “It may or may not be unfair. For example, let’s take the first scenario – that women barristers are being paid less than men for the same type of work. Barristers are normally requested to give a fee quote in advance – in other words – where there are no set fee scales, they put forward their own fee. Could the explanation be that women are simply quoting more moderately than their male colleagues? And is moderate quoting a bad thing in this context?
Moving on to the second possibility, that male barristers are getting more complicated work, we again need to ascertain the reason for this. One matter in particular needs to be considered in relation to the disparity in fees and that is gradation of experience. For instance, the data cited shows that the number of female senior counsel instructed has almost doubled (9% to 15%) in the past ten years; the number of female senior counsel generally has also increased during that period. It may or may not be the case that the more complex and lengthy briefs are going to male Senior Counsels not because they are male but because of their more lengthy experience as Senior, either in respect of State work or generally.
It also takes time for cases to be heard. A substantial part of fees in relation to a case are still paid only after the case is heard. As such, increased fees arising from increased instructions may not necessarily show up in data for a number of years after the instruction. A relevant consideration would be whether or not the briefs looked at by way of comparison were completed briefs or relate to cases which are still ongoing.”

Broadsheet: “Would you say…”

LCD: [Interrupting] “One further explanation – which could apply to both Senior and Junior fee disparity – is that certain areas of law might involve higher fees than others, depending on the nature of the State work involved. A higher concentration of women seniors in an area of law with relatively low per-brief fees could be an explanation for the average per-brief disparity.”

Broadsheet: “What information would we need to know if there is actually discrimination [as between Junior and Senior Counsels]?”

LCD: “Ideally, you would take each area of State work individually, identify the percentages of male-female seniors/juniors being instructed in respect of such work, and the extent to which these percentages have changed over the previous four years – I say four years to take into account both the delay in receiving fees for cases and also in instructing on the most complex cases. If it is an area in which there has been a significant increase in the percentage of females receiving instructions over the past four years, perhaps keep it under review and look at it again in a couple of years to see if the discrepancy has resolved itself.”
If, on the other hand, it isn’t an area where there has been a recent increase in the number of women instructed, well then this bears more detailed examination to rule out discrimination, subject to the qualification that a non-lawyer may regard a gender disparity in lawyers’ fees as one of overpayment rather than underpayment!”

Broadsheet: “Controversial….Anything else?”

LCD: “Firstly, the Irish Times says it is hard to get a gender breakdown of entrants to the profession. But the electronic list of barristers on the law library website  gives each barrister’s name, year of call to the Outer and (if appropriate) the Inner (Senior Counsel) Bar, and – in many cases – accompanying photo. It should be fairly easy, from this to work the gender breakdown of entrants to the Outer or Inner Bar in any given year. [Drains coffee].
Secondly, the data discussed in the Irish Times article was obtained from the Attorney-General’s office via a Freedom of Information request made under the Freedom of Information Act 1997. Anyone, by making a similar request, can get the same information, and analyse it themselves. The Freedom of Information facility is a great way to find out more about the workings of the State and every citizen should be aware of it. Read more about it here.”

Broadsheet: Thanks Legal Coffee Drinker. You made that understandable and reasonably ‘brief’!

LCD: “Right. Bye.”

Barrister fee records reveal scale of gender inequality (Elizabeth Fitzgerald, Irish Times)