Cherchez les femmes

According to Bar Council records, women now make up nearly 23 per cent of barristers in private practice. However, the proportion of women practising in commercial fields is lower. The Commercial Bar Association has 756 members, of whom 105 are women, while the Chancery Bar Association currently has 714 members, of whom 117 are women.

Some women barristers believe they are victims of discrimination in the distribution of work, judging by a 1992 report Without Prejudice by management consultants TMS.

The report found that 38 per cent of women barristers surveyed pointed to their clerk as the main source of discrimination, while 30.4 per cent saw solicitors as the main source of discrimination.

By contrast, only 1.6 per cent of men barristers surveyed reported discrimination from their clerks, and only 0.8 per cent complained of discrimination by solicitors.

It is illegal to request a barrister of a particular sex. Section 35a (3) Sex Discrimination Act 1975 (amended by section 64 (1) Courts and Legal Services Act 1990) holds: "It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to a barrister, to discriminate against a woman."

The chances of barristers suing a firm of solicitors, or a lay client, for direct or indirect discrimination may be remote, but the legal machinery does exist to combat it.

What criteria are actually used in instructing counsel? An article by BDO Stoy Hayward senior consultant Mark Green, 'Instructing barristers: the solicitor's view' (The Lawyer, 24 January 1995), suggests solicitors like barristers to be 'clubbable', which has a rather masculine ring to it. Many solicitors rely on 'word of mouth' recommendations from others in the firm, from barristers or from clerks. And bigger firms and in-house legal departments have lists of counsel; one solicitor told me last year that she was surprised how few women featured on her firm's list.

But, in the absence of objective research, it is not possible to say whether women at the Bar are really being overlooked.

One option for firms and in-house legal departments would be to conduct regular reviews of their counsel's lists, as part of a wider overview of the services they get from the Bar, and I expect some firms already do this. They have a commercial incentive to ensure they are getting value for money.

Reviews should look at areas such as the criteria used when selecting counsel, whether present counsel is providing an adequate service, whether there is any overcharging, and whether the number of women on the list is consistent with the number of women barristers practising in the field.

Such internal reviews should ensure talented women at the Bar are not overlooked, as well as being of wider assistance to those who use counsel.