Barristers playing a protectionist game

The present brawling between barristers regarding their ability to talk to the media is fascinating.

I have always admired barristers for the mystique they have created for themselves, not to mention the enormous fees they can charge for their expertise.

They have created an aura of invincibility, where their words are somehow mighty weapons and their skills at finding their way through the justice system akin to navigating some deadly passage.

It is not surprising that so many television soaps and movies are dedicated to their efforts.

Of course, like any occupation, there is the regulation number of fools, incompetents and tax evaders.

Perhaps, under the circumstances, it is not surprising that this profession has more than its fair share of members who take themselves all too seriously. I recall a couple of years ago one barrister – a regular in the media limelight – threatening to report WA Business News to the Press Council because we accidentally, and wrongly, named a rival lawyer as a QC.

It always makes me reflect that, by the law of averages, barristers lose 50 per cent of the cases they take to court.

Anyway, back to the subject at hand: whether or not barristers should be able to comment on the record about cases they are involved in.

It is my humble opinion that this matter is simply one of old-fashioned restraint of trade – along the lines that prevented, in some cases still prevents, many professionals from advertising their services.

It is the sort of quaint and nostalgic practice that may have helped keep out the riff-raff at the turn of the 20th century, but it’s hard to see it belonging anywhere in modern society.

Such rules are designed to protect the status quo, which ultimately rewards those who have been around the longest. Funnily enough, it is usually those people in any industry who draw up the rules.

Admittedly, this sort of restriction does make reputation all important – a worthy aspiration and fine benchmark – but it also restricts the ability to market that reputation beyond the hand-me-down comments of colleagues and clients. We no longer live in a village or know well the people with whom we do business.

With regard to barristers speaking to the media, however, in my view there are two apparent reasons for doing so.

One is to provide a voice for their client; the other allows the barrister to advertise his or her abilities.

While television and the courts are not the same, the skill of eloquent and direct speech is handy in both and, therefore, an attractive way of presenting their skills for any barrister who wants to build a reputation and win business.

Sure, some have become a sort of rent-a-quote, but that’s business for any consultant hired by the hour these days.

It’s called public relations, and being good at it is an asset for almost everyone in business.

Naturally it should not be forgotten that, by coincidence, this is also what the client wants in many cases.

Often harassed and harangued by the media, and made to look guilty, many people facing the courts want someone to represent them and help them fight it out in that other court – the court of public opinion.

Perhaps this is part of the issue. It’s a demarcation dispute, where some barristers don’t want to do what some PR minder could do, and therefore wish to prevent their colleagues from using this avenue to fight for their client and/or promote themselves. Does such a thing belong in the 21st century?

If I were facing the courts under such circumstances, my selection of legal assistance may well be influenced by how I saw a lawyer handle the media – as most of us rarely get the chance to see them at work in the courts.

Win or lose in the courtroom, what happens outside it may be just as important.

Perhaps this is the wrong way to pick your barrister. Perhaps people ought make discrete inquiries and receive appropriate recommendations … but that should not be up to some barristers to decide.

In this day and age such professional protectionism is archaic.

A good lesson in cooperation

Western Australia has developed a strong education services sector, reaching markets throughout the world.

The origins of this industry provide a classic example of what will naturally happen when markets are left to get on with things.

WA is a rich place, which, though relatively small, could afford a strong tertiary education sector. Its security and riches were also obvious to the wealthy in neighbouring countries, where sovereign risk was high and education services were poor.

Thus we found, in the mid-1980s, increasing numbers of foreign students flocking here to study both basic English and tertiary courses.

Our state was a leader in this field and generations of young Asians may remember their time in Perth, hopefully with fondness. Two decades on, maybe some of them do business here, own property and possibly send their own kids here for schooling.

Perhaps it is not surprising that Sydney and other places played catch up and eventually passed us in this important secondary market.

Unfortunately, WA’s dominance of this market dropped off a decade ago – because other states realised what they were missing and their governments could not help but get involved.

While I am all for governments leaving well alone, there are times when we have to compete.

The state has started to get behind this sector with the Perth Education City push, but it is time that all WA’s outward looking efforts were co-ordinated.

Education, tourism, trade and technology need to be bundled as much as possible so the selling effort is focused and efficient.