Australia: Criminal law barristers quit legal profession in droves

The effects of the COVID-19 pandemic are still being felt far and wide across Australia, despite the fact that many businesses and industries are now open.

One profession particularly hard hit has been – criminal law.

At the start of lockdowns in May 2020, all courts had to reconsider how they were going to deal with active and upcoming caseloads, because courts are one of the busiest public spaces every day around the country, and the risk of community contamination was too great – not just with people coming and going from courthouses, but being locked in courtrooms or jury rooms (where a jury deliberates a case before delivering a verdict).

While many criminal cases, particularly those requiring a jury, were put on hold indefinitely, many courts embraced technology for other matters – using a combination of audio visual links, telephone conferencing, text and email to ensure that those people who needed access to the justice system were still able to get it.

But the pandemic has taken an especially heavy toll on criminal law barristers, with new figures showing that one in 10 are considering quitting the bar altogether due to the protracted loss of work and income.

This could significantly impact on the legal profession. Despite the fact that most lawyers will attest to the fact that they are in high demand and that pre-pandemic the courts were already suffering the strain of a heavy caseload (creating a backlog which will eventually have to be dealt with) COVID-19 delivered an abrupt cessation of briefed work for self-employed defence and prosecution barristers.

As a result, many younger lawyers considering this career path, or just embarking upon it, have come out the other side of the coronavirus pandemic feeling uncertain about the security of their future careers. The impact of this loss of talent on the profession in the long run could be heavy.

The Criminal Bar Association, (a Victorian-based organisation) recently surveyed its members and found that 69 percent of respondents were working more than 40 hours a week before the pandemic, and that conversely, 65 percent are now working 20 hours or less.

Only 5 percent of criminal barristers have enough work for full-time hours.

The financial implications are bleak, with about two-thirds of barristers reporting the loss of more than half their usual income.

One in six barristers said they were likely or extremely likely to stop practising temporarily to find other work to pay their bills, while 9.4 per cent said they were likely to quit the bar altogether.

Of course, the other concern is that many people have inadvertently found themselves on the wrong side of new public health and safety laws which were rapidly introduced earlier this year in response to COVID-19, and now need adequate representation in court.

Working in criminal law can be a highly stressful occupation, and many would think that lawyers would be happy for the break and take advantage of the downtime.

But criminal lawyers are not as highly paid as many of their counterparts in other areas of law, particularly those who regularly take smaller matters or legal aid cases. The reality is many are now facing financial duress. As sole traders, barristers are responsible for their own costs, and the financial dilemma they now face is that despite the fact that the cessation of trials and reduction of other court work has significantly reduced their income, most of their costs have remained.

And of course, with the virus still active, the question is whether courts can and will go back to 'pre-pandemic' normality. And it is not a question only faced by the justice system here in Australia – courts around the globe are currently grappling with the same issues.

Disruption comes in many forms and right now the legal profession is being disrupted. It is difficult to imagine courthouses not brimming with human life, operated by an impersonal system run completely by technology, but what the future holds remains unclear.

Gradually over the past few weeks, state-by-state the courts have been opening up with strict new post COVID-19 protocols for entry.

In New South Wales Courts strict entry screening requirements are in place, along with self-isolation protocols.

Victoria introduced judge-only trials at the height of the national pandemic a couple of months ago and these look set to remain in place for the moment, unless the new outbreak gets out of control and total lockdowns are implemented.

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