The Growing Trend Towards Direct Briefing of Counsel by In-House Lawyers

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A trend towards in-house counsel briefing counsel directly is evolving in both Australia and New Zealand, following the increased growth and sophistication of in-house legal teams in both countries.

Australia has around 30 per cent of its lawyers working in-house and New Zealand is closing in on that number with around 25 per cent working in-house.

In-house legal activity is growing steadily across Australia and New Zealand, as companies cut down on outsourcing their legal services, thus providing increased power to legal department, including in the briefing of counsel.

A report in LawyersWeekly indicated that the NSW Bar Association saw in-house counsel as being a ‘crucial participant’ in direct briefing barristers at an early stage in dispute resolution processes.

The NSW Bar Association has just rolled out a “Direct Briefing Toolkit” on its website, which aims to assist in-house counsel in further developing their relationships with barristers.

The ‘toolkit’ includes a guide on helping in-house lawyers to identify key issues that they need counsel to focus upon, guides to assist with chronologies of events and other information intended to bring barristers up-to-date quickly with issues, as well as ensuring nothing is overlooked.

Similarly electronic briefing is increasingly popular, some barristers preferring them to having folders spread throughout their rooms.

New Zealand Changes

And in New Zealand, the New Zealand Bar Association is keen to educate in-house counsel on the benefits of direct briefing.

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Sian Wingate, (left) the President of the In-House Lawyers Association of New Zealand (ILANZ) said the group are working closely with the Bar Association to achieve this objective.

Ms Wingate reflects that when conducting one-to-one interviews with a number of General Counsel and Chief Legal Officers in New Zealand earlier this year for their ILANZ Trends Survey 2019 conducted in conjuction with Deloitte, the trend of direct briefing was not yet embedded in New Zealand’s in-house profession.

“Most NZ legal teams still brief via their external panel law firms.  However, the NZBA (the National Bar Association of New Zealand) has been keen to educate in-house counsel on the benefits of direct briefing. ILANZ has been working closely with NZBA to assist it with this objective,” she told LawFuel.

Crucial Participants

According to the NSW Bar Association, in-house counsel has become a “crucial participant” in the evolving market for legal services, and is “increasing driving change by briefing barristers directly at an early stage in the dispute resolution process”.

“More and more, increasingly sophisticated in-house lawyers, often with several years of experience in private practice themselves, recognise that barristers can bring real insight and value for money to the table as commercial disputes emerge and develop,” said Robert Carey of 7 Wentworth Selborne.

“Numerous publications have noted steady growth in the practice of direct briefing by in-house counsel over the past four to five years. But as more intractable disputes develop over time, this change in practice has not necessarily come at the expense of more traditional relationships between law firms and the barristers that they regularly instruct.”

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