Transformation of the Legal Profession: Briefing Patterns in the Spotlight

In light of recent comments by the Minister of Justice, and the interest garnered by the lack of black counsel in the Silicosis case, transformation of the legal profession is back in the spotlight. Reforming Legal Aid may be the first step in solving that dilemma.

Background

The Helen Suzman Foundation (HSF) notes with interest reported comments by the Minister of Justice, Mr Michael Masutha, MP, that he prefers to be represented in court by black female counsel.

As reported in The Times, Masutha recently made these remarks at a symposium hosted by the Office of the State Attorney. Masutha said: ‘‘I would prefer … where I am a party as the Minister … a female counsel, preferably African … to take up my case regardless of the complexity.’’ [1] This, as the report states, is in aid of transformation of the legal profession.

While the Minister’s preference is understandable, it is not the silver bullet that many inside and outside the legal profession are looking for.

Briefing Patterns

The Government itself is partly to blame for this situation [2]. For example, in five matters the HSF has against the State, 16 counsel are employed by the State. Of those, 6 were black men, 4 white men, 3 black women, 2 white women, and 1 coloured man. This is not necessarily illustrative of overall Government briefing patterns. – but the State could have changed the mix if it chose to.  It is concerning that black female counsel – a grossly underrepresented group at the Bar – receive underwhelming State support. That the State uses the same black male counsel repeatedly may also be cause for concern [3].

Moreover, the adoption of racial or gender targets or soft quotas is questionable, especially when a case requires particular expertise or experience.  If the Government binds itself to these targets as the sole criterion for hiring counsel, it may, in some instances, find that it has foregone an opportunity for presenting the best possible argument, which is inimical to the idea justice.  Or, it may end up briefing the same small pool of (senior, trusted, expert) counsel.  In both cases, the State defeats its own broader, social aims.

Working only on the demand for counsel is not good enough for transformation [4]. It may create immediate access for historically disadvantaged groups, but it fails to address the supply issues which continue to plague the Bar. The consequences of our history are partially to blame, but so too is a lack of policy radicalism.

Systemic Issues

A combination of historical and present issues continues to make transformation at the Bar problematic. Their effect is not only to make it difficult for those who enter to the profession to succeed, but also results in many not entering in the first place. Anything which artificially reduces the available talent pool, limiting the provision of justice to the wider public, should be addressed immediately. 

First, while many of the educational issues in tertiary education are a consequence of poor primary and secondary schooling, one way the Bar could make a meaningful impact in the legal education chain is by being more honest about its role in defining academic and professional expectations [5]. Resolving what the purpose of legal education and legal training is aimed to achieve, and who bears pedagogical responsibility for it, will go some way to dealing with the gap between legal educatIon and practice emerging within the profession.

Part of transforming the Bar is having a better conception of what is required from legal education.  Thus, a recent call for by the Council for Higher Education (CHE) for comments on the future of the LLB should be taken as a significant opportunity by the organised legal profession.

Secondly, another reform could be the financing of pupil advocates. In the present system, pupil members are expected to forgo paid employment in order to complete a year of vocational training. Although, in theory, pupils can start earning after six months, the significant financial burden with commencing pupillage means that only very few can afford to pursue a career at the Bar. For parents, and black professionals, especially, pupillage can represent too great a financial risk where there is little additional or generational capital that can absorb the financial hit.

A lack of payment during that year is a barrier to transformation; the socio-economic conditions of South Africa means that black professionals are predisposed to seeking alternative employment where earning capacity is more guaranteed. The English Bar, for example, has a competitive payment model in place for pupils that, theoretically, means it is more likely to transform while attracting the brightest talent [6].

Thirdly, the reform of Legal Aid may provide another answer. At present, Legal Aid has salaried staff with burdensome caseloads that only utilise the services of counsel as a last resort. This creates the unintended incentive, wholly irreconcilable with the idea of access to justice, to settle. By-passing the in-house process and allowing junior counsel, for example, with less than a pre-determined period of practice experience, to directly compete for that work (be it mediation and/or litigation) allows them some income certainty.

In turn, this means that even if pupillage remains unpaid, averse prospective-counsel may be inclined to absorb the financial hit for one year if they can be guaranteed some form of income thereafter. This is especially the case if reformed Legal Aid briefing patterns target under-represented groups, such as black women, permitting them to earn and build a skills base more rapidly.

Stigma potentially attaching to this kind of work – and ensuring that all clients may access high-quality counsel – can also be overcome by stipulating that all new practitioners must run a minimum number of State-sponsored cases. If the old pro deo system of briefing is utilised, obviating the need for attorneys, this would halve the process and increase access to justice.

The numbers are staggering. If half of Legal Aid’s 2013 personnel cost of R900m [7], so R450mil, was assigned to the roughly 860 advocates presently at the Bar with under five years of practice (calculated using the average intake of pupils over 2010 – 2014 [LSSA Statistics. Copy on file with the author.], and assuming perfect retention), each advocate would be guaranteed R500 000 of income per annum.

Even if one catered for tiered pricing between juniors with greater experience earning more, combined with a preferential system favouring black (female) counsel, there would be enough money to sustain interest. If one capped annual earnings at R250 000, the Bar could effectively double its intake and still be able to pay new entrants a decent salary and provide greater access to justice.  The Bar’s ‘‘transformation problem’’ would disappear, almost overnight. And, given that this system would only ever operate alongside private work – rather than replace it – this solution seems obvious.

Thus, comments of the likes of Richard Spoor – one of the instructing attorneys in the Silicosis matter – seemingly justifying the lack of black counsel involved in the case as being conditioned by the desire to win, would be less likely. As NADEL rightly points out, black counsel are not seeking charity [8]. Rather, they are seeking a more equitable playing field. Their observation that winning and transformation are reconcilable aims is particularly astute, especially if one has regard to implementing reforms to give black counsel the right kind of systemic support. 

Conclusion

Minister Masutha’s intentions of promoting inclusiveness are praiseworthy. However, his wishes are insufficient to bring about serious transformation of the Bar, specifically, and the legal profession more generally. Rather, the State, assisted by the academy, profession, and civil society, should seek to tackle short-, medium-, and long-term problems through a varied and more radical suite of policy options. Better understanding the differences between education and training, paying pupils, and reforming of Legal Aid are but three options. The longer these reforms take, the longer the professional advancement of black women, in particular, will be delayed.

Kameel Premhid is a Researcher, Helen Suzman Foundation.

This article first appeared as an HSF Brief.