Transformation of the legal profession: Briefing patterns in spotlight (quotas)

The recent decision of the Johannesburg Society of Advocates to implement a quota in favour of black/female advocates is, no doubt, well-intentioned. The Bar remains one of South Africa’s most untransformed professions. However, quotas may not be the magical silver bullet. In the short-term, it may provide immediate redress. But, long-term challenges will be how to widen access to, and guarantee retention within, the profession. 

Background

The Johannesburg Society of Advocate’s (JSA) decision to introduce a quota is a valiant attempt to draw a line under the long-simmering racial tension which has, generally, plagued the Bar [1]. The effect of the new quota is that in a team of three or more advocates, at least one must be black. The unprecedented protest by black advocates at the Silicosis hearing [2], following inflammatory remarks made by attorney Richard Spoor [3], and that 90% of  appearing counsel were white, was the catalyst for this action. Franny Rabkin noted in BusinessDay [4], this change was supported by well over 90% of the members present and voting at the JSA’s AGM.

Short-Term Redress

This is commendably decisive. It is symbolically significant: it recognises the historical, and sometimes ongoing, disadvantage black practitioners faced. Importantly, it also creates an immediate corrective measure in the short-term. 

The JSA’s ability to influence factors that may have an impact over the medium- and long-term is indirect at best. Some of these factors include:

- Education standards: black students, in particular, are being underprepared by failing state schools. For those who make it to university, and then graduate, the ‘gap’ between themselves and others may make successful practice particularly difficult. The Bar ignores a failing public education system (at all levels) at its peril;

- Pupillage: non-payment makes pupillage affordable to fewer people. In effect, it means only richer applicants could come to the Bar and, given South Africa’s intersection between wealth and race, this disproportionately impacts prospective black advocates; and

- Policy Reform: the Bar should assist the Government in finding novel policy solutions to transformation problems, such as paying serious attention to a  quasi-market reform of Legal Aid.

Concerns 

While the HSF welcomes the initiative to address the problem, we still have several concerns over how the quota system may be implemented. 

1. It potentially benefits insiders at the cost of outsiders

The Bar’s pupil intake indicates its demographic representivity could improve in the medium- to long-term [5]. But, access remains an issue. For example, an unpaid pupillage is a significant barrier to entry [6]. It benefits those who have access to capital and/or who can absorb the hit of not earning for a year. Given the socio-economic realities of South Africa, this incentivises prospective black counsel to seek alternate employment (with a reliable income stream). Payment may avoid this by attracting the best talent and creating an equitable playing field. This would also be particularly useful for those applicants who have more immediately realisable financial obligations, such as student and household debt for which they bear responsibility [7]. 

2. Government briefing patterns also need to change

Government’s choices, ironically, seem to replicate current briefing patterns [8] [9]. Select groups of advocates – notably particular black and white men – tend to dominate Government practice, with little work being spread beyond that group. This, in effect, operates as a soft quota; the preferred counsel for the State satisfy its self-imposed demand for a mix of demographic representivity and skills. As Legal

Brief recently noted:

‘‘Black advocates in the Western Cape have upped the ante in the skewed briefing patterns debate, accusing the Office of the State Attorney of playing ‘God’ by giving lucrative legal work to a preferred few. TimesLIVE notes that according to a report that black advocates are allocated few briefs from the State Attorney at irregular intervals. The work is insufficient to sustain their practices. In addition, the quality of work they receive – cases involving personal injury or litigation against police – does not enhance their skills’’ [10]

This is a clear warning. This quota is introduced, in part, to ensure a skills transfer and spread of wealth among a larger pool.  This may not occur if the over-concentration of work to particular counsel is replicated by litigants, as it is in the status quo with Government work. This is an inadvertent consequence where race is treated as a tick box consideration before merit, potentially excluding those who need to benefit from this kind of intervention. Those black advocates who are deemed relatively ‘‘better’’ in comparison to their colleagues could come to dominate the work as they are deemed more suitable to the race and skills mix than others.

3. This could freeze out black/female juniors 

The rule only comes into effect when a minimum number of advocates is employed. Assuming that the legal profession is institutionally racist and sexist, as alleged, the counter-response may be to evade the rule entirely by not briefing a third advocate. By creating a hard quota, with a punitive incentive structure, the Bar may have inadvertently worsened prospects of counsel especially where, regrettably, merit and transformation and constructed in opposition to each other.

4. This stigmatises black/female counsel as token appointments

A quota, by its nature, has the potential to cement the prejudicial belief that black/female advocates are weaker and deserve this kind of help for their own failings – not because of prejudice. This creates an undue tension between merit and transformation. As such, even if the self-interest of litigants ensures that the best black/female counsel are appointed, counsel may still be viewed as being the ‘charity’ case. Counsel in this position bear a double-burden of not only needing to match their white counterparts but to outperform them to show their worth. 

5. It may sacrifice experience and expertise

Race and/or gender quotas are potentially problematic when a case requires particular expertise or experience.  If the Government, for example, 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 case in order to comply with the rule. This is concerning given that the Government litigates at the public’s expense on its behalf. This is not particular to the State; private litigants also have to account for how they spend their money. The consequence of this rule, in its present form, may be to, inadvertently, sacrifice the possibility of winning cases so as to put strict preference on race.

6. It needs to be reconciled with the Constitution

Inherent in the right to representation is the ability to choose the best counsel that may be available and/or you can afford. The question remains whether it is reconcilable with the Constitution for counsel to be kept on a brief merely to comply with a rule that is imposed by the JSA. Without even considering the merit of the quota system or individual counsel, the tension seems whether the constitutional right of representation can be qualified by a rule of lesser standing. This is especially bearing in mind that the JSA, like other Bar Councils, is a voluntary association that can only legitimately regulate the conduct of its members.

Other Opportunities

If these concerns are adequately addressed, no reason exists to deprive this intervention of support. However, it should not stop there and other action must be taken to improve the lot of black practitioners. A quota is not the most desirable option, but the status quo is not acceptable either.  

The role that the Bar plays with respect to legal education and policy reform  also requires further attention [11].

The Bar has a far stronger role to play in the training of young practitioners so as to address the education deficit that is emerging from the schooling and university phases. Of course, the Bar should also act more boldly in recognition of the fact that it does not operate in isolation and that policy issues around quality and access at these levels should concern it too.

Furthermore, the reform of Legal Aid may be a useful change. 

‘‘(By) allowing junior counsel with less than a pre-determined period of experience, to directly compete for [Legal Aid] work allows them some income certainty. Even if pupillage remains unpaid, averse prospective-counsel may absorb the financial hit for one year if they can be guaranteed some form of income thereafter. Reformed Legal Aid briefing [should] target under-represented groups permitting them to earn and build a skills base. Stigma can also be overcome by stipulating all new practitioners must run a minimum number of State-sponsored cases’’. [12]C

Conclusion 

The transformation of the Bar is non-negotiable for democratic South Africa. In implementing these short-term solutions, the Bar should not lose focus on the other systemic hurdles it must overcome. So too, should it be aware of the potential pitfalls in the policy choices it makes. Quotas are a good example of a well-intentioned policy that could render the opposite results. Prospective black/female counsel will be better aided in their cause by making the profession more accessible and eliminating factors which could have the effect of undermining their ability to fully participate and, thus, pushing them out.

Kameel Premhid is a researcher, Helen Suzman Foundation

This article first appeared as an HSF Brief.