This story in Sunday Times raises some interesting issues. On the one hand black lawyers (and advocates in particular) have not had such an easy time even in the new South Africa. Advocates work on a referral basis so it is not easy for new advocates and unknowns to break into the profession and develop enough of a following to build a sustainable business and on the other hand I have heard talk about black advocates who are really just sitting back and waiting for the extra work to roll in and the subsidies some of them receive to be paid over.
The Legal Services Charter is intended to force change in the attorneys profession, which is not exactly thrilled about change generally speaking and I support that initiative. If the profession is not going to change then it must be changed. The alternative is a legal profession which has lost touch with modern South Africa and that is not always a good thing. On the other hand, some things can’t be changed by this sort of regulation. Some changes need to be addressed at a more personal level. The Charter in its present form will require law firms to give 40% of their work to black advocates by the end of the year and 60% of their work to black advocates next year. Considering that there are around 2 000 advocates in South Africa, of which a small percentage is black, I wonder how effective these requirements will be. For one thing, a small percentage of 2 000 advocates getting 60% of the legal work going around could well lead to a totally overwhelmed group of black advocates, even assuming they all put their heads down and get stuck into their work. I also wonder how black lawyers really feel about having all this work just given to them without regard for their competence. I am just thinking about a conversation I had with a colleague a while ago about no regard being given to his abilities as a lawyer and people being fixated on his race. It doesn’t do these lawyers any favours if you don’t recognise their talent in my opinion. Sure, give them work as a black economic empowerment initiative but recognise their ability to do that work.
The Charter doesn’t seem to have addressed another big issue and that is that the government itself isn’t playing the game by giving work to black firms. If they did that, the work would filter to black advocates organically. I suspect the government tends to give their work to the larger firms which may have black executives but are hardly black firms. I remember this issue of briefing black advocates being brought up a couple times when I was at my last firm and that must have been a good 2 to 3 years ago and I don’t know that much has changed in the profession as a whole since then. When the chips are down, attorneys tend to brief the advocates they know and those tend to be the same white advocates who have been getting work for a little while now. Then again, I could be wrong. I haven’t been in a corporate legal environment for a year and a half or so.
If the Charter is going to work, its targets really need to be realistic and the government needs to come to the party and put its money where its mouth is. Otherwise we are going to wind up with a clogged machine (well, more clogged than it already is) that just won’t work.