Transformation of the Legal Profession: Briefing Patterns in the Spotlight (Legal Aid)

This brief addresses transformation of the legal profession through the reformation of Legal Aid. This policy option may be unpopular in some quarters but could provide answers to the Bar’s problems. This brief is occasioned by correspondence between the author and a high-ranking official at Legal Aid, and demonstrates the need for radical policy thinking to address complex societal problems.

Background

The current scrutiny for a lack of transformation being brought to bear on the legal profession, and the Bar in particular, requires a radically different policy response. It is clear that the status quo is not working. Despite twenty-one years of democracy, the Bar is still white-dominated throughout its ranks. There is no better demonstration of this by the recent appointment of 18 Senior Counsel from the Cape Bar. Only 4 were people of colour. None were black [1].

The appointment of Senior Counsel (‘‘silk’’), some argue, is a question of merit. Ergo, there may have been no deserving black candidates. That would be fair if merit – what constitutes it and how we evaluate it – were completely neutral [2].  Merit is influenced by exogenous factors, mostly as a result of a birth lottery [3]. Race in South Africa, as a proxy, is, still a significant determinant of socio-economic realities. This is particularly notable with respect to access to quality education and subsequent life trajectory. 

Given that Silk is largely determined by seniority, retention of junior advocates is an underlying factor that influences who qualifies. There have been several high profile clashes at the Cape Bar over how briefing patterns are used to further the career of white advocates at the expense of black practitioners [4]. If advocates do not get work then they do not earn and they usually do not remain within the profession. If anything, this problem is structural and institutional. 

As the Cape Times reported [5]:
 

The Cape Bar has admitted it has delayed tackling slow transformation because briefing patterns “continue to favour white male counsel”. Cape Bar Council chair John Butler said ensuring that black junior advocates had access to non-State work was a major challenge and admitted there had been delays in addressing the problem.

The Johannesburg Bar has recognised these challenges and introduced a quota system to ensure a transfer of skills and spread of wealth. However commendable, that is not a silver bullet [6]. 

One of the viable policy recommendations to address this problem  – in addition to intervening in legal education and creating a paid pupillage system – is the ‘quasi-market’ reform of Legal Aid South Africa.

What is Legal Aid?

Legal Aid describes itself as follows [7]:

‘‘Legal Aid South Africa is an independent statutory body established by the Legal Aid South Africa Act 39, 2014, as amended. The aims of Legal Aid SA are to: (a) Give legal aid or to make legal aid available to indigent persons within its financial means; and, (b) Provide legal representation at State expense, as set out in the Constitution and relevant legislation giving content to the right to legal representation at State expense. It does this in an independent and unbiased manner with the intention of enhancing justice and public confidence in the law and administration of justice.’’
 

It is, as Brian Nair, Legal Aid’s National Operations Executive, put it, one of the best state funded entities with an impressive output.
 

‘‘Legal Aid SA is a significantly transformed organization. We have grown from being a small organization that relied mostly on Judicare practitioners to one with over 2 700 employees, of which 79% are legal staff. We have 64 Justice Centres and 64 Sattelite offices in 6 regions throughout the country. In the last financial year, we provided legal representation in  448 195 cases as well as assisted 394,172 clients with general legal advice. This year, we achieved our 14th unqualified audit. We have been recognized by the Ministry of Justice as well as the Portfolio Committee on Justice as one of the shining lights within the justice cluster. In addition to providing access to justice to our clients, Legal Aid SA has made a significant contribution to providing access to the profession as well as to the transformation of the profession. We are currently the largest employer of legal professionals and is generally regarded as the biggest law firm in the country.’’ [8]

Why Reform?

Merely because Legal Aid has an impressive output does not immunise it from being reformed. This in no way detracts from the laudable work that Legal Aid does.  Rather, it questions whether the status quo can be changed so that transformation – including greater access to the profession – can be better facilitated. 

Proposal

‘‘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 work 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 permitting them to earn and build a skills base more rapidly.

If half of Legal Aid’s 2013 personnel cost of R900m, 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, assuming perfect retention), each advocate would be guaranteed R500 000 of income per annum. Even if one catered for tiered pricing, 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. 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.’’ [9]

Access to the Profession

Whether Legal Aid should be ''regarded as the biggest law firm in the country'' [10] is a question of appropriateness. Even though the admitted attorneys in Legal Aid's employ are included on the roll of attorneys, it is questionable whether they should, instead, be in private practice, where the need for transformation is more acute. Transformation is not merely about increasing the overall number of lawyers of colour in practice, generally, but increasing the representation of previously disadvantaged persons in the private sector.  It would be farcical if increased access to, and representative change of, the profession were as the result of hugely increased State employment of people of colour. That would, ironically, leave white-dominated private practice untouched. This underscores why regarding Legal Aid as South Africa's biggest law firm is problematic.

The challenge is, then, how to create greater demographic balance.  

The reallocation of State money from one service provider (Legal Aid) to another (new advocates) is not a silver bullet. Evidence suggests that the State itself is complicit in briefing more white advocates than black ones - in spite of complaining of a lack of transformation. Assuming these institutionally racist briefing patterns are repeated in the private sector (as is alleged) then new black advocates are grossly disadvantaged.

The point is: Legal Aid's budget is a bucket of money that can be used to create certainty of income generation for new (black) advocates. This certainty can make it less personally financially risky, as well as afford black advocates the opportunity to gain important skills (acquiring the merit they are often accused of lacking).

Considering that the transformation of the Bar is also closely associated with transformation of the Judiciary (itself balancing the tension between merit, access, and representivity) means this deserves even greater attention.

Job Losses and Political Will

Should these proposals be adopted, it will mean cutting Legal Aid's budget and, accordingly, reducing its overall number of employees. This would be in aid of the Bar being able to direct income to new practitioners and/or significantly increasing the pool of new entrants to the profession. Potentially some – or many – of those retrenched by Legal Aid could also transition to the Bar. Given the former’s large employment numbers (especially of people of colour), the latter would only stand to benefit from creating a special dispensation that facilitates the move.

However, budgetary constraints mean that maintaining Legal Aid at present levels and utilising this model to transform the Bar cannot happen. This is because of huge fiscal pressures on the Government to dedicate additional funding to new Bar entrants. Job losses in one sector are regrettable, but that may be justified if they are gained in another. Which of those sectors is given priority depends on what the Government attaches greater value to. It requires a normative/value judgment and an economic analysis of where its money is best spent and what it should achieve. 

But, prospective job losses incurred by Legal Aid may not be as extensive as anticipated. First, only half of the budget in this proposal is earmarked as being redistributable because income underwritten by the State should supplement, rather than replace, private practice. Second, Legal Aid’s present ‘practitioner-per-court’ model need not be entirely abandoned. The remaining half of the personnel budget could go towards funding Legal Aid to act as 'collection points' for cases to be prepared before being handed to advocates. This could streamline Legal Aid’s work and, perhaps, enhance their case load management as they need not spend a significant amount of time involved with individual cases to the exclusion of others.

Conclusion

These proposals do not amount to the privatisation of Legal Aid. They recognise that the State does have an obligation to pay for access to justice where people cannot pay for it themselves. Rather, it is to suggest that if State money is going to be used, it can be done so in a strategic way that better facilitates transformation and is more efficient  – themselves worthy societal goals. 

Kameel Premhid
Legal Researcher
kameel@hsf.org.za

Resources
[1] http://www.iol.co.za/news/crime-courts/minister-fumes-over-cape-bar-s-new-silks-1.1948933 
[2] http://theconversation.com/the-problem-with-merit-based-appointments-theyre-not-free-from-gender-bias-either-45364\
[3] http://theconversation.com/the-myth-of-merit-and-unconscious-bias-18876 
[4] http://www.bdlive.co.za/national/law/2013/05/17/maritime-laws-little-closed-shop-of-racial-horrors 
[5] http://www.iol.co.za/capetimes/cape-bar-patterns-favour-white-males-1.1950347#.VlW3gXYrKUk 
[6] C/Ref brief 2
[7] http://www.legal-aid.co.za/?p=16
[8] Extract from correspondence. Copy on file with the author.
[9] http://hsf.org.za/resource-centre/hsf-briefs/transformation-of-the-legal-profession-briefing-patterns-in-the-spotlight 
[10] Note 8 above.