He asked how the profession could ensure that these individuals also had access to these opportunities.

Necessary transformation

The South African Legal Fellowship Network celebrated its ten years of existence with a seminar titled ‘Transformation in the corporate legal sector in South Africa: Challenges and opportunities’.

The seminar was held in partnership with the Cyrus R Vance Center for International Justice (Vance Center) at the University of the Witwatersrand’s School of Law in May.

The programme included a keynote address by former Chief Justice Sandile Ngcobo and a presentation on the results of a recent survey on the demographic composition of corporate law firms by senior projects manager at research company Plus 94 Research, Veronica Dessein.

The programme also included three panel sessions on the topics of recruitment, training and development; black corporate law firms – challenges and opportunities; and the role of the corporate and government sectors (as clients) in advancing transformation.

Judge George B Daniels of the United States (US) District Court for the Southern District of New York delivered the concluding remarks at the seminar.

Time for transformation

Justice Ngcobo opened his address by saying that delegates were participating in a discussion on one of the most important topics that members of the legal fraternity have been required to apply their minds to since the advent of the Constitution.

He noted that the seminar occurred at a time when there was a countrywide debate on the role that transformation should play in selecting judges; when a black advocate was accusing Cape Town attorneys of not affording him briefs in maritime law cases;

and in the context of South Africa’s increasingly interdependent economy.

He said that the country was viewed as a business gateway to Africa and, as a result, economists had predicted an increase in investment, which would require skilled corporate lawyers to deal with these developments. He added that this work was unlikely to be offered to previously disadvantaged individuals who lacked the necessary expertise due to the country’s past.

He asked how the profession could ensure that these individuals also had access to these opportunities.

Transformation, in Justice Ngcobo’s view, is the key to unlock these opportunities for

previously disadvantaged and physically challenged individuals. This, in turn, would

lead to exposure to these opportunities to black lawyers and to the selection of

previously disadvantaged corporate law judges, who would be equipped to deal with

such matters.

Why transformation is necessary

To demonstrate the need for transformation, Justice Ngcobo quoted from the preamble of the Constitution.

He added: ‘We need to transform our society as envisioned by the Constitution that introduced a new constitutional order with values, which our democracy is made of.

Human rights are at the heart of transforming our institutions, including law firms. We need to recognise that, at the eve of our democracy, we had one of the most unequal societies in the world, that included unequal employment opportunities. The Constitution has put in place measures that are designed to address matters of the previously disadvantaged so that they can enjoy what the country has to offer. … Transformation is required by the Constitution.’

Transformation challenges

Justice Ngcobo said that it was encouraging to see that the policies and charters of some major law firms recognised the need for transformation; however, the pace of transformation was ‘incredibly slow’. He added that previously disadvantaged individuals were still ‘grossly underrepresented in major law firms’.

He highlighted the need to translate policies and charters into effective means of transformation so that black female lawyers were recruited. He questioned why experienced and qualified black female attorneys could not be retained over a long period of time at law firms. In his view, the environment in firms was not conducive to retaining black female attorneys.

He said that, although barriers at law firms for previously disadvantaged individuals had been removed and there were no prejudices in hiring, unofficial biases remained, which were deeply embedded in society. He added that this was one of the hurdles that undermined transformation. Justice Ngcobo acknowledged that biases would not

‘disappear overnight’, as this was ‘too much to expect of human nature’.

Justice Ngcobo added: ‘Stereotypes are a manifestation of prejudices of the past … . The challenge facing transformation is to address biases. It is one thing to proclaim transformation in policies; it is another to develop a strategy that focuses on recruiting previously disadvantaged women and have a work environment that will promote the transformation policies.’

Justice Ngcobo cited ‘group favouritism’ as a challenge relating to transformation. He

said that, on the surface, there was nothing wrong with group favouritism, but this

restricted the allocation of work. He added that group favouritism was compounded if

the relevant decision-maker had a negative experience with a particular previously

disadvantaged group.

‘Everyone then gets painted in the same brush,’ he said.

Justice Ngcobo advised law firms that, when making decisions, assigning work, evaluating employees, making promotions and setting standards, they should consider their past prejudices and judge individuals on their own merit.

He added that in most firms there tended to be a previously disadvantaged ‘superstar’, who was the ‘ideal candidate for transformation’. He said the disadvantage of this was that other previously disadvantaged individuals were measured on the ‘superstar’s level’

and not on their own merit.

Diversifying law firms

Justice Ngcobo said that clients were diverse and, therefore, ‘as lawyers, we need to be diverse to attract these clients’, adding that some firms recruited black female attorneys with the hope of attracting black economic empowerment deals.

In this regard, he said: ‘The presence of black female attorneys may bring more work and opportunities, but is it sustainable? We overlook the vital need to create an environment that is conducive for women to work in. Firms tend to reduce transformation to money and ignore the social responsibility to remove prejudices.’

He added: ‘Eventually, the previously disadvantaged individual will leave the firm. When [he] leave[s], people in the firm will say: “He was just not the right fit” or “he was not committed enough”. Law firms fail to ask themselves what they could have done differently to retain the individual.’

Strategy for transformation

To develop a strategy that promotes transformation, Justice Ngcobo said: ‘Experts say that an initiative that promotes transformation that is sustainable is a long process of systematic change. The change will either support or create barriers; therefore, the results must be shared and discussed. A transformation plan must be developed to include education and training to increase the ability to interact with people of different cultures and socio-economic structures. There must also be feedback on the training.’

In conclusion, Justice Ngcobo said that firms must be willing to bring their policies in

line with transformation, adding: ‘Flowery words and impressive websites will not do

the job. The plan must have measurable goals. Firms must recognise that the same

system that led to the success of the firm might be the very same thing that

undermines transformation. The only thing[s] that should remain sacred are the core

values of the firm; everything and anything else can be changed if it undermines

transformation.’

Adding to Justice Ngcobo’s comments on developing a strategy for transformation, Judge Daniels said that it was important for firms to note that transformation did not entail employing someone who failed to meet the firm’s standards. He emphasised the need for firms to have a realistic assessment of what they were capable of and to recognise areas of weakness, so that these could be worked on.

In closing, Judge Daniels said that black practitioners should not expect law firms to make acquiring a job easy for them. He said: ‘It is not meant to be easy. … Stop thinking you should get the job because you deserve it; you should get it because you have earned it. Do not have a sense of entitlement.’

Demographics of corporate law firms

Presenting the survey findings, Ms Dessein said that the survey examined the gender, race and disability distribution of employees at large corporate law firms across various levels of employment (from candidate attorney level to managing partner/chief executive officer (CEO) level).

In selecting the participating firms, Ms Dessein said that Plus 94 Research had identified firms across South Africa with corporate law as their main source of business and which employed 20 or more legal professionals. She added that the final list consisted of 51 firms; however, only 12 firms agreed to participate in the survey.

Ms Dessein said that the findings showed that there were fewer females in senior positions compared to males across all race groups. She added that even though females made up 53,4% of legal professionals employed at the participating firms, they were employed in fewer senior roles.

She said that there were more than double the number of white females compared to black females. There were more white females in more senior positions; almost 26%

of equity partners were white females, while 5% were black females. She said the only females at managing partner level were white and there were no female CEOs.

She added: ‘There are more Indian females employed at senior levels as compared to black females (only 3,2% of black females are employed at salary partner level as compared to 10,7% of Indian females), but less compared to white females (22,5% of white females are employed at equity partner level). There are very few coloured females employed at senior levels (salary partner or more senior). … Most black females are employed at candidate attorney level; 23,6% at first year and 24,5% at second year.’

Ms Dessein said that males made up 46,6% of employees at the participating firms. She

added that more than half of all males at firms were white and males dominated senior

positions. She noted that 45% of salary partners, 53% of equity partners, 72% of

managing partners and 80% of CEOs at the participating firms were white males.

Finally, Ms Dessein said there were very few disabled lawyers employed in the participating firms, at 0,6%.

Mapula Sedutla,

mapula@derebus.org.za