I have a confession to make. I plead guilty as charged. I admit that I am a white male establishment lawyer. I practised for 35 years as a partner of a prominent attorneys firm specialising in the field of intellectual property law (“IP”). Thereafter, upon retirement, I became a Professor of IP Law.
This makes me a member of that heinous and much vilified group of lawyers who are charged with the crime of wishing to preserve its privileged position and therefore overtly or covertly being against transformation in the legal profession and willing to practice deceit and manipulation in order to achieve its goal. On this charge I plead not guilty. I will set out my defence below.
To begin with, I am accused of guilt by association. The fact that there may perhaps be some guilty individuals in my group (I personally have not met any), does not mean that the whole group is guilty of the crime. Sweeping generalisations do not constitute evidence. Hard facts are what are required. If some members of my group appear to have transgressed, let’s have the specific facts on which the charge is based and the matter can then be addressed.
Before the new dawn of 1994, and before the advent of any express policies of affirmative action or transformation in the legal profession, I recognised the need to bring people of colour into the IP legal profession. It made good economic and business sense apart from considerations of fairness and redressing previous imbalances and wrongs. My firm and I began actively recruiting black articled clerks or candidate attorneys (“CAs”). We were fortunate to acquire the services of some excellent candidates and we devoted considerable time, energy and resources into giving them the best training and opportunities that we could muster.
Past experience with CAs has shown that many of them graduate to becoming attorneys, a significant proportion use the training to acquire basic skills and experience to become advocates, while a small minority move on to the corporate and business world. However, with black CAs the trend proved to be different. I personally trained around ten CAs and not one of them remained in legal practice, either as an attorney or at the Bar as an advocate. They were all snapped up by big business, which were prepared to offer remuneration packages well beyond what law firms could afford. Consequently this excellent training ground failed to produce good legal practitioners that could be fed into the legal system. This was not, however, for want of trying on our part.
Despite this trend, I am happy to say that my firm has managed to produce a few first-class black practitioners, but way too few to meet social and political needs. The firm currently has a black female Chairperson (who holds the position on merit) and another black female partner has served with distinction as President of the South African Institute of Intellectual Property Law, the professional body that regulates the practice of IP law.
The manner in which expertise and excellence is developed in the legal profession is from the bottom up. This has worked well since time immemorial. Young talent in the attorney’s profession and at the Bar is nurtured and it blossoms in due course, giving rise to first-class practitioners who can achieve fame in the profession and go on to become judges. This is what I and my colleagues have sought to achieve with black CAs. However, we have been frustrated in our efforts by the diversion of the stream of black talent away from the professions and into commerce. The system has not been fed with the requisite supply of black talent.
The process that I have described is a gradual one. Talented black lawyers cannot arrive overnight. In this situation one establishes a foundation and then constructs a magnificent building on it. The going has unfortunately been slow and this is where the problem lies and needs to be addressed.
As an attorney one owes a duty to one’s client to deliver the best possible service and results for the client’s benefit. One’s standing as an attorney is dependent on the extent to which one can measure up to this standard. The client’s interests are best served by delivering good results. I seriously doubt whether anyone would challenge this assertion. This means that the best people available must be mobilised in the process. An attorney who utilises personnel that are less than the best available in all the circumstances when dealing with his client’s interests is not doing his job properly.
Whenever I briefed an advocate in any matter that I was handling, I always chose the person best suited for the matter and whom I considered was best qualified to do the job. Although English speaking, I was not influenced in any way be the language or cultural or ethnic group to whom the person belonged, or by issues of gender. Such issues were irrelevant. The guiding principle was the ability of the person to do the job on hand well. In this way I would best serve the interests of the client.
I have given mentoring and developing black talent my best shot. I believe that the black lawyers whom I have mentored over the years will testify to this. I have been willing to assist them wherever possible and to challenge them in order to promote their progress. I bent over backwards to give them opportunities commensurate with the level of their ability and experience. I subscribe fully to the objective of bringing about transformation and creating a corps of black lawyers who are well versed and experienced in IP matters. However, I stop short of utilising lawyers, particularly in litigation, no matter whether they are black or white, male or female, or to which language group they belong, if they are not in the here and now able to deliver the best possible service to my clients. When it comes to the crunch and to delivering the goods, I want the best person for the job (even the President seems to subscribe to this principle).
I am in no way exceptional. My peers in the profession think and act along the same lines that I do. It is the only way in which one can conduct a proper legal practice. It is unfortunate and regrettable if this means for the time being that black lawyers, particularly at the Bar, are not featuring to the extent that one would want. I have no doubt that things will change in due course but it is an evolutionary process. The secret lies in training and mentoring and this is the area on which we should concentrate.
And that, dear judge and jury, is my defence to the second charge levelled against me by association. I say that this defence refutes the claim that there is an elite group of which I am a part that is seeking to perpetuate its privileged position. It is up to you to decide whether or not I am guilty as charged.
* Professor Owen Dean is the incumbent of the Anton Mostert Chair of Intellectual Property Law at Stellenbosch University.