Report: Transformation of the legal profession

November 1st, 2014

By Nomfundo Manyathi-Jele

The Centre for Applied Legal Studies (CALS) in partnership with the Foundation for Human Rights has released its final research report on the Transformation of the Legal Profession project. The research was conducted from 15 February to 31 August.

The research indicates that across the profession in Gauteng, lawyers are experiencing a range of hostility and exclusionary conduct based particularly on race and gender. CALS believes that this hostility is causing the stultification of excellence and the effective repression of talent in the profession. De Rebus news editor, Nomfundo Manyathi-Jele, analysed the findings and compiled this article.

The report states that the objective of the research was to engage directly with members of the profession, at various stages of their career, in order to –

  • identify some of the impediments to the advancement in the profession; and
  • identify potential interventions that could mitigate these specific barriers.

The research looked at the experiences of legal academics, practising as well as non-practising attorneys and advocates and was conducted in Gauteng.

The report states that the research was not designed to be conclusive evidence regarding transformation in the legal profession but rather, to test the accuracy of the assumptions identified. Three methodologies were used in the research, namely structured discussion groups involving 26 participants, semi-structured individual interviews involving 15 interviewees and electronic surveys with a sample size of 62 respondents.

According to CALS, all three methodologies used yielded consistent evidence that affirms that sexual harassment and the intersection between gender and race discrimination are factors that impede advancement in the legal profession.


Some of the findings of the report included –

The data indicates that while black women experience the same types of gender discrimination as their white female colleagues, they also experienced a different and additional form of discrimination because of their race. Similarly, the experience of racial discrimination is similar to that experienced by their black male colleagues but there too, there is a different and additional form of discrimination based on their gender. Participants noted that the experience of discrimination based on race is different from that based on gender. Where one is part of the racial and gender minority, a most particular type of discrimination is experienced.

According to CALS, the research data shows that gender tends to be seen as less important in the process of transformation than race. The prejudice against a person based on both gender and race, was not addressed by the project of racial transformation. Black women can face both discrimination and prejudice because of their race and their gender. As a participant noted, it seems that while white women suffer from sexual harassment throughout their careers, black women suffer from both sexual harassment and gender discrimination. As a result of this intersection of discrimination, there are fewer successful black women than white women, and this appears most manifestly on the Bench. A participant noted that it is particularly distressing that the Constitutional Court, which is the guardian of our Constitution, does not appear to be transformed for black women, and that this does not bode well for black women.

Certain participants at the Bar observed that the experience of being at the Bar is significantly different for black and women advocates because they feel like a cultural minority. They said that people talk in a particular way and socialise in a particular way, and work flows as a result of socialising.

According to the report, due to racism, prejudice and pre-conceived notions of ability, or inability, many black legal practitioners believe that they have to ‘work twice as hard’ to disprove these negative assumptions but, even in doing so, they only get ‘half as far’ as their white counterparts due to racism, prejudice and pre-conceived notions of their capabilities.

The participants from the Bar noted that the Johannesburg Bar Council has not adopted either a maternity leave or a sexual harassment policy, but has recommended instead that such policies be adopted by individual groups. They noted with concern that this lack of leadership from the Bar Council is indicative of the established hierarchy of the Bar, and the cemented traditions where women’s views and positions are not taken as seriously as those of men.

Participants made nuanced references to respect. A number of female participants observed that they feel that although they are taken seriously within the workplace, they are not taken as seriously as their male colleagues. One participant remarked that she had felt that she was taken seriously throughout her upbringing, until she began working in a law firm. She noted that this is endemic to the legal profession, and not specific to any one firm.

For example, senior members of the profession will assume that, as the only woman in the room, the female staff member will make the coffee. The same participant noted that 90% of the time, she is the only woman in the room. Her supervising partner ensures that either he or the most junior person in the room makes coffee. However, other partners tend automatically to assume that, as the only female present, she will make the coffee.

Gender discrimination and reproductive rights

According to CALS, gender discrimination on the whole seems to be accepted in the legal profession, particularly when it comes to pregnancy. One participant spoke of the tension between her desire to try to become a director or partner in her firm and her desire to start a family. She does not know if these two goals are compatible. Another participant described one incident where a woman had disclosed her pregnancy to an employer and had been asked what she was ‘going to do about it.’ The strong implication was that she needed to terminate her pregnancy, or lose her job. According to the electronic survey, no respondents had requested unpaid maternity or paternity leave but this may be because none of the respondents had been expecting a baby.

The report states that prejudice and exclusion may not always be deliberate or conscious. Male and female junior associates in law firms noted vastly different experiences, as did white and black attorneys. Some participants observed that, within the law firm context, seniors tend to be dismissive of juniors as a whole but still treat white males better than their black or female colleagues. Instances of preferring white junior counsel over black junior counsel continue to occur. Both clients and the senior counsel will more readily listen to the white junior than to a black female junior.

There was also recognition that prejudices are often unconscious or unintentional. Some female participants noted that prejudice is not always apparently negative, for example, male senior partners may be ‘protective’ of their female juniors, treating them more like a daughter than a professional colleague. This facially-neutral practice becomes negative, however, by undermining the female junior and categorising her as a child in a parent-child relationship. This practice, and its unintended paternalistic side-effect, was acknowledged by male participants.

Some participants from the Bar observed that a good relationship with an attorney, which is encouraged by social interaction, leads to more work. But, there are limited opportunities to socialise across race, which restricts briefing patterns and some participants noted that attorneys tend to brief counsel that look like they do.

According to the report, a black female candidate attorney reported being told that she would ‘never be like’ her white male counterpart and while he is taken to meetings, she is sent to make deliveries and photocopies. She observed that her colleague attended the same school as their supervisor, and believes that there was a pre-existing relationship between them, which influences their interaction within the professional sphere.

CALS noted that as participants related their experiences, it became apparent that sexual harassment is a problem across the profession with insufficient structures in place to address it; insufficient understanding of the range of behaviours that constitute sexual harassment; and a lack of understanding of the manner in which it impedes advancement.

According to CALS, the participants from the Bar acknowledged that theirs is a particularly tough environment, it is a fight to enter the domain; a fight to remain in it and it is a significant fight to succeed in it. Some participants noted that entering the Bar and succeeding as an advocate can be difficult for anyone because of the series of challenges entering the Bar poses. For example, the financial strain of pupillage followed by the 97-day invoicing period places a burden on all members of the Bar.


According to the report, a number of black participants spoke of being used in expedient and opportunistic ways by their firms: They described being invited to participate in meetings in which their respective firm was soliciting or ‘pitching’ work from potential clients.

Participants spoke of being actively recruited to participate in these sessions. Then, the next time they would hear about that client and work would be weeks or months later, in the corridors. They would learn that the firm had been retained and was engaged in the work but that they, the black attorney used to attract the client, would not have been included in the work.

‘One participant told of an incident in which she was included in the pitch to solicit work from a particular client. Her name and photograph were included in the team profile presented to that prospective business. Months later, and inadvertently, she learned that the firm had been hired by the client but that she had not been included in the team and work that the firm had received. Another participant spoke of the “dishonesty” of “using black identities” to solicit business from government entities but then not being included in the work once the firm was appointed,’ the report stated.

According to the report, many of the participants believe that those in senior positions (be it within law firms, at the Bar or in the judiciary) doubt and question the intelligence, talent or prior experience of black and female practitioners. In their opinions, black professionals are generally viewed as less than equal or worthy until they prove themselves differently. In contrast, they felt that their white colleagues were always presumed to be competent and capable until or unless they prove otherwise. Black and female and, in particular, black female professionals, need to overcome preconceived ideas and assumptions related to their race, gender, language and accent.

Participants almost always agreed that the legal profession is far from transformed. They noted that it is largely white and male physically, and that this is reflected in the profession’s ideology and prejudices. Many participants spoke about facing preconceived notions and attitudes that assumed black people were incompetent, lazy or token appointees without substantive knowledge and skills.

CALS states that on more than one occasion and in more than one setting, the research team heard some participants talk about the requirement for them, as black professionals and/or as women, to ‘prove themselves’ or to ‘show that [they] could do the work’ or to ‘have to work harder and longer’ than their white male counterparts to be recognised and respected by their supervisors. In other words, the presumption of intelligence was against them. One participant reported that a senior white male lamented that there were ‘no competent [black people]’. Another participant noted that, in many instances, clients ‘do not trust’ black attorneys or women attorneys.

One mid-level professional stated that black candidates attorneys need to ‘work extra hard’ and understand that the playing field is not level. These young professionals should not be ‘naive’ about the reality of who stays and who departs at the end of the articles period. According to this source, as a general rule, the majority of white candidate attorneys obtain offers and stay while the majority of black candidate attorneys depart because they are not invited to continue with the large firms once they have completed their articles. This, in the opinion of this participant, is the reality that black entrants into the profession must face.

‘A participant reported an incident where a black female lawyer had sent an e-mail containing spelling errors to a client. The client replied to the entire team, complaining that this was why he opposed working with black women and insisting that she be removed from the matter. The firm took her off the matter. After this incident, the attorney in question left the firm. The critique of the firm’s response was not because spelling is not an important component of professional lawyering; rather, the response linked the error to the race and gender of the attorney – and all like her. The participant noted that it is highly unlikely that the client would have requested the removal of the attorney, and that the firm would have agreed to his removal, had he been a white man,’ the report states.

A black senior counsel noted that, when briefed on a construction matter, he will automatically think ‘black counsel do not understand construction law, so I had better find a white junior’, despite the fact that there are black junior counsel who are indeed experienced in construction law. He feels that he has been conditioned to underestimate black juniors because his white counterparts underestimate black juniors, and because he, himself, was underestimated as a junior. He noted that, even though he himself is black and aware of the imperatives of transformation, these assumptions are very difficult to unlearn and will take time.

The report states that some participants from the Bar noted that there are black attorneys who feel that they cannot brief black advocates. They fear that if such black counsel fails to perform to a certain standard, this will serve as confirmation that all black professionals cannot succeed. They noted that some black attorneys would rather brief white counsel than risk confirming their white colleagues’ prejudices about black professionals.

‘One participant observed that, as a black lawyer, his seniors assume that he cannot do the work that he is given, or that he will find it more difficult to take instructions than his white colleagues. He also noted that he and his black colleagues seem to be criticised in a different way to white colleagues when making mistakes: A mistake made by black colleagues seems to be of far greater significance and to have greater consequences. Similar mistakes made by a white colleague are shrugged off as an innocent mistake. The position suggests that when a white professional makes a mistake, it is because there was an error in judgment. When a black professional makes a mistake, it confirms that black colleagues are, on the whole, unable to do the work,’ the report states.

Work allocation

Various participants noted that work allocation is based on either informal relations or racial and gender prejudices. In order for this to occur, it was observed, senior professionals must change their patterns of briefing and that change therefore must come ‘from the top’. According to the report, directors of law firms and senior counsel need to be deliberate in their briefing patterns and allocation of work to address the issues of transformation.

‘A number of female participants spoke of problematic work assignment patterns in firms. In a mixed group of male and female junior attorneys, the women talked about how they were assigned administrative or company secretary type assignments while their male counterparts would be included in meeting with clients and given “real” legal work such as transactional work. One participant reported that during her period of articles, women were assigned more administrative work; substantive work was the preserve of white males,’ the report states.

According to the report, many participants were doubtful about the possibilities of meaningful transformation in the near future. They spoke about the slow pace of transformation, the lack of will to effect meaningful transformation, and the ways in which the legal profession is conservative and traditional.

‘One participant observed that she did not believe that she will see “real” transformation in her lifetime. In her opinion, “not enough is being done,” there has not been adequate skills-transfer and training has been insufficient. “Transformation is very far off.” Some participants observed that as long as the upper echelons of the profession remain occupied by white men who do not recognise the problem, it will be very difficult for transformation to be taken seriously and to advance,’ CALS states.

The report states that comments made included: ‘We still have a long way to go’; ‘we need to move away from lip service transformation.’ My firm is ‘great at giving audience’ to transformation issues and discussions ‘but it does not always get it right.’ Echoing the sentiments of others, a participant noted that at the junior level within the profession, diversity can be seen but at the higher ranks, it drops off.

Participants also observed that institutions may spend a great deal of money on surveys and assessments but some participants question the willingness of these entities to take matters beyond the information-gathering stage. Money spent on these types of effort ‘does not translate into practice. This is the problem.’

It was also noted that interventions in support of transformation ‘will not come from the law firms’. There is ‘no commitment’, there are ‘no penalties’, ‘no negative press’, and ‘no accountability’.

One participant noted that, although some black advocates (for example) want to see change, they want just enough change so that they can obtain what white men have, but not so much that the status and power that they seek is perceived to be somehow diluted or diminished by transformation.

A participant noted that ‘there has been transformation at the Bar over the last [ten or so] years. There are more women and [black people] at the Bar. The work distribution is better but it is still inequitable. White men are more likely to be successful at the Bar. [People of colour] fall through the cracks. [We must recognise that] the Bar is intrinsically conservative and traditional. Bar leaders find change threatening, even some [black people in leadership positions].’ Another participant noted the ‘dramatic changes in the last 13 years [at the Bar]. We must recognise this,’ however, this participant went on to note that “progress has not been that good. The numbers speak for themselves.’

A number of participants in the study spoke of the importance of receiving –

  • proper, appropriate and timely legal training; and
  • exposure to both substantive areas of law and to clients during the early stages of one’s legal career.

Those fortunate enough to receive this type of training and exposure spoke highly and enthusiastically of these experiences. Those who did not benefit from these types of interventions recognised the adverse impact that this absence had on their professional development and expressed disappointment, if not anger, about the lack thereof. Often, participants (in both the individual and group interviews) stated that white male juniors were more likely to garner these types of experiences than black females, black males and white women.

According to the report many participants referred to law firms’ laudable value statements and policies in support of transformation, diversity and equal opportunity. They say that the words are there, the policies are in place, but these statements do not translate into practices and actions in the work environment. Against this background, a number of participants talked about the need for legal workplaces to be monitored and assessed in the context of their transformation policies and held accountable when they fail to meet or uphold these assertions and policies. An important observation was that unless clients demand transformation or the failure to effect transformation negatively impacts profit, there is little, if any, incentive to implement the change articulated in the firm’s vision statements. Black female respondents to the electronic survey disproportionately expressed scepticism about the leadership’s commitment to actualising transformation. One of the key areas of dissatisfaction cited in the electronic survey was individuals’ concern with the leadership and direction of the organisation. 38,4% of black female respondents were either ‘very dissatisfied’ or ‘dissatisfied’ with the leadership and direction of their organisation.

According to CALS, most of the participants stressed the crucial role of mentorship and sponsorship in the context of legal practice (as an attorney and as an advocate). Juniors and mid-level professionals do best when they have the guidance and assistance of legal practitioners who are senior to them. Beyond training (which is also critical), these types of relationships help newcomers to the profession develop their professional reputations and build confidence, networks and client-bases. Those participants who have or had mentors and sponsors noted the positive effect of these relationships on their careers. And again, both those who benefited and those who did not benefit from these types of professional relationships spoke of the tendency for mentorships and sponsorships to be disbursed, so to speak, along racial lines.

‘A number of participants expressed concern at the absence of black female role models in the top echelons of law firms. One black female participant observed that the absence of women in senior positions, on whom she can model her career, means that she does not feel that the senior position is an option for her. As a result, she frequently finds herself questioning her choice of career. Female participants within a law firm noted that they feel that they are expected to lose their femininity and individuality, and channel their energies into being trailblazers who demonstrate none of the characteristics of the stereotypes associated with women,’ the report stated.

The importance of a clear understanding of transformation

A number of participants expressed concern at the use of the word ‘transformation’ without a clear understanding of its meaning.

One participant said that she is frequently told that, should she go to the Bar, she will have no problems getting briefs because she is a black woman. She expressed discomfort at being guaranteed briefs by virtue of her race and gender, and wants her success to be based on her merit. This leads her to question what transformation is, and what drives debates on transformation.

The same participant said that she is concerned when questions of transformation look only at race and gender, and suggested that the debate should also take economic circumstances into account. She provided the example of a white female colleague with whom she served her articles. Her colleague started her articles and had a number of loans that she had had to take out in order to pay for her studies, whereas she, as a middle class black female, had had her studies paid for by her parents.

Economic disadvantage

According to the report, participants recognise the growing black middle class entering into the legal profession. However, issues of economic status and class continue to impede development and growth in the profession.

Several participants spoke of issues involving candidate attorneys and young black professionals who did not have driver’s licenses or did not have cars and how this adversely affected these attorneys during their article periods.

A participant told of a black female candidate attorney in a large firm who did not have a car and used public transport to travel to work, which hindered her ability to work late. Her supervisors saw her inability to work late on a regular basis as laziness and lack of dedication. In the end, this candidate attorney left the firm.

According to the report, the issue of access to driver’s licenses and cars, and the impact of the lack of these on young attorneys from disadvantaged economic backgrounds, was introduced in a number of settings over the course of the study. One participant observed that just as South African society does not always reflect the values of the Constitution, the legal profession does not reflect the values of the Constitution, and the people who work within the profession are not as progressive as the Constitution. He provided an example of eviction law, where the rules are designed to protect the poor, but where there is largely a resistance from the profession to assist the poor, in the face of the imperatives of profit-making. He observed that this is indicative of the way South African society views the poor and vulnerable.


The project mapped four stages of the legal profession and made recommendations for each stage.

CALS advised those working on transformation of the judiciary to identify the link between the transformation of the judiciary and the transformation of the profession as a whole. It recommended that it should acknowledge and identify that the lack of transformation in the judiciary is linked to a lack of transformation in the legal profession. ‘Addressing the representation of the judiciary demands an analysis of the lifespan of the entire legal profession to determine why black women in particular are exiting the profession, resulting in a smaller pool of black female candidates for the judiciary than their white male colleagues,’ it said.

Another recommendation was for law firms and members of the Bar to take it from the top.

‘Transformation requires a champion. The champion must be someone with power in the organisation and who is both respected and a high fee-earner. Change occurs if behaviour by those with power is adjusted. Somebody in a position of power in a firm needs to take on the role of championing transformation and addressing the impediments identified within that firm. This should not be left to human resources,’ it said.

It also recommended that the profession should acknowledge and respond to the patterns of discrimination that cause black women to leave the profession.

The report stated that there has to be fair and representative mechanisms that hold perpetrators to account and protect victims of discrimination and harassment and recommended that the Law Society of South Africa and the General Council of the Bar, at a minimum, should have policies around harassment and sexual discrimination for the parts of the profession they represent.

A recommendation was also made that senior lawyers should be clear about their own responses to black and white juniors. ‘They should always draw a distinction between criticism of an individual’s work and criticism of an individual and the group to which they belong. The former is acceptable and promoted excellence. The latter is a form of racial and gender discrimination, both of which are prohibited and which impede transformation of the profession as a whole,’ the report stated.

The final recommendation was for the Department of Justice and Correctional Services to undertake a research project to monitor the career paths of black female law graduates and determine how and if they progress in the legal profession over a ten year period.

It also encouraged the Judicial Service Commission to take responsibility for the patterns of discrimination that may or may not be emerging in the profession and, as a result, in their decision-making.


In conclusion, CALS said that the findings of the report needed to be explored further and addressed because failure to do so would result in the debate about transformation of the judiciary being a constant and unchanging phenomenon well into South Africa’s future. ‘In the same way as centuries of gender- and race-based discrimination has led to the loss of scientists, mathematicians and artists because the identity and race of a person mattered more than their skill, so too we risk the loss of excellence in the legal profession today,’ CALS stated.

This article was first published in De Rebus in 2014 (Nov) DR 18.