Discrimination and the South African Legal Profession

Lisa R. Pruitt

excerpted from: Lisa R. Pruitt, No Black Names on the Letterhead? Efficient Discrimination and The South African Legal Profession , 23 Michigan Journal of International Law 545-674, 546-553, 671-674 (Spring 2002) (442 Footnotes)

Although there have long been black lawyers in South Africa, during apartheid only a handful joined the ranks of the country's large commercial firms. Now, in the post-apartheid period, these firms are keenly aware of a range of economic and political incentives to hire black attorneys, and most are doing so at a record pace. Very few black attorneys, however, are enduring the path to partnership in these firms. Based on more than seventy- five interviews conducted in South Africa in 1999 and 2000, this Article both documents and critically examines the reasons for black attrition. While firms' incentives to integrate include commercial ones associated with clients' newfound attention to the racial diversity of their vendors, such incentives apparently have not yet outweighed the forces impeding integration--some of those forces being incidental to the country's history and politics, some attributable to the institutional characteristics of law firms, others to the acts of individuals within those institutions. Although the underrepresentation of blacks in these firms is frequently attributed to blacks' own failings or choices, Professor Pruitt argues that the lack of integration is also the result of discriminatory actions of white individuals and the institutions they run. Still building on the descriptive platform she has laid, Professor Pruitt goes on to construct a model of efficient discrimination with respect to South Africa's elite legal sector, arguing that firms are able to survive in the new marketplace, even absent retention of black attorneys, because the power of the incentives to integrate does not match the rhetoric around it. In addition, because no firm is achieving integration and thereby taking advantage of existing incentives, no firm is raising the integration quotient, which would presumably challenge other firms to do the same.

Introduction

The emerging black business elite will be looking for black firms. The white firms will adapt [and] offer black practitioners partnerships. There will be African names in partnerships of large firms. You find no one in this country who ever supported apartheid. Firms are behaving with the ostensible zeal of new converts.

-- Judge, High Court of South Africa

Tomorrow is Another Country, the title of one of the popular books about South Africa's transition to democracy, denotes the country's rapid move from apartheid to majority rule over the course of a few years in the late 1980s and early 1990s. "Tomorrow," however, has not proved to be "another legal profession" there. The pace of change and racial integration of many sectors of South African society has been relatively swift during the post- apartheid era. Those referred to in South Africa as blacks--including indigenous Africans, mixed-race individuals called coloreds, and South African Indians --are entering the legal profession at a record pace. Integration is proceeding slowly, however, in the country's large commercial law firms, which are located primarily in Johannesburg and Pretoria, what is now Gauteng Province. This Article describes the changing opportunities black attorneys have both within and outside these elite law firms in post-apartheid South Africa to theorize why so few black attorneys are succeeding and remaining in commercial law firms there.

A dearth of published information and analytical literature exists on the South African legal profession. There is also a real scarcity of data on its demographics and other features. For example, no official statistics on the race of those currently admitted to practice or of those being admitted to practice are kept, leaving one to rely on partial and unofficial statistical accounts. To date, the academic literature on the South African legal profession has primarily been comprised of descriptions of actual or proposed changes to legal education or to the regulation of the profession, as well as some commentary on the role of law and lawyers in perpetuating and, alternatively, ending apartheid. Very little information is on record about the profession's social structures or about law firms in particular.

This Article seeks to partially fill this void by presenting information gained through more than seventy-five interviews, conducted almost exclusively in South Africa between March 1999 and July 2000. While the majority of those interviewed were black South African law graduates who were up to seven years into their careers, attorneys of all races and at all stages in their professional careers were interviewed, along with law students, legal educators, and judges. Interviews were not conducted using a set list of questions. Nevertheless, the interviews generally proceeded along the same format, beginning with a discussion of the subject's personal and educational background, followed by a discussion of her career trajectory and professional experiences, including the perceived impact of race, if any, on those experiences. This Article thus represents "legal journalism" in which common themes and experiences of those interviewed reveal what is happening within the firms, as well as in the larger labor market. The result is a snapshot of the South African attorneys' profession at the turn of the 21st century.

The interview data collected, which serve as the foundation for this Article, provide the first-ever comprehensive look at the elite commercial segment of the South African legal profession, offering an insider's perspective on the opportunities blacks have within the country's elite law firms and the obstacles to partnership and true integration that remain in their paths. It considers critically the economic and other incentives firms have to hire and retain blacks, as well as how firms are responding to these incentives. It examines how firms recruit, train, and promote attorneys with a view to understanding how the firms' institutional features, along with the actions of individuals who comprise those institutions, shape the experiences black attorneys have there. Those experiences, in turn, often drive black attorneys' decisions to remain with the firms or to pursue professional opportunities elsewhere.

Using this descriptive background, this Article theorizes about the dynamics of racial discrimination in these large elite firms. In a comparative vein, the analysis draws on David B. Wilkins and G. Mitu Gulati's scholarship on race and the legal profession in the United States to construct a theory of "efficient discrimination" in relation to South Africa's elite commercial firms. Specifically, it explains how firms are able to survive with only token black attorneys, few or none of them partners, even when the market purports to value diversity and when South African attorneys tout the commercial value of "having black names on the letterhead." In sum, this model posits that institutional structures help conceal the discriminatory acts of individuals, preventing these firms from being reputed--much less proved--to be racist. The model further posits that these firms are able to survive in spite of discriminatory behavior and policies that disadvantage black attorneys, in part because none of the elite firms is achieving the vaunted integration and the business advantage purportedly associated with it.

This Article begins with a brief overview of South Africa's recent social and political history, followed in Parts II and III by two descriptive snapshots of the legal profession, the first during apartheid and the second in the post- apartheid era. It then reviews, in Part IV, the relevant literature on large law firms and the economics of discrimination as a prelude to discussing Wilkins and Gulati's germinal work on race in elite law firms in the United States. In Part V, it returns to a fuller discussion of South Africa's commercial law firms. It discusses both the forces driving racial integration in this elite legal sector, as well as how firms are responding with their hiring and training efforts. Finally, in Part VI, it theorizes why these firms are failing to achieve integration and how they are able to survive in the current market without it, thus articulating a theory of efficient discrimination.

. . . .

You basically are struggling for the other people. Because at some stage I say why am I putting myself under such enormous pressure, and I say, if I quit, those first-year law students will never get into the profession. Let me just stick it out even if I don't benefit now, they will later respect us, the few, and say "you people, we can imagine how you must have been working then." And you're first struggling with money, you have student loans, you have your sister [to send to school, you have] an emergency, and now you're another small Mandela.

-- African female professional assistant

Many professional doors have been opened to black attorneys in post-apartheid South Africa--doors that for decades were closed to them by virtue of their color. One such opportunity is that of practicing in the country's elite commercial law firms, a predictable one given the appreciation for racial diversity in the "new South Africa." While black law graduates are moving into these firms at an unprecedented pace, however, few are remaining with the firms for more than a couple of years, often no longer than is required for them to become admitted attorneys. Early in their legal careers, even in comparison to their white counterparts, these black attorneys take full advantage of their mobility in the current labor market to pursue alternate career opportunities in both the public and private sectors. Thus the two questions investigated here: Why is black attrition from white firms so high? And, why in a market that offers economic incentives to integrate is no firm doing what is necessary to achieve integration by acting to retain the black attorneys?

The answer to the latter question, of course, depends on the answer to the former, as effective law firm retention efforts will necessarily respond to the reasons blacks leave. As the interview data indicate, blacks and whites often have different explanations for the paucity of black attorneys in the upper ranks of the country's elite commercial law firms. Among black explanations are a range of structural factors, including very low law firm salaries and a plenitude of other, often better paying, professional opportunities. In addition, many blacks experience cultural alienation and professional isolation in these firms, partly as a consequence of the racist attitudes of individuals and partly as a consequence of institutional structures, which permit such biases to go undetected and, therefore, undeterred.

In particular, many blacks attorneys' decisions to pursue alternate career paths are driven by their perception of lack of opportunity in these firms, which is often linked to the lesser training and mentoring black attorneys get, as compared to their white colleagues. Blacks often complain, for example, that they are doomed to failure in these institutions based solely on the lack of work. Many blacks may believe that whites will never accept them as equal colleagues, as partners. The odds against attaining partnership may appear so great that the vast majority of black attorneys are unwilling to make the sacrifices necessary to seek it in earnest. Partnership simply does not look like a plausible bet for them, let alone a safe one.

The white establishment, not surprisingly, offers an alternative version of events. They explain that black underrepresentation in these firms is primarily attributable to black shortcomings, including intellectual inferiority and deficits of human capital, interest, loyalty, and perseverance.

Having considered these competing explanations, one might fairly conclude that there are both legitimate and illegitimate reasons for the dearth of blacks in South African commercial firms. Rejecting as factually unsupported the myths of black intellectual inferiority and lack of interest in commercial law, and putting into proper perspective the handicaps represented by many blacks' inferior educational opportunity and lack of exposure to matters of commerce, other explanations must exist for the failure of firms to retain black attorneys. Certainly, the low salaries that firms pay to young attorneys, along with the wide range of opportunities for equal or better-paid jobs in other sectors of the labor market, heighten the challenge for firms genuinely seeking to retain attorneys of color. However, if as the interview data and other evidence indicates, many blacks are interested in commercial legal work and, indeed, are actively seeking it, more must account for the phenomenon described. This seems particularly clear if the economic incentives these firms have to retain and promote black attorneys are as powerful as the rhetoric indicates.

Underrepresentation of blacks in South Africa's elite law firms can be accounted for in a model that accounts for the interplay of both institutional racism on the one hand and individual racism on the other. Blatantly racist acts are not required in order for blacks' careers to suffer. Indeed, their careers may suffer when subtle acts of preferring whites over blacks go undetected, and therefore undeterred, in the marketplace. Thus, the lack of transparency resulting from South African firms' institutional structures and features is also a culprit, protecting firms, as it does, from the theoretically correcting power of the market.

The interview data and other evidence indicates most large commercial firms are not taking advantage of the opportunity they have to discriminate against blacks at the hiring phase. This is likely because of institutional oversight of the recruitment process, by setting quotas, and because individuals within firms are not much threatened--if at all--by the presence of junior black attorneys. These firms' practices around training and promotion, on the other hand, appear to be a much more significant part of the discriminatory dynamic. Ample opportunity exists at those stages for individuals within firms to exercise their taste for discrimination in their day-to-day interactions, and their taste for discrimination is likely greater because the more highly skilled black attorneys become, the greater their threat to the white establishment. While the opportunity to discriminate is quite clear, what is less certain is why firms are not doing more to detect and deter such individual acts of discrimination, given what appears to be at stake.

Some combination of four factors likely explains elite firms' failure. First, there is the taste many white South Africans have for discrimination and the enormous institutional challenge of curbing it. Just as institutional structures prevent the market from detecting discrimination, they may also prevent firms from detecting it from within. It is difficult if not impossible for firms to monitor all individuals' actions for discriminatory behavior because of the subjective nature, for example, of assessments about the quality of a junior attorney's work. Institutional structures could be altered in an effort to centralize and therefore exert greater control over the training and mentoring of black attorneys. This could be done with a view to curbing individuals' acting on their preferences to train attorneys who look like themselves or, to state it more pejoratively, acting on their desire to retain for themselves and their "kind" sophisticated and highly valuable skills. Efforts at greater internal oversight of skills transfer might nevertheless prove largely futile. This is because the relationships and experiences that many blacks need in order to survive in a firm cannot be imposed or significantly improved simply by virtue of closer institutional oversight. In short, those averse to mentoring and training blacks are unlikely to be moved to do a considerably better job at the task by virtue of oversight of a committee or designated individual seeking to enforce the firm's policy of skills transfer, retention, and promotion of attorneys of color.

Second, firms may also be failing to act more vigorously to retain blacks among the ranks of their senior attorneys because they believe blacks can never be effectively integrated into these white institutions. Related to this, as well as to the taste for discrimination, is likely a desire by many whites to maintain the status quo, in part because of the value of the skills they have long monopolized. To state it cynically and bluntly, in some ways it is in whites' best interests not to integrate because doing so represents a relinquishment of economic power.

Third, also related to this perceived difficulty of achieving integration is the cost associated with doing so. Firms likely believe that it will be costly to integrate "atypical" black attorneys because many of them require more training and mentoring than their "typical" white counterparts, costs that the firm must bear in order to facilitate blacks' assimilation. Furthermore, white firms probably are also concerned about integration costs associated with the diminished morale of white workers who resent the presence of black attorneys, whom many whites see as undeserving. All of these costs, however, would seemingly be outweighed by the commercial rewards of achieving integration that appear to await any firm that does so.

The fourth factor relates to the reality about those very commercial rewards. The fact that no elite, historically white firm is clearly on the path to significant racial integration, however, indicates that the apparent commercial advantage of integration must be little more than that: merely apparent. Alternatively, it could mean that firms are presently able to survive in spite of their failure to retain blacks simply because no major firm in the marketplace is retaining and promoting blacks to a considerably greater degree than any other. In effect, because no firm is "getting it right" and scooping up the business advantage that racial integration appears to offer, firms remain on a level playing field--almost as if by gentlemen's agreement among themselves--with respect to diversity. Because no single firm is raising the bar, as it were, other firms are not compelled to follow, let alone exceed that standard, in order to remain competitive. All firms are stuck in the pit of mediocrity--if not outright failure--with respect to racial integration.

Prospects for meaningful racial integration of South Africa's elite commercial firms look bleak at the turn of the 21st century. While rhetoric around the value of racial diversity is plentiful, individual and institutional action that would promote and sustain it in the context of elite law firms is scarce. The passage of time will be part of the solution, as the socioeconomic and educational legacy of apartheid wanes so that more black law graduates are better able to compete on a level playing field with their white counterparts. However, until white firms commit themselves to the training and retention of black professionals in a more earnest way than they have so far, the attorneys' profession is destined to remain a highly segregated one where whites continue to hold a virtual monopoly on the most elite and valuable skills, and the clients those skills attract.

Race, Racism and the Law
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