Wednesday, 14 January 2009

Meet you at the Bar

The latest IP specialist to join the Bar from private practice is Paola Cirone who joined Group One Chambers and from last week is officially open for business! Paola (ex partner Bowman Gilfillan) follows Gavin Marriott (ex Bowman Gilfillan/Adams and Adams/Linklaters) in the same Chambers which sports well known IP Senior Counsel Philip Ginsburg (who featured in the recent ANC v COPE spat). Group One Chambers is situated in the relatively new commercial hub of Sandton (Gauteng) opposite the JSE and surrounded by major law firms and businesses, whereas most other IP Counsel chambers are located 40kms away in Pretoria near the local High Court and the Patent Office. Paola (contactable here) is not the only person to have made the jump; Reinhard Michau (ex Spoor and Fisher) and Ilse Joubert (ex Adams and Adams) have both done so successfully in recent years. Like England, South Africa has a split bar system.

4 comments:

Danny K said...

I am sorry, but the first IP specialist to make the jump to the Bar was Bert Bester (in 1989), who was later followed by Owen Salmon (in 1994), both formerly with IP Solicitors, John & Kernick,then of Pretoria. Bester and Salmon, both of Maisels Chambers, Sandton, are today very established and reputable senior IP counsel. In this regard Bester (since 2008, Bester SC, although he would be the last to tell you that) was the pioneer and paved the way for those who followed by disproving the then popular myth disseminated by IP firms that such a transition could not successfully be done.

Darren said...

Thanks Danny, I was aware of Owen but not Bert and I believe that Michau is about to talk silk. I had actually only meant to refer to recent "jumpers" but those you mention are excellent examples.

If you decided that you wanted practice as Counsel with a strong IP focus, is the best advice is to join an IP firm and then jump across or is it better to get a more general focus and then try to solicit IP work at the bar? Both I suspect have built in advantages and disadvantages.

Danny K said...

Darryl, Darryl, your memory is either frail or very selective when you say that you are not aware of Bester. Or do you simply favour some counsel over others? Not too long ago, he gave you and me and many others a rather nice “thank you” gift (and many of us did not even deserve it!). And do you read the cases? There is, for example, A&D Spitz, where your firm got roundly clobbered in the SCA (did you miss that one?) and the on-going Cadac/Weber saga (the last bout of which, if I am not mistaken, was even referred to by Roshana in her blog).
But to get to your (probably rhetorical) question, I prefer my counsel to be litigators first and foremost and if they know a little IP, so much the better. One only has to observe the inept fumbling in the conduct of an action by most of the IP advocates who had articled with an IP firm and then later made the migration to the Bar. They are good and often even great with applications and argument on affidavit, but unless they had cut their teeth in the often brutal cut and thrust of trail advocacy in the criminal and general civil courts, steer as far away from them as possible or be content to permit them to learn the trade by trial and error (if you will excuse the pun…) at great expense (an at times even embarrassment) to your client. Take for example Herselman’s medical document copyright case in the TPD where Roux, J’s patience was tried to the limit and he felt compelled throughout to berate counsel for their bungling, inept attempts at conducting a trial and specifically at leading evidence and cross-examination; the Honda damages action in the WLD where counsel for the plaintiff failed to appreciate what actually required proof; the King copyright action in the TPD where counsel for the plaintiff had problems to appreciate the issues in the case and where his conduct of the case received some rather restrained, but still embarrassing criticism in the SCA, etc. Then compare that with the systematic and thorough dismantling of the defendants’ case and their witnesses by counsel for the plaintiff in the SSAB Hardox arbitration (you will find a copy of the judgment on our Institute’s web site and it was a pleasure to read). Counsel in that case, of course, has extensive trial advocacy experience acquired over many years (whilst many in the IP profession, specifically John & Kernick, tried their best to ignore him) in criminal, general civil and labour cases. So when the going gets tough, rather give me counsel like him, the Johan Louw’s, Marius Helberg’s, Corrie van der Westhuizen’s, etc., and not counsel who grew up and lived a sheltered life enfolded in the embraces of the IP profession. You should also take note of Fiona Southwood. She is doing all the right things by casting her net as wide as possible in order to get broad experience for the job and that is what makes a great, reliable counsel.
Bye the way, thanks for the initiative with the blog; it was an excellent idea and it makes old-timers like me (already put out to pasture) proud to see the young ones take the lead with such exiting ventures (and, of course, it keeps me up to date, at times, on the latest Industry gossip…).

Darren said...

Hello Danny K. I know Bester SC but wasn't aware he had been at J&K. By the way so was I - Darren that is, not Darryl. Yes I read the cases - I even attend some of them. I watched Burt in the SCA in the A&D Spitz matter. He had quite a time in front of Harms arguing waiver - my post http://afro-ip.blogspot.com/2009/11/roses-cheetahs-and-gandalf-sca.html alludes to it. Ultimately his client did prevail - see my post http://afro-ip.blogspot.com/2009/11/two-supreme-court-of-appeal-sca.html. Your contribution is appreciated. Thank you. My own view is that you need to choose your Counsel depending on your case, your client and your opponent. I have used the "jumpers" with success. Perhaps you have a view on what makes a good IP attorney - someone who cut his teeth in a general litigation practice and then moves to an IP firm or someone who understands the philosophy of IP strategy from the ground up or even from an industry or academic perspective? And are patent attorneys necessarily good patent litigators? And ... who is Danny K?