The University of St. Thomas

Professionalism’s Foundation is an Internalized Responsibility for Others

Published on: Tuesday, August 28th, 2012

Professionalism’s Foundation is an Internalized Responsibility for Others

© Neil Hamilton

Fourteen years ago, Minnesota Lawyer asked me to write some “Observations” columns on the ideals and core principles of our profession beyond just rule compliance. At the time I remember wondering if I had enough ideas for three or four columns but thought we should give it a try. Now, 100 Minnesota Lawyer columns and 20 larger law review articles on professionalism later, I am writing my last regular Observations column; it is time to focus on putting all of this work into a book.

What is “Professionalism”?

Writing these columns forced me to think deeply about the definition of professionalism and how to help my students grow in their professionalism. Over these last twenty years, all of education from K-12 through graduate education has moved toward a standard educational assessment model that asks: (1) what are the students’ educational needs; (2) what are the learning objectives (outcomes) that will meet the students’ educational needs; (3) what are the curriculum and pedagogies that most effectively help the students to achieve the learning objectives; and (4) how to assess whether the curriculum and pedagogies are actually helping the students to achieve the learning objectives.

When I started writing these columns, a major initial challenge was to define the elements of “professionalism” with sufficient clarity that legal education and continuing legal education can articulate clear learning objectives with respect to professionalism.  This is step 2 in the educational assessment model above. The Holloran Center for Ethical Leadership in the Professions and I have a number of longer articles (many co-authored with Dr. Verna Monson, an educational psychologist) and shorter Minnesota Lawyer columns where we try to define professionalism by looking at the concept through different windows. The principal windows have been: (1) all the ABA and Conference of Chief Justice Reports on professionalism and the ABA Model Rules of Professional Conduct; (2) the Carnegie Foundation for the Advancement of Teaching’s influential study of legal education; (3) an analysis of the work of all 43 legal scholars who have tried to define the term; and (4) three empirical studies where we asked entering law students, early-career lawyers five years out of law school, and peer-honored exemplary lawyers who have won a professionalism award in Minnesota to describe how they understood the meaning of professionalism.

The most important finding of studies in professionalism is that a student’s or practicing lawyer’s understanding of professionalism depends upon each person’s stage of development. An individual can grow over a career toward the internalization of a later-stage understanding of professional formation. These studies also identify the key elements of a later-stage understanding of professional formation. The studies all agree that professionalism (professional formation) is an internalized moral core characterized by a deep responsibility or devotion to others – particularly the client – and some restraint on self-interest in carrying out this responsibility. Three of the four studies also agree that professionalism includes these elements: ongoing solicitation for feedback and self-reflection, an internalized standard of excellence at lawyering skills, integrity, honesty, adherence to the ethical codes, public service (especially for the disadvantaged), and independent professional judgment and honest counsel.

The Medical Profession’s Definition of Professionalism

The medical profession has also defined professionalism and gives us another window through which to understand the concept. For example, the American Board of Medical Specialties (ABMS) professionalism working group recently gave a one-sentence definition of professionalism: “Medical professionalism is the assertion that doctors are worthy of public and patient trust.”

The ABMS continues. “Medical professionalism is a belief system in which group members publicly declare (“profess”) to each other and the public the shared values and competency standards that they promise collectively to upheld in their work. These declarations constitute a set of promises, and one-half of an ongoing dialogue with society, about what the public and individual patients can and should expect from medical professionals. At the heart of these ongoing declarations has long been a three-part promise about the science, art and service orientation of medical practice. Medical professionals promise to acquire, maintain and advance; (1) the scientific and technical skills necessary for competent medical practice, (2) the interpersonal skills necessary to work with patients to elicit goals and values that can help direct the use of the professional’s medical knowledge and skills (sometimes referred to as the “art” of medicine), and (3) a value system which upholds that medical professionals will use their medical knowledge and skills always in the service of patients and the public’s health. Medical professionalism, therefore, pledges medical practitioners, as members of the profession, to a dynamic process of personal development (life-long-learning and professional formation) and to participation in a social enterprise that continually seeks to express that expertise and caring in its work.”

You can see in the ABMS definition that the foundation of professionalism includes life-long learning and professional formation toward an internalized value system to use the professional’s skills in service to the patient and the public’s health. A physician (and by analogy a lawyer) who has internalized these deep responsibilities for others – the patient and the public’s health (or the client and justice system) – is worthy of both patient and public trust. My experience is that any physician or lawyer who has internalized a deep responsibility for others is also highly attentive to developing excellent technical and interpersonal skills to fulfill these internalized responsibilities.

Conclusion

Professionalism asks each lawyer, over a career, to grow toward an internalized deep responsibility for others. This leads to trustworthiness. We help each other grow toward professionalism through constant conversations among us about our ideals and aspirations, and we ask questions of each other about whether our actions in fact reflect our ideals and aspirations. Each of us regularly reflects on these questions and conversations.

I am deeply grateful to both Minnesota Lawyer and its readers for all the opportunities to share thoughts about the ideals of our profession and how to grow toward living these ideals both individually and collectively in our firms, law departments and associations. I know my conversations with you have helped me to grow in understanding, and I hope the same is true for each of you.

Law Firms Can Foster Professionalism and Relationship Skills

Published on: Tuesday, June 26th, 2012

Law Firms Can Foster Professionalism and Relationship Skills

© Neil Hamilton

Brady Janzen (2L UST Law student and Hamilton’s research assistant)

June 10 draft

Empirical research on how senior lawyers and clients define the core competencies necessary for effective lawyering makes clear that it is in both a lawyer’s and a firm’s self-interest for each lawyer to seek continued growth over a career in terms of professionalism. High professionalism contributes substantially to successful relationship skills in the practice of law. This essay first defines the elements of professionalism, and then looks at the empirical research on the core competencies necessary for effective lawyering.  These core competencies include professionalism. The last section reviews recent empirical research on the most effective educational engagements that firms could use to foster the professionalism of each lawyer.

The Elements of Professionalism

To arrive at a comprehensive and clear definition of professionalism, Hamilton and Monson reviewed and synthesized: (1) all the ABA and Conference of Chief Justices studies on professionalism; (2) all of the legal scholarship on professionalism since 1980; (3) the five Carnegie Foundation for the Advancement of Teaching studies on higher education for the professions including law; and (4) an interview-based study of how twelve peer-honored exemplary lawyers in Minnesota understand professionalism.

All of the studies agree that professionalism (professional formation) is an internalized moral core characterized by a deep responsibility or devotion to others—particularly the client—and some restraint on self-interest in carrying out this responsibility. Three of the four studies also agree that professionalism includes these elements: ongoing solicitation of feedback and self-reflection, an internalized standard of excellence at lawyering skills, integrity, honesty, adherence to the ethical codes, public service (especially for the disadvantaged), and independent professional judgment and honest counsel.

Empirical Research on the Core Competencies Necessary for Effective Lawyering

Within the last five years, three independent studies have considered the attributes of effective and responsible lawyers: one by William Henderson based on focus groups of Indiana University law alumni; one by Marjorie Shultz and Sheldon Zedeck based on surveys of 2,000 Berkeley alumni more than five years out of law school responding to the question “If you were looking for a lawyer for an important matter for yourself, what qualities would you most look for?”; and one by Roy Stuckey based on an extensive survey of law school clinical professors about the attributes of an effective lawyer.

There is a great deal of overlap among the findings of these studies regarding the areas of competence required for effective lawyering.  Particularly, they all include elements of professionalism as defined above.  Henderson notes that effective lawyers will have an internalized drive for excellence and the attributes of integrity, self-awareness, and a learning orientation for self-development.  Schultz and Zedeck emphasize character attributes, which also include integrity and self-development. Stuckey also found that ethical capacities, such as integrity and truthfulness, are needed along with self-reflection and lifelong learning.

These empirical studies of lawyer effectiveness also illustrate the importance of client relationship and team skills by finding that engaging and working with clients, communication skills in general, and effective team membership skills are necessary competencies. Trustworthiness and other moral values are fundamental to effective relationship skills including client development and successful team dynamics. Trustworthiness results when a lawyer internalizes the elements of professionalism. Effective lawyering obviously requires competency in research, analytical skills, and core understanding of the law, areas that require the lawyer to be technically sound, but it is professionalism that enables a lawyer to grow from good to great.

Empirical Research on the Most Effective Pedagogies to Foster Professionalism

Empirical data suggest that lawyers of all ages are capable of development in professionalism (professional formation). It is in a firm’s self-interest to foster each lawyer’s continuing development in professionalism. Hamilton and Monson’s analysis of all the empirical research on effective pedagogies to foster professionalism indicates some common themes.

Effective pedagogies must take into account that lawyers are at different developmental stages of growth toward an internalized moral core (professional formation), and the pedagogy used must engage each lawyer at his or her current developmental stage.  Moral psychology scholars posit that four distinct capacities are necessary in order for moral behavior to occur.  These capacities are referred to as “components” of moral behavior. Identifying a lawyer’s developmental stage within each of the four components can provide guidance as to the most effective pedagogy for that individual.

Component one is moral sensitivity (perceptual clarity and empathy).  This involves the ability to interpret the reactions and feelings of others and an awareness of the consequences of alternative actions.  Medical education has been working to assess empathy for decades and two approaches have emerged from their efforts.  One relies on short self-assessment surveys. The other relies on observation of behaviors, such as interaction with peers, interaction with actors playing the role of the patient (client), or coding of transcripts of dialogue either with patients or in role-plays. These assessments can provide formative feedback and a basis for reflection if an individual wants to improve his or her perceptual clarity and empathy.

Component two is moral reasoning and judgment, which allows an individual to determine which actions are more morally justifiable once it has been determined what the actions’ consequences may be.  This component can be fostered through the use of teacher or mentor-facilitated discussion of the ethical dimensions of a case.  When analyzing a complex problem, a learner should be asked to identify the ethical issues and take a position on how the issues should be resolved, noting the consequences and effects on all stakeholders.  After discussion, the learner should be asked to reverse his or her position and complete the sequence again from a different stakeholder viewpoint.  A scoring rubric or checklist of the issues contained within the case will allow the exercise to be utilized as a formative assessment which then provides an opportunity for feedback, dialogue with others, and reflection.  The same exercise can be utilized in groups to foster integrative and team thinking as well, asking the group to formulate consensus opinions.

Component three is moral motivation and identity.  This relates to how an individual conceptualizes the moral self, including the prioritization of concern for others over competing values.  This component becomes more complex throughout life.  Empirical research concludes that cognitive disequilibrium is the condition that encourages development of moral identity.  This is an environment of “optimal conflict” created by a problem that presents an experience of some frustration that challenges an individual’s assumptions and beliefs and connects deeply to who the individual is and what he or she most values.  Cognitive disequilibrium should be accompanied by social support from instructors or mentors so that a learner is not overwhelmed.

Component four is moral implementation, or carrying out a moral decision.  This component often involves social interactions and requires effective interpersonal and communication skills – skills necessary for teamwork.  Effective pedagogies for moral implementation include group learning and team skills training. For example, group learning exercises make group members responsible for their own productivity as well as the productivity and performance of all group members.  This pedagogy does not typically occur naturally, but requires discipline and forethought on how to structure interdependence.  There are two major kinds of interdependence: outcome and means.  Outcome interdependence refers to the shared goals and rewards of the group, whereas means interdependence involves team members taking on specific roles to ensure effective team functioning and/or dividing up tasks and assignments among team members for completion. For specific suggestions about how to structure outcome and means interdependence, see the article cited at the end of this essay.

The central theme behind all of these pedagogies is exposing learners repeatedly to the dilemmas of professional practice while encouraging them to develop the habits of soliciting feedback, discussing tough calls with others, and reflecting on responsibilities to others and self.  Stage-appropriate engagements are important, as it is clear that practicing professionals adopt ideas and skills to the extent that they find them useful and efficient to solve practical problems.  An example of this approach that has been effective in medical education is to ask a learner open-ended questions about any frustrations or difficulties the learner is having with a particular case, then to use those practical problems to engage the learner in discussion and reflection about the capacities and skills needed to overcome the problem.

For more information about effective pedagogies firms could use to foster each lawyer’s professional formation, please see Neil Hamilton and Verna Monson’s full article, Legal Education’s Ethical Challenge: Empirical Research on How Most Effectively to Foster Each Student’s Professional Formation (Professionalism), at http://ssrn.com/abstract=2004749.

TEAMWORK SKILLS ARE CRITICAL FOR EFFECTIVE LAWYERING

Published on: Wednesday, April 18th, 2012

 [published in Minnesota Lawyer on April 16, 2012]

© Neil Hamilton and Verna Monson, Ph.D.

Over a century ago, entrepreneur Andrew Carnegie observed “Teamwork is the ability to work together toward a common vision – the ability to direct individual accomplishment toward organizational objectives. It is the fuel that allows common people to attain uncommon results.” Lawyers seek to obtain uncommon results for each client, and an effective lawyer has to develop excellent skills to work as a team both with each client and with the lawyers, staff, and others to address the client’s objectives efficiently.

This essay reviews highlights of empirical research on the importance of teamwork skills for the individual lawyer and for the law firm or law department. We then summarize the major findings of scholarly work on both the essential elements necessary for effective teamwork and dispel some myths about teamwork.

The Business Case for Teamwork Skills

Empirical research makes clear that it is in the enlightened self-interest of each law student and lawyer to learn strong teamwork skills and of each law firm or department to help lawyers develop such skills. Studies consistently show that both clients evaluating lawyers, and senior lawyers evaluating junior lawyers consider teamwork skills important for effective lawyering. In 2008, Berkeley professors Marjorie Shultz and Sheldon Zedeck interviewed over 2,000 Berkeley law alumni, asking what attributes and skills each respondent (as client) would look for in hiring a lawyer to represent the respondent on an important matter. Working with others and planning and organization of the work with others were two of the seven major skill areas respondents wanted in a lawyer to represent them in an important matter. In a 2007 survey of law school clinicians on the most important attributes of an effective lawyer, South Carolina law professor Roy Stuckey found that “effective teamwork” and “effectiveness with diverse colleagues” were two of the most important attributes. Indiana law professor William Henderson reported in 2009 that senior partners at major law firms evaluated associates on 23 capacities and skills including teamwork and client engagement, commitment and responsiveness.

Research based on thousands of interviews and hundreds of empirical studies of groups over several decades concludes that groups that work cooperatively towards a common goal are more effective in terms of productivity and quality of work product than individuals working alone. Similarly, groups that are highly adept at giving and receiving constructive feedback and making ongoing improvements are more effective than groups that are not as capable in these processes.

Other studies of teamwork in business, medicine and government show that effective teamwork is correlated with increased customer loyalty, reduction of medical errors, and reduced group -think, where group members who have strong contributions to make remain silent rather than disagree with the majority opinion. Scholars have found that the ability to work effectively on a team is a critical competence in the legal, medical, nursing, and related health professions, and in management, the military, civil aviation, law enforcement, and in intelligence and defense work.  Students also benefit from effective teamwork skills. In a 2008 meta-analysis that examined over 148 studies involving more than 17,000 students, researchers found that positive interpersonal relationships with peers in cooperative learning groups accounted for 33% of the variance associated with academic achievement.

Research finds that effective teams make better decisions than individuals, and organizational performance improves with effective teamwork. This occurs because specialization and expertise are becoming increasingly necessary in solving complex problems. Working across multiple disciplines and specialties is no longer an option, but a necessity. Team members whose expertise and roles are interdependent are able to solve tough problems better than individuals. When team members receive mentoring and interpersonal support, organizational performance is enhanced.

The Elements of Effective Teamwork

There is a substantial literature on the elements of effective teamwork that looks at processes and decisions such as goal and task interdependence and the interpersonal skills required for these interdependencies; this essay reviews only a portion of this literature emphasizing goal interdependence and interpersonal relationship skills necessary for goal interdependence.  University of Minnesota professor and social psychologist David Johnson finds that “high-performing teams or groups demonstrate positive social interdependence, defined by the condition which occurs when outcomes for individuals are affected by their own and others’ actions.” Research comparing teams with positive social interdependence (cooperation) to teams with negative interdependence (competition), shows differences in social dynamics.

Interpersonal skills flowing from an awareness of self and a sharing of the self with others play a large role in creating the “trust and rely” elements of goal interdependence through cooperation shown in the figure above. Jon Katzenbach, organizational consultant and team expert at Booz and Company, and Douglas K. Smith, formerly of McKenzie, write that “Teamwork represents a set of values that encourage behaviors such as listening and constructively responding to points of view expressed by others, giving others the benefit of the doubt, and recognizing the interests and achievements of others.” They also suggest that a key goal for each team member is to support the development and the interpersonal capacities of the other members of the team. Other interpersonal capacities such as emotional regulation,  communication, assertiveness, using positive conflict resolution techniques such as negotiation, and appreciating diversity are also important in effective team functioning.

Katzenbach and Smith state that teams that fall short of working effectively can improve through training — working sessions with team members focused on actual problems in the business unit. The primary purpose of the session is to provide team members with feedback on their interactions within the group, giving them ample opportunities to practice new behaviors such as listening more deeply to other team members or being aware of interrupting others.

Conclusion

The empirical evidence is very strong that it is in each law student’s and each lawyer’s enlightened self-interest to learn effective teamwork skills. It is also in each law firm’s self interest to foster these skills. There are some teamwork myths that may fuel resistance to educational efforts to foster teamwork skills. Based on his empirical research, Harvard social and organizational psychologist  J. Richard Hackmann dispels six myths about teams.

Myth #1. Effective teams are ones where there is little or no conflict.

Reality: Effective teamwork means that conflict is managed constructively. The ability of members to disagree and discuss issues openly is vital.

Myth #2. Teams require new membership to keep energy high and infuse the group with new ideas.

Reality: Teams that work together longer learn how to become more effective at teamwork.

Myth #3. Teams that have more members will be able to accomplish more.

Reality: The smaller the team, the more effective it tends to be.

Myth #4. Team meetings face-to-face are no longer important in the era of email and Skype.

Reality:   Face-to-face interaction is beneficial, particularly at key points in a project.

Myth #5:  Teams require great leaders in order to function optimally.

Reality:  While a good leader can be helpful, the more effective approach is for leaders to foster the team members’ ability to independently manage themselves. Rotating leadership periodically can give all members experience in a leading role.

Myth #6. Teamwork is the best solution for almost all problems or projects.

Reality:  The choice to assign a team to a project should be one made with thought and consideration. In some cases, individuals working alone may be the best approach. Teamwork is one tool in a law firm’s management arsenal that is appropriate when problems are too large or complex for individuals working alone to efficiently solve or when solutions require specialists or an interdisciplinary approach. [Note that at a minimum, the lawyer has to work with the client as a team to address the client’s objectives.]

 

Thinking, Fast and Slow for Lawyers and Clients

Published on: Tuesday, February 21st, 2012

Thinking, Fast and Slow for Lawyers and Clients
© Neil Hamilton
(Published Feb. 20, 2012 in Minnesota Lawyer

Can we improve our abilities both to make good judgments for ourselves and to help clients make better judgments? Psychologist Daniel Kahneman, a Nobel Laureate in economics, recently published a book, Thinking, Fast and Slow (2011) that synthesizes many decades of empirical work on how the mind works. The book provides a wealth of insight both on how each lawyer can improve his or her decision-making as well as on how, in the lawyer’s counseling role, a lawyer can help clients to improve their decision-making.

Kahneman and his deceased coauthor Amos Tversky spent their careers exploring how the human mind works in predictable ways to make errors of judgment. The good news is that they conclude humans are fundamentally reasonable and rational. “Most of our judgments and actions are appropriate most of the time.” The bad news is that if “most of our judgments and actions are appropriate most of the time,” then there is still a lot to error in our judgments. Going back to good news, there are abundant opportunities to make better decision for ourselves and to help clients make better decisions.

A general theme of Kahneman’s book is that we are over-confident in how well we think and make judgments. We have an exaggerated sense of how well we understand the world. Empirical research consistently shows that we make many systematic errors of judgment from cognitive biases, fallacies and illusions.

So what does Kahneman’s empirical work have to do with our work as lawyers?  A good lawyer wants both to minimize his or her errors of personal and professional judgment and, as a counselor, to help clients to minimize their errors of judgment. If a lawyer understands the systematic errors of judgment that the human mind makes, he or she can take steps to minimize them.

System 1 and System 2 Thinking

From his empirical research, Kahneman argues that human reasoning is distorted by systematic biases, and one major source of such errors is the distinction between what he calls System 1 and System 2 thinking. System 1 and System 2 are metaphors or contrivances, not anatomical places or pathways, that Kahneman has created to help us understand how the mind works. The intuitive, largely unconscious and automatic System 1 does the fast thinking, and the effortful System 2 does the slow evaluative and reasoned thinking, monitors System 1, and exercises control over System 1 as best it can with its limited resources. System 1 develops over time as a product of learned patterns of association and retained memory to enable a person to create quick drafts of reality and to act in real time. It is especially sensitive to threats where immediate action may be necessary so System 1, for example, can immediately detect fear in others’ eyes and anger in the voice of others. Essentially, system 1 is the ability, developed over a lifetime, to recognize patterns and causal interpretations of events in a fraction of a second so that the person can produce an adequate solution to a challenge in real time.

System 2 thinks slowly; it evaluates and it reasons. It is essential for tasks that require comparisons, ordered reasoning and choice. Kahneman’s empirical data indicate that while we believe our System 2 is principally in control making reasoned judgments, in reality our System 1 thinking is more common. The problem is that System 2 has limited resources for concentrated cognitive work and self-control, and it gets depleted. As System 2 gets depleted, it weakens in its ability to monitor and control thoughts and actions suggested by System 1. A depleted System 2 regularly provides overly quick rationalizations for System 1 intuitions and biases.

System 1 Errors of Intuitive Judgment

While System 1 as “a machine for jumping to conclusions” gets it right most of the time, its quick and automatic search for causal interpretations of events is sometimes quite wrong. It often creates causal stories out of very dubious raw material.

Kahneman’s empirical research reveals a great number of systematic errors of System 1 judgments from cognitive biases, fallacies and illusions. Examples include anchoring effects, the optimistic bias and the planning fallacy, framing effects, the halo effect, the “Florida” effect, the focusing illusion, outcome bias, and availability bias.  I discuss only the first two of these here.

Anchors or Arbitrary Reference Points

One of the most robust and reliable results of experimental psychology is that when people consider a particular value (called an anchor) for an unknown quantity before estimating that quantity, the estimates of the unknown quantity tend to be close to the particular value (the anchor) they heard before the estimate occurred. For example, the experimental data are clear that even if people are aware of the effects of an anchor, the anchor still influences them more than they know or want. For example, in an experiment, real estate agents were asked to assess the value of a house that was coming on the market, but the agents did not know the actual listed price. They visited the house and studied a comprehensive booklet of information that included an asking price. Half of the agents saw an asking price that was substantially higher than the eventual listed price, and half saw an asking price that was substantially lower. Each agent was then asked to give his or her opinion about a reasonable buying price and the lowest price at which the agent would sell the house if the agent owned it. The agents were then asked about the factors that affected their judgment. The agents took pride that the asking price was not one of the factors they considered.  They said they ignored it. Yet the anchoring effect index was 41%, only slightly lower than the anchoring effect index of the asking price in the same study of business students with no real estate experience.  Moving first to create an anchor in a single-issue negotiation over price has a powerful effect. A lawyer needs to know that any initial number on the table from the opposing side has had a strong system 1 effect on the client, the lawyer, and on the decision maker like a judge. If the stakes are high, the lawyer has to mobilize System 2 to combat the anchoring effect.

The Optimistic Bias, the Planning Fallacy, and Inside and Outside Views

Kahneman finds that “Most of us view the world as more benign than it really is, our own attributes as more favorable than they really are, and the goals we adopt as more achievable than they are likely to be. We also tend to exaggerate our ability to forecast the future, which fosters optimistic overconfidence. In terms of its consequences for decisions, the optimistic bias may be the most significant of the cognitive biases.” The planning fallacy, one of the manifestations of the optimistic bias, describes the phenomenon that, in making plans and forecasts for future projects, we tend to overestimate benefits and underestimate costs. We tend to make forecasts and plans that are “unrealistically close to best-case scenarios.” For example, in 2002, a survey of Americans remodeling their homes reported that on the average, they had expected the job to cost $18,618, and they ended up paying in average of $38,769. The solution is again to enlist System 2 to consult statistics of similar situations and projects to take the “outside view” rather than to assume the “inside view” that uses meager initial evidence about a project to extrapolate optimistically about the future.

A Lawyer’s Role in Thinking, Fast and Slow

Kahneman provides an empirical map and language to understand distinctive patterns of System 1 errors of judgment for both lawyers and clients. Although humans are not irrational in most cases, “they often need help to make more accurate judgments and better decisions.”  Specifically, each lawyer should have a personal board of directors (my December, 2011 column) to provide this help to make an accurate diagnosis of possible System 1 judgment failures and to suggest System 2 interventions that limit the damage of bad judgment. Of course this is the independent and candid and honest counsel that lawyers give to clients. Lawyers can give particularly valuable counsel in situations where the client’s System 2 resources are depleted which will cause System 2 too quickly to endorse the client’s System 1 response without reasonable checking and reasoning.

Kahneman also suggests that experts like lawyers can improve his or her System 1 skills to minimize judgment errors through (1) careful attention to minefields like the anchor effect where System 1 judgments are most prone to error, and (2) practicing System 1 decisions and then seeking immediate feedback on the decision to learn from mistakes. For example, a trial will require many System 1 decisions for a litigator, but whenever possible, a newer lawyer can ask for immediate feedback on System 1 decisions. A lawyer can also counsel his or her client about both of these strategies.

Do You Have a Personal Board of Directors?

Published on: Monday, December 19th, 2011

Do You Have a Personal Board of Directors?

© Neil Hamilton
Kurtis Young (3L student at UST Law)
[published in Minnesota Lawyer, Dec. 19, 2011]

The Rules of Professional Conduct emphasize our role as counselors to our clients, exercising “independent professional judgment” and rendering “candid advice” including “moral and ethical considerations [that] impinge upon most legal questions and may decisively influence how the law will be applied.”  The Rules do not emphasize as clearly that each lawyer should also seek counselors who give the lawyer their independent professional judgment and candid advice, especially on difficult questions involving both the requirements of the Rules and of the application of ethical principles beyond the Rules including reputational risk management issues.

Jim Collins, author of Good to Great (2001) and Great by Choice (2011), suggested 15 years ago that a good decision maker needs a personal board of directors who embody the core values and ideals the decision maker aspires to achieve. The best board members care enough to give honest and candid feedback, ask the tough questions, tell stories of others’ experiences handling similar situations, draw analogies, engage in moral dialogue, and foster personal reflection and self-assessment.  They do not judgmentally dictate answers; they foster growth of the lawyer’s own professional judgment and moral core.

This essay argues that each lawyer should, over time, recruit a personal board of directors. These trusted advisors will provide the same independent judgment and candid advice for the lawyer that he or she aspires to provide to clients.

The Rules Emphasize Peer Review

The Rules of Professional Conduct emphasize the importance of peer review to achieve compliance with the Rules, but are less clear about the importance of seeking counsel about the inevitable difficult ethical calls lawyers face. Paragraph 7 of the Preamble notes that each lawyer is guided not only by the Rules, but also by “personal conscience and the approbation of professional peers.” Paragraph 12 adds “A lawyer should also aid in securing the observance of these rules by other lawyers.” Paragraph 16 emphasizes “Compliance with these rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion, and finally, when necessary, upon enforcement through disciplinary proceedings.”

Comment 3 to Rule 5.1 notes that “Some firms, for example, have a procedure whereby junior lawyers can make a confidential referral of ethical problems directly to a designated senior partner or special committee….[T]he ethical atmosphere of a firm can influence the conduct of all of its members….”  Of course, each licensed Minnesota attorney can seek an advisory opinion regarding the application of the Rules to the lawyer’s own future conduct from the Office of Lawyers Professional Responsibility.  In addition, Rule 1.6(b)(7) permits each lawyer to reveal confidential information if the lawyer reasonably believes the disclosure is necessary to secure legal advice about the lawyer’s compliance with the Rules.

The Habit of Seeking Counsel on Ethical Judgments

Extending the suggestion of Comment 3 to Rule 5.1, we think that both junior and senior lawyers can greatly benefit from confidential discussions with other lawyers of good judgment regarding difficult questions involving both the requirements of the Rules and the application of ethical principles beyond the Rules.  At a minimum, this is good risk management. Faegre lawyer Jim Stephenson, based on his years of experience on the board of ALAS, observes that lawyers who make difficult ethical calls on their own without discussing the issues with other lawyers are at higher risk of malpractice, rules violations, and unanticipated damage to reputation (reputational risk management).  This is common sense.

If a matter involves a difficult question whether future conduct might violate the Rules, a lawyer who can demonstrate a record of careful and reasoned deliberation with other lawyers of good judgment will get more deference from peers on disciplinary panels. Even if peers find a rule violation, a record of reasoned deliberation with other lawyers will mitigate the penalty.

In addition, empirical studies coming out of educational psychology make it clear that individuals occupy a developmental spectrum of capacities of moral reasoning and an internalized moral identity. These studies consistently find that the most effective educational engagement to foster each student’s growth toward later-stage moral reasoning and an internalized moral identity (growing from narcissism toward an internalized deep responsibility for self and others) is to encourage the habit of actively seeking feedback and moral dialogue with others. Ideally, this dialogue is followed by reflection and self-assessment.

Suggestions for Junior Lawyers

How does a junior lawyer go about developing a personal board of directors who can provide counsel on the difficult ethical judgments every lawyer has to make?  Kurtis Young asked three senior lawyers for advice. Collectively, these conversations produced six skills young lawyers should use to develop a personal board of directors.

First, be observant. Watch for ethical and moral issues to present themselves to others in your environment and then see to whom they turn. Usually, individuals who are willing to thoughtfully discuss these dilemmas are sought out for that specific reason and may have a reputation for being open to dialogue.

Second, build relationships. The legal profession is driven by who you know. Personal relationships are already used as a source of knowledge, to locate clients, and to secure employment. This same network should be used to find your personal board of directors.

Third, choose your board members wisely. Young lawyers should be looking for a particular type of person, not just someone in an advanced position or with certain credentials. Seek out individuals who are respected for their interactions with subordinates and their genuineness as well as align with your personal values. These individuals need to be trustworthy and see you in the same light.

Fourth, humbly approach the conversation. Remember that you are there to learn. You have asked an individual for his or her time and you should respect it. When approaching the conversation, you need to convey an overt willingness to learn, that you take these issues seriously, and that you are thankful for the person’s time.

Fifth, be candid. During conversations with a board member, explain the dilemma and be candid about your concerns. In order to be effective, discussions need to open, honest, and sincere.

Sixth, reflect on your conversations. Set aside time to candidly reflect on the issues and advice presented during your conversation(s). Without reflection, any guidance and information provided is without context and can easily become lost. The legal profession is ripe with ethical and moral issues; self-reflection about these topics will help young lawyers develop personally and professionally.

 

How Exemplary Lawyers in Minnesota Understand Professionalism

Published on: Monday, November 7th, 2011

How Exemplary Lawyers in Minnesota Understand Professionalism
© Neil Hamilton, Professor of Law and Director, Holloran Center
Verna Monson, Ph.D., Research Fellow, Holloran Center

Oct. 11, 2011 

Accreditation Changes Emphasizing Professionalism

Important changes are coming in legal education that will affect how we determine if students or practicing professionals are benefitting from what they are taught in law school and through continuing legal education programs.

For example, it’s likely that the American Bar Association will change the accreditation standards for law schools to require far greater emphasis on preparing students to practice law ethically. The changes under consideration stress helping students understand and exercise professional judgment consistent with “the values of the legal profession,” including “professionalism,” according to the ABA’s Draft Standard 203.

The proposed standards also require assessing the effectiveness of a law school’s efforts to help students achieve these mandated ethics objectives. These changes bring legal education in line with education for the other professions, as well as with undergraduate and K-12 education in their emphasis on assessment.

Focusing specifically on the ABA’s emphasis on practicing law ethically, this framework requires each law school to be specific enough about what it wants students to learn so that the results can be assessed.  For example, what specifically are the “values of the legal profession” (mentioned twice in the proposed changes), “professional duties to society,” and “responsibilities of the legal profession”?  The required learning outcomes outlined in Draft Standard 302(b)(4) give some guidance by defining required outcomes to include students’ “knowledge and understanding” of “the legal profession’s values of justice, fairness, candor, honesty, integrity, professionalism, respect for diversity, and respect for the rule of law” and also “responsibility to ensure that adequate legal services are provided to those who cannot afford to pay for them.”

An Empirical Study to Define the Elements of Professionalism

To define the elements professionalism with the clarity needed to satisfy these new requirements, we conducted an empirical study of the concept of professionalism by interviewing twelve professionalism award winners in Minnesota.   From the forty-five lawyers who have won either the HCBA Professionalism Award or the MSBA Professional Excellence Award who are currently practicing law, we took a random sample of six men and six women, ranging in age from mid-40s to early-80s. The full study is forthcoming in “Ethical Professional (Trans)Formation: Themes from Interviews with Exemplary Lawyers,” in 52 SANTA CLARA L.REV (2011) accessible at http://ssrn.com/abstract=1804419.

Asked to reflect if their individual meanings of professionalism changed over the span of their careers, all twelve reported growth in their understanding of the concept. All twelve also defined professionalism as including four primary, overarching themes:

  1. Professionalism is linked closely to a lawyer’s moral core or moral compass and includes internalizing a deep commitment to and responsibility for clients, colleagues, the firm, and broader society. A critical element of this moral core is trustworthiness, which serves as an important marker in both establishing and maintaining a lawyer’s credibility and reputation. A major part of this foundation of trustworthiness is honesty with self and others, and honesty serves as an internal mechanism that is part of an ongoing practice of self-reflection and growth. While all twelve lawyers discussed aspects of a moral core or moral compass, there was some variation in this theme. Three lawyers expressed views that core morality is stable and is significantly but not completely formed in childhood. Nine lawyers emphasized that moral formation involves reflection and self-awareness and is an ongoing process over a lifespan.
  2. Counseling the client with independent judgment and candid advice is central to professionalism. The exemplars we interviewed offered in-depth, rich examples from decades of practice elaborating on their mode of practicing law focused on independent judgment and candor in ways that permitted a deepening of the trust in the lawyer-client relationship.
  3. Developing a habit of self-reflection is perceived by exemplars as an important factor contributing to ongoing growth in a lawyer’s level and understanding of professionalism. The exemplars spoke of their experience of mistakes or failures, and all commented on how failure prompted reflection and self-assessment.
  4. A lawyer’s understanding of professionalism evolves over a career and is perceived as more of a process or way of being than a static definition. During the interview, the attorneys were asked to self-assess whether their understanding of professionalism had evolved throughout the years. The responses of our exemplars support the idea that an individual’s self-understanding of the concept of professionalism evolves to become more complex and internally defined. With this development comes increased cognizance of the dynamic tension between economic self-interest and fulfilling the roles of an officer of the legal system, a representative of clients, and a public citizen responsible for the quality of justice.

A Paradigm Shift in Ethics Education

Our Santa Clara article proposes a paradigm shift from a static definition of professionalism focused on ethics education about the Rules of Professional Conduct to a constructive developmental definition that emphasizes fostering the internalization of the elements of professionalism as framed by exemplary lawyers. In Educating Physicians (2010), the Carnegie Foundation states, “formation is the most fundamental goal of the learning process.” What is true for education in the medical profession should also be true for education and continuing education in the legal profession.

Last, we propose that just as the definition of professionalism as a growth process came through in our interviews, we invite readers to discuss the meaning of professionalism with colleagues. Defining a complex idea like professionalism should ultimately be a collaborative process that strengthens relationships and our understanding.

The Need for Auditing of Law School Admission Data

Published on: Tuesday, October 4th, 2011

The Need for Auditing of Law School Admission Data

By Professor Jerry Organ

Law schools shape the professional identity of their graduates.  Instilling a sense of professional identity shaped by the highest ethical standards is difficult, however, when law schools themselves fail to model behavior reflecting the highest standards of professionalism. 

In the last two years law schools have been lambasted on blogs and in the media for too frequently modeling an approach to information disclosure (or nondisclosure) that fails to reflect the “professionalism” to which we hope our students will aspire as lawyers.  Much of this criticism has concerned “misrepresentations” by law schools that publish employment statistics for their graduates in the most favorable light possible, even if presented in a way that may create misimpressions, or that fail to disclose the retention rates of competitive scholarships. 

The ABA is facing pressure from many corners, including from members of Congress, to assure that it gathers and disseminates, and that law schools publish, information regarding employment outcomes and scholarships in a manner that assures that prospective law students have much more accurate information in a format that is easier to understand and makes comparisons among law schools easier. 

The Questionnaire Committee of the Section of Legal Education and Admission to the Bar has been working over the last year on revising the questions it asks law schools so that it can gather and present much more granular data regarding employment outcomes for law graduates in a clear and easy to follow format.  At the same time, the Section’s Standards Review Committee has been working on developing accreditation standards that will mandate disclosure by law schools of employment outcome and scholarship retention data in a consistent format that will greatly assist prospective law students and pre-law advisors.   

Many critics are calling for auditing of employment outcome data.  The Questionnaire Committee has considered the possibility of developing a system for auditing employment data, but is concerned that auditing would be a significant and costly endeavor.  Because schools gather the information from individual graduates an audit might require reconnecting with each graduate in a given data set to confirm the accuracy of the data reported.

In the last several months two incidents have highlighted a separate problem.  In January, the Villanova University School of Law acknowledged that it had knowingly submitted to the ABA inaccurate LSAT and GPA profiles of its entering classes for a couple of years.  More recently, the University of Illinois College of Law acknowledged that it submitted inaccurate data to the ABA for a couple of years and had published on its website inaccurate data about the grades and test scores of this semester’s incoming first-year law school class.  As noted above, this behavior is problematic because it not only misleads prospective law students and others regarding the law schools in question, it also erodes the ability of law schools generally to instill in their graduates a professional identity reflecting the highest ethical standards.

Unlike the employment data discussed above, however, there is an easy way to police law schools through auditing of LSAT and GPA data.  The LSAC maintains a data set reflecting each law school’s LSAT and GPA profile for its matriculants based on the software the LSAC and law schools use to track applicants electronically.  It would be very easy for the LSAC to submit to the Questionnaire Committee a report on each law school’s LSAT and GPA data for its entering class to allow the Questionnaire Committee to cross-check the data submitted by law schools.

A number of pre-law advisors raised this issue with the LSAC at the Pre-Law Advisors National Council Board meeting in March of this year.  At that point, however, the LSAC representative expressed no interest in having the LSAC serve as an auditing check on law schools, noting that the LSAC is a membership organization and that any such action would require the consent of the member law schools.  Daniel Bernstine, the President of the LSAC, recently was quoted in a National Law Journal article:  “That’s just not something we have done historically, and I don’t see why we would.  We are not in the reporting business. We don’t distinguish between our [law school] members.”

Despite President Bernstine’s protestations to the contrary, LSAC is in the reporting business.  It reports annually the aggregated results of those who take the LSAT and jointly with the ABA publishes the ABA-LSAC Official Guide to law schools, in which the inaccurate data from Villanova and Illinois was reported for the last few years.  It also issues a variety of reports to law schools and to pre-law advisors.

The auditing of LSAT and GPA data needs to happen.  Why LSAC should be involved is quite simple – if it is not part of the solution, then it is part of the problem – and right now it is part of the problem.

The auditing can move forward in one of two ways. 

First, law school admissions officers and law school deans can organize themselves and as the “members” of LSAC, can take action within the LSAC governing structure to change policy and to authorize and require LSAC to share data with the Questionnaire Committee to facilitate the Questionnaire Committee’s auditing of the data reported by law schools.  While some may think this would be conduct contrary to self-interest of law schools, the reality, in my view, is that the vast majority of admissions personnel at law schools strive to present data in an ethical and accurate manner.  Thus, I fully expect that a significant majority of law schools might agree to authorize LSAC to share law schools’ LSAT and GPA data with the Questionnaire Committee so that the Questionnaire Committee can audit the data.  They have nothing to hide.  By authorizing LSAC’s involvement, the many “good citizens” no longer would have to worry about the handful of “bad actors” taking advantage of an environment without audited data.

Second, the Standards Review Committee and the Accreditation Committee of the Section of Legal Education and Admission to the Bar could require, as a condition of ongoing accreditation, that each law school consent to have the LSAC release that school’s matriculant profile for LSAT and GPA to the Questionnaire Committee so that the Questionnaire Committee can “audit” or “cross-check” the LSAT and GPA data each law school submits in a given year.

Because some law schools have lacked moral courage and proven incapable of “making the right choice” in assuring that prospective law students have access to accurate and clear data – whether it be regarding employment and salary statistics, the likelihood of non-renewal of competitive scholarships, or most recently, the LSAT and GPA profile of their entering classes – they have opened the door to increased regulation, to mandatory information disclosure and to the possibility of auditing.  While auditing of employment data will be challenging and likely expensive, the auditing of LSAT and GPA data for each law school’s entering class is quite simple and inexpensive.  Law schools would do well to police themselves in this situation by taking action to authorize and require the LSAC to facilitate the auditing of LSAT and GPA data by releasing data to the Questionnaire Committee.  If law schools are not willing to take such action promptly, the Section for Legal Education and Admission to the Bar should require each law school to consent to the disclosure of the LSAC’s LSAT and GPA data for that school as a condition of ongoing accreditation.

In the meantime, there is nothing to prevent any “good citizen” law school from voluntarily providing to the Questionnaire Committee this month its LSAC matriculant report for the Fall 2011 entering class so that the Questionnaire Committee can audit the school’s self-reported LSAT and GPA profile.

REQUEST THAT YOU COMPLETE A SHORT SURVEY — I have created a survey asking for public input on how best to deal with the data integrity issues associated with LSAT and GPA reporting by law schools.  Please complete the accompanying survey found at this link http://www.surveymonkey.com/s/Auditing_LSAT_GPA to express your opinion about what, if anything, should be done to improve the integrity of the LSAT and GPA data reported by law schools.

 

Jerry Organ is a Professor of Law at the University of St. Thomas School of Law in Minneapolis, Minnesota and serves as Associate Director of the Holloran Center for Ethical Leadership in the Professions.   His research and writing increasingly focus on law school culture and the formation of professional identity in law school.  He has served for the last year on the Questionnaire Committee for the ABA Section of Legal Education and Admission to the Bar.  Please note that these opinions are solely those of Professor Jerry Organ and are not endorsed by or made on behalf of the Holloran Center for Ethical Leadership in the Professions, the University of St. Thomas School of Law or the Questionnaire Committee of the Section of Legal Education and Admission to the Bar.

Gender Disparities in Leadership in the Professions: The Role of Stereotype Threat

Published on: Tuesday, September 13th, 2011

© Verna E. Monson, Ph.D.
Research Fellow
Holloran Center for Ethical Leadership in the Professions

The following is Part 4 of a four-part series that offers a preview of the Holloran Center’s research on professionalism in law.

Part 4. Gender Disparities in Leadership in the Professions: The Role of Stereotype Threat

With the Holloran Center sponsoring or co-sponsoring two programs this fall related to women and the judicial process (co-sponsored with the Infinity Project, on October 13th), and women and leadership in law and business (on November 10th, a blog about gender and disparities in business and in law is in order. In Part 1 and 2 of this blog series, I discussed our general research approach and philosophy, and in Part 3, one theme related to law firm culture and mentoring. Part 4 highlights research out of Stanford University on the phenomenon called “stereotype threat.” I suggest that stereotype threat is an important factor in the continuing challenge to reduce gender disparity in law firms and business, and that awareness of disparities in society is part of professionalism.

Gender and racial disparities in the upper echelons of law firms and business is a persistent issue that is both pragmatic and ethical. As client bases diversify, increasing diversity among law firms is a continuing priority for the ABA, Fortune 100 companies, and law firms. The role of stereotyping and bias is cited as an important factor in limiting opportunities for advancement in the firm or the corporation.[1] A study published last October in Psychological Science,[2] sheds light on a phenomenon called stereotype threat, and how it might cause women to “play it safe” by effectively taking themselves out of the running for leadership positions that are high risk and high reward.

Stereotype threat comes into play when one is made aware of negative and limiting ideas about one’s group. For example, a common stereotype exists that women are less capable in logical reasoning and math. For women made aware of that negative stereotype, the thought process involved with suppressing it and managing the anxiety over fears about conforming to this stereotype “uses up” cognitive resources, and thus results in declines in performance on cognitive tasks such as tests or problem solving – what research psychologists Priyanka Carr and Claude Steele at Stanford call “ego depletion.”[3] For women in law or business, stereotypes about their “style” of carrying out their job duties — e.g., notions that women are naturally more collaborative and caring in carrying out job duties – can be used against them when the job requires a more aggressive approach. In turn, this might explain why women are more likely to leave lucrative executive positions before reaching upper management or partner status.[4]

The Stanford researchers conducted an experiment involving financial decision making. In one condition, men and women were made aware of a stereotype that women do not perform as well as men on tests of math and logical reasoning and then asked to solve math equations. In a second condition, the group performed a series of puzzle problems without mention of any stereotype. Next, both groups played a series of 12 lotteries where there would be a chance to win (or lose) a nominal amount of cash. In the stereotype-aware condition, women were significantly more likely to reject lotteries, thus limiting their losses, as well as their rewards. In other words, when a negative stereotype about women was made known, women played it safe. Interestingly, men in the stereotype-aware condition took even greater risks. But in the non-stereotype condition, there were no differences in risk taking.

How might this effect be a factor in limiting the career potential for women lawyers or managers?  For women lawyers and managers entering the workforce, there are multiple signals that might prime different stereotypes – e.g., not being given substantive cases or projects or conversely, being excessively praised for minor accomplishments[5]. In turn, these might trigger stereotype threat, and for some women, might also become the deciding factor in leaving a firm with higher potential for great rewards, for a smaller firm or public agency with less potential for reward, but also, less potential for failure or loss. The literature on mentoring in firms unambiguously concludes that in order to retain women, and in particular women of color, mentors play a critical role.

How can new lawyers or managers know when stereotype threat might be a factor that could derail them?  Let’s look at a brief overview of the stereotypes about women in law and business that could trigger the effect.  It’s been popular to hear about research finding that women have different leadership or communication “styles” – typically, being more collaborative or inclusive. So would adopting a more nurturing style of leadership help advance their careers?   A 1995 ABA Commission on Women in the Profession report noted that women lawyers are “insufficiently aggressive, uncomfortably forthright, too emotional, or not as serious as men about their careers.”[6] Years later, a 2003 hearing by the Commission found no evidence that this stereotype had lessened, with a bar association president testifying that women lawyers continue to be viewed as “too bossy, too aggressive, not aggressive enough, too emotional, or too strident.”[7]

In a landmark case of employment discrimination, Hopkins v. Price Waterhouse,[8] management consultant Ann Hopkins sued her employer after failing to make partner after being told that she was “overly aggressive, unduly harsh, difficulty to work with, and impatient with staff.”[9] Following an initial court ruling in favor of Hopkins, and years of appeals, the Supreme Court upheld lower courts’ decisions, stating that “An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch-22: out of a job if they behave aggressively and out of a job if they do not” (p. 251).

But this was 20 years ago. Does such a Catch-22 still exist, in which the stereotype of women as “nurturing leaders” comes head to head with the demands for lawyers or managers who can be tough and aggressive when the job might demand it? For women in law, business, and the professions, Elena Kagan’s appointment to the Supreme Court is a definite mark of progress, but it’s harder to be optimistic about women advancing into upper leadership in other realms of law and business. Although women now comprise 31 percent of all attorneys, the proportion of law firm partners is significantly lower, at 18 percent, according to the ABA Commission on Women in the Profession 2010 report. According to a 2009 Catalyst survey of Fortune 500 companies, gender disparities are even greater in business. Of executive officer positions, only 13.5 percent were women. In top earning positions, the percentage drops to 6 percent. Women held only 15 percent of board positions and a full one third of companies had no women executive officers. Similar disparities in economic earning potential exist among both lawyers and women in business. Whether or not stereotype threat is a causal factor in these disparities is an empirical question. The Carr and Steele study was an experiment with undergraduate students. Clearly, field studies examining the phenomenon in law schools, law firms, and business need to take place to answer these questions definitively.

Until that can happen, I think we need to take a stance that stereotyping and bias are ethically wrong, and that part of professionalism should be awareness of these phenomenon. Through awareness, the underlying ethical issues that may be created by stereotyping can begin to be addressed. The highest level of professionalism should include awareness of perceptual barriers that prevent us for seeing ethical issues.

What are implications for education in the professions and organizational development in law firms and business? Here are some thoughts:

  1. Law and business schools should consider integrating content about stereotyping and bias in courses beyond professional responsibility, employment law, or human resources courses. Bringing in content experts from social sciences and education to the strategic or curriculum planning processes to audit syllabi or conduct a needs assessment is a start.
  2. Awareness about the nature of gender differences can be expanded. Let’s be clear:  Both men and women can be caring, expressive, and creative. Both men and women can be strategic, direct, linear, and aggressive when the role requires it.
  3. Mentors matter – in professions education and in one’s career. For young associates or managers, find someone you can talk with openly about feelings of “not fitting in” or of not being given meaningful cases or projects.
  4. Negative stereotypes are on a spectrum of both conscious and unconsciously held biases that can lead to discrimination or harassment on an individual level. In the opinion of Richard Banks, Professor of Law at Stanford University, this has led to a plethora of diversity training seminars aimed at changing individual attitudes, [10] with questionable effectiveness.  But change that is more systemic and policy-based may have more impact. For example, change aimed at policy reform on implementing zero-tolerance policies on discrimination or harassment may ultimately have greater impact on behavior and organizational climate.[11]

[1] ABA

[2] Priyanka B. Carr and Claude M. Steele, Stereotype Threat Affects Financial Decision Making, Psychological Science OnlineFirst, XX(X) 1-6.

[3] Id.

[4] ABA

[5] Research on bias and stereotyping found that bias can work in a seemingly positive, innocuous sense, called

[6]Commission on Women in the Profession, American Bar Association, Women in the Law: A Look at the Numbers, November 1995.

[7] Id., at 5.

[8] Hopkins v. Price Waterhouse, 490 U.S. 228 (1989).

[9] Ann Hopkins, Price Waterhouse v. Hopkins:  A Personal Account of a Sexual Discrimination Plaintiff, 357-415, Hofstra Labor & Employment Law Journal, Vol. 22, 2005.

[10] R. Richard Banks, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 2009.

[11] Id.

Don’t Trust the Financial System? Here’s What We Need to Do

Published on: Monday, August 15th, 2011

Don’t Trust the Financial System? Here’s What We Need to Do
© Neil Hamilton and Elisabeth Kirchner

This article appeared in the August 15, 2011 edition of Minnesota Lawyer.

Building Trustworthiness by Allocating Responsibility

Empirical evidence shows a serious and continuing problem of trustworthiness in the financial system leadership, both in government and business. A survey taken by the Financial Trust Index in May 2011 found that four out of five people still lack trust in America’s financial system and that 57 percent of Americans are angry at the current economic situation, which is only 3 percent lower than December 2008, the height of the financial meltdown.

Building Trust Requires a Better Accounting of Who Is Responsible for the Crisis

Almost three years after the financial meltdown, the dust is hopefully settled enough to look back at what went wrong and look forward to what do we do now. One window for looking at what went wrong is the 2011 National Financial Inquiry Commission Report. Both the majority and the minority of the commission voiced their disappointment and anger at government and business leaders of the financial system. The majority stated that they place special responsibility with the public leaders charged with protecting our financial system, those entrusted to run our regulatory agencies, and the chief executives of companies whose failures drove us to crisis. These individuals sought and accepted positions of significant responsibility and obligation. Tone at the top does matter and, in this instance, we were let down. No one said “no.”

While the majority focused more of its disapproval on business leaders and the dissent placed more responsibility on government leaders, the dissent also voiced their anger at business leaders, saying, “An essential cause of the financial and economic crisis was appallingly bad risk management by the leaders of some of the largest financial institutions in the United States and Europe. Each failed firm that the Commission examined failed in part because its leaders poorly managed risk.” The report is clear: our leaders in both sectors failed us.

Leadership Failures in Both Government and Business

While there is some disagreement whether government leaders or financial business leaders are more to blame, it is clear at this point that both leadership groups bear substantial blame. In a new book, Reckless Endangerment (2011), a biting analysis of the financial meltdown causes, Gretchen Morgenson, a Pulitzer Prize New York Times journalist and Joshua Rosner, a housing finance expert, state that the “American economy was almost wrecked by a crowd of self-interested, politically influential and arrogant people.” They put significant responsibility on Fannie Mae and Fannie’s chief executive James Johnson’s dubious policies that only focused on credit histories—a change from comprehensive profiles of borrowers—in order to shorten the lending process to minutes. This practice was not unnoticed by the private sector, and “Fannie Mae led the way in relaxing loan underwriting standards, a shift that was quickly followed by private lenders.”

While Reckless Endangerment puts substantial responsibility on Fannie Mae, the authors also have plenty to say about private sector enablers: “No industry contributed more to the corruption of the lending process than Wall Street.” The authors point out that brokerage firms were only too happy to look the other way while providing capital for the multitude of risky loans. The authors were also harsh toward the banks, as “their greed and self-interest took the mortgage mania to heights it could not possibly have reached without Wall Street’s involvement.” Taken all together, the book concludes that “anyone with a brain could see that borrowers’ increased reliance on such loans would come to a disastrous end. But the loans were immensely profitable and so lenders kept pushing them and Wall Street kept funding them.”

What Were Our Government Gatekeepers/Watchdogs Doing?

One of the frustrating conclusions about the causes of the meltdown is that those who should have been protecting our economy looked the other way or in many cases contributed to it because of their connections with each other. Reckless Endangerment points out that those in the public financial sector were caught in a revolving door with the private sector. Look, for example, at Goldman Sachs. Robert Rubin was a Goldman Sachs board member before he became U.S. Treasury Secretary, when he fought to repeal the act that separated investment and commercial banking. He then became a vice-chair for Citigroup, where the company drowned itself using risky maneuvers. Henry Paulson was the head of Goldman before becoming the Treasury Secretary who would administer the bailout to Goldman, Fannie Mae, and others. On the public side, Fannie Mae used its profits to contribute to congressmen or their families, as well as fund research to show the benefits of Fannie and pay groups to lobby for them, all while trying to downplay any and all risk. All the major financial firms, both public and private, have stories of major players switching between the public and private sectors, working for their own personal interest rather than for the public good.

Government and Private Industry Leaders Escaping Criminal Prosecution

Nearly all the executives in both the public and private sectors have not only escaped criminal prosecution but, according to Morgenson and Rosner, these executives also “continue even now to hold sway in the corridors of Washington and Wall Street.” These executives, almost without exception, have not taken responsibility for their actions, nor have they been forced to accept responsibility by criminal charges. Prosecutors can only show colossal failures of judgment about risk made out of self-interest and have been unable to prove a willful intent to defraud.

Allocating Responsibility Through Civil Litigation

A few individuals and some firms will be held accountable through civil litigation. For example, Angelo Mozilo, the promoter of subprime mortgages, settled Securities and Exchange Commission civil charges of security fraud and insider trading for $67.5 million. Goldman Sachs and Wells Fargo both settled SEC civil claims of improper sales for $550 million and $11.2 million, respectively. JP Morgan settled with the SEC regarding claims that it misled investors in the sale of a complex mortgage-backed security for $153.6 million. There could be more cases to come with U.S. Attorneys General requesting meetings with Bank of America, Morgan Stanley, and Goldman Sachs regarding their roles in the mortgage crisis. On top of SEC settlements, private litigation may also impose civil liability. For example, Bank of America recently settled a claim with its investors regarding fraudulent mortgage securities for $8.5 billion, the biggest settlement to date to come out of the crisis. To date, we are unaware of any civil penalties imposed on government leaders responsible for the meltdown.

Whac-A-Mole Won’t Restore Trustworthiness

Whac-A-Mole criminal and civil litigation does not address the central problem, because the vast majority of the leadership failures were not unlawful. The key problem of the financial meltdown was not rampant illegal acts by executives but devastating failures of self-restraint and prudential judgment on the part of government and business financial sector leaders. For example, the U.S. Senate report on the financial meltdown talks about how in 2005, Washington Mutual gave bonuses to salespeople who could make large amount of loans, even though they had reports of loan fraud. Eventually, firms started to realize that while these loans may bring in profit, they were extremely risky. The time leading up to the meltdown was like a very expensive game of Hot Potato, where every firm, with millions of dollars in subprime loans, was trying to pass the loans to another company.

Dodd-Frank and Devastating Failures of Self-Restraint and Long-Term Prudential Judgment

Dodd-Frank statutory changes and the ensuing regulations coming out now will provide some regulatory bulwark against off-the-map leverage and extreme risk taking. However, there are virtually no systemic efforts to change the acculturation of government and private sector financial leadership from extreme short-term self-interest and revolving doors toward both long- term enlightened self-interest and an internalized sense of significant responsibility and obligation for those who seek and accept these leadership positions. We have not yet seen our institutions of culture, principally the professional organizations and higher education organizations in business and law, step up to the plate with serious self-assessment of responsibility for the meltdown and initiatives to foster each new entrant’s formation of an internalized ethical professional identity.

The solution to the public’s low trust in government and business financial sector leaders is not principally through more statutes and regulations. The solution is principally to change our acculturation of our financial sector leaders. Trustworthiness flows from the perception and reality that our business and government leaders are people of integrity and have some self-restraint in light of their fiduciary duties.

What Can Lawyers Learn from These Leadership Failures?

Many business and government leaders in the financial sector are lawyers, but primarily, lawyers are counselors to these leaders. Lawyers tell stories, ask questions, and counsel about unintended consequences, long-term sustainability versus excessive short-term self-interest, errors of prudential judgment and negligence, and risk management including reputational risk management and public perceptions of trustworthiness. Lawyers counsel about probable government statutory and regulatory responses if financial sector leaders fail to earn public trust. Lawyers work to build ethical cultures of compliance, risk management, and ethics. The financial sector meltdown and the continuing lack of trust in this sector’s leadership give lawyers many cautionary stories about the consequences of extreme short-term greed and disastrous prudential judgment. These stories need to be internalized so that lawyers can better counsel our country’s business and government leaders in the future.


Inspiring Effective Social Justice Leadership

Published on: Thursday, June 30th, 2011

Inspiring Effective Social Justice Leadership in Tomorrow’s Attorneys

By Robyn Brown (J.D. Candidate, Class of 2012), and Sarah Gillaspey (J.D. Class of 2011)

To further integrate the University of St. Thomas School of Law’s emphasis on social justice and ethical leadership in a practical way, the Holloran Center for Ethical Leadership in the Professions offered a unique two-credit course in Spring 2011 entitled “Ethical Leadership in Social Justice.” This course was developed and taught by Judge Wilhemina Wright of the Minnesota Court of Appeals and Holloran Center Fellow Hank Shea. The format of the course incorporated weekly guest speakers, lively class discussions, group projects, and journaling assignments.

Students were attracted to the course for many reasons. Many were interested in the subject matter, while others sought practical experience and knowledge in this field of law. Students were challenged to rethink their role as attorneys and discover how they could affect change in their communities and in society as a whole. Judge Wright explained, “Our goal as professors was to prepare law students to address social justice issues in the multitude of leadership capacities in which they will encounter them in the profession.  Our course was designed to prepare law students for the ‘real world’ challenges of serving.”

In a typical week, students were given preparatory reading and journal assignments, and then they met as a class for two hours. The first part of each class usually featured a guest speaker, giving students role-models from the various issue areas. Speakers included scholars, exemplar professionals in the field, and community leaders. The remainder of each class involved group discussion. During this second half, students were encouraged to discuss ethical dilemmas faced by attorneys in this field, share personal stories that could illuminate the topic areas, and challenge their assumptions through facilitated conversations. Each student was required to develop a personal credo and vision statement. These assignments were exercises in reflective writing, pushing students to consider their life goals and the integration of their own morality into their present and future lives.  In another unique component of the course, teams of students led the class in 60-minute case study analyses and discussions. Students drafted their own case studies, each focusing on a different ethical dilemma identified in the social justice arena. The class then discussed these case studies, applying various leadership models while determining what could be done and what should be done in the situation.

Emphasizing the need for professionals to understand and engage with the needs around them, Judge Wright described her hopes for students in the course: “University of St. Thomas School of Law graduates will occupy positions of power and influence.  I hope that the analytical tools, legal strategies and diverse perspectives that we addressed in Ethical Leadership in Social Justice will inform their judgment and actions as ethical leaders in the profession.”

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For more information on effective pedagogies for fostering engagement and student development, we recommend the following:

David W. Johnson, & Roger T. Johnson. (1997). Academic Controversies as a Vital Instructional Tool; 21 Civil Law-Update on Law Related Educ. 17, ABA Association.
See Johnson & Johnson article online at: http://heinonline.org/HOL/Page?handle=hein.journals/ulred21&div=36&g_sent=1&collection=journals

Roy Stuckey et. al., Best Practices for Legal Education: A Vision and a Road Map (2007).
See Chapter 4:  Best Practices for Delivering Instruction (see section on p. 120 on promoting collaboration) http://www.law.sc.edu/faculty/stuckey/best_practices/best_practices-04.pdf

Patricia M. King, & Karen S. Kitchener. (1994). Developing reflective judgment: Understanding and promoting intellectual growth and critical thinking in adolescents and adults. San Francisco: Jossey-Bass.
Reflective Judgment website:
http://www.umich.edu/~refjudg/edimplications.html