The University of St. Thomas

May, 2011

Professionalism and Women in Law: Firm Culture and Mentors

Published on: Thursday, May 26th, 2011

The Meaning of Professionalism in Law: Part 3
Professionalism and Women in Law:  Firm Culture and Mentors
© Verna E. Monson, Ph.D.
Research Fellow
Holloran Center for Ethical Leadership in the Professions

The following is Part 3 of a four-part series that offers a preview of the Holloran Center’s research on professionalism in law.

In Part 1 and 2 of this blog series, I provided some background on our work in studying the meaning of professionalism and lawyer ethical professional formation. In Part 3, I focus on just one theme that emerged in interviews with lawyers, which highlights an important issue for the legal profession — that of law firm culture, mentoring, and how these factors likely relate to gender diversity in law firms.

One of the common threads in the interviews Professor Neil Hamilton and I conducted, and survey responses from early career lawyers, is the culture of law firms and the critical role of mentors in relationship to professionalism. One attorney,[1] a successful litigator, told of a period of time when she was in the early years of her career and found that the demands of a busy trial schedule out of state were pressing her to the point of exhaustion. She seriously considered leaving the firm. For months on end, she had been absent from the day-to-day workings of the firm. Even though she was a junior partner, there were signs of an impending shake-up, which caused a great deal of anxiety, even paranoia, in her words. There was a breakdown of trust that left her with a sense of impending disaster, and eroded her self confidence. It was a scenario where all too often, people turn to self medicating with alcohol or drugs for comfort.[2] At the end of her rope, she went to a senior partner for advice. This mentor encouraged her to first deal with her stress. She took some time off, and in the process learned some better ways to cope. This mentor then challenged her to come back to her job, dust herself off, and muster the courage to lead or as he put it “look like you’re in charge, and they’ll follow.” Once back on the job, she was better able to manage her stress and set healthier boundaries with subordinates and superiors. She ended up being enormously successful over the years.

We also heard stories about struggles that are currently in progress. One lawyer shared that the culture of her firm made her feel like an outsider. She felt that her opinions were often marginalized. She was more often than not given the less high-profile cases. An articulate, soft-spoken woman of color who felt she often was pitted against her more aggressive Ivy League colleagues, she often felt alienated. At the time of the interview, she was considering leaving. Absent in her remarks in the interview, unlike our exemplar, was mention of a mentor.

Hearing her story prompted us to look to the literature in the legal profession and the academy. We learned that 62% percent of women of color surveyed in an ABA Commission Study of Women in the Profession reported “being excluded from both informal and formal networking opportunities (compared with only 4% of white men reporting the same exclusion).”[3] This exclusion translates from organizational climate to disparity in representation and compensation. For women in law, now 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. A 2009 report by the ABA found that women lawyers earn 80.5% of the percentage of salary of their male counterparts.

According to a 2009 Catalyst survey of Fortune 500 companies, gender disparities are even greater in business. Women in executive positions are twice as likely to leave their positions than are men, according to a study just published in October’s issue of Economic Inquiry.[4] Of executive officer positions, only 13.5 percent were women. In top earning positions, the figure 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.

So what does this imply with respect to growth of professionalism?  To us, the implication is professionalism is not merely about complying with the floor rules that prohibit discrimination or harassment. It is about fostering a climate of trust and fairness among all associates in the firm, a theme we heard from all of our exemplary attorneys. To this elite group, it meant that the highest levels of professionalism are characterized by an unconditional commitment to fostering fairness, integrity, and working for the greater good of the firm and society. It also meant cultivating an organizational climate in which individual dignity and respect for all members of the firm and all clients are uncompromised. It meant mentoring all associates, particularly those who might struggle with the social dynamics or dealing with boundary issues with clients. It also means that associates should be proactive and seek out mentors to help them through difficult situations with colleagues or clients.

So the main takeaway of this blog article is that growth in professionalism maybe be greatly enhanced by the support of mentors. As Robert Kegan and Lisa Lahey state in their 2009 book, “Immunity to Change,” organizations must foster a climate of “optimal conflict” in which

“The persistent experience of some frustration, dilemma, life puzzle, quandary, or personal problem that is . . .
Perfectly designed to cause us to feel the limits of our current way of knowing. . .  In some sphere of our living that we care about, with . . .
Sufficient supports so that we are neither overwhelmed by the conflict nor able to escape or diffuse it.”

So what to do if one does not have a formal mentor?  Find one. But look around. Mentoring is in the spectrum of social support, and conversations with peers or others can serve as mentoring as much or more as a formal mentor.[5] Mentoring can and does occur between people of all ages, and all levels of the hierarchy. We may not call it that, but it is still mentoring. The “new model” of mentoring means we may have several mentors around us, who may not call themselves mentors, but nonetheless, can help us see our way through a difficult spot.

In sum, we we challenge you be alert to signals that the culture might be driving out talent.

To read more about the research that Professor Neil Hamilton and I are completing this spring, drafts of our papers in press in various journals can be found on the SSRN website, through the links below:

Monson, V.E., & Hamilton, N.W. (in press). Ethical professional (trans)formation: Early career lawyers make sense of professionalism (December 31, 2010). University of St. Thomas Law Journal, November 6, 2010; U of St. Thomas Legal Studies Research Paper No. 11-01. Available at SSRN: http://ssrn.com/abstract=1733282

Monson, V.E., & Hamilton, N.W. (in press). Entering law students’ conceptions of an ethical professional identity and the role of the lawyer in society (March 12, 2010). Available at SSRN: http://ssrn.com/abstract=1581528. Journal of the Legal Profession.

Hamilton, N.W., & Monson, V.E. (in press). Ethical professional (trans)formation: Themes from interviews about professionalism with exemplary lawyers (April 6, 2011). Accepted for publication in 52 Santa Clara L. Rev. (2011), available at: http://ssrn.com/abstract=1804419

In Part 4 of this blog series about the Holloran Center’s research on professionalism and the topic of law firm culture, I will look at  research from Stanford University on gender stereotypes and financial decision making. It sheds light on underlying communication and attitudes that may foster exclusion.


[1] In order to protect the confidentiality of the lawyers we interviewed, we have changed key facts and context of the stories to ensure that the identities of these lawyers will remain unknown to readers.

[2] Susan Daicoff. Lawyer, Know Thyself: A Psychological Analysis of Personality Strengths and Weaknesses, American Psychological Association, (2004). http://susandaicoff.com/

[3] ABA Commission on Women in the Professions, From Visible Invisibility to Visibly Successful: Success Strategies for Law Firms and Women of Color in Law Firms, available at http://www.abanet.org/women/woc/wocinitiative.html

[4] Robert Kegan & Lisa Lahey, Immunity to Change: How To Overcome It and Unlock the Potential in Yourself and Your Organization (2009). http://mindsatwork.com/index.php?page=about&family=books

[5] Eileen M. McGowan, Eric M. Stone, and Robert Kegan, Chapter 16: A Constructive-Developmental Approach to Mentoring Relationships, The Handbook of Mentoring at Work (2007). http://www.sagepub.com/books/Book227688

Do the Math: The Complex Equation of Fostering an Ethical Professional Identity

Published on: Thursday, May 12th, 2011

May 3, 2011

© Verna Monson, Ph.D.
Research Fellow, Holloran Center for Ethical Leadership in the Professions
University of St Thomas School of Law

Actor Paul Muni in the 1936 film "The Story of Louis Pasteur"

Actor Paul Muni in the 1936 film "The Story of Louis Pasteur"

Skeptical about the idea that adults can change ethically, and not superficially so?  A healthy dose of skepticism is, afterall, the basis of how science advances, and how hypotheses about legal cases or cures for diseases are formed. Professor Neil Hamilton and I recently co-authored an article called “Addressing the Skeptics on Fostering Ethical Professional Formation (Professionalism)” published in Professional Lawyer. In our article, we address a longstanding opinion in the legal academy and business community that one’s morality is pretty well fixed by the time of law school, particularly with respect to moral development. Skeptics contend that law students are simply not going to fundamentally change the way they think about morality, claiming this is the domain of one’s upbringing, and the stuff of Eagle Scouts or Sunday School. We provide evidence in our article that these views are 30 years out of date.

Let’s analyze this for a moment using a metaphor from medicine, with legal education the patient. The guardians (the Carnegie Foundation, the ABA Outcomes Committee Report, and law schools) of the patient (law students) want to strengthen the ethical core of each law student, supposedly to deter future unethical behaviors. So what should the physicians (law professors) administer?  The saying “what gets measured gets done” predominates society.  From that belief, many put forth suggestions for using different assessment tools of moral development and personality, as a way of gauging the moral temperature of the “patient.” Some come with impressive indicators of reliability and validity — others, with thick manuals for coding interview or essay data. Many of them meet the standards for psychological and educational assessment and testing – but others are questionable. Perhaps this is the point at which skepticism takes hold.

In our view, being skeptical of “quick fixes,” like the personality test du jour, is wise. Like a doctor who writes a quick prescription without checking for interactions or fully listening to the patient, legal education could similarly set out to “add on” another assessment, a different test, or another course, simply with the intent to “do something” about the Carnegie Foundation’s suggestions and ABA’s proposed directives to attend to ethical professional formation. The math is more complex to morality.

Law students are very smart people, many of whom are veterans of personality tests and assessments. So instead of approaching moral development like scientists with lab coats and law students as patients, we suggest that what is needed is a more holistic approach. The math, once again, goes far beyond accounting for single factors that contribute to morality. In fact, moral psychologist James Rest (see, Center for the Study of Ethical Development) points out that the “math” to morality involves four components of awareness or perception, cognition, emotion, and interpersonal skills – all in a dynamic process in which single factors of morality interact with others (Rest, 1986).

In our article, Neil Hamilton and I provide evidence from lifespan developmental psychologists that people can and do change throughout adulthood, citing theory and research of Robert Kegan and other lifespan developmental psychologists.[1] They see adult development the way the child developmental experts see infant and child cognitive development – there are predictable stages in development very familiar to parents. The primary methods that Kegan and others see as important in fostering development are not short tests of personality, team skills, or communication ability – instead they recommend methods that recognize the uniqueness of each individual student in complex ways that are based on meaningful interpersonal interaction, not simply on adding on another assessment or another course. Some recommendations from educational and lifespan developmental psychologists include:

(1)   Challenging students’ individually to examine how they are interpreting their experience – through dialog, mentoring, and coaching, and asking the right questions, rather than imposing the right answers.

(2)   Involving students in self assessment of complex skills. The validity and reliability of many off-the-shelf tests of complex psychosocial skills should always be questioned. But more importantly, what the Carnegie Foundation and other lifespan developmental psychologists recommend is asking each individual student to engage in introspection – deeply reflecting on the meaning of becoming a lawyer, and developing the capacity to step back and gain perspective in how one is interpreting life events.

(3)   Integrating reflective assignments throughout the curriculum that will create lifelong habits of reflection on what it means to be a lawyer.

(4)   Utilize cooperative learning, but give students tools to support team function, monitor team processes, coach students who need to improve their skills in being a team member, and insist upon individual accountability.

(5)   Foster a sense of psychological safety in school culture by coaching students how to effectively give feedback to each other. Encourage students to expand perspective taking and moral sensitivity to diversity by using random assignment in learning groups, and encouraging learning about different cultural or world views.

(6)   Integrate classroom activities that build skills in managing conflicts, mediation, and negotiation designed to break down zero-sum game thinking and enhance creativity in problem solving.

As you can see, these six recommendations focus on a complex “math” of meaningful interpersonal interaction and nurturing mindfulness. This is the paradigm shift that we are speaking of, and it’s not unique to legal education. We invite you to read the full article at the following SSRN:

Neil W. Hamilton & Verna Monson, Answering the Skeptics on Fostering Ethical Professional Formation (Professionalism) (March 13, 2011). The Professional Lawyer, Vol. 20, No. 4, 2011; U of St. Thomas Legal Studies Research Paper No. 11-05. Available at SSRN: http://ssrn.com/abstract=1791216

To learn more about lifespan developmental psychology, ethics education in the professions, and our approach, we recommend reading the following:

Muriel J. Bebeau, The Defining Issues Test and the Four Component Model, Contributions to Professional Education, 31 J. Moral Educ. 271 (2002)

Muriel J. Bebeau, Promoting Ethical Development and Professionalism: Insights from Educational Research in the Professions, 5 U. St. Thomas L.J. (2008).

Anne Colby & William M. Sullivan, Formation of Professionalism and Purpose: Perspectives from the Preparation for the Professions Program, 5 U. St. Thomas L.J.

Robert Kegan, In Over our Heads: The Mental Demands of Modern Life 185 (1998).

Robert Kegan & Lisa Lahey, Immunity to Change: How To Overcome It and Unlock the Potential in Yourself and Your Organization (2009).

Neil W. Hamilton & Verna Monson, The Positive Empirical Relationship of Professionalism to Effectiveness in the Practice of Law (November 2010). Georgetown Journal of Legal Ethics, Vol. 24; U of St. Thomas Legal Studies Research Paper No. 09-22. Available at SSRN: http://ssrn.com/abstract=1495824.

Verna Monson & Neil Hamilton, Entering Law Students’ Conceptions on Ethical Professional Identity and the Role of the Lawyer in Society, 35 J. Legal Prof., 2 (forthcoming 2011), available at http://ssrn.com/abstract=1581528; Monson & Hamilton, (Trans)formation, supra note 23, at 5.

Verna E. Monson & Neil W. Hamilton, Ethical Professional (Trans)formation in Law: Lawyers Five Years After Graduation Make Sense of Professionalism, U. St. Thomas L.J., forthcoming 2011), available at http://ssrn.com/abstract=1733282

James Rest, Moral Development: Advances in Research and Theory (1986).

James Rest et al., Postconventional Moral Thinking: A Neo-Kohlbergian Approach (1999).

William Sullivan et al., Educating Lawyers: Preparation for the Practice of Law 133 (2007).

The above photo is from a 1936 movie that tells the story of Louis Pasteur, whose skepticism about current beliefs about the origins of disease led to founding the science of microbiology, developing the process of pasteurization of milk, and curing anthrax among farm animals.


[1]

COMPETENCY MODELS AND THE “NEW NORMAL” MARKET

Published on: Monday, May 2nd, 2011

COMPETENCY MODELS AND THE “NEW NORMAL” MARKET
© Professor Neil Hamilton
Published April 18, 2011 in Minnesota Lawyer

April 11 draft

A July 2009 survey of U.S. law firms reported that in response to market changes, almost seventy-five percent of the firms had or were planning to develop a competency-model approach to talent management.  This article will explore the legal market forces driving change toward a “new normal,” and how competency models respond to these market forces.

Market Forces Driving Change Towards a “New Normal”

Clients (particularly in-house lawyers as clients with respect to outside counsel) are pressuring lawyers for enhanced value for legal services with modest if any price increases.  Sophisticated users also often move to unbundle or segment legal work to create more competition for the work. For example, legal outsourcing to India or other countries continues to increase for commodity work like e-discovery, document review, and due diligence work.  The internet increasingly provides people with access to more and more information about the law creating both more pro se efforts to resolve problems as well as more knowledgeable purchasers of legal services.

The core concepts for lawyers to embrace in this new normal market are efficiency, cost-effectiveness, and clear value for the client.  With these core concepts in mind, many firms are pro-actively rethinking their business model, and one of the pro-active strategies is talent management using competency models.

Competency Models to Increase Efficiency, Cost Effectiveness and Value for the Client

Competency models are defined in an excellent recent book, The Art and Science of Strategic Talent Management in Law Firms (West, 2010).  Susan Manch and Terri Mottershead (both consultants on attorney talent management) explain that a competency-based approach is different from standard law firm performance management because the competency model gives a specific definition of performance expectations using behavioral language to describe each needed capacity or skill.  They continue,

“A competency-based approach to talent development involves identifying the characteristics of a firm’s most highly successful lawyers and using those characteristics to anchor a firm’s talent management strategy. To briefly summarize, competency frameworks are guided by the philosophy that to most effectively aid associates’ development, associates should be given a clear grouping of competencies to master. In a competency model, performance standards are observable behaviors explicitly described and shown as evolving in complexity across three or four or five levels of experience. In a competency-based framework, for example, mentoring programs would be designed to offer different types/levels of support to lawyers in each level of the path to mastery of the core competencies.”

Manch presents a sample of what a competency framework might look like in a typical firm. The author identifies four core competencies for the firm listed at the top of the framework and then lists the performance factors for each core competency.

Manch’s Sample Competency Framework

Legal
Excellence

Client Orientation

Leadership

Career Commitment

Oral Communication WritingStrategic thinking Technical expertise Adding value Project managementService and quality orientation Initiative Self awareness Relationship building Performance management Team building and inclusion Practice development Drive to learn and improveFirm and community citizenship Ethics and integrity

Other Competency Models

Indiana professor Bill Henderson (2009), Berkeley professors Marjorie Shultz and Sheldon Zedeck (2008), and South Carolina professor Roy Stuckey (2007) have each done an empirical study to identify the most important core competencies of effective lawyering.  A synthesis of the three studies yields the following core competencies listed on top with the performance factors listed below.

Competency Framework:
Synthesis of Three National Studies

Critical Thinking and Judgment

Service Orientation with Clients

Working with Others

Communications

Virtues and Dispositions

Core understanding of the law Analysis and reasoning Pragmatic problem solving Strategic thinking Creativity and innovation Client rapport and strong relationships Client commitment Demonstrated value to clientResponsiveness Effective teamwork Effective planning and organization of work Self –Assurance Listening  Persuasive speaking, writing and negotiation Proactive initiative Integrity and honesty Self-awareness and reflection Commitment to self-development toward excellenceResilience and perseverance

Benefits of a Competency Model

Manch and Mottershead explain that a competency model is useful for both associates and partners. A competency model makes transparent what it takes to be effective and successful in the firm. Associates get a roadmap of competencies necessary at each stage of their development. The partners individually and the firm as a whole clarify what is important for recognition, advancement, and compensation.

Law schools should also undertake to articulate a competency model for the students. Law students need a roadmap to become effective lawyers. Each student can develop a portfolio showing his or her development of specific competencies. This will help students in their search for employment.

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