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.