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.