Holloran Center

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

© 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.

 [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.]

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.

by Neil Hamilton and Sarah Gillaspey

Harvard Law professor David Wilkins recently gave the Fredrickson Law Firm Lecture at the University of St. Thomas School of Law on “What Diversity Can Teach Us About the Changing Relationship between Companies and Law Firms.”

Wilkins reported that since the late 1970s, large corporate law firms have increased in size, scope and disciplinary reach. At the same time, large corporate clients have become increasingly demanding and focused on the bottom line, resulting in fierce competition among law firms for both clients and talent. Law firm practice has transformed into a “hard-edge twenty-first-century global business.” Law firms are constantly on the search for a competitive edge.

Increase in initiatives

Coincidentally, the last 15 years have seen a sudden increase in corporate diversity initiatives.

Large corporations have put an increased emphasis on the value of diversity within their business as well as the diverse nature of the organizations they employ. Wilkins cited to a “Call to Action,” organized by General Mills general counsel Rick Palmore, which urges corporate lawyers to “commit themselves to putting pressure on law firms to increase diversity and to stop doing business with firms that fail to show progress on this issue.”

Hundreds of general counsels have signed onto this initiative.

Wilkins went on to state that these diversity mandates are coming from corporations whose legal departments are far more diverse than their law firm counterparts.

“Women comprise more than 15 percent of all general counsel at Fortune 500 companies, and … almost a third of all lawyers employed in corporate legal departments,” Wilkins said. Minority lawyers represent 6 percent of all general counsel and 12.5 percent of the corporate legal departments. Where women and minorities are well represented in law firms, diversity becomes a first order concern.

Wilkins stated that where women represented at least 10 percent of a firm’s population, the firm is more than 10 times likely to make a commitment to diversity. Diversity begets diversity. As a result, these organizations commit both the time and the money required to maintain a diverse work setting and expect the same from the law firms they employ.

Additionally, many large corporations now employ “diversity consultants” to promote the value of diversity generally and to help identify barriers inside the workplace that make it difficult for women and minorities to succeed. Similar to Palmore’s “Call to Action,” many companies have adopted supplier diversity programs that evaluate suppliers based on their compliance with diversity initiatives. Law firms, as “suppliers” of services to corporations, are generally subject to these diversity programs. Wilkins argued that law firms competing for large corporate clients now have a market-based incentive to diversify.

Struggling with diversity

However, many law firms struggle with promoting and maintaining diversity.

Wilkins’ research finds that minorities and women often report feeling “excluded and alienated from the prevailing culture of many law firms.” Consequently, women and minorities often fail to reach their “full potential because of what they correctly perceive as the firm’s oppressive and exclusionary culture,” he reported.

Wilkins discussed how law firms have traditionally used a “tournament” method to groom and select partners. In this tournament, where associates compete against each other to be selected for partnership, those lawyers that are able to best demonstrate their ability and commitment to the firm are selected for partner positions. The rest of the lawyers are then either let go or allowed to stay within the firm as permanent associates. However, “success in large law firms is less a matter of innate ability and hard work (most of those who get hired by elite firms posses these qualities) and more a function of gaining access to valuable, but limited opportunities — opportunities that are invariably mediated through relationships.”

The most valuable work and mentoring opportunities are usually in short supply, so the success of an associate depends on his or her access to those opportunities.

Wilkins stated that minorities and women often lack meaningful access to those opportunities due to the law firm partners’ own inadvertent personal biases. Unintentionally, individuals tend to favor people who are most like themselves.

Wilkins states, “Given that most lawyers in large law firms continue to be both white and male, particularly at the partnership level, this unsurprising but nevertheless powerful tendency means that minorities and women are less likely [to succeed within the tournament model].”

Minority lawyers can feel left out, unnoticed and under-appreciated. As a result, many of the large firms’ diverse lawyers end up leaving the firm without ever reaching partner. Wilkins stated that the high attrition rates within large law firms not only affect the ability of these firms to maintain a diverse population of lawyers, but will affect their ability to compete for large corporate clients.

Essential focus

Wilkins argued that a focus on diversity has become essential to the business of corporate law firms that depend upon corporate clients for their continued existence.

Firms must work to “redefine both cultural norms and established organizations structures” in order to successfully promote, increase and maintain diversity. They cannot simply wait for the passage of time to produce the integration and innovation necessary for them to succeed in today’s legal market.

Additionally, acknowledging our natural tendency to be drawn to people “just like us” is critical because only then can we take action to counteract its effect.

Laura Witte, Cargill’s general counsel for the United States, suggests firms start first by ensuring their hiring committee reflects the diversity they are trying to achieve and training this committee to recognize bias. Then, firms must rethink their hiring criteria and elevate the importance of diversity in the selection process. It is important to specifically and explicitly seek out and select candidates that can bring unique talents, perspectives and life experiences to an organization.

Val Jensen, the executive director of Twin Cities Diversity in Practice (a co-sponsor of the Wilkins’ program), suggested that “in order for all people to break down the barriers that exist based on human nature, [we] must first be willing to acknowledge the existence of the other person and then be conscious of how the ‘difference(s)’ manifests itself in [our] behavior.” She said, “Often times we gravitate to someone based on a set of assumptions that may or may not be true.”

In actuality, Jensen stated, “the person who looks least like me, may have more in common with me than the person who looks most like me.”

There is no silver bullet to remedy the situation. Jensen believes it is very hard work we each need to do individually, but it can and must be done.

Wilkins ended by stating that the question is not, therefore, whether or not diversity is “good for business” but rather whether law firms can successfully adapt to an ever-increasing competitive environment that will by any measure become more multicultural, multidisciplinary and multidimensional.

Neil Hamilton is a professor of law and director of the Holloran Center for Ethical Leadership in the Professions at the University of St. Thomas School of Law. He does not speak for the law school in this column. Sarah Gillaspey is Hamilton’s research assistant and a second year law student at UST Law.

• the challenges of maintaining law firm strength in a world of individual stars; and 

• the development of new ways for clients to pay for legal services.

The book argues that lawyers “are economic actors, specially trained, but driven by all the vices and virtues of a capitalist economic system.” Morgan believes that the concepts of a “profession” and “professionalism” flowing from a social contract theory for the peer-review professions inhibit and weaken inevitably necessary responses of lawyers as economic actors to the new market realities.

Morgan writes, “[U]se of the idea of a ‘profession’ to understand the world of lawyers obstructs clear thinking about what lawyers actually do and how they have to respond to the world they face. … [W]e should not let the label ‘profession’ weaken the response to the realities that the future likely holds for legally trained persons.”

The social contract

In a market economy, the strong presumption is that an optimal outcome maximizing the public good is a competitive market with management of each enterprise controlling work to provide the goods and services consumers want at the lowest cost.

The peer-review professions, including law, have essentially argued that they are exceptions to this strong presumption because the public good benefits from some degree of greater autonomy in the work as compared to the usual employer/employee and service provider/customer for maximum profit paradigm of other occupations.

The peer-review professions have argued specifically that some degree of occupational control over the work of individual professionals through peer review will provide greater public good than the usual market paradigm. 

Paragraphs 10-13 of the preamble to the American Bar Association’s Model Rules of Professional Conduct outline the social contract for the legal profession. The black-letter rules provide for a floor of minimum standards below which the peers will discipline each other. Paragraphs 1-9 of the preamble outline the aspirational core principles and ideals to serve justice, which individual lawyers and the peer group foster.

While the profession has always been about making what paragraph 9 of the preamble calls “a satisfactory living,” inherent in the social contract is that members of the profession will restrain self-interest to some degree greater than a pure market paradigm to justify the profession’s autonomy in the work. 

The burden is on each peer-review profession to justify on an ongoing basis why members of the profession deserve some greater degree of autonomy in the work different from the usual employer/employee and service provider/customer to maximize profit paradigm. Failure to justify the greater autonomy as serving the public good leads to a renegotiation of the social contract and less professional autonomy. 

Morgan argues that lawyers are economic actors just like all other occupations in a capitalistic economic system; indeed he predicts a substantial proportion of lawyers will become a type of business consultant.  He thinks the sole justification offered for the legal profession’s social contract is that “law and legal issues are largely impenetrable by non-lawyers” so “responsibility for both has been delegated to the legal profession.” This justification, he argues, is no longer true so the “profession” and “professionalism” provide no basis for some degree of occupational control of the work.

Each lawyer and the organized bar should ask whether there are other societal benefits that justify the profession’s social contract protecting some degree of autonomy in professional work.

For example, the preamble’s first sentence calls on each lawyer to be a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice. Focusing on the role of a representative of clients, Model Rule 2.1 states that “a lawyer shall exercise independent judgment and render candid advice.” Paragraph 6 of the preamble calls all lawyers to devote professional time and resources to ensure equal access to our system of justice for the disadvantaged.

To what degree are lawyers actually living out these and other commitments for the public good of justice?

The ultimate question is not whether the concepts of a “profession” and “professionalism” in actual practice are flawed, but whether the alternative of the same employer/employee and service provider/customer to maximize profit paradigm of other occupations with no special protection for professional autonomy is more flawed in serving the public good.

Ironically, some business ethics MBA professors argue that in light of both the recent catastrophic failures of management in the financial and other sectors and a pattern of scandals recurring more frequently, the short-term profit maximization model underlying graduate business education must be changed. 

In his book “From Higher Aims to Hired Hands: The Social Transformation of American Business Schools and the Unfulfilled Promise of Management as a Profession,” Harvard Business School Professor Rakesh Khurana observes, “The loss of this historical meta-narrative of management as a profession — a narrative that had placed managers at the center of the corporation and made them the primary link between the narrower concerns of business and the broader ones of society — is, I believe, the root cause of the inchoateness and drift that, more than 125 years after the establishment of the Wharton School and nearly 100 years after the founding of Harvard Business School, characterizes much contemporary business education. The effects of this loss, in turn, are visible all around those of us who teach in business schools today.”

For a member of a peer-review profession, Khurana emphasizes, work is more than a market exchange; it is, rather, a source of meaning and identity within a community of like-minded practitioners. In sum, discipline and self restraint to some degree to preserve the good name of the professional community and advance the public good are hallmarks of a “profession.” Society could greatly benefit from this type of acculturation of business management. 

The heart of Morgan’s argument is that the concepts of a “profession” and “professionalism” are major barriers inhibiting necessary responses to changing market realities.

As an advocate for professionalism for more than two decades, I only wish that the concepts had the influence that Morgan ascribes to them. My experience is similar to Morgan’s observation that lawyers “have not responded in large numbers to calls for action made in the name of restoring professionalism.”

I do not believe in any previous golden age of professionalism, but I agree that the number of lawyers actively working on professionalism in any state currently is small and not powerful.

The Carnegie Foundation’s multiyear study of legal education, “Educating Lawyers,” found that law schools do quite poorly at acculturating students into professionalism (or a synonym, ethical professional identity). The reality is that legal education and the profession have largely not successfully fostered the internalization of professionalism concepts for law students and new entrants into the profession. 

Morgan also argues that “far from representing a social contract, the professionalism label has largely been applied by lawyers to themselves in an effort to achieve political influence and economic advancement.”

In the 22 years I have worked with lawyers on professionalism, I can’t think of one lawyer motivated principally by political influence and economic advancement, but if Morgan believes this is true, then certainly these self-interested lawyers masquerading under professionalism would pose no barrier for Morgan’s proposed responses to changing market realities.

Morgan argues, and I agree, that everyone benefits from having lawyers — and others acting alongside and in competition with lawyers — act with high character and a sense of pride and dignity in the excellence of the work. He also advocates, and I agree, that lawyers should internalize high degrees of “integrity, loyalty, competence, and confidentiality.”

My definition of professionalism drawn from the ABA professionalism reports includes also public service, respect for the legal system, independent professional judgment, peer review and self-restraint in seeking sustainable profits. Morgan notes, and I agree, that all legal service providers exercise implicit moral judgments when they decide how to act on matters that they handle, and society benefits if these are good moral judgments.

Morgan thinks, and here I strongly disagree, that we can achieve these goals better by saying the “profession” and “professionalism” are dead. On the contrary, I think legal education and the profession have just begun to learn how effectively to foster professionalism — a strong ethical professional identity — in new entrants and veteran practitioners.

Some law schools and schools in the health professions are making progress on pedagogies that foster an ethical professional identity. The empirical data strongly support the hypothesis that adult moral formation continues to occur throughout education, including graduate education. We must give this effort a chance to help new entrants internalize the strong ethical identity toward concepts of responsibility and duty to the public good that both Morgan and I (and many business ethics professors in the MBA programs) agree are important. These concepts of responsibility and duty flow from “profession” and “professionalism.”

Finally, I strongly disagree with Morgan that if law students and new entrants into the profession internalize a strong ethical professional identity (professionalism), this will inhibit effective responses to changing market realities.

The empirical data available point in exactly the opposite direction. 

What are friends for if not a good debate?

This article was written by Neil Hamilton who is a professor of law and director of the Holloran Center for Ethical Leadership in the Professions at the University of St. Thomas School of Law. It was originally published in Minnesota Lawyer on April 30, 2010. He does not speak for the law school in this blog.

What is it like to live in chaos?  Where walking down the street to the grocery store or to school means risking your life?  When bombing and shelling and shooting become a part of everyday life? From 1992 to 1995, this was the reality of the siege of Sarajevo, the subject of a recent Medtronic Business and Law Roundtable sponsored by the Holloran Center for Ethical Leadership.

What is it like when it all stops?  Zoran Lesic, a native of Sarajevo who had been trapped in that city, who traveled from The Hague to participate in the program, described it this way to a large audience at the University of St. Thomas, “I suddenly had the feeling of butterflies in my stomach.”  He realized why – the silence.  But the silence of the end of bombings and shelling and shooting, was not the end of the chaos.  For those caught in the siege of Sarajevo, the chaos will continue for the rest of their lives.  And yet the intersection of those memories of the chaos with the law of nations were instrumental for prosecutors Alex Whiting and John Docherty from the International Criminal Tribunal for the former Yugoslavia (ICTY) to convict Dragomir Milosevic, a former Bosnian Serb general, of war crimes and crimes against humanity. 

For many Bosnians the past is a painful thing to be remembered.  More than one thousand civilians were killed or injured during the siege of Sarajevo. It took proof of 27 separate incidents of murder and mayhem for the prosecutors to connect Dragomir Milosevic to the crimes of terror inflicted upon the city.  Alex Whiting recounted the story of Dzenana Sokolovic, where a single sniper’s bullet both wounded her and killed her young son.  Later John Docherty described the tragedy of the Markale Market bombings that took 38 civilian lives and injured hundreds of others.  The recounting of these two events, which included gripping video footage of the aftermath of both incidents, painted a poignant picture of the frightening reality of life during the siege.  The video footage graphically illustrated how the main casualties of the siege were suffered not by uniformed soldiers on the battlefield, but by the city’s civilian population.  Whiting and Docherty also described the complications of prosecuting crimes with evidence grounded in the memories of survivors.  While at times inconsistencies arose among testimonies and political pressures influenced the presentation of cases, the memories nonetheless were of crucial importance to proving the responsibility of Dragomir Milosevic for his soldiers’ conduct that caused so many innocent casualties.  It was from these memories that the prosecution team was able to piece together the victims’ stories that created the legal framework in which to convict Dragomir Milosevic of terror and murder. 

 A picture may be worth a thousand words, but a memory lasts a lifetime.  The prosecution of Dragomir Milosevic displayed how the international community came together in the pursuit of justice.   The Tribunal’s conviction of Dragomir Milosevic and his 29 year sentence of imprisonment may have produced some sense of just punishment, but it can never fully repair the shattered lives of those who survived the siege of Sarajevo. 

Stephanie Gadow is a 1L University of St. Thomas School of Law.

Has your business or organization had to engage in costly litigation with a supplier, customer, or some other entity with whom you want to maintain an ongoing relationship? Do you wish that you had been able to pursue a cheaper, less confrontational alternative to obtain a better result? For some, this might involve utilizing Alternative Dispute Resolution (“ADR”). But if you’re a bold and innovative business leader, you should hire a lawyer who practices “collaborative law.”

While many are familiar with the traditional concepts of ADR, few—even those in the legal field—have heard of the term “collaborative law”, which literally grew out of our own backyard in Minnesota. In 1990, a family law attorney, Stu Webb, came to the realization that there was a better way to solve family law disputes than through the ill-will, pain, and expense caused by the traditional adversarial system. Webb’s solution settle disputes without litigation through a process he named collaborative law. Today, not twenty years later, collaborative law is being practiced throughout the world—including most U.S. states—and by more than 4,000 thousand attorneys in the U.S. and Canada, according to Webb in 2004.

What sets collaborative law apart from mediation, arbitration, and traditional litigation, is that it gives clients more control over the process and outcome by allowing the clients to choose their own “fate” as one collaborative law practitioner describes it, and make the tactical decisions for themselves. This begs the question, “why use attorneys at all?” but attorneys are a required part of the process in order to help initiate discuss and indentify the issues that need resolving. Another difference from other forms of legal practice is the “participation agreement” that is signed by the parties and their respective attorneys. In the traditional model of collaborative law, part of the participation agreement requires that the parties agree to attempt to solve their dispute without going to court except to file a final agreement. If negotiations fail, the parties can still go to court, but must retain new counsel. This is the hallmark of collaborative law and many practitioners say that it is an essential tool to creating an environment where the parties and their attorneys are committed to working together in order to reach a settlement.

There are a variety of outgrowths of collaborative law that use the same basic tenets, but one variation allows parties to begin in the collaborative law framework, but still go to court with their original attorneys in instance where they cannot come to an agreement. According to collaborative law practitioner, David Hoffman, this could be a better format for moving collaborative law into other practice areas including business disputes. In his article, Collaborative Law in the World of Business, Hoffman highlights several reasons why collaborative law could be utilized in a variety of legal disputes. One of the main factors is that in many business relationships there is a need to maintain a healthy ongoing relationship between the parties. Specifically with contract disputes, parties will have to continue to work together—especially if performance of the settlement will take a while to occur. In addition, collaborative law allows matters to be kept confidential, as opposed to traditional litigation. If a company must produce numerous business documents and defend several depositions, there is a risk that it might face more interest in the press. Furthermore, parties can save money using this form of law by sharing the cost of experts and because their attorneys will have less billable hours since the process usually requires less time than complying with court procedures used in litigation.

Collaborative law presents many benefits to the business community and although it might not be for everyone, it is certainly something to think about especially when confronted with a legal problem where the other party is someone with whom you would like to maintain a workable relationship. Some scholars argue that it is an unrealistic framework for business or other legal disputes but despite these criticisms, attorneys and their clients around the world are still using the model to solve a variety of matters. People should also keep in mind that it took a while for the legal and business community to fully embrace alternative dispute resolution mechanisms like mediation and arbitration. With more time and an expanded acceptance by clients and legal practitioners alike, it seems certain that collaborative law will take root like its older ADR relatives and could turn out to the best way to solve your legal problems. 

Garin Strobl is a 3L at the University of St. Thomas School of Law and a research assistant for the Holloran Center for Ethical Leadership in the Professions.