Minnesota Lawyer Publication
A new world view: Zealous advocate and ethical leader
By Neil Hamilton | November 11, 2002
One hundred and fifty years ago, Alexis de Tocqueville predicted that a society eliminating the traditional privileges of class in favor of a government based on "laws not men" would inevitably rely on a newly privileged class of experts whose knowledge of the law would give them exceptional power. The legal profession, the only profession in control of one branch of government and over 1 million strong, has largely fulfilled de Tocqueville's prophecy.
There is no question that lawyers have power, but do they use that power to exercise ethical leadership in our society? The concept that lawyers should be ethical leaders is implicit in the first sentence of the Preamble to the Rules of Professional Conduct: "A lawyer is a representative of clients, an officer of the legal system, and a public citizen having a special responsibility for the quality of justice."
Lawyers, however, are not socialized to see themselves as ethical leaders. They are socialized to focus on just the first clause of the Preamble's first sentence and to serve as zealous advocates in the representation of clients.
Paragraph 2 of the Preamble provides, "As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." This zealous advocacy role is morally justifiable when the lawyer is dealing with a well-represented adversary and there is a competent unbiased decision maker in civil and criminal litigation.
Paragraph 7 of the Preamble states, "Thus when an opposing party is well-represented, a lawyer can be a zealous advocate on behalf of the client and assume justice is being done."
In contexts outside of the relationships between adversaries in civil and criminal litigation, a lawyer should not be in zealous advocacy role morality. In negotiation, for example, Paragraph 2 of the Preamble provides, "A lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others."
The morality of honest dealing is not the same as the morality of zealous advocacy. The zealous advocacy role morality would, however, apply to negotiations in a litigation context subject to ultimate review by a competent, neutral decision maker.
Susceptible to excess
The social compact of the profession with the society also constrains the zealous advocacy role. The tradition of the learned professions and their social compact with society are that self-interest is restrained to some degree in the service of the transcendental purpose of the profession, in our case, justice.
Paragraph 8 of the Preamble states that we are to earn "a satisfactory living" while balancing "a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person." The law schools and the profession give almost no attention to what is "a satisfactory living" or how to balance these responsibilities. It is critical for each law student and lawyer to define for him or herself how much is enough.
The zealous advocacy role morality is highly susceptible to excess; incentives of income and wealth embedded in the market encourage conduct that does not serve justice. As law firms move beyond "a satisfactory living" to define a lawyer's value by billable hours and net profit, zealous advocacy slides easily toward "gaming" the rules, doing whatever the client wants to win, and losing independent professional judgment.
Zealous advocacy in the representation of clients in litigation, properly balanced by the lawyer's other roles as officer of the legal system and public citizen responsible for justice, and held in check by self-restraint in the pursuit of income and wealth, serves a valuable purpose in our adversary system of justice.
However, as Paragraph 7 of the Preamble notes, it is not morally justifiable when the other side is not "well-represented." It is also not morally justifiable outside of processes where there is a neutral, unbiased decision maker. Against adversaries, many in the profession adopt zealous advocacy role morality even when the conditions providing its moral justification are not met.
It is absolutely clear that zealous advocacy role morality is not appropriate outside of adversarial relationships. It does not apply in relationships with clients, with peers in a law firm or in the profession, or with other citizens in community engagement.
The excessive emphasis of law schools and the profession on the zealous advocacy role morality encourages lawyers to see themselves and clients to see lawyers as hired guns or legal technicians.
A necessary shift
The profession must shift its world view to socialize law students and lawyers into the use of zealous advocacy only against well-represented adversaries before a competent neutral decision maker.
In all other contexts, especially relationships with the client, with peers in a law department or firm or in the wider profession, and with the wider community, the profession should socialize law students and lawyers into a world view of ethical leadership.
What would a role morality of ethical leadership in the contexts where a lawyer serves outside of the relationship with adversaries look like? For example, how would a lawyer exercise ethical leadership in the context of the client relationship? This is a complex skill set because the lawyer is a counselor, not the ultimate decision maker.
The objective of the lawyer, under Rule 2.1, is to exercise independent professional judgment in assisting the client to think through the client?s best interests in the context of the representation from the client's shoes. Clients bring different stages of moral reasoning and development to this engagement. Exercising ethical leadership in the relationship, the lawyer is to assist the client to explore the issues in ways the client may not yet have thought about - to stretch the client's moral reasoning - using a language that the client can understand.
My October column on business ethics outlined how a lawyer can use the language and analytical tools of business ethics and business risk to provide ethical leadership in the counseling role for a business organization (either for-profit or nonprofit). In future columns, I will explore ethical leadership in counseling in individual and government representations.
Patience and pertinacity
There is an obvious danger for the lawyer to slide into moralizing that the client will find offensive or that becomes paternalistic, or for clients, accustomed to using the lawyer as a legal technician or hired gun, to resist this type of counsel.
A good counselor assesses the situation and finds an appropriate path. Patience and pertinacity are great virtues in introducing a new concept to others.
Of course, lawyers themselves are at different stages of moral reasoning and development. To use myself as an example, I am a far more capable counselor for my students at the age of 56 than at 28 when I started teaching. My observation is that the best lawyers, as they gain in life and practice experience, grow both in their moral reasoning, problem solving and counseling skills, and become trusted advisers to their clients.
How would a lawyer exercise ethical leadership in the contexts of the law firm or department, the profession and the wider community?
There would be substantial overlap between the skills necessary for moral engagement in the client counseling role and the skills of moral engagement in these relationships with peers and the community. A lawyer would need in addition some sense of strategic planning and implementation.
A world view of our profession that combines the roles of zealous advocate and ethical leader would be a revolutionary change for the law schools. Law school curricula currently lean strongly into the zealous advocacy role morality where ethics are largely defined as compliance with the Rules of Professional Conduct.
My survey of law school curricula indicates only two law schools with courses focusing on the counseling of for-profit corporations, and none that have courses focusing on the counseling of nonprofits or government. This is true even though a significant majority of total lawyer time in this country goes to representing organizations.
A number of law schools have courses that focus on the counseling of individuals, but these courses generally look at the subject through "client-centered counseling" which emphasizes a lawyer's moral neutrality in the counseling of clients. An ethical leadership model would provide for more than just moral neutrality.
Borrowing from business
The law schools can learn from the business schools about this type of education. University of St. Thomas (UST) Business and Law School Professor Tom Holloran (former Fredrikson partner, CEO of Dain Rauscher, and president of Medtronic), Professor Ken Goodpaster, holder of the Koch Chair in Business Ethics at the UST Business School, and I are creating a course titled "Counseling and Ethical Leadership in the Corporate Practice" for the fall of 2003. This course would ultimately have three strands, one for corporate practice, one for government and nonprofit practice, and one for practice that focuses on individuals. It would borrow from the case study methodology that business schools use in business ethics courses.
Many of the cases used in business ethics courses have a substantial law component. The cases to be discussed in the course would be organized around the following themes:
- Ethical leadership flows from knowing yourself (Who are you? What are the first principles that guide your conduct? What is your life purpose? What role does money play with respect to your life purpose and first principles? What role does your faith play?);
- Ethical leadership in the corporate client relationship;
- Ethical leadership in the context of the law firm or department;
- Ethical leadership in the legal profession and justice system;
- Ethical leadership in the community; and
- Ethical leadership with adversaries.
The largest number of classes will focus on ethical leadership in the client relationship.
The students would work through the problems in teams outside of class. Each class session would have a team of a senior lawyer and senior executive (for the part on client relationships) or a team of senior lawyers (for the other parts) to discuss several case studies with the students and the team of professors. The idea is to present the students with models of lawyers who have successfully integrated making a satisfactory living and serving as a zealous advocate and ethical leader. Ultimately the course would combine both business and law students.
Max Weber predicted more than 100 years ago that the unique moralities of the learned professions, dedicated to transcendental purposes, in our case, justice, could not withstand the pressure of the market over time to define all relationships as simply customer/service provider or employer/employee for profit.
The world view of our profession into which we currently socialize law students and lawyers, zealous advocacy, is not strong enough to withstand the market over the long haul, indeed it slides toward excess when rewarded by market incentives. We need to socialize law students and lawyers into a new world view that combines zealous advocacy with ethical leadership.
Neil W. Hamilton is a Professor of Law and Faculty Adviser to the Mentor Program at the University of St. Thomas School of Law. To contact him, send an e-mail to firstname.lastname@example.org.