Minnesota Lawyer Publication
Developing cultures of high professional aspiration
By Prof. Neil Hamilton | January 1, 2001
My last two columns explored the ethics of peer review in the contexts of both the entire profession and the individual law firm. The goal of peer review is to create peer collegia of both high aspiration in terms of professional ideals and effective peer review to maintain minimum professional standards of competence and ethical conduct. What role does ethical leadership play in realizing this goal?
The premise here is that the culture or house norms of the law firm or the local professional community play the dominant roles in the way a lawyer practices the profession. Culture in many respects is more important than rules. Professional communities form a collective conscience where the competing pressures of professional life are worked out and the ideals of the profession reach some realization or are not realized.
Professors Amy and Leon Kass observe that, "Ethics" and "morality" have their source in "ethos" and "mores," words that refer to the ways and attitudes, manners and habits, sensibilities and customs that shape and define a community. Communities are built upon shared understandings, usually tacitly conveyed, not only of what is right and wrong or good and bad, but also of who we are, how we stand, what things mean. These matters are not well taught by ethics codes.
Similarly, Professor Michael Katz notes that the ideal university or college should be a community of persons united by collective understandings, by common and communal goals, by bonds of reciprocal obligation, and by a flow of sentiment which makes the preservation of community an object of desire, not merely a matter of prudence or a command of duty. Community implies a form of social obligation governed by principles different from those operative in the marketplace and the state.
Commentary on leadership in the legal profession borrows from the management literature on for profit or non-profit corporations and typically focuses on hierarchical leadership or management, not on the peer collegium's role in maintaining professional tradition and defining peer culture. Such emphasis is a consequence of the market's relentless reductive pressure to frame all relationships in purely economic terms of employer/employee or service provider/customer.
We know little about how the collective conscience of a peer collegium is formed and maintained. We also know very little about how ethical leadership from within a peer collegium works. This is an area where substantial research is needed.
Common sense suggests that to invigorate professional ideals, the task for lawyers is the constitution or reconstitution of professional communities (this time without the ethnic, gender, and class exclusions that defined the old communities). This cannot be done nationally; it must be done locally.
How do local communities of legal professionals foster ethical leadership and commitment to the ideals of the profession? The key is to remember that the commitment to professional ideals flows principally from non-monetary recognition. Prof. Lewis Hyde distinguishes commodity exchange from gift exchange in describing this type of commitment. In a commodity exchange, there is an exchange of equal value between a buyer and a seller. With a gift exchange, unlike the sale of a commodity, the giving of a gift tends to establish a relationship between the parties involved. Furthermore, when gifts circulate within a group, their commerce leaves a series of interconnected relationships in its wake, and a kind of decentralized cohesiveness emerges.
The cardinal difference between a gift and commodity exchange is that a gift establishes a feeling, a bond between people, while the sale of a commodity leaves no necessary connection. As an example, Hyde notes that in the academic profession, historically those who create knowledge circulate it as a gift and not as a commodity for sale at a profit. In the legal profession, pro bono work and service for law reform are similar examples.
The learned professions exist simultaneously in both commodity and gift exchange and must maintain a balance between them. The professional deserves to earn a living, but the spirit of the exchange is that the professional restrains self-interest to help the person served. Hyde comments that a gift circulates above the cash. Reflect for a moment on the most meaningful relationships in your life with a professor, a physician, a clergy person, or a lawyer. Such relationships involve a measure of care and faithfulness that are gifts. We cannot buy the gift; it is bestowed on us.
Hyde concludes by noting that in communities drawn together by gift exchange, recognition, prestige and esteem to a significant degree take the place of cash remuneration. Yes there may be ambition and egotism, but recognition from the community is achieved principally by donation, not by acquisition. The circulation of gifts generates and maintains a coherent community, whereas the conversion of gifts to commodities fragments and destroys such communities.
For example, physician Ronald Dworkin wrote recently that the principles that have governed the medical profession for hundreds of years have changed. Earlier, physicians were rewarded not with the highest salaries, but with an adequate living and more intangible pleasures: they had professional autonomy; they were looked up to and admired both by their peers and wider communities; they were perceived to be the pillars of society; they had the gratitude of their patients. "Now that doctors get little more out of their work than a pay check, the money is much more important to them and they increasingly try to make more of it," Dworkin wrote.
Leadership from within a law firm or local professional community has a duty to create a culture of high aspiration with respect to the goals and ideals of the profession (including shared governance duties).
Former Maryland Law Dean Michael Kelly observes that in the legal profession, law firm culture plays the dominant role in the way a lawyer practices. One striking characteristic of the two firms Kelly studied in depth "is the pride expressed by their lawyers, their sense of the firm's special character, the feeling that they are a community that expresses certain values."
Law firm management consultants, Texas Tech Law Professor Susan Fortney notes, urge leading partners to create a positive collegial culture where quality and professionalism are revered to the point that lawyer autonomy is secondary. Ideally lawyers in the firm come to view interdependence in a positive, community light rather than as a policing function.
In order to foster both a commitment to profession's distinctive ideal of public service and restraint in self-interest, the peer collegium must be a community drawn together by gift, not merely commodity, exchange. The peer community must be intentional about giving recognition, prestige, esteem and appreciation for governance and service contributions necessary to build a strong ethical culture. Essentially this comes down to taking the time to express appreciation and recognition, both privately and publicly.
Much of "what we value here together," or "what is uniquely special about being a member of this peer collegium" is passed from one generation of peers to another through story and parable. Some law firms are trying to structure events where senior members of the firm tell stories about what it means to them to be a member of the firm. Peer associations should emphasize events to honor those who are examples of the highest professional ideals.
Prof. Neil Hamilton is Trustees' Professor of Law at William Mitchell School of Law.