The Link Between Effectiveness and Ethical Professional Identity Neil Hamilton and Verna Monson November 30, 2010 Since opening in 2001, the University of St. Thomas School of Law has had a distinctive mission – “as a Catholic law school … dedicated to integrating faith and reason in a search for truth through a focus on morality and social justice.” This mission focuses on formation of each student. We have endeavored to create a curriculum and a culture in which each student can develop the knowledge and skills essential to becoming an excellent lawyer while also forming an ethical professional identity integrated with the student’s faith and moral compass.The Carnegie Foundation for the Advancement of Teaching’s 2007 study of legal education, “Educating Lawyers,” strongly endorses this distinctive School of Law mission. “Educating Lawyers” emphasizes that an ethical professional identity gives necessary purpose and direction to what Carnegie refers to as the first apprenticeship of cognitive analytical skill (thinking like a lawyer) and the second apprenticeship of the other practical skills of lawyering. In addition, Carnegie notes that an internalized professionalism by definition means that the law student is seeking excellence at the skills of the first and second apprenticeships.The most distinctive features of the UST Law educational experience have to do with the third apprenticeship – ethical professional identity. The School of Law is leading legal education toward Carnegie’s goal that “The moral development of professionals requires a holistic approach to the educational experience that can grasp its formative effects as a whole.”1 Jerry Organ and Neil Hamilton are working on an article analyzing the entire formation curriculum and culture at the law school; clearly the Mentor Externship is an important part of this holistic approach.Borrowing from our longer article, “The Empirical Relationship of Professionalism to Effectiveness in the Practice of Law,” which will be published in Volume 24 of the Georgetown Journal of Legal Ethics (http://ssrn.com /abstract=1495824), this essay first defines an ethical professional identity or professionalism. We then turn to the relationship of an ethical professional identity to effectiveness in the practice of law.I. A Conceptual Model of ProfessionalismLegal scholars have not been able to construct and agree upon a widely accepted, clear and succinct definition of professionalism. Through an analysis and synthesis of the ABA’s and Conference of Chief Justices’ professionalism reports, the ABA’s Model Rules, and the Carnegie Foundation’s research on legal education, we defined a tri-partite model of professionalism consisting of (1) Personal Conscience, (2) the Ethics of Duty, and (3) the Ethics of Aspiration. Personal conscience is an analog to moral psychologist James Rest’s Four Component Model of morality, a developmental, multidimensional model described below that encompasses cognitive, social and emotional capacities. The Ethics of Duty is required content in the law school curriculum, including “instruction in matters such as the law of lawyering and the Model Rules of Professional Conduct” and represents the minimum floor of competence and ethical conduct. The Ethics of Aspiration include the core principles and ideals that guide the profession and its members.A. Personal Conscience and James Rest’s Four Component ModelPersonal conscience in our model is an awareness of the moral goodness or blameworthiness of one’s own intentions and conduct together with a feeling of obligation to be and do what is morally good. Personal conscience in this definition thus includes awareness that the person’s conduct is having an effect on others, a reasoning process to determine the moral goodness or blameworthiness of the person’s intentions or conduct and a sense of obligation to be and to do what is morally right. Archbishop Harry Flynn defined personal conscience as applying the law of love in the circumstances of daily life.The Preamble to the ABA Model Rules specifically provides that “a lawyer is also guided by personal conscience,” and emphasizes that “within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment.” The foundation of personal conscience for each lawyer was developing before and continues growing long after law school.The ABA and Conference of Chief Justices’ reports on professionalism also emphasize the importance of self-reflection, feedback from others and dialogue with others about moral dilemmas for career-long professional growth. These are critical habits and skills in particular to foster the growth of personal conscience.As an analog to this definition of personal conscience, the Four Component Model (FCM) of morality has direct relevance to the professions. The FCM’s understanding of morality focuses on the social condition that humans live in groups and what one person does can affect others. In light of the understanding that what each person does can affect others, morality provides guidelines for both optimizing the mutual benefit of people living in groups and resolving conflicts among them. The FCM posits that sensitivity, judgment, moral motivation or identity, and implementation are distinct psychosocial capacities that predict or explain moral action. Capacities that are inaccessible or underdeveloped may interfere with moral behavior.The FCM provides a conceptual framework for individuals to internalize the black-letter rules as well as ethical-social principles and ideals of the profession into the moral self. The FCM is useful both to understanding personal conscience before law school and to understand and assess the internalization process of the profession’s ethical-social values during and after law school.A1. Moral SensitivityJames Rest posited that moral reasoning and ultimately moral action can only occur if the individual codes a situation as involving moral issues. Moral sensitivity is an awareness of how an individual’s actions affect other people.2 Rest viewed empathy – the vicarious experience of another person’s feelings, thoughts and situation – as an analog to moral sensitivity. Christianity puts a high value on empathy as part of love of neighbor. In the context of the legal profession, we refer to moral sensitivity as perceptual clarity and empathy.A2. Moral JudgmentMoral judgment is the ability to provide a sound rationale for one’s decision about a moral problem. As we mature, our reasoning and judgment become more complex, and we tend to move from reasoning and judgment based on personal interests such as greed or fear, to a more full analysis of the implications of our judgment on others. Our level of moral judgment capacity affects how we perceive moral issues and how we resolve them.Rest and others defined three moral schemas, or mental maps, that shape how we perceive moral problems and reason about how to resolve moral issues: (1) personal interests meaning reasoning dominated by self-interest, fear of authority and lack of autonomy or personal responsibility; (2) maintaining norms meaning reasoning focused on existing norms, rules, codes, and laws; and (3) post conventional meaning reasoning involving appeals to a coherent theory of normative ethics.3 Normative ethics can flow from one of two general sources: (1) an ethics derived from principles found in faith or religious teachings or moral philosophy like Kant’s categorical imperative or Mill’s utilitarianism; or (2) an ethics that is more intuitive derived from the virtues and good habits of character appropriate to the situation. Virtue ethics also can be drawn from faith or religious teachings.A3. Moral Motivation and Identity The third component is conceptualized as motivation and commitment as well as identity formation, referring to how the individual conceptualizes the moral self. The prioritization of moral values involving concern for others over other competing values, needs or interests are key features of the formation of the moral self. Lapsley and Narvaez describe the role of the moral self as pivotal in closing the gap between knowing and doing what is just or good.4 Professional identity formation also involves weighing the obligation of the profession to society against one’s self-interest.How individuals make sense of the self tends to evolve over time from less to more complex. In childhood, self-interest may dominate our thinking, and our perspectives of people or problems are shaped or defined by our family or peers. But as we encounter new challenges and resolve them, our thinking can grow to encompass more diverse and complex perspectives. Research of Kegan and Lahey reveals a developmental continuum of identity, proceeding in a sequence from self-interest and concreteness of thought, to more other-oriented and abstract ways of making sense of the self.5 At more complex levels of identity formation, the individual’s personal and moral values are fully integrated and consistent across context and situation.Professional moral identity involves the internalization of the profession’s codes, core principles and ideals while subordinating one’s personal interests to some degree to the higher aim of serving clients and society. In studies of individuals considered by their peers as moral exemplars, a distinguishing characteristic is the moral exemplar’s viewpoint that “doing good” in the area of the profession’s responsibility is an obligation that is non-negotiable. It is seen as a central purpose of their life and profession. Rather than seeing themselves as morally courageous or exceptional, these individuals have fully integrated their professional and personal values and take action based on those values.A4. Moral Implementation: Conscience in Action –Interpersonal Abilities The fourth component involves the process of implementation of the decision which involves moral character and competence. According to Rest, Component 4 involves executing and implementing a plan of action [and] involves figuring out the sequence of concrete actions, working around impediments and unexpected difficulties, overcoming fatigue and frustration, resisting distractions and allurements, and keeping sight of the eventual goal.6Moral implementation consists of carrying out a moral decision. In the professions, moral implementation is typically social, involving interpersonal interaction between clients, peers, colleagues, superiors or others in the community including adversaries. Elements of morality are reflected in interpersonal relationships through demonstrating respect for others, being fair, showing concern for others’ well being, taking responsibility for one’s errors or misjudgments; or taking risks to contribute to the greater good. Moral implementation involves informing, persuading, or negotiating with others with respect to the moral dimensions of problems. It may involve sustained efforts over time to address a problem in society or to build trust in situations torn by conflict. Perseverance, creative problem solving and resistance in conforming to corrupt peers or authority are also important in moral implementation.B. The Ethics of DutyABA accreditation standards direct law schools to provide each student with instruction on “the history, goals, structure, values, rules and responsibilities of the legal profession and its members.” This includes “instruction in matters such as the law of lawyering and the Model Rules of Professional Conduct.” Of course, required instruction on the law of lawyering and the professional rules of ethics does not mean that a student or lawyer has internalized and committed to the ethics of duty. However, disciplinary authorities, judges, malpractice litigation exposure, and law firm or department risk management programs all provide some external check on lawyer compliance with the ethics of duty. Risk management, properly conceived, actually includes both the ethics of duty and the ethics of aspiration. C. The Ethics of AspirationThe accreditation standards go beyond instruction on the law of lawyering and the ethical rules to require instruction on the “values” and “responsibilities” of the profession. The standards do not further define values and responsibilities, but in this context, the words mean the core principles and ideals that guide the profession and its members. The core principles and ideals apparent in the ABA and Conference of Chief Justice professionalism reports and the ABA Model Rules are: • Competent representation, including reasonable diligence and reasonable communication with the client;• Loyalty to the client;• Confidentiality of client information;• Zealous advocacy on behalf of the client, constrained by the officer of the legal system role;• Independent professional judgment;• Peer review to hold other lawyers accountable for meeting the ethics of duty and to encourage them to realize the core principles and ideals of the profession;• Self-restraint where self-interest in sustainable profitability is balanced with devotion to the client and the public good;• Public service;• Respect for the legal system and all persons involved in the legal system;• Commitment to seek and realize excellence at both the skills of the profession and the other core principles and ideals of the profession;• Integrity;• Honesty; and,• Fairness.7D. Synergistic and Developmental NatureIn our model, the foundation of professionalism is the individual’s perceptual, reasoning, motivational and implementation capacities related to moral issues or personal conscience – an analog to Rest’s model of moral behavior. Personal conscience refers to a constellation of psychosocial moral capacities that can continue to develop across the lifespan. Integration of personal conscience with the ethics of duty and the ethics of aspiration spurs growth that results in professional effectiveness.The inter-relationships among the three components of professionalism are analogous to an onion, where the outer layer is the most easily observed and measured. The onion’s outer layer of the ethics of duty is commonly measured at the time of passing the bar examination in terms of testing doctrinal knowledge. During the years of practice, colleagues in the firm and the profession, including judges, observe the degree to which a lawyer complies with the ethics of duty. Doctrinal knowledge of the ethics of aspiration is similarly more straight forward to measure, but authentically “walking the talk” with both components requires some level of personal conscience. With respect to the core of personal conscience, the first three components of personal conscience are visualized as interior (intrapersonal) capacities, and the fourth component of moral implementation is visualized as conscience in action and involving principally interpersonal abilities.To develop the ethics of duty “outer layer” of the onion, the typical law school educational strategy involves mastery of knowledge and skills, measured through law school grades, bar exams and performance assessments. Law schools in general have no planned curricular or assessment strategy with respect to helping students either internalize the ethics of aspiration “outer layer” of the onion or grow in personal conscience. One meaning of the onion model is that development of the “outer layers” should also be approached by focusing on the inner core – through education and experiences that foster self-reflection, solicitation of feedback from others and dialogue with others about moral dilemmas. The internalization of the ethics of aspiration and growth in personal conscience also occurs over a career. This approach represents a more transformational model of development than the rote learning of “floor” doctrinal knowledge and application of traditional legal analysis to that knowledge.II. Definition of EffectivenessWe move now to an analysis of the underlying qualities and skills that clients and experienced lawyers and judges define as necessary for a lawyer to be effective. We are using “effective” in the sense of accomplishing the purpose that clients and colleagues in a firm desire and value.Shultz and Zedeck conducted the most recent empirical study defining effectiveness in 2008 based on a survey of over 2,000 University of California Berkeley law school alumni responding to questions such as “If you were looking for a lawyer for an important matter for yourself, what qualities would you be looking for?”8 From the responses, they distilled 26 factors important to being an effective lawyer grouped into eight umbrella categories including: (1) the intellectual and cognitive skills, including creative problem solving and practical judgment; (2) research and information gathering skills; (3) planning and organizing skills; (4) communications skills, including listening; (5) conflict-resolution skills, including the ability to see the world through the eyes of others; (6) client and business relationship skills, including counseling, networking and business development skills; (7) working with others’ skills; and (8) the quality of character including diligence, integrity/honesty, public service and reflective self-development.The Shultz and Zedeck study’s eight umbrella categories of factors important to being an effective lawyer match up well with the three apprenticeships that the Carnegie Foundation identified as the purpose of legal education, after both an interview study of 16 law schools and wide consultation with legal scholars. In both “Educating Lawyers” and “Educating Clergy,” the Carnegie Foundation identified three apprenticeships necessary for entry and advancement in all of the peer-review professions: (1) the cognitive or intellectual apprenticeship of the profession’s unique analytical skills applied to the profession’s doctrinal knowledge; (2) the practical apprenticeship of the other skills necessary for professional life; and (3) an apprenticeship of professional identity formation that provides the ethical foundation for the other two apprenticeships. The apprenticeship of formation into an ethical professional identity is professionalism is the meaning used here. Shultz and Zedek’s umbrella category of the intellectual and cognitive skills is the focus of Carnegie’s first apprenticeship, and the second through seventh umbrella categories are the focus of Carnegie’s second apprenticeship. The eighth umbrella category of character is the focus of the third apprenticeship. The Shultz and Zedeck study emphasizes the importance of relationship skills like listening, the ability to see the world through the eyes of others, client and business relationship skills like counseling and networking, and working with others’ skills. There is some overlap between these skills in the second apprenticeship and the virtues and qualities emphasized in the third apprenticeship like empathy and respect for the dignity of all persons.Two large-scale empirical studies of practicing lawyers published in 1993 and 2000 made similar findings about 17 important skills for the practice of law.9 These two studies did not group the skills into umbrella categories but the studies concur with the Shultz and Zedeck study about the importance of analytical and problem-solving skills, relationship skills, and sensitivity to professional and ethical concerns. A 2007 synthesis of qualitative empirical research and scholarly articles on clinical legal education list similar key qualities and skills for effective practice: competence, independent professional judgment, respect for the legal system and those who work in it, commitment to public service and a commitment to excellence, integrity, honesty and fairness.10In a 2006 survey of how firms evaluate associates including responses from 124 managing partners, the NALP Foundation reported that the most important factors in associate evaluations were the quality of work and client relationship skills, followed by billable hours and relationship skills with other attorneys in the firm. Relationship skills with support staff and business management skills were next in importance.11III. Alignment of Professionalism and EffectivenessWe observe significant alignment between the elements of professionalism and empirical research on how lawyers define effectiveness. The foundation of professionalism, personal conscience, is clearly reflected in the Shultz and Zedeck study where character is one major category of effectiveness, including honesty and integrity and reflective self-development.In addition, the Four Component Model, as an analog of personal conscience, has many elements that align closely with the empirical evidence on professional effectiveness, especially the relationship skills necessary for effectiveness. Perceptual clarity and empathy include awareness of how a person’s actions affect other people. Moral implementation requires relationship skills, including counseling, listening, good communication, conflict resolution, negotiation, persuasion and creative problem solving. The empirical research on lawyer effectiveness emphasizes the same relationship qualities and skills. For example, the lawyer respondents in the Shultz and Zedeck study emphasized excellence with respect to both cognitive skills and the other technical lawyering skills, counseling, networking, teamwork, and client-development skills.IV. Mentor Externship Fosters Ethical Professional Identity and EffectivenessAs the articles in this magazine issue make clear, the Mentor Externship Program is focused on fostering students’ relationship skills and the skills of reflection, feedback from others and dialogue with others about moral issues. The skills that students learn foster a foundation of ethical professional identity that contributes strongly to each graduate’s effectiveness in the practice of law.FOOTNOTES AND AUTHOR INFORMATION – See this article in St. Thomas Lawyer on the Web: www.stthomas.edu/lawmagazine/2010/Summer2010/index.htmlRead more from St. Thomas Lawyer.