Professionalism and Values in Law Practice

Robert Feldman

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429534904
• Edition: 1
• Topic: Business
• Subtopic: Business General
• Index: Business

This book presents practical advice to law students and those entering and now working in the legal profession that will help them to reconcile who they are as a person with the demands and opportunities of a legal career.

The book sets out a clear framework and practice examples for: (i) defining "success", (ii) understanding the role of a professional in relation to clients, colleagues, adversaries and community, (iii) reconciling demands of practice within ethical rules and norms, business considerations and personal values and (iv) building a values-centered, economically viable practice and reputation.

Complete with practical advice and experiences that produce and reinforce a holistic approach, this book provides invaluable support for second- and third-year law students and lawyers in practice to establish elusive work-life balance over the course of a legal career.

Section 1 Awareness of balance between business, ethics and values in law practice

Chapter 1 The values-driven professional and Giving Voice to Values

All professionals face the challenge of identifying and balancing their individual values with the demands of the profession, clients and economic motivations. Professor Mary Gentile’s curriculum and pedagogical approach to values-driven leadership development, Giving Voice to Values, based at the Darden School of Business at the University of Virginia, seeks to address these values/business issues in a broader context. This book follows the Giving Voice to Values “approach to values-driven action [as] one of alignment, of moving with our highest aspirations and our deepest sense of who we wish to be, rather than a stance of coercion and stern judgement or moving against our inclinations.”¹ However, we examine values-driven actions in the specific context of law practice.

A commitment to values-driven action is best implemented by recognizing the competing influences on a professional and implementing strategies to navigate and affect outcomes that create alignment among those competing influences to achieve the professional’s aspirations and obligations to themselves, clients, colleagues and family.

A profound observation of Giving Voice to Values is to “expect values conflicts so that you approach them calmly and competently.”² Professor Gentile points out that “often people do not see ethical or moral challenges as natural or integral parts of doing business.” “Framing the situation [of our challenges] as extraordinary . .. can sometimes have a disabling effect.”³ A professional should be aware that competing interests are a constant in law practice in large and small ways. The core of the instruction to be gained from this book should be to develop a belief and confidence that values conflicts should be accepted as part of law practice and to build a structure to anticipate and resolve those conflicts in a way that aligns the competing interests with shared values and holds true to personal identity of a values-driven life.

The Giving Voice to Values approach to resolving values conflicts seeks to allow an individual to avoid anticipatory obedience to an issue by applying three steps: awareness, analysis and action. Awareness contemplates exposure of the values conflict by recognition of the influences that test and undermine values. Analysis is the process of considering relevant laws, regulations, policies, business considerations and models of ethical responsibility and then assessing the boundaries of such restrictions and guidance for values-driven actions. However, the basic tenet of this book and Giving Voice to Values is the recognition that there is an intuitive, emotional response to recognizing what is right and consistent with an individual’s values. This is a process of positive deviation—of reviving the intuitive unconscious notion of doing what is right. The action is therefore “post-decision-making.” It allows the focus to move from debating what is right, since that is known to the individual, to debating how to do what is right. The process seeks to gain buy-in, to find how to be effective and to implement the right solution that adheres to understood and shared values.

Giving Voice to Values seeks to apply skills and tools through case studies to build “a moral muscle memory” or habit by practicing or rehearsing action plans and possible scripts. The program also seeks to play to an individual’s authenticity but doesn’t rely solely on righteousness or “moral courage” in order to implement what you know is right. Giving Voice to Values is not a prescription but a technique to emphasize strength and modify weakness in taking action to implement a values-oriented solution.

This book is a supplement to the Giving Voice to Values program and is focused on the legal profession. I highly recommend further inquiry in Giving Voice to Values, as it is not about “can you do the right thing?” but “how to do the right thing.”

A law practice will span 30 to 40 years. The credential of a law license opens many different choices and decisions that change and evolve as a professional changes their life situations and career options. However that evolution plays out (including the lawyer’s ambition), the definition of success must include incorporation of values-driven choices. Defining such values on a personal level will guide the individual’s aspiration to be a values-driven professional. Ambition will be translated to aspiration, in that each challenge will allow your present self to grow into the lawyer you wish to become. This process is an evolution, not a destination, and will be influenced by many factors that will be discussed herein. Although this journey of aspiration requires personal strength and commitment, it is not a singular enterprise but relies on colleagues and mentors as well as individual efforts. We will discuss the guideposts and resources to promote the goal of achieving success as a values-driven professional as you will define and refine it.

A word of caution is appropriate before embarking on the examination of values-driven professionalism. As a person and as a lawyer, a professional must listen and understand their clients, colleagues and family, and incorporate the values and needs of these individuals into their own actions. They must create a balance between honoring the values of clients, colleagues and family and honoring their own values. A lawyer’s primary goal is to understand the client’s objectives and values, and in the context of the issues presented, to negotiate an alignment of values. Values should not be used arrogantly or as a shield to avoid a professional’s legitimate duties. The challenge of a successful professional career and a satisfying life lies in creating this balance.

Balance does not require compromise of values but rather assertion of your values in a manner that fully integrates values into actions that implement ethical and business decisions. By acknowledging the importance of values, the individual asserts their integrity and their desire to be a whole person, balanced in serving their and the client’s need for business, ethical and values-oriented goals when reaching desired outcomes.

Notes

1. 1 Mary C. Gentile, Giving Voice to Values: How to Speak Your Mind When You Know What’s Right (New Haven, CT: Yale University Press, 2010), 28. www.GivingVoiceToValues.org/
2. 2 Mary C. Gentile, Giving Voice to Values: How to Speak Your Mind When You Know What’s Right (New Haven, CT: Yale University Press, 2010), 72. www.GivingVoiceToValues.org/
3. 3 Mary C. Gentile, Giving Voice to Values: How to Speak Your Mind When You Know What’s Right (New Haven, CT: Yale University Press, 2010), 73. www.GivingVoiceToValues.org/

Chapter 2 Character and values

Sound decisions flow from values. As described in Giving Voice to Values, the term “values” is an “overdetermined word.” For our purposes, “values” has a moral dimension based upon an intuitive, internally generated sense of right and wrong. Widely shared values are honesty, respect, responsibility, fairness and compassion. “Values” should be distinguished from two other guiding principles: “ethics” and “business.” Together these three factors form the basis for decision making for a lawyer.

Ethics in the professional context refers to various external frameworks that can help discipline our thinking about various ethical choices and dilemmas. In particular, discussions of ethical reasoning often focus on scenarios where various models will lead us to different, conflicting decisions about what ‘is right,’ and what follows may be a discussion of how we might try to resolve those tensions.¹ Lawyers subscribe to a system of rules or standards with which one is expected to comply; failure to do so carries various penalties. “Thus ethics is often seen as rule-based and externally imposed, something that exists outside the individual.”²

The career and economic considerations described herein as “busi-ness” are meant to recognize that a lawyer in society is part of the economic machinery of commerce. Legal careers take many forms, but lawyers in practice are supporting themselves as well as their families, their colleagues and their communities in many ways. The building of reputation, client base and fiscal security are powerful motivations. Most decisions presented to a lawyer in practice contain conflicting objectives and undiscovered options requiring predictions of future legal and economic outcomes at varied levels of uncertainty and risk.

The role of the lawyer as a counselor will be discussed in Chapter 8. The counseling function of law practice involves influencing the client’s decision matrix. However, the injection of the individual’s values into the decision matrix of values, ethics and business is the recognition that “character” is an essential component of a satisfying and values-driven law practice.

The definition of “values” as used in this book relies heavily on the description of values in Chapter 2 of Giving Voice to Values.³ Simply stated, these are not exclusively arbitrary individual values but rather a core set of values that tend to be universally shared across cultures and time (although, of course, not for every individual). For example, Rushworth Kidder identifies five widely shared values: honesty, respect, responsibility, fairness and compassion.⁴

“Character” is the quality of recognizing and setting the frame of an individual’s values on the decision process. “Integrity” is the state of being whole and undivided. Character and integrity combine to create your moral compass, which helps direct the action that is right for you to implement your values.

The popular idea of “thought experiments” proposes that an individual assess a situation ripe for a decision by examining the consequences of various actions and omission of actions. For example, imagine you are in a meeting where actions are proposed that may not be illegal but clearly violate your sense of right and wrong when it comes to the values that are critical to your sense of well-being and integrity. Do you speak up in the meeting? Do you wait and address the offending parties or others after the meeting to correct the situation to your satisfaction? Do you let this circumstance pass but plan strategies to correct at a future date? Each of these alternatives are a test of character and each may have compelling reasons to be right for you. However, the key is recognition and awareness of the need to integrate your values analysis into the decision matrix for you and others.

The expectation that this values component will be a constant for your conduct, and your strategies to address it, will lead to strength of character and pursuit of individual integrity.

There will always be a balance of values, ethics and business in law practice. Finding that balance and providing appropriate weights for each factor while preserving integrity and considering the needs of clients, colleagues, family and community should be the aspiration of the values-driven professional.

As described in the Introduction, the Giving Voice to Values approach first requires determining the values relevant to the issue presented and then focusing on action. In other words, the conversation with colleagues and clients moves the discussion from what is right to “how do we accomplish what is right?”

The Giving Voice to Values technique is first to anticipate the impending conflict, thus extending the time to prepare, and next, to prescript responses and allow the values-oriented action to default to an informed voice. Then the third step, action, is critical to this process.

Recognizing that values conflicts are a constant allows for awareness and anticipation. Participants in a values-conflict decision can be divided into “idealists, pragmatists and opportunists.”⁵ The following definitions may be useful: “idealists” attempt to act on their moral ideals no matter what; “pragmatists” seek a balance between their material welfare and their moral ideals and “opportunists” are driven exclusively by their own material welfare. Pragmatists usually try to do the right thing. Opportunists seek to find the solution that suits their (lesser) values component. Examples of opportunism would be: (i) price-gouging shortages of necessary supplies of food, water or energy, (ii) requiring non-disclosure of a dangerous condition or product as a component of a legal settlement with an individual complainant, thus putting others at risk or (iii) employment practices that discriminate or exploit. These characterizations (idealist, pragmatist, opportunist) are general tendencies, self-identified, rather than a description of what one does all the time. They are not “fixed” but rather inclinations toward certain motivations/priorities. By applying the techniques and awareness described herein and in Giving Voice to Values, both the pragmatists and the idealists can change the calculus that the opportunist uses to determine what is in their self-interest in a given circumstance.

The pragmatist should try to avoid anticipatory obedience to the proposed or existing practice and create awareness of the “right” values-oriented choice. The pragmatist affects the ability of the opportunist to control the decision because by implementing the pragmatist’s informed voice and prescripted rationale, the pragmatist does not allow the opportunist the ability to operate with impunity. This approach will elevate the discussion from “should we continue or implement the values challenged practice?” to “how do we accomplish a result that incorporates commonly held values?”

The professional has different and additional constrain...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Contents
• Preamble
• Introduction
• SECTION 1 Awareness of balance between business, ethics and values in law practice
• SECTION 2 Analysis and action in lawyer/client representation and intra professional interactions
• SECTION 3 Core intangibles
• SECTION 4 Building a successful career
• Index