Winter Reading: Lawyers As (Ethics) Leaders

Anonymous

Mon, 12/16/2013 - 09:32

Advisory Opinions

In <a href="http://www.cityethics.org/content/many-reasons-why-city-or-county-attor…; target="”_blank”">a
blog post last week</a>, I listed the many reasons why city and
county attorneys should not be providing ethics advice. One of those
reasons was that "legal advice and ethics advice require different
skill sets." But I limited this part of my analysis to saying
that "A legal
adviser sticks to the letter of the law, and is always on the
lookout for loopholes that her client can take advantage of." 
 
In her new book, <a href="http://books.google.com/books?id=3K9yojBbyIkC&printsec=frontcover&sourc…; target="”_blank”">Lawyers
As Leaders</a> (Oxford University Press, 2013), Stanford Law professor Deborah L. Rhode
looks not only at lawyers' skill sets, but at many other
characteristics of lawyers that hamper their success as leaders. These same characteristics tend to
hamper their involvement in government ethics programs. This
is a very serious problem, because most of the people who are most important
to the establishment and effective functioning of a local government
ethics program — elected officials, government attorneys, and ethics
commission staff members — are lawyers.

The first thing that Rhode notes is how unusual the U.S. is in the
large percentage of its elected officials who are lawyers. This
certainly has something to do with how legalistic government ethics
is, including (1) the focus on laws and enforcement, (2)
the central position of the city or county attorney, (3) the emphasis on confidentiality, (4) the idea that
only lawyers should give ethics advice and do it solely on legal
terms, and (5) the belief that ethics program jurisdiction should be limited (and,
some argue, not include lawyers, because they are overseen by their professional grievance process). 
 
One of the major areas in which Rhode finds lawyers wanting,
especially with respect to their education, is the "ethical
commitments that are necessary for successful leadership." These
ethical commitments are equally necessary for the creation and
success of government ethics programs. And on the whole, they are
wanting. Were even one lawyer in each local government (although
better two or three) devoted to the establishment of an effective
and comprehensive government ethics programs, such programs would
likely be the norm. As it is, they are few and far between. 
 
Lawyers
cannot take all the blame for this, but I think they are in the best position to make a difference. The question is, should city and county attorneys, as the legal
leaders of their community, "assume
responsibility for preventing scandals by others and for
establishing reporting structures that will make it possible"? In
other words, shouldn't lawyers be establishing effective government
ethics programs instead of involving themselves in such programs and
doing their best to limit the programs' effectiveness? 
 
Skill Sets 
There cannot be a healthy ethics environment, not to mention a
quality ethics program, without the right sort of leadership. If
lawyers are in leadership and lawyers do not have the right skills
for ethical leadership, there is not likely to be very many healthy
ethics environments or quality ethics programs. 
 
Rhode says that there are five categories of characteristics for
effective leadership:<blockquote>

1. Values - integrity, honesty, trust, an ethics of service 
2. Personal Skills - self-awareness, self-control, self-direction 
3. Interpersonal Skills - social awareness, empathy, persuasion,
conflict management 
4. Vision - being forward-looking, inspirational 
5. Technical Competence - knowledge, preparation, judgment</blockquote>

Lawyers' skills tend to be focused primarily on the fifth category, technical
competence. The areas where they tend to score the strongest are
areas that do not appear in these categories and, in fact, often act
as obstacles to these categories, but are highly valuable to their
work: skepticism, competitiveness, urgency, autonomy, and
achievement orientation. 
 
Skepticism gets in the way of vision. Few lawyers feel that a
government ethics program can accomplish much. Urgency leads to a
failure to seek out information that is not absolutely necessary to the
performance of a job. The result is that lawyers charged with
drafting ethics codes do little research and fail to seek out experts in
government ethics. Although I get calls and emails every day seeking advice or the
brainstorming of government ethics issues, almost none of them have
come from lawyers other than those who are ethics commission members
or staff. Elected officials who call me are almost never lawyers,
and I have never received a call from a city or county attorney,
with the exception of one I had castigated in a blog post. 
 
The thousands of lawyers drafting ethics provisions and providing
ethics advice, the thousands of lawyers on councils deciding how to
proceed with an ethics program, the thousands of conflicted lawyers sitting on
local boards and commissions, the hundreds of lawyers working with
good government organizations — they have not felt it worthwhile to
brainstorm a problem with me. In the meantime, every other sort of
person has felt this to be worthwhile. It is worth wondering why. 
 
In fact, the very skills that enable lawyers to attain leadership
positions — ambition, self-confidence, and self-centeredness — "can
translate into a sense of entitlement, overconfidence, and an
inability to learn from mistakes," in other words, the character
traits that lead to ethical misconduct. 
 
Of all the leadership categories, lawyers tend most to fall short in
the one that is considered the most important for success as a
leader: self-awareness. One of the effects of this lack is the
inability to know one's strengths and weaknesses. Lawyers tend to
feel they can handle any matter, and do not recognize the weaknesses
they bring to government ethics. They also fail to recognize the
conflicts they have (after all, they are not technically conflicts
according to the Rules of Professional Conduct) or the lack of trust
that people have in their judgments regarding the conflict
situations of those they represent. 
 
A Not So Perfect Fit 
Rhode is interested in why the U.S. has so many lawyers in public
office. One reason is that many elected offices are part-time
positions, and lawyers can practice part-time. Therefore, the jobs
make a perfect fit. It also happens that the perfect fit creates
numerous conflict situations. This is also a problem with the large
number of part-time local government attorneys as well as with the
many lawyers who sit on boards and commissions that have
jurisdiction over areas in which the lawyers practice, especially
land use. 
 
With respect to
government ethics, the role of government attorneys is problematic due to lawyers' view
of their role as neutral with respect to any non-legal aspect of
their clients' conduct. Rhode notes that, according to a survey,
less than 3% of lawyers "have reported giving advice that addressed
concerns of social responsibility." This position of neutrality with
respect to responsibility most likely makes it difficult for lawyers
to provide ethics advice that goes beyond legal advice. It also
limits how lawyer-officials view their own conduct; other
considerations generally take precedence over ethics considerations.
And, most serious, "the tendency to privilege personal interests
over moral values helps account for lawyers' complicity in some of
the nation's most serious ... abuses," including government ethics
violations. 
 
The adversarial nature of legal practice also leads to "a tendency
to demonize opponents [which] may blunt ethical awareness." The
zealous defense of a political ally will especially bring out this
tendency and lead city and county attorneys to undermine the public's trust that they will
act fairly and in the public interest rather than in the
interest of their clients, that is, the officials over whom an ethics program
is supposed to provide oversight. 
 
And yet lawyers' self-confidence causes them to insist that they can
be fair and protect the public interest against the interests of
those who are otherwise their clients. Rarely do city and county
attorneys admit that they should not be involved in
government ethics programs in any way. In fact, it is far more
likely for city and county attorneys to constitute the entire ethics
program. This self-confidence is misplaced, because even if it were
true (and there is no way for anyone to know, including the lawyer),
no one is going to believe it. 
 
Appearances of Impropriety 
One problem that lawyers have in their roles in government ethics
programs is their reputation for being ethical. A recent Gallup poll
found less than a fifth of Americans rate lawyers high or very high
in honesty and ethical standards. Another poll ranked law as
the profession people trusted the least. Since appearance is an
essential part of a program that seeks to maintain the public's
trust in government, the participation of even the most ethical
lawyers in the program can still jeopardize its effectiveness. 
 
The most negative quality attributed to lawyers by laypeople is that
they are more interested in winning than in doing justice. The most
positive quality is that their first priority is to their clients.
This makes people assume that government lawyers providing advice or
discussing officials' conflicts of interest are representing these
officials and trying to help them win. This is a problem
whenever government lawyers are involved in ethics matters. When private
lawyers are involved, it's acceptable for them to put their clients'
conduct in the best light. When government lawyers are involved, it
is not acceptable. And yet it happens all the time. 
 
Innovation 
Focused as they are on precedent and representing their clients,
city and county attorneys tend not to be open to an innovation such
a government ethics program, which is not only new, but also appears
to pose a threat to those they represent. Therefore, when there is
pressure, usually from a scandal, to create or improve an ethics
program, the tendency is for city and county attorneys to keep
innovation as limited as possible. In fact, their understanding of
legislative language and of loopholes therein sometimes leads them
to draft ethics provisions that only appear to provide more
oversight, while actually providing less. When others pick up on
this, there are embarrassing discussions that undermine trust in the
city or county attorney, the local legislative body that has
proposed the false improvements, and the ethics program itself
(unless it is the ethics commission that points out the problems
with the language). 
 
Lawyers' Ethics Education 
I know the sort of ethics education lawyers get, or at least got in
the mid-70s. My legal ethics course was like any course: it
focused on the limits of ethical requirements and how to get around
them. It treated ethical requirements are maximal rather than
minimal. This was the wrong approach. And there was nothing,
at least that I recall, in my legal ethics course or my
administrative law course, about the greater ethical obligations of
lawyers working in or for a government. 
 
Lawyers are required to get continuing legal ethics education, but
they generally are not open to leadership education or, when in
government, to government ethics education. Many government lawyers
assume that this education is "touchy-feely," "unworthy of attention
from intellectually sophisticated individuals," especially those who
already have a knowledge of legal ethics, even though this is a very
different thing. "For many, 'the soft stuff is the hard stuff.'" 
 
Rhode discusses Harvard Business School professor Chris Argyris'
distinction between single-loop and double-loop learning. "The first
involves finding a solution to a problem, the second involves
understanding one's own contribution to that problem." Lawyers tend
to focus on problem-solving in the external environment. But to deal effectively
with institutionalized ethics problems, they need to do inward problem-solving, to
reflect critically on their own behavior, to "identify the ways they
often inadvertently contribute to the organization's problems, and
then change how they act." 
 
Government Attorneys As Spokespersons 
Too often, in ethics matters, city and county attorneys act as
spokespeople, publicly denying that an official has broken an ethics law.
The only reason to do this is to put a lawyer's imprimatur on the
statement and therefore, supposedly, make it more trusted. But what
it does is make the lawyer complicit in personal misconduct that should
be addressed personally by the official or by an official's private lawyer. It is not in the best
interests of the community to have a city or county attorney play
the role of denying an official's culpability relating to personal conduct. As Rhode writes,
"When wrongdoing seems clearly to have occurred, the public expects
conciliatory statements and corrective action. Excuses or denials
under these circumstances fuel anger because they compound the
misconduct and suggest the likelihood of future abuses." Government
lawyers should not participate in anything that smacks of defense or
cover-up of ethical misconduct, even if they have reason to believe
that no ethical misconduct occurred. 
 
Government Attorneys' Invulnerability 
Rhode notes that "almost never do prosecutors who commit misconduct
face sanctions." This is equally true of city and county attorneys
who provide advice that enables ethical misconduct or who are otherwise
knowledgeable of or complicit in such misconduct. Government attorneys also tend to hide behind
attorney-client confidentiality, even though this confidentiality is intended to
protect the client, not the attorney, and even though the government attorney's client is
not the individual who committed the misconduct, but the government.
With nothing to fear and a legal ethics excuse for
keeping misconduct secret, it is too easy for government attorneys to commit or
enable ethical misconduct. 
 
Other Stuff 
Rhode makes a valuable distinction between individual and
institutional hypocrisy. The first occurs when a leader fails to
live up to the principles she espouses. The latter occurs when a
leader fails to ensure that the organization she leads lives up to
the principles she espouses. The latter is extremely common with
respect to government ethics. Leaders say that they will run an
ethical organization that acts solely for the public interest, but
they fail to create an effective government ethics program. When it becomes clear how weak the program is, it reflects not only on the leader, but also on the entire government. 
 
I'd like to end this blog post with an excellent summation paragraph
from the Ethics in Leadership chapter of Rhode's excellent book:<blockquote>

To reinforce moral behavior, leaders need to address the peer
pressures, cognitive biases, and diffusion of responsibility that
compromise moral judgment. Ethical conduct is highly situational,
and research on the banality of evil makes clear how readily minor
missteps or mindless conformity can entrap individuals in major
misconduct. To maintain their moral compass, leaders as well as
followers should consult widely, enlist allies, observe bright line
rules, and cultivate self-doubt. Those in leadership positions can
also foster ethical conduct by setting the tone at the top, and
establishing appropriate reward and oversight structures.</blockquote>

Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Winter Reading: Lawyers As (Ethics) Leaders

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