Giving Voice to Values in the Legal Profession

Effective Advocacy with Integrity

Carolyn Plump

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351189811
• Topic: Business
• Subtopic: Business General
• Index: Business

Ethical issues do not occur in isolation. Instead, real-life situations arise in the workplace alongside other pressing issues such as job security, career advancement, peer pressure, manager evaluations, and company profits. For this reason, students and employees in law need concise and common sense guidance that provides a framework for how to voice one's values in the midst of competing interests. This book does just that. By providing twelve accessible scenarios drawn from real-life examples, this book walks readers through some of the most common ethical issues they will face in the workplace and how to address them in a manner that is realistic and effective.

There are two clear reasons to read Giving Voice to Values in the Legal Profession. First, it is practical. The book presents information that is readily useful to students as they move forwards in their personal lives and careers. Second, the book is concise and easy to add to an existing course. It can provide a context for discussing a myriad of issues around ethics in the legal profession.

Section III
Ethical scenarios in the legal profession

We turn now to some of the most common types of values conflicts in the legal industry. By approaching your legal career with the expectation that you will face values conflicts, you can minimize the disabling impact of surprise and increase the likelihood of addressing the situation in an effective manner. In this section, we will examine 12 ethical situations. The situations are fictionalized versions of scenarios drawn from my own legal experience. They are meant to reflect the types of issues students will likely encounter during their legal careers, but they also relate to issues non-lawyers may face in business. Each of these scenarios is “post-decision-making,” meaning you should assume each attorney has already identified the right course of action. The question that remains is: “How does the attorney act on what he or she believes is right?” While the “right” choice may be evident in these examples, it does not make it any less challenging to enact. Students should work together to come up with effective and feasible approaches. By working through these examples using GVV pre-scripting and planning, students can begin to build moral muscle memory.

Legal Scenario # 1: The Case of Inflated Experience

Introduction

The ABA Model Rules make it clear that a lawyer can represent a client in an area in which he or she does not have any prior legal experience.¹ Assuming competence can be achieved, however, questions still remain regarding how much information lawyers should disclose to clients regarding their legal background. This question typically arises when potential clients question lawyers about the breadth and depth of their experience before hiring them.

Lawyers sometimes conduct presentations designed to convince potential clients to select their firm for the case. These presentations can be elaborate, staged productions (when several large law firms are competing for a high-profile case) or smaller, more intimate meetings. Regardless of the presentation’s structure, it is common to trot out the most affable and experienced attorneys to meet with potential clients. These performances are referred to colloquially in the legal industry as “dog and pony shows.” This legal scenario examines conduct that occurs during such a presentation.

Facts

Pauline Smith is looking for a lawyer to handle a lawsuit against Hover Boards Manufacturers (HBM). In December, Ms. Smith purchased a hover board manufactured by HBM for her teenage daughter Mila’s birthday. When Mila plugged the hover board in to charge it, it exploded, resulting in second-degree burns over her entire body. Mila had several operations that required skin grafts. Ms. Smith decided to sue HBM for making a defective product. Ms. Smith wants to hire a lawyer with both trial experience and expertise in products liability litigation. Ms. Smith’s neighbor recommends she talk with the firm Able Law.

Able Law happily agrees to meet with Ms. Smith to discuss her daughter’s case. Before the meeting with Ms. Smith, the lawyers discussed this potential client internally at one of their weekly partner meetings. Although none of the partners at Able Law had any substantial products liability experience, they still felt they could handle the case. One partner noted the importance of taking the case because it could position the firm to handle future cases if there are other hover board explosions or a class action lawsuit against HBM.

Ethan Exuberant is a partner in Able Law’s litigation department. For the last two decades he has handled bankruptcy cases. When he first started practicing law, he worked for a month or so with several other lawyers on a products liability case before moving onto another matter. That single case was the only time Ethan ever worked on a products liability case during his entire 25-year career. Danielle Dutiful is an associate at Able Law. She works primarily with Ethan on bankruptcy cases.

Able Law asked Ethan to meet with Ms. Smith. The partners thought he had the best chance to secure the case because he had a captivating personality that always goes over well with potential clients. The partners also asked Danielle to attend the meeting. She had a great working relationship with Ethan and would be instrumental in working on the case.

During the meeting, Ms. Smith asked Ethan whether he had any experience handling products liability cases. Ethan responded, “Absolutely! Why, I even cut my teeth on a products liability case as a young lawyer when I started over 25 years ago. After bankruptcy law, products liability is probably the area in which I have had the most experience.” Ms. Smith also asked Ethan whether he had any trial experience in the courtroom. Ethan responded, “Yes, I am in the courtroom all the time. I’m extremely comfortable in the courtroom. I know all the judges and have a great reputation.” Based on his statements Ms. Smith agreed to hire him to handle her daughter’s case.

Danielle was shocked by Ethan’s responses because she knew he worked solely on bankruptcy matters except for one instance when he did some research on a products liability case long ago. She also knew he had only one trial. It was a pro bono case where he represented an inmate on death row who was seeking to overturn his conviction, and not a civil business litigation case. Although Ethan was in court often, it was to argue motions, not to handle trials. While Ethan’s statements could – under the most generous of interpretations – be characterized as technically accurate, the statements were incomplete and deceitful. Danielle knew lawyers sometimes exaggerate their experience and accomplishments, but Ethan’s statements misled the client into thinking Ethan handled products liability cases on a regular basis and that he had significant trial experience. After thinking about it for a few days Danielle decided to speak with Ethan about his statements. How should she raise her concerns with him?

Discussion

What is at stake for the parties?

We start our inquiry by identifying the stakeholders and what is at stake for each of them. Within the law firm, there are several interested stakeholders. Danielle has an interest in the matter because she was present at the client meeting. Her job, future recommendations, other job prospects, and reputation all may be at stake. Ethan also has a stake in the matter. His reputation as well as future client referrals may be on the line. The firm itself has an interest in attracting and retaining clients.

Outside the firm, the primary stakeholders are the client and her daughter who suffered significant injuries. Ethan’s statements deprived Ms. Smith of the opportunity to make an informed decision in selecting counsel. Further, she may incur higher legal fees due to Ethan’s need to learn a new area of the law. The outcome of her case could also be in jeopardy due to Ethan’s lack of expertise.

Another stakeholder could be the legal industry itself. When lawyers mis-represent their qualifications to obtain business, it can tarnish the entire legal industry’s reputation. Organizations such as the American Bar Association have an interest in maintaining the profession’s integrity and ensuring lawyers handle cases for which they are qualified, or accurately convey their need to become qualified.

The court system is a stakeholder too. If a lawyer is unfamiliar with a particular legal field, it can cause additional work for courts, judges, and administrators who have to take time to review inaccurate documents, rule on unnecessary motions, and explain procedural requirements.

Similarly, the public is a stakeholder because potentially hazardous products have significant ramifications and costs for everyone.

Finally, Ms. Smith’s neighbor has a stake in the outcome. She is the one who recommended Able Law. The value of her input as well as any future recommendations and possibly her neighbor’s trust may all be at stake.

What arguments or rationalizations is Danielle likely to encounter from Ethan?

Danielle is likely to face counterarguments from various sources. For purposes of this scenario, we will address one argument only – the one she will face from Ethan. Ethan might claim, “Lawyers always overstate their experience. It is what we do to get business, and to think otherwise is naïve.”

Ethan is using a common rationalization called standard practice. The statement implies that his actions are acceptable because others do it. This is a false assumption because there is no correlation between the ethical value of an action and the number of people who engage in the action. If there were, this argument could be used to justify all manner of harmful actions such as child abuse, war crimes, and drug trafficking.

In some instances, this argument could even compel unethical action rather than simply justify it. For example, a lawyer may reason, “I have to lie about my legal experience because lying is the only way to get clients when everyone else is doing it.” Personal or financial gain is not the criterion for ethical action.

We have seen this argument used in many instances. Lance Armstrong relied on this rationalization when he was interviewed about his use of performance-enhancing drugs to win seven consecutive Tour de France victories. Armstrong said that it would have been “impossible” to prevail in the Tour de France without doping when he was racing.² While his argument is compelling and perhaps accurate, based on five decades of data on the prevalence of doping in the sport of cycling,³ it does not excuse his actions or make his actions ethical. By being aware of the prevalence of this argument you can develop a strategy to counter this flawed reasoning.

What strategies can Danielle use to counter this argument and plot a course of action for addressing the situation?

Before settling on a particular strategy, we should consider the following factors: audience; communication style; availability of information and data; complexity of the situation; and risks.⁴

Audience

The audience is Ethan, a well-respected partner at the firm. Danielle should consider if there is anyone she wants to talk to before bringing it up with Ethan. Are there other individuals or groups Danielle could approach first (e.g., a mentor, partners’ committee, bar association)? What advantages and disadvantages do you see with approaching different individuals or groups first?

Communication style

Danielle should consider whether a written email, an in-person conversation, or a telephone call is the most effective way to communicate with Ethan. She should also consider the location of their conversation. Is it best to talk in a neutral space like an office conference room, a communal space outside the office such as a restaurant, or in the privacy of one of their homes? Finally, Danielle should think about the timing of her communication because it could impact whether Ethan is in a favorable state of mind to hear Danielle’s concerns. Is there a particular time of the day, day of the week, or week in the month when it is better to talk to Ethan? She should consult with Ethan’s assistant to ensure she avoids times of high stress (e.g., an upcoming deadline), distraction (e.g., an important lunch meeting), or irritation (e.g., after losing a key motion). Once she has this information, she can act to ensure the time also meets with Ms. Smith’s timeline for moving forward with the case.

Availability of information and data

Part of Danielle’s strategy will depend on whether there is other information or data to gather. She could gather additional information about Ethan’s experience or review professional conduct rules regarding statements to potential clients. Can you think of any information or data that could be helpful?

Complexity of the situation

This is not a complex situation. Danielle can address this simple and relatively straightforward scenario with Ethan in one conversation. If it were more complicated, she might want to address one issue at a time.

Risks

Anytime a person elects to voice his or her values there are always risks. It is beneficial to consider such risks in advance – to minimize or neutralize such risks, not to justify inaction. Consider the risks to all the stakeholders. Risks can include personal risks, professional risks, and societal risks. One risk Danielle may encounter is that Ethan will be defensive and feel attacked. This could harm their professional relationship and jeopardize future work. What other risks can you think of?

The four primary strategies Danielle can employ are: reframing, bridging the gap, building coalitions, and listening. In this scenario, we focus specifically on how reframing could be an effective method. Danielle should approach reframing the issue by utilizing a three-step process. First, she should step out of her current view and imagine the situation from Ethan’s point of view. Second, she should consider commonalities among their goals. For example, both of them want to win business for the firm (responsibility), do the best job for the client (respect), and feel good about how they represent their experience (honesty). Can you think of any other common goals? From these goals, we see they share common principles: respect; responsibility; and honesty. With these principles in mind Danielle can move to the third step and create a new frame of reference rooted in their shared values. Thus, the GVV framework emphasizes alignment between our actions and our sense of who we wish to be by approaching the situation from a “self-motivated aspirational stance, rather than a judgmental or self-disciplinary position.”⁵

With the higher principles of responsibility, respect, and honesty in mind, Danielle casts a broader sense of purpose and a long-term view over the client meeting. This will help her prepare a script for discussing it with Ethan. Her script could emphasize that respect and honesty could engender loyalty from Ms. Smith. Ms. Smith may decide to hire the firm anyway because she appreciates and trusts Ethan because he was forthright, or, if she does not, she may return to the firm for another matter or refer others to the firm. Danielle can help Ethan see the benefits of respect and honesty by reframing the situation from the short-term gain of getting one case to the long-term goal of goodwill and respect that could lead to multiple cases.

She...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgments
• Disclaimer
• Introduction
• SECTION I GVV framework
• SECTION II The legal industry
• SECTION III Ethical scenarios in the legal profession
• Conclusion
• Index