Winter Reading: Lawyers As (Ethics) Leaders

In a blog post last week, 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, Lawyers As Leaders (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:

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

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:

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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