Leadership for Lawyers - Chapter One Excerpt
Book written by Herb Rubenstein and published in its 2nd edition by the American Bar Association. The third edition is forthcoming.
Chapter One - The Need and Benefits of Leadership Development for Lawyers
Lawyers are called upon to lead every day. Although the lawyer is the “agent” and the client is the “principal,” lawyers have a duty to lead their clients through providing accurate technical advice, principled counseling, and a rigorous evaluation of the client’s situation, goals, resources and those of the adversary. This is the first book on leadership designed specifically for lawyers, written by a lawyer and is designed to answer a question that is growing in the field of law.
The question as posed by U.S. Judge James Barr is:
I am delving into whether there is support for the hypothesis that leadership skills developed and implemented by individual lawyers (even when not serving in bar organizations) can significantly impact and influence an entire legal community in such areas as (1) improved ethical and civility standards and performance, (2) more effective assimilation of new lawyers into the legal community, and (3) improved relations between bench and bar. In other words, I am at least curious about whether development of leadership skills by individual lawyers can positively impact the of lawyering in a legal community -- even when working outside the institutional (i.e., bar organization) context.
This book is the first systematic attempt to answer Judge Barr’s question. Only time will tell whether the answer is affirmative for all or most lawyers. But the basic thesis of this book is that when lawyers begin to understand the basic theories of leadership as developed over the millennia and enhanced in the leadership literature of the past thirty years, and when lawyers begin to understand some of the over ninety brands of leadership on the market today, lawyers will be able to improve their skills and aptitude as leaders and will be able to provide better legal services, create better law firms, improve the associations, foundations and organizations that support and are supported by the legal profession, and will improve both the reputation of lawyers and the legal profession as a whole. While each of these items is a tall task in and of itself, expecting a new emphasis on leadership training to help transform and improve an entire profession is, at best a “stretch goal.” It is this stretch goal that serves as the fundamental basis of this book
This book is based on the author’s work as a lawyer for more than twenty years, as a trial attorney, handling matters for plaintiffs as well as defendants, who has practiced in three jurisdictions and argued and settled cases in many jurisdictions. In addition, this author has been a professor of leadership, entrepreneurship, strategic planning and ethics at five universities, has reviewed a substantial part of the leadership literature, has been a member of the Board of Directors of the International Leadership Association and its International Conference Co-Chair. Most importantly, this author has been hired by many clients not just to be a good technical lawyer, but to resolve difficult challenges faced by clients and the opposing side through exercising leadership.
This first-hand experience of using the skills, training and leadership education now available in college courses, and finally available through leadership courses specifically designed for lawyers taught by this author, all have contributed to success for clients that could not have been achieved through using only the skills and analytical techniques taught in law schools. Leadership education has evolved to the point where almost all professions, are starting to reap rewards from taking leadership courses, becoming familiar with the subject matter, and pursuing courses and training that help people create their own leadership styles, get in touch with their own leadership drives, and give them practice and guidance in being effective leaders.
The general public - and clients - look to lawyers to be leaders. They expect lawyers to be leaders because they know the law. But such knowledge is only a small part of being a leader. Research by Daniel Goleman on emotional intelligence has revealed that one’s ability to manage one’s emotional responses and the emotional responses of others is critical to success today. Research and previous publications by this author show that leaders know how to “manage conversations, not dominate them.” Lawyers are called upon to serve as members of boards of directors, boards of advisors, boards of trustees, to conduct high level investigations into wrongdoing, uncover corruption, make high stakes presentations to opposing counsel, government agencies, trial courts, and arbitration panels, to interact intelligently and cogently with the media, and to negotiate regarding matters that can make or break the financial, emotional, institutional lives and reputations of clients. The level of leadership required in each of these activities is extraordinary, yet the legal profession during the past ten years has given continuing legal education credit for courses on “Creating PowerPoint Presentations,” but not for courses to help lawyers become better leaders.
This book is designed to help you be a better leader, and help change the legal profession for the better as well. By guiding lawyers through the leadership literature in a manner they can understand, by using examples of lawyers being leaders that are applicable to the everyday lives of lawyers throughout the U.S., and by drawing on the experience of many lawyers who have worked all of their lives on their leadership skills, this book is designed to help a lawyer objectively evaluate how good a leader the lawyer is today, and creates the beginning of a path to assisting the lawyer in becoming a better leader in the future.
This book is written so that the basic tenets of leadership that will be learned by readers can be applied both in client oriented settings and in law firms and other organizational contexts where lawyers have responsibilities for leading and managing enterprises. This book is written for all lawyers, regardless of their particular jobs, employers or practice expertise. It is optimistic to think that law schools will start offering many classes on leadership since in three years (or four years for night students) law schools have to teach so much information to students to prepare them for the real world of practicing law.
One law school, Harvard, has a course offered by Philip Heymann called “Leadership in the Public Sector.” Professor Heymann is on record recommending that every law school teach at least one course in leadership. We hope that this book will be a worthy text for such a course. At present, the teaching of leadership knowledge and skills is left up to those lawyers who take courses outside the legal profession and are self-taught. This book and the courses to be taught by NITA, the Office of Personnel Management of the U.S. Government, and other schools based on this text are an opening for lawyers to a new world of leadership theories and practical suggestions regarding how to be a better leader, and thereby, be a better lawyer.
There are significant developments in the teaching of leadership for lawyers. The Cincinnati Bar Association has conducted a leadership for lawyers course for some time. The Alabama Supreme Court has instituted a leadership program for lawyers. The Business Law Institute of the Colorado Bar Association has created a leadership seminar. The American Psychological Association in 2004 published a book, Lawyer Know Thyself which discusses personality strengths and weaknesses with a view toward assisting lawyers be better leaders. Courses in “professionalism” and “ethics” touch on leadership behaviors and values. Bar associations and the American Bar Association hold leadership classes designed to help lawyers become better leaders within those organizations. The Oregon Bar Association has a leadership development program for new lawyers. The Renaissance Lawyer Society promotes stronger leadership development among lawyers to help address some of the ills that are currently affecting the legal profession.
The problems and challenges that currently beset the legal profession are well known
within the industry, but not deeply understood by most lawyers, their clients or the law schools.
These problems as suggested by this author’s review of books and articles in the field include:
High rate of dissatisfaction among young attorneys
Poor reputation of lawyers within the society
High departure rate for trained, qualified and certified lawyers from the legal profession
Growing economic pressures on law firms of all sizes, especially large firms
High levels of client dissatisfaction and formal complaints and malpractice actions against lawyers
Growing levels of associate turnover
Prevalence of outdated governance practices at law firms
Continuing evidence of a glass ceiling for women in in law firms
Client challenges to paying increasingly large legal bills and insistence on alternative billing structures
Growing numbers of ethical complaints against lawyers
Increasing competition and growing use of questionable means to obtain clients/business
Increasing lack of civility among lawyers
Increasing delays in litigation, arbitrations and even mediations
Lack of training in leadership in a profession whose members lead clients, lead organizations, serve on boards of directors, and hold high political and governmental positions all without the benefit of the knowledge created in the field of leadership during the past 25 years
High levels of substance abuse among lawyers
These challenges dominate discussions at bar association conferences. Learning from the leadership development literature and the practical suggestions on how lawyers can improve their leadership skills, will help address some, if not all of these challenges lawyers confront.
The legal industry is one of the most rapidly evolving professions in the world. From 1950- 2005 the legal profession has grown rapidly. Record numbers of law graduates, record numbers of practicing attorneys, record numbers of women entering the profession, record salaries for private practitioners, record numbers of large jury verdicts and increasingly large average jury verdicts propelled a growing profession to stay busy, self-confident, and self-assured.
Today, the legal profession is beset by competitive pressures from technology that puts the law, statutes, court decisions and legal procedures at the fingertips of anyone who can use the internet. Clients can perform more of their own work. In-house legal counsel, with capital to spend on computers and data bases, have taken back significant amounts of work from law firms. Lawyers can advertise and attract clients based on the quality of their advertising rather than on the quality of their abilities as a lawyer. Mergers of law firms, unheard of just twenty years ago, are moving forward at a fever pitch, combining law firms with over 1,000 employees. These financial and industry statistics all point to societal and economic pressures that will challenge every aspect of the legal profession economically and organizationally.
Today, leadership development is not only essential for those who lead these mega firms, but also for sole practitioners and lawyers in small firms who rely on their leadership contributions in their communities as a significant element of their business development and reputation enhancing activities. And, as in-house counsel are more and more expected to sit intelligently at the strategy table, leadership development has become a critical component of their needed skill set.
The Sarbanes-Oxley Act has placed those lawyers who counsel corporations on governance and reporting issues in the position of being “leaders of leaders,” a term that will be extensively discussed in this book. As the Sarbanes-Oxley principles are extended to the nonprofit world, academic institutions and eventually to governments at all levels, lawyers’ leadership skills will be severely tested. They will be expected to be not only the messengers of changes, but also the guides leading organizations into a brave new world. This new world will include creating significant governance oversight, financial oversight, internal fiscal controls, accurate financial reporting and disclosing adverse material financial information to investors and the general public.
The legal profession is already struggling mightily with new and subtle changes to the attorney-client privilege propelled by lawyers knowing about fraudulent financial activities of their clients. The new role of independent directors who demand that the company’s lawyers tell them what they know that previously would have been attorney client privileged and never told to “outsiders,” is helping lawyers gain a deeper understanding of what it means to be a leader in a disclosure-rich world.
All these developments in the legal profession argue that lawyers should seek and the legal profession should offer the best leadership development education and training to members of our profession. This book is a start. Many lawyers will use it to begin their quest to become better leaders. Many lawyers will use it to add to their many hours becoming a self-taught leader. And law firms, professional legal organizations, law students, and those who are considering going to law school will use this book to enhance their leadership development skills to achieve a competitive advantage over other law firms, law students, and fellow lawyers who do not seek to improve their leadership skills on a regular basis.
EXCERPT FROM CHAPTER TWO OF THE BOOK - LEADERSHIP THEORY
There are ten specific theories of leadership, but no general theory of leadership. Each of these theories tries to explain how leaders become leaders or how leaders work
when they are leading people. The first nine theories are based on Northouse’s work, and are presented in an “evolutionary” order. Each theory builds on the previous theory. The tenth theory is a contribution to the leadership literature by this author, and dates back to Jethro in the Book of Exodus. The ten theories are as follows:
1. The Trait Theory: People with certain favorable physical, mental, personality, and emotional traits are more likely, if not destined, to be leaders.
2. The Style Approach: Leadership is a function of the style of behavior a person brings to a situation. Typical styles of leadership activity include Team Management, Authority-Compliance, Country Club Management, and Impoverished Management.
3. The Situational Approach: Leaders must “read” a situation accurately and determine what combination of supportive and directive behaviors is appropriate to achieve the goal of the leader. This leadership theory suggests that leaders adapt their styles and behavior based on understanding the full content and context of the situation in which they are operating, their role, the goals of the situation, and the resources they have to use and direct.
4. The Contingency Theory: Understanding and developing successful leadership behaviors is based on analyzing three key factors: leader-member relations, task structure, and position power. Contingency theory shows how the success of certain styles of leadership is contingent on the circumstances in which they are used. Thus, this theory suggests that the relationship between the leaders and the followers should have a strong impact on the leader and the appropriate leadership style that will be effective in that situation.
5. Path-Goal Theory: This is the motivational theory of leadership. This theory suggests that a major goal of leadership is to stimulate performance and satisfaction among those led by the leader. Under this theory the classic behaviors of the leader are (1) to identify goals and to secure “buy in,” support, enthusiasm, ownership of these goals by followers; (2) to identify all key obstacles and barriers to achieving the goals; (3) ensure proper training and resources for followers in their effort to achieve goals; (4) to organize and direct the actions of the followers in their efforts to achieve goals; (5) to monitor all activity and guide any changes in strategy, resources, and actions necessary to achieve goals; (6) to identify precisely and accurately when the goal is achieved or the shortcomings that result from the effort; (7) to acknowledge and reward systematically all followers for contributions in the effort to achieve the goals; and (8) to set new goals and expectations for the group and repeat the process.
6. Leader-Member Exchange Theory: Leadership is a function of a relationship in which followers give to a leader leadership status and responsibilities and leaders accept that status and perform leadership acts that the followers accept. The relationship between the leader and followers is one of partnership rather than control. Power is equally shared by members with the leader. The leader’s ability an authority to lead is always a function of the support he or she has from the members.
7. Transformational Leadership: Leadership is a process where leaders and followers work together in a manner that changes and transforms individuals and groups. It is a dynamic process that assesses the followers’ needs and motives and seeks the input of the followers at each critical stage in the leadership process. Transformational leadership presupposes that the goal of the leader is to promote change and improvement for the betterment and with the assistance of the followers. This type of leadership has an explicit goal turning followers into future leaders.
8. Team Leadership: This theory assumes that all leaders are leaders of teams and the major functions of a leader are (1) to help the group determine which goals and tasks it wants to achieve; (2) to help create enabling processes and direct the group so that it achieves the goals and tasks; (3) to keep the group (and the leader) supplied with the right resources, training, and supplies; (4) to set standards for behavior, success, and ethics; (5) to diagnose and remedy group deficiencies; (6) to forecast impending environmental changes to help inform and steer the group appropriately; and (7) to help maintain and defend the group by organizing it and ensuring its proper internal functioning.
9. Psychodynamic Approach: Leadership requires that leaders understand their own psychological makeup and the psychological makeup of those they lead. Leaders using this theory are those who understand (1) the followers’ attitudes, potential, behaviors, and expected responses to leadership; (2) the level of maturity of followers and its impact on their responses to leadership actions; (3) the desires and motivational keys of followers; (4) the meaning and interpretation by followers of language, behavior, symbols, and situations; (5) the proper balance of dependence and independence appropriate for a given group of followers; (6) the proper psychological relationship between the leader and followers; and (7) of the psychodynamic interplay between the leader and followers and between and among leaders as well.
10. Leaders of Leaders: This theoretical construct states that the job of a leader of followers is completely different from that of a leader of leaders. Leaders of followers are mainly “problem solvers.” Leaders of leaders establish platforms and seek to create an environment so that followers can act as leaders themselves, solve their own “problems,” and make excellent decisions consistent with the platform that the leader of leaders sets. In addition, the leaders of leaders concept incorporates the idea that the platform set by the leader of leaders will improve over time because the followers and other leaders will be encouraged to test the platform in the real world, find deficiencies, and report proposed improvements for the platform to the leader of leaders. The major role of the leader of leaders is to create this platform and not to make decisions in particular situations. This job is delegated to the leaders whom the leader of leaders leads.
EXCERPT FROM THE CONCLUDING CHAPTER OF THE BOOK
The legal profession needs a significant breakthrough to:
improve its productivity
improve its reputation and the disciplining of unethical and incompetent lawyers
improve its civility
improve its ability to serve clients at a reasonable cost
improve its employee retention and satisfaction
improve its ability to reduce burnout
reduce substance abuse among lawyers, and
help lawyers cope with the stress.
Conclusion
Leadership development training is not the panacea that will solve every challenge of the legal profession, but is also not merely a little step on the right road either. However, it may well be a major leap on the right road to improving the profession for our practitioners, our clients and the society at large which we serve.