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Ethical lawyering in the 21st century

In-house Coach
|Written By Fred Krebs
Ethical lawyering in the 21st century

“. . . [T]he legal profession is in a period of stress and transition; its economic models are under duress; the concepts of its professional uniqueness are narrow and outdated; and, as a result, its ethical imperatives are weakened and their sources ill-defined.”

I recently received from Ben Heineman, GE’s former senior vice president and general counsel, a thought-provoking article that contained this sobering observation.

In the article, Ben and his co-authors, William F. Lee and David Wilkins, assert that “the ethical dimensions of lawyering for this era must be given equal attention to — and must be highlighted and integrated with — the significant economic, political, and cultural changes affecting major legal institutions and the people and institutions lawyers serve.”

Their goal: to move today’s conversations about the future of the legal profession beyond the economic issues to the “pressing concerns relating to ethical responsibilities.”

Recognized thought leaders, they speak from their perspectives as a former general counsel of a global corporation, a former managing partner of an international law firm, and a professor at a major law school. We should listen to what they have to say.

They believe lawyers fulfill three fundamental roles:

1.    expert technician;

2.    wise counselor; and,

3.    effective leader.

They define the lawyer’s primary responsibilities when filling those roles as being to:

1.    clients and stakeholders;

2.    the legal system;

3.    one’s own institution; and,

4.    society generally.

Finally, they delineate what they believe to be the core legal competencies as well as some complementary competencies essential for a lawyer’s success.

All of this sets the stage for their analysis of where things stand today for corporate law departments, major law firms, and leading law schools. The authors focus on these institutions because “of their influence in setting norms for lawyers, their role in providing counselors and leaders across society, and their standing in public perception of the law.”

The essay goes on to suggest ways law departments, law firms, and law schools can collaborate to “address the needs of young lawyers, to act on the needs of the legal system and society, to bridge the divide between the profession and the professoriate, and to develop better information on lawyers and the legal profession both here and abroad.”

It is a thoughtful piece; some other observations that caught my eye:

Globalization: “In little more than a generation, law has gone from being one of the most insulated and least competitive markets to one of the most competitive, in which lawyers and even law schools feel pressure to aggressively compete in an increasingly global marketplace.”

Law departments and change: “In-house legal departments are both a major cause of the transformation of the corporate legal market and are increasingly being reshaped by it.”

On law firms: “But the relentless focus on short-term economic success has adversely affected the culture and institutional integrity of firms; the training, mentoring, and development of young lawyers; the ability of firms and their lawyers to service the poor and underprivileged; and the ability of firms and their lawyers to devote time to the profession and the broader needs of society.”

Law schools: “ . . . all of these changes have put tremendous pressure on law school deans to focus their energy on ensuring their schools remain viable, making it difficult for them to devote increasingly scarce resources to educating students beyond the ‘core’ competencies demanded by employers.”

Corporations and law firms: “ . . . corporations must honestly acknowledge they are part of the problem as an important premise for forging or creating a new way forward with law firms.”

Role of the lawyer: “But the concept of lawyer as leader that we define is not limited to those lawyers who find themselves in formal leadership positions. As every lawyer knows, in some circumstances lawyers are required to go beyond simply providing expert legal analysis or even wise counseling about what is right.”

The future: “ . . . each of the three institutions we address will be more sustainable, will engender more long-term trust, will play an appropriate role in creating a society in which they can flourish long-term, if they can find a way to inculcate and support the ethical values we elaborate.”

I encourage you to read this essay. It provides an excellent summary of the changes taking place in the legal profession and their impact on three major components of the profession. And, for those so inclined, it offers the opportunity to participate in a conversation about the roles and responsibilities of lawyers as professionals and citizens in these turbulent times. I commend Messrs. Heineman, Lee, and Wilkins for this effort to move beyond the current emphasis on economics to the ethical dimensions of lawyering in the 21st century.

*****

Appreciation: This is my 24th and it will be my final column for Canadian Lawyer In-House. This is a good number, a good topic, and at the end of the year, a good time to end my run. I would like to express my appreciation to Gail Cohen, Jennifer Brown, and Canadian Lawyer for their support and the opportunity to write about issues affecting the in-house community. It has been fun. And to everyone who took the time to read my ramblings — thank you!


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