September 01, 2016 GPSolo | Feature

Leading Without Ethics Is No Leadership at All

Benjamin K. Sanchez

When our GPSolo Editorial Board decided to create an issue on leadership, it was obvious to me that we needed to stress ethics. There have been too many examples of failed leadership in recent years, and the common denominator in those failures is a lack of ethical behavior. In my own experience as a lawyer, I have come to recognize that lawyers are automatically expected to be leaders, and yet law schools do a poor job of training law students to take on leadership roles. Even when leadership is taught in law school, the topics center on the technicalities and procedural aspects of leading from a legal perspective. Little time is devoted to the ethical considerations of the various leadership roles of future lawyers, resulting too often in lawyers considering what is legal rather than what is ethical. If given the opportunity by a law school someday, I will gladly teach a semester-long course on leadership. In the meantime, I have undertaken this article to give you a sense of how ethical considerations come into play in leadership.

The Concept of Ethics

Ethics is a huge topic and cannot necessarily be contained within one article. A recent search of “leadership and ethics” in Amazon’s book department revealed 8,280 results! Philosophers, religious leaders, and other thought leaders have been discussing the ethics of leadership for thousands of years. From ancient Greek philosophy to most major world religions, the definition of ethical behavior has been the epicenter of teachings.

Many have defined “ethics” and refined such definitions over time. Peter G. Northouse, in his book Leadership: Theory and Practice, asserts that ethics is concerned with the kinds of values and morals an individual or a society finds desirable or appropriate and the virtuousness of individuals and their motives.

Phil Rabinowitz, in his article “Ethical Leadership” in The Community Tool Box, an online service of the Work Group for Community Health and Development at the University of Kansas (tinyurl.com/ovy4bt2), notes that many people define ethics and morality the same, but he argues that it helps to view them separately. “Ethics are based on a set of social norms and/or logically coherent philosophical principles; morality is based on a (usually broader) set of beliefs, religious and cultural values, and other principles which may or may not be logically coherent. Morality can, however, form the basis for an ethical system.” If ethical behavior is knowing and doing what is right, ethics is the “right” of that equation.

John C. Maxwell, in his book entitled There’s No Such Thing as “Business” Ethics, asserts that there is no distinction between guiding principles in your work life and those in your personal life. Maxwell asserts there is but one single standard to guide your life, the Golden Rule (“do unto others as you would have them do unto you”).

However ethics is defined, the common threads are a sense of fairness and a core set of guiding principles, such as truth, justice, honesty, responsibility, and selflessness. Ethics is the grounding that allows one to make decisions on behavior and actions. The ethical leader is one who operates within a core set of values and acts accordingly in any given situation.

Lawyer Leadership

When we first decided to become lawyers, we did so with the idea that we would have an impact on our world, whether big or small. I have yet to meet a lawyer who could honestly tell me that the reason he or she chose our profession was for money. Money often is an extra motivation, but it isn’t the root of the decision. If we are to make an impact in our world, then it seems logical to conclude that in some way we will lead ourselves and others to make that difference. If we don’t have a set of ethics guiding us, we will be poor leaders and end up not being leaders at all.

In addition to our own moral compass, lawyers are guided by rules of ethics. In Texas, for example, we have the Texas Disciplinary Rules of Professional Conduct (TRPC), which govern our ethical obligations as lawyers. The TRPC has a Preamble over three pages long in order to orient lawyers and judges in the considerations underpinning the rules that follow. The TRPC Preamble recognizes that every lawyer has various roles as “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice” (tinyurl.com/j2sndty). In these roles, the TRPC notes “a consequent obligation of lawyers is to maintain the highest standards of ethical conduct.”

All lawyers know that the ethical considerations of our various roles necessarily lead to conflicting responsibilities. In the words of the TRPC Preamble, “Virtually all difficult ethical problems arise from apparent conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest.” In fact, there isn’t one set of rules of professional conduct that govern lawyers in the United States. While the American Bar Association offers up the ABA Model Rules of Professional Conduct, individual states are free to amend (or not adopt) such rules to fit their own preferences. Regardless of which rules of professional conduct govern your practice (and you may have multiple such rules if you are licensed in more than one state), your own conscience should help you decide how to act. As the TRPC Preamble notes:

Each lawyer’s own conscience is the touchstone against which to test the extent to which his actions may rise above the disciplinary standards prescribed by these rules. The desire for the respect and confidence of the members of the profession and of the society which it serves provides the lawyer the incentive to attain the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.

In addition to the Texas Disciplinary Rules of Professional Conduct, Texas lawyers have the Texas Lawyer’s Creed (TLC) as another source of ethical principles by which to operate. The TLC is not a set of governing rules, but rather aspirational goals of professionalism by which we strive to abide. The TLC covers professionalism between a lawyer and the legal system generally, as well as between lawyer and client, lawyer and lawyer, and lawyer and judge. Professionalism is another of those amorphous concepts that sometimes is ill-defined in the abstract but concrete in the specific. The TLC attempts to cover both the abstract (“A lawyer owes to the administration of justice personal dignity, integrity, and independence”) and the specific (“I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement”; tinyurl.com/glmtcno). To ensure that a client understands professionalism and how it guides my practice, I incorporate the TLC into my client legal representation agreement for each client and discuss rules of ethics and principles of professionalism at every client intake. My clients know that I will attempt to be ethical and professional at every turn, and thus they should not ask me to take unethical or unprofessional actions.

Community Leadership

As I previously mentioned, lawyers are expected to be leaders within our communities. Whether that community is your neighborhood, city, state, bar association, corporate board, or nonprofit organization, you are expected to be more than just a practitioner as a lawyer. I run into lawyers from time to time who are resentful of the responsibility placed upon them simply because of their chosen profession. As a society, we don’t expect doctors, engineers, farmers, and others to be leaders, but we do expect leadership from lawyers. Why is that?

It is my sense that lawyers are given the task of community leadership because people believe that law is about fairness, justice, and the difference between right and wrong, as well as the procedural rules that will allow us to arrive at a fair and just outcome, and those ideals are what the community members want in their own groups. Little do they know that the law is not always on the side of right. For example, during the Civil Rights Movement, while lawyers such as Thurgood Marshall, Charles Hamilton Houston, Gustavo C. Garcia, James DeAnda, and John J. Herrera were fighting against the segregation and discrimination laws of the day, the true leaders of the movement were non-lawyers who were willing to break the law because it was the right thing to do. As Martin Luther King Jr. said, “the arc of the moral universe is long, but it bends towards justice.” On February 1, 1960, at a lunch counter in Greensboro, North Carolina, a group of students initiated a sit-in that had been strategically planned in order to challenge racial inequality throughout the South. What those students and the students who followed did was illegal based on the existing laws of the day, but I’d be surprised to hear someone argue that it was unethical.

Community leaders are not necessarily expected to follow unjust laws blindly. There is a tension between the need to conform our behavior to the law while also moving to change the law. The tension is no greater than that experienced by an attorney who has sworn to uphold the law and is faced with an unfair law. When lawyers actively participate in a neighborhood watch program or Scout troop, manage a local food bank or city commission, or sit on a state or national nonprofit organization, they are expected to know the applicable laws while still providing moral and ethical leadership on a communal level. When lawyers are arrested for breaking unjust laws, they run the serious risk of losing their license to practice law. When we sit on nonprofit boards, we are expected to know the laws that apply to the governance of the boards. As a litigator, I certainly don’t want to be responsible for being a Sarbanes-Oxley guru, but I know a rudimentary knowledge of such is expected when I volunteer to be on a corporate board or be an officer of a public corporation.

Needless to say, we should not shrink from our social responsibilities. We should be able to operate as community leaders while still maintaining our licenses. The tension that we may face from time to time is part of the profession, and we owe it to those we lead to provide an ethical compass to follow.

Self-Leadership

I saved the most difficult type of leadership for last. Leaders must act in accordance to a set of ethics that should be apparent to all, day in and day out. When we stray from such ethics, we not only hurt ourselves but also those who are watching us. We disappoint ourselves and lower the hopes of others who look to us as a barometer of what this world can or should be. When those who are sworn to do right act wrong, we lower the societal bar for everyone. Such a burden is not placed upon lawyers alone, as we have seen from recent miscarriages of justice involving law enforcement personnel, fraud and bribery scandals involving politicians, and sexual assaults of unsuspecting patients perpetrated by doctors entrusted with the sanctity of their patients’ bodies at their most vulnerable. When we cannot lead ourselves effectively because we lack ethics or we lack the will to follow such ethics, we cannot lead others.

Whatever decisions we are faced with, big or small, we must always strive to be ethical in our approach. Humankind is separated from the rest of the animal kingdom because we are not driven by instinct alone. We are blessed with brains that allow for complicated thinking about all manner of topics, including morality, fairness, justice, equality, and truth. We go beyond the instinct of protecting ourselves and our own into the concern of others and the survival of the species. While in fight-or-flight mode, a human may be expected to think of himself only. What’s different about humans is that our lives are not entirely about our next meal. If we are to live up to our true potential as a species, then we must use our brains as they were meant to be used, including the ability to think of guiding ethics and the will to follow them. As long as each of us keeps ethics as a priority, then we will be great leaders of not only ourselves but also others.

Commit to a Month of Ethics

We all give great lip service to the concept of ethics, but we don’t necessarily follow ethical principles. I understand that “doing the right thing” all the time may seem just too difficult, especially the part about being selfless. I ask that all of us use October to incorporate ethical thinking in each of the roles we have in our lives. Once October ends, reflect on your month and determine how holding yourself to a high ethical standard changed you as well as those around you. I have a feeling you’ll be pleased and will continue such behavior year-round!

Benjamin K. Sanchez

Benjamin K. Sanchez is a commercial and collection litigation attorney and JMT-certified coach, trainer, and speaker in Houston, Texas.