In the last issue of Law Practice, I wrote about lessons learned at the college of hard knocks. Since writing that column, I have been reminded of two additional lessons to share.
A Better Way to Look at the Rules of Professional Conduct
My good friend Lucian T. Pera does such an excellent job covering practical legal ethics in his Law Practice column that I fear venturing into his area of authorship. However, since stepping down as managing partner of my law firm, I have been ethics counsel to the firm, being called upon many times to weigh in on ethics and professional responsibility issues that arise. At a firm our size, in a town as small as Asheville, North Carolina, ethics issues, mostly conflicts of interest questions, arise quite often.
A lesson I have learned through my experience in the leadership positions I have been blessed with is that in most cases, lawyers are asking themselves the wrong question when it comes to the Rules of Professional Conduct. I find that many see the rules solely as a line that cannot be crossed, with the usual inquiry: Is the desired representation or action right (as opposed to wrong) under the literal meaning of the rule? Under this type of simplistic analysis, the answer “yes” usually means the lawyer is free to proceed as desired—the rule itself ultimately being seen as the lid or ceiling on ethical conduct. I would suggest that those who use this simplistic question as the sole inquiry in decision making are being shortsighted and miss the opportunities that ethics considerations bring. My conclusion is that instead of asking if the desired decision or action is right, the better question is whether it is wise—for the individual lawyer, for the firm and its members, and for the clients and communities the firm serves.
As an example of a way to take advantage of opportunities in the area of ethics considerations, our firm has created a two-tier system in regard to conflicts of interest. Without creating some basic formality to conflicts determinations, it is my experience that those who want to accept a matter and get credit for origination, delegation and production are usually willing to get as close to being wrong as possible (and therefore technically are “right”), accept the new matter and leave the wisdom question unconsidered.
In our firm, the first inquiry is called the “technical conflict question.” It analyzes the proposed representation in a technical manner under Model Rules 1.7 through 1.11. At that point, we are either certain we must turn away the representation or obtain a written consent, but we are not yet certain whether we will accept a representation. The second inquiry, which is called the “business conflict question” inquires if undertaking the representation is wise. This deeper dive forces firm leadership to query whether the representation, if known generally, would affect existing relationships we have with other valuable clients. It also forces us to ask whether it will affect the brand or image we have been working so hard to create over many years in the communities we serve. For functional reasons, the second inquiry is always considered but does not come up formally every time a conflict question is raised. It is a question, however, that I or any other member of the firm can raise in every conflict consideration. The form of the two-tier analysis my firm developed many years ago can be viewed within the lawyer leadership resource center at americanbar.org/groups/law_practice.
Conflicts of interest, and other rules-based inquiries, are not the only places where the question of what is right (or allowable) versus best practices (what is wise) comes up. To name just a few, this question arises when considering what technology to employ, public marketing or business development efforts to undertake, or conduct and performance the firm rewards financially in its compensation system. Most important, it should be a key consideration in how law firm managers treat their employees. The wisdom question should be considered in all our proposed decisions and actions. The lesson I have learned is that law firms need to find effective ways to get their members to regularly ask it.
Harnessing the Power of Your Productive Zone
I am not a morning person. Many of my clients, and friends, are medical doctors. I suppose they are morning people. The doctors I represent, with a few exceptions, insist on having meetings with legal counsel in the morning, prior to surgery (such as at the ungodly hour of 6:00 a.m.). It can be quite difficult for someone like myself, who is most productive from noon to midnight, to be at my best at 6:00 a.m.
It wasn’t until after I stepped away from the top position in my firm that I realized I had allowed, for years, tradition, fear of loss of clients and peer pressure to keep me from being as productive as possible, both as a leader of my firm and the clients I serve, due to a failure to recognize my personal productive zone. As I have looked back, what I realized was that many important decisions have been considered and made, and actions taken, by me at times when I was not in my productive zone—that time during the day and week when I am at my best.
Through many years of experience, attempting (and often failing) to be productive in some of my own personally least productive zones of the day, it was the COVID-19 experience that helped me to finally realize the truth about my productive zone, achieve greater control over my schedule and perform closer to my potential. I have implemented a few principles that I propose here, for your consideration:
First, to be most productive in service to the firm, outside public and professional endeavors, clients and even to family, you must understand what your productive zone is. It’s not enough to just simply say “I’m not a morning person,” but really analyze when you are most and least productive during the day and week and consider how to take full advantage of all other periods as well.
Second, since a law firm is a team of individuals working toward common goals, it is crucial that you not only understand your own productive zone but also those of the people with whom you work.
Third, and perhaps most difficult, make sure your team, firm and clients you regularly serve know and understand what your most productive zone is. This means that you must be willing to be open and honest with those you work with and trust they will respect you for the openness.
Fourth, to the extent possible, schedule your day in light of understandings of productive zones, your own as well as those of others. As much as possible try to 1. protect your own productive zone, and those of others, for the most important decisions and actions; and 2. schedule less important activities during times when you know you will be less productive.
Fifth, and as I have written about many times in the past, to the extent you have the power to do so, learn to say no to opportunities where you will be less productive. This might mean saying no for now, but perhaps the decision or activity might be appropriate at a different time in your professional life. Perhaps, however, no will mean forever, if it is something that will make you less effective in achieving your life mission and vision, or that of the firm.