Shivering in the dead of winter, I attempted to stay warm in my GI field jacket. As I looked across the West German border into East Germany, my operations sergeant said to me, “You know lieutenant . . . we’re part of the U.S. Army ‘DIP Division.’” He explained our mission was to hold off a massive attack by the Soviet Union until reinforcements could arrive. “DIP” stood for “die-in-place.” In other words, if the Soviets attacked, our division of 14,000 soldiers would be called on to exercise the supreme act of personal courage by holding ground until destroyed.
Following those formative years as a junior officer, the Army sent me to law school. I served the remainder of my nearly 25 years as a judge advocate—the military’s term for lawyer. After retiring from the Army, I held several government and nonprofit positions, including a 10-year run as chief executive officer (CEO) of the State Bar of Arizona. Those experiences gave me an informed view of the character of courage within the legal profession.
At different times in our careers, each of us has had to summon the strength to be personally courageous. As lawyers, and by default leaders, there is typically an automatic assumption by others that we are equipped with the ability to discern the right answers to difficult problems. So, what then does leadership have to do with personal courage? Knowing what your role is with respect to a particular situation, and what, if anything, you should do when an act of courage is called for is important.
For example, is it the senior partner’s responsibility to stand up and act to address another partner’s inappropriate behavior, or is it the affected junior associate’s problem? What about the client who mistreats a legal assistant? Do we step up and address the problem with the client, or let it slide for fear of losing the fee? As a volunteer member of our local HOA board, do we let a proposal to ignore a local ordinance (because the city will never know) stand? On the other hand, we should be careful not to fall prey to acting on unimportant or insignificant matters. Not every dilemma or problem is one that requires us to act. Lawyers are trained to separate real from faux problems.
If we practice long enough, we will undoubtedly be faced with situations that may put our career or reputation at risk. Do we take a deep breath and do the right thing, or do we attempt to explain our way out? Lawyers are particularly at risk in this regard, as we’re sometimes called on to advocate for clients by rationalizing their less-than-honorable behavior. Need we look any further than the current news about lawyers representing corporate and government leaders who advanced dishonorable conduct, rather than exercise the personal courage to stop or hinder it? When facing short-term fears, we should keep in mind the long-term consequences of yielding to those fears rather than facing them head on.
Here are a few of the additional challenges lawyers in organizations may face:
Rainmakers and bosses. If a situation involves potential financial loss or taking on someone in a position of power, it takes an extra ounce of courage to stand up and act. I’m reminded of a conversation I had with a managing partner of a national firm who lamented that he couldn’t get his executive committee to fire a senior partner who had multiple DUI convictions and had been accused of sexually harassing several junior associates. Because the partner was a major source of revenue for the firm, the committee didn’t have the courage to let him go.
Truth-telling culture. Firms and organizations that genuinely encourage and reward truth-telling reduce the courage quotient for team members. This is particularly true for staff and new lawyers. In places where “messengers are killed,” it requires much more courage to tell those in authority things they don’t want to hear.
Making decisions. During my time as CEO of the Arizona Bar, I was perplexed by how often our board, composed mostly of lawyers, avoided making decisions—large and small. What made this phenomenon so curious was the fact that these accomplished leaders from a variety of sectors had to make tough decisions regarding their clients and cases every day. Practice expert Jordan Furlong calls this “‘responsibility aversion’: the desire to avoid any action with more than a nominal amount of uncertainty and a corresponding probability of failure.” It takes courage to make decisions about our organizations that may involve risk or fall short of expectations. To not decide is to decide. And when we fail to decide, it may have dire consequences for our team.
Humility. In my current work with nonprofit organizations, I advise leaders that two things get in the way of progress: experience and success. As lawyer-leaders our own hubris may inadvertently discourage those who exercise some amount of personal courage to challenge the status quo. Keep in mind that our words and actions are under constant observation. My advice: exercise a bit of personal courage and humility and be open to the possibility that others may have new and better ideas.
Whether we are part of an organization, or a solo practitioner, there are some common challenges we may all face:
Opposing counsel. A new government lawyer recently shared with me a negotiation conference he had with opposing counsel who represented a private company. The opposing counsel’s behavior was simply inappropriate: lots of squawking, belittling and disparaging remarks. How often do we experience this kind of behavior in depositions or other settings? This kind of scenario was common among the complaints we received during my tenure at the state bar. The legal profession is a self-policing one. We should have the courage to call this behavior out when it happens, and if we can’t resolve it on the spot—which takes some amount of courage, then have the courage to report it to the bar or appropriate disciplinary board. I’m proud to say the more junior lawyer in the room challenged the lawyer’s behavior, took a break and resumed the negotiation.
Adverse parties. In today’s often polarized and sometimes violent environment, we hear reports of losing parties exacting revenge on lawyers and judges, and/or their family members. There is no way to predict or even prevent some of these attacks. But like other acts of senseless violence in our society, there may be signs or indications that we as lawyers can sense about a particular case or party. We should—no, must—have the courage to report our concerns to the appropriate authorities. Too often we may discount our intuition to avoid making waves.
Judges and lawyers. I currently serve as a veteran’s court judge and find myself disappointed on occasion by the understandable reluctance of some lawyers to challenge the bench. It takes some amount of courage to offer a correction to an order or ask for the record to reflect an objection to a judge’s decision. But we should have the courage, as an officer of the court and advocate for our client, to stand up and act when appropriate. On the flip side, some judges, without losing control of the courtroom, might benefit by encouraging well-intended and respectful corrections or suggestions.
Mistakes. Yes, lawyers make mistakes! This is simple, maybe not easy but simple, we need to have the courage to own our mistakes, disclose them and remedy them if possible. We may be tempted to avoid disclosure, or even worse, cover up. Depending on the size and scope of the error, it may take varying amounts of courage. And, if we’re leaders (and all lawyers are), we should endeavor to promote a culture that makes sharing mistakes less, rather than more, difficult.
Client demands. Sometimes client demands may be unreasonable, unethical or even illegal. During my Army career I had a client, a senior officer, who drew a circle on a piece of paper and told me everything inside the circle was legal, and everything outside the circle was illegal. He then advised that his preference was to operate right on the edge of the circle. My mettle was sorely tested with this client. This kind of high-stakes client requires the courage to make clear up front that you aren’t that kind of lawyer, even if it means losing the client or, as in my case, putting your career in jeopardy.
Billable hours. The pressure to produce billable hours, in addition to testing our truth-telling culture, may require the exercise of courage in several areas. If we are falling short, it takes courage to acknowledge that fact and avoid the temptation to fudge the numbers. Similarly, having the courage to admit errors in billing and refund unearned fees is the ethical standard and, of course, the right thing to do. It also takes a certain amount of courage to meet our pro bono obligations each year to the detriment of whatever time or money we forgo for other clients.
Actionable advice. One of the things I learned early in my career was to provide clear advice and stand by my client when she followed that advice. Do we have the courage to take a position on an issue and give our clients answers that they can act on, or do we hedge our advice with no clear direction to avoid potentially being wrong? Recognizing that we often operate in the world of gray, we do our clients no favors by offering nonanswers to tough questions.
Hard cases. In today’s social media environment, lawyers representing unpopular causes or clients are often lambasted, ridiculed and in some cases threatened with physical harm. Historically lawyers involved in such cases would, for the most part, be unknown. They might have faced some raised eyebrows from associates and friends, but never the kind of derision and contempt experienced today. This goes for judges as well: they are subject to public disparagement, sometimes from our own national leaders. Those in our profession who take on these cases are exhibiting personal courage of the highest order. We owe them our gratitude.
We will always have a variety of challenges in our profession that call for the exercise of personal courage. Certainly, few if any of those challenges require us to “die-in-place.” To quote the Wizard of Oz when he gave the Cowardly Lion advice, “All you need is confidence in yourself. There is no living thing that is not afraid when it faces danger. The true courage is in facing danger when you are afraid, and that kind of courage you have in plenty.”
