Law Times

Law Times • January 13, 2014 Page 3 NEWS 'Hidden' elements affecting lawyers' ethics Unique study tracks impact of firm culture, billing practices When it comes to teaching lawyers professionalism, law firms should go beyond reiterating the rules through formal ways, says Erika Abner. Photo: Laura Pedersen VIEW 2014 Brought to you by Canada's leading CLOs explore their challenges for the year ahead Read it in print or online at www.canadianlawyermag.com/inhouse Live on January 27th vol.8 • issue 5 • 10.13 INHOUSE vol.8 • issue 2 • 04.13 ECTION OF LAW AT THE INTERS >> & BUSINESS ARTMENT LAW DEP T MANAGEMEN BOOTS ON LAW FIRM GROUND IN-HOUSE >> INDUSTRY SPOTLIGHT CONS LAW DEPARTMENT MANAGEMENT AND THE PROS 2 TA'S BILL OF ALBER ASSESSING RISK IN-HOUSE THE BRACING FOR Legal departments are in the trenches nies mitigate DOING BUSINESS WITH INDUSTRY SPOTLIGHT BASEL III: THE 'GOLDEN ERA' FOR LAWYERS CHINA PENSION B TIME BOM CATIONS MAIL AGREEMENT # 40766500 W hen it comes to lawyers' professional ethics, unexpected factors like a law firm's billing policies could have an impact, a new study says. In the first study of its kind in Canada, academics Shelley Kierstead and Erika Abner say there are "hidden" elements at law firms that influence how lawyers learn about professionalism. This "hidden curriculum" isn't openly acknowledged but is communicated through firm culture, according to their study on learning professionalism in practice. In the case of billing practices, the pressure to spend more time billing clients leaves lawyers with few moments for reflection or seeking their colleagues' perspectives on tough ethical questions, according to the professors. "Since evaluation is tied into billing, the priority appears to be that lawyers must meet billing targets rather than connect more deeply to professional values. This imperative may be less of an issue in smaller firms that are more flexible in their billing practices," they wrote in their report. When lawyers are tied to their desks and busy billing hours, they don't have sufficient opportunities for "intricate problem solving you may need to work with somebody," says Abner. Other examples of the hidden curriculum are evaluation practices and language, according to Abner. "What do the associates get rewarded for in their evaluation? Do they get rewarded for business development? Do they get rewarded for service to the community? Do they get rewarded for effective client service? That sends out signals as to what they should be learning and what they could put aside." According to the study, the desire to please partners and the types of characters senior lawyers value could also contribute to the unwritten ways junior lawyers learn professionalism at law firms. "For associates, the road to promotion requires pleasing partners. Associates may be told explicitly that they need to be aggressive (and may cross the line to incivility) or they may learn through observation that aggression is necessary," the authors suggest. "Aggressive practices may be specifically required during the discovery process." Even the slang used around the office contributes to the messages about professionalism at a law firm, according the report, which notes "law firm studies do provide some examples of language used for lawyers who behave unprofessionally, referring to them as 'assholes.'" When it comes to teaching lawyers professionalism, law firms should go beyond reiterating the rules through formal ways, says Abner, who suggests they should also pay attention to "the emotional content" of learning about ethics. "We had a number of stories of new associates having to control anger and frustration when they met up with an adversary who was, you know, bullying. The help they got from a senior person really helped them," she says. "I think that's the other piece law firms need to pay attention to. It's not an intellectual exercise; it also includes an emotional component." In what Kierstead calls a "happy surprise," many lawyers are willing to lend a hand to colleagues who reach out to them with questions about how to manage difficult situations. "My happy surprise was the extent to which participants talked about the generosity of colleagues in the profession. Anybody who talked about having reached out to other lawyers for guidance said that the other lawyers were very pleased to help them," says Kierstead, an assistant professor at Osgoode Hall Law School. In another unexpected outcome, the authors of the study found that many small-firm and sole practitioners had a "robust network" and noted they always had someone to turn to when they needed help. Observation, role modelling, and mentoring are also some of the informal ways lawyers learn professionalism at law firms. Lawyer Lee Akazaki, who has written extensively on mentorship, says an example could be a partner dealing with an angry client in front of junior lawyers. "That's a teaching moment," he says. "You can react to the client's anger as just another person, which is with anger, or you can react to the client's anger as a lawyer, which is in a professional manner." If the senior lawyer asks the client what's wrong and works to correct any mistakes, that's the lesson the juniors in the room will pick up on, says Akazaki, who notes that despite the long history of law schools in Canada, there's a remarkable lack of research on how lawyers learn professionalism and ethics. "You've got to teach other lawyers that when this happens to you, this is the thought process that you should engage in." He adds: "What separates lawyers from pure technicians is professionalism." Law firms could start unchaining lawyers from their desks and allow for more interactions by introducing "pauses in practice," according to Akazaki. "Every time you engage with a colleague, it's a teaching moment. You're teaching each other." LT 40766500 Law Times REEMENT # BY YAMRI TADDESE Fred Headon,, counsel assistant general Canada Air >> >> CANADIAN LAWYER INHOUSE AT THE INTERSECTION OF LAW & BUSINESS Chinese-Canadian relations have become big business for both countries and deals are evolving www.lawtimesnews.com InHouseViewBlakes_LT_Jan13_14.indd 1 14-01-08 2:53 PM

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