Courage, influence and civility*

Courage is not simply one of the virtues, but the form of every virtue at the testing point. -C. S. Lewis

A few weeks back, I had the pleasure of attending an ethics program co-sponsored by DLA Piper  and Major, Lindsey & Africa .  Susan Lichtenstein (Hill-Rom), Stasia Kelley (DLA Piper) and Paul Williams (MLA) informed an attentive audience of what it is like to be in the boardroom when it comes time to make a very personal decision – whether to “press the button” that will effectively end your future with the company, if not your career.

In a nutshell, the program focused on the GC as trusted adviser, financial analyst, compliance officer and legal advocate.  The panel discussed the business needs for a GC with multi-dimensional skill sets and what happens as a result – an increase in the number of circumstances in which the GC is faced with business/legal situations requiring ethical (and not just business or legal) considerations. 

GCs are faced with balancing the need for creating trust and synergy with the business team against ethical obligations to ensure the company is behaving “properly” – meaning legally and, in some cases, “ethically”.  How can a GC continue to build relationships with the business operation executives while also acting as the company’s moral compass, responsible for reporting ethical breaches to the board?

First, the GC must have an unwavering commitment to ethical conduct at all levels in the company.  She must sow the seeds of a “culture of compliance” and nurture that culture throughout her tenure.  This commitment must be unwavering, for it will no doubt be tested.

Second, she must not only talk the talk, but she must also walk the walk.  Ethical considerations should be raised whenever an ethical concern presents.  Ethical considerations should also be part of the decision matrix, so as to ensure consideration of the ethical implications of a decision, even if ethical concerns are not immediately obvious.

Third, the GC must make known her commitment to ethics to every board member, executive and line worker in the company.  It must be communicated to the company frequently and regularly.  GCs have influence within their organizations and should use it.

Fourth, she must have an excellent relationship with the board so that each member feels absolutely confident that if the time comes, she will press that button and make them aware of all serious issues affecting the company.  More importantly, they will trust her judgment and follow her advice in rectifying the problem.    

In thinking about how we might influence our organizations in the care and feeding of an ethical environment, often overlooked is how we might influence our outside lawyers to practice in an ethical and civil manner.  Lawyers do not enjoy a reputation for being kind to one another.  Often, clients expect us to act nasty, disrespectful and mean to our adversaries.  Some clients even believe that a lawyer cannot possibly zealously represent a client unless they act in such a manner. 

I believe in-house lawyers, and particularly GCs, are well positioned to work a change in the legal environment so that clients will learn to expect nothing less than the utmost in decency from their lawyers.  In-house lawyers hire and pay firm lawyers.  Firms listen to their clients.  If we charge our outside team of lawyers with the responsibility to be civil, professional and yes, even polite – they will listen.  I am absolutely convinced that if we reward professional behavior (with fees and more work) and discourage underhanded gamesmanship (by referring work to other firms), the legal world will change. 

In-house lawyers have the responsibility to foster a culture of compliance and ethics within their own organizations.  In thinking outside the box (extending her influence outside the company), the GC can extend her influence beyond a culture of ethics, to one of civility by and between the outside lawyers, as they zealously advocate for their clients. 

Each of us must be able to look at ourselves in the mirror and be content with what we see.  We must know that we have done our best to represent our clients zealously, professionally, competently and ethically and that we have conducted ourselves in a manner that reflects well on the profession we have chosen.

*Originally published on August 9, 2012 here:
http://h20cooler.wordpress.com/2012/08/09/inside-perspective-courage-influence-and-civility/

Emotional intelligence — don’t forget the human element*

A lawyer friend told me a story last week about a case she had been working on. Turns out that years ago, one of the employees at her company was severely injured in a tragic plant accident while on the job in South Carolina. The case settled long before her tenure at the company began. Because of a bookkeeping snafu, the company continued to make payments for medical coverage for the injured worker for years after the settlement, payments that it had no obligation to make. Recently, upon discovering its error, the company decided to discontinue making the payments. My friend, the company lawyer, was tasked with communicating the decision to the former employee.

The former employee was well respected and very well liked. Her injury impacted many of the people with whom she worked as well as those in the administrative offices who handled the subsequent lawsuit, human resources issues and workers’ compensation claims. The company bent over backwards and went far beyond its legal obligations in assisting the employee at the time of the injury and, as it turns out, after the matter should have concluded with the settlement. Even decades later, people at the company who worked with the former employee tear up when discussing the case.

You might guess that it was difficult for my friend to manage the case because of the emotional elements surrounding the injury and the impact it had on the injured worker’s life. However, lawyers deal with many “emotional” issues and must separate themselves from the personal aspects of cases such as this one. She handled the matter as she would any other personal injury case – in a very business-like and professional manner. No problem there.

 
However, the real challenge came from within the company – from those who worked closely with the former employee. Because she was so well-liked, the emotional scars that remained were aggravated after all the years. My attorney friend experienced pushback from some of the employees with whom she needed to work to resolve the cessation of the gratuitous medical benefit payments. To her, it was simply a part of her everyday business/legal work. But to those with whom she worked, the case tore open long since hidden wounds and emotional trauma that evoked very emotional responses.

As in-house lawyers, we often deal with emotional issues. To preserve our sanity, we disassociate from the emotional elements of the matter so that we can make an objective legal decision. However, once we have done that, we must invoke our emotional intelligence skills in order successfully implement the recommended action, especially when working with others who may not be used to doing that. A lawyer’s “business as usual” manner may well be off-putting to those unaccustomed to turning off their emotions in this way.

In a situation such as this, to help ensure that such an emotionally charged task goes smoothly, the first thing one should do is reach out to those involved in the original case to get a handle on how the company dealt with the emotional issues at the time of the accident and the emotional impact that it had on the work force, paying particular attention to the people who were directly involved and their feelings at the time. Then reach out to those still with the company, and who would be assisting in effectuating the change, to assess their current emotional state regarding the incident. Clearly, as it turns out, they were still very much impacted by what had happened to the former employee. According to my friend, there may have been undue feelings of guilt associated with the accident and a general feeling of “there but for the grace of God go I” mentality. This may have accounted for the generous manner in which the matter was resolved in the first place many years ago. Whether these resurrected feelings are appropriate or not, they exist and must be taken into consideration when formulating a plan.

If you are tasked with carrying out such a charged assignment and you take the time up front to assess the emotional environment, you will be that much better able to implement a plan that accounts for the feelings of those who would be needed to assist in getting the job done and help them handle it without so much additional upset. In other words, you would empathize with those with whom the former employee worked, acknowledge their feelings and address the resolution of the matter in a proper tone and manner, taking into consideration their feelings about the matter, rather than adopting a “business as usual” approach. The objective would be the same but by accommodating the current employees’ feelings, you will make the job much easier for all involved and likely minimize pushback.

The lesson of the day is to be aware of the emotional impact your legal recommendation may have on your client base and communicate your advice so that it is received not only with an appreciative intellect but with a welcoming heart.

* Originally posted December 8, 2011