Intellectually Honest Discourse

I love a good argument.  There is almost nothing better than stretching your mind while engaged in an open and honest discussion with someone who views things differently than you do.  It is most fun when engaged in the so-called taboo subjects that are important in a big picture sort of way, such as religion and politics.  These topics evoke deep emotion in people and make the challenge of intelligent and honest discourse all the more interesting.

I have a very good friend who does not share my religious beliefs or my political views.  One might describe the two of us as polar opposites – 180 degrees apart.  The interesting thing about our relationship is that, because of a lot of intellectually honest and intelligent discussion, we seem to have influenced each other on certain matters to within 45 degrees of the other.  In other words, because we are able to discuss very controversial and emotional issues that cut to the very core of our  belief systems in an honest, unemotional and respectful manner, we have brought each other around a little bit to the other’s way of thinking.

The two of us have compromised in the best sense of the word, not falsely by claiming to be in agreement for the sake of keeping peace, but having been truly moved to a new way of thinking about the issue.  This is a wonderful experience.  It is only possible if each of us open our minds to the possibility that we may not be absolutely right about everything all the time.

Having meaningful discussions requires openness, vulnerability, respect and a true and pure willingness to contemplate the argument presented by the “opposing party.”  There can be no sarcasm, no red herrings, no manipulation.  Raw honesty is required.   This is easy to do because there is no end game except enlightenment.  There is no case to win or lose, there is only the opportunity to become smarter – if not about the issue at hand, about how your “opponent” thinks.  Knowing how another who thinks differently than you approaches and analyzes issues will also make you smarter, as you experience a different way of thinking that will help you down the line in other circumstances where there is an end game.

In the “real” world, it is not always easy to be so open and honest about the way one thinks.  As lawyers, we negotiate to get our way.  We start way over here, hoping to end up over there.  We've all played the game, each side makes outrageous demands expecting the other side to do the same.  So we adjust our demands based on the expectations we have of where the other side wants to end up until eventually, after the expenditure of many resources, we end up close to where each side thinks they should be.  Each side walks away believing they got the short end of the deal, grumbling that the other side acted unfairly, complaining about the cost and waste of time, but happy to be done with the emotionally taxing process.  This scenario is played out every day across the world among lawyers, car salesman, commodity vendors, politicians, parents and children, and so on.  This is not the intellectually honest and intelligent discourse of which I speak at the beginning of this column.

Acknowledging the difficulty of acting open minded in an adversarial situation, I invite you as in-house counsel, to try a more open approach with your clients.  Say what you are really thinking, be open to viewing the matter from the perspective of the business person.  Allow yourself to be thoughtfully persuaded by the business to a different way of thinking.  It might not change your legal advice, but it will make you a better lawyer

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/