Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
Learning Professionalism in Practice
Shelley Kierstead & Erika Abner
(2013) Osgoode CLPE Research Paper No. 59/203
Excerpt: pp. 35-38
The Hidden Curriculum in Law Firms
In addition to examining the stated curriculum and the interpersonal curriculum in the workplace, available studies also describe components of the hidden curriculum in law firms.
Policy Development and Evaluation
Policies that convey institutional values can be found in various handbooks, manuals, work contracts, and admission and recruitment brochures. In law firms policies that explicitly or implicitly provide messages about what is valued by the institution include, for example, various orientation information provided to students and new associates, website and other recruitment materials, policies regarding client recruitment and processes (including conflicts searches). Evaluation instruments include performance management systems, which include associate and partner evaluations for the purpose of advancement and most importantly, compensation and bonuses. As Hafferty notes, “Tools of evaluation, however, are not simply instruments of assessment. They also are vehicles for conveying what is and is not important within the organization” Messages derived from evaluation practices may well conflict with more general messages; these disconnects appear in the research literature discussed below.
The research literature provides examples of the types of law firm policies that affect professionalism in practice – both from the point of view of what associates learn as well as their confusion about the overt and subtle messages.
A number of studies note the effect of law firm billing policies that affect learning about professionalism and ethics. First, the requirement to bill a large number of hours requires that associates and partners work very long hours with limited time for reflection. Second, the billing requirements leave little opportunity to interact with others for advice and resolution of professional or ethical issues. 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.
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. Aggressive practices may be specifically required during the discovery process.
Associates and partners are expected to manage (and please) clients, as there are economic consequences to not doing so. Some research studies note the difficulties in managing clients, particularly through the discovery process, while others address tensions in managing in-house counsel.
The “availability and distribution of institutional resources shapes what faculty and students learn about institutional values.” Lawyers’ time is clearly the most important resource in a law firm; in addition to file work, lawyers are expected to engage in teaching and mentoring activities (formal or informal), firm administration, business development and client management (which may include community service), service to the profession, pro bono work and continuing professional development. Resource allocation obviously also addresses where the firm spends its money: lawyer support services (including professional support lawyers, libraries and knowledge management systems, research lawyers), business development budgets (including large marketing departments), professional development staff and programs (including internal programs within large firms, which may be delivered by outside consultants, as well as sending associates to various programs), as well as art and office furnishings.
Institutional Nomenclature or Slang
Finally, the importance of nomenclature used at the individual level (students and faculty), as well as at the institutional level has been noted; in particular, the increasing use of business language within the educational institution. The law firm studies do provide some examples of language used for lawyers who behave unprofessionally, referring to them as “assholes”.
The workplace learning literature focuses on processes and supports for learning rather than on techniques and topics for teaching, so that learners are included in a rich curriculum that includes the work, the culture of the workplace, and the resources in the form of people and artifacts. Thus, the question about whether ethics and professionalism can be taught should be re-framed to consider how ethics and professionalism are learned. In reviewing the studies on workplace learning generally, and the law workplace specifically, we find definite trends in supports and process for learning ethics and professionalism; these processes may be available in law schools, but in a muted form.
123 Hafferty, supra note 77 at 404.
124Ibid at 405. Hafferty includes the traditional evaluation instruments such as examinations in various forms, dean’s letters, selection of chief residents; for faculty, criteria for promotion and tenure; at the organizational level, accreditation requirements. In law firms, for example, the National Association of Law Placement has recommended that firms examine their associate compensation for the behaviours it rewards. NALP Foundation for Research and Education, ‘Keeping the Keepers: Strategies for Associate Retention’, in (National Association for Law Placement, 1998) at 80.
125 Hafferty, ibid at 405.
126 Gallagher, supra note 114 at 329 concludes that “even in firms that discuss ethics and professionalism, the over-riding ethos is billing hours, pleasing powerful partners, and keeping clients happy”. Robert L. Nelson, “The Discovery Process as a Circle of Blame: Institutional, Professional, and Socio-Economic Factors That Contribute to Unreasonable, Inefficient, and Amoral Behavior in Corporate Litigation” (1998) 67 Fordham L. Rev. 773. Nelson notes at 784 that billing pressures from clients have affected the apprenticeship process – there are fewer opportunities are available for young lawyers to attend discoveries, trials, etc., so that training is much more haphazard. Garth and Sterling posit that “major structural shifts in corporate law practice have transformed the apprenticeship period from one that combined symbolic capital with a good portion of human capital – the skills necessary to be a successful lawyer – to an apprenticeship that generates mainly symbolic capital.” Symbolic capital are “things associated with prestige.” Bryant Garth & Joyce Sterling, “Exploring Inequality in the Corporate Law Firm Apprenticeship: Doing the Time, Finding the Love” (2009) 22 Georgetown Journal of Legal Ethics 1361 at 1368.
127 Mather, supra note 104.
128 Sarat, supra note 104 at 828, points out that in large firms the emphasis appears to be on pleasing clients rather than developing a counselling relationship.
129 Nelson, supra note 126 at 778-9 describes associates who were chastised for being “too reasonable” or lost assignments by being “too restrained.” The associates interviewed in Sarat’s study, supra note 104, believed that firms could do more to promote higher standards of conduct; in particular, to stop rewarding incivility.
130 Gallagher, supra note 114 at 332 and 334 found that even senior partners expressed concern about keeping clients happy, and the challenges in ensuring that clients complied with document requests.
131 Sarat, supra note 104 at 830 describes the clash between autonomy and business values as “two different and deeply held views of what law practice should be like …one which imagines itself as the carrier of the practical wisdom of a learned profession, the other which seeks to subject lawyers to business values.”
132 Hafferty, supra note 77 at 405.
133 Law firm published competency models provide some evidence of expectations. For example, one published framework expects, in addition to legal work, that associates “develops self and others”, engages in “teamwork and collaboration”, operates as a leader and manager, and “grows existing business while developing new business.” Hildebrandt Institute Virtual Seminar: From Lockstep to Levels: How is it Working So Far? May 18, 2010.
134 Hafferty, supra note 77 at 405; the theme that law has become a business is persistent in the literature and was cited by our participants as an issue relevant to civility.
135 Nelson, supra note 126 at 775 found the transcripts of his interviews “littered” with the term “asshole”, defined as an obnoxious, obstructive litigator; Gallagher, supra note 114 at 325 found on the other hand that it was important to not be perceived as a “jerk”, or someone who “made it harder for everyone to do their job.”
136 Clinicians have written extensively on the value of legal clinics and externships in learning about practice and professionalism; for example, Kelly Terry, “Externships: A Signature Pedagogy for the Apprenticeship of Professional Identity and Purpose” (2009) 59 J. Legal Educ. 240. Clinics and externships are, however, time limited. As we discuss, development of a professional identity takes place over many years. For a recent discussion of using the Carnegie Foundation Studies as a guide to reform legal education in a manner that better fosters professionalism, see Neil Hamilton “Fostering Professional Formation”, supra note 43.