Try a Little Empathy (Or Maybe Lawyers Aren’t the Answer to Every Problem)

In December, three intelligent, accomplished, and articulate University leaders embarrassed themselves and their institutions in their testimony before Congress. Each of them stumbled in responding to questions whether calls for genocide against Jewish persons would violate their school’s policies. The questions weren’t unexpected or one-offs. Yet, every time each of these Presidents was asked, they stumbled in their responses. Within a few weeks, the Presidents of mighty Penn and Harvard had publicly acknowledged their failures and resigned in the wake of the scandal. Only the President of MIT remains in the top job.

How could this happen? It certainly wasn’t for lack of resources or preparation. According to reports, the Presidents were each prepared by the blue chip law firm WilmerHale. The University presidents would not have balked at rates reported to be in the range of $1,500 per hour (USD). The Universities (or their insurer) would have covered the bill. WilmerHale has a top-notch group that specializes in preparing people for testimony before Congress.

We don’t know what the legal advice was that WilmerHale gave the three presidents, and we may never know because of attorney-client privilege and the lawyers’ ethical duties of confidentiality. It is possible that in the future the clients (the University presidents and/or the Universities themselves) may waive their rights and speak out.

However, we can speculate what that legal advice was because each of the three presidents responded similarly to the questions and apparently were prepared separately by WilmerHale lawyers.

The presidents answered the questions about genocide in a legalistic manner, devoid of feeling or empathy for Jewish members of their communities who would be the targets of such attacks. This is what led to their demise.

Instead, the presidents should have spoken from the heart, as noted US legal commentator David Lat opined. They responded as if they were answering a hypothetical fact pattern on a law school exam.

There are many lessons that one can learn from the fiasco. I offer two.

First, maybe lawyers aren’t the answer to every problem that people face. It is widely observed that the US is “over-lawyered”. Sometimes, other professionals may be better-suited to deal with a problem. As a former dean, I sometimes counselled senior university administrators that they needed crisis communications professionals to deal with specific problems. Think Navigator not Seven Sisters.

Second, WilmerHale did have a crisis management or crisis communications legal group. They are reported to be one of the best in the country. We have seen the massive expansion of law firms into non-legal or legal-adjacent lines of businesses as a way of growing their businesses. Often they have no experience in doing so. Sometimes these ventures succeed and sometimes they do not. One contributor to their success is that lawyers can offer a promise and product that other professionals cannot: the permanent secrecy of lawyer-client privilege. Sometimes they fail spectacularly, as was the case with Heenan Blaikie’s ill-fated Africa venture that involved brokering arms deals between Russia and the Central African Republic.

Lawyers suffer from incredible hubris. In addition to practicing law, we think we can do everything – manage a law firm, marketing, government relations and, yes, crisis communications – without any formal education or certification in the area. Yet we think nobody else can provide a smidgen of legal services without a law degree. We zealously protect both our monopoly over the provision of legal services and over self-regulation.

The first lesson of the fiasco of three presidents is most certainly the absence of empathy. Another is the hubris of the legal profession.