ABA Debates Model Regulatory Objectives for Provision of Legal Services

I was a proponent of a resolution in the ABA House of Delegates regarding establishment of regulatory objectives for courts to use in regulation of non-lawyer providers of legal service. As you may know, some legal service providers are not lawyers, and many of these services are provided over the internet. On a daily basis, these services are provided to the public without any regulation. Lawyers are regulated, and the public is protected. Non-lawyer providers are not regulated, and the public is not protected. The debate was between those in the House of Delegates who believed the ABA should lead the discussion in how to regulate these non-lawyers, and those who believed the ABA should instead enforce existing rules to keep non-lawyers from providing legal services at all.

Here are the comments I prepared for presentation in the ABA House of Delegates (that I did not get to present due to a motion to cut off debate and call for the question):

Fact – non-lawyers are providing legal services to members of the public. Those of you who came up with me through YLD in the 90’s remember two very controversial debates on germaneness. Defeated proponents of those resolutions came away feeling that just about anything and everything is germane, and we have multitudes of resolutions over the past 20 years, that most are proud of, to prove it. Based on my stated fact, I can only conclude that opponents have finally found something that’s not germane. Let the regulators deal with it themselves. It’s not the concern of the American Bar Association. We’re not going to help you come up with guidelines to help you should you decide to regulate legal services not being provided by lawyers. We will help regulators and legislators or “urge” them on every other issue under the sun, but not this one.

Collectively, leaders in our profession must be engaged in the conversation regarding changes occurring in legal services delivery. This resolution is a great step in doing so. It provides guidance, and perhaps also indicates that we are not being choked by sand. Some may fear a different slippery slope than I do. What I fear is a slope created by recent unfair and inaccurate, national publicity that possibly led viewers to wrongly conclude that we cannot, or will not, regulate ourselves. It is a slope of increased grade, when the press, viewing this present debate, and assuming we do not pass it, portrays us as turf protectors. The end of the slope may be the conclusion that we are no longer worthy to lead discussions on the future of legal services delivery.

When I speak about what lawyer leadership needs to look like in the future, whether leadership of firms, clients or society, I talk about three main areas of emphasis…greater lawyer resiliency, practice innovation and professional engagement. It is in this area of professional engagement that I have greatest concern. I believe that if we do not pass the resolution, the ability of the ABA to be professionally engaged in the issue of regulation of non-lawyer provision of legal services, which is obviously a reality whether or not we acknowledge it, is in jeopardy.

Lawyer leaders will best be able to lead this discussion, and influence others, if those we desire to lead trust us to do so. Trust after all is what leadership is all about. What looks like self-interest will not foster the kind of trust necessary for our profession to continue to lead the discussion. There are certainly good intentions on the part of those in our profession who desire to protect the public through ways of the past. Regardless, times are changing, and the public craves our leadership. It is the duty of lawyer leaders to transition our efforts away from yesterday’s assumptions, and to collectively take a greater role in what the present, and a future, with non-licensed legal service providers should look like – making sure that the public is protected, even when society, perhaps over our desires or recommendations, allows non-lawyers to provide legal services.

So I wonder: Are we ready to lead through this change that is already upon us?

Here is the text of the Resolution as approved:

RESOLVED, That the American Bar Association adopts the ABA Model Regulatory Objectives 1 for the Provision of Legal Services, dated February,    2016.

ABA Model Regulatory Objectives for the Provision of Legal Service

A. Protection of the public

B. Advancement of the administration of justice and the rule of law

C. Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems

D. Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections

E. Delivery of affordable and accessible legal services

F. Efficient, competent, and ethical delivery of legal services

G. Protection of privileged and confidential information

H. Independence of professional judgment

I. Accessible civil remedies for negligence and breach of other duties owed, and 16 disciplinary sanctions for misconduct, and advancement of appropriate preventive or wellness programs.

J. Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system

FURTHER RESOLVED, That the American Bar Association urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.

FURTHER RESOLVED, That nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates.

Essential Qualities of an Effective Leader Part 2: Trust

Trust is a critical quality of effective leadership.  I recently wrote a column for the LP Magazine Managing Column, titled: “Old Fashioned CRM: The Importance of Trust”.  The column discusses three critical factors in gaining, keeping and even rebuilding trust: 1. Living a consistent life, including both being truthful and keeping promises you make, 2. Being transparent in your relationships, and 3. Being generous.  These three factors are critical in relationships with those you work for, those who work for you, those who you work with, and those who hire you to work for them.  You can read my recent column at the following link:

http://www.americanbar.org/publications/law_practice_magazine/2014/july-august/managing.html

 

What I learned at Leadercast 2014

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   Simon Sinek

 

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Bishop Desmond Tutu

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Leadercast is an event held in Atlanta, Georgia each spring. It is simulcast live to locations all over the world (and this year the portion with Bishop Desmond Tutu was simulcast back to Atlanta from South Africa).  Unless I have an ABA meeting to attend during the week of Leadercast, I attend the live event. Over the years I have met several of the leadership experts that I count as mentors (even though I have only, very briefly, personally met two or three of them, much of my leadership learning has come from study of resources they have created).  The event was held on May 9th 2014.  I highly recommend this event to anyone interested in “lifting the lid” on their leadership (i.e. developing their leadership skills).  You can find out more about the event at www.leadercast.com. The belief of Leadercast is that leading and being led by people who inspire and enlighten us, gives us strength and allows us to grow. Leadercast was built on a belief that the world needs better leaders—leaders worth following.  For lawyer friends that follow me for leadership advice, remember that leadership principles apply not only to the non-legal world, but to the leadership of our profession as well; leadership of other lawyers, leadership of law firms and leadership of clients.

Here are a few tidbits of what I learned at Leadercast this year:

Andy Stanley, a local pastor from Atlanta opened the day up (as he has done several times).  He truly is an expert on organizational visioning and leadership.  He shared the theme of the day with us, which was: Becoming a ‘Beyond You” Leader. He taught that being a Beyond You leader is about fearlessly and selflessly empowering others to lead – those by our side, as well as those coming up behind us.  Stanley taught that the value of our lives is measured in how much we give away.  He used the example of a funeral and what is honored or remembered about a deceased.  It is usually not how much a person made, but instead generosity and selfless acts of kindness.  In life we celebrate generosity, but tend to envy accumulation.  

Dr. Henry Cloud, a clinical psychologist and business consultant, furthered the topic of Beyond You Leadership.  Most people are control freaks.  Being a “Beyond You” leader, one who achieves both results and relationships, is about three things to understand: 1) that you will only really understand those you desire to lead when they understand that you understand them, 2) that there has to be something in you, some motivation or reason for leading, which is beyond you, and 3) that as leader we must be willing to give up control. 

Award winning author and journalist Malcolm Gladwell, as he is famous for, made his leadership point by telling a story.  He told the story of a leader in Northern Ireland after World War II.  The story is beyond this blog, but the point he made was that followers will only follow rules, laws or policies of a leader when they see the leadership of the leader as legitimate.  To be viewed as legitimate, followers must feel: 1) respect – the kind where they feel that leadership respects them as persons, 2) fairness – that leaders do not play favoritism but treat every individual fairly, and 3) reliability- that leaders are  not arbitrary in their decision making.

Leadership Expert and Best Selling Author Simon Sinek spoke to the attendees about the environment that we create as leaders.  He mentioned that with so much uncertainty in the world the one area where leaders have some control is the internal environment of the organization.  He called it the “Circle of Certainty”. We must on a daily basis work to make the environment in our organizations positive.  We must make progress on a daily basis.  He used (as does many a leadership speaker) Southwest Airlines as an example.  That company always comes up in studies as one of the best places to work.  Is it really because they hire better, happier people?  Sinek says that it is because of the environment the people are in – one created by great leaders who understand that environment is crucial.   

These were just four of many speakers throughout a full day.  Other speakers included Bishop Desmond Tutu, Former First Lady Laura Bush, former advertising sales executive and author, Laura Schroff, screenwriter and producer Randall Wallace and current CEO of SAP (the world’s leading producer of software) Bill McDermott.

 

Use of Handheld Devices in Meetings

Moving Beyond the Charge of Rudeness to an Environment of Cooperation and Understanding

A few weeks ago, during the NCAA Basketball tournament, I heard an XM Radio interview (I cannot recall if it was on ESPN or some other station) of Rick Pitino, coach of Louisville Cardinals.  He was discussing his leadership style, specifically answering questions regarding the prevalence of use of handheld devices by young athletes, and the difficulty with discipline that is caused by constant use. Basically, he has a “no device” rule whenever one of his college basketball players is in his presence. No devices are allowed in the locker room, no devices are allowed during practice, no devices are allowed during team meetings, and no devices are allowed when the team has meals together.

I have to admit that until recently I was in agreement with Mr. Pitino when it came to my view on the use of hand held or portable devices during meetings , whether with clients, partners or other professionals.  For some time now, however, I have been making a concerted effort to observe the use of portable electronic devices by others in public settings. Though I hate to disagree with a basketball coach with such a great win loss record  (and I dread his entry into the ACC next year because of his great success ), my observation has led me to the conclusion that communication expectations in society have changed, and nowhere is this more true than in the practice of law. In the past, law firm leaders seem to have opted for solutions which appease those lawyers who are most averse to the use of personal devices in meetings. I propose that tendency should change.  

Client meetings and communications

As the leader of a law firm, your recommendations regarding use of technology should always focus on quality service when it comes to clients. Some clients come to meetings with tablet in hand, and would not expect anything different of legal counsel. These clients understand the importance of being connected, and expect you to be as well. They also appreciate that having a device with you does not mean you’re necessarily not paying attention, playing a game or checking personal emails every time you glance away. True, they want your attention at meetings they are paying for you to attend, but are not offended by your technology. In fact, a lack of personal technology availability can work to the detriment of a lawyer in a client meeting, since the presence of handheld devices is a sign of the availability of information.  In other cases however, some clients may be less technologically savvy.  The bottom line is that in order to meet and exceed client expectations it is important that lawyers know their clients well. It is incumbent upon law firm leaders that to include in firm training, sessions which  encourage firm members to know and understand their clients; their needs, expectations and desires when it comes to communication, which is an integral part of quality service.

Colleagues and firm meetings

Whether the use of technology is a help or hindrance comes up as an issue most often when considering the use of handheld devices, or their presence, at meetings; meetings of partners, firm attorneys, executive committee, Bar Association Meetings, etc. It was not so long ago that I was known to simply “flat out” prohibit handheld devices at partner meetings and retreats. I’ve come a long way in my thinking however. Even 10 years ago, very few professionals regularly brought handheld devices to meetings. I now do not only believe that it is only a majority of folks who do, but truly the exception is actually when someone does not have their handheld device at a meeting.

It is true that some folks may be using these devices to “goof off” instead of pay attention. My observation however is that the world has changed, and handheld devices now provide access, response and security. Regardless of where an attendee stands on the technology spectrum, all should understand that clients have expectations, and with changing lifestyle demands, productive firm members need the security of “connectedness” with their family at all times (especially those with young children).

Given the potential for distraction due to misuse, but considering the demands of a rapidly changing world, law firm leaders need to find solutions that work for all firm members. Members need to be open to have discussions about proper use during meetings, and the need to use discretion in only answering or responding to emails when it is a true client or family emergency or demand. Those with negative attitudes about the use of handheld devices during meetings (which usually includes at least a few dinosaurs who have held on as non-adapters) need to be involved in the discussion, and led to understand that limited/controlled use during meetings is not only acceptable, but encouraged when safety, security or client satisfaction is the concern.

The days of exclusive mandatory rules, procedures and penalties are over. Both the means and mode of communication have changed. Young and old alike are demanding and expecting collaborative, inclusive and understanding leadership. Firm leaders must find solutions that meet the needs of all stakeholders if they expect to retain valuable firm clients, as well as the best and brightest legal talent.

 

Leadership and the Nation’s Capitol

I was fortunate enough to have an opportunity to experience, and learn about, leadership this past week.  On behalf of the ABA Law Practice Division, and as a member of a North Carolina delegation of bar leaders, I participated in ABA Day in Washington, DC.  As representative of the ABA and State Bar associations, participants visit with members of Congress to discuss with them pressing needs and concerns.  This year there were two major concerns: 1) funding for legal services (a brief synopsis of the ABA position can be found at:_ http://www.americanbar.org/calendar/aba-day/resources/lsc.html ) and 2) a provision of recently proposed tax reform legislation that would, if passed, force upon small professional associations, such as law firms, accrual based accounting (a brief synopsis of the ABA position can be found at: http://www.americanbar.org/calendar/aba-day/resources/vawa1.html ).  The North Carolina Bar delegation was fortunate enough to visit with both NC State Senators, as well as all but two of our members of Congress, and/or their staff.

One of our last visits was with Congressman George Holding of the 13th Congressional District of North Carolina.  Mr. Holding is a first term member of Congress, and before that served as a US Attorney.  After discussing with him the major initiatives of bar associations, we were able to ask Mr. Holding some of his views as a first term member of Congress; specifically his views about the contentious environment that seems to pervade all levels of our government. From that discussion, I learned (or confirmed) two leadership lessons:

First, now that the two party system seems to be a more competitive political environment, and because of the unbelievably fast rate of flow of information today, there is very little time for “leaders” to build the types of relationships necessary to truly lead each other, or the country.  Mr. Holding described for us the way members of Congress no longer have any time for each other.  Most time is spent away from Washington raising money or politicking.  When Congress is in session, Members leave (assuming they are not in session Friday) on Thursday evening, and return either very late Sunday, or on the first flight Monday morning.  I can attest to that fact, as I recall being on the last flight out from DC on a Sunday and crossing paths with my own Congressman in the airport. Even when at work in their offices in Washington, it sure seems like every minute is spent meeting with some constituent or other party asking for some type of influence or support. John Maxwell’s sixth law of leadership (Maxwell, The 21 Irrefutable Laws of Leadership (1988)) is “The Law of Solid Ground: Trust is the Foundation of Leadership”.  It seems impossible to build the kind of trust needed to lead others if you are not spending any real time with them.  Apparently, in the past, members from both sides of the aisle had time to get to know each other and form the kinds of trust that help build the types of coalitions that transcend party lines.  It seems this has been lost.

For leaders of lawyers in law firms and clients, the lesson to learn is that we truly do have to spend time getting to know those whom we lead.  Leadership of others takes time, and the kind of trust that leads to success will only be earned over a long period of devoted time.

Second, listening to Mr. Holding as well as other members of Congress, it seems that the power of position has increasingly become a real hindrance to leadership in Washington, DC.  In 20th Century years gone by, it seemed as if there was a less competitive environment, because there was less likelihood that the Congressional makeup and control could change from election to election.  One party held Congress for many years, and status quo was maintained because congressional districts did not really change from D to R or R to D, very often.  This is simply no longer the case.  With position, or the possibility of position, comes the potential (or thirst) for power, and therefore the possibility of having the power of “forced” influence (or as some leadership guru’s call it, Level 1 Leadership).  True leadership, or what is known as “Servant Leadership”, is not about the power of position, or forced influence, but positive influence through service to, or for, others as the main incentive to lead.  We seem to have lost this in the present environment in Washington, DC.  Let’s hope that the environment will change in the future such that even with change in position, the focus (or passion) of our “leaders” will be on service, and not power.

The lesson for leaders of law firms and clients is to understand that your motives need to be pure.  If you are simply “leading” to have power or influence over others, then you may get your way, but you will not be leading.  Our passion as leaders in the profession needs to always be primarily focused on the service of others: partners, associates, staff, clients, other members of our profession and the communities in which we live and work.Bk3xMzyIMAA6vIS

Rep. Holding and Reed Head of Winston-Salem, NC

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NC Delegation and Congresswoman Renee Elmers of NC Con. District 2

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NC Delegation and NC Senatator Kay Hagan