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    PROFESSIONAL LAthe

    American Bar Association Center for Professional Responsibility Standing Committee on Professionalism

    2010 Volume 20 No. 3

    Lawyers and Leadership*Deborah L. Rhode

    Deborah L. Rhode is the Director, Center on the Legal Profession, E.W.McFarland Professor of Law, Stanford University.

    M ost lawyers come to the subject of leader-ship with well-founded skepticism. Onrst glance, the eld seems a backwaterof vacuous rhetoric and slick marketing. RetiredCEOs peddle complacent memoirs, and consultantschurn out endless variations of management byfad. 1 Leadership lite includes classics such as

    If Aristotle Ran General Motors, and LeadershipSecrets from sources as varied as Attila the Hun,The Toys You Loved as a Child, and Star Trek .2 Whyshould lawyers squander time on that?

    An equally interesting and possibly more impor-tant question is why we generally dont. Why dontwe address the topic of leadership and in a moreserious way than pop publications provide? Afterall, no other occupation accounts for such a largeproportion of leaders. The legal profession hassupplied a majority of American presidents, and

    in recent decades, almost half of Congress, and 10percent of S&P 500 companies CEOs. 3 Lawyersoccupy leadership roles as governors, state legisla-tors, judges, prosecutors, general counsel, law rmmanaging partners, and heads of government andnonprot organizations. In advising inuential cli-ents, or chairing community and charitable boards,lawyers are also leaders of leaders. 4

    Even members of the bar who do not land intop positions frequently play leadership roles inteams, committees, campaigns, and other groupefforts. Moreover, many of the decision making,organizational, interpersonal, and ethical skills thatare critical for leadership positions are importantfor professionals at all levels. Yet most lawyersnever receive formal education in such leadershipskills. Nor do they generally perceive that to be aproblem, which is itself problematic, particularlyconsidering the leadership decit facing our pro-fession and our world.

    I. The Importance of Leaders andLeadership DevelopmentThe Leadership DecitTodays leaders face challenges of unprecedentedscale and complexity. In representing clients,shaping public policy, and leading corporate,government, and non-prot organizations, lawyersconfront societys most urgent unsolved issues. Onmany of these issues, effective leadership is lack-ing. Corporate governance, environmental protec-tion, human rights, national security, civil liberties,and entrenched poverty all demand leaders withbroad skills and deep ethical commitments. So too,lawyers who head law rms, bar associations, andother legal organizations must cope with increasedpressure, including intense competition and grow-ing needs for legal assistance among those whocannot afford it.

    Public condence in many of these leaders isdistressingly low. For example, only about a fthof Americans have a great deal of condence inthe integrity of lawyers; only 11 percent have agreat deal of condence . . . in people in charge ofrunning law rms and almost a third have hardlyany. 5 Trust in business leaders is at its lowestebb since polls started measuring it a half centuryago, and they are now the least trusted group inAmerican society. 6 Less than a quarter of surveyedAmericans trust the government in Washingtonalmost always or even most of the time, one ofthe lowest measures in the last fty years. 7

    The Educational DecitAt the heart of the problem are issues of ethics,which makes this topic of special relevance forteachers of ethics. Our professions need for leaderswith inspiring visions and values has never beengreater. Yet our current educational system doeslittle to produce them. Law schools and continu-ing legal education programs have lagged behind

    (Continued on page 12)

    Published in The Professional Lawyer , Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This informationor any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express writtenconsent of the American Bar Association.

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    PROFESSIONAL LAWYERthe

    FEATURES

    Lawyers and Leadership Deborah L. Rhode ........................................................ 1

    Expanding Screening Further Robert A. Creamer ....................................................... 3

    Courtroom Technology and Legal Ethics:Considerations for the ABA Commission onEthics 20/20

    Michelle L. Quigley .................................................... 18

    Should States Ban Contingency FeeAgreements between Attorneys Generaland Private Attorneys?Carson R. Grifs ........................................................ 22

    Tough Decisions or Easy Ones ThatHalf Your Colleagues Will Disagree WithPeter J. Winders ......................................................... 27

    Crumbs from the Table Lawrence J. Fox ......................................................... 28

    PUBLICATIONS BOARD OF EDITORS

    CHAIR: John P. SahlAkron, Ohio

    MEMBERS: Susan Saab FortneyLubbock, Texas

    Arthur F. GreenbaumColumbus, Ohio

    Andrew M. PerlmanBoston, Massachusetts

    Burnele V. PowellColumbia, South Carolina

    Ronald D. RotundaArlington, Virginia

    Mark L. TuftSan Francisco, California

    THE PROFESSIONAL LAWYER

    EDITORIAL DIRECTOR: Jeanne P. Gray

    EDITOR: Arthur Garwin

    ART DIRECTOR: Jill Tedhams

    Subscriptions to The Professional Lawyer are $40.00 per year.

    Subscription inquiries and orders regarding individual issues shouldbe directed to the ABA Service Center at 1-800-285-2221. Reprintpermission requests should be directed to ABA Publishing, 321 N.Clark Street, Chicago, IL 60654-7598. The Professional Lawyer ,(ISSN: 1042:5675; ABA Product Code 462-0001-2003) a quarterlymagazine covering professionalism and ethical issues and efforts ofbar associations, law schools and the judiciary to increase profes-sionalism within the legal profession, is published quarterly bythe ABA Center for Professional Responsibility and the StandingCommittee on Professionalism. Suggestions for articles and Letters tothe Editor should be sent to The Professional Lawyer , American BarAssociation, 321 N. Clark Street, Chicago, IL 60654-7598, or call(312) 988-5294 or FAX (312) 988-5491. The Professional Lawyerreserves the right to select, edit and excerpt letters for publication.Visit the Centers World Wide Web site at www.abanet.org/cpr.The views expressed herein have not been approved by the House of Delegatesor the Board of Governors of the American Bar Association and, accord-ingly, should not be construed as representing policy of the American Bar

    Association.

    2010 by the American Bar Association The Professional Lawyer is printed on recycled paper.

    Vol. 20 No.3

    Published in The Professional Lawyer , Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information

    or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express writtenconsent of the American Bar Association.

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    vote of 176 to 130, the ABA House of Delegates rejected thisproposal. Despite the ABA position on lateral screening, atleast 24 states adopted rules that permitted lateral screening.Eventually, in February 2009, the House revisited the issueand narrowly approved a lateral screening rule, now ModelRule 1.10(a)(2), which is substantially similar to the originalEthics 2000 draft.

    The Lawyers World Continues to ChangeAlthough the 1999 Drafting Group proposal to amend ModelRule 1.10 was ignored by the Ethics 2000 Commission,subsequent events have proven the proposal prescient. Inthe past decade, the trends in the provision of legal servicesnoted by the Drafting Group have continued. If anything,those trends appear to have accelerated. Law rms continuedto grow even larger. For example, by 2006, the Baker &McKenzie rm had more than 3,500 lawyers, DLA Piper hadmore than 3,300 lawyers, and at least other 20 rms had morethan 1,000 lawyers. 6

    And large clients continued to use more different lawrms. Long-term relationships between law rms andtheir clients have become even more attenuated, and manycorporate clients are more interested in retaining individuallawyers than specic rms. 7 And many in-house generalcounsels have publically called legal services commoditiesand described lawyers and law rms as fungible. Indeed,as Professor Thomas Morgan observes: many lawyer-clientrelationships are likely to remain less like marriages andmore like one-night stands. 8 For lawyers in law rms, thesechanges have meant the end of a culture where nobodystarves to a business model where partners are more akin toindividual entrepreneurs, compensated primarily on the basis

    of their own business.9

    There is nothing to suggest that thesechanges in the legal landscape are temporary.

    The Rationale for Automatic ImputationThe changes in the legal services landscape also challengethe assumptions underlying the notion of automatic imputa-tion of a conict of interest to all afliated lawyers. Com-ment b to Restatement of the Law Third, The Law Governing

    Lawyers 123 (2000) gives the rationale for automaticimputation of conicts, citing three concerns. First, afliatedlawyers are said to share each other

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