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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

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Ronald D. RotundaArlington, Virginia

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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 others interests because a feefor one lawyer, for example, normally benets all lawyers inthe partnership, which allegedly creates an incentive in afli-

ated lawyers to cooperate to favor one client over the other.Aside from the questionable assumption that rm lawyerswould engage in improper conduct, such nefarious coopera-tion seems most unlikely in a contemporary eat what youkill compensation scheme.

Second, Comment b states that afliated lawyers ordinar-ily have access to les and other condential informationabout each others clients. Third, the comment observes thata client would often have difculty proving that an adverserepresentation by an afliated lawyer was wholly isolated.These latter concerns are both issues of preserving client

condentiality. As a practical matter, it is improbable thatlawyers in most rms, much less modern mega rms, haveeasy access to the condences of every rm client. In anyevent, concerns over access to client information can be ad-dressed and resolved by appropriate and effective screening.

Ironically, automatic imputation is a latecomer to legalethics rules. It was not part of the 1908 ABA Canons ofProfessional Ethics. The notion rst appears in ABA FormalOpinion 33 10 in a situation involving a two-partner rm. Theopinion concludes: The relations of partners in a law rmare so close that the rm, and all the members thereof, arebarred from accepting any employment, that any one memberof the rm is prohibited from taking. 11 The automatic pro-hibition was rst codied as DR 5-105(D) of the 1969 ABAModel Code of Professional Responsibility: If a lawyer isrequired to decline employment or to withdraw from employ-ment under a Disciplinary Rule, no partner or associate, orany other lawyer afliated with him or his rm may acceptor continue such employment. This Code provision is theantecedent of current Model Rule 1.10(a).

It is important to note that in both the Restatement andthe ethics rules provisions, loyalty to a client is not given asa rationale for automatic imputation. There is good reasonfor this apparent omission. The notion of loyalty to a clientis derived from the law of agency. 12 Under agency law, thescope of that duty is typically limited to matters connectedwith the agency relationship. 13 Thus, if the scope of a law-yers duty of loyalty were consistent with the law of agency,it would be limited to the matter for which the lawyer hasbeen retained. Even though Comment [6] to Model Rule 1.7extends the duty of loyalty to unrelated matters in the case of

an individual lawyer, the reasons given to justify imputationdo not support the automatic imposition of that duty on allafliated lawyers.

There May Be No Conict to ImputeThe reference to Comment [6] to Model Rule 1.7 raisesthe related, but different, issue of whether a representationadverse to a current client in a wholly unrelated mattershould be considered a conict of interest at all. ProfessorMorgan explores this question in a thoughtful 1996 article,where he shows that the prohibition of any representationadverse to a current client, regardless of any connection to thelawyers representation of that client, evolved during a periodwhen the practice of law was much different from what ithas become. 14 He also argues that the current rule does not

Many lawyer-client relationships arelikely to remain less like marriages

and more like one-night stands.



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simply codify well-established case law, but rather appliesdicta from cases that involved very different factual settingsfrom those to which the rule is now typically applied. Profes-sor Morgan observes that application of the strict currentclient rule can deprive litigants of their counsel of choice incircumstances where the other rm client faces no credibleharm from the adverse representation, but may well refuse toconsent for tactical reasons.

In some legal regimes, adversity against a current clientin an unrelated matter is simply not a disqualifying conict.For example, Section 3.2 of the Council of Bars and LawSocieties of Europe (CCBE) code of Conduct for EuropeanLawyers engaged in transnational practice denes conictsof interest in terms of the same matter. In a similar fashion,Rule 3.01 of the Solicitors Code of Conduct 2007 forEngland and Wales limits the prohibition against conictsof interest to the same or related matters. In July 2010,the Solicitors Regulatory Authority of the United Kingdomamended Rule 4.05 of the Code to permit a rm to acceptmatters adverse to a client without consent of the client ifcondential information material to the clients representa-tion if appropriate safeguards or information barriers aretimely implemented.

Within the United States, current Texas Disciplinary Rule1.06 allows a lawyer to be adverse to a current client in anunrelated matter without client consent. 15 [The Fifth Circuithas nevertheless decided that the Texas rule may not be fol-lowed in the federal courts in Texas 16 and there is pending aproposed rule change that would require client consent. 17

Client Consent Is Not a SolutionSome have suggested that the negative effects of automatic

imputation can be remedied easily by client consent. Butconsent is not predictable and offers no reliable way forlawyers and other clients to plan their affairs. At the outset,clients can withhold consent for any reason or no reason.And experience suggests that many, perhaps most, clientswill refuse to consent for what they consider the tactical ad-vantage of denying the other party of their counsel of choice,without regard to whether the matters in question are related.Even if a client gives initial consent, that consent may berevoked at any time. 18 Whether the revocation is justiedor will prevent a lawyer from continuing to represent theother client normally depends on the circumstances, but willinevitably result in additional delay and expense. Routinely

seeking advance consent from new clients could enable law-yers or law rms to ameliorate the risk of a clients refusalto consent if a later conict in an unrelated matter arises,but advance consents are still subject to revocation as wellas disputes over whether the consent was valid or covers theconict that eventually arose.

Another practical problem with consent is the need toprotect client information. Model Rule 1.7(b)(4) requires thatconsent to a conict of interest be informed. And ModelRule 1.0(e) denes informed consent to denote agreementafter the lawyer has communicated adequate information

and explanation about the material risks and of and reason-ably available alternatives to the proposed course of con-duct. Given that Model Rule 1.6(a) protects all informationrelating to the representation of a client, it may be difcultfor a lawyer to disclose sufcient information about one

client to another to obtain informed consent. ABA FormalOpinion 90-358 19 (Sept. 13, 1990) recognized this problemand held that because the lawyer in the situation presentedwas precluded from disclosing the information necessary tomake the consent informed, the conict was nonconsentable.Formal Opinion 05-436 (mentioned above), which generallyrecognized advance consents to future conicts, also notesthat a clients informed consent to a future conict, withoutmore, does not constitute the clients informed consent tothe disclosure or use of the clients condential information. . . . 20 Even with an advance consent by the existing client,a lawyer may be unable to disclose sufcient information tothe prospective client, as the other affected client who mustconsent under Model Rule 1.7(b)(4), to obtain valid informedconsent.

Screening Has Been a Success

Screening has been recognized for decades. Long beforeModel Rule 1.10 was amended in February 2009 to permitscreening of private lateral lawyers, Model Rule 1.11 allowedlateral screening for former government lawyers; and ModelRule 1.12 provided for the screening of former judges, arbi-trators and law clerks to prevent imputed disqualication oftheir new law rms in matters in which they participated per-sonally and substantially. Model Rule 1.18(d) permits screen-ing of lawyers who received disqualifying information fromprospective clients. Comment [4] to Model Rule 1.10 permitsscreening of nonlawyers such as paralegals and secretaries,as well as former law student clerks. ABA Formal Opinion88-356 21 regarding temporary or contract lawyers, recog-

nized screening as a proper method of preventing vicariousdisqualication when such lawyers moved among law rms.In addition, Restatement 124(2) allows screening to removeimputation with respect to a former-client conict when thereis no substantial risk that the condential information of theformer client will be used with material adverse effect on theformer client.

Since the 1980s, at least 24 states have adopted ethicsrules to permit screening of lateral lawyers moving betweenprivate rms. And virtually every state permits screening ofnonlawyer personnel to prevent vicarious disqualication.

Even if a client gives initialconsent, that consent may be

revoked at any time.



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With the prevalence of screening in various contexts formany years in almost every state, there appears to be little,if any, empirical reason to believe that lawyers cannot betrusted to comply with an appropriate screen. Clients appearto have experienced few, if any, problems accepting theconcept or practice of screening. 22 By any rational measure,screening has been a success.

The Courts Are Leading the WayThe experience of the courts with lateral screening is instruc-tive when considering the proposal to permit screening toremove automatic imputation in unrelated matters. In 1983,the Seventh Circuit suggested the elements of an acceptablescreen to remove automatic imputation in a lateral situationin LaSalle National Bank v. County of Lake ,23 seven years be-fore the Illinois lateral screening rule was adopted. In 1999,Peter Moser observed that trial and appellate courts in theSecond, Third, Sixth, Seventh, Eleventh and Federal Circuitsrecognized lateral screening in appropriate situations evenwhen otherwise applicable state ethics rules did not providefor screening. 24 Unfortunately, it was another decade beforethe ABA followed the lead of the courts and nally amendedModel Rule 1.10.

Once again, the courts are leading the way. Three rela-tively recent decisions conrm that screening can removeautomatic imputation when a law rm may be adverse to anexisting client in an unrelated matter. 25

It is not surprising that the courts have taken leadershipon this issue. It is the courts that must deal with the reality oftactical disqualication motions that have nothing to do withthe merits of the litigation before the court. Such motionswaste scarce resources, imposing needless expense and delay

on the courts and clients alike. Yet such motions will contin-ue to be made as long as there is no practical way to removeautomatic imputation in unrelated matters imposed by ModelRule 1.10(a). It is time for the ABA to change that rule in theinterests of clients and the courts as well as lawyers.

Endnotes 1. ABA Comm. on Ethics & Profl Responsibility, Formal Op. 93-372 (April 16, 1993). 2. Id .

3. See further discussion of Formal Opinion 05-436 infra . 4. A B A , A L H : TD ABA M R P C -

, - , at 253 (2006). 5.Screening of former government lawyers was already allowed byModel Rule 1.11.

6. T D. M , T V A L 101(2010). 7. M C. R , J ., E W Y K : T F W S L 33 (2006). 8. M , supra note 6, at 123. 9. R , supra , note 7 at 26, 42. 10. ABA Comm. on Profl Ethics, Formal Op. 33 (Mar. 2, 1931). 11. Id. 12. See R L T , T L GL 16, Comment e (2000). 13. See R L T , A 8.01 (2006);and R L S , A 390, Commentd (1958) (agent is not, as such, in duciary relation with the principalas to matters in which agent is not employed). 14. See Thomas D. Morgan, Suing a Current Client , 9 G . J.L E 1157 (1996). 15. See In re Southwestern Bell Yellow Pages, Inc ., 141 S.W.3d 229(Tex. App. 2004). 16. See In re Dresser Industries, Inc ., 972 F.2d 540 (5 th Cir. 1992). 17. See proposed amendments to Texas Disciplinary Rules ofProfessional Conduct at http://www.supreme.courts.state.tx.us/rules/ rules.asp (last visited Oct. 6, 2010).

18. R L T , T L GL 122, Comment f (2000). 19. ABA Comm. on Ethics & Profl Responsibility, Formal Op. 90-358 (Sept. 13, 1990). 20. ABA Comm. on Ethics & Profl Responsibility, Formal Op. 05-437 at 5 (May 11, 2005).21 ABA Comm. on Ethics & Profl Responsibility, Formal Op. 88-356 (December 16, 1988). 22. G C. H , J . and W. W H , T L L 14.3, at 14-13 (3d ed. 2010 Supplement).

23. 703 F.2d 252, 259 (7th Cir. 1983) (an appeal from a districtcourt in Illinois). 24. M. Peter Moser, Screening of Personally Disqualied Lawyers

to Avoid Law Firm Disqualication Should Be More Widely Em- ployed , 1999 S I T P L 159(1999). 25. See Boston Scientic Corp. v. Johnson & Johnson Inc ., 647 F.Supp. 2d 369 (D. Del. 2009); Wyeth v. Abbott Laboratories, 2010U.S. Dist. LEXIS 11032, 2010 WL 502995 (D.N.J. Feb. 8, 2010);and Air Products and Chemicals, Inc. v. Airgas, Inc ., 2010 Del. Ch.LEXIS 35 (Mar. 5, 2010). See also Elonex I.P. Holdings, Ltd. v.Apple Computer, Inc ., 142 F. Supp. 2d 579 (D. Del. 2001) (disquali-cation denied in unrelated matter where rm had advance waiverand instituted screen).

Commission Ethics 20/20

Follow the work of the ABA Commission on Ethics20/20 at http://www.abanet.org/ethics2020/

home.html . The Commission seeks comments onissues papers posted to the site. It also invitesinterested parties to join its list serve to receiveperiodic updates and participate in discussions

on the Commissions work, and to learn aboutmeetings, public hearings, roundtables, andeducational opportunities.



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October 5, 1999

American Bar AssociationCommission on the Evaluation of theRules of Professional Conduct541 North Fairbanks, 14th Floor

Chicago, Illinois 60611Attention: Susan Campbell

Re: Proposed Rule 1.10Public Discussion DraftLadies and Gentlemen:

This letter is being sent in response to the publication by the Ethics 2000 Commission of its Draft for Public Com-ment dated March 23, 1999 of Model Rule 1.10.

These comments have been prepared by the Drafting Group on Screening of the Ad Hoc Committee on Eth-ics 2000, Section of Business Law of the American Bar Association. The Ad Hoc Committee on Ethics 2000 iscomposed of the members of the Section of Business Law listed at the end of this letter, including the Chairs ofthe principal Committees of the Section on practice, professionalism and ethics, the Committees on Conicts ofInterest, Counsel Responsibility, Law Firms, Lawyer Business Ethics, Corporate General Counsel and the Ad HocCommittee on Multidisciplinary Practice, as well as other Section leaders and members knowledgeable in the eld,including two members of the ABA Standing Committee on Ethics and Professional Responsibility (the EthicsCommittee). A draft of this letter was circulated for comment among the members of the Ad Hoc Committee andthe Ofcers of the Section. A substantial majority of those who have reviewed the letter in draft form have indi-cated their agreement with the views expressed. However, this letter does not represent the ofcial position of theSection nor does it necessarily reect the views of all of those who have reviewed it.

We recommend that there be no imputation in the context of concurrent representation if (i) screening is in place,(ii) the matters are not related, (iii) each affected client is notied, and (iv) there is no signicant risk of diminutionof the loyalty owed by any lawyer in the rm to its clients. We also support the proposal of the Ethics Committee tomodify the Commissions Proposed Rule 1.10 to allow for screening when a personally prohibited lawyer joins a

rm. We believe, however, that screening should also be allowed to avoid the imputation of current conicts.In its Proposed Rule 1.10, the Commission does not adequately recognize the enormous changes in the past 20years in the practice settings in which legal services are provided and in the relationships between lawyers inprivate practice and the large users of legal services. Because of that, the proposed rule continues to require theimputation of conicts to all lawyers in all rms in all circumstances of adverse representation involving currentclients.

In our view, the Commissions Proposed Rule 1.10 treatment of screening is based on two presumptions that arenot valid. The rst presumption, as Robert Creamer points out in his Comments to the Commission dated August5, 1999, is that every lawyer in every law rm always knows everything about every matter in which every otherlawyer in the rm may be involved. This is true only in a solo practice setting. It may be substantially true in smallrm settings, but it obviously is wrong in large multi-ofce law rms. There is then the further incorrect presump-

tion, ordinarily rebuttable only in the case of government lawyers, that lawyers who have condential informationof a rms client that may be material to a current adverse matter will inevitably disclose that information withinthe rm. This is also wrong and is a misconception of the response by lawyers to their obligations of condentiali-ty. See Brian Redding, Comments to the Commission regarding Proposed Model Rules 1.7, 1.8, 1.9, & 1.10 , August4, 1999 (for a convincing argument that disclosure of client condential information does not occur when a formalscreening mechanism is in place).

The practice settings on which these presumptions were based have changed dramatically. By 1950, only 19rms in the country consisted of 50 or more lawyers and by 1970, a year after the adoption of the Model Code of



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Professional Responsibility, that gure had increased to only 46 rms. Robert L. Nelson, Practice and Privileges:Social Change and the Structure of Large Law Firms , Am. B. Found. Res. J., 1981 Winter, 105-7,109. In 1980, 257rms consisted of 50 or more lawyers and by 1995 there were 702 rms in the United States with over 50 law-yers. Clara N. Carson, The Lawyer Statistical Report, The U.S. Legal Profession in 1995, Am. B. Found, (1999),(Statistical Report). Translated into numbers of lawyers, 27,190 lawyers practiced in rms of 50 or more lawyersin 1980. By 1995 that number had increased to 105,316 lawyers, approximately 70% of whom practiced in multi-

ofce rms. Statistical Report. Prior to the adoption in 1969 of the ABA Model Code of Professional Responsibil-ity, few rms maintained ofces in other states. See Comment, Regulating Multi-State Law Firms , 32 Stan. L. Rev.1211-14 (1980). By 1995, there were 280 rms of over 50 lawyers that maintained ofces in more than one state.These rms consisted of approximately 70,000 lawyers. Statistical Report.

The practices of the large users of legal services also have changed as have their relationships to their lawyers.Large multi-ofce conglomerate clients through their highly sophisticated employed attorneys now regularly en-gage many different law rms and different lawyers for representation in different substantive areas. For instance,several years ago General Motors was reported historically to have used 800 rms but intended to reduce thatnumber to 300. Many of these clients also consider it a good business practice to hire lawyers and not law rms,and to hire these lawyers after a beauty contest or a response to a request for bids. This has resulted in chang-ing the nature of the loyalty owed to these clients. As early as 1981, commentators concluded that the concept oflegal friend in these circumstances is outmoded. See Developments in the LawConicts of Interest in the LegalProfession , 94 Harv. L. Rev. 1244, 1302 (1981).

These developments were recognized by the Ethics Committee in its Formal Opinion 93-372, dated April 16, 1993,addressing the changes in legal practice that have also prompted the recourse to waivers of future conicts, when itstated:

The impetus for seeking prospective waivers has grown as the nature of both law rms and clients haschanged. In an era when law rms operated in just one location, when there were few mega-conglom-erate clients and when clients typically hired only a single rm to undertake all of their legal business,the thought of seeking prospective waivers rarely arose. However, when corporate clients with multipleoperating divisions hired tens if not hundreds of law rms, the idea of that, for example, a corpora-tion in Miami retaining the Florida ofce of a national law rm to negotiate a lease should precludethat rms New York ofce from taking an adverse position in a totally unrelated commercial disputeagainst another division of the same corporation strikes some as placing unreasonable limitations on theopportunities of both clients and lawyers.

Although the opinion continues by endorsing the view that such a situation presented a conict, it recognizes thatthere was nothing in the example that should prevent a prospective waiver from being effective.

The analysis and understanding of the duty of loyalty to clients has also lagged behind the reality of practice andresults in a continuing misapprehension of when a duty of loyalty might be breached. Lawyers must serve their cli-ents with competence, independent judgment, to the best of their ability and with undivided loyalty. This includesmaintaining the clients condences. The presumption that the lawyers in the situation in the example in Opinion93-372 will not do so is unsupported and, in the circumstances of many large clients, is unwarranted.

An additional change to the practice of law has been the recent dramatic increase in the lateral movement ofattorneys between rms. According to a recent national survey conducted by the National Association for LawPlacement, the movement of lawyers from rm to rm during their careers has become increasingly commonplace,and rms are now hiring new attorneys laterally at a rate that surpasses entry-level hiring. Martha Neil, More Firms

Eschew New Grads for Lateral Hires , CHI. DAILY LAW BULLETIN, Feb. 18, 1999, at 1. There appear to bemany reasons for this phenomenon. For example, many lawyers are seeking greater autonomy, more interestingwork, higher compensation or more exible hours. Other lawyers relocate due to family relocations or law rmdownsizing, dissolution or bankruptcy. Whatever the cause, strict application of the current Rule 1.10 withoutscreening restricts the ability of these lawyers to nd new positions without unnecessary delay and disruption. The



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increasingly common lateral movement of lawyers between rms requires that Rule 1.10 be reexamined to operateproperly in the new practice settings.

In spite of these developments, there is no dispute between lawyers and their clients over the goals and principlesembodied in the practice of law. Clients must be assured of undivided and undiminished loyalty on the part of theindividual lawyer or lawyers actually serving them and be assured that client condences will not be misused.

The general rule of imputation, however, by employing presumptions that are not now valid, does not necessarilyfurther these goals; rather, it unnecessarily ignores the interests of clients and restricts the mobility of lawyers.

Permitting a law rm to be adverse to a current client in an unrelated matter is not unknown. Since January 1990,Rule 1.06(b)(1) of the Texas Disciplinary Rules of Professional Conduct has provided that a lawyer could representa client adversely to another client of the rm if the matters in question were not substantially related. In suchsituations, the rm may proceed without notice to or consent from the other client. Nor is screening required by theTexas rule. (The Fifth Circuit has declined to recognize this rule in federal cases. See In re American Airlines, Inc.,972 F.2d 605, 610 (5th Cir. 1992)). In contrast, the Ad Hoc Committees proposal would allow a rm to proceedwith an adverse representation in an unrelated matter only after written notice to each affected client and theimposition of an effective screening procedure. The rms loyalty would also be subject to review under the vefactors discussed in the proposed comment. Viewed in context, the Ad Hoc Committees proposal offers a practicalsolution to the technical conicts that arise from contemporary practice while preserving protection of the legiti-mate concerns of rm clients.

As stated above, we support the proposal of the Ethics Committee. Our proposal would build on those suggestedchanges. For convenience, we have shown below, rst , the Ethics 2000 Commission proposal in which materialadded to the current Model Rule has been underlined and deletions from the current Model Rule have been struckthrough; second , additions suggested by the Ethics Committee (and not deleted by the Ad Hoc Committeeproposals) are bold printed , and its deletions are [bracketed]; and third , the additions that we present are shownby double underlining.

Rule 1.10

IMPUTED DISQUALIFICATION: GENERAL RULE

(a) While lawyers are associated in a rm, none of them shall knowingly represent a client when the lawyerknows or reasonably should know that any one of them practicing alone would be prohibited from doing so byRules 1.7 (a ), 1.8 (c), or 1.9 or 2.2, [unless the prohibition is based on a personal interest of the prohibited lawyerand does not present a signicant risk of materially limiting the representation of the client by the remaininglawyers in the rm] except as permitted in paragraphs (b) and (c ).

(b) If the prohibition is based on a personal interest of the prohibited lawyer and does not present asignicant risk of materially limiting the representation of the client, any of the remaining lawyers in therm may represent the client.

(c) The provisions of paragraph (a) shall not be applicable to conicts arising under either Rule 1.7 or 1.9 if:

(1) The prohibited lawyer is screened from any contact with the new matter in accordance with paragraph(f);

(2) the lawyer undertaking the new matter is screened from any contact with any disqualifying matter inaccordance with paragraph (f);

(3) any disqualifying matter and the new matter are not the same or substantially related;

(4) there is no signicant risk of a diminution of the obligation of loyalty by a lawyer of the rm to itsclients; and



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(5) in the case of conicts arising under Rule 1.7, each affected client is advised in writing of the circum-stances warranting the implementation of screening procedures and of the actions taken to comply withthis rule.

[(b)](d) When a lawyer has terminated an association with a rm, the rm is not prohibited from thereafterrepresenting a person with interests materially adverse to those of a client represented by the formerly associ-

ated lawyer and not currently represented by the rm, unless:(1) the matter is the same or substantially related to that in which the formerly associated lawyer repre-sented the client; and

(2) any lawyer remaining in the rm has information protected by rules 1.6 and 1.9(c) that is material tothe matter.

[(c)](e) A disqualication prescribed by paragraph (a) may be waived by the affected client under the condi-tions stated in rule 1.7.

(f) For purposes of this rule, a lawyer in a rm will be deemed to have been screened from any contact with amatter if:

(1) the lawyer is specially apportioned no part of the fee therefrom; and(2) the rm adopts procedures that are reasonably likely to be effective in preventing material informationfrom being disclosed to the screened party or parties.

We also suggest that the proposed Comment to Proposed Rule 1.10, specically proposed Comment [5], be modi-ed to conform to our proposed Rule and that there be added to the proposed Comments to Rule 1.10, the follow-ing (additional commentary proposed by the Ethics Committee is bold printed and additional commentary wepresent appears as normal text):

COMMENT:

[7A] For purposes of this Rule and Rules 1.11, 1.12 and 1.18, effective screening requires both that thelawyer is not specially apportioned any part of the fee from the representation adverse to the former client,

see Comment [5] of Rule 1.11, and that procedures are adopted and followed that are reasonably likely toprevent material information from being disclosed by the prohibited lawyer to the rm or its client and itsclient. Effective screening procedures will vary according to the situation, but at a minimum will entail anagreement by the prohibited lawyer not to participate in or discuss the matter with any other rm memberand adherence of the prohibited lawyer to that agreement, notice to all lawyers associated with the rm ofthis requirement, and, to the extent feasible, isolation of sensitive documents and other information relatingto the matter.

[ ] The rule in paragraph (a) does not prohibit representation where neither question of client loyalty nor protectionof condential information is presented. Whether a lawyer would be deemed materially limited in pursuing a mat-ter on behalf of a client because of loyalty to another client of the rm would depend upon several factors, includ-ing (i) the size of the rm; (ii) the number of the rms ofces and where the lawyers representing each client arelocated; (iii) the type of work the rm has done or is doing for each client in question; (iv) the relationship betweenthe rm and each client; (v) the characteristics of each client; and (vi) the relationship between the clients in ques-tion. For example, where a lawyer in a rms New York ofce represents a particular client, and another lawyerin the rms San Francisco ofce represents another client, the risk of each representation affecting the other issmaller than if both lawyers worked in the same ofce. Other divisions within law rms, such as departments andpractice groups, further reduce the risk that unrelated representations will adversely affect the relationships with theclients in question. Also, when evaluating the risk of diminution of loyalty under factor (iii), if a lawyer at the rmrepresents a client with respect to an isolated minor matter and the rm does not act as that clients regular outsidecounsel, it is less likely such representation would materially limit the representation by another lawyer at the rm



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of another client in an unrelated matter. However, the conclusion perhaps would be different with respect to therms representation of a particular client in an ongoing matter or litigation. Such concerns would also be evaluatedunder factor (iv). Where a client regularly engages a rm to perform legal services and there is an expectation of anongoing relationship, the risk of such representation affecting the representation of another client in an unrelatedmatter is greater than where an assignment is obtained from a client through a beauty contest.

[ ] In the case of conicts arising under Rule 1.7, Rule 1.10(c)(5) requires the rm to advise each affected clientof the screening procedure being implemented. Following receipt of the notice of the screen, the new client wouldhave the opportunity to engage alternative counsel if it believed the rms obligation of loyalty to it was diminishedor condential information was at risk because of the rms representation of the other client. Whether the rmsrepresentation of the initial client would be prejudiced because of the new client matter must be taken into consid-eration under factor (iii) of Comment [ ] above, e.g., such client may not be in a position to change counsel.

[ ] Rule 1.10(f) establishes basic requirements for effective screening. In practice, screening procedures will varyaccording to the particular situation and law rm. In evaluating whether a particular screening procedure is effec-tive, several of the factors listed in Comment [ ] would be relevant, including (i) the size of the rm; and (ii) thenumber of the rms ofces and where the lawyers representing each client are located.

We appreciate the opportunity to submit comments and are available to meet with the Commission or your

Reporter to respond to any questions.Respectfully submitted,

Larry P. Scriggins, ChairAd Hoc Committee on Ethics 2000Drafting Group on ScreeningRobert L. Berner, Jr.Robert A. CreamerLarry P. ScrigginsAnn Yvonne WalkerBy____________________________Robert L. Berner, Jr.

Members of the Ad Hoc Committeeon Ethics 2000:Larry P. Scriggins, ChairDavid AlbendaHarold S. BarronRobert L. Berner, Jr.Robert A. CreamerRichard E. GutmanRichard E. V. HarrisDennis J. LehrSimon M. LorneBruce A. MannFrank D. Mayer, Jr.Charles E. McCallumM. Peter MoserRobert E. OMalleyMarshall L. SmallA. A. Sommer, Jr.Charles H. (Hank) StillAnn Yvonne Walker



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other institutions in developing leadership skills. The recentrecession has caused cutbacks in most of the few law rmsthat offer such training. 8 By contrast, corporate spending onleadership development totals forty-ve-billion dollars an-nually and at least seven hundred academic institutions haveleadership programs, largely at the undergraduate level. 9

As Gregory Williams noted while president of the Asso-ciation of American Law Schools, schools are happy to takecredit for launching the careers of their prominent graduates,but have not generally focused attention on fostering leader-ship . . . curricula. 10 Lawyers leadership responsibilities area dominant theme in extracurricular programs, commence-ment speeches, and alumni awards, but the topic is missing inaction in day-to-day teaching. Ironically, of the mission state-ments available on law school websites, 38 include fosteringleadership, but only two of these schools are actually offeringa leadership course. 11

Explanations for this neglect mirror those tradition-ally given for the marginalization of professional ethics.Legal educations still inadequate treatment of the moraldimensions of professional life parallels and reinforces itsdevaluation of leadership development. Many of the urgentchallenges facing lawyers as leaders involve ethical concernsthat law schools have not effectively addressed elsewhere inthe curricula. Let me begin by reviewing some of the sharedobstacles to education in both leadership and professionalresponsibility, and conclude with some promising responses.

II. Education in Ethics and Education in Leader-ship : Obstacles and Overlap Legal Ethics in Legal EducationEthics in legal education was traditionally notable for its ab-sence. Most faculty treated the subject as beneath our noticeor . . . [beyond] our capacities. 12 Early courses amounted tolittle more than platitudinous exhortation; general pifewas the general assessment. 13 The prevailing assumptionwas that the right kind of law student already knows whatconstitutes moral and ethical conduct and . . . a formal coursein Legal Ethics will not supply the proper sort of charactertraining for students who are not the right kind. 14 Americanbar examiners took a similar view. Questions were infrequent

and typically invited undemanding reection on topics likewhat the [states] Code of Professional Responsibilitymean[s] to me. It is not clear anyone read the answers. 15

Over the last several decades, much has changed buttoo much has remained the same. In the United States, lawschools must offer instruction in the legal profession andits responsibilities as a condition of accreditation, and statebars generally include a separate examination on the rulesof professional conduct. 16 In other countries, the subject isoften relegated to post-graduate practical training, and isstill ghting for an academic toehold. 17 But even where legal

ethics is required, it generally remains at the curricular pe-riphery, conned to a single required course and discountedby many as mushy pap. 18 Some of these courses offerlittle more than preparation for the law of lawyering on thebar exam; they are, in effect, legal ethics without the ethics.Like most research in the eld, a recent inuential reportby the Carnegie Foundation indicted legal education for itsinadequate attention to the moral dimensions of professionallife.19 Although ethical questions arise in every substantivearea of law, faculty tend to treat professional responsibility assomeone elses responsibility. Many remain skeptical aboutthe mission. Federal judge and law professor Richard Posnerput still common views with uncommon candor: as for thetask of instilling ethics in law students . . . I can think of fewthings more futile than teaching people to be good. 20

I doubt that many of us in the eld see that as our mission,or labor under the illusion that we could do much to advanceit. Rather, our goals are more modest and have been defendedwith sufcient regularity that they dont need extensivetreatment here. One is to build students understanding ofthe rules of conduct before they are at risk of inadvertentlyviolating one. A second is to encourage future leaders of theprofession to consider where the lines should be and whetherbar governance structures effectively serve the publicsinterest. It makes sense to address those issues in law schoolbefore individuals have a vested interest in coming out oneway or another.

From that perspective, the task of ethics education looks

far less hopeless. Most research suggests that signicantchanges occur during early adulthood in peoples strategiesfor dealing with moral issues, and that well-designed cur-ricula can assist the developmental process. 21

Leadership EducationSimilar points are applicable to leadership education. Al-though most academic institutions consider preparing leadersas central to their mission, the creation of leadership curriculaand texts has lagged behind. 22 The traditional assumption hasbeen, as management expert Peter Drucker once famouslyput it, that leadership cannot be taught or learned. 23

Yet contemporary research is to the contrary, and Drucker

ultimately revised his view. 24 Studies of twins suggestthat about 70 percent of leadership skills are acquired, notgenetically based, and decades of experience with leader-ship development indicates that its major capabilities canbe learned. 25 Indeed, as a prominent expert notes, it wouldbe strange if leadership were the one skill that could not beenhanced through understanding and practice. 26

It is, of course, true that for thousands of years, leadershave developed without formal education in the qualities thatmade them effective. But informal methods of learning havebeen common, and many leaders have learned from history,

Lawyers and Leadership(Continued from page 1)



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example, and experts in related elds. Martin Luther King, Jr.studied communication and nonviolent techniques of conictresolution. 27 John F. Kennedy worked hard on developing thepersonal magnetism he observed among Hollywood actors. 28 Barack Obama looked for guidance in historical accounts ofFranklin Roosevelts rst 100 days as president. 29

Yet for many lawyers, informal education often falls short.Large law rms, in-house counsel ofces, government agen-cies, and public interest organizations are run by individualswho generally have had no management training, and whoseskills as lawyers do not necessarily meet the demands of leader-ship. As one managing partner summed it up: the historicalmodel for law rms is to put [people] in a leadership position . . .often not because of leadership skills but because of [rainmak-ing] . . . and hope they dont drive into a ditch. 30 This inattentionto leadership development raises particular concern in light of arecent statistical study nding that the most powerful predictorof large rm protability is the quality of partners leadershipskills. 31 Similar points apply to leaders in the nonprot sector.In my recent survey of the nations most prominent public inter-est organizations, one director put it rhetorically: Why didnt Igo to business school. 32

In fact, that would not necessarily have solved his prob-lem. Harvard Professors Nitin Nohria and Rakesh Khurananote that despite signicant improvements over the lastdecade, the subject still is at the periphery rather than thecenter of most [business] schools that profess to educate theleaders of the future. 33 Attention to ethical issues in leader-ship is in particularly short supply. In surveys by the AspenInstitute, graduates of MBA programs report that condencein their ability to manage value conicts actually falls duringtheir time as students. 34 Only about two fths of surveyed

students believed that business schools were doing enough toenable them to address such ethical issues. 35 Law schools cannot afford to replicate this neglect, yet

most give leadership even less attention. Society, as well asthe profession, has a large stake in addressing that oversight.As Robert Gordon has noted, in any democracy, the legalprofession plays pivotal roles both in amplifying and con-straining authority. 36 In the public sector, lawyers shape andenforce law. In the private sector, they orchestrate responsesto law through compliance, evasion, resistance, and reform.Moreover, because law is to large extent a self-regulating oc-cupation, its leaders have special responsibility to act for thepublic, not just the profession, when its own governance is at

issue. If, as experts have long argued, the organized bar hasnot always lived up to that responsibility, then legal educa-tion is part of both the problem and the solution.

III. Learning Leadership Dening LeadershipHow then can we teach lawyers to lead? A threshold questionis what we mean by leadership, and what core competenciesare central to its exercise. This issue has generated a cottageindustry of commentary, and by some researchers ac-counts, over 1,500 denitions and forty distinctive theories. 37

Although popular usage sometime equates leadership withpower or position, most experts draw a distinction. Theyview leadership in terms of traits, processes, skills, andrelationships. John Gardner, founder of Common Cause,famously noted that heads of public and private organizationsoften mistakenly assume that their status has given them abody of followers. And of course it has not. They have beengiven subordinates. Whether the subordinates become fol-lowers depends on whether the executives act like leaders. 38 Moreover, just as many high ofcials are not leaders, manyleaders do not hold formal ofces. Mahatma Gandhi and Mar-tin Luther King, Jr. led from the outside. In essence, leader-ship requires a relationship, not simply a title. Leaders must beable to inspire, not just compel or direct their followers. 39

What enables leaders to inspire commitment? Do theyshare identiable personal characteristics and styles that areeffective across varying situations? The traditional assump-tion was that they did. Early Greek, Roman, and Chinesephilosophers generally assumed that leadership required ex-ceptional personal qualities. A 10th-century Persian theoristdistilled from these philosophical accounts a list of traits thatlooks remarkably similar to those generated by contemporary

surveys.40

Historian Thomas Carlyle famously argued thatbehind every great institution and social movement was theshadow of a great man, and Max Weber elaborated thecharismatic styles that he believed enabled their success. 41

Yet most recent research casts doubt on whether effec-tive leaders are cut from the same mold. Over the last halfcentury, leadership scholars have conducted more than 1,000studies in an attempt to dene the ideal leaders. Sum-marizing this work, a Harvard Business Review overviewconcludes that it has produced no clear prole. 42 Nor is themuch celebrated quality of charisma necessarily related toeffective performance. Indeed, some studies nd that theleaders of the most continuously protable corporations

have tended to be self-effacing and lacking in the qualitiescommonly considered charismatic. 43 In Druckers view, itis a mistake for organizations to look for some boardroomElvis Presley. Genuine leadership, he argued, has little todo with charisma. It is mundane . . . and boring. Its essenceis performance. 44

Building on such research, many contemporary expertsadvance some version of a contingency theory of leader-ship. This framework places the key to effectiveness in amatch between what the circumstances demand and whatan individual has to offer. 45 Situations vary in terms of the

Attention to ethical issuesin leadership is in particularly

short supply.



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capabilities and expectations of followers and the power andresources of leaders. This is not, however, to deny all pos-sibility of generalization. It is, as Nohria and Khurana note,hard to imagine what leadership is if there isnt a core set offunctions or behaviors that cut across different situations andpersons. 46 Certain attributes consistently emerge in researchon effective leadership. Most characteristics cluster in vecategories:

values (integrity, honesty, trust, an ethic of service); personal skills (self-awareness, self-control,

self-direction); interpersonal skills (social awareness, empathy, persua-

sion, conict management); vision (forward looking, inspirational); technical competence (knowledge, preparation,

judgment). 47 Although legal education can only do so much to

develop or reinforce these qualities, it should do what itcan, which is far more than it currently attempts.

Learning to LeadHow then can individuals learn to lead? Theories aboutlearning abound, but on one point there is virtual agreement.Leaders need the capacity to learn from experienceboththeir own and others. As Mark Twain famously observed, acat that sits on a hot stove will not sit on a hot stove again,but it wont sit on a cold one either. What distinguishes effec-tive leaders is the ability to draw appropriate lessons from thesuccesses and failures that they experience and observe. In anapt, if possibly apocryphal exchange, a young lawyer asked aleader in his eld how he came to acquire such a reputation.People respect my judgment was the response. Why?

the associate wanted to know. Well I guess Ive made theright decisions. How did you know what decisions wereright?, the associate asked. Experience said the partner.The associate wouldnt give up. He was probably in trainingas a law professor. What was the experience based on? Theanswer: Wrong decisions. 48

That is, no doubt, how most lawyers acquire leadershipskills. But other ways are available through legal education.An effective curriculum should begin from the premise thatindividuals vary in how they learn best, and the ideal strategyis to incorporate multiple approaches such as interdisciplin-ary research and theory, problems, case studies, role simula-tions, group interaction, literature, and lm. 49 Three goals

should be paramount. One is to enhance students capacitiesto achieve and exercise leadership, and to understand thecognitive biases, interpersonal responses, and organizationaldynamics that can sabotage effectiveness. A second objectiveis to help students become lifetime learners, and to managetheir own leadership development. A third objective, andthe one most relevant to legal ethics, is to reinforce a senseof responsibility to use leadership for the public good. BenHeineman, former General Counsel of General Electric,now a lecturer at Harvard, puts it this way: the decisions ofthe lawyer as leader should seek to make our national or

global society a better place however difcult that goal isto dene, much less achieve. 50 The point is not, of course,for faculty to use the podium as a pulpit to advance theirown personal conceptions of the public good. It is rather toencourage students to develop their own views, and to seeleadership not only as a way station to power and status, butalso as an exercise of social responsibility.

With those objectives in view, law schools should bothoffer a course focused on leadership and integrate leader-ship issues throughout the curricula. Not all students will becomfortable self-selecting for a course labeled leadership,so it is important to ensure some basic coverage of its corecompetencies in other offerings. For example, the leader-ship failures underpinning the recent nancial crisis couldbecome topics in corporate law and securities regulation.Lawyers role in the forefront of social change movementscould gure in courses on civil rights, human rights, sexdiscrimination, poverty, environmental law, and public inter-est practice. Clinical courses could provide skills training inconict management, team work, and problem solving.

Professional responsibility classes could address a widerange of leadership issues, such as the importance of diver-sity, the relationship between supervisory and subordinatelawyers, the role of moral counseling, the management oflaw rms, the special obligations of government attorneys,and the structure of pro bono programs. 51 Leadership can be

an ideal lens for exploring how the good go bad in circum-stances where it matters most. A key determinant of ethicalbehavior in organizations is the tone at the top. 52 Studentswho will someday occupy those positions can benet fromanalyzing the personal and institutional dynamics that sabo-tage moral judgment.

Among those dynamics is the disconnect between thequalities that often enable individuals to achieve leadershippositions and the qualities that are necessary to performeffectively once they get there. What makes individualswilling to accept the pressure, hours, scrutiny, and risks that

accompany leadership? For many lawyers, it is not onlycommitment to a cause, an organization, or a client. It is alsopower, prestige, and money. Successful leadership requiressubordinating these personal interests to a greater good. Theresult is what some psychologists label the leadership para-dox. Individuals reach top positions because of their highneeds for personal achievement. Yet to perform effectivelyonce there, they need to focus on creating the conditions forachievement by others. 53

One mission of leadership education is to help futurelawyers anticipate and avoid the consequences of unchecked

A second objective is to help studentsbecome lifetime learners.



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ing_suffers_in_downturn_&slreturn=1.9. For corporate expenditures, see Doris Gomez, The Leader as

Learner , 2 I J L S 280,281 (2007). For courses, see Gregory Williams, Teaching Leadersand Leadership, AALS Presidents Message, April 1999, available at http://www.aals.org/presidentsmessages/leaders.html. The number hasdoubtless grown over the last decade.10. Williams, supra note 9.11. Hamilton, supra note 3, at 370.12. Elliot Cheatham, What the Law Schools Can Do to Raise the

Standards of the Legal Profession , 7 A . L. S . R . 716 (1933).13. George P. Costigan, Jr., The Teaching of Legal Ethics , 4 A . L.

S . R . 290, 295 (1917); Sidney Post Simpson, The Function of theUniversity Law School , 49 H . L. R . 1068, 1082-83 (1936). Foran overview, see Deborah L. Rhode, Ethics by the Pervasive Method ,42 J. L E . 31, 33-38 (1992).14. Charles H. Kinnane, Compulsory Study of Professional Ethics by

Law Students , 16 A.B.A. J. 222 (1930).15. Thomas Shaffer, Legal Ethics After Babel , 19 C . U. L. R .

989, 991 (1990). 16. ABA Standards for the Approval of Law Schools, Standard 301(a)(iii) (1974). Most states require passage of the Multistate Profes-sional Responsibility Exam for Entrance to the Bar. See NationalConference of Bar Examiners, Jurisdictions Using the MPRE in 2010,http:// www.ncbex.org/multistate-tests/mpre/mpre-faqs/jurs0.17. See Andrew Boon and Julian Webb, Legal Education and Train-

ing in England and Wales: Back to the Future? , 58 J. L E .79, 81, 93, 104 (2008).18. Roger C. Cramton and Susan P. Koniak, Rules, Story, and Com-

mitment in the Teaching of Legal Ethics , 38 W . & M L. R .145, 145(1997). For an overview of these objections, see DeborahL. Rhode, Teaching Legal Ethics , 51 S . L U. L. J. 1043, 1048

(2007).19. W M. S , ., E L : P - P L (2007).

20 Richard Posner, The Deprofessionalization of Legal Teaching andScholarship , 91 M . L. R . 1921, 1924 (1993).21. S ., supra note 19, at 135; M

A , L L : I L , D - P C B 120-121

(2000); Muriel Bebeau, Promoting Ethical Development and Profes-sionalism: Insights from Educational Research in the Professions , 5S . T L. J. 366, 384-85 (2008); Rhode, Ethics by the PervasiveMethod, supra note 13, at 46; M Neil Browne, Carrie L. Williamson,& Linda L. Barkacs, The Purported Rigidity of an Attorneys Person-

ality: Can Legal Ethics be Acquired? , 30 J. L P . 55 (2006).22. Nitin Nohria and Rakesh Khurana, Advancing Leadership Theory

and Practice , in H L T P3 (Nitin Nohria and Rakesh Khurana eds. 2010). See also Hamilton,supra note 3, at 370.23. P E. D , T P M 194

(1954).24. For contemporary research, see, e.g ., R G , T T P L 271 (2006). For Druckers revised

views, see Peter Drucker, Foreword , T L F xi(1996) (noting that Leadership must be learned and can be learned).

25. For twins studies see Richard D. Arvey, Maria Rotundo, WendyJohnson, Zhen Zhang, and Matt McGue, The determinants of leader-ship role occupancy: Genetic and personality factors , 17 LQ 1 (2006); Bruce Avolio, Pursuing Authentic Leadership

Development , in H L T P ,supra note 22 at 739, 752; W G. B & B N , L -

: S T C 207 (1997).26. K G , L : C , C ,

C A 2 (1997).27. Alan Johnson, Self-Emancipation and Leadership: The Case of

Martin Luther King , in L S M 96-101(Colin Barker, Alan Johnson, & Michael Lavalette, eds. 2001).28. C , supra note 1, at 204.

29. Jacob Heilbruner, Interim Report, N.Y. Times Book Review, May30, 2010, 12.30. Gina Passarella, Leadership Programs Born from Lack of Born

Leaders , T L I , November 5, 2007 (quoting Jef-frey Lutsky, managing partner of Stradley Ronon Stevens and Young).31. Laurie Bassi and Daniel McMurrer, Leadership and Large Firm

Success: A Statistical Analysis, available at http://www.mcbassi.com/ resources/documents/WhitePaper-LeadershipAndLawFirmSuccess.pdf. 32. Deborah L. Rhode, Public Interest Law: The Movement at Midlife ,60 S . L. R . 2027, 2046 (2008) (quoting Eric Cohen, Legal Direc-tor, Immigrant Legal Resource Center).33. Nohria & Khurana, supra note 22, at 5. Signs of neglect include

reliance on adjunct faculty to teach most leadership courses, and lackof doctoral programs and publications in the most prominent journals.

Id . See also Jeffrey Pfeffer, Leadership Development in BusinessSchools: An Agenda for Change , in J C , T F L D : T R B S (forth-coming).34. Pfeffer, Leadership Development; Kelley Holland, Is it Time to

Retrain B-Schools? , N.Y. T , March 15, 2009, Business, 2.35. Aspen Institute, Where Will They Lead? 2008 MBA Student At-

titudes About Business and Society (New York: Aspen Institute, 2008). 36. R G , A L F D ?(forthcoming 2010).37. B S H L : T ,

R , M A (New York: Free Press,3d ed. 1990); Gareth Edwards, In Search of the Holy Grail: Leadershipin Management (Working Paper LT-GE-00-15 Ross-on-Wye, UnitedKingdom, Leadership Trust Foundation 2000).38. J W. G , O L 3 (New York: Free Press,

1990).39. Deborah L. Rhode, Where is the Leadership in Moral Leadership ,

in M L : T T P P , J -, P 4 (Deborah L. Rhode, ed., 2006).

40. M V W , D L PS : T P 113 (2005).41. T C , O H , H W , H H (1902); Max Weber, The Sociology of Charismatic Author-

ity, in F M W : E S 245-46 (trans. and ed.H.H. Gerth and C. Wright Mills, 2009).42. J S. N , T P L , 121-22 (2009).

43. Jim Collins, Level 5 Leadership: The Triumph of Humility andFierce Resolve , H B . R ., Jan. 2001, 73; R G ,



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T P L , 253 (2006).44. Micahel Hilzik, Peter Druckers Revolutionary Teachings; De-

cades Old but Still Fresh , L A T , Dec. 31, 2009.45. For early development of the theory, see F E. F , A

T L E (1967); F E. F , Leadership: A New Model , in L 230-241 (Cecil AustinGibb, ed., 1969). For discussion of its contemporary applications,see Robert Goffee and Gareth Jones, Why Should Anyone Be Led byYou? , H B R , September-October 2000, 63, 64;Jay Lorsch, A Contingency Theory of Leadership , in H L T P , supra note 22, at 411-24.46. Nohria and Khurana, supra note 22, at 17.47. For values, see W B , O B L

32-33 (2d ed. 1994) (citing integrity, trust); V W , supra note 40,at 16, 92-119 (2005) (citing integrity and an ethic of public service);J M. K B P , T L C -

21(1995) (citing honesty). For personal skills, see DG , R B , A M K , P L -

: R P E I 253-56 (2002) (citing self awareness, self management); V W , supra note 40, at 16 (citing self-direction). For interpersonal skills, see Gole-man, Boyatzis, and McKee, supra at 253-56 (citing social awareness,empathy, persuasion, conict management); For vision, see B ,supra , at 33 (citing vision); K P , supra , at 21 (citingforward looking, inspiring). For competence, see id ; Lorsch, supra note 45, at 417; N M. T & W G. B , J :H W L M G C (2007) (describingimportance of judgment).48. For a variation on this story, see N M. T & W G.

B , J : H W L M G C10 (2002).49. N , supra note 42, at 24; Jay A. Conger, Leadership Devel-

opment Initiatives , in H L T P , supra note 22, at 712, 716; R G , T P L 275 (2006); Peter E. Drucker, ManagingOneself , H B . R ., March-April 1999, 68-69; D L -

& F K , M I : E BP L S (2008). 50. Ben W. Heineman, Jr., Law and Leadership , 116 Y L.J.Pocket Part (2007).51. For examples, see D L. R A K.

P , L : L P , M (forthcom-ing); Rhode, supra note 39; Deborah L. Rhode, Rethinking the Publicin Lawyers Public Service: Pro Bono, Strategic Philanthropy, and the

Bottom Line , 77 F L. R . 1435 (2009).

52. Rhode, supra note 39, at 39; Linda Kelber Trevino, et al, Manag-ing Ethics and Legal Compliance: What Works and What Hurts , 441C M R 131, 142 (1999); Chris Moonand Clive Bonny, Attitudes and Approaches , in B E :F U I (Chris Moon and Clive Bonny eds. 2001);Heesun Wee, Corporate Ethics: Right Makes Might , B WO , April 11, 2002.53. Jennifer A. Chatman and Jessica A. Kennedy, Psychological

Perspectives on Leadership , in H L T P , supra note 22, at 169, 174.54. For examples, see R P , supra note 51; Hil-

debrandt, The Anatomy of Law Firm Failures, November 19, 2008,available at http://www.hildebrandt.com/The-Anatomy-of-Law-Firm-Failures; Jonathan Glater, West Coast Law Firm Closing After Dot-Com Collapse , N.Y. T , Jan. 31, 2003, at C1; Susan Kostal, SanFrancisco online, The Brobeck Mutiny (2003), available at http://www.sanfranmag.com/story/brobeck-mutiny. 55. J M. K B Z. P , A L L28 (2006).56. National Association for Law Placement Foundation, How

Associate Evaluations Measure Up, A National Study of AssociatePerformance Assessments 74 (2006).57. Kouzes and Posner, supra note 55, at 28.58. R H , M C 302 (2008) (quoting

Galbraith).59. See Lee Ross, The Intuitive Psychologist and his Shortcomings;

Distortions in the Attribution Process , 10 A ES P 173 (Leonard Berkowitz, ed. 1977); P B

L K , P S , D M , P J 332, 620- 21 (2010). 60. B K , supra note 59, at 618-19, 636; RaymondS. Nickerson, Conrmation Bias: A Ubiquitous Phenomenon in ManyGuises , 2 R . G . P . 175 (1998); Jean R. Sternlight &Jennifer Robbennolt, Good Lawyers Should Be Good Psychologists:

Insights for Interviewing and Counseling Clients , 23 O S . J. D . R 437, 454 (2008).61. Brest and Kreiger, supra note 59, at 282-83; Jane Risen & Thomas

Gilovich, Informal Logical Fallacies, in C T P - 110, 112-13 (Robert J. Sternberg et al eds. 2007); Charles G.

Lord, Lee Ross, and Mark R. Lepper, Biased Assimilation and AttitudePolarization: The Effects of Prior Theories on Subsequently Consid-ered Evidence , 37 J . P . & S . P . 2098 (1979).62. David G. Myers, The Inated Self: How Do I Love Me? Let Me

Count the Ways , P T , May, 1980, 16.63. T L. P , L E : A I 110-12

(2008); George R. Goethals, David W. Messick and Scott T. Allison,The Uniqueness Bias: Studies of Constructive Social Comparison , in S C : C T R 149,153-55 (Jerry M. Suls and Thomas Ashby Wills, eds., 1991). 64. Manfred Kets de Vries and Elisabet Engellau, A Clinical Ap-

proach to the Dynamics of Leadership and Executive Transformation ,in H L T P , supra notenote 22, at 183, 195. See also Roderick Kramer, The Harder They Fall ,H B . R ., October 2003, at 61.65. J M. K B P , A L L 128

(2006).

66. Among the prominent recent examples are John Edwards, EliotSpitzer, Bill Clinton, Gary Hart, Mark Dreier, and Kwame Kilpatrick.67. H , supra note 58, at 124. See also Chris Argyris, Teach-

ing Smart People How to Learn , 69 H B . R . 99 (1991).68. Richard J. Leider, The Ultimate Leadership Task: Self-Leadership ,

in T L F 189 (Frances Hesselbein, MarshallGoldsmith, and Richard Beckhard, eds., 1996).69. For an overview, see D G , E I -

(1995); G , B , M K , supra note 47;Argyris, supra note 67.70. J G , O L xv (1990).



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changes in the law and its practice .18 Indeed, even the ABAsown website indicates that [c]ompetence in using a technol-ogy can be a requirement of practicing law. 19 Thus, one couldargue that, as using courtroom technology to visually displayevidence becomes the standard, the duty of competence willrequire lawyers to adjust accordingly. That is, at a minimum,lawyers should have a general understanding of how to usecourtroom technology in presenting their cases. 20

The comments to Model Rule 1.1 also indicate that therequisite thoroughness and preparation are determined inpart by what is at stake. 21 That is, major or complex litigationmay require more preparation and treatment to satisfy thecompetency requirement. Thus, a complex patent or similartype case that requires the jury to understand a detailedscientic process may require more preparation and treatmentthan an uncomplicated contract dispute. If a simple graphic orchart explaining the scientic process involved would greatlyimprove the jurys ability to understand a pivotal issue in thecase, would the duty of competent representation require thelawyer to use one?

Assuming that the duty of competence does entail anobligation to be at least minimally competent in the use ofcourtroom technology, further questions still arise. One ex-ample would be whether and to what extent the lawyer whodoes use courtroom technology to present her case must alsobe prepared in the event that technology fails. 22 If an evidencecamera stops working in the middle of trial, for example,because the light bulb failed, must the adequately preparedattorney have a spare light bulb on hand, acetate transparan-cies ready to place on an overhead projector instead, or papercopies of the exhibits available to pass to the jurors? 23 Ifthe courtroom itself was equipped with the camera, can the

attorney depend on the court to also supply a spare bulb?24

Ifthe attorney intends to use a PowerPoint presentation, wouldsimply bringing an extra copy of the presentation on a CDor ash drive be sufcient? Or should the attorney also bringa copy of the Microsoft software program that would benecessary to view it on another computer? Should an attorneyusing her own laptop for presentation purposes be preparedwith a second laptop in the event the rst laptop crashes? Inother words, even if one believes that the duty of competencerequires lawyers to be capable of using courtroom technol-ogy, which is uncertain under the current Model Rules, thequestion of whether and to what extent the thoroughnessand preparation element of that duty requires lawyers to beprepared for technology failures is also open for discussion.

2. The Duty of Reasonable DiligenceWhereas the Model Code of Professional Responsibilityexplicitly included a duty of zealous representation, the cur-rent Model Rules have reshaped that duty into a combinationof the duties of competence and diligent representation. 25 Because of fears that the term zealous could slip intooverzealous, no Model Rule contains an outright duty ofzeal. 26 Even so, the comments do refer to an obligation ofzealous representation: (1) A lawyer must also act with . . .

zeal in advocacy upon the clients behalf 27; (2) [W]hen anopposing party is well represented, a lawyer can be a zealousadvocate on behalf of a client and at the same time assumethat justice is being done 28; and (3) These principles in-clude the lawyers obligation zealously to protect and pursuea clients legitimate interests, within the bounds of the law,while maintaining a professional, courteous and civil attitudetoward all persons involved in the legal system. 29

Considering all three of these comments and the manybenets to using courtroom technology, one might assumethat diligent representation requires attorneys to visually pres-ent their cases using courtroom technology, especially whereopposing counsel is doing so. To be sure, when surveyed,many attorneys indicate that if opposing counsel is usinglitigation support software, they would be inclined to do so as

well.30 One defense attorney, after unsuccessfully objectingto the prosecutions use of a computer slide show in closingarguments, confessed to reporters that his own arguments hadappeared slipshod in comparison. 31 Indeed, many comput-er-savvy jurors may even expect attorneys to use technology

in presenting their cases. The comments to Model Rule 1.3sduty of reasonable diligence, however, also provide thatlawyers are not bound . . . to press for every advantage thatmight be realized for a client. 32 This statement alone makesit difcult to argue that the current diligence requirementincludes a duty to use courtroom technology to present onescase, even in the situation where ones opponent is doing so.

3. The Duty to Keep Fees ReasonableThe duties of competence and diligence must be balancedagainst the countervailing duty to keep fees reasonable,which is set out in Model Rule 1.5. 33 The rule itself requiresthat lawyers fees be reasonable and sets out a non-exclusive

list of factors to consider. Thus, there is substantial room fordiscretion in determining a proper fee. 34

When it comes to courtroom technology, it is a questionof balancing the cost and effectiveness of a given evidencedisplay technology or particular type of computer-generatedexhibit (CGE). For example, because moving CGEs, suchas animations and simulations, can cost upwards of $5,000to produce, attorneys must have an adequate knowledge ofwhen and why one would want to use such evidence. 35 Somepotential guidelines that have been suggested by commenta-tors include the following: (1) whether your case involves

Lawyers should have a general

understanding of how to usecourtroom technology inpresenting their cases.



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a risk of exposure in excess of $500,000; (2) whether yourcase creates a story that should be presented clearly; (3)whether your case hinges in causation; (4) whether your caseinvolves complex expert testimony; and (5) whether your op-ponent is using an animation or simulation, which you shouldattack with one of your own. 36 More simple CGEs, on theother hand, such as static or enhanced images, can be usedmuch more frequently and cost-effectively, especially wherethe courtroom itself is equipped with the evidence displaytechnology. Even if the courtroom itself is not equipped, mostof the basic evidence display technologies, such as evidencecameras and digital projectors, can be purchased or evenrented at a relatively low cost. 37

Considerations for the ABA Commission onEthics 20/20There are numerous benets to using courtroom technologyto visually present ones case: increased juror comprehensionand retention of the information presented, increased persua-sive power, increased efciency, the appearance of compe-tence and preparedness, and the ability to control the room.As such, using courtroom technology will soon be, if it is notalready, standard practice in modern litigation. Therefore, as

part of its technology discussions, the Commission shouldconsider the use of courtroom technology specically andwhether the Model Rules themselves, or at least their com-ments, need to be amended to better address it.

Of the three rules discussed that might relate to courtroomtechnology, the fee issue is probably the most sufcientlyaddressed under the current Model Rules. This is so simplybecause the rule itself does not impose a bright line feestructure, but rather leaves room for discretion. Thus, whetherthe effectiveness of using a particular type of courtroomtechnology is valid justication for the potential increase inthe attorneys fee is also subject to discretion. The duties ofcompetent and diligent representation, on the other hand,could be read either way. That is, perhaps a lawyers dutiesof competent and diligent representation require that she befamiliar with how to use courtroom technology and when andwhy one should do so, but perhaps not. Because of the clearmessage of the comments to Model Rule 1.3 on diligencethat lawyers do not have an ethical obligation to press forevery advantage that might be realized for a client 38 it isunlikely that courtroom technology can be addressed underthat rule, short of deleting that comment altogether, whichwould have a broader unintended effect. Thus, the real issue

here lies in the duty of competence and its effect on the useof courtroom technology.

Specically, as part of its technology discussion, theCommission should consider, rst, whether lawyers havean ethical obligation to be minimally competent in the useof courtroom technology when advocating for their cli-ents, which this author would suggest they do, and second,whether the current Model Rule on competence adequatelyexpresses that duty, which this author would suggest it doesnot. It is not necessary, however, to drastically reword ModelRule 1.1 to make the duty clear. Indeed, an additional com-ment to the rule would be more than sufcient. A possiblestarting point for discussion is the following:

Maintaining the requisite knowledge and skill neces-sary for competent representation includes a duty tokeep abreast of technological advances that signi-cantly affect the practice of law. For example, in certaincircumstances, lawyers may have an ethical obligationto use courtroom technology in advocating for theirclients and to be competent in the use of technologywhen doing so.

The structure of a comment like this allows not only forcourtroom technology to be addressed, but other areas inwhich technology has affected the practice of law as well.That is, other for example sentences could follow, furtherclarifying how and in what circumstances technology shapesthe duty of competence.

Finally, regardless of whether the Commission modies theModel Rules to address courtroom technology, trial lawyersmust still consider this issue in light of the rules as they are

today. That is, trial lawyers need to apply their current under-standing of the duties of competence, diligence, and reason-able fees when deciding whether and how to take advantage ofcourtroom technology. Only those lawyers who have done sowill be adequately prepared to defend themselves in the eventtheir compliance with these obligations, as they relate to theuse of courtroom technology, is ever challenged. 39

ConclusionAs more trial attorneys become aware of the many benets ofusing courtroom technology in presenting their cases, tech-nology-augmented litigation will become standard practice.As such, the Model Rules should address the ethical duties

of attorneys with regard to the use of courtroom technology,even if only to clarify that a minimal competence in the useof courtroom technology is, in fact, an ethical obligation forall trial attorneys. Courtroom technology should, therefore,be considered by the Commission as part of its discussionso

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