BulletProofBlog the blog on crisis communications

Each week, Bulletproof Blog features exclusive interviews with thought leaders on issues of critical importance to companies and countries. This week, with the current economic crisis and an increasingly inter-connected global community driving sweeping changes in the legal profession, we interview incoming American Bar Association President Carolyn Lamm.

In addition to being one of the world' s foremost legal minds on issues of international arbitration, international trade, and international commercial litigation, Ms. Lamm has been named a Good Scout 2009 Attorney of the Year.

For information regarding the Good Scout Award Luncheon - which will take place at the Capital Hilton in Washington, D.C. on Monday, June 8 - click here.

You' re taking charge of the ABA during what seems like a time of sea change in the legal profession. What' s your view of where the American practice of law is headed?

Carolyn Lamm: You' re right - this is a time of great change. Within the last 10 years, technological advances and globalization have transformed our world and the practice of law. The recent economic crisis demonstrates the interdependence of global markets and the emergence of truly global commerce. The World Bank predicts that the pace of globalization will only accelerate over the next 25 years, which will continue to change the legal profession. 

The problem is that the practice of law is changing in ways that our current systems of lawyer regulation and lawyer ethics rules do not address. These changes create opportunities for the public and for lawyers, but they also create great challenges.

For example, the public now can access legal services through the Internet that are provided by lawyers in Mumbai. This has advantages for consumers because online legal services can be less expensive. But consumers also are more vulnerable because lawyers abroad may not be required to meet the same client protection standards, substantive qualification requirements, or ethical standards as American lawyers. Also, American lawyers in every state and from every practice setting have clients with increasingly global interests, which broadens lawyers' opportunities. But our current regulatory regime makes it hard for American lawyers to represent their clients in cross-border matters. The issues raised by all of these developments are complex in terms of the public interest, preservation of the profession' s core values, and the regulation of the delivery of legal services and the profession.

To maximize the opportunities and meet the challenges for consumers and lawyers in our changing world, we must bring our 20th Century regulatory system and ethics rules into the 21st century.

The ABA was founded in part to provide national leadership on issues related to lawyer ethics and regulation, and we will continue to lead. Next year we will begin a review of the impact of globalization and technology on our system guided by three simple principles: protect the public, preserve our core values in the delivery of legal services, and keep the legal profession strong, independent and self regulating.

You mentioned the economic crisis.  How is it affecting lawyers and the legal service needs of the public?

Carolyn Lamm: The economy is having a dramatic impact on lawyers, threatening to short-circuit the careers of young lawyers and prematurely end the careers of more experienced lawyers. At the same time, the public' s need for legal help has never been greater as more and more Americans face foreclosure, bankruptcy, evictions, and other consequences of the recession. Legal help can make a great difference for consumers.

For instance, when lawyers help with foreclosures, 55 percent fewer people lose their homes. The ABA is looking at ways that lawyers can better help the public during the recession, and we have formed a caucus to develop proposals that will help the public and the profession to weather the storm. We also have put economic recovery resources for lawyers on our website. Next year I will appoint a Task Force to carry forward the recommendations of the caucus and consider further the implications of the economic crisis on lawyers and their clients in order to formulate what the ABA can do to assist.

Recently, the ABA Commission on Women has begun receiving troubling anecdotal evidence that the economy disproportionately affects women lawyers. Firms consider performance evaluations when making decisions about layoffs, and often these evaluations are skewed by gender bias. For some time now, the Commission has assisted firms in preparing bias-free evaluations through its publication Fair Measure: Toward Effective Attorney Evaluations, which recently was revised and expanded. Now more than ever, it is critical that performance evaluations be fair and free of any gender bias.  Also, firms may be more likely to lay off part-time and flex-time lawyers during the recession, which makes women lawyers' jobs more vulnerable. According to the National Association for Law Placement, approximately 75 percent of part-time lawyers are women. 

To better understand these issues, the Commission will include questions in its 2009 National Survey on the Retention and Promotion of Women in Law Firms about whether flex-time and part-time lawyers are the first to be laid off.  The survey is cosponsored by the National Association of Women Lawyers, and will be available in the fall.

What is the role of the ABA' s Standing Committee on the Federal Judiciary in evaluating judicial candidates? What are the differences between the Standing Committee' s investigations of Supreme Court nominees and those of lower courts?

Carolyn Lamm: For more than 50 years, the ABA Standing Committee on the Federal Judiciary has evaluated the professional qualifications of nominees to the Supreme Court and to the district and appellate federal courts by conducting extensive peer reviews of each nominee' s integrity, professional competence, and judicial temperament. The Standing Committee does not take into account a nominee' s philosophy, political affiliation, or ideology. While these criteria - integrity, professional competence, and judicial temperament - are the basis for the Standing Committee' s evaluation of all federal court nominees, the Standing Committee' s investigations of Supreme Court nominees are particularly rigorous. The significance, range, and complexity of the issues considered by the Supreme Court demand that nominees appointed to the court be of exceptional ability.  

Typically, investigations of Supreme Court nominees are conduced after the President has made a nomination or has announced an intention to nominate a particular lawyer or judge. Unlike nominations to the lower courts in which the primary investigation is conducted by a single circuit member, all members of the Committee conduct confidential interviews within their circuit of persons most likely to have information
regarding the professional qualifications of the nominee. Typically, hundreds of such interviews are conducted around the country.

A team (or teams) of distinguished law school professors examine the nominee' s legal writings (opinions, blogs, briefs, articles, etc.) for quality, clarity, knowledge of the law, and analytical ability. Customarily, this is accomplished by dividing the material into areas of law and having it reviewed by professors who are recognized experts in each area on which the nominee has written, and provide the Committee with their comments.

The results are reported to the full Standing Committee for its consideration and evaluation in developing a rating.

Your practice as an international litigator has literally taken you around the world. Tell us what you' ve learned from being so immersed in multinational business culture.

Carolyn Lamm: Well, I have seen first-hand the growing interdependence of economic and political systems around the world and the important roles lawyers play making these systems work. That is one reason why I know updating our lawyer regulatory system and ethics rules is so important to the future of our profession and, indeed, our world.

I also have learned the importance of cultural competence when dealing with clients abroad. When I prepare to meet with clients from Indonesia, Kazakhstan, or Saudi Arabia, for example, I do just as much research about those communities' beliefs, practices, and traditions as I do about the legal matter at hand. In order to help my clients understand the issues they face and the best strategies to address them, I need to understand how they think and how they approach their work. Knowing about their cultural norms helps me bridge the gap between us and serve their interests more effectively.

Larry Smith is Senior Vice President of Levick Strategic Communications and a contributing author to Bulletproof Blog.