CHAPTER 13 ETHICS: WHY WE MUST PLAY WELL WITH OTHERS (AND WHY WE DON'T)

• Jurisdiction: United States

Advanced Public Land Law - The Continuing Challenge of Managing for Multiple Use
(Jan 2017)
CHAPTER 13
ETHICS: WHY WE MUST PLAY WELL WITH OTHERS (AND WHY WE DON'T)
Nancy B. Rapoport ¹
Special Counsel to the President, University of Nevada-Las Vegas
Garman Turner Gordon Professor of Law, William S. Boyd School of Law
Affiliate Professor of Business Law and Ethics, Lee Business School
Las Vegas, NV

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NANCY B. RAPOPORT is the Special Counsel to the President of the University of Nevada, Las Vegas. She is also the Garman Turner Gordon Professor of Law at the William S. Boyd School of Law, University of Nevada, Las Vegas, and is an Affiliate Professor of Business Law and Ethics in the Lee Business School at UNLV. Her specialties are bankruptcy ethics, ethics in governance, law firm behavior, and the depiction of lawyers in popular culture. She is admitted to the bars of the states of California, Ohio, Nebraska, Texas, and Nevada and of the United States Supreme Court. In 2001, she was elected to membership in the American Law Institute, and in 2002, she received a Distinguished Alumna Award from Rice University. She is the Secretary of the Board of Directors of the National Museum of Organized Crime and Law Enforcement (the Mob Museum), a Fellow of the American Bar Foundation, and a Fellow of the American College of Bankruptcy. In 2009, the Association of Media and Entertainment Counsel presented her with the Public Service Counsel Award at the 4th Annual Counsel of the Year Awards. She has also appeared in the Academy Award?-nominated movie, Enron: The Smartest Guys in the Room (Magnolia Pictures 2005) (as herself). Being in the movie garnered her a listing in www.imdb.com, a fact of which she is probably unreasonably proud. In her spare time, she competes, pro-am, in American Rhythm and American Smooth ballroom dancing with her teacher, Sergei Shapoval. In 2014, she became the national champion in U.S. Open Pro/Am Rising Star American Smooth Competition B Division, and in 2015, she placed 4th in the Open to the World Pro/Am American Style 9-Dance Championship. The most interesting thing about her is that she is married to a former Marine Scout-Sniper.

"[I]magine a basketball coach in the locker room at half-time. He calls the team's center into his office to talk with him one-on-one about the first half, and then he does the same with the point guard, then shooting guard, the small forward, and the power forward, without any of them knowing what everyone else was talking about. That's not a team. That's a collection of individuals." ²

1. Why teamwork matters.

Groups are collections of individuals. Sometimes, those collections of individuals can end up producing great work, but that great work is an accident, not a plan. Teams, though, can take their organization farther. And teams are comprised of different people with different talents and perspectives. We spend a lot of time thinking about how to get our work done, and we spend a lot of time thinking about gender and racial diversity, but do we spend enough time thinking about skill diversity and how the right composition of our teams can make all of the difference in the world?

Attorneys involved in teams must be mindful of the additional limitations imposed by the Rules of Professional Conduct, see infra. Thus, the attorney needs to consider the culture of the client whom the attorney represents, but also the way that the culture may need to yield to the attorney's ethical obligations. This essay discusses the legal and ethical implications of forming the right team and working collaboratively with that team.

Consider this example from one of my favorite books, The Boys in the Boat, about the United States crew team in the 1939 Olympics:

[C]apitalizing on diversity is perhaps even more important when it comes to the characters of the oarsmen. A crew composed entirely of eight amped-up, overtly aggressive oarsmen will often degenerate into a dysfunctional brawl in a boat or exhaust itself in the first leg of a long race. Similarly, a boatload of quiet but strong introverts may never find the common core of fiery resolve that causes the boat to explode past its competitors when all seems lost. Good crews are good blends of personalities: someone to lead the charge, someone to hold something in reserve; someone to pick a fight, someone to make peace; someone to think things

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through, someone to charge ahead without thinking. Somehow all this must mesh. That's the challenge. Even after the right mixture is found, each man or woman in the boat must recognize his or her place in the fabric of the crew, accept it, and accept the others as they are. It is an exquisite thing when it all comes together in just the right way. The intense bonding and the sense of exhilaration that results from it are what many oarsmen row for, far more than for trophies or accolades. But it takes young men or women of extraordinary character as well as extraordinary physical ability to pull it off.³

I've worked on a lot of "teams" in my day, as I'm sure all of my readers have as well. But most of those teams have been pulled together based on a combination of (1) people's titles at work, (2) gender and racial diversity reasons, and (3) who's around when something needs to get done. Sometimes, we really just need whoever's in the room at a given time. (Those times are called emergencies.) But we miss the opportunity to form truly high-functioning teams by not thinking more broadly about two things: how to form a truly diverse team and how to manage the teams that we've formed. And true teams will outperform randomly configured groups every single time.

2. Forming the right types of teams.

According to the book Team Genius,⁴ the larger the group, the less useful it is for decision-making.⁵ We've all intuitively experienced this phenomenon. We get called into a large meeting because the leaders want to have key voices at the table--and there are a lot of key voices. There are so many key voices that more talking gets done than does any actual work. If these large committees are supposed to be doing the actual work, then a different model is necessary--a hub-and-spoke model. The idea is to have smaller subgroups that work on specific tasks, with those subgroups reporting up to the central groups. As long as there are people actively monitoring the assignments, the hub-and-spoke model can overcome the problem of a group being too large.

The group still has to understand, though, why it's doing whatever task it has to perform, though, and without a clear understanding of why each person is at the table and what the group's end project is supposed to be, the group cannot achieve its true potential as a team:

In 1972, the social psychologist Ivan Steiner proposed the following, now widely cited, equation:

Actual group productivity = Potential productivity - Process losses

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Where:

? Potential productivity is what the team can theoretically achieve, given its resources. Process losses are what the team loses through coordination and motivation problems. ⁶

What keeps us from recognizing these formation issues (and acting on them)? In part, we're hide-bound by the traditions of our organizations.⁷ For example, when a university is in the process of granting tenure to an untenured professor, the only people eligible to vote on tenure are those who are of higher rank. In other words, both full professors and tenured associate professors can vote to recommend tenuring assistant professors, but only full professors can vote on the promotion of tenured associate professors to the rank of full professor. Those restrictions make sense, but they only provide a pool of eligible team members (e.g., tenured professors on the promotion and tenure committee). If the number of eligible team members is small, then further winnowing to represent a diversity of different skill sets is probably impossible. In a larger group, though, it would be possible to create a committee that includes some people who are good at detail work (such as reading the various applicants' articles and reviewing their teaching evaluations), some people who are good at logistics (figuring out and enforcing the appropriate voting and submission deadlines), some who are good at leading discussions, and some who are good at writing voluminous reports. Unfortunately, we tend to winnow lists of eligible committee members not by skill diversity but by such factors as (1) who's already served on onerous committees, (2) who will actually do the work, when push comes to shove, and (3) who is not particularly annoying. Part of the reason we don't focus more on skill diversity is that we're not comfortable enforcing our colleagues' accountability--and diversity of skills only works if each person is actually providing those skills. (More on that issue in the next section.) Another reason is that no one's probably asked us to form a team based on skill diversity.

It's not easy to figure out who has which skills, and a new manager needs time and experience with someone to be able to discern his or her skills (and gaps). But if a manager has a checklist of the types of skills that a project needs, the manager can start looking for people who can satisfy the checklist. It's even better if the manager also understands the relationships that have formed among possible team members. A team comprised of people who have worked well together in the past is likely to be more successful than a team comprised of people who have longstanding grudges or constantly rub each other the wrong way.⁸

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Let's say that my organization has asked me to lead the effort to create a new strategic plan. I'm going to need people who know how my organization works now--and what's not working well. I'm going to need people who can figure out what the current competitive...