As an employment lawyer, my bailiwick is a motley collection of statutes and regulations, with a little case law thrown in. However, the legal issues that are presented — such as allegations involving discrimination, harassment, theft of trade secrets, breach of a noncompetition agreement and so forth — are often part of a bigger issue that the law does not always reach. Though people rarely label it that way, the bigger issue is fear.
Fear of what? Of employees losing their jobs, their self-respect, their dignity or their reputation. Fear of change. Fear of failure. Fear of physical or emotional harm from co-workers or clients. Fear that domestic violence will spill over into the workplace. Fear of developing a workplace-related disease or injury, such as asbestosis or carpal tunnel syndrome. Fear that new technology will reveal an inability to multitask or learn new things. Fear of what happens after retirement. Fear that a fraudulent or “puffed” résumé will be discovered. Fear of not meeting expectations. Fear of being wrongly accused.
So what does any of this have to do with being an employment lawyer? Part of our roles as attorneys is to serve as an advisor, and failing to recognize where fear is a motivating factor in workplace behavior can mean that our advice is less valuable than it could be.
RPC 2.1 states as follows: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” (emphasis added).
The comments to RPC 2.1 that were adopted with the rule changes in September 2006 explain the lawyer’s duties in this area. Comment 2 states:
Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.
Comment 4 to RPC 2.1 recognizes that the advice a client may need can go beyond the scope of a lawyer’s expertise and explains our role in recommending other professionals:
Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer’s advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.
The comments also make it clear that advice in these areas can be offered even if it is not requested. For example, Comment 5 states, in part, “A lawyer ordinarily has no duty to initiate investigation of a client’s affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client’s interest.”
A lawyer’s ability to recognize when fear is a motivating factor in workplace behavior is a great asset to a client. If the underlying issue that is causing the fear is not resolved, the resolution of the legal issue may not have a long-term effect.
Underlying issues (whether they are based on fear or something else) often can be brought to light by asking the affected employees and the people who work with them what the atmosphere in the workplace is like, why they think it is the way it is, how the people in the workplace get along with each other and whether people in the workplace trust each other, among other things. If they identify any problem areas, ask them what they think motivates the people involved, what they think the people involved are trying to accomplish and what they think it would take to make the workplace better.
People often have strong opinions and theories about their workplaces and they are often happy to share them with an outsider who is willing to listen. This is true even if you cannot promise them that the change they recommend will occur or that what they say will remain confidential (the latter will depend on whether the information may be discoverable at a future date if litigation or a grievance is filed, or if the information is subject to the Public Records Act).
Depending on what is learned during the course of interviewing employees, the information can be used to provide context for evaluating whether there has been a violation of law, workplace policy or contract. The information also can be used to provide a framework for next steps, which can be something simple such as clarifying job duties and expectations or identifying areas where training would help.
Where the issues that are identified are more complex, the lawyer may recommend a professional who can work with the group or with individuals to build trust and communication or recommend a training or mentoring program. A lawyer also might bring in an organizational development specialist, an industrial hygienist or disability accommodation expert or other professional when it appears that the organization’s needs exceed the scope of the lawyer’s expertise.
Why would a lawyer want to take the extra time to identify issues that are not strictly legal? The client’s goal is often not just to resolve a legal claim, but includes the broader context of reducing the likelihood of similar legal claims in the future. The big picture from the client’s perspective usually includes having a workplace atmosphere that promotes productivity, honesty, and customer satisfaction, and that reduces turnover, shrinkage and other negative impacts on the bottom line.
A lawyer who can show how his or her role relates to the client’s bigger picture often is more likely to be appreciated as a valued advisor than one who looks strictly at the letter of the law.
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Karen Sutherland is the chair of the Employment and Labor Law Practice Group of Ogden Murphy Wallace, PLLC and chair of the Bar Bulletin Committee. She can be reached at ksutherland@omwlaw.com.
