August 15, 2018

Archives for July 8, 2013

But Are You Helping?

Richard Pennington 1By Richard Pennington

In 2009, psychologist and MIT professor emeritus Edgar Schein published a book, Helping, that described a general model for effective helping. Schein is widely known for his work in organization development; he wrote the business classic Organization Culture and Leadership (2004).

I reached Schein circuitously. I had retired from the private of law in 2010 and was researching models for teaming, leadership, project management, problem solving, and organizational learning. In one of the better books on leadership in teams, Lateral Leadership, authors Roger Fisher and Alan Sharp distilled their advice down to one piece: “Choose to help.” But what was helping?

The idea lay dormant for a year while I finished a book on effective team performance. Then, during preparation for a short training seminar about consultancy and learning, the relevance of Schein’s ideas to law practice suddenly dawned on me.

Schein’s model is based on the conclusion that helping relationships – and he uses attorney-client relationship as one of his many examples – have a life cycle much like teams. They move from a period of pure inquiry to various roles: the expert, the doctor, and the process consultant. Here is how Schein would see the development of an effective attorney-client relationship.

1. Begin always with a period of pure inquiry. Effective helping begins with readiness. Early in a relationship, perhaps at the stage when many attorneys have initial consultations, there is an imbalance in the social economics. Clients feel “one down,” a feeling that they don’t bring anything of value to the relationship, uncertainty about their ability to influence the outcome, and insecurity about whether their goals will be achieved. The attorney needs to do something to adjust the imbalance in order to build trust. By simply listening to the client’s story, using “humble inquiry” as Schein calls the process strategy at this stage, the client begins to feel like there is a better balance in the relationship just by being heard. That begins the development of trust.

2. Use caution not to fall into the diagnostic trap too early. Experts are more comfortable with the kinds of questions that lead to solutions. Who was at the meeting? When did you meet? What did the other party say? How did the language in that meeting compare to prior email communications? Use of those kinds of diagnostic questions too early may impede the development of the relationship. The attorney is walking a tightrope here, because this also is the time when attorneys are hoping to gain a client. The quality of informed questions is an important factor in a client’s decision, and informed questions tend to be diagnostic.

3. Start with process inquiry and return to it often. Schein uses process inquiry to describe the underlying process of relationship building and problem solving, not a focus on the substance of the problem. For example, the question, “How would you see a successful outcome?,” at the conclusion of an initial consultation turns the focus to the client’s expectation of the process outcome. That question might uncover a discomfort with the unintended consequences of litigation, for example. Occasional questions during the engagement like, “How can we better communicate about the drafts?,” or “How am I doing keeping you informed about the progress of the case?,” turns the focus to the relationship, keeps it in balance as client input is sought, and continues to build trust. These also are the kinds of questions that help a relationship out of the quicksand when it gets bogged down.

Lawyers eventually move into the expert role in writing documents or handling litigation. This may be where the Schein model pauses in its relevance somewhat, because some consultants stay in the process mode throughout. “Clients own the problem” Schein says, but lawyers are paid to solve them. “Don’t give unwanted help,” counsels Schein, but the cost of legal services probably mitigates the risk of over-helping in unwanted ways.

Still, Schein’s emphasis on the importance of process feedback is relevant. So is the inquiry approach to developing the relationship. Attorneys are taught the art of questioning, but not this way. Pure inquiry and the use of real questions are key to fostering development of the relationship. Competency, professionalism and ethics are critical parts of client relationships. But effective helping may be the most important.

Richard Pennington returned to the practice of law in April 2013 as General Counsel for WSCA-NASPO Cooperative Purchasing Organization LLC. WSCA-NASPO is the nonprofit subsidiary of the National Association of State Procurement Officials that supports cooperative purchasing by the states and what formerly was the Western States Contracting Alliance. Richard is a member of the CBA/DBA Professionalism Coordinating Council. His book, Seeing Excellence: Learning from Great Procurement Teams, is scheduled for release in August 2013.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Court of Appeals: Announcement Sheet, 7/3/13

On Wednesday, July 3, 2013, the Colorado Court of Appeals issued eight published opinions and 23 unpublished opinions.

People v. Vigil

Smith v. Kinningham

People v. Henry

United States Taekwondo Committee v. Kukkiwon

Strudley v. Antero Resources Corporation

In re Parental Responsibilities of I.M.

In re Parental Responsibilities of L.K.Y. and J.R.Y.

Town of Castle Rock v. Industrial Claim Appeals Office

Summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Determination of Amount of Attorney Fee Award Within Trial Court’s Discretion

The Colorado Supreme Court issued its opinion in Planning Partners International, LLC v. QED, Inc. on Monday, July 1, 2013.

Contract Providing for Award of Reasonable Attorney Fees—Proportional Diminishment—Discretion Afforded to Trial Courts.

Petitioner challenged the court of appeals’ ruling that a trial court must apportion attorney fees in proportion to the amount recovered on a promissory note, less the amount recovered on the counterclaim. Petitioner argued that apportionment is not mandatory when determining reasonable attorney fees under a contract providing for such an award. The Supreme Court agreed, concluding that the determination of whether and how to apportion attorney fees is typically within the discretion of the trial court. Accordingly, the judgment was reversed.

Summary and full case available here.

Colorado Supreme Court: Instruction to Jury that It Could Discuss Case Prior to Deliberations was Harmless Error

The Colorado Supreme Court issued its opinion in People v. Flockhart on Monday, July 1, 2013.

Pre-Deliberation Jury Instruction—Challenges for Cause—Judicial Disqualification.

The Supreme Court held that the trial court erred by giving a pre-deliberation instruction in defendant’s criminal trial, because to do so was not authorized by rule or existing law. The Court found, however, that the erroneous instruction constituted non-constitutional trial error and was harmless. Accordingly, the Court reversed the court of appeals’ judgment and remanded the case to the trial court to reinstate defendant’s convictions. The Court further held that a trial court retains discretion to conduct challenges for cause in open court, and that the trial court did not err by denying defendant’s motion to disqualify the trial judge.

Summary and full case available here.

Tenth Circuit: Failure to Provide Sufficient ERISA Notice Not Egregious

The Tenth Circuit Court of Appeals published its opinion in Jensen v. Solvay Chems., Inc. on Tuesday, July 2, 2013.

Solvay Chemicals changed how it provided retirement benefits by converting its defined benefit plan into a so-called “cash balance” plan that in essence required only a defined contribution from the company. This change eliminated early retirement subsidies.

ERISA required, under § 204(h), that Solvay provide employees with detailed notice of the changes to the plan. In a prior appeal, the Tenth Circuit held Solvay’s notice was sufficient except for describing the preexisting the company’s preexisting early retirement subsidies. The court remanded for a determination of what, if any, relief was appropriate for this violation.

The employees sought return of their early retirement benefits as a remedy for the defective notice. This was not an available remedy unless Solvay’s failure was egregious. The Tenth Circuit affirmed the district court’s decision that Solvay’s failure did not qualify as egregious under 29 U.S.C. § 1054(h)(6)(A) and also held the employees were not eligible for any other form of equitable relief.

Tenth Circuit: Board of Immigration Appeals’ Interpretation of Crime of Child Neglect Too Broad

The Tenth Circuit Court of Appeals published its opinion in Ibarra v. Holder on Monday, July 1, 2013.

Elia Ibarra Rivas petitioned for review of a Board of Immigration Appeals decision that found her Colorado conviction for “child abuse – negligence – no injury” to categorically constitute a “crime of child abuse, child neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i) of the Immigration and Nationality Act (INA). This finding resulted in her ineligibility for discretionary cancellation of removal. Her conviction apparently resulted from leaving her children with her mother while she was at work and the mother then leaving them alone. The oldest child was age 10 and no child was injured.

The BIA has interpreted “crime of child abuse, child neglect, or child abandonment” broadly to include criminally negligent omissions which endanger children by creating a reasonable probability of harm but which do not lead to injury. The Tenth Circuit agreed with Ms. Ibarra that this definition is an impermissible interpretation of the federal statute and that her conviction was not a “crime of child abuse, neglect, or abandonment” under any permissible interpretation of § 1227(a)(2)(E)(i).

The court reached this decision by looking at state laws in effect in 1996, the year Congress amended the INA to include crimes of child abuse, child neglect, or child abandonment as a basis for deportation. They found a majority of states did not criminalize such conduct when it was committed with only criminal negligence and no injury resulted. Therefore, her crime did not fit the generic federal definition and should not have prohibited her application for cancellation of removal.

The court reversed the BIA’s decision and remanded.

Tenth Circuit: Immigration Hardship Determination Is Unreviewable Discretionary Decision

The Tenth Circuit Court of Appeals published its opinion in Munis v. Holder on Tuesday, July 2, 2013.

Petitioner Peter Dausen Munis appealed from an order of the Board of Immigration Appeals (BIA) that dismissed his administrative appeal from an order of the immigration judge (IJ) denying his requests for discretionary relief from removal. The IJ found him inadmissible because of his criminal history. He sought a waiver of inadmissibility under 8 U.S.C. § 1182(h)(1)(B), based on alleged extreme hardship to his wife if he was removed.

The court joined two other circuits in holding “based on existing Tenth Circuit law . . . the hardship determination required for a waiver of inadmissibility under § 1182(h)(1)(B) is an unreviewable discretionary decision.” The court dismissed the petition for review for lack of jurisdiction.