October 2003

Mutant Lawyers

by Terrence A. Leahy  

This article first appeared in the newsletter of the Washington State Chapter of the Community Association Institute, an organization providing education for those involved in homeowners' associations and condominium associations.

A computer-literate farmer who left farming to manage federal land attended a leadership retreat. But he was nagged throughout by a land-management problem sitting back on his desk at the office. How should it be resolved? The struggle to decide consumed him. The farmer in him saw how it should be resolved, but the professional in him knew that the "right" solution would be suicidal to his career.
 
He finally decided to do what the farmer in him knew was right. When others at the retreat asked how he'd handle his boss's strong opposition to this, he said, "I don't report to my boss. I answer to the land."
 
But what does the "Farmer with the Dell" have to do with you, the community association professional? Absolutely everything. Because that farmer is you.
 
You and I are that farmer in the sense that each of us is daily confronted with tough decisions that have no easy answers, just as the farmer was. And how he came to his decision—by answering the question "Whom do I answer to?"—is instructive to us.
 
So—whom do you answer to?
 
Finding the answer lies at the heart of everything you do. That is what the new messiahs of "leadership" all preach.
 
The only constant in our world of today is change, change that occurs constantly, at an ever-increasing pace. Most Americans both struggle to keep up, and fear being left behind.
 
Look at any bestsellers list and you'll see what I mean. Book sales are a pretty good measure of what is on our collective minds. Five years ago, nonfiction titles with "heart" and "soul" in them sold like hotcakes. Three years ago, the key to selling a book was to stick the word "community" in the title. And now, the million-dollar word is "leadership." Or, rather, "new leadership," in its various incantations, such as "Level 5 Leadership" and "Quiet Leadership" and "Primal (i.e., emotionally intelligent) Leadership" and "Moral Leadership" and "Integral Leadership."
 
"New Leadership" is all the rage because, quite frankly, old leadership isn't a good fit for the task of leading in today's changed world.

The world has changed—and is changing—in many fundamental ways. According to Mark Gerzon, author of Leaders Without Borders, the norms of tradition, nation-states, homogeneity, rugged individualism, and a preoccupation with one's image are giving way to the new norms of constant change, a global economy, diversity, an emphasis on teams, and a preoccupation with one's integrity and authenticity. (I know—jargon— but the truth behind the jargon is nonetheless real.)
 
The "New Leadership" is all about adapting the art of leading to this new context in which leadership must occur. The emerging "core leadership values" for this new environment, according to Gerzon, are such things as learning, inclusion, respect for others, collaboration, and integrity.
 
And common to most discussions of the "New Leadership" is some form of the question the farmer faced: "Whom do I answer to?"
 
The new messiahs of leadership preach varying versions of the same answer to that question: "I answer to something larger than myself or my own petty interests; I answer to the whole."
 
Jim Collins, author of the popular book Good to Great, says that a key attribute of a "level 5 leader" is that these leaders' ambition is not for themselves but for the thing entrusted to their stewardship, be it a company or, as in Abe Lincoln's case, an entire nation.
 
Father Stephen Sundborg, S.J., Seattle University's president, recently gave a talk to the Seattle Rotary about moral leadership, and he made much the same point. He said that one quality of a moral leader is "an explicit and deep religious faith or a perception of human reality and destiny as sacred, holy, beyond simply human accomplishment. Moral leaders are free enough within themselves to pivot as a moral compass towards what is right . . . because they are free, not locked into a position, not leading from an ideology, but from the fulcrum of their humanity, [and] hence [are] free to swing to what is right, to pivot to the truth as they see it." In other words, the moral leader answers to the whole of humanity.
  
But how does a lawyer—duty bound to "answer to" her client—answer to more than her client? Community association lawyer Marion Morgenstern, for one, does so through acts of "quiet leadership." "Quiet leadership" is not an oxymoron. It is the concept explored in a popular management tome: Leading Quietly: An Unorthodox Guide to Doing the Right Thing by Joseph L. Badaracco Jr. And it is how Marion Morgenstern and others like her are striving to heal an ailing housing stock: condominiums.
 
"Quiet leadership" is one of those "I can't define it but I know it when I see it"-type concepts. And it is a concept that is burrowing deep roots these days within the legal profession. But before we get to Marion, a little background is in order.
 
Some years back I was privileged to serve with the now-Honorable Justice, the then-Washington State Bar Association President Mary Fairhurst and others in designing and presenting a workshop that encouraged lawyers to take personal responsibility for the health of our legal system. Mary had made "Stewards of Justice" the theme of her Bar presidency.
 
Remember the importance of deciding whom you answer to? Mary decided that she answered to, and was a steward for, "the justice system." Her reasoning was simple. For centuries "the law" has evolved to meet the needs of the society it holds together. "The law," she believed, is entrusted to us, the lawyers who embody it in the work we do each day. It is through how we choose to do that work that "the law" changes. The hope is that "the law" we hand off to future lawyers is better than "the law" that got handed to us.
 
Was Mary naive in believing that individual actions can actually change "the law?" No. Case in point—mediation. Twenty-plus years ago, my law school was one of but a handful of schools offering a class called "negotiation and mediation" (or "hot tubs," as we called it). The very idea of mediation, back then, was a joke.
 
Fast-forward to now. Mediation is the main process through which civil disputes are resolved. How did it go from being the butt of our jokes to becoming the main method for resolving civil disputes in just 20 years? It happened one lawyer at a time. It happened because individual lawyers, scattered here and there, had the courage, in service to their clients, to risk trying something new. Thus, "the law" mutates through the acts of mutant lawyers.
 
Travel back from the future to now.

Collaboration, which, in the future, will be the main process through which civil disputes are resolved, is the "hot tubs" of today's lawyers. But that is changing before our very eyes. It is changing because of Marion's quiet leadership, and that
of other community association lawyers like her.
 
Right now, condominiums are an endangered species of housing. Many are beset by the need to perform massive repairs at break-the-bank prices. How to fund and effect these repairs, and how to prevent, in condos yet to be built, the conditions that created this kind of damage, are issues in critical need of solutions.

One time-honored way of "solving" such widespread problems is to hire lawyers to duke it out in court, case after case, until the courts eventually fashion rules to "fairly" allocate blame. An alternative time-honored way is to hire lobbyists to duke it out in the Legislature, bill after bill, until the Legislature eventually fashions a law to "fairly" allocate protection.
 
But Marion Morgenstern, Vince DePillis, Pete Middlebrooks, David Rockwell, and Dave Merchant—all lawyers—have each made it known to those in power this legislative session that the time-honored ways of "solving" this problem won't get the job done here. Each of these lawyers independently arrived at the same conclusion: that to truly heal all that ails the condominium segment of the regional housing stock, the crisis—in all its complexities—needs to be entrusted to a task force of collaborative-minded lawyers (and other stakeholders) who are genuinely committed to creating effective solutions to a very complicated set of problems.
 
Mind you, I'm not talking about the time-honored legislative copout of tossing some politically hot potato to a "blue ribbon" commission with instructions to report back in a decade or two. I'm talking about doing here what is happening elsewhere across the nation and beyond—assembling "the best and the brightest" to work collaboratively on crafting well-conceived solutions that really get at the root causes of the problems.
 
And by "quiet leadership" on this issue, I'm not talking about just e-mailing a state senator to let their voices be heard. No, these lawyers I've named have put their money where their mouths are. You see, to a lawyer, time is money, and time devoted to this crusade for a collaborative solution sucks the lifeblood out of the lawyer's own livelihood.
 
And yet these lawyers—and, in particular, Marion Morgenstern—quietly sacrifice countless hours pursuing a comprehensive and permanent solution to the crisis.
 
Why do they? I think it's because they "answer to" the region's condominium housing stock itself. And they are deeply committed to restoring it to good health. That's what drives them. That's what gives them the courage to embrace collaboration as the means by which these problems can, and should, be resolved.
 
The kind of quiet leadership we are witnessing in the actions of these lawyers on the legislative front is also showing up in the actions of others of us in our representation of associations and owners confronted with the need to tackle massive repairs. Time and again, owners faced with back-breaking repair assessments splinter apart, with each "camp" searching out a "hired gun" to impose its will on its opponents. But, more often than not these days, the opposing counsel I encounter seeks to collaborate with me to create a repair/assessment solution that still gets things fixed, but in a more palatable way.
 
I believe that what "quiet leadership" boils down to for those of us who represent community associations is "answering to" that which is temporarily entrusted to our care—the building, the land, and the statutorily created (and sometimes dysfunctional) "family" that common ownership unnaturally creates. And our call, in leading quietly, is to rise above the fractional in fighting and hair-splitting and to do, instead, that which best serves the building, the land, and its entire "family."

Author's Postscript

And that gets us back to "The Law." And to you, its living, breathing embodiment.
 
Have you decided whom you answer to? Do you hear "The Law" calling you, as it did Mary and Marion, to answer to it? Do you hear "The Law" calling you to rise above mere work-a-day worries and to do your bit in shaping what "The Law" will become (and is already becoming)?
 
And will you, in answering that call, do so in a way that weakens "The Law"? Or will you act, instead, in a way that strengthens it, for the good of the whole of humanity? Because its future truly depends on your choice.

Terrence A. Leahy is a community association lawyer in Bellevue.

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