Competency Case Delimma - Paper Answers

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Week 5 – Assignment

Competency Case Dilemma

In a 1,050- to 1,400-word (or 3- to 4-page) paper (excluding references and title page), discuss a competency-related scenario or a case of your choice, either from our readings or related to a situation that you have encountered in which you address the specific steps you would take to embrace ethical practices in your work. In what ways does the scenario you have selected present an ethical, legal, professional, or moral problem related to competency issues? In what way does your professional code of conduct offer possible solutions or opportunities for resolution? What are the implications of your ethical decision-making and actions for the client in this case, for those related to the client, and for you as a professional? In addition to the required readings, cite at least two additional references.

Resources

Required References

Anderson, A., Barenberg, L., & Tremblay, P. R. (2006). Professional ethics in interdisciplinary collaboratives: Zeal, paternalism and mandated reporting. Clinical Law Review, 13. 659-718.

Ashley, G. C., & Reiter-Palmon, R. (2012, September). Self-awareness and the evolution of leaders: The need for a better measure of self-awareness. Journal of Behavioral and Applied Management, 14(1), 2-17.

Caldwell, C. (2009). Identity, self-awareness, and self-deception: Ethical implications for leaders and organizations. Journal of Business Ethics, 90, 393-406

Hunter, S. T. (2012, April). (Un)ethical leadership and identity: What did we learn and where do we go from here? Journal of Business Ethics, 107(1), 79-87.

Johnson, W. B., Barnett, J. E., Elman, N. S., Forrest, L., & Kaslow, N. J. (2012, October). The competent community: Toward a vital reformulation of professional ethics. American Psychologist, 67(7), 557-566.

(Un)Ethical Leadership and Identity: What Did We Learn
and Where Do We Go from Here?

Samuel T. Hunter

Published online: 4 April 2012

� Springer Science+Business Media B.V. 2012

Abstract The purpose of this article is to highlight and

comment on the key findings emerging from the collective

efforts of the special issue on leadership, ethics, and iden-

tity. Highlights include definitional advancements, pro-

cesses comprising ethical leadership, as well as outcomes

and moderating factors. In addition, I attempt to synthesize

work across authors by identifying common themes as well

as conflicting elements in the article. I conclude with a

discussion on emerging areas in need of future research

investigation in the leadership and ethics arena.

Keywords Leadership � Ethics � Summary � Unethical

Introduction

The aim of this special issue was to solicit manuscripts

centering on leadership, ethics, and identity. The call was

successful on a number of levels, resulting in a collection

of article that range and differ in foci, styles, methods,

samples, and cultural emphasis. The aim of this article,

then, is to highlight the unique contributions of each of

these efforts, touching on what each has to say with regard

to the important topics underlying the special issue. I will

also identify common and conflicting themes emerging

from the whole of these efforts before concluding with a

more critical discussion of where gaps still exist and how

we might move forward to fill them. In direct terms I aim to

highlight, synthesize, and identify areas that warrant future

investigation. I begin, then, with highlights.

Highlights Across Contributions

To provide some level of structure in my attempt to sum-

marize and highlight findings across the diverse set of

articles comprising the special issue, I will begin by noting

the definitional issues touched on in several manuscripts,

move the discussion toward the processes involved in

ethical leadership, comment briefly on moderating influ-

ences of ethical leadership and conclude the summary

portion with a note on the outcomes of ethical leadership. I

start with definitional issues surrounding ethical leadership

and identity.

Defining Ethical and Unethical Leadership

Unal et al. (2012) provide the most direct discussion of the

challenges surrounding defining ethical leadership, although

it should be acknowledged that all manuscripts touch on the

issue to varying degrees. The most cited definition in the

leadership literature appears to have been put forth by

Brown et al. (2005) who define ethical leadership as ‘‘the

demonstration of normatively appropriate conduct through

personal actions and interpersonal relationships, and the

promotion of such conduct to followers through two-way

communication, reinforcement, and decision-making’’ (p.

117). A similar, albeit shorter, definition is offered by Unal

and co-authors who define unethical leadership as ‘‘super-

visor behaviors that violate moral standards’’. Grounded in

both of these definitions (and others) is a key point that

warrants specific note. Namely, that the definition of ethical

leadership is best characterized as a dynamic entity—a

moving target. More directly, the norms regarding what

defines ethical or unethical behavior can and do change.

Thus, what constitutes ethical leadership at one point in time

may vary by both timeframe and entity (i.e., organization or

S. T. Hunter (&)
Pennsylvania State University, 111 Moore Building,

State College, PA 16823, USA

e-mail: samhunter@psu.edu

123

J Bus Ethics (2012) 107:79–87

DOI 10.1007/s10551-012-1301-y

group) under consideration. Unal and co-authors argue that

this normative grounding is necessary for the area of

research to move forward, and while I agree, I do think the

shifting nature of the definitions we are building this area of

research upon may provide their own share of interesting

challenges in the future. I will comment a bit more on this

issue later in the article.

Also noted extensively by Unal and colleagues is the

issue of construct overlap or, framed more critically, the

potential for construct proliferation. Directly, there is rea-

sonable debate around whether ethical leadership is an

incrementally unique construct or simply represents a form

of ‘‘old wine in new bottles.’’ Interestingly, Brown and

Trevino (2006) touched on similar issues in their recent

review of ethical leadership, yet the authors decided to take

an approach that differs, at least on the surface, subtly from

Unal and colleagues. That is, although Unal and colleagues

discuss unethical leadership, Brown and Trevino (2006)

and others have tended to focus on ethical leadership,

noting the distinctions and overlap among similar con-

structs such as spiritual leadership, authentic leadership,

and transformational leadership. Unal and co-authors, in

contrast, discuss the differences between unethical leader-

ship and constructs such as abusive supervision (Tepper

2000), petty tyranny (Ashforth 1997) and bullying (Hoel

et al. 2001), among others. Both approaches are well

grounded in theory and contribute substantively to the

leadership literature. The two foci, however, are notably

unique and their divergence from one another broaches the

question of whether we should focus on promoting ethical

leadership, identifying and stopping unethical leadership,

or both.

Processes of Ethical Leadership

Defining ethical or unethical leadership is certainly a nec-

essary beginning, yet for a richer understanding of the

construct we must also begin to investigate the processes,

activities, and mechanisms comprising ethical leadership

(Bass and Bass 2009). This is where, as I see it, the special

issue makes its most sizable and substantive contribution to

the literature, with the majority of articles touching on the

unique and varying processes comprising ethical leadership.

Avey et al. (2012), for example, provide an interesting

meditational model of ethical leadership where ethical

behaviors impact two outcomes, employee well-being and

job satisfaction, vis-à-vis unique mediating factors. Spe-

cifically, for the outcome of psychological well-being, the

proposed mediating construct is employee voice, while the

relationship between ethical leadership and job satisfaction

is mediated by feelings of employee ownership. Tested

across more than 800 working adults, there was solid evi-

dence in support of the hypothesized relationships.

Although there are a number of interesting propositions

and findings put forth by Avey and colleagues, I would like

to comment specifically on the differing mediating factors

observed for the two outcomes investigated. As Avey and

colleagues illustrate, ethical leadership exhibits a rather

complex pattern of influences on key organizational out-

comes. More directly, depending on the outcome of inter-

est, ethical leadership may impact that outcome through

varying and diverse mechanisms. Key here, it seems, is to

acknowledge that how ethical leadership impacts organi-

zational criteria may depend largely on the outcome we are

interested in.

In an effort somewhat similar to Avey et al. (2012) and

Den Hartog and Belschak (2012) examined employee

engagement as a mediator between ethical leadership and a

unique form of organizational citizenship behavior (i.e.,

employee initiative) as well as counterproductive work

behaviors. Whereas Avey et al. (2012) present a dual

mediator model of ethical leadership, the article by Den

Hartog and Belschak (2012) offer a moderated mediation

model to illustrate the complexity characterizing ethical

leadership influences. Drawing on surface acting literature,

the authors propose that inauthentic behavior, measured via

Machiavellianism, serves as a moderator in the proposed

mediation model. In essence, the authors suggest that

behaving in an ethical manner is less effective if the leader

is seen as inauthentic. Conversely, leaders who are more

authentic have greater sway as ethical leaders.

Den Hartog and Belschak (2012) test their moderated

mediation model across two studies and find strong support

for their propositions. I encourage the reader to examine

the article for a more in-depth discussion of their hypoth-

eses and theoretical rationale. I will, however, comment on

a finding I see as particularly noteworthy to this broader

discussion. First, as noted in the paragraph above, the

authors proposed and found that behaving ethically influ-

enced employee engagement that, in turn, influenced the

aforementioned outcomes. The process (i.e., meditational)

model is especially interesting in that behaving ethically

may serve as a motivating influence to subordinates. Much

like constructs of charisma or the inspirational motivation

facet of transformational leadership (Bass and Steidlmeier

1999), ethical leaders are likely to be admired and

respected by followers. This, as evidenced by the findings

across both samples, gives them the capacity to inspire

greater levels of engagement in their work. Akin to the

‘‘moral manager’’ label put forth by Trevino et al. (2000),

this perspective is somewhat unique from the more direct

ethical role-modeling approach, where an ethical leader

provides indications as to which behaviors are appropriate

or inappropriate in a given organization. The framework

offered by Den Hartog and Belshack, in contrast, illustrates

the more wide-spread influences ethical leadership might

80 S. T. Hunter

123

have on followers. That is, ethical leaders do more than

show followers what is right or wrong—if they behave

authentically, they are also able to have greater influence

over subordinates because they are operating ethically.

Turning now to the third manuscript to center on the

processes comprising ethical leadership, Thiel et al. (2012)

break from the pattern established by the two manuscripts

discussed above and provide some guidance on the ante-

cedents driving ethical decision-making. That is, whereas

Avey et al. (2012) and Den Hartog and Belschack (2012)

describe the mediating factors shaping how ethical lead-

ership impacts organizational outcomes, Thiel et al. (2012)

outline the processes that shape whether ethical, or

unethical, leadership occurs. Utilizing a sensemaking

perspective as a theoretical framework, Thiel and co-

authors provide a cognitively centered ethical decision-

making model. The focus of the article, moreover, is to

provide a number of trainable strategies that may be uti-

lized by leaders as a means to improve ethical decision-

making.

The sensemaking approach to ethical leadership taken

by the authors is a unique and interesting tact to take in

understanding why leaders do or do not behave ethically.

Differing from the other manuscripts in the special issue,

the sensemaking framework expressly acknowledges the

ill-defined nature of ethical dilemmas faced by leaders.

Moreover, the approach breaks away from rational deci-

sion-making approaches that often apply post hoc ration-

alist explanations for why decisions were made. The

sensemaking framework, instead, concedes that leaders

often apply intuitive judgments when attempting to make

moral decisions. Also somewhat unique to the sensemaking

approach is the proposition that ethical decision-making is

contingent upon the leader’s mental model as well as their

understanding of the situation. More directly, leaders that

do not recognize an ethical dilemma are unlikely to address

the issue appropriately. This acknowledgement is inter-

esting from a process perspective in that it provides prac-

titioners with a reasonable starting point for developing

trainable skill-sets and strategies to improve ethical deci-

sion-making.

Finally, the work of Koning and Waistell (2012)

examine a number of process-oriented constructs—most

notably the issues of identity and time. Utilizing a case-

study approach, the authors examined one Chinese busi-

nessman operating in Indonesia as he makes a transition

from keeping religion and business-decisions wholly sep-

arate in his life, to integrating the two by using religion to

guide business practice. In this transition, the authors

propose that the leader has become more ethically minded,

drawing on religion as a moral code to drive ethical deci-

sion-making in his organization. The article by Koning and

Waistell is noteworthy for a number of reasons, but perhaps

most critical to the discussion here in that it describes in

great detail the aforementioned transition taken by a

business leader. The case-study approach, albeit one that

was integrated with a number of other interviews with

additional businessmen, permits rich discussion and

description, supplementing the more quantitatively driven

articles in the special issue.

Outcomes of Ethical Leadership

Turning now to the outcomes investigated, the immediate

observation is that they vary substantially across manu-

scripts. Thiel et al. (2012) for example, frame ethical

decision-making itself, as the primary outcome of interest

in their article. Contrast this with the study of Avey et al.

(2012) who examined more traditional organizational

constructs such as psychological well-being and job satis-

faction, while Den Hartog and Belshack (2012) examined

employee initiative and counterproductive work behavior.

At a broad level, the efforts of the special issue suggest

that behaving ethically benefits a wide range of organiza-

tional outcomes. That is, the sole outcome of ethical

leadership is not, simply, ethical actions or role-modeling

on the part of a leader and follower. Rather, leaders who

operate in an ethical manner produce more satisfied and

happy employees who are less likely to behave in coun-

terproductive ways. The pattern of findings in these articles

is consistent with the review by Brown and Mitchell (2010)

who note that ethical leadership is related to employee

commitment, willingness to report problems, willingness to

put in extra hours and positive perceptions of work climate.

At more macro levels of analysis, ethical leadership has

also been associated with perceptions of task significance

and follower effort as well as top management team

effectiveness (De Hoogh and Den Hartog 2008). On the

whole, such findings underscore the central theme that

ethical leadership produces a wide range of complex ben-

efits to organizations.

Moderating Factors

Having touched on the definitions of ethical leadership, the

processes comprising it, as well as the outcomes of ethical

leader behavior, I will comment briefly on the moderating

factors shaping the conditions under which ethical leader-

ship will be more or less effective in impacting key orga-

nizational outcomes. The article that addressed this point

most directly was Den Hartog and Belschak (2012) who

examined inauthentic behavior, quantified as Machiavel-

lianism, as a moderator in their proposed model. This

finding was one of the more interesting in the special issue

in that it reveals the subtle nature of behaving ethically. It

(Un)Ethical Leadership and Identity 81

123

is not enough, it seems, to simply engage in displays of

ethical or moral behavior. Instead, a leader must do so in a

way that is perceived as genuine or part of their core

identity. The authors were able to demonstrate that sub-

ordinates can pick up on these subtle differences and that it

impacts how engaged employees are in their work.

Emergent Themes

Stepping back a bit and considering the aggregate of the

special issue, it is apparent that several common themes tie

the contributions together. While engaging in this attempt at

synthesis, however, it became clear that each article takes a

somewhat unique approach to the study and conceptuali-

zation of ethical and unethical leadership. These unique

approaches were sometimes complementary, adding and

extending to the other articles in the special issue. Other

times, the articles seemingly conflicted with one another on

a number of conceptual levels. I will begin, then, by con-

sidering three common themes across articles before

acknowledging the conflicts and diverging viewpoints.

Common Themes

Complexity

The first emergent theme is one of complexity. From defi-

nitional issues raised by Unal et al. (2012) to the role of

religion in ethical leadership (Koning and Waistell 2012) it

is clear that ethical and unethical leadership are complex

phenomena. The point is underscored by Den Hartog and

Belschak (2012) and Avey et al. (2012) who took a seem-

ingly similar approach to understanding ethical leadership

by developing and testing process (i.e., meditational) models

within applied settings. Despite the similar approaches,

unique mediators and outcomes were examined with strong

empirical support being observed for models in each study,

respectively. Finally, Thiel et al. (2012) note the complex

cognitive and contextual factors driving ethical decision-

making. On the whole, then, each article acknowledges in

its own unique way that what is ethical leadership and how

it impacts organizational outcomes is hardly a simple

phenomenon.

Importance of Ethical Leadership

Despite high levels of complexity, each article in the special

issue highlighted the fundamental importance of the

research area. Den Hartog and Belschack (2012), for

example, demonstrated that ethical leadership can result in

greater employee initiative as well as reduced counterpro-

ductive work behaviors. In a distinctly different fashion

Koning and Waistell (2012) demonstrated just how strongly

a focus on religion and morality can impact decision-

making in business settings. Underlying all of the articles is

the argument that leaders who operate unethically can sig-

nificantly and substantively harm their organizations. More

positively framed, those leaders who operate ethically have

the potential to shape attitudes and behaviors in beneficial

ways. The study of ethical leadership, it seems, is a valuable

endeavor worthy of growing research attention.

Criticality of Process

The final emergent theme across articles is the importance

of process in understanding ethical leadership. I was

impressed with the commitment to rich conceptual devel-

opment in each article aimed at not only identifying

important outcomes of ethical leadership, but also the fac-

tors driving the occurrence of it (e.g., Thiel et al. 2012) as

well as the activities comprising it. Based on the findings of

this special issue, ethical leadership impacts organizational

outcomes by making employees more engaged, permitting

them greater expression of voice, and increasing psycho-

logical ownership (Avey et al. 2012; Den Hartog and

Belschack 2012). Choices on ethical decisions, moreover,

seem to be driven by an understanding of the context filtered

through a leader’s mental model (Thiel et al. 2012). Finally,

the shift from unethical to ethical leader can result from a

key relationship or event occurring in their lives (Koning

and Waistell 2012). The clearly emergent theme is that we

have moved beyond simply suggesting ethical leadership is

a positive phenomenon for organizations. As the articles

demonstrate quite well, we have begun to understand how

and why this occurs.

Conflicting Themes

In addition to the more common themes emerging from the

collection of articles, there are a number of noteworthy

conflicts as well. I will discuss three of these apparent

conflicts: 1) ethical versus unethical leadership, 2) stable

versus dynamic definitions, and 3) rational versus intuitive

decision-making.

Ethical Versus Unethical Leadership

Mentioned briefly earlier in the article, Unal et al. (2012)

chose to focus on the normative foundations of unethical

leadership. This framing stands in contrast to the focus on

ethical leadership more commonly found in the literature

(e.g., Brown and Trevino 2006; Trevino et al. 2000; Sha-

ubroeck et al. in press). Interestingly, the articles in this

special issue tended to emphasize ethical rather than

unethical leadership—with the exception, of course, of the

82 S. T. Hunter

123

study by Unal and co-authors. There is some evidence that

the antecedents of ethical leadership are not merely the

absence or polar opposites of those that drive unethical

leadership. Instead, there may be a unique set of antecedents

for each framing. For example, Tepper et al. (2006) utilized

social exchange theory to explain why leaders’ increased

feelings of powerlessness led to more aggressive behavior

directed at subordinates. There is no current research evi-

dence, however, to suggest that higher levels of power-

lessness would result in greater ethical leadership.

Similarly, although there has been relatively little work

done on the antecedents of ethical leadership (see Brown

and Mitchell 2010 for a discussion) there is some indication,

for example, that personality traits such as agreeableness

and conscientiousness are predictive of ethical behavior

(Walumba and Shaubroeck 2009). It seems that other per-

sonality traits, in contrast, would be more predictive of

unethical leadership. In one of the few cases examining both

frameworks simultaneously, Detert et al. (2007) found that

abusive supervision—but not ethical leadership—was

related to counterproductive work behavior.

The question that emerges, then, is which framing

warrants the collective focus of leadership scholars? That

is, if one chooses to study ethicality and leadership, which

characterization should be chosen as a theoretical frame-

work? The little evidence that exists suggests that both are

important, given their unique relationships with organiza-

tional outcomes. Although admittedly speculative, given

the present state of the literature I presently see greater

value in a focus on unethical behavior given the potential

for harmful outcomes that may occur as a result. There is

an old Russian proverb that says a spoonful of tar can ruin a

barrel of honey, but that a spoonful of honey has little

impact on a barrel of tar. Leaning on such an analogy, it

would seem that the potential for harm might outweigh the

potential for good emerging from ethical leadership. Thus,

while I see value in a more positivist-framed approach to

ethical leadership, I see perhaps greater research utility in

the darker framing of unethical leadership.

Stable Versus Dynamic Definition

In the case-study analysis of the Chinese businessman

conducted by Koning and Waistell (2012) the authors

suggested that an emergent focus on religion was respon-

sible for a change in how the leader operated his business.

That is, religion served as a newfound moral compass. I

would like to extend this argument beyond what the authors

explicitly noted—alleviating them from any speculation I

personally offer—and suggest that a reliance on religion for

framing ethical leadership stands in contrast to the more

normative (i.e., dynamic) approach to ethical leadership.

Although religious and spiritual interpretation will vary,

there would appear to be some level of consistency or

standard by which moral behavior is measured. The primary

texts (e.g., Christian Bible, Quran) have remained largely

the same—or at least similar—for thousands of years. Thus,

to be direct, ethicality bound by religion would appear more

stable than a strictly normative definition of ethical lead-

ership such as those offered by Unal and co-authors as well

as Brown and Mitchell (2010). A normative approach

concedes that morality and ethicality are dictated by what

the collective currently believes to be appropriate. Such a

framing is, by definition, shifting in nature.

The conflict alluded to then, lies is whether both framings

can co-exist or whether they are fundamentally opposed and

a choice must be made about which is most appropriate as a

basis for scholarly investigation. Perhaps more directly, we

might ask ourselves if there is room for hard-and-fast rules of

morality within a more normative framework? Such a debate

has been made by a number of scholars (see Ciulla 1995) and

can also be illustrated by such jarring yet revealing questions

as: Is murder ever acceptable? To some, this question will

elicit normative or shifting responses (e.g., ‘‘in some cir-

cumstances, yes’’). In others the answer will quite readily be

more stable responses (e.g., ‘‘killing is never acceptable’’). It

is beyond the scope of the discussion here to resolve such a

philosophically oriented debate but I will concede that I see

the greatest utility in the normative approach taken by the

vast majority of ethical leadership scholars and acknowl-

edge that even within religious contexts. This suggestion is

based on the evidence that norms do shift (Ricoeur 1974)—

perhaps less so and with less variability in some contexts

(e.g., religion, spirituality). Moreover Koning and Waistell

(2012) illustrate that shifting from one religion to the next

represents a form of religious reinterpretation. Thus, the

bulk of research evidence suggests that it will be beneficial

for leaders to have a strong moral compass, but ‘‘true north’’

will shift from time to time.

Rational Versus Intuitive Ethical Decision-Making

The third and final conflict emerging across the collection

of articles is the focus on unconscious processes versus

rational decision-making. The cognitive perspective taken

by Thiel and colleagues suggest that ethical decision-

making is not a wholly rational process (Sonenshein 2007).

Rather, intuition and non-conscious processes impact

choices made during ethical dilemmas. Such a framework

stands, at least on the surface, in contrast to more norma-

tive and rational approaches to ethical leadership. Den

Hartog and Belschack (2012), for example, discuss role-

modeling behavior as a critical aspect of ethical leadership.

Leaders are theorized to express their beliefs and values to

subordinates, serving as models for appropriate behavior.

Similar theoretical frameworks have been used by scholars

(Un)Ethical Leadership and Identity 83

123

such as Shaubroeck et al. (in press), who directly investi-

gated the impact of leader role-modeling across multiple

levels of analysis. Implicit in this approach is that leaders

are aware of their beliefs and values and choose to express

them when the situation requires it. That is, leaders ratio-

nally choose to behave ethically as a tool of leadership.

Careful inspection of these two approaches to under-

standing ethical leader outcomes reveals that this conflict

may be more superficial than might appear upon initial

inspection. The sensemaking approach taken by Thiel and

colleagues is useful in understanding how value and ethical

decisions are made. That is, a cognitive approach provides

guidance as to whether a leader is aware of an ethical

dilemma and whether it violates their internal value sys-

tem. By understanding when, and under what conditions,

leaders are able to make rational choices we can develop

more accurate models for

ethical and unethical leadership.

Put another way, a sensemaking approach serves as a

useful antecedent to the more rational approaches taken by

Den Hartog and Belschack (2012), Avey et al. (2012) and

others. Thus, it would seem that an integration of intuitive

and rational perspective would provide a more complete

picture of why ethical decisions are made and the impact

they have on subordinates.

Future Areas in Need of Investigation

Having discussed the unique contributions, common

themes and conflicting perspectives, I turn now to a dis-

cussion of where future research appears warranted. It

should be noted that the list is not, by necessity, all-

inclusive and instead represents a truncated discussion of

key areas of future research.

Time

Longitudinal investigation is an often-cited area in need of

greater investigation (Bluedorn and Jaussi 2008) and such a

recommendation rings particularly true with regard to

ethical and unethical leadership (Brown and Mitchell

2010). For example, Mitchell and Palmer (2010) propose

that ethical behavior, sustained over time, can increase a

leader’s confidence to engage in ethical behavior in the

future. Similarly, although there is some evidence to sug-

gest that individual differences are related to ethical lead-

ership (e.g., Walumba and Shaubroeck 2009) investigation

of the early life developmental experiences shaping a lea-

der’s mental models would appear warranted (Ligon et al.

2008). On the whole, more needs to be learned about how

long the impact of ethical and unethical behavior lasts as

well as the nature of the development process shaping

ethical leader emergence.

Identity

The collective articles in the special issue excelled in a

number of ways, particularly with regard to describing the

complex processes comprising ethical and unethical lead-

ership. With the exception of Koning and Waistell (2012)

the issue of leader identity was largely omitted by the

collective authors. This is not to suggest that the issue of

identity was not discussed in any fashion by the collective

authors, yet identity was a minimal focus of the articles.

Let me be clear that this is not a criticism levied against the

scholars but rather an observation that the role of identity in

shaping ethical decision-making is an area in need of fur-

ther investigation.

Recovery from Ethical Violations

One of the more interesting areas emerging in the leader

error and ethical violation literature is recovery from such

instances (e.g., Kim et al. 2004, 2006). We must bear in

mind that the impact of ethical violations does not end at

their occurrence—there are subsequent and rippling

repercussions for such violations. More to the point, there

is growing evidence to suggest that some leaders are able to

recover from violations while others fall further from grace

(Finkelstein 2003).

Scholars have begun to outline the various approaches

leaders can take to attempt to recovery from ethical viola-

tions. Kim et al. (2004), for example, found some support

for apologies from leaders but only under specific condi-

tions of evidence for their violations. Tsai et al. (2010) also

found evidence in support of apology when errors were

integrity based. There is some conflicting evidence, how-

ever, suggesting that apologies may not always be effective

and may actually hamper perceptions of leader competence

(Cushenbery 2010). On the whole, this collection of studies,

and others like it (e.g., Tyler et al. 2006; Weiner et al. 1987)

suggest that there is room for greater understanding how

and why leaders are able to recover from ethical violations

is an increasingly critical and fruitful area of research.

Subordinate Individual Differences and Experience

It seems reasonable to suggest that how subordinates view

a leader’s ethical or unethical behavior may depend on a

number of individual differences. For example, subordi-

nates with strict moral standards may be highly upset by

ethical violations on the part of leaders while those with

more flexible ethical outlooks might view violations more

leniently. Similarly, it is important to bear in mind the

relationship history between leader and follower when

considering how an employee may react to a leader vio-

lation of ethical standards. More leeway may be given, for

84 S. T. Hunter

123

example, to a leader who has a positive, long-term rela-

tionship with a follower.

In addition, it is important to acknowledge that leader-

ship is not merely a top-down phenomenon. As work on

leader member exchange has demonstrated (e.g., Danse-

reau et al. 1975; Graen and Uhl-Bien 1995; Gerstner and

Day 1997), subordinates also have the potential to influ-

ence leaders just as leaders have the capacity to shape

subordinate behavior and cognition. Thus, subordinates

who behave in an ethical manner may subtly or not so

subtly shape a leader’s predilection to ethical violation.

Moreover, subordinates who implicitly comply with ethical

violations on the part of the leader may indicate, on some

level, that they support the leader resulting in a greater

propensity for ethical violation (Padilla et al. 2007). On the

whole, the above suggests that research effort would be

well spent on investigating the role of the subordinate in

ethical and unethical leadership.

Leader Characteristics

Hunter et al. (2011) provided a multilevel review of the

antecedents driving poor leader decision-making. At the

individual level, we proposed that drivers of leader errors

included a number of individual differences. For example,

leaders with a high need for closure were more likely to

rush decision-making and fail to adequately assess all

viable options. High degrees of efficacy, moreover, may

result in overconfidence on the part of the leader and result

in poor decisions. Along similar lines, Walumba and

Shaubroeck (2009) found that agreeableness and consci-

entiousness were related to ethical decisions. Although

other examples exist, the above should suffice to indicate

that choices on behaving ethically may differ depending on

a collection of leader characteristics. Work here is limited,

however, particularly with regard to specific investigation

of ethical decision-making (Brown and Mitchell 2010) and

more effort is needed.

Normative Shifts

A common thread throughout the article has been the dynamic

nature of what constitutes ethical behavior (see Unal et al.

2012). As argued, the normative grounding appears warranted

and, indeed, necessary to understand both the antecedents and

mechanisms of ethical and unethical leader behavior. What

remains largely unstudied, however, is what shapes these

normative shifts. That is, if a leader behavior is viewed as

unethical at one point in time and ethical at another—what

causes this shift? Brown and Mitchell (2010) discuss the

universality of ethicality, noting the cultural differences in

how we view leadership and lament the lack of research on

how cultures shape ethical views.

Ethicality of Peer Leaders

An additional area of leadership that has been largely

ignored is the impact of other leaders (i.e., peer leaders) on

leader and subordinate behavior (Hunter et al. 2007). For

example, it is unclear how subordinates would respond to

an ethical violation by one leader if other leaders were also

behaving ethically. Conversely, responses to ethical vio-

lations may differ if other organizational leaders operate in

an ethically sound manner. Moreover, in addition to sub-

ordinate reactions, it is unknown how an ethically sound

leader might be influenced by unethical leader peers (or

vice versa). As organizations continue to flatten and peers

become more common in leadership circles, such influ-

ences would appear an important area of investigation.

Other Stakeholders (Customers, Clients, Suppliers)

Similar to the influence by peer leaders, more work is

needed in investigating how stakeholders shape ethical

behavior (Brown and Mitchell 2010). The outsourcing of

labor by many organizations suggests that relationships

with suppliers and partners are growing in complexity,

need, and degree of interconnectedness. Toleration for

ethical violations by leaders in a partner organization, for

example, may be higher if business relationships are tightly

bound. Suppliers and partners, however, are not the only

external influence in need of greater investigation. Cus-

tomers and clients can have a significant influence on the

acceptability and tolerance for ethical behavior as well.

Conclusion

As I noted in the introduction, the special issue was suc-

cessful on a number of levels. The articles were impressive

in the range of topics discussed and the approaches taken.

On the whole, the articles contribute to the literature on

ethical and unethical leadership in substantive and im-

pactful ways. In particular, the articles addressed key issues

of definition (Unal et al. 2012) as well as the processes

comprising how ethical behavior impact important orga-

nizational outcomes (Den Hartog and Belschack 2012;

Avey et al. 2012). Thiel and co-authors provided unique

insight into the cognitive factors driving ethical decision-

making, offering a number of trainable strategies that aid in

developing ethical leaders. Finally, Koning and Waistell

(2012) provide an interesting perspective on how business

leaders may shift their identities in ethicality. The collec-

tion of articles underscores the complexity surrounding

ethical and unethical leadership, as well as the importance

of understanding the phenomena. I concluded the discus-

sion by touching on a number of areas that warrant future

(Un)Ethical Leadership and Identity 85

123

investigation, including issues of time, leader characteris-

tics, and drivers of normative shifts in perceptions of eth-

ical behavior. I hope that the effort was worthwhile and

motivates others to continue the important work in this

critical research arena.

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c.10551_2012_Article_1301

(Un)Ethical Leadership and Identity: What Did We Learn and Where Do We Go from Here?
Abstract
Introduction
Highlights Across Contributions
Defining Ethical and Unethical Leadership
Processes of Ethical Leadership
Outcomes of Ethical Leadership
Moderating Factors
Emergent Themes
Common Themes
Complexity
Importance of Ethical Leadership
Criticality of Process
Conflicting Themes
Ethical Versus Unethical Leadership
Stable Versus Dynamic Definition
Rational Versus Intuitive Ethical Decision-Making

Future Areas in Need of Investigation
Time
Identity
Recovery from Ethical Violations
Subordinate Individual Differences and Experience
Leader Characteristics
Normative Shifts
Ethicality of Peer Leaders
Other Stakeholders (Customers, Clients, Suppliers)
Conclusion
References

Identity, Self-Awareness,

and Self-Deception: Ethical Implications

for Leaders and Organizations Cam Caldwell

ABSTRACT. The ability of leaders to be perceived as

trustworthy and to develop authentic and effective rela-

tionships is largely a function of their personal identities

and their self-awareness in understanding and making

accommodations for their weaknesses. The research about

self-deception confirms that we often practice denial

regarding our identities without being fully aware of the

ethical duties that we owe to ourselves and to others. This

article offers insights about the nature of identity and self-

awareness, specifically examining how self-deception can

create barriers to self-awareness within both a personal

and a business context.

KEY WORDS: identity, self-deception, self-awareness,

ethical leadership, mediating lens, emotional intelligence

For more than three millennia, ‘‘knowledge of the

self has been considered to be at the very core of

human behavior’’ (Whetten and Cameron, 2007,

p. 58). Personal identity and self-awareness have

been identified as critical elements of effectiveness in

creating relationships with others (Albrecht, 2006;

Goleman, 2006a, b). Despite the importance of self-

knowledge in our lives, we are often unknowingly

and unintentionally guilty of self-deception (War-

ner, 2001) – with a potentially devastating impact on

our own lives and on others (Boyatzis and McKee,

2005).

The purpose of this article is to offer insights

about the nature of identity and self-awareness,

specifically examining how self-deception can create

barriers to self-awareness and conflict with one’s

identity. Section ‘‘Identity, self-awareness, and self-

deception’’ of this article draws on the academic

literature about identity and self-awareness at the

personal level and explains the construct of self-

deception and how it occurs. Section ‘‘Ethical duties

to self’’ presents five specific ethical implications

associated with self-deception. Section ‘‘Implications

for business’’ identifies how an understanding of

identity, self-awareness, and self-deception applies

within a business context. Section ‘‘Contributions

and future research’’ concludes by listing the con-

tributions of this article and opportunities for future

research about identity-related issues.

Identity, self-awareness, and self-deception

One’s identity defines how an individual affirms his/

her worth to others and to self (Ashforth and

Johnson, 2001; Sluss and Ashforth, 2007). Josselson

(1994, p. 82) indicated that identity is at its core

psychosocial, as an ‘‘expression of self, for, with,

against, or despite; but certainly in response to

others.’’ One’s individual identity is a set of mean-

ings applied to the self within a social role or situa-

tion that determines what it means to be who one is

(Burke and Tully, 1977, p. 883). This set of mean-

ings may be complex and ‘‘serves as a standard or

reference’’ for evaluating oneself and one’s behaviors

(Burke, 1991, p. 837). Brewer and Gardner (1996)

explained that identity orientation may be at a

Cam Caldwell obtained a PhD from Washington State

University where he was a Thomas S. Foley Graduate

Fellow. He writes about ethical duties of leaders and orga-

nizations in expanding the ability of organizations to increase

employee commitment and long-term wealth creation. He is

currently Visiting Professor in the College of Business at

Texas A & M University – Corpus Christi.

Journal of Business Ethics (2009) 90:393–406 � Springer 2010
DOI 10.1007/s10551-010-0424-2

personal (internal), relational (dyadic), or collective

(group or organizational) level. At the organizational

level, Albert and Whetten (1985) conceptualized

identity as encompassing the central, enduring, and

distinctive attributes of an organization. At the per-

sonal or individual level, identity also encompasses

those central, enduring, and distinctive attributes of

an individual (Berger et al., 2006).

Academic discourse can depersonalize identity

and fail to acknowledge the deeply personal

importance of self-image (Lyubomirsky et al., 2006;

Schiraldi, 2001) and the critical nature of self-

assessment in evaluating our sense of worth and

personal happiness (Langer, 1999; Strauss, 2005).

How we act in specific situations is reciprocally re-

lated to one’s identity, the roles that we have iden-

tified as important, and the congruence between our

behavior and how we believe we ideally should

behave (Burke and Reitzes, 1981). Social identity is

correlated with individual identity and deals with

one’s perceived role as a member of a group as

opposed to one’s identity as a unique individual

(Stets and Burke, 2000). Flynn (2005) suggested that

identity at the personal level was validated by

comparing the self to others and by confirming one’s

identity in context with how one believes (s)he is

perceived by others.

Moral identity is also a fundamental part of who

we are (Flanagan, 1991, p. 18) and encompasses our

efforts to answer the three following questions: (1)

‘‘what is the right thing to do?’’ (2) ‘‘how is the best

possible state of affairs achieved?’’ and (3) ‘‘what

qualities make for a good person?’’ (Hart, 2005, pp.

166–168). Moral behavior is behavior which

addresses ethical duties (Hosmer, 2007) and is

socially responsible (Reed et al., 2007, p. 179).

Moral identity encompasses the traits, feelings, and

behaviors that an individual includes in his/her self-

definition (Aquino and Reed, 2002; Brewer and

Gardner, 1996). The degree to which an individual

views moral duties is the most important determi-

nant as to the likelihood that beliefs will be translated

into actions (Reynolds and Ceranic, 2007, p. 1610).

Reflecting on moral duties is critical to moral

decision making and congruent behavior (Kurpis

et al., 2008; Warner, 2001). Lennick and Kiel (2008,

p. 209) suggest that moral intelligence encompasses

three key responsibilities: (1) the responsibility to do

no harm; (2) the responsibility to add current value;

and (3) the responsibility to add future value. Moral

identity adds to our sense of who we are by artic-

ulating the degree to which we feel responsible for

self, family, employer, community, and the other

key stakeholders to whom we owe duties (Caldwell

et al., 2008; Reynolds, 2008).

Powers (1973) suggested that when people per-

ceive their identities they implicitly create a feedback

loop which they use to monitor and control their

behaviors. Carver and Scheier (1981) developed a

model of self-regulation and self-control that is used

– both consciously and sub-consciously – to evaluate

and control our behaviors. In describing how iden-

tity is heavily dependent on an ongoing comparison

with an ideal standard of behavior, Burke (1991,

p. 838) provided the model shown in Figure 1.

According to identity control theory, when an

identity is established, a feedback loop is created

which has four components (Burke, 1991). The

identity cycle begins with the actions and mean-

ingful behaviors, which make up the output of an

identity (Burke, 1991). This output is an attempt to

adjust individual behaviors to match the ideal

internal standard which makes up how we view

ourselves (Burke, 1991). Our behavior occurs within

Figure 1. Identity process control system.

394 Cam Caldwell

the context of a social situation. Typically, we use self-

categorization and social comparisons from the

feedback we receive from others to anticipate how

to act (Stets and Burke, 2000). From the reflected

appraisals of others, we perceive evaluated input, or

our interpretation of how our actions and behaviors

fit within the situation in which we have been en-

gaged (Burke, 1991). Our interpretation of those

appraisals is heavily influenced by the roles we his-

torically play in groups (Stets and Burke, 2000). The

identity standard is the ideal or comparator which makes

up our expectations that are associated with self-

defined roles which incorporate how we have de-

fined ourselves and who we believe we ultimately

are (Stets and Burke, 2000).

The process of self-assessment in evaluating our

behavior is a complex calculus (Creed and Miles,

1996), typically occurring at the unconscious and

sub-conscious levels (Weick, 1979) that we use to

control our behavior to comply with whom we

believe we are (Carver and Scheier, 1981; Stets and

Burke, 2000). As Stets and Burke (2000, p. 225)

summarized, ‘‘the core of an identity is the catego-

rization of the self as an occupant of a role, and the

incorporation, into the self, of the meanings and

expectations associated with that role and its per-

formance.’’ In the self-assessment process, we com-

pare ourselves to others who are both like us and

different from us in determining our self-image and

identities (Hafner, 2004). Reid and Deaux (1996)

found that our social and personal identities may

integrate both our self-perceptions and the attributes

that make up those identities.

Whereas identity explains who we believe we are

(Flanagan, 1991), self-awareness includes the degree

to which we are sensitive to how we are perceived

by others (Fletcher and Bailey, 2003). Self awareness

theory ‘‘suggests that individuals who are more

cognizant of how they are perceived by others are

better at incorporating information from others into

their self-appraisals, and, ultimately, into their

behavior’’ (Moshavl et al., 2003, p. 407). Identity

and self-awareness are closely related constructs,

with one’s identity being influenced by how one

perceives duties and roles related to stakeholders

and society (Stets and Burke, 2000). Applying

identity and self-awareness to leadership effective-

ness, Ashford (1989) explained that a leader’s

awareness of how subordinates perceived him/her

had important consequences. Leaders are able to

become more effective when they demonstrate that

they are receptive to feedback from others (Kouzes

and Posner, 2007). Self-awareness is a fundamental

element of emotional intelligence and is critical to

our ability to communicate with and build rela-

tionships of trust with others (Goleman, 2006a, b;

Whetten and Cameron, 2007). Individuals high in

self-awareness are skilled at self-monitoring and in

adapting their behaviors to relate effectively with

others (Shivers-Blackwell, 2006).

Self-awareness involves having ‘‘a deep under-

standing of one’s emotions, as well as one’s strengths

and limitations and one’s values and motives’’

(Goleman et al., 2002, p. 40). Self-awareness incor-

porates the self-reflection capacity and thoughtfulness

that Covey (2004) declared as necessary to discover

one’s voice and incorporates the ability to understand

one’s true nature and the freedom to choose how one

consciously wishes to respond to life. Goleman et al.

(2002, p. 40) placed high value on the ability ‘‘to think

things over rather than react impulsively’’ and

acknowledged this sensitivity to context and values to

be a foundation for personal competence that enabled

people to develop a clear understanding of the prin-

ciples that ultimately form the basis of how they wish

to live.

Boyatzis and McKee (2005) have noted that

under times of stress, individuals become less self-

aware and miss the signs from others that enable

them to be effective in managing themselves and

their relationships. Even skilled leaders who recog-

nize the importance of tuning into the nuances of

interpersonal relationships fall prey to the compelling

problems, uncertainty, and often uncontrollable sit-

uations that highjack our physiological responses,

exponentially increase stress, and cause inevitable

self-awareness dysfunction (Dickerson and Kemeny,

2004). Sankar (2003) suggested that self-awareness

and effective leadership required character in care-

fully examining the consistency of one’s personal

attributes and behaviors in relationships with others.

The problem of congruence in how we assess

ourselves is essential to self-awareness, one’s indi-

vidual identity, and self-deception. As a form of

cognitive dissonance, self-deception has been

described as a discrepancy between the way in

395Identity, Self-Awareness, and Self-Deception

which one knows she/he ought to act and how one

actually behaves (Festinger, 1957). Brown and

Starkey (2000) described self-deception as one of

many ego defense mechanisms that enabled one to

maintain self-esteem and the continuity of one’s

identity. Defense mechanisms such as projection,

displacement, undoing, isolation, sublimation, and

denial are virtually universal phenomena (Baumei-

ster, 1998) and lead to feedback-avoiding behavior

(Moss and Sanchez, 2004). Kunda (1990) suggested

that anticipating a desired conclusion and viewing

the world through a self-serving bias can directly

affect the way in which people gather evidence and

reach conclusions.

In discussing the nature of our mental models and

pre-conceptions, Newman (1999, p. 60) explained:

When people assess the evidence available to them

when they make judgments and decisions about

important people, relationships, places, things, or is-

sues, they may quickly (and happily) conclude that

their pre-existing preferences are supported by the

facts. At other times, the evidence may point in the

opposite direction. A number of studies now indicate

that this unpleasant psychological situation does not

necessarily directly launch one into a search for pref-

erence-consistent information. Instead, it instigates a

different reaction that indirectly leads people to their

preferred conclusions: It leads to a more extensive

search for and analysis of relevant information … In
plain language, discovering that one’s preconceptions

might be wrong is a cause for concern. That affective

reaction, in turn, causes an increase in the intensity of

cognitive processing, and that extra processing can

potentially turn up new evidence that is more con-

genial to one’s directional goals.

This tendency to believe in faulty preconceptions is

consistent with several types of self-deception

identified by Siegler (1962). Siegler (1962) identi-

fied eight rationalizations that frequently occur as

part of self-deception. Those eight perceptions and

their respective meanings are briefly summarized

below:

1) A pretense to others. Claiming prior knowledge

about the likelihood of an uncertain out-

come may be either a rationalization or an

attempt to look good in others’ eyes.

2) Discount of a failure. Claiming to have known

in advance that failure was likely may be an

attempt to persuade oneself that one truly

knew about an uncertain probability.

3) Articulation of past fears. Unwillingness to deal

with uncertainty may result in claiming fore-

knowledge of a likely failure – but after that

disappointment actually occurs.

4) Inability to understand. Although evidence of a

fact contrary to what we may want to be-

lieve may be present, our failure to acknowl-

edge a situation may legitimately reflect

something we can not emotionally deal with

or understand.

5) Wanting reality to be different. One’s biases af-

fect how we see the world and affect the

formation of our beliefs so powerfully that

we get dissuaded by wishful thinking.

6) Intentional averting of attention. We know

intuitively that something is unbearably dis-

tressing and deliberately avoid addressing a

painful issue so that we do not have to deal

with it.

7) Resolving to change. At times, we acknowledge

that we have not dealt with issues that we

ought to have addressed in the past.

8) Acknowledged regret. We may express the fact

that we should have been attuned to key infor-

mation in the past, but overlooked key clues.

Understanding exactly how we engage in self-

deception can enable us to avoid those tendencies

that erode relationships with others and that

lower our self-esteem (Covey, 2004; Goleman,

1985; Warner, 2001; Whetten and Cameron,

2007).

Fingarette (2000) suggested that the intent of self-

deception is often an attempt to cope with the

frustrations of life and to create meaning where

incongruity seems to exist. In writing about self-

deception as a coping mechanism, Goleman (1985,

pp. 12–18) explained that self-deception was often a

sub-conscious effort to avoid pain and anxiety,

skewing our conscious awareness by filtering out

painful information. Smith (2004, p. 3) described

self-deception as ‘‘vital for psychological equilib-

rium’’ in enabling people to ‘‘soothe many of the

stresses of life.’’ Maslow (1962, p. 57) reminded us

that we deny reality and practice self-deception and

similar defenses because ‘‘we tend to be afraid of any

knowledge that would cause us to despise ourselves

396 Cam Caldwell

or to make us feel inferior, weak, worthless, evil,

shameful.’’

Peck (1983, pp. 104–105) noted that frequently

those who deceive others or themselves do so

unwittingly and, often, without a conscious aware-

ness of their motives for their deceptions. Philoso-

pher and theologian Buber (1980, p. 11) commented

about the subtle nature of self-deception in writing

about ‘‘the uncanny game of hide and seek in

the obscurity of the soul, in which it, the single

human soul, evades itself, avoids itself, hides from

itself.’’ Peck (1983, p. 119) describes our efforts in

‘‘defending and preserving the integrity of our own

sick selves’’ as inherent within the definition of evil

and suggests that a by-product of self-deception is to

destroy the spiritual growth and welfare of ourselves

and/or others. Self-deception is a warping of per-

ception that elevates a distorted view of reality and

self-interest above the desire for the truth (Peck,

1983, p. 121). The great danger of this warped view

of reality is that those who practice it are unable to

identify how they can create relationships healthy to

themselves and to others and are insensitive to the

feedback that the world offers (Boyatzis and McKee,

2005).

One of the foremost means of self-deception is to

treat others as an object or a means, rather than as a

valued individual or end (Warner, 2001, p. 46).

Citing the study of Buber (1971), Warner explained

that our identities and our relationships with others

becomes distorted when we reduce people to

commodities or objects. People lose their unique

value, and we destroy our ability to create life-

enhancing relationships that betray both ourselves

and others (Warner, 2001, pp. 50–53). Buber (1971)

had noted that when we treat people like an I–It, we

depersonalize them and deny our obligation to them

– as opposed to treating them like an I–You that

acknowledges not only their identity but our moral

duties to them as well. Part of our self-deception,

then, is to deny our humanity and to undervalue the

importance of creating resonating relationships with

others (Boyatzis and McKee, 2005). Ultimately, this

undermining of our ability to create powerful rela-

tionships robs us of the richness of a life that is

personally fulfilling and that enables us to accomplish

our potential – both in terms of serving others and in

becoming what we have the capacity to achieve

(Covey, 2004, p. 5).

Ethical duties to self

Self-deception is a denial of the duty owed to the self

when it causes an individual to avoid confronting the

need to modify one’s behavior (Peck, 1983). The

purpose of this section is to identify five ethical

duties owed to the self which enable individuals to

deal more productively with themselves, with oth-

ers, and with the world around them.

(1): We owe ourselves the duty to understand how vul-

nerable we can be when we are unwilling or unable to

address incongruity in our lives

The ability to confront the realities about life and

about ourselves begins with a willingness to

thoughtfully take a personal inventory of who we

are, what we believe, and the importance of truth in

our lives (Ackerman, 2005). Because self-deception

is implicitly difficult to recognize (Boyatzis and

McKee, 2005), we owe ourselves the duty of

understanding how common self-deception can be

(Fingarette, 2000). In writing about the dissonance

of self-deception, Boyatzis and McKee (2005, p. 47)

describe it as follows:

We end up seeing the world in very black-and-white

terms, and we slowly lose the ability to see ourselves,

or those around us, realistically. We miss a lot. Then,

when things do go wrong, it is very easy to continue to

blame others, and feel sorry for ourselves as things

deteriorate – especially when the downturn feels like a

surprise and follows a period of denial.

The inability to ‘‘define reality’’ (DePree, 2004,

p. 11) and to tune in emotionally to ourselves and to

others is particularly destructive for leaders (Goleman

et al., 2002). Self-awareness includes the ability to

recognize and evaluate what is happening within

oneself and with others, but the most critical com-

ponents of self-awareness and empathy are in how we

respond to and apply information about emotions in

guiding our lives and in building high trust rela-

tionships (Cooper and Sawaf, 1997). Self-deception

results in an inability to care for our own long-term

welfare (Peck, 1983), and short-circuits our ability to

understand reality, resulting in what Albrecht (2006,

p. 34) called ‘‘dumbness and numbness.’’

The consequence of self-deception is to deny

truth and create a reality that masks one’s identity,

397Identity, Self-Awareness, and Self-Deception

destroys trust, erodes relationships, and ultimately

diminishes the quality of one’s life (Mele, 2001).

Recognizing the importance of truth seeking,

integrity, and congruence in our lives is a key

indicator of emotional and spiritual health (Green-

berg, 1985; Peck, 1998), in addition to being

essential in creating relationships of trust (Hosmer,

1996; Kouzes and Posner, 2003; Mayer et al., 1995).

By recognizing how vulnerable we can be to self-

deception, we acknowledge our humanness and

demonstrate a commitment to personal integrity.

(2): In recognizing and identifying self-deceptive behav-

ior, we need to acknowledged the underlying internal factors

that cause us to deny reality

The process of thoughtfully examining the

consistency of our behaviors enables individuals to

explore the beliefs, attitudes, intentions, and motiva-

tions that cause them to be self-deceptive (Taylor,

2006). According to the Theory of Reasoned Action,

behaviors are a by-product of our beliefs, attitudes,

and intentions. Figure 2 shows this relationship.

The Theory of Reasoned Action in Figure 2

shows the interrelated nature of beliefs, attitudes,

intentions, and behaviors (Fishbein and Ajzen, 1975)

while helping to explain the complexity of the

‘‘conceptual calculus’’ used in sense-making associ-

ated with human behavior (Creed and Miles, 1996,

p. 16). Examining the differences between how we

behave and what we claim to believe or intend to do

is essential to understanding ourselves and our

identities (Fishbein and Ajzen, 1975).

Beliefs are cognitive perceptions that ‘‘represent

the information’’ that a person has about an object,

and attitudes are emotional responses that interrelate

constantly with cognitive beliefs (Fishbein and Aj-

zen, 1975, pp. 12–14). Within the context of self-

deception, one’s beliefs and attitudes become sub-

jective interpretations of the self within a complex

world (Jun, 2005). Intentions reflect the articulated

or unarticulated personal motivation that an indi-

vidual will carry out a specific behavior (Fishbein

and Ajzen, 1975, pp. 14–17). Intentions are likely

predictors of actual behavior, but intentions do not

equate perfectly with that behavior. When we be-

lieve that a specific behavior reflects our values but

do not behave congruently with those values, our

actions are dissonant with our beliefs and espoused

intentions.

The eight rationalizations identified by Siegler

(1962) put us in a position of denial about truth in

attempt to adjust to that which is uncomfortable.

Horowitz (1983, p. 136) identified nine predictable

consequences of this denial:

• Avoided associations which short-circuit con-
nections to the event or issue.

• Numbness or the inability to process appro-
priate emotional reactions.

• Flattened response or the constriction of
expectable emotional reactions.

• Dimming of attention or the inability to focus
clearly on thoughts or sensations.

• Daze or defocused attention that avoids
acknowledging the significance of events.

• Memory failure or the inability to recall
events, details, or specific facts.

• Disavowal in thinking or saying that obvious
meanings are not so.

• Blocking through fantasy by avoiding reality
and substituting what might or could be.

The danger of these responses is that they are

palliatives that defer our ability to deal effectively

with reality and move forward in our lives (Gol-

eman, 1985). Understanding the factors that cause us

to deny reality is critical for us to recognize the root

causes of self-deception. Possessing an accurate

assessment of ourselves is critical to goal achievement

and enables individuals to ‘‘inoculate against self-

deception’’ (Taylor, 2006, p. 647).

Beliefs

Attitudes

Intentions Behaviors

Figure 2. Theory of reasoned action.

398 Cam Caldwell

(3): We owe ourselves the duty to thoughtfully examine

our core beliefs and to reflect upon those beliefs on a regular

basis

Examining our core beliefs is fundamental to

developing a clear understanding of our values and

goals and the assumptions upon which those values

and goals are based (Caldwell et al., 2002). A classic

definition of self-deception is that an individual

‘‘believes in two contradictory beliefs’’ at the same

time without acknowledging that a conflict exists

(Mele, 2001, p. 92). The challenge in knowing

ourselves is our willingness to engage ‘‘in objective

self-examination, and also accepting whatever per-

sonal shortcomings’’ that may be uncovered by that

self-examination process (Morris et al., 2005,

p. 1340). The willingness to conduct this self-

examination requires both a personal confidence

and authentic humility, but allows an individual to

more accurately assess the magnitude of the variance

between one’s self-assessment and the evaluations of

others (Rowan et al., 2002).

Caldwell and Hayes (2007) suggested that inven-

torying six core beliefs about self, others, the nature of

the divine, the past, current reality, and the future

were critical to self-assessment and self understanding.

Such an inventory enables one to define reality in

understanding both the self and one’s duties to others.

Formally going through the process of identifying key

issues from the perspective of these six core beliefs

provides an opportunity to raise our understanding

about these issues from the unconscious to the con-

scious level – a process that is essential to confronting

our self-

deceptions (Mele, 2001).

Goffee and Jones (2006) observed that our

responsibility to achieve self-knowledge and the self-

awareness associated with how we are observed by

others is a key to becoming more authentic and to

knowing our identities. Ackerman (2005) has iden-

tified the importance of clarifying and understanding

our core beliefs as a critical element to self-under-

standing, goal achievement, and the undertaking of

self-correcting action – including the vital process of

understanding how we deceive ourselves. Gilovich

(1991) noted that our ability to accurately view the

world requires that we understand ourselves and our

preconceived biases that cause us to distort reality.

Goleman (1985, p. 106) has explained that each

individual sees the world through a ‘‘schema (which)

implicitly selects what will be noted and what will

not.’’ Understanding who one is and what one be-

lieves allows an individual to be aware of blind-spots

that can distort reality, impair relationships and

decision quality, and severely impact the quality of

one’s life (Goleman, 1985).

(4): We have the responsibility to evaluate the stresses

that cause us to become vulnerable to self-deception,

acknowledge those stress factors, and seek to mitigate the

potentially destructive influences of stress in our lives

People avoid the discomfort of information that

conflicts with their preferred view of the world by

an unconscious effort to minimize anxiety (Smith,

2003). Goleman (1985, p. 22) has explained that self-

deception occurs in three steps: (1) the mind seeks to

protect itself against anxiety by dimming awareness;

(2) this dimming mechanism creates a blind spot or a

zone of blocked attention and self-deception; and (3)

these blind spots occur at each major level of

behavior from psychological to social. The mind

unconsciously warps reality in self-deception,

including how one views the self and one’s role

within a specific context to create a version of reality

that reduces anxiety by pretending that an anxiety-

producing alternative reality does not exist – even

when evidence of that alternative reality is present

(Litz, 2003).

The mind tunes out threats ‘‘to short-circuit stress

arousal’’ in situations where anxiety has become so

painful that the unconscious mind believes that it

cannot cope (Goleman, 1985, p. 43). In writing

about the internal conflicts created by self-deception,

Sartre (1956) examined the spiritual conflict present

within the human soul. He observed that the

unacknowledged conflict between contradictory

beliefs amounted to a surrendering of one’s integrity

as the reflective consciousness suffers an ‘‘inner dis-

integration in the heart of being’’ (Sartre, 1956,

p. 70). Covey (2004, p. 53) has reminded us that our

inability to honor our moral conscience is spiritually

destructive and makes it impossible to fulfill our

identity and find our voices. Thus, our obligation to

the self is to attempt to understand and mitigate

stresses in an effort to maintain the moral and

spiritual ability to preserve our personal integrity

(Finagrette, 2000). Finagrette (2000, p. 135) sug-

gested that at the level that individuals deepens their

399Identity, Self-Awareness, and Self-Deception

insight into self-deception, ‘we are left with the

paradoxical truth that the self-deceiver ‘‘in his heart’’

knows what he sincerely denies.’ As Kierkegaard

(1959, p. 267) observed, self-deception is a crisis of

spirit and a form of betraying of the self – but is an

attempt to ‘‘bring about a proportionality in the soul,

a harmony, which is the fruit of the personal virtues.’’

Because the nature of self-deception is often

unconscious, the task of self-monitoring our stress,

anxiety, and assumptions about reality is often dif-

ficult to undertake (Mele, 2001). At the same time,

the self-serving bias that is so much a part of self-

deception is universally common and applies to

virtually everyone (Gilovich, 1991). Only when we

consciously make the effort to explore our schemata,

scripts, and frames for viewing the world and to

acknowledge the stresses and conflicts that create

anxiety in our lives are we likely to attune ourselves

to the ongoing self-deception and denial that is

present in our unconscious mind (Goleman, 1985).

Understanding those stresses by an ongoing effort to

know ourselves, acknowledging the impact of stress

in reducing decision quality, and seeking to mitigate

stress to reduce self-deceptive behavior are essential

responsibilities that will enable each of us to honor

our true identities, increase our inner harmony, and

maintain our personal integrity (Mele, 2001).

(5): We owe ourselves the responsibility to periodically

examine whether our conduct is consistent with the beliefs

we proclaim and to confront incongruities between our be-

liefs and our behaviors

In order to be effective, especially in establishing

congruence between our behaviors and beliefs, we

need to clearly understand the often unspoken

assumptions about our beliefs and values that actually

determine how we behave (Schein, 2004; Warner,

2001). In noting that self-deception occurs at both

the individual and organizational levels, Schein’s

(2004, pp. 137–150) research confirms that our

unspoken assumptions often are ‘‘undiscussable’’ and

tacitly off limits for examination. At the same time,

Schein (2004, p. 318) observed that achieving con-

gruence between behaviors and our actual assump-

tions was critical to both individual credibility and

organizational effectiveness.

Goleman (1985, p. 224) referred to subtly agreed

upon ground rules for self-deception as ‘‘questions

that can’t be asked’’ – whether of ourselves or be-

tween parties. This same ‘‘conspiracy of silence’’

often protects inept members of professional groups,

such as physicians or psychiatrists, from the damning

testimony of their peers (Goleman, 1985, p. 225).

Turning internally, our unconscious minds are

unwilling and unable to deal with questions that we

cannot ask ourselves about because we are not

presently able to deal with the disappointments, the

anxieties, and the stress created by acknowledging

that we are being intellectually, emotionally, or

spiritually dishonest (Finagrette, 2000). Lacking the

courage and integrity to acknowledge the conflicts

between two incongruous ideas, we internally justify

our choice by incorporating a subtle moral calculus

that allows us to believe that we have somehow

chosen a greater good (cf. Creed and Miles, 1996;

Weick, 2001; Weick et al., 2005).

White (1988) explained that the self-justification

often associated with self-deception involves exam-

ining our responsibility for an event’s occurrence

and denying responsibility for the unanticipated

events that are caused by our actions. Ultimately,

those who practice self-deception must acknowledge

that their decisions can have a profound impact upon

themselves and upon others (Finagrette, 2000; Mele,

2001). Building into our individual lives and our

organizational systems an inventorying process for

monitoring self-deception seems to be a moral

imperative in a time when self-deception can have

profound potential consequences in individual lives

and for society at large (Goleman, 1985). It is in

bridging the concept of identity, self-awareness, and

self-deception from the individual to the organiza-

tional and societal levels that is often most chal-

lenging for organizational leaders (Covey, 2004, pp.

70–81).

Implications for business

As experts in both academia and business have

examined the keys to organizational effectiveness,

they have confirmed the importance of a clear

understanding of oneself as a key factor in interper-

sonal relationships and organizational outcomes

(Boyatzis and McKee, 2005; Collins, 2001; Collins

and Porras, 2004; Goleman, 2006a, b; Pfeffer, 1998).

Understanding insights about identity, self-awareness,

400 Cam Caldwell

and self-deception has practical implications for

business in six important ways:

(1): Developing a clear insight into ourselves and how we

are perceived is fundamental to establishing effective rela-

tionships

The ability to be self-aware and to understand the

nuances of who we are and how we relate to people

are fundamental elements of emotional and social

intelligence (Albrecht, 2006; Goleman,

2006a, b).

The evolving demands placed upon today’s leaders

are increasingly acknowledged as related to the

ability of the leader to resonate with others (Boyatzis

and McKee, 2005). Knowing oneself and being

open to feedback are essential to being perceived as

genuine and authentic (George et al., 2007; Spar-

rowe, 2005). Self-deception destroys the ability to

perceive oneself accurately and creates a false belief

about oneself (Sartre, 1956; Wood,

1988).

(2): Identifying a clear understanding of oneself and how

we are seen by others provides valuable insight in being able

to manage social contracts that exist

Honoring commitments and recognizing the

importance of the social contract are important in

maintaining interpersonal trust and in being per-

ceived as an effective leader (Caldwell and Hayes,

2007). Attuning oneself to feedback from others

about implicit duties that are owed is a fundamental

element of understanding the nature of social con-

tracts and demonstrates one’s commitment to hon-

oring the relationship between the parties (Boyatzis

and McKee, 2005). Self-deception may include the

denial of obligations owed within a relationship and

can undermine one’s reputation for integrity and

honesty (Arbinger, 2002). Rousseau (1995) affirmed

that the duties of social and psychological contracts

are frequently not articulated and the nature of self-

deception is such that the selective rationality of self-

delusion allows us to ignore information that con-

flicts with how we want to see the world (Finagrette,

2000; Smith, 2004). The risk to the self-deceiver is

that in ignoring feedback the resulting self-inflicted

injury can destroy trust and even ruin individual

careers (Boyatzis and McKee, 2005; Cole, 1980).

(3): Conducting a regular personal inventory or self-

assessment can be a powerful aid to goal attainment

The ability to be effective at self-monitoring

and self-leadership has been acknowledged as an

important element for successfully setting and

achieving goals (Carver and Scheier, 1998; Neck and

Houghton, 2006; Oettingen, 1996). Using a model

of self-assessment such as the six beliefs model

(Caldwell and Hayes, 2007) provides individuals

with a structured and highly conscious way to tease

out their beliefs, values, and priorities which are key

to goal achievement. Self-monitoring by examining

inconsistencies between our beliefs and our inten-

tions (Fishbein and Ajzen, 1975) also provides an

opportunity to reflect on why we may be falling

short in reaching proclaimed goals – and whether

those goals are really what we value in our lives.

Boyatzis and Akrivou (2006) have identified the

importance of our perception of the self in maxi-

mizing goal attainment. When our view of who we

are at the unconscious level is inconsistent with our

espoused goals, our ability to focus rationally on

what we want to achieve is hampered by our self-

deceptions (Mele, 2001).

(4): Acknowledging the incongruence of our behaviors

with our commitments can help organizations avoid

destroying trust

The trust literature affirms that sustaining trust is

dependent upon a leader’s ability to be consistent

and congruent (Joseph and Winston, 2005; Mayer

et al., 1995). Behavior that is incongruent with

proclaimed values erodes trust, while living those

values creates a reputation for honesty and trust-

worthiness (Stephenson, 2004). Because self-decep-

tion causes an individual to be insensitive to the

nature of his or her commitments by unconscious

rationalization, the self-deceiving person is more

prone to overlook duties owed to others (Sanford,

1988).

The stress and denial accompanying self-decep-

tion can cause previously successful individuals to fail

to recognize the vulnerability and distrust that they

engender by their lack of awareness of how they are

being perceived (Boyatzis and McKee, 2005).

Leaders who violate commitments and lose trust

must honor promises, rebuild relationships, and

model personal integrity if they expect to rebuild lost

trust (Schoorman et al., 2007; Stephenson, 2004).

When leaders do not acknowledge the lack of

401Identity, Self-Awareness, and Self-Deception

congruence between their words and their actions,

they destroy trust and undermine faith in the orga-

nization (Schein, 2004) and in themselves (Kouzes

and Posner, 2007).

(5): Understanding the characteristics of self-deception in

individual and organizational relationships increases one’s

awareness of the likelihood of being vulnerable to engaging

in self-deceptive behavior

The Arbinger Institute (2002) has noted that the

blind spots of human behavior and the very nature of

self-deception make it difficult to recognize when

our behavior is self-deceptive and self-defeating.

Consciously examining behaviors, motives, and

assumptions is critical to identifying the traps that are

endemic in unconscious self-deception (Mele,

2001). Goleman (1985) has suggested that we have a

strong moral and ethical obligation to be aware of

the dangers of self-deception in our lives. Lennick

and Kiel (2008) identify confronting reality and

dealing responsibly with consequences as funda-

mental elements of moral intelligence. Boyatzis and

McKee (2005) have encouraged leaders to attune

themselves to understanding how they are perceived

and comparing that feedback with their conception

of themselves. Advocating our increased attention to

that with which we are engaged, Finagrette (2000)

noted the moral threats implicit in self-deceptive

behavior.

(6): Examining moral duties enhances an understanding

of the breadth of obligations owed to other parties and

makes those duties specific

The nature of identity, self-awareness, and self-

deception provides an opportunity to enrich our

understanding of moral duties implicit in human

relationships (Boyatzis and McKee, 2005; Goleman,

1985). Hosmer (1995, 1996) reminded organiza-

tional leaders that relationships based upon trust are

fundamentally ethical assumptions. Caldwell and

Hayes (2007) explained that in evaluating relation-

ships each individual makes inferences about the

ethical behaviors of others via a subjective mediating

lens which consists of a complex but individually

personal ethical component. Identifying the under-

lying ethical assumptions implicit in each person’s

meditating lens allows individuals to identify the

duties that they owe and helps to clarify moral

responsibilities (Caldwell and Clapham, 2003;

Caldwell and Hayes, 2007). Self-deception is the

unconscious process of choosing not to acknowledge

implicit moral duties owed to ourselves and to others

(Finagrette, 2000; Goleman, 1985; Mele, 2001).

By understanding how identity, self-awareness,

and self-deception apply within a business context,

individuals and organizations can enhance relation-

ships, build trust and commitment, and improve

organizational outcomes.

Contributions and future research

The primary contribution of this article is that it

provides a practical insight into the importance of

examining our identity, increasing self-awareness,

and confronting our self-deceptions. Although much

has been written about self-deception over the last

five decades, the practical implications of self-

deception are often difficult to acknowledge simply

because self-deception is fundamentally an uncon-

scious phenomenon (Finagrette, 2000). Identifying

the practical implications of self-deception provides

justification for academicians and practitioners to

invest more efforts into understanding this important

element of our daily lives. Although we may

sheepishly acknowledge that we catch ourselves in

self-deceptions (Arbinger Institute, 2000; Warner,

2001), the implications of our choices often escape

us until we look back in shock at our failure to

honor what we reluctantly acknowledge were ethi-

cal duties (Goleman, 1985).

In addition to providing insights about the ethical

implications of self-deception, this article offers the

following contributions:

1) Affirms the importance of attuning ourselves to

feedback from others. Great leaders resonate

with others because they know themselves

and are attuned to what others think and feel

(Boyatzis and McKee, 2005). Learning how

to be more aware of the perceptions of oth-

ers is a skill set that will benefit those who

seek to be more effective as leaders or in any

relationships (Albrecht, 2006; Goleman,

2006a, b).

2) Confirms the importance of the mediating lens.

The individual subjective ability to define

402 Cam Caldwell

social contracts, assess the trustworthiness of

others, and impose a set of ethical duties in

relationships is an implicit part of human rela-

tionships (Caldwell and Hayes, 2007; Creed

and Miles, 1996; Weick, 1979). Understand-

ing how that lens impacts interpersonal

relationships is an important part of self-assess-

ment, relationship building, and leadership.

3) Validates the importance of ongoing ethical self-

assessment. Those who lead others take upon

themselves a profound set of moral obliga-

tions (Hosmer, 1995, 1996). Identifying our

assumptions about the duties that leaders

owe to others is an implicit responsibility

that often gets lost in the details of day-to-

day administration, resulting inevitably in

inconsistencies between how we act on what

we claim are our values (Schein, 2004).

Although it may be difficult for academicians and

practitioners to measure the sub-conscious and

unconscious nature of self-deception (Finagrette,

2000), many research opportunities exist related to

self-deception. Practitioners interested in improving

trust within their organizations have the opportunity

to measure attitudes of employees about leaders and

perceived trust in context with providing leaders

training about self-deception. Academicians have the

opportunity to research and explore methods for

training individual employees and organizational

leaders about self-deception, self-awareness, and the

application of those concepts within an organiza-

tional context. The greatest value in studying self-

deception may very well lie in increasing our

awareness of the factors and frameworks that per-

petuate this dysfunctional and self-destructive prac-

tice

(Warner, 2001).

Conclusion

David Livingstone Smith (2004, p. 146) has ob-

served that ‘‘the conscious mind is relatively blind to

the nuances of social behavior.’’ By understanding

more about ourselves and our unconscious tenden-

cies to self-deceive, we can improve our ability to

build relationships, strengthen organizations, and

confront the fears that cause us to live beneath our

potential. Brower (1964, p. 156) wisely observed

that ‘‘self-examination is a preparation for insight, a

groundbreaking for the seeds of self-understanding

which gradually bloom into changed behavior.’’

Making the commitment to explore the inner

reaches of our hearts and minds allows us to be true

to ourselves and enables us to honor the duties we

owe to self, others, and the society in which we live

(Warner, 2001).

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Department of Business and Legal Studies,

Paul Quinn College,

Dallas, TX, U.S.A.

E-mail: cam.caldwell@gmail.com

406 Cam Caldwell

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.

Self-Awareness and the Evolution of Leaders:
The Need for a Better Measure of Self-Awareness

Greg C. Ashley
Bellevue University

Roni Reiter-Palmon

University of Nebraska at Omaha

ABSTRACT

A growing body of empirical research suggests that self-awareness is associated with successful
leadership. Although self-awareness research has generated a number of scales to measure self-
awareness, none have done so with the explicit focus of leadership. The present research is a summary
of three studies designed to develop and begin validation for a scale to measure self-awareness in the
context of leadership and leader development. The result of Study 1 and 2 was a 54-item self-awareness
scale. A confirmatory factor analysis provided evidence for a marginal fit. Predictive validity was assessed
in Study 3 by looking for associations between self-awareness and outcomes from an MBA capstone
course designed in part to improve communication, foster teamwork, and increase self-awareness. Self-
awareness was the independent variable. The dependent variables were the graded, videotaped
outcomes of two types of structured role-playing exercises designed to meet course objectives and
involved students working in dyads or in small groups. Positive associations were found between the new
scale and some group context measures of performance, but not for the dyad measures. Implications and
suggestions for future research are provided.

Introduction

The construct of self-awareness has been taken up by a wide array of academic disciplines, suggesting
that self-awareness may explain variance in a number of domains. Although definitions vary, self-
awareness is an inwardly-focused evaluative process in which individuals make self/standard
comparisons with the goal of better self-knowledge and improvement. The scope of the present writing is
focused on how self-awareness may be related to the context of leadership, specifically leader
development. As will be discussed, empirical support is mounting suggesting that self-awareness is
related to leadership such that leaders higher in self-awareness tend to get better outcomes than those
with lower levels of self-awareness. Given the increasing attention self-awareness processes are getting
from leadership theorists, a scale to measure self-awareness may be of value. As such, the specific
purpose of the present writing is to discuss the development of a scale to measure self-awareness.

Historical Relevance of Self-Awareness

Humans have a unique capacity to contemplate not only their status quo, but also their ideal status quo.
This capacity is underpinned by the ability to imagine a future that is better than the past, evaluate
alternatives, identify problems, and a yearning to progress toward an ideal. Intertwined are processes of
self-reflexive thought, self-examination, and introspection. All of the above broadly circumscribe the
construct of self-awareness, and although conceptualizations of self-awareness do vary, at their core is
an ability to focus attention inward and study oneself as though looking in a mirror.

The relevance of self-awareness cannot be overstated. In fact, Leary and Buttermore (2003) theorize that
the capacity for self-reflection may have been one of essential drivers for the remarkably rapid
appearance of human civilization 40,000 – 60,000 years ago. Leary and Buttermore attribute the explosive
growth in human culture and technological advances during this time to a nascent capacity to think
symbolically and abstractly about oneself and to ponder the changes required to move toward a better
future.

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

Not surprisingly, there has been a long-standing and cross-cultural interest in self-awareness by
philosophers, social scientists, clinicians, and more recently, leadership theorists. Writings on the self are
known from China as early as 500 BC and from India as early as 600 BC, to name just a few (Leary &
Tangney, 2003). More modern seminal treatments of self-awareness by psychologists and sociologists
can be seen in the works of James (1890), Mead (1934), Cooley (1956), and Duval and Wicklund (1972).
Although each of these modern writers has a nuanced view of self-awareness, a common theme
emerges suggesting that individuals view themselves as both observers and subjects of observation.
Moreover, individuals often use a reflective process whereby they imagine themselves from the vantage
point of another with the goal of comparing self-evaluations against others’ evaluations. Specifically,
Mead and Duval and Wicklund theorize that individuals have a motivated desire for accurate assessment
of self-worth or progress against a goal or standard. As such, the effective use of self-awareness
processes would seem to be of great relevance to leadership scholars.

The discussion will unfold as follows. First, a short discussion on how self-awareness has been
conceptualized, and specifically how it might be conceptualized in a leadership context. Second, a case
will be made as to why we should care about self-awareness, including evidence showing the relation
between self-awareness and leader outcomes, and also why we need a new measure. Third, a
discussion regarding the construction of a self-awareness measure, including psychometric properties.
Lastly, a study demonstrating partial support for the predictive validity of the present measure.

What Is Self-Awareness and Why Do We Care?

Various conceptualizations of self-awareness have emerged over time with newer formulations often
adding nuances on previous versions. As a starting point, consider Duval and Wicklund’s (1972) theory of
objective self-awareness (OSA). According to original OSA theory, individuals periodically focus attention
inward and begin a comparison process to assess themselves against a salient standard (e.g., a behavior
or progress toward a goal). OSA predicted the likely outcome of such a comparison would be the
identification of a self/standard gap, which in turn would lead to negative affect. The self/standard
comparison involved processes of introspection and self-evaluation (Ickes, Wicklund, & Ferris, 1973).

In one of the first attempts to develop a scale to measure self awareness, Fenigstein, Scheier, and Buss
(1975) suggested the following dimensions: “(a) preoccupation with past, present, and future behaviors;
(b) sensitivity to inner feelings; (c) recognition of one’s positive and negative attributes; (d) introspective
behavior; (e) a tendency to picture or imagine oneself; (f) awareness of one’s physical appearance and
presentation; and (g) concern over the appraisal of others” (p. 523). A three-dimensional structure
emerged in the final scale and the dimensions were labeled as private self-consciousness (e.g., “I reflect
about myself a lot”), public self-consciousness (e.g., “I’m concerned about what others think of me”), and
social anxiety (e.g., “Large groups make me nervous”).

Several researchers used the Fenigstein et al. (1975) scale as a departure point for revisions regarding
self-awareness dimensionality. Burnkrant and Page (1984), for example, theorized that the private self-
consciousness factor was better specified as a two-dimensional construct containing dimensions labeled
as self-reflection and internal state awareness. The latter included “such feelings as tranquility, elation,
and depression as well as such bodily events as heartbeat and breathing” (p. 631). Additional analyses
by Burnkrant and Page using different participant pools demonstrated better fit using the revised
dimensionality than Fenigstein et al’s. model.

As can be discerned from the discussion thus far, earlier researchers considered self-awareness
processes as predominantly cognitive in nature. Trapnell and Campbell (1999) viewed this as a gap and
believed that in addition to cognition, it was also necessary to consider motivational and emotional
influences. In other words, the reasons for engaging in self-awareness were important as well. Trapnell
and Campbell note that individuals may increase levels of self-awareness based either on neurotic-like
tendencies (e.g., anxiety) or for purposes of gaining self-knowledge or personal growth.

As part of their justification for including motivational/emotional influences, Trapnell and Campbell (1999)
cited a large body of research suggesting that high levels of self-awareness paradoxically can result in
either good or bad outcomes (see also Pyszczynski, Hamilton, Greenberg, & Becker, 1991). On the

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

positive side, high self-awareness has been shown to have psychotherapeutic effects and enables
individuals to better adjust to their environment. On the contrary, high self-awareness also is associated
with a number of maladies like depression and anxiety. According to Trapnell and Campbell’s line of
reasoning, outcomes are influenced by the motivational disposition for engaging in self-awareness.
Hence, research by Trapnell and Campbell suggests the private self-consciousness factor is better
viewed as two dimensions, which they labeled rumination and reflection. In summary, the review of
literature above leaves open the possibility that self-awareness processes are an amalgam of both
cognitive and affective influences.

An additional divergence in the way self-awareness has been conceptualized concerns the trait versus
state distinction. Fenigstein et al. (1975) thought self-awareness could be both, labeling the trait form as
self-consciousness and the state form as self-awareness. Other self-awareness researchers have used
mirrors and cameras to manipulate (i.e., increase) levels of self-awareness, thus implying that self-
awareness has state-like properties. Self-awareness also has been conceptualized as a skill (Church,
1997b) which suggests that interventions could be used to increase self-awareness. Self-awareness also
has been viewed as a cognitive schema (Church, 1997a) where self-awareness outcomes might vary
based on context or relationships.

The construct of self-awareness also has been included as part of the dimensionality of two different
conceptualizations of emotional intelligence (i.e., Dulewicz & Higgs, 2000; Goleman, 2004). Of note is
that these authors tend to view emotional intelligence as a competency that can be learned and which
explains variance in leader outcomes. As pertaining to the specific dimension of self-awareness, a
competency-based view is consistent with the cognitive and state distinctions discussed above, thus
suggesting trainability.

Some researchers have given less priority to teasing out nuances in self-awareness conceptualizations,
but rather were more focused on self-awareness outcomes. In such instances, self-awareness often has
been defined simply as self/other agreement (e.g., Van Velsor, Taylor, & Leslie, 1993). For example,
those leaders whose self-report ratings of performance are similar to performance ratings ascribed to
them by others are defined operationally as having high levels of self-awareness. Using this operational
standard, a large body of empirical research has accrued suggesting those managers with high levels of
self-awareness tend to have better performance outcomes than those with lower levels of self-awareness
(e.g., Atwater, Ostroff, Yammarino, & Fleenor, 1998; Bass & Yammarino, 1991; Furnham & Stringfield,
1994). Moreover, congruence between subordinates’ evaluation of their manager and the managers’ self-
evaluation may lead to increased levels of subordinate satisfaction (Wexley, Alexander, Greenawalt, &
Couch, 1980). The gestalt of self/other congruence research suggests that increased congruence
between self versus other ratings is amenable to interventions, for example, by increasing salience on the
value of feedback.

Taken as a whole, the preponderance of literature discussed above tends to suggest that self-awareness
is trainable. To the extent that self-awareness might be increased via an intervention, a new scale to
measure self-awareness designed specifically for the context of leadership may be useful for the study of
leadership in general and leader development in specific.

Why Do We Need Another Scale?

A new scale is needed because existing scales are too parsimonious, do not speak to the complexity of
self-awareness processes, and only partially tap into the dimensionality of self-awareness that operates in
a leadership context. As such, each of the existing scales discussed above has desirable aspects but is
not complete. For example, while the Fenigstein, Scheier, and Buss (1975) scale does recognize the
notions of self-reflection and attention to inner thoughts and feelings, nothing is considered regarding the
reasons for engaging in self-awareness (i.e., motivational factors), nor is there any discussion where or
how standards are developed or accepted. In like manner, the Burnkrant and Page (1984) and Trapnell
and Campbell (1999) views of self-awareness are mute on the topic of standard setting, do not provide a
framework for why self-examination begins, and do not consider an individual’s desire to detect
self/standard gaps.

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

In the leadership context, the effectiveness of self-awareness outcomes turns on developing or accepting
specific standards along with a strong desire for accurate self-evaluation. Regarding standard setting, a
noteworthy shortcoming of existing scales is lack of recognition that standards may be nuanced beyond
the self by multiple relevant stakeholders. The acceptance of any standard, internal or external, requires
an understanding of one’s strengths and weaknesses, and this self-knowledge is not addressed in
existing scales. Moreover, because standard setting may in part be exogenous to the individual, it makes
sense that additional attention to accuracy is warranted because the foci of evaluation likewise are
external to the individual. The ability to integrate both internal and external standards and still make
accurate self/standard comparisons may explain why research related to self/other congruence has noted
positive outcomes for leaders high in self-awareness.

An additional gap with existing self-awareness measures concerns the way in which current
conceptualizations of self-awareness deal with the presence of affect. While some existing
conceptualizations do acknowledge the presence of affect, none considers the possibility of affect as the
subject of self-awareness, that is, as a relevant dimension of self that can be assessed against an ideal.
Lastly, existing scales presume a narrow view of personality where simple behaviors are assessed
against a one-dimensional standard. In reality, self-awareness processes are multifaceted and may
include a wide array of strengths and weakness, for example, self-awareness of thinking styles.

The foregoing review was the primary theoretical underpinning for the beginning development of the
present scale, which started with Study 1.

Study 1: Initial Scale Construction

The primary task of Study 1 was to conceptualize the dimensionality of self-awareness in the specific
context of leader development. One of the defining hallmarks of self-awareness that appears in nearly all
conceptualizations of self-awareness is the notion that individuals evaluate themselves against some
salient standard or goal. At its core, self-awareness is the process that signals whether an individual
needs to moderate a behavior, emotion, or course of action. In other words, the outcome of a self-
awareness episode may signal the need for self-regulation. Although the value of self-regulation in a
leadership context hardly needs explication, the focus here is on the decision processes used to refine
and nuance the salient standard or goal. In short, effective leaders need to integrate the standards and
goals of relevant stakeholders (e.g., bosses, subordinates, peers, and customers) into their own self-
regulatory processes (Tsui & Ashford, 1994).

Based on the foregoing concepts, and focusing to the context of leadership, the initial dimensionality of
self-awareness was theorized to include (a) a recognition of internal and external standards, (b) a
recognition of one’s positive and negative attributes/abilities, (c) a desire for introspective and self-
reflective thought, and (d) a desire for accurately detecting gaps in personal behaviors, traits, and goal
progress.

As is typical in scale development, participants also were asked to complete several additional scales
measuring related constructs where theory and/or prior empirical findings suggest relevance in order to
help establish validity. In this regard, four existing measures of self-awareness were selected.
Correlations between these scales and the present scale were expected to be in the moderate range
because of modest crossover with the present scale, but yet not reflecting the same dimensionality.

Additional measures included were creativity, emotional intelligence, empathy, feedback seeking,
generalized self-efficacy, locus of control, metacognition, and need for cognition (specific details are
provided in the Measures section below). Self-awareness processes include a desire to identify
self/standard gaps, hence creativity is relevant because creative ideas are those that are both original
and useful. As such, individuals must be able to determine whether an idea meets standards (i.e., is a
useful idea). In this regard, constructs that help to capture performance-related cues from the
environment also are useful, for example, feedback seeking, emotional intelligence, and empathy. The
process of setting standards and the accompanying self/standard evaluation is likely to be cognitively

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

intense at times such that an individual high in need for cognition would benefit more (i.e., enhancing self-
awareness) than those individuals low on this trait. This logic also applies to metacognition. Lastly, locus
of control and general self-efficacy were included because effective leaders are assumed to be high on
these constructs. Weak to neutral correlations were hypothesized for scales measuring
depression/anxiety, self-monitoring, and socially desirable responding. As regards depression/anxiety,
known empirical links to self-awareness appear to be underpinned on many different factors such as an
unreasonable/unrealistic comparison standard, rumination, and/or inaccurate evaluation of self/standard
progress. The dimensionality of the present scale is likely to preclude these underpinnings to
depression/anxiety primarily because of the focus on accuracy. As regards self-monitoring and socially
desirable responding, these are processes that focus attention primarily outward and only are tangentially
concerned with accuracy of self-appraisal. As such, correlations with the present measure should be
minimal.

Study 1 Method

Participants. Participants were recruited from introductory psychology courses at a large Midwestern
university. The sample size was 419 and was composed of mostly white freshman, sophomores, and
juniors (mean age 21.8, SD = 4.9; 134 males, 285 females). Participant responses were collected using
an internet-based commercial survey tool commonly used in social science research (i.e.,
SurveyMonkey).

Measures. Self-awareness scale items for the present scale were generated from two sources. First, I/O
psychology faculty and graduate students familiar with the research generated items by dimension. This
process resulted in 62 useable items. Second, a pilot study was conducted that included a biographical
essay related to self-awareness. The essay was designed to capture retrospective self-reports of events
in participants’ life experiences that might be related to self-awareness but may have been overlooked by
the item writers. An additional nine items were generated from the self-reports, resulting in a final draft of
71 items.

Three of the four existing self-awareness measures which were included as part of the validation process
already were discussed above, specifically, the Fenigstein, Scheier, and Buss’ (1975) self-consciousness
scale, Burnkrant and Page’s (1984) self-reflection / internal state awareness scale, and Trapnell and
Campbell’s (1999) rumination / reflection scale. A fourth measure of self-awareness included was Grant,
Franklin, and Langford’s (2002) self-reflection / insight scale.

Other related, established constructs were measured using the following existing scales; creativity
(Runco, Noble, & Luptak, 1990), depression/anxiety (Costello & Comrey, 1967), emotional intelligence
(Wong & Law, 2002), empathy (Davis, 1980), feedback seeking (Tuckey, Brewer, & Williamson, 2002),
generalized self-efficacy (Chen, Gully, & Eden, 2001)locus of control (Rotter, 1966), metacognition
(Schraw & Dennison, 1994), need for cognition (Cacioppo, Petty, & Kao, 1984), self-monitoring (Snyder,
1974), and socially desirable responding (Crowne & Marlowe, 1960). The foregoing scales were selected
in part because they evinced acceptable levels of reliability which also were supported in the present
research (see Table 1).

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

Table 1
Reliabilities of Related Scales Included in Present Research.

Full Scale Reliabilities

Scale Original Present Research

Self-Consciousness .80 .82

Self-Reflection/Internal State Awareness Not reported .81

Rumination/Reflection .90 .93

Self-Reflection/Insight .91/.87
*

.90

Creative Activities Checklist Ranged .64 to .91
*

.91

Depression/Anxiety .90/.70
*

.94/.85

Emotional Intelligence Ranged .83 to.90
*

.89

Empathy Ranged .71 to .77
*

.83

Feedback .82
†

.89

Generalized Self-Efficacy .86 .90

Locus of Control Ranged .49 to .84 .69

Metacognition Ranged .88 to .93
*

Ranged .87 to .94

Need for Cognition .90 .89

Self-Monitoring .70 .62

Socially Desirable Responding Ranged .73 to .88 .72

* = not reported for full scale but by dimension
†
The Feedback Seeking scale was composed of four dimensions, however, the present research only
used the desire for useful information dimension which is shown above.

Study 1 Results

Exploratory factor analysis. An exploratory factor analysis (EFA) was conducted using Varimax rotation
despite no prior assumption regarding orthogonality. Although 4, 7, and 12 factor solutions emerged, the
4-factor solution had fewer crossloadings and was much easier to interpret than that the seven and
twelve-factor solutions. Total variance explained by the four factors equaled 27% (10.6%, 7.8%, 4.7%,
and 3.8% respectively).

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

The dimensionality evinced by the EFA was similar but not identical to the proposed dimensionality. A
comparison of theoretical versus empirical dimensionality is provided in Table 2 which highlights two
dissimilarities. First, a dimension related to accuracy of self-evaluation was not apparent. Second, an
unexpected dimension emerged that can be described as an indifference toward the use of external cues
for purposes of self-evaluation.

Table 2
Hypothesized Dimensions of Self-Awareness versus EFA Dimensions.

EFA Dimensions Hypothesized Dimensions

Self-critical Recognition of internal and external standards

Desire for realistic awareness
Indifference to external cues

Recognition of one’s positive and negative
attributes/abilities

Self-reflection Introspection and self-reflection

Accurately detecting gaps in personal behaviors, traits,
and goal progress

The Cronbach alpha for the entire scale was .85 (individual factors ranged from .73 to .83). Correlations
between the four factors ranged from small and insignificant to a high of .38.

Correlations between Present Self-awareness Scale and Other Measures

Correlations between the present self-awareness scale and all of the included measures discussed above
are shown in Table 3. Correlations between the present self-awareness scale and the four existing self-
awareness measures ranged from .37 to .57. These correlations are moderate and not as high as would
be expected from scales that are measuring the same construct.

Correlations between the present self-awareness measure and the remaining measures also are shown
in Table 3. Taken as a whole, these measures provided additional support for validity. In particular, note
the low correlation between the present measure and socially desirable responding (r = -.16). This result
suggests that a negligible amount of variance was explained by socially desirable responding.

Table 3
Correlations between the Present Self-Awareness Scale (N=44) and the other Included Measures
(N=375).

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Note. All correlations were significant to at least the .p < 0.05 level except for the depression measure which was not significant.

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

Study 1 Discussion

The overall pattern of correlations evinced in Study 1 was consistent with the literature review above that
suggested self-awareness is composed of both cognitive and affective components. First, the
dimensionality found in the EFA, in addition to positive correlations with constructs thought to be cognitive
in nature (e.g., metacognition), suggests that self-evaluation does engage cognitive processes. These
processes are required to establish standards and make realistic comparisons between one’s present
progress versus the desired or optimal progress. Second, correlations with anxiety and empathy suggest
that being self-aware is not without emotion. Conceptually, the notion of emotional outcomes seems
reasonable when considering that the core of self-awareness processes is concerned with self/standard
gaps, and this line of reasoning is consistent with prior self-awareness theory (e.g., Duval and Wicklund,
1972).

Despite the empirical gleanings provided by Study 1, a critical review of the work indicated some gaps.
First, the dimensionality evinced in the EFA was similar but still not completely representative of ex ante
theory. This result, in combination with the unexplainable EFA dimension labeled indifference to external
cues, suggested a possible need to revisit the theoretical dimensionality of self-awareness in a leadership
context. The outcome of this review suggested that the original conceptualization of self-awareness may
have been missing the dimension of insight. In other words, it seems likely that self-awareness processes
ultimately need to reach a synthesis or conclusion in order to be effective, something that might be called
the “a-ha” moment. After all, what good is an episode of self-reflection if nothing comes of it? Note also
that Grant et al. (2002) included insight in their measure of self-awareness and that the insight dimension
of their scale was positively correlated with the present self-awareness measure. Two additional studies
were designed to address these gaps.

Study 1 also did not include a confirmatory factor analysis (CFA). As such, a CFA was conducted in Study
2 with the goal of further clarifying the factor structure and providing additional empirical support for the
scale.

A second gap with Study 1 was a test of criterion validity. As noted above, a large body of evidence has
accrued suggesting that high levels of self-awareness are associated with positive outcomes for leaders.
If this is true, then the present measure of self-awareness should correlate with objective measures of
performance. Study 3 was designed as an empirical test of this premise.

Study 2

The first task of Study 2 was to conduct a pilot study with the goal of clarifying the factor structure of self-
awareness in the present context. A second, goal of the pilot study was to develop a short form of the
scale that was more practical for use in research.

Pilot Study Method

Participants. Participants were recruited and selected using the same methodology in Study 1. The final
sample included 93 males and 183 females (n = 276) with an average age of 23.5 (SD = 7.4).
Measure. Additional scale items related to insight were generated using the same basic methodology as
in Study 1. Thirteen usable items were culled from an initial list of 100 and added to the 71-item scale
from Study 1, for a total of 84 items.

Pilot Study Results

An EFA was conducted using Oblimin rotation. Two and five factor solutions emerged with the latter being
much easier to interpret. Moreover, the five factor solution was much more consistent with a priori theory.
The factors were named as follows; self-critical, insight, self-reflection, feedback seeking, and
performance indifference. The latter factor was composed of items suggesting an indifference to
performance-related events. Total variance explained by the five factors was 30.4% (10.2%, 8.5%, 4.3%,
3.8%, and 3.6% respectively).

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

As mentioned above, one goal for Study 2 was to develop a measure that was shorter and more practical
to use. The full measure contained over 80 items and was perceived as taking too long to administer in
many contexts. A 54-item short form was developed by retaining only those items that loaded at least .40
on the respective factor (see Appendix for items). Cronbach alphas for both the long and short form are
provided in Table 4. There was no appreciable loss in reliability in going to the short form. The additional
validation efforts of Study 2 were conducted on the short form.

Table 4
Cronbach alphas for self-awareness long and short form measure (N=276)

Long Form Short Form

Self-Critical .858 .849

Insight .798 .789

Self-Reflection .793 .799

Feedback Seeking .737 .734

Performance Indifference .752 .704

Full Scale .841 .822

Study 2: CFA

A series of CFAs were conducted on data obtained from a usable sample of 426 participants (average
age = 21.6, SD = 4.8; 154 males, 272 females) that were recruited and surveyed using the same
methodology as discussed above. Model fit was assessed using four commonly used model fit
assessments; comparative fit index (CFI), Tucker-Lewis index (TLI), goodness of fit index (GFI), and root
mean square area of approximation (RMSEA). Hard cutoffs have not been established regarding what is
and is not a good fit, however, general guidelines suggest values ≤ .05 are ideal for RMSEA and values
between .05 and .08 are within reason (Kline, 2000). The remaining indexes are thought to have good fit
for values ≥ .90 (Cheung & Rensvold, 2002; Kline, 2000).

Study 2 CFA results and discussion. CFA results are shown in Table 5. The first model tested was
orthogonal in which the five factors were not allowed to correlate. A second non-orthogonal was tested as
well. As seen in Table 5, the fit of these models was under generally accepted rules of thumb for good
model fit. Two additional models were tested in an attempt to see whether the large number of items
might have suggested a larger sample size. The first of these was a model using only the five highest
loading items on each factor. The second used a composite approach in which scale items were
systematically combined. The fit of these two latter models came close to achieving the model fit rule of
thumb standards discussed above, thus suggesting an approximate but not ideal fit.

Study 3: Criterion Validity

The primary goal for Study 3 was to test the predictive validity of the present measure. Such a test would
benefit from a controlled setting where objective measures of performance were possible. Student
outcomes from a capstone course in the MBA program of a major Midwestern university designed to
develop essential management skills were used as a criterion measure. This course was residential (i.e.,
not online). Specific objectives of the course included (a) teaching interpersonal skills associated with
managing direct reports, (b) improving the quality of communications, (c) increasing self-awareness levels
in managers, and (d) developing teamwork. All of these management skills are assumed to be trainable,
including self-awareness. The gestalt of the preceding literature review support the notion of trainability,

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

as well as the finding from Study 1 that self-awareness has a cognitive component, thus suggesting that
self-awareness is not exclusively a trait characteristic.

Congruent with the literature review above and consistent with the outcomes of the prior studies, three
specific hypotheses were put forth regarding outcomes of this course designed to increase leadership
skills.

Hypothesis 1: Levels of self-awareness will increase between the beginning and end of the course.

Hypothesis 2: Self-awareness will be positively correlated with objective measures of performance in the
course.

Hypothesis 3: Students beginning the course with higher levels of self-awareness will benefit more from
the course than those with lower levels of self-awareness.

Table 5
Results of CFA Analyses as Measured by Several Commonly-Used Model Fit Indices (n = 425)
Model X

2
df CFI TLI GFI RMSEA c.i.

Orthogonal 3945, p < .01 1377 .613 .598 .724 .066 .064 - .069 Non-Orthogonal 3499, p < .01 1367 .679 .664 .759 .061 .058 - .063 5 Highest Loads 719, p < .01 265 .825 .802 .875 .064 .058 - .069 Composite 893, p < .01 289 .846 .827 .860 .070 .065 - .075

Note. CFI = Comparative Fit Index; TLI = Tucker-Lewis Index; GFI = Goodness of Fit Index; RMSEA =
Root Mean Square Area of Approximation.

Participants

Participants were students enrolled in three sections of the MBA course described above. Usable data
were collected from 59 participants (mean age = 27.6, SD = 6.1; 37 males, 22 females).

Measures

Self-awareness was measured using the short form of the self-awareness measure as discussed above.
Outcome variables in the course were of two types, both involving video recorded role-playing exercises
of students dealing with common business problems. The first type of exercise was a dyad consisting of a
student role-playing a manager who is addressing performance issues with another student who is role-
playing a subordinate. In specific, the outcome variable was a rating of how each student role-playing the
manager compared against a taxonomy of specific, expected behaviors identified as part of the course
objectives. This dyad measure hereafter is referred to as the individual measure of performance.

The second type of exercise was a group exercise where students role-played managers attempting to
solve a business problem. This outcome variable also was a rating of how well students aligned with a
checklist of behaviors but it is important to note that the ratings were applied separately to each individual
in the group and not the group per se. Hereafter this measure will be referred to as the group context
measure of performance.

Two different types of raters rated the outcome variables described above. First, the professors teaching
the course provided a rating for each of their respective students (i.e., rated only their own classes) for
both the individual and group context measures. These raters are referred to as internal raters. A second
group of raters consisted of I/O psychology doctoral students, hereafter referred to as external raters. The
external raters rated all of the student participants, however, a modified checklist was used to allow for
more information to be collected. As such, detailed interrater reliability was not possible except between
the external raters (α = .62 for the individual measure and α = .58 for the group measure).

Procedure

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

The short form self-awareness measure was administered to students at both the beginning and end of
the course and was used as the IV to test the three hypotheses. The DV variables were provided by the
rated outcome variables of the MBA class.

Analyses

Hypothesis 1 used a paired-samples t-test to determine whether the pre/post measures of self-awareness
were statistically different. Hypothesis 2 used a correlation to determine the level of association between
the measure of self-awareness and the individual and group context measures. Hypothesis 3 used a
median split of the pre measure of self-awareness to test for differences in the outcome variables. Tests
to check for significant differences between the low versus high performance split were done using a t-
test for both the individual and group context measures.

Results and Discussion

Hypothesis 1 tested for differences in self-awareness between the beginning and end of the course. The
pre/post difference was not significant, thus Hypothesis 1 was not supported (t(49) = 0.39, p < .35). Lack of support for Hypothesis 1 raises several questions. First, on the reasonable assumption that self- awareness can be trained, what length of time is required to do it? Is one course enough, especially a course that had other objectives in addition to increasing self-awareness? Second, is one mode of training more efficacious than others? In other words, does the artificial context of a classroom setting provide the ideal methodology to increase self-awareness? Third, development of any kind, including self- awareness, is likely to require motivated, goal-oriented effort. Attempts to control for the potential of this latter confound were not done in this research. Hypothesis 2 posited that self-awareness would be positively correlated with objective measures of performance. The group context measures of individual performance are shown in Table 6 and provided partial support for Hypothesis 2. A more detailed view of the relations that includes the various subdimensions of self-awareness also is provided in Table 6. Table 6 Correlations of Self-Awareness with Group Measure Performance (n = 56)

Internal Ratings External Ratings

PostSC .34
**
.23

PostIN -.01 -.12

PostRE .02 .05

PostFE .29
*
.17

PostPI .13 .28
*

PostTot .27
*
.21

†

* = p < .05 (1-tailed) ** = p < 0.01 (1-tailed) † = p < 0.06 (1-tailed). Note. SC = average self-critical; IN = average insight; RE = average self-reflection; FE = average feedback; PI = average performance indifference (reversed); Tot = combined average. Of first note is that the overall measure of self-awareness (average score across all dimensions) was significantly correlated with the internally-rated measure of performance (r = .27) and almost reached a level of significance with the externally-rated measure (r = .21, p = .06). Note that the low sample size may have been a contributing factor to the marginal correlation (i.e., insufficient power). Among the subdimensions, the self-critical factor had the strongest correlations with performance and the result was consistent across rater types (rinternal = .34 and rexternal = .23). The only correlations that were not significant for both kinds of raters were the insight and reflection subdimensions. Taken as a whole, the measures of student performance found in Table 6 suggest that higher levels of self-awareness are related to better individual outcomes in group settings.

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

Results for the measures of performance involving dyad interactions were not supportive of Hypothesis 2.
None of correlations between self-awareness and these measures of performance were significant. This
outcome is inconsistent with the group context findings and may be a function of the difference between
the dynamics of dyadic interaction versus group interaction. In other words, the increased social density
of latter, replete with multiple interactions and relationships to manage, may be more likely to activate
self-awareness processes than would a dyadic situation. Taken together, the results provide partial
support for hypothesis 2.

Hypothesis 3 posited that individuals starting a leadership development course with higher levels of self-
awareness would result in better outcomes than individuals starting with lower levels of self-awareness.
This test used a median split based on the pre-measure of self-awareness to create two different criterion
groups (low versus high) for both the individual and group context performance measures. Group
differences were checked using independent samples t-tests (see Table 7). A significant difference
between the low versus high groups was found both for the internally-rated (i.e., course instructors) group
context performance measure and the externally-rated individual performance measure. No significant
differences were found for either the externally-rated group context measure or the internally-rated
individual measure.

One possible explanation for the mixed results could be related to range restriction in the both the pre and
post measures of self-awareness. The range of the pre measure was only .93. and the post measure
range was 1.30. Homogeneity of the participant sample may have contributed to this restriction. The
majority of the sample was white students aged between 23 and 28 with a limited amount of real-world
work experience.

Table 7
Independent Samples t-Tests of Significance in Criterion DV Created Based on a Median Split of the Pre-
Self-Awareness Measure (n = 59)

DV Pairs Mean (Low) Mean (High) t Sig.

External Rated Individual Measure -0.05 0.09 -1.68 .05
Internal Rated Individual Measure 0.88 0.87 1.08 .14
External Rated Group Measure -0.04 -0.00 -0.47 .32
Internal Rated Group Measure 0.85 0.90 -2.75 <.01

Note. One-tailed tests, df = 57.

General Discussion

Studies 1 and 2 helped to more thoroughly specify the theoretical dimensionality of self-awareness in a
leadership context by providing a test of model fit. Study 3 demonstrated partial support for the notion that
self-awareness is related to leader-related outcomes. The less than optimal model fit from the CFA, along
with mixed outcomes for the predictive validity tests in Study 3suggest that additional work is needed. The
litany of apparent paradoxes that has emerged in past as well as present self-awareness research has
demonstrated a full range of desirable, undesirable, and neutral outcomes and is a testament to the
complexity of self-awareness processes.

Overcoming the difficulty in developing a tighter measure of self-awareness may require ongoing thought
regarding the dimensionality of self-awareness process and the associated research designs required to
expect effects. Regarding the latter, do levels of self-awareness increase gradually and consistently, or
are increases catapulted forward, perhaps from defining experiences or traumatic events? Are real-world
situations more engendering of self-awareness development than classroom settings? The diversity of
individuals, tasks, problems, and frustrations in the workforce, for example, is likely to be much richer than
those found in formal training contexts. In short, it may be more appropriate to conduct self-awareness in
real-world contexts than in pure academic contexts.

The present self-awareness scale provides a departure point for studying the effects of self-awareness on
leader outcomes. Although the research discussed above is suggestive that more due diligence is
warranted, the present scale provides a better approach for the study and understanding of self-

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

awareness in leaders than the other measures not designed for this purpose. This was accomplished by
considering the specific self-awareness processes that are likely to be associated with effective
leadership. Although complex, the self-awareness construct has shown great promise as one of many
factors associated with leadership successes.

Practical Implications

Practitioners may find value in using the present scale to test for possible associations with outcomes of
their leader development programs as well as other various performance outcome measures. If the scale
can explain variance then this might have implications for hiring and promotion decisions, as well as
organizational training and development efforts.

Related to this, practitioners may also find the present scale helpful in doing leader-related root cause
analysis. For example, Van Velsor and Leslie (1995) in a review of causes for leader derailments
document four superordinate causes for failure: (a) interpersonal relationship problems, (b) not meeting
objectives, (c) team leadership breakdowns, and (d) inability to adapt to transitions and changes.
Although a good case can be made that self-awareness is related to all four of these causes, self-
awareness especially is important in the context of adaption, transition, and changes because this context
speaks most directly to the issue of self/standard gaps. In other words, there may be many situations
where a measure of self-awareness explains variance in failures as well as successes. To the extent this
is true then mitigation efforts can be put in place.

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Burnkrant, R. E., & Page, T. J. (1984). A modification of the Fenigstein, Scheier, and Buss self-
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Cacioppo, J. T., Petty, R. E., & Kao, C. F. (1984). The efficient assessment of need for cognition. Journal
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SELF-AWARENESS AND THE EVOLUTION OF LEADERS

Appendix
Scale Items for Short Form (54 items)

Factor 1 Name: Self-Critical
01 When you make a mistake to what extent has it tended to disrupt your day?
03 To what extent have you found yourself dwelling over minor social mistakes?
13 How difficult has it been for you to accept the fact that you were not as good at something as you

thought you were?
14 How difficult has it been for you to cope with situations that forced you to see yourself in a different

way?
16 How important has it been for you to receive praise from others?
24 How often do you compare your standards to those of others?
25 How often do you criticize your own work?
27 How often do you feel guilty when you have not performed to standards?
30 How often do you question your abilities?
31 How often do you reflect on your performance standards after a failure?
34 How often do you compare your performance to the performance of others?
37 How often do you assess whether you “belong” in a given situation?
38 How often has an emotional or difficult situation caused you to reassess your strengths and

weaknesses?
40 When entering new situations, have you often found yourself worrying about your qualifications?

Factor 2 Name: Insight
06 To what extent are you aware of your own values and beliefs?
07 To what extent do you reflect on the things you like to do?
08 To what extent do you understand how your characteristics and your experiences have led to you

becoming the person you are today?
09 To what extent do you understand how your personal characteristics lead to your behavior in different

situations?
10 To what extent do you use diverse perspectives to arrive at new conclusions about yourself?
12 To what extent would your friends describe you as someone who knows themselves well?
19 After a major accomplishment how likely are you to sit back and enjoy the moment?
20 How likely are your friends to say that you know yourself well?
28 How often do you know what qualities you bring to a relationship?
29 How often do you modify your standards in order to improve performance?
39 When working on a project, how often can you tell in advance what part would be the easiest for you?

Factor 3 Name: Reflection
11 To what extent would you say that you consciously think about the ways your thoughts and emotions

influence your behavior?
18 How likely are your friends to describe you as introspective?
22 How often did you spend time alone in high school so you could have time to think?
35 How often do you enjoy time alone because it allows you to reflect on your day’s activities?
47 How often do you set time aside to reflect on your day?
48 How often do you ponder over how to improve yourself from knowledge of previous experiences?
49 I integrate information about myself from different sources to better understand myself?
50 I often find myself searching internally for explanations of my behavior and emotions?
51 How frequently have the outcomes of your behavior in a given situation caused you to reach an “a-ha”

moment about yourself?
53 Relative to your friends, how much time do you spend trying to understand yourself?
54 Relative to your friends, how much time do you spend thinking about the reasons for your behaviors?

Factor 4 Name: Feedback
02 To what extent have you used feedback from your professor or boss to improve your performance?
04 To what extent do you like instructors or bosses to provide feedback?
05 To what extent do you enjoy participating in activities that are challenging?

SELF-AWARENESS AND THE EVOLUTION OF LEADERS

23 How often do you check with someone (advisor, teacher) to see if you’re on the right track?
32 How often do you seek feedback regarding the quality of your work?
33 How often do you set personal goals?
44 How often has criticism resulted in a significant improvement in your performance?
45 How often do you write down your goals and track your progress towards them?

Factor 5 Name: Performance Indifference
15 How difficult has it been for you to criticize your own performance?
17 How likely are you to accurately tell if your work will meet the standards for your supervisor?
21 How often are your standards for work higher than the standards others have for you?
26 How often do you decrease the difficulty of your goals to make them more attainable?
36 How often have you used other’s level of interest in a given activity to help you decide the level of your

own interest?
41 In school, when assigned a project, how often do you put in only enough effort to get a passing grade?
42 How often were you surprised by a grade you received in a course?
43 How often have you been surprised by requests for help from friends?
46 How often do you turn down a project because it is beyond your abilities?
52 When you are upset, how long does it take you to figure out what caused it?

Response formats (items were grouped by response format):
Items 1 – 12: Not At All Items 13 – 15: Not At All Difficult

Slight Extent Slightly Difficult
Moderately Extent Moderately Difficult
Large Extent Somewhat Difficult
To a Great Extent Extremely Difficult

Item 16: Not At All Important Items 17 – 20: Extremely Unlikely

Slightly Important Unlikely
Moderately Important Neither Likely Nor Unlikely
Somewhat Important Likely
Extremely Important Extremely Likely

Items 21 – 50: Never Item 51: Never

Rarely Rarely
Sometimes Sometimes
Frequently Frequently
Always Always

Item 52: Very Little Time Items 53 – 54: Much Less Time Relative To My Friends

A Little Time Less Time Relative To My Friends
Some Time Same Time Relative To My Friends
A Long Time More Time Relative To My Friends
A Very Long Time Much More Time Relative To My Friends

Management and its content may not be copied or emailed to multiple sites or posted to a listserv without the

individual use.

The Competent Community
Toward a Vital Reformulation of Professional Ethics

W. Brad Johnson United States Naval Academy
Jeffrey E. Barnett Loyola University Maryland

Nancy S. Elman University of Pittsburgh
Linda Forrest University of Oregon

Nadine J. Kaslow Emory University

Psychologists are ethically obligated to ensure their own
competence. When problems of professional competence
occur, psychologists must take appropriate steps to regain
competence while protecting those they serve. Yet concep-
tualizations of the competence obligation are thoroughly
intertwined with Western ideals of individualism and a
model of the person as self-contained, self-controlled, and
perpetually rational. Research in health care, education,
and multicultural and social psychology raise serious
doubts about psychologists’ capacity for consistently accu-
rate self-assessments of competence. To address this prob-
lem, the authors advocate that education, training, profes-
sional ethics standards, and credentialing criteria be
infused with a robust communitarian ethos and a culturally
pervasive ethic of care. The authors propose a shift in
discourse about competence to incorporate both competent
individuals and competent communities.

Keywords: ethics, competence, communitarian, self-assess-
ment, care

A person is a person through other persons.
—Zulu idiom

We are bound up in a delicate network of interdependence.
—Desmond Tutu

Developing and assessing competence increasinglyare the sine qua non of training and credentialingefforts in professional psychology (DeMers,
2009; Elman, Illfelder, & Robiner, 2005; Kaslow, 2004;
Kaslow et al., 2004; Rodolfa et al., 2005; Vasquez, 1992).
Professional psychologists—those who deliver services re-
quiring licensure— have an ethical obligation to establish
and maintain competence in those areas in which they
practice. Like other health care professions in Western
cultures (e.g., American Dental Association, 2011; Amer-
ican Medical Association, 2001, 2004), the American Psy-
chological Association’s (APA’s) “Ethical Principles of
Psychologists and Code of Conduct” (referred to here as
the Ethics Code; APA, 2010) holds the individual psychol-
ogist exclusively responsible for ensuring competence to
practice. Notions of self-contained identity, preeminence of
personal control, and presumed accuracy of self-assess-
ment drive professional standards that make ongoing eval-
uations of competence a largely private affair at the level of

the individual psychologist. This is the case despite the fact
that human beings are conspicuously inaccurate in their
self-assessments of any characteristic or competency (Dun-
ning, Heath, & Suls, 2004). Furthermore, increasingly di-
verse demographics require greater multicultural compe-
tence to practice ethically, yet evidence exists that
self-reported multicultural competence is only somewhat
correlated with objective measures of cultural competence
(Cartwright, Daniels, & Zhang, 2008; Constantine &
Ladany, 2000; Worthington, Mobley, Franks, & Tan,
2000). Unfortunately, psychologists and other health care
professionals suffer occasional problems of professional
competence (Elman & Forrest, 2007; Kaslow et al., 2007;
Tarkan, 2011). When personal distress, illness, or cognitive
decline—not to mention the natural degradation in the
currency of one’s education—place psychologists’ compe-
tence at risk, it may be both unreasonable and illogical to
expect psychologists to accurately predict adverse effects
of these events, or to fully recognize decrements in func-
tioning, let alone to formulate a cogent and ethical re-
sponse.

In this article, we propose a fundamental shift in
conceptualizations of the ethical obligation to maintain
professional competence. We advocate that individual no-
tions of accountability must be augmented with interdepen-
dent, collectivistic, or communitarian perspectives on eth-
ics, which balance individual responsibilities with
community obligations (Etzioni, 1998; Markus & Ki-
tayama, 1991; Pedersen, 1997). When communities of psy-
chologists accept responsibility for supporting the func-
tioning and professional competence of colleagues,
problems of professional competence will be less frequent

This article was published Online First February 20, 2012.
W. Brad Johnson, Department of Leadership, Ethics, and Law,

United States Naval Academy; Jeffrey E. Barnett, Department of
Psychology, Loyola University Maryland; Nancy S. Elman, Depart-
ment of Psychology in Education, University of Pittsburgh; Linda
Forrest, Department of Counseling Psychology and Human Services,
University of Oregon; Nadine J. Kaslow, Department of Psychiatry
and Behavioral Sciences, Emory University.

Correspondence concerning this article should be addressed to W.
Brad Johnson, Department of Leadership, Ethics, and Law, United States
Naval Academy, Luce Hall, Stop 7B, Annapolis, MD 21402. E-mail:
johnsonb@usna.edu

557October 2012 ● American Psychologist
© 2012 American Psychological Association 0003-066X/12/$12.00
Vol. 67, No. 7, 557–569 DOI: 10.1037/a0027206

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and less likely to harm consumers, the profession, and
psychologists themselves. We conclude with recommenda-
tions for the profession, including a shift from a predomi-
nantly individual and deontological ethics code toward one
that incorporates a robust communitarian ethic of care.

The Burgeoning Culture of
Competence in Psychology

For nearly three decades, professional psychology has
moved toward competency-based education, training, and
credentialing (Bourg, 1990; Rodolfa et al., 2005). Leaders
have fostered a “culture shift” that emphasizes acquisition
of competence during training and ongoing assessment of
competence over the course of one’s career (Kaslow, 2004;
Kaslow et al., 2004, 2009; Lichtenberg et al., 2007; Rob-
erts, Borden, Christiansen, & Lopez, 2005). This culture
shift recognizes that it is imperative that the profession
articulate the unique competencies that define a profes-
sional psychologist. Such clarity enables the profession to
communicate with its members and with the public about
the services psychologists provide (Kaslow, 2004). Kaslow
et al. (2009) asserted that “competence in health-care pro-
viders is demanded by consumers, expected and certified
by regulators, and lauded by policymakers” (p. 528).

Competence in professional psychology refers to de-
velopmentally appropriate levels of knowledge, skills, and
attitudes and their integration in various foundational do-
mains of functioning. The most durable and frequently
referenced definition of competence was offered by Epstein
and Hundert (2002): “Professional competence is the ha-
bitual and judicious use of communication, knowledge,
technical skills, clinical reasoning, emotions, values, and
reflection in daily practice for the benefit of the individual
and the community served” (p. 226). Although definitions

of competence center around a psychologist’s ability to
carry out certain tasks appropriately and effectively (John-
son et al., 2008; Kaslow, 2004), educators and supervisors
remain keenly aware of the complexity of competence and
the difficulties inherent in capturing its nuanced cognitive,
affective, and relational dimensions (Kaslow et al., 2009;
Pope & Vasquez, 2007). Although competence refers to an
overall or integrated macro facility as a psychologist, com-
petencies describe elements of knowledge, skills, and spe-
cific attitudes/values, or the essential micro components of
competence (Bourg, 1990; Kaslow et al., 2004).

Professional Competence as an
Ethical Obligation
Once a professional psychologist achieves licensure by
exhibiting entry-level competence, he or she is free of the
scrutinizing gaze of supervisors and generally not required
to ever again demonstrate competence or undergo peer
review. The one exception to this is the decision to secure
board certification in a specialty area, which entails a peer
review process for competency assessment (Nezu, Finch, &
Simon, 2009). However, only 2.5% to 3.0% of psycholo-
gists hold board certification (D. Cox, personal communi-
cation, October 28, 2011).

Systemic features of the profession’s current creden-
tialing and regulatory procedures exacerbate inattention to
competence among licensed psychologists. First, at pres-
ent, maintaining licensure is contingent merely upon doc-
umenting sufficient continuing education hours, and many
jurisdictions have no such requirements. It is indicative of
a systemic problem that psychologists often speak of main-
taining licensure, not maintaining competence. One notable
jurisdictional exception is Ontario, Canada, where psychol-
ogists complete a comprehensive self-assessment protocol
to document continued competence and develop a plan for
the enhancement of their competence (College of Psychol-
ogists of Ontario, 2011).

Second, the regulatory culture is largely complaint
driven. A psychologist conceivably may provide care be-
low minimum thresholds of competence for an entire career
without coming to the attention of a local community of
psychologists, an ethics committee, or a regulatory board.
Ethics committees and regulatory boards take action only
after potentially unethical behavior is brought to their at-
tention (Bennett et al., 2006; DeMers & Schaffer, 2011).
Unfortunately, not all substandard conduct is brought to
ethics committees’ and regulatory boards’ attention (Van
Horne, 2004). This complaint-driven approach unduly fo-
cuses on addressing ethical and legal transgressions and
fails to leverage the professional community to collabora-
tively prevent problems of competence and to aspire to
excellence.

Postlicensure, psychologists must individually accept
that their status as professionals invokes ethical and legal
obligations; each professional must individually embrace
an ethic of continual self-assessment of professional com-
petence across the life span (Roberts et al., 2005). Principle
A of APA’s Ethics Code underscores this obligation in

W. Brad
Johnson

558 October 2012 ● American Psychologist

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aspirational terms: “Psychologists strive to be aware of the
possible effect of their own physical and mental health on
their ability to help those with whom they work” (APA,
2010, p. 3). More important, in Standard 2.06, Personal
Problems and Conflicts, the Ethics Code details the indi-
vidual psychologist’s enforceable duty to continuously
self-evaluate competence and to take steps to protect con-
sumers when personal problems or conflicts threaten to
reduce competence:

(a) Psychologists refrain from initiating an activity when they
know or should know that there is a substantial likelihood that
their personal problems will prevent them from performing their
work-related activities in a competent manner.

(b) When psychologists become aware of personal problems that
may interfere with their performing work-related duties ade-
quately, they take appropriate measures, such as obtaining pro-
fessional consultation or assistance, and determine whether they
should limit, suspend, or terminate their work-related duties.
(APA, 2010, p. 5)

Because no ethical standard enjoins psychologists to
maintain close collegial or consultative relationships or
intervene and assist when a colleague’s competence begins
to ebb, assessing competence and taking appropriate mea-
sures to maintain competence remain an exclusively per-
sonal obligation. Although scholars concur that an ethical
psychologist should engage in continuous self-assessment
and remain acutely self-aware when it comes to level of
performance (Barnett, Baker, Elman, & Schoener, 2007;
Kaslow, 2004; Pope & Vasquez, 2007; Vasquez, 1992),
many psychologists never avail themselves of personal
psychotherapy (Guy, Stark, & Poelstra, 1988; Norcross,
2005) or ongoing consultation (Guy et al., 1988; Norcross,
2005).

The Problem(s) With Assessing
Professional Competence
Although psychology’s shift to a culture of competence,
which emphasizes formative and summative assessments
of trainees, has enhanced training rigor and efficacy, main-
taining competence beyond initial credentialing continues
to mean that psychologists rely on self-assessment and
voluntary consultation with colleagues if problems arise
(Roberts et al., 2005). Self-assessment of competence is
fraught with several disadvantages including the inherent
fallibility of human self-assessment and the fact that com-
petence is context driven and vulnerable to decrements in
the context of distress (Dunning, Johnson, Ehrlinger, &
Kruger, 2003). To make matters worse, psychologists are
reluctant to address problems of competence in colleagues,
even when they detect clear evidence of such problems
(Barnett, 2008; Barnett & Hillard, 2001; Bernard, Murphy,
& Little, 1987; Good, Thoreson, & Shaughnessy, 1995).

Human Beings Fail to Recognize Their Own
Problems With Competence

Across hundreds of studies in social psychology, human
self-assessments of skill and character traits are flawed in
substantive and systematic ways (Dunning et al., 2004);
“people tend to be blissfully unaware of their own incom-
petence” (Dunning et al., 2003, p. 83). On tests of humor,
grammar, logic, clinical skill, and desirable character vir-
tues, people overestimate their test performance and ability.
Ironically, this effect is most pronounced for the least
competent performers, who subsequently make unfortu-
nate, possibly unethical, personal and professional choices
(Kruger & Dunning, 1999). Those whose competence is
most compromised may be least able to effectively detect
problems with competence and respond appropriately.
“Poor performers are doubly cursed: their lack of skill
deprives them not only of the ability to produce correct
responses, but also of the expertise necessary to surmise
that they are not producing them” (Dunning et al., 2003,
p. 83).

To complicate matters further, psychologists, like
other human beings, are self-serving and prone to attribute
poor performance to bad luck or uncontrollable circum-
stances (Campbell & Sedikides, 1999). Vulnerability to the
self-serving bias persists across cultures and increases the
probability that a psychologist suffering problems of pro-
fessional competence will ignore performance problems or
attribute them to fleeting circumstances (Mezulis, Abram-
son, Hyde, & Hankin, 2004; Myers, 2009). Self-serving
bias, and a related perceptual predisposition, illusory opti-
mism—the belief that one is immune to misfortune—may
undermine a healthy appreciation for one’s vulnerability to
decreased competence and may prevent psychologists from
taking appropriate precautions (e.g., self-care, collegial
consultation, peer review, or limiting or closing one’s prac-
tice).

What about self-assessment efficacy among health
care professionals? Psychology, medicine, nursing, and
other health care professions increasingly are rooted in

Jeffrey E.
Barnett

559October 2012 ● American Psychologist

self-directed, lifelong learning that is contingent on self-
assessment of competence and ongoing professional devel-
opment activities. Unfortunately, medical providers often
fail to accurately assess their own competence levels (Da-
vis et al., 2006). Statistical correlations between physi-
cians’ self-rated performance and external assessments are
weak to nonexistent (Barnsley et al., 2004; Risucci, Toro-
lani, & Ward, 1989). Professionals who function in the
lowest quartile of competence are least able to accurately
self-assess or to use benchmark exemplars to improve their
performance (Hodges, Regehr, & Martin, 2001).

Some proportion of health care professionals have
difficulty recognizing the limits of their own competence;
as a rule of thumb, “people’s capacity to evaluate them-
selves and predict their behavior is usually quite modest
and often much more meager than common intuition would
lead one to believe” (Dunning et al., 2004, p. 70). If we
extrapolate from medicine to psychology, these findings
raise concerns about psychology’s adherence to a tradition
of self-directed learning and self-assessment and mainte-
nance of competence. Yet ethics codes and continuing
education policies in medicine, psychology, and other
health care disciplines presume that individual practitioners
are capable of recognizing and resolving their own com-
petence deficiencies (Eva, Cunnington, Reiter, Keane, &
Norman, 2004).

Professional Competence Is Impermanent
and Context Specific
The current system of training, credentialing, and regula-
tion implicitly assumes that competence, once achieved, is
relatively permanent and impervious to contextual effects
of the psychologist’s environment and/or wellness (John-
son et al., 2008; Schulte & Daly, 2009). Epstein and

Hundert (2002) reminded us that competence is “a state-
ment of the relationship between an ability (in the person),
a task (in the world), and the ecology of the health systems
and clinical contexts in which these tasks occur” (p. 228).
Competence demonstrated in one context—such as a state
hospital internship—may not effectively transfer to an ac-
ademic health sciences center, a college counseling clinic,
or private practice with children.

Similarly, multicultural scholarship confirms the im-
portance of cultural context in professional competence
(Knapp & VandeCreek, 2007; Vasquez, 2010). For in-
stance, culture often shapes help-seeking behavior, identi-
fication of prejudice and discrimination, diagnostic assess-
ment and intervention decisions, and the therapeutic
alliance and its outcomes (Arredondo et al., 1996; Peder-
sen, 1997).

In addition, competence is not always steady when
psychologists are faced with professional stress and per-
sonal distress. Several authors have cogently articulated the
“hazards” of psychotherapy practice for the psychologist
(Barnett et al., 2007; Barnett & Hillard, 2001; O’Connor,
2001; Smith & Moss, 2009), with one reflecting that “psy-
chotherapy is often a grueling and demanding calling”
(Norcross, 2000, p. 710). Sources of distress in professional
practice may include isolation from other professionals,
vicarious traumatization, or shame regarding one’s feelings
about clients who are persistently fragile, suicidal, or un-
responsive to intervention. Distress often forecasts emo-
tional exhaustion and burnout (Sherman & Thelen, 1998;
Smith & Moss, 2009). Professional distress occurs
when—in response to ongoing stressors, challenges, con-
flicts, or demands—a psychologist’s emotional state is
characterized by depression, anxiety, and fatigue (Barnett
et al., 2007; Norcross, 2000). Although distress does not
always lead to problems of professional competence (i.e.,
failure to meet expected performance benchmarks in one or
more competency domains; Elman & Forrest, 2007), it
increases the risk of diminished competence (i.e., lowered
levels of performance in one or more competency domains,
even if the reduced level of performance remains at or
above minimal competency standards).

How frequent are problems of professional compe-
tence? A significant proportion of practicing psychologists
experience episodes of considerable distress but often fail
to assess or take measures to address declining competence
(Advisory Committee on Colleague Assistance, 2006; Bar-
nett & Hillard, 2001; Sherman & Thelen, 1998). Surveys of
practicing psychotherapists indicate that between one third
and one half have experienced at least one serious episode
of depression, half have reported episodes of emotional
exhaustion, and nearly a quarter have had suicidal feelings
(Mahoney, 1997; Pope & Tabachnick, 1994). Although
emotional distress— even episodes of serious psychopa-
thology—need not pose an ethical concern if psychologists
accurately self-assess and effectively address their own
problems of professional competence, they often fail to do
so. Large surveys revealed that 59% of practicing psychol-
ogists continued to see clients when too distressed to be
effective (Pope, Tabachnick, & Keith-Spiegel, 1987),

Nancy S.
Elman

560 October 2012 ● American Psychologist

whereas 30% admitted that their personal problems de-
creased the quality of the care they provided (Guy,
Poelstra, & Stark, 1989; Sherman & Thelen, 1998).

And what of declining competence that is due to the
effects of aging and diminished cognitive acuity? Many of
us will experience a “terminal drop” in cognitive function-
ing in the years prior to death (Suedfeld & Piedrahita,
1984). As physicians age, they perform less effectively on
complicated surgical procedures (Tarkan, 2011); those with
mild cognitive deficits may not be aware that their perfor-
mance is flagging. As psychologists age, one can expect
similar problems of professional competence related to
advancing cognitive decline. Yet a significant proportion of
psychologists plan to practice well beyond the typical re-
tirement age, and nearly 13% in one survey planned to
practice until death (Guy, Stark, Poelstra, & Souder, 1987);
this proportion is likely to increase given the current neg-
ative economic environment. Although airline pilots must
submit to twice-yearly physical and psychological exams
after the age of 40 and accept mandatory retirement at age
65 (Tarkan, 2011), health care providers face no such
scrutiny unless a complaint triggers a regulatory investiga-
tion. Noting the crux of the problem as it pertains to
assessment of competence, Guy et al. (1987) wrote,

The problem of greatest concern is that it is the psychotherapist
alone who must make ongoing assessments regarding the impact
of advancing age on his or her clinical competency . . . obtaining
licensure or registration in most states [or provinces] permits the
clinician to practice without further supervision or evaluation
until death. (p. 817)

There are good reasons to question whether a newly
minted psychologist will have either the capacity or the will
to effectively self-assess his or her competence across a

lifetime of ever-changing job demands, varied life stres-
sors, bouts of intense personal distress, and ultimately,
physical and cognitive decline.

Reluctance to Address Problems of
Professional Competence in Colleagues
If psychologists are not always accurate in their self-as-
sessments, and if they are likely to experience distress and
episodic problems with professional competence, can they
count on colleagues to step in and help? Unfortunately,
psychologists admit that they might not directly approach a
colleague who appears to be functioning below thresholds
for competence or otherwise behaving unethically, even
when they believe that they are ethically obligated to do so
(Barnett, 2008; Bernard et al., 1987; Wilkins, McGuire,
Abbott, & Blau, 1990; Wood, Klein, Cross, Lammers, &
Elliott, 1985). This is not a problem limited to psychology
(Kruger & Dunning, 1999). When a psychologist exhibits
problems of professional competence, colleagues—if they
notice the problem—may avoid initiating a difficult discus-
sion and assisting the psychologist for several reasons: (a)
lack of certainty regarding their ethical duty to intervene,
(b) fear that there is insufficient evidence to intervene, (c)
concern about causing negative professional outcomes for
a colleague to whom they feel some loyalty, (d) worry
about harsh or unpredictable responses by regulatory
boards and ethics committees, (e) concern that if they
address or report a colleague’s behavior they will be os-
tracized by the community of psychologists, and (f) lack of
an established relationship with the psychologist sufficient
to warrant collegial intervention (Barnett & Hillard, 2001;
Biaggio, Duffy, & Staffelbach, 1998; O’Connor, 2001;
Smith & Moss, 2009). Additional multicultural factors may
affect psychologists’ decisions to intervene with col-
leagues, and these include (a) uncertainty about whether
prejudice, discrimination, or bias has occurred and if so
whether it was intentional or unconscious; (b) doubts about
their own multicultural competence; and (c) inexperience
and lack of skill at addressing multicultural issues (Toporek
& Williams, 2006).

Clues as to why psychologists might be reluctant to
address problems with colleagues are evident in the current
APA Ethics Code (APA, 2010). The only ethical standard
bearing on responsibility for monitoring colleagues is Stan-
dard 1.04, which enjoins APA members to seek informal
resolutions to confirmed or suspected ethical violations on
the part of other psychologists. Therefore, concerns about
competence need not trigger any intervention until the
colleague’s behavior rises to the level of a perceived ethical
transgression. To complicate matters further, failure to
intervene and support a colleague who exhibits question-
able competence may be fueled in part by the fundamental
attribution error (Ross, 1977). That is, when explaining
another psychologist’s behavior, each of us is inclined to
overestimate the extent to which problems of competence
reflect that individual’s traits or attitudes while underesti-
mating the impact of the situation on that individual’s
practice (e.g., relationship turmoil, financial difficulties,
physical illness, difficult client events). Our susceptibility

Linda Forrest

561October 2012 ● American Psychologist

to the fundamental attribution error helps to explain why it
might be it easy to blame a colleague for problems of
competence, thus electing avoidance or ostracism rather
than engagement and assistance.

Although formal Colleague Assistance Programs
(CAPs) might offer one avenue for outreach, assessment,
and peer support when a psychologist’s competence ap-
pears to falter (Barnett & Hillard, 2001), many struggling
professionals avoid these programs because they fear their
involvement might trigger regulatory board action, and
psychologists do not often recommend peers to CAPs for
fear of adversely affecting their peers’ ability to practice
(Schoener, 2005). Further, most state, provincial, and ter-
ritorial psychological associations do not offer formal
CAPs because of a lack of utilization (Advisory Committee
on Colleague Assistance, 2006; Barnett & Hillard, 2001).

Communitarianism and the
Ethics of Care
Western cultures often promote independent models of the
self that celebrate personal control and the preeminence of
individual rights and responsibilities. Moral philosophies
and ethical theories emerging from this individualistic con-
text tend to be deontological or rule based (James & Foster,
2006). Beginning with Plato, moral agents are construed as
continuously rational, healthy, and untroubled when delib-
erating the correct course of moral behavior (Macintyre,
1999; Markus & Kitayama, 1991). But traditional individ-
ualistic ethical theories have been criticized for erroneous
assumptions of impartiality and universality in ethical de-
cision making and an implied preference for emotional
detachment in the process of ethical reasoning (Beauchamp
& Childress, 2008; Meara, Schmidt, & Day, 1996).

In reaction to individualistic models of moral philos-
ophy, communitarian, feminist, and multicultural scholars
emphasize the salience of mutual interdependence and
emotional responsiveness in leading a moral life. Commu-
nitarians emphasize the interdependent self. From this per-
spective, professionals who acknowledge their embedded
position in a web of social connections, their human frailty,
and their genuine dependence on others will be better
equipped to effectively make ethical decisions (Macintyre,
1999; Markus & Kitayama, 1991).

Communitarianism
A communitarian perspective on a moral life recognizes
both individual dignity and the social dimension of human
existence (Etzioni, 1998). It is not only the individual who
owns ethical responsibilities; communities too have obli-
gations, including the duty to be responsive to members. At
the core of communitarian notions of social justice is the
idea of reciprocity; each member owes something to all the
rest. “If communities are to function well, most members,
most of the time, must discharge their responsibilities be-
cause they are committed to do so” (Etzioni, 1998, p.
xxxvi), not because they fear lawsuits or licensing board
complaints. Modern communitarian ethics draws upon the
African philosophy of Ubuntu embodied in the Zulu idiom
I am what I am because of who we all are, which stresses
the importance of connections and allegiances with others
in defining one’s identity (Ramose, 2003). Desmond Tutu
(1999) reflected that “a person operating from an Ubuntu
perspective is open and available to others and affirming of
others, aware that he or she belongs to a greater whole and
is diminished when others are humiliated or diminished”
(p. 35).

Moral philosopher Alasdair Macintyre (1999) spoke
to the salience of communitarian ethics for imperfect and
fallible human beings. He noted that in spite of our insis-
tence that we are independent, untroubled, and always lucid
moral agents, we are in fact highly “dependent rational
animals” (Macintyre, 1999, p. 2) who can only be under-
stood in terms of our vulnerability and ultimate dependence
on others. As human beings and professional psychologists,
each of us is vulnerable to affliction, and most of us will
experience a serious illness or incapacity. “How we cope is
only in small part up to us. It is most often to others that we
owe our survival, let alone our flourishing” (Macintyre,
1999, p. 1). Communitarians accept that some measure of
caring, sharing, and being our brother’s or sister’s keeper is
essential for the preservation of dignity, happiness, and
healthy functioning (Etzioni, 1998). As though speaking
directly to the issue of competence among professionals,
Macintyre (1999) addressed the value of interdependence
in moments of personal distress and need: “I must be able
to trust you and rely on you, not only in the routine
transactions of everyday life, but also and especially when
I am something of a burden and a nuisance, by reason of
my disabilities” (p. 110). Far from eschewing personal
responsibility, communitarian philosophy acknowledges
that to flourish, we need to refine virtues that allow us to
function as accountable moral agents and acknowledge the

Nadine J.
Kaslow

562 October 2012 ● American Psychologist

extent of our dependence on others (Macintyre, 1999;
Markus & Kitayama, 1991). If psychologists and other
professionals resist notions of the virtuous community for
fear that such interdependence limits personal freedom and
opens the door to criticism and even punitive responses,
communitarians would remind us of the paradox that “free-
dom comes only by participation in a truthful polity capa-
ble of forming virtuous people” (Hauerwas, 1981, p. 3).
Psychologists functioning with a communitarian perspec-
tive would feel some sense of accountability for the com-
petence and well-functioning of their colleagues; show less
reticence and suffer less shame about exposing imperfec-
tions, emotional distress, and need for assistance with col-
leagues; and share a concern for the common good that
would include all those served by their professional com-
munity, not just their own individual clients/patients or
students/supervisees.

The Ethics of Care

Communitarian moral philosophy is allied with the ethics
of care, a strand of virtue ethics that is critical of utilitar-
ianism and Kantian deontological ethics emphasizing rules,
duties, impartiality, and universality. Borrowing from
Thomas Aquinas’s virtue of misericordia—a sense of em-
pathy or just generosity that allows one to understand
another’s distress as one’s own—an ethics of care empha-
sizes interdependence and communal relationships that en-
gage us emotionally and require a response of care to
neighbors in need (Held, 2005; Macintyre, 1999). The
modern ethics of care movement is linked most promi-
nently to Carol Gilligan (1982) and Nel Noddings (1984)
and their work in moral psychology and relational ethics.
Challenging justice-based models of moral reasoning, Gil-
ligan proposed that in contrast to an ethics of individual
rights and neutral principles, women tended to affirm an
ethic of care centering on empathic responsiveness within
an interconnected network of relationships (Beauchamp &
Childress, 2008; Gilligan, 1982). Following Gilligan, Nod-
dings (1984) proposed that the virtue of care involves an
orientation to relatedness and responsiveness to others’
needs. Relational ethics assumes that individual ethical
reasoning is important but not enough and that emotion and
relationship-based virtues (e.g., care, friendship, mercy,
benevolence, sensitivity) and interdependence are essential
when engaging in moral reasoning and ethical decision
making. From the perspective of an ethic of care, psychol-
ogists who become aware of a colleague’s distress or
diminished competence might ask first, “Who shall we be
in relation to our colleague?” (Jordan & Meara, 1990) and
only later ask, “What shall we do?”

The Contributions of Multicultural,
Feminist, and Social Justice
Psychology
Communitarian and ethic-of-care frameworks for under-
standing ethical practice in psychology share common
ground with feminist, multicultural, and social justice psy-
chology. Feminist and multicultural ethics scholars provide

strong critiques of psychology’s ethics as too immersed in
Western concepts of individuality and autonomy and as
ignoring values such as the salience of emotions, connec-
tion to others, and communal responsibilities (Brabeck,
2000; Brown, 2004; Houser, Wilczenski, & Ham, 2006;
Pedersen, 1997; Ridley, Liddle, Hill, & Li, 2001; Vasquez,
2010).

Ethical stances arising from collectivist cultures pro-
vide a window into how deeply individualistic perspectives
are embedded in the current APA Ethics Code. According
to multicultural ethicists, Western ideals of individualism
give short shrift to worldviews that focus on family and
community responsibilities. For many clients and psychol-
ogists of color, individual rights and needs are best under-
stood within a larger cultural frame. From a collectivist
perspective, the moral ethnocentrism of the APA Ethics
Code neglects this communal context. Psychologists prac-
ticing from dominant-culture perspectives may be less able
to accurately assess their competence to provide ethical
service to clients from collectivist cultural backgrounds.

Psychologists cannot meet their commitments to mul-
ticultural competence without incorporating a commitment
to social justice work that includes advocacy, prevention,
outreach to communities, and political action (Vera &
Speight, 2003). This commitment cannot be met without an
expansion of professional activities to include “advocacy
and intervention at the community and policy levels”
(Goodman et al., 2004, p. 794). From a social justice
perspective, competent ethical practice includes commit-
ting to serving clients and communities who have the least
power and are the most disenfranchised; seeking to ame-
liorate the power imbalances in society and in therapeutic
relationships; working collaboratively with indigenous
support systems; advocating and acting to reduce condi-
tions of domination and oppression; and promoting values
of compassion, care, and collaboration with clients and
their communities (Goodman et al., 2004; Toporek & Wil-
liams, 2006; Vera & Speight, 2003.)

Toward a Communitarian
Reformulation of the Competence
Obligation: Maybe Competence
Takes a Village
In this final portion of the article, we encourage a bold
reconceptualization of the competence obligation in pro-
fessional psychology and an accompanying culture shift in
training, regulation, and life in the community of psychol-
ogists. In 1997, Prilleltensky recommended that psychol-
ogy adopt a communitarian approach that fosters a balance
among values such as caring and compassion, collabora-
tion, democratic participation, and distributive justice. We
hope to nudge psychology toward a similar community
perspective vis-à-vis professional competence that is rooted
in an interdependent view of the self. Communitarian prin-
ciples challenge us to transform the culture of psychology
(Prilleltensky, 1997). If the community of psychology
views competence not only as an individual obligation but
also as a collective moral duty, we can think in terms of

563October 2012 ● American Psychologist

both competent psychologists and competent communities.
A psychologist’s competence must be consistently affirmed
and validated by competent colleagues.

Care as an Ethical Principle, Character Virtue,
and Community Norm
A genuinely communitarian psychology will be centered in
a commitment to care as an undergirding ethical principle,
a character virtue, and an abiding community custom. As a
matter of aspirational ethics, acting responsibly and com-
passionately toward others should be a foundational pillar
of moral thought and action. Although general ethical
principles do not represent obligations, as in the case of
enforceable standards, they do guide and inspire psychol-
ogists toward the highest ethical ideals (APA, 2010). It is
difficult to fathom the relevance of existing principles (e.g.,
beneficence, fidelity, integrity, justice, respect) without a
firm commitment to the principles of care and compassion
(Prilleltensky, 1997).

If care is a salient ethical principle, it is an equally
prominent professional character virtue. Indeed, concern
for others is one of the essential components of the profes-
sionalism competency within professional psychology (El-
man et al., 2005; Fouad et al., 2009; Kaslow et al., 2009).
Virtue ethics call upon psychologists to aspire toward ide-
als and develop traits of character that enable them to
achieve those ideals (Jordan & Meara, 1990; Meara et al.,
1996). Many scholars agree that care and compassion for
others are vital for the character of health professionals
(Beauchamp & Childress, 2008; Kitchener, 2000; Pril-
leltensky, 1997; Stern, 2005). As character virtues, care and
compassion indicate deep concern and empathy for anoth-
er’s welfare. Kitchener (2000) reflected that “to act out of
care is not to respond in terms of fixed rules or principles
but out of affection and regard for another who is in a
particular circumstance” (p. 51). Genuine caring is difficult
work; the one caring should always act to bring about a
favorable outcome for the one cared for (Noddings, 1984).

Finally, care is a vital community norm. Communi-
tarian writers emphasize the importance of interdependent
self-concepts among members of high-functioning and car-
ing communities (Held, 2005; Markus & Kitayama, 1991).
When community members recognize their dependence
upon each other and respond with gratitude and reciprocal
care and concern, the community and its members are
likely to flourish (Macintyre, 1999). When care is a custom
within psychologist communities, psychologists will feel a
powerful sense of accountability for the personal well-
being and professional competence of their colleagues.
When care is a guiding ethical principle for a psychologist
as well as a matter of character, responding with compas-
sionate engagement to a colleague with diminished com-
petence will be an automatic reaction.

A Communitarian Recasting of the “Ethical
Principles of Psychologists and Code of
Conduct”
Ethics codes in the health professions provide rules and
guidelines regarding appropriate behavior for professionals

(Meara et al., 1996). Generally prescriptive and normative,
they are intended to protect the public by specifying what
professionals ought and ought not do. Like codes in other
mental health professions, the current APA Ethics Code
(APA, 2010) offers little guidance regarding obligations to
the community of psychologists and rests on the presump-
tion that individual psychologists are consistently capable
of recognizing and resolving their own competence defi-
ciencies (Eva et al., 2004).

The General Principles—aspirational moral ide-
als— of the APA Ethics Code include several principles
relevant to communitarian concern for colleagues: Princi-
ple A, Beneficence and Nonmaleficence; Principle D, Jus-
tice; and Principle E, Respect for People’s Rights and
Dignity. It is striking that the APA Ethics Code neither
includes Care and Compassion as a guiding general prin-
ciple nor conveys a clear obligation to the community of
psychologists. Although Beneficence (Principle A) comes
close in some respects with attention directed toward safe-
guarding the rights and interests of clients, it does not
explicitly encompass care for our colleagues.

We encourage the profession to modify and amplify
the principle of beneficence to incorporate a clearer focus
on care and compassion, not only for those who psychol-
ogists serve but also for members of the professional com-
munity. Alternatively, Care and Compassion could become
a distinct general ethical principle, differentiated from Be-
neficence and Nonmaleficence.

Moving from aspirational principles to ethical obliga-
tions, we maintain that Standard 2, Competence, in the
current APA Ethics Code (APA, 2010) requires attention.
In this article we have elucidated the problems inherent in
placing ethical responsibility for competence exclusively
on the shoulders of individual psychologists—particularly
when problems of competence occur. At present, psychol-
ogists must determine the contours of their own compe-
tence (Standard 2.01), maintain their competence (Standard
2.03), and limit or discontinue their professional work
when personal problems interfere with their competence
(Standard 2.06). Although the Ethics Code enjoins psychol-
ogists to seek appropriate consultation when deciding
whether to continue professional work (Standard 2.06),
such consultation is to be initiated by the individual and is
framed as a discrete event isolated from the whole of the
psychologist’s professional life. Further, Standard 2 cur-
rently creates no obligation for psychologists to look after
colleagues’ competence as a way of caring for them in
addition to safeguarding clients and the profession. We
share the view of Stern (2005) and others that, although
missing from our current ethics code, a humanistic concern
for others is a foundational component of professionalism.
We contend that concern for colleagues warrants direct
attention in our ethics code.

As examples of how a communitarian ethic might be
infused in the APA Ethics Code, we offer illustrations of
revised standards that reflect communitarian ideals and an
ethic of care and that respond to concerns raised by femi-
nist, multicultural, and social justice psychology. Although
it is beyond the scope of this article to propose a compre-

564 October 2012 ● American Psychologist

hensive reformulation of the APA Ethics Code, we hope
that these examples pique psychologists’ interest in recast-
ing the profession’s Ethics Code. Words in italics are our
additions to current standards:

Standard 2.03, Maintaining Competence: Psychologists undertake
ongoing efforts to develop and maintain their competence. Psy-
chologists maintain regular engagement with colleagues, consul-
tation groups, and professional organizations and routinely so-
licit feedback from these sources regarding their competence for
work in specific roles and with specific populations.

Standard 2.06, Personal Problems and Conflicts: (c) When psy-
chologists become aware that a psychologist colleague is expe-
riencing problems that may lead to interference with professional
competence, they offer care and support, and collaborate with
that colleague in assessing competence and determining the need
to limit, suspend, or terminate their work-related duties.

Other parts of the Ethics Code, including the Preamble, the
General Principles, and other Ethical Standards, might be
augmented in similar ways to reflect communitarian ideals.

On Creating Competent Communities:
Recommendations for the Profession
Moving forward, we urge psychologists to infuse commu-
nitarian assumptions and values into their notions of com-
petence across the life span of their careers, beginning with
graduate education. To address competence issues during
education and training, Forrest, Elman, and Shen-Miller
(2008) recommended using an ecological model (see Bron-
fenbrenner, 1979) that emphasizes nested, interacting lev-
els of the training system (individual trainee, peers, faculty,
supervisors, administrators, institutions, community, and
the broader culture). An ecological perspective initiates a
conceptual shift from a focus on individual trainees to a
systemic, interactive perspective for understanding and in-
tervening with competence problems (Elman, Forrest, Va-
cha-Haase, & Gizara, 1999; Forrest et al., 2008). This
perspective values reciprocal involvement in both preven-
tion and intervention, an approach compatible with the
communitarian approach we advocate here.

Reconceptualizing education and training from a com-
munitarian perspective requires training faculty and super-
visors both to teach communitarian concepts and to model
the framework in transparent actions. Current educational
practices that prioritize privacy and confidentiality for stu-
dents with competence problems appear to be grounded in
models more related to psychotherapy than training (For-
rest & Elman, 2005; Kaslow et al., 2007) and may need to
shift toward more transparency within the training commu-
nities so that students can learn about how to address
competence concerns they have with others. Results of
recent studies show that students are uncertain about (a)
whether faculty know about their peers’ unethical and
incompetent behaviors, (b) whether faculty are addressing
competence problems students observe in their peers, and
(c) their responsibilities as students when they observe
peers not meeting professional standards (Oliver, Bern-
stein, Anderson, Blashfield, & Roberts, 2004; Rosenberg,
Getzelman, Arcinue, & Oren, 2005; Shen-Miller et al.,

2011). Teaching and modeling a communitarian approach
to addressing competence problems within the training
community of psychologists would alleviate many of these
student concerns.

Curricular components that address competence stan-
dards, professionalism, self-reflection and self-assessment
(Forrest et al., 2008), as well as how to engage in conver-
sations with colleagues about competence concerns or
problems (Jacobs et al., 2011) are building blocks for
developing the values and skills necessary to act later as
licensed psychologists to seek help from colleagues or to
assist colleagues struggling to maintain competence. With
regard to their own vulnerability to diminished compe-
tence, trainees should be assisted in developing “defensive
pessimism” so that they might anticipate occasional prob-
lems of competence and remain motivated to respond pre-
ventatively and proactively to such problems in both them-
selves and their colleagues (Norem, 2000).

Because self-assessments of multicultural competence
are influenced by social desirablity and are not highly
correlated with more objective measures of multicultural
competence, special attention must be paid to diversity
issues in training. Yet many faculty are confused, uncer-
tain, uncomfortable, and often in conflict with each other
about how to address the intersection of diversity and
problems of competence, especially when racial differ-
ences are present (Shen-Miller, Forrest, & Elman, 2009).
Faculty groups in which multicultural realities are viewed
as competence issues (e.g., the lived experiences of faculty
of color, faculty whose programmatic research focuses on
diversity questions) do better than faculty groups that use
“color-blind” approaches that avoid or ignore the presence
of racial and ethnic differences in training environments
(Shen-Miller, Forrest, & Burt, in press). Training opportu-
nities focused on the intersection of competence and diver-
sity will build a stronger community of psychologists who
are ready to address multicultural competence as a key
component of professional competence.

Perhaps most important, trainees must be explicitly
prepared for the role of colleague in competence consulta-
tions (Johnson et al., 2008). New psychologists should
demonstrate competence in providing peer review; in con-
structively engaging troubled colleagues in what may be
difficult conversations about their competence; and in dem-
onstrating care for colleagues, those they serve, and the
profession (Biaggio et al., 1998; Forrest et al., 2008; Jacobs
et al., 2011; O’Connor, 2001). Graduating psychologists
with these values and skills will help create the shift to a
communitarian approach to competence.

We encourage APA’s Office of Program Consultation
and Accreditation to reexamine the “Guidelines and Prin-
ciples for Accreditation of Programs in Professional Psy-
chology” (APA, 2009) in light of these recommendations.
At present, trainees are required to demonstrate “attitudes
essential for lifelong learning, scholarly inquiry, and pro-
fessional problem-solving” (APA, 2009, p. 7), but there is
no mention of competence related to collegial consultation
or community-centric competence assessments. The inclu-
sion of such a communitarian focus on the active support of

565October 2012 ● American Psychologist

colleagues and on the prevention of problems of profes-
sional competence would be an important addition.

We also recommend a shift in the profession’s ap-
proach to ongoing credentialing (licensure). In light of the
fluidity and context specificity of competence, not to men-
tion its vulnerability in the face of personal distress and the
limitations of self-assessment, we encourage consideration
of requirements for ongoing peer consultation and occa-
sional multisource assessments of competence, such as
periodic 360-degree evaluations, case presentation reviews,
consumer surveys, live or recorded performance ratings,
and perhaps simulated role plays (Kaslow et al., 2009;
Lockyer, 2003; Roberts et al., 2005). Periodic recertifica-
tion of competence should become a requirement of licen-
sure renewal. We further encourage the Association of
State and Provincial Psychology Boards (ASPPB) and
APA to collaborate in creating language for model licen-
sure legislation that incorporates responsibilities to col-
leagues.

Finally, we introduce the notion of competence con-
stellations, which are based on the construct of mentoring
constellations (Higgins & Thomas, 2001; Johnson, 2007).
A competence constellation is a psychologist’s network or
consortium of individual colleagues, consultation groups,
supervisors, and professional association involvements that
is deliberately constructed to ensure ongoing multisource
enhancement and assessment of competence. Both the
composition and quality of a constellation are important.
We hypothesize that the quality of a psychologist’s com-
petence constellation will be determined by the quality of
both career and psychosocial support provided by the con-
stellation members (Higgins & Thomas, 2001). Career
assistance such as information, consultation, and compe-
tence appraisals can broaden and affirm competence. Psy-
chosocial assistance, such as emotional support and con-
cern during life’s tribulations, can bolster well-being and
self-confidence (Johnson & Barnett, 2011). A psycholo-
gist’s competence constellation might ideally include a
personal psychotherapist (Norcross, 2005). APA’s Advi-
sory Committee on Colleague Assistance (2006) can bol-
ster formation of competence constellations by enhancing
the viability of colleague assistance programs and peer-
assistance networks. Of course, training program faculty
and supervisors must model their own engagement in a
community of colleagues, and regulatory and credentialing
bodies need to require continued evidence of a psycholo-
gist’s participation in a constellation of competence-
minded colleagues.

Conclusion
Transitioning to a communitarian approach to professional
competence will not be without challenges. There may be
several perils along the way. First and foremost, the culture
of individualism criticized in this article runs deep, both
within the broader culture and specifically within psychol-
ogy (Prilleltensky, 1997). Strands of cross-cultural research
confirm that those of us from Western cultures are less
likely than those from interdependent cultures to take oth-
ers’ perspectives when interpreting their behavior (Wu &

Keysar, 2007); to the degree that psychologists value self-
determinism, they will be inclined to believe that profes-
sionals should behave autonomously (Prilleltensky, 1997).
Against the grain of Western values and professional
norms, psychologists must work against fears that commu-
nitarian engagement with colleagues may be perceived as
an effort to constrain personal freedom and intrude on
individual privacy.

Second, systemic change often generates resistance,
even when the existing system conflicts with the self-
interests of participants. Research on self-justification the-
ory (Jost & Hunyady, 2005) reveals that human beings will
legitimize and support ideologies that allow them to believe
in a just and rational world. This theory predicts that
psychologists may adhere to individualistic systems of
ethics in spite of the problems created by such an approach.

Finally, communitarian practice requires considerable
moral maturity, trust in one’s colleagues, and sufficient
education and preparation for one’s role in a community.
Not only must psychology trainees receive early experience
with collegial engagement, they must observe trainers who
are transparent, willing to be vulnerable, and connected to
colleagues. Last, psychology must take an honest look at
the ways in which our litigious society creates disincentives
for professional vulnerability and honesty.

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569October 2012 ● American Psychologist

PROFESSIONAL ETHICS IN
INTERDISCIPLINARY COLLABORATIVES:

ZEAL, PATERNALISM AND
MANDATED REPORTING

ALEXIS ANDERSON, LYNN BARENBERG & PAUL R. TREMBLAY*

In this Article, the authors, two clinical law teachers and a social
worker teaching in the clinic, wrestle with some persistent questions
that arise in cross-professional, interdisciplinary law practice. In the
past decade much writing has praised the benefits of interdisciplinary
legal practice, but many sympathetic skeptics have worried about the
ethical implications of lawyers working with nonlawyers, such as so-
cial workers and mental health professionals. Those worries include
the difference in advocacy stances between lawyers and other helping
professionals, and the mandated reporting requirements that apply to
helping professionals but usually not to lawyers. This Article ad-
dresses those concerns in a direct way, using social work as an exem-
plar for many kinds of interdisciplinary practices.

Part I ofthe Article explores the commitments of zeal and auton-
omy in interdisciplinary work involving lawyers and social workers.
It acknowledges that social workers and lawyers receive differing
training about advocacy stances, attention to the needs of the larger
society, and concern for the best interests of clients, and therefore are
apt to confront client interactions with dissimilar orientations. But
the authors conclude that those differences in orientation in fact offer
critical opportunities, when the professionals collaborate, for more
effective lawyering, rather than posing a risk to a lawyer’s or a social
worker’s ethical commitments. A lawyer and social worker team are
likely to offer clients a richer brand of legal representation when
working together than a lawyer working without the

collaboration

would provide. While some pointed ethical conflicts might arise, the
authors contend that those conflicts are not unlike those faced by any
reflective lawyer practicing without the benefit of collaboration.

* Alexis Anderson is an Associate Clinical Professor of Law at Boston Coiiege Law
School. Lynn Barenberg is a Lecturer in Law at Boston Coiiege Law Schooi and the Staff
Social Worker at tiie Boston Coiiege Legal Assistance Bureau. Paui Trembiay is a Clinical
Professor of Law at Boston Coiiege Law Schooi. The authors thank Dean John Garvey
and the Law Schooi Fund for generous support for this project, and Carol Liebman, Carlo
Obligato, the participants at a workshop held at the Committee for Pubiic Counsel Ser-
vices in Boston, and the participants at the UCLA/University of London Sixth Interna-
tional Clinical Conference at Lake Arrowhead, California for helpful comments on earlier
versions of this Article. We also thank Albert Chan, Jeremy Eggleton, Meredith Duval,
Mark Sullivan and Michael Yeung for their valuable research assistance.

659

660 CLINICAL LAW REVIEW [Vol. 13:659

Part II of the Article addresses the mandated reporter issue.
When lawyers and social workers (or other helping professionals)
collaborate, lawyers tend to be prohibited from reporting suspected
child abuse and neglect if learned during a client’s representation,
while social workers tend to be mandated by state law to make a re-
port. The authors contend that when a social worker serves within a
law firm or legal clinic as a consultant to the legal team, the social
worker ought not be covered by the state mandated reporting laws if
the lawyers are not so covered. If the social worker, by contrast, pro-
vides social work services to the law firm’s client, the state reporting
laws will apply, and the collaboration must account for the resulting
conflict in confidentiality duties.

INTRODUCTION

It is a rare legal problem that is in fact purely “legal.” As much
literature shows, nearly all disputes which end up among lawyers and
courts involve complex emotional and interpersonal dynamics,^ and
most involve “industries” other than the law.̂ To resolve those dis-
putes successfully, or even to “win” before a tribunal, a lawyer must
use skills other than those traditionally taught in law schools. Or, per-
haps more likely, the lawyer must associate with persons who possess
those skills. The benefits of an interdisciplinary law practice^ are be-
coming more and more apparent to lawyers and law teachers alike.^

1 See, e.g., Angela Burton, Cultivating Ethical, Socially Responsible Lawyer Judgment:
Introducing the Multiple Lawyering Intelligences Paradigm Into the Clinical Setting, 11
CLIN. L . R E V . 15, 24-25 (2004); Melissa Nelken, Negotiation and Analysis: If I’d Wanted to
Learn About Feelings, I Wouldn’t Have Gone to Law School, 46 J. LEGAL E D U C . 420, 427
(1996); Erin Ryan, The Discourse Beneath: The Emotional Epistemology In Legal Deliber-
ation and Negotiation, 10 H A R V . NEGOT. L . R E V . 231, 238 (2005); Marjorie A. Silver, Emo-
tional Competence and the Lawyer’s Journey, in T H E AFFECTIVE ASSISTANCE OF COUNSEL:
PRACTICING LAW AS A HEALING PROFESSION 5 (Marjorie A. Silver, ed., 2006) [hereinafter
T H E AFFECTIVE ASSISTANCE OF COUNSEL].

2 See, e.g., D A V I D A. BINDER, PAUL BERGMAN, SUSAN PRICE & PAUL R . TREMBLAY,
LAWYERS AS COUNSELORS 157, 159-61 (2d ed. 2004).

3 For purposes of this article, we refer to the collaborative law practice about which we
write, where a lawyer and a “helping professional,” see infra note 5, work as a team to
address the legal matters which the client has brought to the team, as interdisciplinary
practice. We distinguish that phrase, for our purposes, from multidiscipiinary practice,
commonly known as “MDP,” in which an institution, like a law firm, offers to its clients or
customers more than one kind of direct service, like legal services and accounting services.
In making this distinction we hope to keep separate the vast literature on MDP from the
more narrow, and insufficiently explored, questions we attend to here. For a reference to
some of the MDP literature, see infra note 9.

* See, e.g.. Special Issue on Legal Representation of Children: Proceedings of the
UNLV Conference on Representing Children in Families: Children’s Advocacy and Justice
Ten Years After Fordham, Recommendations of the UNLV Conference on Representing
Children in Families: Child Advocacy and Justice Ten Years after Fordham, 6 N E V . L J . 592,
598 (2006) (supporting interdisciplinary legal services for children); Susan R. Jones, Pro-
moting Social and Economic Justice Through Interdisciplinary Work in Transactional Law,

spring 2007] Interdisciplinary Collaborations 661

While lawyers tend to be well trained to identify and address spe-
cific legal issues of concern to their clients, they often feel ill-equipped
to work with the more challenging relationship issues presented in
their work with clients. These challenges affect all aspects of the law-
yering process, including intake, interviewing, counseling, case plan-
ning, and legal strategy decisionmaking. The ambition of
interdisciplinary collaboration is to provide lawyers with information
and skills that will help them to understand better and work more
effectively with clients throughout the lawyering process. Because of
their specialized training in human behavior, interpersonal dynamics,
mental health assessment, psychosocial assessment, and systems the-
ory, social workers and similar “helping professionals”^ are able to
help lawyers develop their practice knowledge and skills. The poten-
tial benefits of collaboration with other disciplines include more effec-
tive management of the lawyer-client relationship, more effective
interviewing and counseling, increased likelihood of a successful out-
come for the client, increased client cooperation, increased efficiency,
increased client satisfaction, enhanced client well-being, and reduced
lawyer stress.^

This Article explores some pointed ethical predicaments which

14 WASH. U . J . L . & POL’Y 249 (2004) (small business transactions); Randye Retkin, Gary
L. Stein & Barbara Hennie Draimin, Attorneys and Social Workers Collaborating in HIV
Care: Breaking New Ground, 24 FORDHAM U R B . L . J . 533 (1997) (AIDS practice); Jacque-
line St. Joan, Building Bridges, Building Walls: Collaboration Between Lawyers and Social
Workers In a Domestic Violence Clinic and Issues of Client Confidentiality, 1 CLIN. L . R E V .
403 (2001) (domestic violence clinic); Annie G. Steinberg, Child-Centered, Vertically Struc-
tured, and Interdisciplinary: An Integratlve Approach to Children’s Policy, Practice, and
Research, 40 FAM. C T . R E V . 116 (2002) (child-centered interdisciplinary practice); Pauline
H. Tester, Collaborative Family Law, 4 PEPP. DISP. RESOL. L.J. 317 (2004) (family law and
divorce practice).

5 In this article we use the term “helping professional,” as it recurs in social science
literature, to refer to those caregivers and counselors trained in the dynamics of human
relationships. See, e.g., Chris A. Milne, The Vermont Lead Law—An Opportunity to Serve
as a Helping Professional, 22 V T . B . J . & L. D I G . 17 (Dec. 1996) (distinguishing a “helping
professional,” concerned with a family as a whole from an advocate for a single member of
a family). Cf DEBRA A. POOLE & MICHAEL E . LAMB, INVESTIGATIVE INTERVIEWS OF
CHILDREN: A G U I D E FOR HELPING PROFESSIONALS (1998).

6 See, e.g., Joan S. Meier, Notes from the Underground: Integrating Psychological and
Legal Perspectives on Domestic Violence in Theory and Practice, 21 HOFSTRA L . R E V . 1295
(1993) (describing collaboration with a psychologist); Claire Donohue, untitled paper
(2005) (unpublished manuscript, on file with authors) (analyzing the author’s experiences
at a multi-service community-based clinic offering both counseling and legal services);
Maryann Zavez, The Ethical and Moral Considerations Presented by Lawyer/Social Worker
Interdisciplinary Collaborations, 5 WHITTIER J. CHILD & FAM. ADVOC. 191 (2005) (offer-
ing comments on experience practicing in an interdisciplinary family law clinic in Ver-
mont); Christina Zawisza & Adela Beckerman, Two Heads Are Better Than One: The
Case-Based Rationale for Dual Disciplinary Teaching in Child Advocacy Clinics, 1 F L .
COASTAL L . R E V . 631 (2006) (noting their experiences with interdisciplinary practice in
children and family law matters).

662 CLINICAL LAW REVIEW [Vol. 13:659

arise in an interdisciplinary practice. The Article will focus specifi-
cally on two common ethical topics arising in the context of lawyers
working with social workers, with the hope that the ideas included
here will have implications beyond that collaboration. In law school
clinic and poverty law settings, the lawyer/social worker collaboration
is the most common variety of cross-disciplinary practice. The insights
we discover from that setting ought to apply equally well to other
common, even if less prevalent, cross-professional relationships, in-
cluding lawyers working with doctors, nurses, psychologists, and simi-
lar helping professionals.^ Our treatment here will not address some
other equally interesting and challenging questions arising from mul-
tidisciplinary practice (MDP) in the business world, such as collabora-
tion between lawyers and other professionals such as accountants,
public relations specialists, financial planners, and title insurers.^
Those topics, perhaps because of their sheer financial importance,
have received substantial attention within ethics scholarship.^ Our
questions, by contrast, have begun to attract scholarly attention, but
substantially less thus far than the corporate MDP questions.^”

This article seeks to further the ongoing work of scholars of col-
laborative practice by honing in on two questions, the first general in
scope and the second more discrete, which remain the subject of some

^ As we shall see below, see text accompanying notes 40 and 54 infra, some of our
analyses of competing ethical responsibilities rely on the specific legal and professional
obligations of social work, as the profession we chose to explore. To the extent that we
have engaged in such profession-specific analysis, our conclusions may not be inevitably
applicable to a different helping profession. That acknowledgement notwithstanding, we
expect that the general suggestions and conclusions we offer here will have much relevance
to collaboration between lawyers and any other helping professional.

8 See, e.g., the intra-firm entity established by the Boston law firm of Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., known as ML Strategies, LLC, and described at
http://www.mlstrategies.com (last visited Feb. 18, 2007). For a general analysis of different
models for organization of legal entities involved in MDP, see J. Michael Norwood & Alan
Patterson, Problem-Solving in a Multidisciplinary Environment? Must Ethics Get in the
Way of Holistic Services?, 9 CLIN. L . R E V . 337 (2002).

9 See, e.g., Stacy L. Brustin, Legal Services Provision Through Multidisciplinary Prac-
tice: Encouraging Holistic Advocacy While Protecting Ethical Interests, 73 U. COLO. L .
R E V . 787 (2002); Mary C. Daly, Choosing Wise Men Wisely: The Risks and Rewards of
Purchasing Legal Services from Lawyers in a Multidisciplinary Partnership, 13 G E O . J. LE-
GAL ETHICS 217 (2000); Bryant G. Garth, “Prom the Trenches and Towers”: MDPs after
Enron/Andersen, Multidisciplinary Practice after Enron: Eliminating a Competitor but not
the Competition, 29 LAW & Soc. INQUIRY 591 (2004); George C. Nnona, Situating Multidis-
ciplinary Practice Within Social History: A Systemic Analysis of Inter-Professional Competi-
tion, 80 ST. JOHN’S L . REV. 849 (2006).

10 We will find that some of the insights generated by the conventional MDP debates
inform our discussion here. For instance, a significant worry within the MDP debate arises
from the different ethical roles and duties of nonlawyer professionals and lawyers, and
whether client interests will suffer as a result. See GEOFFREY C . H A Z A R D , JR., SUSAN P.
KoNiAK, R O G E R C . CRAMTON & G E O R G E M . COHEN, T H E LAW AND ETHICS OF LAW-
YERiNG 1120-21 (4th ed. 2005).

Spring 2007] Interdisciplinary Collaborations 663

uncertainty in the literature and the doctrine. Those questions are as
follows:

1) The Perceived Tensions Between the Lawyer’s Zeal or Client Au-
tonomy Commitments and the Social Worker’s Attention to
Broader Interests: The first, broader inquiry of this Article ex-
plores a common understanding—or perhaps misunderstand-
ing—of the effect of a lawyer/social worker collaboration. For
some this understanding is a worry; for others, an opportunity.
The basic idea is that a lawyer working with a social worker will
adjust her role responsibilities away from the typical unfettered
zeal and commitment to client autonomy that her legal training
has taught her. Social workers attend to a larger “moral commu-
nity” and to social justice concerns;^^ lawyers attend to the
wishes of their clients. Surely, the argument goes, these two ori-
entations must clash, and perhaps in ways which challenge a law-
yer’s ability to comply with her Rules-driven obligations, and
which challenge the social worker’s commitment to broader soci-
etal interests. We hope to understand this perceived tension, to
assess its validity, and to compare carefully the rules governing
lawyers’ work with the messages offered by (and the rules and
laws governing) the collaborating social workers.

2) The Mandated Reporter Question: The second topic of this Arti-
cle is, seemingly, the most challenging analytical problem faced
by non-lawyer professionals working within a law firm, or in con-
junction with a lawyer. The question is simple, but its answer
profoundly important: Is a professional who is otherwise man-
dated when acting in his professional role to report abuse to a
state agency subject to that same command when consulting or
collaborating with a lawyer? We will address that question di-
rectly and offer as clear an answer to it as the available doctrine
and our imagination permit.

Part I of this Article will address the first of those two topics.

11 See C O D E OF ETHICS OF THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, availa-
ble at http://www.socialworkers.org/pubs/cocie/code.asp (last visited February 10, 2007)
[hereinafter SOCIAL WORKER C O D E ] . While the NASW Code of Ethics is not binding on
social workers directly (much like the ABA’s Model Rules are not binding on lawyers until
adopted by a state), the Code’s provisions often serve as the basis for licensing regulations
in a state. See, e.g., I I I . ADMIN. C O D E tit. 68, § 1470.96(2) (2007)(defining “unethical,
unauthorized, or unprofessional conduct” of social workers); Ohio Counselor, Social
Worker & Marriage and Family Therapist Board Laws and Rules §B(4) (“the board sub-
scribes to codes of ethics and practice standards for . . . social workers . . . promulgated by
the . . . National Association of Social Workers [among other associations], which shall be
used as aids in resolving ambiguities which may arise in the interpretation of the rules of
professional ethics and conduct”). The Code also captures the sentiments conveyed by
social work training and philosophy. See Lisa A. Stanger, Conflicts Between Attorneys and
Social Workers Representing Children in Delinquency Proceedings, 65 FORDHAM L . R E V .
1123,1140-48 (1996) (describing the influence and teaching of the NASW Code of Ethics).

664 CLINICAL LAW REVIEW [Vol. 13:659

after a preliminary exploration of the differences, as well as the com-
monality, between the role expectations of the two professions. Part I
concludes that collaboration between lawyers and social workers is
likely to encourage richer and more robust legal representation on
behalf of the clients served by the collaboration. Part II then ad-
dresses the mandated reporter issue. It concludes that, while author-
ity is sparse at best, in certain settings the most reasonable
construction of the reach of the appropriate obligations would hold
that a social worker employed by a law firm is not bound by a report-
ing requirement. In other settings, especially those in which the social
worker provides services directly to the lawyer’s client, the most plau-
sible construction is that the reporting duty survives, notwithstanding
the legal ethics rules.

I. ROLE TENSIONS IN LAW-SOCIAL WORK PRACTICE

A. The Perceived Lawyer/Social Worker Divide

A broad concern arising from interdisciplinary practice is the po-
tential for a clash of professional orientations. From the lawyer’s per-
spective, it appears possible, and perhaps even likely, that an attorney
working in tandem with a social worker will tend to offer legal ser-
vices which are less zealous than those offered by a “solo” lawyer,
because social workers see disputes and problems with a more inclu-
sive perspective, and care more about a broader audience, than do
lawyers. It also seems possible, and perhaps even likely, that the law-
yer collaborating with a social worker, and influenced by the social
worker’s best interests-focused orientation, will tend to be more pa-
ternalistic than the “solo” lawyer. Were these predictions true, per-
haps a collaborating lawyer would need to obtain some explicit
informed consent from her client to this different, less client-centered
representation.i2 And, from the social worker’s viewpoint, the legal
collaboration could well produce analogous professional dilemmas
were he to join the cHent’s legal team as a consultant. We explore
these worries in this part. We conclude that they are ultimately un-
founded, although not without some substance. While lawyers and
social workers may initially approach their work from different start-
ing points, we maintain that any fear of irreconcilable professional

12 While there is no explicit mandate that requires attorneys to embrace client-centered
representation, see Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Re-
finement, 32 A R I Z . L . R E V . 501, 534 (1990), it is clear that attorneys must abide by clients’
lawful decisions. See M O D E L RULES OF PROF’L CONDUCT R . 1.2 (2003) [hereinafter
M O D E L RULES]. Thus, to the extent a collaborating lawyer might be less zealous, a client’s
decisionmaking could be adversely affected. As discussed more fully below in Section I.B.,
we conclude that this concern is ultimately unpersuasive.

Spring 2007] Interdisciplinary Collaborations 665

conflict is overblown. Instead, the collaboration between the two pro-
fessions offers the client the potential for an enhanced exploration of
the client’s goals and options during a comprehensive legal counseling
session undertaken before the lawyers embark on their zealous advo-
cacy with third parties.

Before turning to our analysis of the effect of interdisciplinary
collaboration on the ethical duties lawyers owe their clients, it is im-
portant first to test the common assumption that the two professions’
perspectives are fundamentally at odds. Were social workers and law-
yers to be fully allied in their cultures and professional mandates, then
any ethical concerns would disappear. Despite some shared profes-
sional values, social workers and lawyers do enter professional collab-
oration with different ethical mandates and distinct orientations to
their roles in working on behalf of clients, and it is these differences
that are potential sources of interdisciplinary tension.

Let us begin by acknowledging some shared fundamental values
as reflected in the ABA Model Rules of Professional Conduct and the
Social Worker Code of Ethics. Both lawyers and social workers iden-
tify as helping professionals. Both serve as counselors, advisors and
advocates for their clients. Both attempt to facilitate conflict resolu-
tion, while respecting chent self-determination and confidentiality. In
addition, both strive to uphold fundamental societal values and pro-
mote public service.i3 These values are at the core of each profes-
sion’s orientation to practice.

As important as it is to acknowledge the values shared by lawyers
and social workers, it is equally important to appreciate certain funda-
mental differences in their professional cultures and their approaches
to advocacy and problem-solving. Some of these distinctions reflect
contrasting objectives of the professional intervention; others reflect
differences in training and professional orientation. Both perspectives
have much to offer to the process of advocating on behalf of clients.

While any shorthand summary risks obscuring the complexities of
each profession’s work, we have found the following chart useful as an
introductory contrast of the two professional orientations to advo-
cacy.” But it is the professions’ contrasting trainings and perspectives

13 See MODEL RULES, supra note 12, Preamble, R. 1.2, 1.6, and 2.1; SOCIAL WORKER
CODE, supra note 11, Ethical Standards 1.01, 1.02, 1.07. See also Jane Aiken & Stephen
Wizner, Law as Social Work, 11 WASH. U . J. L. & POL’Y 63 (2003).

I-* We realize that the chart could mask the nuanced work of individual professionals.
For example, a good lawyer will concern herself with client well-being and the impact of
the case on third parties. She will also be a problem-solver to advance her client’s inter-
ests. A good social worker will have an interest in protecting his client’s legal rights and
autonomy. While recognizing its limitations, the chart, we believe, is a useful shorthand
description of the different trainings and orientations of the two disciplines.

666 CLINICAL LAW REVIEW [Vol. 13:659

that produce potential tensions in practice. Recognizing that no one
list can capture the complexities of professional life, we offer this di-
chotomy to suggest the different points of view each specialist brings
to the table.

Law Social Work
Adversarial process / Cooperative process / Problem

Litigation solving
Zealous advocacy for stated Safeguard best interest

interest
Protect legal rights Enhance client well-being
Protection of individual rights Consideration of third parties

and community
Address legal problem Address underlying cause of

problem
Analytic (break whole into Synthetic (put parts together

parts) to assess whole)
Focus on outcome Focus on process
Value professional autonomy Value professional

collaboration

For those lawyers who might be considering interdisciplinary col-
laboration with social workers, a number of professional responsibility
concerns arise. These include: the perceived tension between the law-
yer’s duty to represent the client’s stated interest zealously and the
social worker’s duty to enhance the client’s best interest and well-be-
ing,i5 the concern that consideration of the social work perspective
will increase lawyer paternalism and inhibit client autonomy, and the
worry that legal counseling will become legal “therapy.” In addition
to these specific concerns, interdisciplinary collaboration often raises
concerns about potential role and goal confusion.

We are not the first to discuss the challenges posed by interdisci-
plinary collaboration between social workers and lawyers. As Jean
Koh Peters described her experiences with social worker/attorney
partnerships, “due to the distinct ethical mandates of the two profes-
sions [ ] legal and social work practitioners must expect conflict and

15 See, e.g., Jean Koh Peters, Concrete Strategies for Managing Ethically-Based Con-
flicts Between Children’s Lawyers and Consulting Social Workers Who Serve the Same Cli-
ent, 1 KY. CHILD. RTS. J. 15 (1991); St. Joan, supra note 4. Surveys of professional
attitudes have shown that social workers and lawyers may need to build bridges toward
greater understanding. See, e.g., James L. Scherrer, How Social Workers Help Lawyers, 21
SOCIAL WORK 279 (1976) (noting conflicting professional attitudes which could undermine
successful attorney/social worker teamwork); Franklin B. Fogelson, How Social Workers
Perceive Lawyers, 51 SOCIAL CASEWORK 95 (1970) (survey of social workers suggested
distrust of lawyers which would adversely affect interdisciplinary collaboration).

Spring 2007] Interdisciplinary Collaborations 667

tension in cooperating to represent a common client.”^” Paula
Galowitz confirmed those concerns in her review of interdisciplinary
collaboration in legal services practice: “There is an inherent tension
between a lawyer’s and a social worker’s ethical responsibilities. The
lawyer’s responsibility is to advocate zealously for the client’s wishes,
while the social worker’s is to safeguard the client’s best interests.”‘”‘
More recently, Kate Kruse reached a similar conclusion: “[T]he pater-
nalism that the social work ethic entails remains in tension with the
deference to client autonomy inherent in the zealous advocate’s con-
struction of what it means to act in a client’s interest.”^^ While each
commentator proceeds to suggest protocols designed to resolve such
tensions, their analyses are bottomed on the presumption that ethical
conflicts must be expected in interdisciplinary practice.^^

Our starting point is somewhat different. Rather than presume
ethical tensions, we seek to explore those underlying assumptions.
While we grant that social workers and lawyers join forces with dis-
tinct professional orientations, it is our experience that these differ-
ences do not interfere with effective lawyering as might be expected,
but in fact serve to enhance lawyering. Ethical questions do arise, but
when carefully scrutinized, those ethical issues prove not to be irrec-
oncilable conflicts. Indeed, as developed below,2o these questions are
not qualitatively different from the ethical dilemmas faced by an at-
torney practicing without the benefit of another professional’s
wisdom.

With mutual understanding of one another’s professional respon-

sibilities, clearly stated role expectations, express administrative poii-

lt Peters, supra note 15.
‘^ Paula Galowitz, Collaboration Between Lawyers and Social Workers: Re-Examining

the Nature and Potential ofthe Relationship, 67 FORDHAM L . R E V . 2123, 2140 (1999).
‘^ Katherine R. Kruse, Lawyers Should Be Lawyers, But What Does That Mean?: A

Response to Aiken & Wizner and Smith, 14 WASH. U . J. L. & POL’Y 49, 76 (2004). Kruse’s
article offers important insights on the apparently competing views of professional role
held by lawyers and social workers. Her analysis attempted a reconciliation of the views
expressed in two articles presented at a conference held at Washington University School
of Law in March 2003, entitled “Promoting Justice Through Interdisciplinary Teaching,
Practice, and Scholarship.” The first article, by Jane Aiken and Stephen Wizner, chal-
lenged lawyers to think and act more like social workers. Aiken & Wizner, supra note 13.
The second, by Abbe Smith, offered a contrary view based on criminal defense practice
experience. Abbe Smith, The Difference in Criminal Defense and the Difference It Makes,
11 WASH. U . J. L . & POL’Y 83 (2003).

1̂ See also Joan L. O’Sullivan, Susan P. Leviton, Deborah J. Weimer, Stanley S. Herr,
Douglas L. Colbert, Jerome E. Deise, Andrew P. Reese & Michael A. Millemann, Ethical
Decisionmaking and Ethics Instruction in Clinical Law Practice, 3 CLIN. L . R E V . 109, 170
(1996) (describing teaching clinic with a social worker, and noting “the professions’ con-
flicting ethical obligations”); Stanger, supra note 11, at 1143 (“[s]ocial workers’ roles are
inherently different from those of lawyers”).

20 See text accompanying notes 41-44, 72-75 infra.

668 CLINICAL LAW REVIEW [Vol. 13:659

cies and protocols, and effective communication, the team members
can overcome the perceived tensions and anticipated concerns about
interdisciplinary practice. We have found that both clients and the
interdisciplinary practitioners benefit from the collaboration, making
the investment in the process well worth the candle.^i

In an effective interdisciplinary practice, it is expected that the
lawyer will maintain her role as zealous advocate, advocating for the
client’s stated interests, and protecting the client’s individual rights
and legal interests, but the process and “professional conversation”
will be qualitatively different from the process and dialogue of tradi-
tional lawyering practice. The lawyer will maintain her role as legal
counselor, not therapist; she will “work with” the client’s emotional
concerns to provide effective legal representation, not “work through”
them in the therapeutic sense. The social worker’s role will be defined
by the particular model of interdisciplinary practice being employed—
social worker as direct service provider (counselor, therapist, social
service/case management provider), social worker as expert consult-
ant, or social worker as member of the legal team. The social worker
will understand that, although the scope of the lawyer’s counseling
may be more comprehensive with social worker input, the lawyer’s
role is ultimately to represent her client’s stated interest. Thus, when
entering into collaborative practice, it is the responsibility of both the
lawyer and social worker to clarify practice models, define role expec-
tations, and identify potential professional responsibility concerns.

We now turn to two distinct ethical worries arising in interdiscipli-
nary practice—those of possibly diminished zeal and possibly exces-
sive paternalism.

B. The “Zeal” Worry

A hallmark of attorney-client relationships is the lawyer’s duty to
represent her clients zealously. Lord Brougham captured the stan-
dard years ago in his classic entreaty to his profession: “An advocate,
in the discharge of his duty, knows but one person in all the world,
and that person is his client. “22 Modern supporters of partisan advo-

21 In this article, we d o n o t p r e s u m e t o review t h e i m p o r t a n t field of t h e r a p e u t i c j u r i s –
p r u d e n c e which s e e k s , a m o n g o t h e r things, t o a d d r e s s t h e p o t e n t i a l l y a d v e r s e c o n s e –
q u e n c e s t o litigants’ m e n t a l h e a l t h a n d well-being o c c a s i o n e d by t h e legal system. See, e.g..
A F F E C T I V E A S S I S T A N C E O F C O U N S E L , supra n o t e 1; D A V I D W E X L E R , T H E R A P E U T I C J U R I S –
P R U D E N C E : T H E L A W A S A T H E R A P E U T I C A G E N T (1990). H o w e v e r , a d v o c a t e s of t h a t a p –
p r o a c h h a v e long extolled t h e benefits of interdisciplinary c o l l a b o r a t i o n .

22 T R I A L O F Q U E E N C A R O L I N E 8 (J. N i g h t i n g a l e ed., 1820-21), quoted in D E B O R A H
R H O D E & D A V I D L U B A N , L E G A L E T H I C S 137 (4th e d . 2004). It s h o u l d b e n o t e d t h a t L o r d
B r o u g h a m offered t h e s e r e m a r k s in t h e midst of c o n t e n t i o u s a n d politically c h a r g e d , high
s t a k e s litigation. H i s Q u e e n ‘ s h e a d was literally o n t h e line. W h e t h e r h e w o u l d h a v e d e –

Spring 2007] Interdisciplinary Collaborations 669

cacy defend their approach as instrumental in protecting client auton-
omy and in nurturing client loyalty and trust.^^

Not surprisingly, professional rules governing lawyers have incor-
porated mandates related to lawyer zeal. For example, the Model
Code of Professional Responsibility promulgated in 1969 included a
specific directive on “Representing a Client Zealously.”^* Then, in
1983 the Model Rules of Professional Conduct (“Model Rules”),
which serve as the framework for the disciplinary rules in the vast
majority of jurisdictions, required lawyers to advocate for clients’
goals, though arguably in a somewhat more muted fashion than earlier
codes.

Model Rule 1.2 currently provides as follows: “A lawyer shall
abide by a client’s decisions concerning the objectives of representa-
tion . . . .”25 Subject to the lawyer’s companion duty of candor toward
tribunals,^^ attorneys retain special duties within our adversarial sys-
tem to press for their clients’ goals.̂ ‘̂ Litigators are their clients’
champions in the good fight to obtain the clients’ desired

scribed t h e r o l e of an a t t o r n e y as c o u n s e l o r t h e s a m e as litigator h a s b e e n frequently d e –
b a t e d . See D e b o r a h L. R h o d e , An Adversarial Exchange on Adversarial Ethics, 41 J.
L E G A L E D U C . 29 (1991).

23 F o r a r e c e n t review of t h e l i t e r a t u r e o n t h e v a l u e s i n h e r e n t in c l i e n t – c e n t e r e d r e p r e –
s e n t a t i o n , see K a t h e r i n e R. K r u s e , Portress in the Sand: The Plural Values of Client-Cen-
tered Representation, 12 C L I N . L . R E V . 369 (2006).

2” See M O D E L C O D E O F P R O F E S S I O N A L R E S P O N S I B I L I T Y , D R 7-101 [ h e r e i n a f t e r
M O D E L C O D E ] ( p r o v i d i n g t h a t “[a] lawyer shall n o t i n t e n t i o n a l l y fail t o seek t h e lawful
objectives of his client t h r o u g h r e a s o n a b l y available m e a n s p e r m i t t e d by law a n d t h e Disci-
plinary R u l e s , e x c e p t as p r o v i d e d by D R 7-101 ( B ) . . . ” ) . See also A M E R I C A N L A W I N S T I –
T U T E , R E S T A T E M E N T ( T H I R D ) O F T H E L A W G O V E R N I N G L A W Y E R S §16 (2001) [ h e r e i n a f t e r
R E S T A T E M E N T ] (“a lawyer m u s t , in m a t t e r s within t h e s c o p e of t h e r e p r e s e n t a t i o n . . .
p r o c e e d in a m a n n e r r e a s o n a b l y c a l c u l a t e d t o a d v a n c e a client’s lawful objectives, as d e –
fined by t h e client after c o n s u l t a t i o n . . . . ” ) .

25 N o t e t h a t M o d e l R u l e 1.2 (c) allows a lawyer t o limit client objectives if t h e client’s
i n f o r m e d c o n s e n t is o b t a i n e d . M O D E L R U L E S , supra n o t e 12, R. 1.2(c).

26 Id. at R. 3.3.
27 See also id. a t P r e a m b l e ( ” A s a d v o c a t e , a lawyer zealously asserts t h e client’s posi-

tion u n d e r t h e rules of t h e a d v e r s a r y s y s t e m . ” ) . T h e C o m m e n t t o R u l e 1.3 d e s c r i b e s t h e
d u t y of zeal: ” A lawyer m u s t also act with c o m m i t m e n t a n d d e d i c a t i o n t o t h e i n t e r e s t s of
t h e client a n d with zeal in a d v o c a c y u p o n t h e client’s behalf.” Id. at R. 1.3, C m t . [1].

28 P a r t i c u l a r l y in t h e criminal d e f e n s e c o n t e x t , s o m e c o m m e n t a t o r s h a v e g o n e o n e s t e p
further a n d a r g u e d t h a t t h e lawyer’s role m u s t b e n a r r o w l y defined t o focus on t h e rights
a n d n e e d s of t h e l a w y e r s ‘ client, t o t h e exclusion of t h e larger c o m m u n i t y . See generally.
S m i t h , supra n o t e 18. Q u i t e recently, a d v o c a t e s of zeal h a v e f o u n d t h e i r view of t h e p r o –
fessional r o l e of t h e criminal d e f e n s e b a r c h a l l e n g e d . Compare M o n r o e F r e e d m a n , In
Praise of Overzealous Representation—Lying to Judges, Deceiving Third Parties, and Other
Ethical Conduct, 34 HOFSTRA L . R E V . 771 (2006) and Anita Bernstein, The Zeal Shortage,
34 HOFSTRA L . R E V . 1165 (2006) with Fred Zacharias & Bruce Green, Reconceptualizing
Advocacy Ethics, 74 G E O . L . R E V . 1 (2005). Prof. Freedman suggests that Lord
Brougham’s conception of zeal is still the fundamental lawyering obligation. See Monroe
Freedman, Henry Lord Brougham and Zeal, 34 HOFSTRA L . R E V . 1319, 1319 (2006) (re-
sponding to Zacharias and Green).

670 CLINICAL LAW REVIEW [Vol. 13:659

Contrast the attorneys’ professional role with that of social work-
ers, who are ethically obligated to pursue their clients’ best interests
and are more attentive to the needs of others around the client. As
provided in the National Association of Social Workers’ Code of Eth-
ics,29 the professional charge of social workers is to:

enhance human well-being and help meet the basic human needs of
all people . . . . A defining feature of social work is the profession’s
focus on individual well-being in a social context and the well-being
of society.30

Furthermore, social workers bear the responsibility of weighing their
duties to the “larger society” against their clients’ interests.^^ Indeed
the social workers’ code is clear that their duties to others may trump
their duties to promote the well-being of their clients: “Social workers
may limit clients’ right to self-determination when, in the social work-
ers’ professional judgment, clients’ actions or potential actions pose a
serious, foreseeable, and imminent risk to themselves or others.”^^

Similarly, the existing literature on interdisciplinary collaboration
generally presumes that ethical tensions will arise when social workers
and lawyers join forces to represent a client. Professionals from both
camps describe ethical concerns as inherent in interdisciplinary
practice.33

Given the conflicting missions and professional dictates of attor-
neys and social workers, is legal collaboration likely to produce seri-
ous ethical tensions that undermine the collaborative project? While
instances of joint delivery of services by both professionals raise the
most challenging ethical tensions, even those interdisciplinary issues
are not insurmountable. We need to start with a clear understanding
of the role each member of the team is being asked to play. Once
those duties are determined, then we can scrutinize their conduct to
determine if ethical breaches are likely to occur. We conclude that
clear definition of professional role and intra-team communication

29 W h i l e t h e Social W o r k e r C o d e is n o t in itself b i n d i n g law, s t a t e professional l i c e n s u r e
rules p r o v i d e t h e basis for legal s a n c t i o n . F o r a d d i t i o n a l discussion, s e e supra n o t e 1 1 .

30 See S O C I A L W O R K E R C O D E , supra n o t e 1 1 , a t P r e a m b l e . See also text a c c o m p a n y i n g
n o t e 14 supra.

31 Id. at 1.01 ( ” C o m m i t m e n t t o C l i e n t s ” ) .
32 Id. at 1.02 ( ” S e l f – D e t e r m i n a t i o n ” ) .
33 See generality P e t e r s , supra n o t e 15, a t 24 ( n o t i n g t h a t ” i n t e r – e t h i c a l t e n s i o n s t h a t

m a n y c h i l d r e n ‘ s lawyers a n d their c o n s u l t i n g social w o r k e r s e x p e r i e n c e in w o r k i n g t o g e t h e r
for t h e i r clients a r e b o t h i n h e r e n t a n d m a n a g e a b l e ” ) ; G a l o w i t z , supra n o t e 17. See also
J o s e A s h f o r d , M a r y Wirtz M a c h t & Melissa M y l y m , Advocacy by Social Workers in the
Public Defender’s Office, 32 S O C I A L W O R K 199, 202 (1987) ( n o t i n g i n h e r e n t difficulties in
interdisciplinary c o l l a b o r a t i o n if t h e c o m p e t i n g views of t h e l a w y e r ‘ s ” a d v o c a c y ” role a n d
t h e social w o r k e r ‘ s ” b e s t i n t e r e s t ” a p p r o a c h a r e n o t r e s o l v e d a n d suggesting t h a t c h a n g e s
t o t h e Social W o r k e r C o d e m a y b e r e q u i r e d lest t h e social w o r k e r b e r e l e g a t e d t o a r o l e
t a n t a m o u n t t o t h a t of a s e c r e t a r y t o t h e legal t e a m ) .

Spring 2007] Interdisciplinary Collaborations 671

will help ensure ethical conduct and effective representation by all
professionals.

As in most clinical discussions, context is critical. Therefore, we
offer the following scenario built off a clinic case we handled. That
our examples involve law school clinics should not be surprising. As
clinical teachers, we write most readily about our own work and our
experiences in a storefront, civil legal services clinic engaged in pov-
erty law practice.34 We have also chosen to ground our discussions in
our clinical work because much of the interdisciplinary collaboration
that exists today occurs in those university settings and our audience is
most likely to experience these issues in that context. However, the
clinical setting is not central to our analysis.

Jane was a feisty mother who came to the clinic seeking a divorce
from her husband, John, of fifteen years. Jane had devoted her life to
her family, particularly her two sons, having abandoned her career in
the nursing field to put her children first. She was also a survivor: Jane
wanted to ensure that her contributions were recognized and valued,
something John had been loath to acknowledge over the years. John
was a local firefighter, well-respected in the community and an ac-
tively involved father who coached their boys’ Little League teams. It
was clear to both parties that their marital relationship was over; years
ago, both parties had alleged that the other was abusive and mutual
restraining orders had been obtained, which had since expired. Rec-
onciliation efforts were unsuccessful, and it was unclear which party
would file first for divorce.

While no one doubted that Jane was a caring mother, Jane
seemed ambivalent about seeking custody of the boys. She recog-
nized that the boys were close, that they both had good relationships
with their father, and that she was often overcome by the responsibili-
ties of caring for teenage boys. Jane, however, was anything but am-
bivalent about her feelings toward John. The chnic team found that
she became obstinate and abrasive whenever she sensed that John
might have the upper hand in any aspect of the divorce proceeding.

Initially, Jane sought and won temporary custody orders over the
parties’ two sons, Albert fourteen, and Jeremy thirteen, despite the
fact that both boys expressed a preference to be with their father.
Jane’s efforts to maintain the family home and thus stable schooling

34 The authors practice at the Boston College Legal Assistance Bureau (“LAB”), a
non-profit organization founded some 40 years ago to offer legal services to the surround-
ing community. Since the 1970s, a licensed independent clinical social worker has been on
staff and served as a consultant to the legal team.

672 CLINICAL LAW REVIEW [Vol. 13:659

arrangements for the boys initially persuaded the judge to grant her
physical custody. She shared joint legal custody with John, who ob-
tained very liberal visitation rights. Once school closed for the sum-
mer, though, the boys voted with their feet and essentially moved in
with their father.

As the time of the final divorce hearing approached, Jane’s am-
bivalence resurfaced. She acknowledged being relieved at being freed
of childcare responsibilities; however, she did not want to concede any
ground to John. So, Jane suddenly adopted a new goal, which she
acknowledged was motivated partly by spite: she asked the clinic team
to help her maintain custody of just Jeremy. The team observed her
actively trying to undermine the relationship between Jeremy and his
father and between Jeremy and his brother. She began trying to bribe
Jeremy’s affections with gifts and preferential treatment. And, by her
actions and words, Jane did her best to ahenate the elder son. She was
mean-spirited to Albert, cementing his desire to stay with John. Her
instructions to her legal team were clear: “I want to keep Jeremy; his
father can have Albert.” John and his counsel argued for custody of
both boys and marshaled significant evidence from teachers, neigh-
bors, etc. that it was in the boys’ best interests to stay together and
with their

Let us assume that an interdisciplinary team comprised of a stu-
dent lawyer, supervising attorney, and a consultant social worker has
offered to represent Jane in her divorce. As they introduce them-
selves to Jane at the initial intake meeting, they explain their distinct
roles. The team will be led by the clinic student and her supervising
attorney; the social worker will not offer direct counseling services to
the client, but rather will confer with the legal team as a consultant.
Initially, Jane’s goals are clear and unquestionably lawful; she has a
legal right to divorce John given the irretrievable breakdown of their
marriage. No ethical rubs so far.

If we fast forward, however, to the later chapters of the represen-
tation, we find that Jane’s goals have become more complex. The di-
vorce risks being stalled over a messy custody battle if Jane persists in
her more recently announced goal of winning custody of Jeremy. Fur-
thermore, the legal team has begun to question Jane’s motives in
claiming custody of Jeremy. When pressed during a counseling ses-

35 We recognize that the Court would likely appoint a guardian ad litem (GAL) to
represent the interests of the minor boys. However, for simplicity’s sake, we have nar-
rowed the cast of characters since we do not believe the presence of a GAL would change
our analysis of this scenario.

Spring 2007] Interdisciplinary Collaborations 673

sion, Jane has acknowledged that her new objective is motivated in
part by revenge toward John.

At this juncture, let us pause and reassess the ethical duties of the
interdisciplinary legal team. At first blush, one could envision an un-
workable tension. On the one hand, a parent facing the loss of cus-
tody of her child is entitled to all the zeal her attorney can muster.^^
On the other, the social worker would be obligated to attend to the
family’s best interests post-divorce and would likely have real con-
cerns about separating the boys.

Here is where skeptics who question the feasibility of interdisci-
plinary collaboration would call a halt to the teamwork or, at a mini-
mum, raise serious questions about its efficacy. The doubters will
foresee an irreconcilable clash of professional rules and culture that
would interfere with the attorneys’ duty to provide the zealous repre-
sentation that Jane deserves. Since Jane’s goal of obtaining custody of
Jeremy is lawful, ‘̂’ her lawyers could champion her cause, unfettered
by concerns about the impact of the lawyer’s arguments on the boys’
relationship to each other or Jeremy’s connection with his father.
And, they might argue, the lawyers certainly do not need one of their
own firm members working to undermine their efforts by raising ques-
tions about the family’s welfare.^s Thus, a skeptic might conclude ei-
ther that the collaboration is inimical to the most effective
representation of Jane, or that the team ought to obtain Jane’s in-
formed consent, after adequate consultation, to this hobbled
representation.39

Our assessment, bolstered by our own experiences with interdis-
ciplinary collaborations, leads us to question the worriers’ premises.

36 While a p a r e n t h a s n o c o n s t i t u t i o n a l right t o r e p r e s e n t a t i o n in a c u s t o d y d i s p u t e ,
s o m e h a v e a r g u e d t h a t t h e i n t e r e s t s at s t a k e a r e so f u n d a m e n t a l as t o r e q u i r e z e a l o u s r e p –
r e s e n t a t i o n akin t o criminal d e f e n s e . Lassiter v. D e p ‘ t of Social Services, 452 U . S . 18
(1981) ( u l t i m a t e l y h o l d i n g t h a t n o right t o r e p r e s e n t a t i o n exists). F o r views o n t h e zeal
r e q u i r e d in criminal r e p r e s e n t a t i o n , see generally S m i t h , supra n o t e 18. See also The Ed-
ward V. Sparer Symposium on Civil Gideon: Creating a Constitutional Right to Counsel in
the Civil Context, 15 T E M P . P O L . & C i v . R T S . L . R E V . 557 (2006).

37 See M O D E L R U L E S , supra n o t e 12, R. 3.1 ( p r o h i b i t i n g lawyers from b r i n g i n g a frivo-
lous c l a i m ) ; id. at C m t . [2] ( ” T h e action is frivolous, h o w e v e r , if t h e client desires t o h a v e
t h e action t a k e n p r i m a r i l y for t h e p u r p o s e of h a r a s s i n g o r maliciously injuring a p e r s o n . ” ) .

38 It s h o u l d b e n o t e d t h a t this d e s c r i p t i o n of a t t o r n e y c o n d u c t a s s u m e s t h a t a m o d e l of
z e a l o u s r e p r e s e n t a t i o n p r e s e n t s a s h a r p c o n t r a s t with t h e best i n t e r e s t s a p p r o a c h of t h e
social w o r k profession. H o w e v e r , s o m e c o m m e n t a t o r s h a v e u r g e d lawyers t o c o n s i d e r
t h e i r responsibility t o local m o r a l c o m m u n i t i e s in lieu of a m o d e l of p u r e client loyalty.
See, e.g., T h o m a s Shaffer, Towering Figures, Enigmas, and Responsive Communities in
American Legal Ethics, 51 M E . L . R E V . 229 (1999).

39 T h e critics m i g h t c o m p a r e t h e c o l l a b o r a t i v e t e a m r e p r e s e n t a t i o n t o a lawyer o p e r a t –
ing u n d e r a p o t e n t i a l conflict of i n t e r e s t s , which w o u l d r e q u i r e an i n f o r m e d waiver by t h e
client b e f o r e t h e r e p r e s e n t a t i o n could p r o c e e d . See M O D E L R U L E S , supra n o t e 12, R.

674 CLINICAL LAW REVIEW [Vol. 13:659

If we analyze the perceived ethical rubs more closely, it is less appar-
ent that an intra-team conflict would undermine the collaboration. In-
deed, we believe that a reflective lawyer, operating without the
benefit of collaboration with another professional, would likely recog-
nize many of the same concerns that the team’s social worker has flag-
ged and navigate them successfully. Therefore, while challenging, the
professional questions which arise in this case are not unique to inter-
disciplinary collaboration, but may be attended to more thoughtfully
and effectively with the benefit of the collaborative process.

At the outset, however, we acknowledge that the skeptics have
correctly defined the two disciplines’ professional duties. We presume
that the social worker on the legal team will be attentive to how all the
family members will be affected by the divorce.”*” Jane’s new goal of
wresting custody of Jeremy from his dad will likely be of concern, es-
pecially if independent evidence and the social worker’s own clinical
assessment support a contrary decision. Therefore we should assume
that the social worker will resist—or at least question—Jane’s spiteful
efforts to grab Jeremy from his father.

Similarly, during the court proceedings, we acknowledge that
most conventional role definitions would say that Jane’s lawyers must
zealously advocate with John’s counsel and with the judge for Jeremy
to stay with mom. Our clinical team would be ethically bound to put
John (and any witnesses testifying on his behalf) to the test when his
attorney tries to prove that Jeremy should stay with his father.

We acknowledge that the legal team is ethically bound to be
Jane’s zealous champion in court. However, we do not believe that
the interdisciplinary collaboration is fatally hobbled because the
team’s ultimate duty is zealous representation. Rather, we contend
that the profound changes to the texture and nature of the team’s rep-
resentation of Jane would occur at the pre-hearing stage before the
partisan advocacy with third parties begins. Specifically we invite
closer scrutiny of the legal team’s counseling with Jane and of the dia-
logue that would likely occur between the professionals in preparation
for the counseling session itself. What would the lawyers and social
worker be saying about their different perspectives within team meet-
ings and with Jane? As developed below, we believe that the crux of
the interdisciplinary collaboration would happen in those intra-team
meetings and would foster the richer, more nuanced client interac-
tions that are the hallmark of good lawyering.

If asked in the privacy of their office, it is hard to imagine that the
lawyers would not admit some significant reservations with Jane’s new

40 See SOCIAL WORKER CODE, supra note 11, § 1.01 (noting social workers’ “responsi-
bility to the larger society”).

Spring 2007] Interdisciplinary Collaborations 675

goal. They know that Jeremy’s expressed preference is to stay with
John; they have heard Jane admit that she has mixed motives in pursu-
ing custody. These concerns will be further validated when they hear
from the social worker on the team.

We find, as we explore this meeting, that the position the lawyers
find themselves in is in fact no different from the position of any
thoughtful “solo” lawyer faced with Jane’s case.’*’ What must (or can)
these lawyers do when faced with their own internal struggles and dif-
fering perspectives within the interdisciplinary team?’*^ First, a law-
yer’s duty of zealous representation is not without limits. In addition
to her duty not to assist with illegality or frivolous claims,”̂ counsel’s
obligations to clients are tempered in other ways. Under Model Rule
1.2 (c), Jane’s lawyers have the right to seek her consent to limiting
her objectives.44 Thus, if the legal team is so distressed by her request
for custody of Jeremy, the team members can counsel her about their
reservations. It is this pre-trial process that deserves further scrutiny.

In preparing for such a client meeting, the team would undoubt-
edly convene to plan for the event. We can assume that any ethical
rubs would surface in those discussions. The social worker might de-
tail his concerns about Jane’s plans for Jeremy, including the follow-
ing: 1) the boys have a close bond; 2) John has demonstrated an ability
to care appropriately for his teenage sons; 3) all the men profess
strong desires to remain a family unit; and 4) Jane’s sudden interest in
custody of Jeremy is prompted in large part by her malice toward
John. But it strains credulity to believe that only the social worker has
identified these issues. Surely the lawyers will also have realized that
any case plan will have to account for such adverse evidence.

The intra-team meeting would not conclude with a perfunctory
recitation of the mounting evidence that is at odds with Jane’s pro-
fessed goal. Instead, let us look further at the interdisciplinary dia-
logue. The social worker might well urge the team to use the

41 A p a r a d i g m ethical d i l e m m a a b o u t which m a n y h a v e w r i t t e n involves t h e t e n s i o n s a
lawyer faees w h e n h e r client elects t o m a k e w h a t she p e r c e i v e s t o b e a ” b a d ” c h o i c e . See
generally S t e p h e n E l l m a n n , The Ethic of Care as an Ethic for Lawyers, 81 G E O . L . R E V .
2665 (1993); W a r r e n L e h m a n , The Pursuit of a Client’s Interest, 11 M I C H . L . R E V . 1078
(1978-79).

••̂ W e h a v e defined this c o l l a b o r a t i o n as b e i n g c h a i r e d by t h e lawyers, with t h e social
w o r k e r acting as a c o n s u l t a n t . U n d e r M o d e l R u l e 5.3, it is clear t h a t t h e lawyer m u s t
e n s u r e t h a t t h e c o n d u c t of a n o n – l a w y e r assistant (i.e., t h e social w o r k e r ) is c o m p a t i b l e
with t h e a t t o r n e y s ‘ professional d u t i e s . See M O D E L R U L E S , supra n o t e 12, R. 5.3. T h e r e –
fore, o u r analysis p r e s u m e s t h a t it is t h e lawyer w h o m u s t r e g u l a t e t h e interdisciplinary
t e a m ‘ s c o n d u c t t o e n s u r e t h a t n o b r e a c h of legal ethics occurs.

43 See supra text a c c o m p a n y i n g n o t e 37.
44 See also M O D E L R U L E S , supra n o t e 12, R. 1.3, C m t . [1] (“a lawyer is n o t b o u n d t o

p r e s s for e v e r y a d v a n t a g e t h a t m i g h t b e realized for a c l i e n t ” ) .

676 CLINICAL LAW REVIEW [Vol. 13:659

upcoming meeting to explore with Jane the consequences of her pro-
fessed goal. For example, what effect does she think her decision will
have on the boys’ relationship to each other and to her? He might ask
the team to acknowledge the anger that Jane apparently feels toward
John and to then inquire whether there are other ways to hold John
accountable for his conduct that has pained Jane. Thus the social
worker would redefine the team’s focus from Jane’s narrow stated in-
terests to the larger questions of the long term needs and goals of all
family members, including Jane herself. If Jeremy’s stated desire of
staying with his dad is in his best interests, and in the best interests of
his brother, then the social worker would advocate at the interdisciph-
nary team meeting for a qualitatively different counseling session with
Jane.^s The social worker might provide a fuller assessment of the
client’s emotional landscape, a fuller exploration of the client’s inter-
ests (both stated and unstated), a broader understanding of the legal
“facts” that might be affecting the lawyering process, and suggestions
for more nuanced communication with the client to elicit facts and
facilitate decisionmaking.

If the interdisciplinary collaboration is to be embraced, the law-
yers will seek to incorporate the social worker’s insights, rather than
ignore them. But how, given that his concerns run counter to Jane’s
professed goal? At the team’s preparatory meeting, the members
could develop strategies for counseling Jane about their concerns.
Nothing in the Model Rules precludes attorneys from sharing reserva-
tions with their chents. Indeed Rule 2.1 expressly condones such
counseling:

In representing a client, a lawyer shall exercise independent profes-
sional 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.’*”

Therefore, in its role as advisor/counselor to Jane, the legal team has
every right to share its concerns about her professed goal.’*” And any
lawyer who neglected to address these concerns with Jane would, it

45 The social worker may well conclude also that the best interests of Jane coincide with
the boys staying together, lest a “victory” in this custody battle prove purely Pyrrhic. We
treat that question as a conceptually separate one—a question of paternalism rather than
of concern for third parties—and we return to it in Part II.C. below.

‘^^ MODEL RULES, supra note 12, R. 2.1. See also id. at R. 1.2(a) (requiring attorneys to
consult with clients as to the means by which their goals are to be pursued).

47 While there is no rule which requires attorneys to counsel clients about any concerns
the legal team has, we submit that good practice supports that view. As pointed out ear-
lier, some commentators, especially when discussing the duties of the criminal defense bar,
might question such a departure from zealous representation. See note 28, supra.

Spring 2007] Interdisciplinary Collaborations 677

seems to us, be an ineffective lawyer.
In addition, any standard of good lawyering demands that Jane be

counseled on the likely outcome of her custody battle.’*^ Here, there
is independent, contrary evidence which the judge will consider in
reaching a decision on Jeremy’s custody. It is the team’s duty to assess
the strength of all the testimony and evidence that will likely be intro-
duced on the contested issue and to advise Jane about her likelihood
of success. Whether Jane’s resolve would change after being updated
on the anticipated legal outcome is unclear; the point is that it could
influence her decisionmaking and she should be fully informed of all
of the implications of her choices.

Which leads to another wrinkle in this representation. Were the
team to conclude that Jane’s motivation is purely revenge, the lawyers
would need to cease representing her in this spiteful mission. Pursu-
ant to Model Rule 4.4, lawyers are forbidden from using means “that
have no substantial purpose other than to embarrass, delay, or burden
a third person “”̂ Here, if the lawyers were to learn from Jane that
the custody goal is purely a ruse to harass John, they would need to
advise Jane that they could not advocate the custody matter on her
behalf.50

With these ethical parameters clarified, the team can then pro-
ceed to discuss the process by which the members can counsel Jane
about the looming custody battle. Here the training and expertise of
the social worker can be invaluable to the lawyers. How can the team
package its information in a way that would optimize the likelihood
that Jane could hear and comprehend it? Should the team ask Jane to
reverify her goals, and, if so, how? What options can the team gener-
ate for Jane’s consideration?

At the conclusion of the counseling session, Jane will make a
choice. Perhaps she will elect to drop the custody fight if convinced
that she is likely to lose and after having been advised of the potential
consequences, both to her and to her family, of pursuing the custody
fight. But, for purposes of our analysis, we have to assume that Jane
will persist. If so, what must the team do? We contend that Jane’s
interests in zealous representation now trump the team’s concerns.^^

48 See generally M O D E L R U L E S , supra n o t e 12, R. 1.4 ( o b l i g a t i n g lawyers t o k e e p clients
a p p r o p r i a t e l y i n f o r m e d a b o u t t h e i r c a s e ‘ s s t a t u s a n d t o ” e x p l a i n a m a t t e r t o t h e e x t e n t
r e a s o n a b l y n e c e s s a r y t o p e r m i t t h e client t o m a k e i n f o r m e d decisions r e g a r d i n g t h e
r e p r e s e n t a t i o n ” ) .

49 Id. at R. 4.4(a).
50 See id. at P r e a m b l e ( ” A lawyer s h o u l d use t h e law’s p r o c e d u r e s only for l e g i t i m a t e

p u r p o s e s a n d n o t t o h a r a s s o r i n t i m i d a t e o t h e r s ” ) .
51 It is possible t h a t t h e conflict b e t w e e n t h e t e a m a n d J a n e is so p r o f o u n d as t o p r o m p t

t h e t e a m t o w i t h d r a w its services. See id. a t R. 1.16. H o w e v e r , it is unlikely t h a t t h e c o u r t

678 CUBICAL LAW REVIEW [Vol. 13:659

Assuming that Jane does not seek custody of Jeremy principally to
harass John,̂ ^ j^e lawyers now must champion her cause, however ill-
advised it may be. Jane may well lose, but her interests and the law-
yers’ duty of loyalty require that she go down swinging with good law-
yers by her side.

But what, then, of our social worker’s dilemma? Assuming (as is
likely) that he continues to believe that Jeremy’s best interests are to
be in his dad’s custody even after the counseling session, are we sug-
gesting that he breaches his own professional duties by remaining part
of the clinic team? We believe not, for two reasons. First, remember
the construct of the interdisciplinary team. We defined the team from
the beginning as a legal team in which the social worker is acting as a
consultant. Therefore, under Model Rule 5.3, it is the lawyer who
must ultimately bear the burden of defining the ethical path. The so-
cial worker is thus shielded from sanction within his profession be-
cause of his specially defined role in this engagement. But second, we
are not persuaded that the social worker has otherwise breached his
professional duties, even if he could not rely on the lawyers’ rules as a
defense. As we have described it, he has performed his social worker
role as he ought to have done. He has cared for Jane and her family;
he has sought to engender a holistic solution which minimizes harm to
all involved. We can assume that he has done so with insight and com-
passion. The fact that Jane, who is not his client,^^ ĵ ag opted to pro-
ceed in a way that the social worker may not prefer does not imply
that he has failed in his role responsibilities.^’*

C The “Paternalism” Worry

So far we have been concerned with whether lawyers leading an
interdisciplinary team can provide sufficiently zealous representation
to their clients. We have been intentionally outwardly focused as we

w o u l d a g r e e t o t h e w i t h d r a w a l o n t h e e v e of trial. F u r t h e r m o r e , for o u r analysis, with-
d r a w a l m o o t s t h e conflict. T h e r e f o r e w e h a v e a s s u m e d t h a t t h e r e p r e s e n t a t i o n w o u l d
c o n t i n u e .

52 See supra text a c c o m p a n y i n g n o t e 37 r e g a r d i n g p r o h i b i t i o n s against p u r s u i n g m e a n s
d e s i g n e d p u r e l y t o h a r a s s a third p a r t y .

53 O u r discussions h a v e a s s u m e d t h a t t h e social w o r k e r is n o t p r o v i d i n g direct services
t o his client, b u t r a t h e r serving as a c o n s u l t a n t t o t h e lawyers w h o r e p r e s e n t t h e i r client,
J a n e . See text a c c o m p a n y i n g n o t e 35 supra.

54 T h e Social W o r k e r C o d e lists r e s p e c t for t h e ” D i g n i t y a n d W o r t h of t h e P e r s o n ” as a
c o r e v a l u e a n d urges social w o r k e r s t o ” p r o m o t e c l i e n t s ‘ socially r e s p o n s i b l e s e l f – d e t e r m i –
n a t i o n . ” See S O C I A L W O R K E R C O D E , supra n o t e 1 1 , ” E t h i c a l P r i n c i p l e s . ” H e r e , w h e r e w e
h a v e e n v i s i o n e d o p p o r t u n i t i e s t o c o u n s e l J a n e on t h e c o n s e q u e n c e s of h e r goal a n d t o
p r o b e h e r r a t i o n a l e s for s e e k i n g J e r e m y ‘ s c u s t o d y , we believe t h a t t h e social w o r k e r will
h a v e c o m p l i e d with t h e d i c t a t e s of his profession. See also id., E t h i c a l S t a n d a r d 1.01
( ” C o m m i t m e n t t o Clients: Social w o r k e r s ‘ p r i m a r y responsibility is t o p r o m o t e t h e well-
b e i n g of clients. In g e n e r a l c l i e n t s ‘ i n t e r e s t s a r e p r i m a r y . ” ) .

Spring 2007] Interdisciplinary Collaborations 679

investigated whether lawyers would soft peddle their advocacy as a
result of being exposed to social workers’ perspectives. Using the ex-
ample of representation of a client whose objectives the team ques-
tions, we have explored the potential harm which could result to
innocent third parties. While we have concluded that ethical concerns
surrounding the duty of zeal can be overcome and are akin to those
faced regularly by solo practitioners, our analysis would be incomplete
if we did not also address the intra-team conflicts which might arise
were the professionals to fail to respect their clients’ autonomy in a
different way by responding paternalistically.

In this section, we propose to look inward. The prior section
chronicled the interdisciplinary consultations that would maximize the
ability of Jane’s lawyering team to advocate zealously for her express
desires. We now shift the focus and investigate whether lawyers in-
volved in an interdisciplinary collaboration will be more likely to treat
their clients paternalistically. The concern can be simply stated: if the
professional mandate of social workers is, at least in part, to attend to
their chents’ best interests,^^ will the lawyer members of the interdisci-
plinary team be so tainted by this perspective as to be unable to re-
spect sufficiently their clients’ decisionmaking?

Again, a case example drawn from our practice will help illumi-
nate this ethical puzzle.

An active sixteen-year-old with a winning smile, Rob was a sports
star whose skills ranged from football to basketball. While no one
doubted his athletic ability, his educational achievements were se-
verely limited. Rob tried hard, but his school records showed a failing
student with significant delays in reading, math and written expres-
sion. His mother had requested special education services for her son
while he was still in elementary school. The minimal progress that he
had accomphshed with special services in the lower grades soon evap-
orated as Rob entered the public, neighborhood high school. Inde-
pendent testing confirmed that he had a severe language-based
learning disability and profound attention deficit/hyperactivity disor-
der (“ADHD”). The combination of those limitations often contrib-
uted to Rob’s frequent violation of school rules. The pattern became
all too predictable: Rob would have difficulty understanding the les-
sons, lose concentration, be reprimanded for being disruptive, and fail
another class.

55 See text accompanying note 14, supra, regarding the ethical obligations of social
workers.

680 CLINICAL LAW REVIEW [Vol. 13:659

Given the severity of his ADHD, Rob’s mother sought advice
from his pediatrician, who referred Rob to a pediatric neurologist for
a pharmacological assessment. Over the next several years, Rob tried
a range of ADHD prescribed medications with little evident success.
Many carried side effects which worried the family (including a per-
ceived concern that his growth was being stunted). And, even when
medicated for ADHD, Rob did not see any measurable improvement
in his educational progress. Therefore, at age fourteen and under
medical supervision, Rob stopped taking any ADHD medications.

In desperation, the family contacted the local law school clinic
with an interdisciplinary focus, which agreed to represent him^^ in his
efforts to find an appropriate out-of-district school placement. After
much investigation, an alternative high school with a comprehensive
therapeutic approach agreed to accept Rob. But, all too quickly, Rob
risked more failure. His new special education trained teachers re-
ported that his ADHD was so severely compromising Rob’s ability to
learn that he could not be promoted and that high school graduation
was unlikely; an independent neuropsychological evaluation con-
firmed that his ADHD was pervasive and warranted treatment. Fur-
ther medical assessment and academic testing also recommended
ADHD medication.

Throughout the lawyering team’s work with Rob, he remained
steadfast in his two goals: to get an education and to stay off medica-
tions. “I’ve tried all their pills and I just get more jumpy. I’m not
putting any more stuff in my body.” Rob’s neurologist acknowledged
that individual patient experiences with ADHD medications are quite
varied; while some do report a decrease in symptoms with certain
medications, others find httle, if any, improved functioning. Further,
he indicated that it is not unusual for it to take a few trials and errors
to identify the medication that is optimum for any given patient.
Therefore, he believed it was possible, though not guaranteed, that
Rob could find significant relief were he to agree to try another
ADHD medication. Rob, supported by his mother, declined any fur-
ther medical interventions. However, as school progress continued to
prove elusive, his mother grew increasingly frustrated. She knew she

56 In our example, Rob is a high school teenager with very clear goals. He had been
making significant decisions regarding his medical care and had specific objectives for his
education. Therefore we have assumed that the lawyering team might well define Rob as
the client, even though his mother would still need to be consulted in educational decision-
making in the special education process. See 20 U.S.C. §1414 (d) (1)(B) (defining the
members of the “individualized education program team” to include the parents of the
child with a disability and the child “whenever appropriate”). This question is compli-
cated, and special education practitioners take different approaches to the question of
whether the client is the parent or the child.

spring 2007] Interdiseiplinary Collaborations 681

could not force her teenage son to accept the medications; long gone
were the days in which she could overpower him. But she kept hop-
ing, perhaps unrealistically, that some miracle cure could be found in
time to help her son succeed.

While Rob’s lawyers, in consultation with the clinic’s social
worker, did obtain an out of district placement in a specialized pro-
gram designed for students with learning and behavioral disabilities,
school success continued to elude Rob. At the end of his first term in
the new school, his new special education teachers reported that they
had never seen a student with such difficulty attending to task even
where the class program had been modified in length and structure to
accommodate Rob and other classmates with special needs. Rob
risked failing two core subjects for the year, which would put in jeop-
ardy his promotion to the 11th grade. In an effort to forestall another
school failure, the legal team requested that Rob’s individualized edu-
cation program team (“IEP Team”) reconvene to assess Rob’s lack of
progress.

As in the zeal case study involving Jane,̂ ‘̂ we assume that, when
the interdisciplinary legal team comprised of a student lawyer, super-
vising attorney, and a consultant social worker offered to represent
Rob in his efforts to obtain a more appropriate educational program
tailored to his special needs, each member advised Rob of her/his re-
spective role. We trust that the legal team members described their
particular responsibilities clearly to Rob at the intake meeting (and
later to his mother^s), expressly clarifying that the social worker would
not be offering direct counseling services to Rob, but would instead be
a consultant to the legal team.̂ ^

The initial work of the legal team would have proceeded rela-
tively uneventfully for our purposes. Together the legal team mem-
bers helped the family identify possible alternative school placements,
while the lawyers advocated zealously with the school district that an

57 See supra P a r t I. B .
58 W e will a s s u m e t h a t a n y c o n v e r s a t i o n w i t h R o b ‘ s m o t h e r t o o k p l a c e o n l y after t h e

l a w y e r / s o c i a l w o r k e r t e a m h a d o b t a i n e d R o b ‘ s i n f o r m e d c o n s e n t t o discuss his c a s e w i t h
h e r . See M O D E L R U L E S , supra n o t e 12, R . 1.6(a).

59 M a n y c o m m e n t a t o r s h a v e i d e n t i f i e d t h e b e n e f i c i a l r o l e w h i c h social w o r k e r c o n s u l –
t a n t s c a n p l a y in s p e c i a l e d u c a t i o n c a s e s . L a w y e r s c a n l e a r n m u c h f r o m t h e i r social w o r k e r
c o l l e a g u e s in t h e a r e a s of d e c i p h e r i n g e d u c a t i o n a l t e s t i n g , i n t e r v i e w i n g a n d c o u n s e l i n g of
m i n o r s , a n d b u i l d i n g c o n s t r u c t i v e w o r k i n g r e l a t i o n s h i p s with m e m b e r s of t h e e d u c a t i o n a l
I E P T e a m a s s e m b l e d t o craft a n I n d i v i d u a l i z e d E d u c a t i o n a l P l a n ( ” I E P ” ) . See P e t e r s ,
supra n o t e 15; see also K r i s t e n H e n n i n g , Loyalty, Paternalism and Rights: Client Counseling
Theory and the Rote ofthe Child’s Counsel in Delinquency Cases (2005) ( u n p u b l i s h e d m a n –
u s c r i p t , o n file w i t h a u t h o r s ) .

682 CLINICAL LAW REVIEW [Vol. 13:659

out of district placement was required to meet Rob’s significant learn-
ing needs. Given that Rob supported the transfer to a new school and
his failures in the existing program were so well documented, the law-
yers and social worker consultant were united in their objective of
assisting Rob to obtain a new school placement.

But that cozy aUiance risks ethical conflict when Rob is admitted
to a new program and the old cycle of educational failure recurs. Dur-
ing the preparation for the upcoming IEP Team meeting, members of
the interdisciplinary legal team begin to voice different perspectives
on Rob’s needs and goals. Given Rob’s goal of succeeding in school,
the social worker consultant points to significant evidence that Rob
should be counseled on the option of another medication trial. Inde-
pendent evaluations have recommended treatment for his ADHD;
medical professionals have supported a new psychopharmacological
assessment; and his current teachers attribute his educational failure
largely to his inability to attend to task. He would alert Rob’s lawyers
that Rob’s overall functioning, including academic progress, could im-
prove were he to consent to another medication assessment and this
would potentially address Rob’s goal of graduating.

If, as developed above, Rob’s lawyers are fulfilling their role of
zealous advocacy, then their goals for the IEP Team meeting should
be clear. Rob does not want to recommence ADHD medication;
therefore his lawyers should respect Rob’s stated interests unless this
case falls into some exception to the normal attorney-client relation-
ship. Some may argue that Rob’s youth provides just such an excep-
tion. Indeed many jurisdictions have redefined the traditional
lawyering role when an attorney is representing a minor.^o

Lawyers’ professional mandates contain provisions which place
special duties on lawyers representing minors. Model Rule 1.14 rec-
ognizes that, on occasion, children’s lawyers may need to take protec-
tive actions on behalf of a minor like Rob, which would be arguably at
odds with zealous advocacy:

When the lawyer reasonably believes that the client has diminished
capacity, is at risk of substantial physical, financial or other harm
unless action is taken and cannot adequately act in the client’s own
interest, the lawyer may take reasonably necessary protective ac-
tion, including consulting with individuals or entities that have the
ability to take action to protect the client . . . .^^

60 See P e t e r s , supra n. 15, at n. 2 0 – 2 1 .
61 M O D E L R U L E S , supra n o t e 12, R. 1.14(a). See also R E S T A T E M E N T , supra n o t e 24,

§24 ( o u t l i n i n g a similar view: ” W h e n a client’s capacity t o m a k e a d e q u a t e l y c o n s i d e r e d
decisions in c o n n e c t i o n with t h e r e p r e s e n t a t i o n is d i m i n i s h e d , . . . b e c a u s e of m i n o r i t y ,
t h e lawyer m u s t , as far as r e a s o n a b l y possible, m a i n t a i n a n o r m a l client-lawyer r e l a t i o n s h i p
with t h e client a n d act in t h e best i n t e r e s t s of t h e client as s t a t e d in S u b s e c t i o n ( 2 ) ” ) .

spring 2007] Interdisciplinary Collaborations 683

If Rob’s lawyers were to conclude that he is at risk of substantial
harm, then they could choose to honor their sense of his best interests
over his stated desire to avoid medication.^^

Under that permutation, no ethical rift in Rob’s interdisciplinary
team would occur. All members of the legal team would share a com-
mon goal of helping Rob succeed in school. They would agree to con-
front Rob with the evidence in support of further medical
intervention, and do their best to persuade him to reconsider another
psychopharmacological consult. If Rob changed his mind, and de-
cided to accept another medication assessment, then so much the bet-
ter. If Rob remained unalterably opposed to medication, then the
legal team would either withdraw or betray its chent’s wishes.̂ ^

But reliance on the special ethical rules applicable to children
makes our analysis too easy. Any lawyer, even one representing a
minor, has an ethical duty to attempt to maintain as normal a lawyer-
client relationship as possible.̂ ‘* Not only do legal ethics require
Rob’s attorneys to normalize the professional relationship to the ex-
tent possible regardless of his minority status,*^ ^^t Rob is also nearly
an adult. By the age of 16, Rob has a voice in his medical care. In-
deed some jurisdictions recognize that sixteen year olds have the right
to refuse medical treatment.^^ Here, we know that Rob not only does
not want to be medicated, but also will reject any efforts by his mother
to force the issue.

If we proceed on the assumption that Rob is not an impaired cli-
ent, but rather a youth who can participate fully in the lawyer-client
relationship, the possible ethical tension within the interdisciplinary

62 See also M O D E L R U L E S , supra n o t e 12, R. 1.14, C m t [1] ( ” W h e n t h e client is a m i n o r
. . . , h o w e v e r , m a i n t a i n i n g t h e o r d i n a r y client-lawyer r e l a t i o n s h i p m a y n o t b e possible in all
r e s p e c t s ” ) .

63 U n d e r M o d e l R u l e 1.16(b), c o u n s e l h a s discretion t o w i t h d r a w if ” w i t h d r a w a l can b e
a c c o m p l i s h e d w i t h o u t m a t e r i a l a d v e r s e effect o n t h e i n t e r e s t s of t h e c l i e n t ” o r if ” t h e client
insists u p o n t a k i n g action t h a t t h e lawyer c o n s i d e r s r e p u g n a n t o r with which t h e lawyer h a s
a f u n d a m e n t a l d i s a g r e e m e n t . . . .” Id. at R.1.16(b). In t h e a l t e r n a t i v e , o n e could posit a
m a n d a t o r y w i t h d r a w a l s c e n a r i o o n t h e s e facts given t h a t R o b m i g h t d e c i d e t o fire c o u n s e l
t h a t p r o p o s e d h e accept A D H D m e d i c a t i o n . See id. at R. L 1 6 ( a ) ( 3 ) .

T h e r e is clearly a practical limit o n a t t o r n e y b e t r a y a l in o u r s c e n a r i o . N o o n e could
force R o b at his age t o t a k e m e d i c a t i o n if he steadfastly refused. H o w e v e r , o n e could
envision m o r e s u b t l e forms of a t t o r n e y c o e r c i o n , such as enlisting t h e h e l p of his m o t h e r
a n d his p e d i a t r i c i a n t o ” e n c o u r a g e ” R o b t o accept a n o t h e r trial of A D H D m e d i c a t i o n .

64 See id. at R. 1.14 ( a ) .
65 See id. at R. 1.14 ( a ) a n d C m t . [1] ( ” c h i l d r e n as y o u n g as five o r six y e a r s of a g e , a n d

certainly t h o s e of ten o r twelve, a r e r e g a r d e d as h a v i n g o p i n i o n s t h a t a r e e n t i t l e d t o weight
in legal p r o c e e d i n g s c o n c e r n i n g t h e i r c u s t o d y ” ) .

66 See generally B a i r d v. A t t o r n e y G e n e r a l , 371 M a s s . 741 (1977)(reviewing t h e m a t u r e
m i n o r rules as a d o p t e d in o t h e r j u r i s d i c t i o n s ) ; see also A r t h u r M u r p h y & Geoffrey
W e r m u t h , The Right to Decline Medical Treatment in Massachusetts, 76 M A S S . L . R E V . 1 3 1 ,
142 (1991).

684 CLINICAL LAW REVIEW [Vol. 13:659

team becomes much clearer. We can assume that the social worker’s
position would remain focused on helping Rob resolve his apparently
conflicting goals. On the one hand, Rob has said he wants to succeed
in school; on the other, he rejects a medical option that could facihtate
that success. The social worker on the team would conclude that
Rob’s best interests would be served by counseling him about the op-
tion of medical intervention to curb the adverse effects of his severe
ADHD. Let us further assume that the lawyers decline to treat Rob
as a client of diminished capacity. Instead the lawyers opt to respect
Rob’s express goal of rejecting medication due to his status as a ma-
ture youth and his wish that he have an advocate for that position at
the upcoming IEP Team meeting. In this variation of our story, skep-
tics of interdisciplinary practice would fear that Rob’s legal team
would face an intra-team ethical dilemma.

Can the team members’ distinct professional cultures and rules be
harmonized consistent with their respective obligations to Rob and, if
so, how? For this analysis, we need to detail the intra-team discus-
sions that would ensue behind closed doors. We can envision an intra-
team meeting convened to plan for the upcoming IEP Team meeting.
The lawyers would state their intent to represent Rob’s interests zeal-
ously by confirming that, if Rob so instructs them, they will resist any
suggestions by third parties to force another medical assessment. On
that score, the social worker would have no ethical qualms. As the
team advised Rob at the outset, Rob is entitled to zealous representa-
tion undiminished by the interdisciplinary collaboration.^^

Next, the legal team would consider how to counsel Rob on his
choices and how to clarify his apparently conflicting goals. Undoubt-
edly, the social worker would note that absent medical intervention,
the accomplishment of Rob’s other stated goal of succeeding in school
was in jeopardy. A litany of evidence supports his view. By all ac-
counts, Rob’s performance at the new placement is being undermined
by his uncontrolled ADHD. Therefore, the consultant might urge the
lawyers to counsel their client about the various professionals’ opin-
ions about medication and explain that, if he were to find an appropri-
ate medication, he would likely find relief from some of his symptoms.

How would the lawyers respond? On our facts the social worker
consultant has accurately relayed the medical evidence which is at
odds with one of Rob’s stated goals—avoiding medication. Further-
more, we must assume that the lawyers are reluctant to ignore their
consultant’s professional opinion. The social worker is their col-
league; they have willingly joined an interdisciplinary team for the ex-

6̂ See supra Part I. B.

Spring 2007] Interdisciplinary Collaborations 685

press purpose of eliciting insights from other professional quarters. To
reject peremptorily their consultant’s findings is directly to reject their
client’s interests and, indirectly, to reject interdisciplinary practice.

Instead, we should assume that the social worker’s presentation
has sorely tested the lawyers’ resolve to plow forward at the IEP Team
meeting with Rob’s stated goal of no medication. Not only must the
lawyers acknowledge the significant amount of expert evidence which
contradicts Rob’s objective of rejecting medication, but they would
likely admit personal reservations about the propriety of a student
risking his education when a medical intervention could possibly
break the cycle of school failure. Especially here, where Rob’s com-
panion goal of getting an education is at risk, the lawyers would be
tempted to betray Rob’s medication position in order to maximize the
likelihood that he would graduate.

Should the intra-team meeting adjourn with that result, the legal
team will counsel Rob with its agenda front and center rather than
Rob’s. The counseling session would become a forum for persuading
Rob that his rejection of medication is wrong-headed. In this scena-
rio, the team members hope that they can persuade Rob into agreeing
to another medication assessment. If successful, Rob will have lost his
champion at the upcoming IEP Team meeting. Rob’s lawyers will no
longer be representing their client zealously; rather they will have suc-
cumbed to paternalism and risked betraying their client. As we have
discussed above, in reviewing the dictates of Model Rule 1.16,̂ ^ either
they will recognize their duty to withdraw or they will be fired.

But let us propose a different, arguably more realistic, counseling
scenario. If the team members acknowledge their concern with Rob’s
stated anti-medication goal, they owe a duty to Rob to discuss their
reservations with him.̂ ^ The process by which the legal team informs
Rob of its concerns is key. In advance of that session, the legal team,
including the social worker, would need to meet to plan the upcoming
counsehng session.

The more nuanced intra-team discussions might involve social
work consultation on a number of issues related to process, as well as
content. The social worker might share with the legal team specific
information about Rob’s ADHD and learning disabilities and how
they might affect the counseling/decisionmaking process—both how

68 See supra text a c c o m p a n y i n g n o t e 5 1 .
69 T h e l a w y e r ‘ s professional d u t y t o c o u n s e l R o b is f o u n d in h e r d u t y t o k e e p h e r client

a p p r i s e d of case d e v e l o p m e n t s a n d h e r d u t y t o a d v o c a t e for h e r client’s goals. See M O D E L
R U L E S , supra n o t e 12, R. 1.2(a) a n d R. 1.4. Similarly, t h e social w o r k e r ‘ s ethical c o d e
r e q u i r e s h i m t o advise his client of likely o u t c o m e s . See S O C I A L W O R K E R C O D E , supra
n o t e 1 1 .

686 CLINICAL LAW REVIEW [Vol. 13:659

Rob is able to take in information and how the lawyers might present
information most effectively. There may be special considerations
with respect to the complexity of sentence structure, language, pacing
and organization of information. The social worker could also pro-
vide some insight into developmental and emotional issues that might
affect communications with an adolescent—the importance of being
heard and respected, of feeling in control, of not feeling “different.”
The social worker could also suggest how the legal team might elicit
and more fully explore Rob’s underlying interests, as well as suggest
how to respond more fully to Rob’s emotional concerns.

After an intra-team consultation with the social worker, a more
effective counseling session with Rob might proceed like this:””

Student lawyer: Rob, we want you to know that we are here to
represent you and what you want to happen at this point. You’ve
mentioned two things that are important to you. One, you want
to do well in school and graduate with your class, and two, you do
not want to consider getting back on medication. Are we right
about that?

Rob: Uh huh.

Student lawyer: As we’ve told you before, it will ultimately be
your decision whether or not to take medicine for your ADHD.
It is your body, your decision, and no one can physically force
you to take medication. We understand that you had been on a
number of medications in the past and some had some pretty sig-
nificant side effects. A few of them made you feel jumpy and “out
of it” and one in particular affected your growth. Were there any
other particular concerns you had about medication?

Rob: I don’t like feeling that I might need to depend on medica-
tion for the rest of my life. It’s a hassle. It makes me feel like I
can’t handle myself—like I’m weak.

Student lawyer: With respect to the ADHD medication, would it
make a difference to you if it was not a lifetime commitment?
We could get information about that if it would be helpful to you.
And when you say “It’s a hassle”—are you thinking of anything
in particular?

™ While this dialogue presumes that only the clinic student and client participated, we
certainly encourage legal teams to include their social worker colleagues directly in client
meetings to the extent that time and resources allow. We include this two-party dialogue
to allow our readers to sample the more nuanced, process-conscious, client-centered dis-
cussion that can occur when the lawyer’s approach is informed by the social work
perspective.

spring 2007] Interdisciplinary Collaborations 687

[Assume here that Rob describes some “hassles” with the
medication and his lawyer addresses them directly.]

It’s not unusual for people to feel that way about medication, and
it’s not an easy decision. If you had a medical problem and there
was medicine that would help ease the symptoms or the pain,
would that seem “weak”? It might help us to understand how
you think of this as different.

[The lawyer might then empathize with the added challenges
of having to live with a special medical/learning problem;
then there may be some discussion of ADHD as a medical/
neurological condition—not something Rob can control fully
or “will away” hard as he may try.]

You have some good reasons to think hard about whether taking
medication makes sense for you at this point—how it makes you
feel about yourself, the hassle and the side-effects.

As you know. Dr. Choi, the neurologist at Children’s Hospital,
Dr. Brodnosky, the school psychologist, and Dr. Hull, your pedia-
trician, have all said that they think that medication would very
likely help with the problems you’ve been having at school, al-
though there are no absolute guarantees. And here is why we
bring it up—because we know you have said how much you want
to do better at school so you can graduate with your class.

If you decide not to consider medication, do you see any other
ways of getting the help you need to do better in school?

Rob: If the teachers would just get off my back and out of my
face I could do the work.

[The social worker consultant might recognize that Rob is in
part externalizing the problem and minimizing the effect of
his ADHD.]

Student lawyer: I can certainly talk to your teachers about the
importance of working with you in a way that respects your
space. Realistically, we can’t control fully how teachers respond
to students and situations in their classrooms. But can you tell
me what is most important to you about how your teachers work
with you?

[Rob responds with some details; the student lawyer ac-
knowledges and they plan on how to talk to his teachers.]

Student lawyer: I know how much you want to believe that if you

688 CLINICAL LAW REVIEW [Vol. 13:659

just try hard enough, you’ll be able to manage school. I worry
that you put too much pressure on yourself. After all these years,
you’ve had to deal with the fact that no matter how hard you try,
the ADHD sometimes gets in the way. You have learned some
very helpful ways of dealing with it, but it never goes away.

So before we talk to the IEP Team, we want to be sure we under-
stand what you want us to say. We know that you want both—no
medication and a good school experience.

Unfortunately, realistically, it may be one or the other.

We can tell them that you don’t want to consider taking the medi-
cation—even if that means that you will likely continue to have
difficulty in school and may not be able to graduate with your
class. So the decision comes down to this—neither option gets
you everything you would like. By staying off medication, you
will avoid the concerns you have about the medication, but you
will likely continue having problems at school. By taking medica-
tion you may improve your chances of graduating with your class,
but you will need to deal with the concerns you have about the
medication.

It’s not an easy decision.

Rob: Yep.

Student lawyer: I want to be honest with you—I would hate to
see you have a tough time with school.

You are bright and talented and I know how much it means to
you to graduate on time. I worry that if you don’t consider the
medication you may lose a critical window of opportunity to
change things around for yourself. At the same time, I respect
that you are the one who has to live with the medicine. This
would be a tough decision for an adult, and you are just 16. But
you are old enough for us to respect your decision.

So what are you thinking? Is there anything we can do to help
with the decision?

Faced with the adverse evidence and the internal inconsistency of
his goals, Rob might grudgingly agree to medication. He also might
not budge. Should the latter be the case, the lawyers’ duty is clear.
Our reasoning at this juncture replays that described in the scenario
involving Jane.” !̂ At the next IEP Team meeting, the lawyers’ profes-

•71 See supra Part I.B.

Spring 2007] Interdisciplinary Collaborations 689

sional duty is to advocate zealously for Rob’s lawful goal. While the
lawyers may have lingering doubts over the propriety of Rob’s deci-
sion (and their role in enabling that course of action), they will know
that the team did its best to apprise Rob of the risks. Rob will likely
not be the first client, nor the last, to reach a decision that carries with
it significant risks.

What of the professional obligations of the lawyers’ social work
colleague? He has conducted himself ethically. His duty to advise
Rob of the potential adverse consequences of his decision and of an
alternative course of action has been satisfied. The social worker’s
insights have enriched the counseling session with Rob by ensuring a
more comprehensive discussion, including the risks and benefits of
Rob’s chosen path. But the consultant’s input in planning the coun-
sehng session has also allowed the lawyers to accomphsh their profes-
sional duties more effectively. While making the counseling session
richer, the interdisciplinary collaboration has not undermined the law-
yers’ duty to remain Rob’s zealous advocates.

The counseling session just described demonstrates how Rob’s
lawyers, having consulted with a skilled social work colleague, can as-
sist their client’s decisionmaking in a much more nuanced way than
the approach that a “crude” professional would hkely take.’̂ ^ g^t ĵ̂ g
vision of a crude professional is likely unrealistic. After all, even if a
professional wanted to, neither the social worker nor the lawyer could
really be actively paternalistic—they could not jab Rob with a needle
and give him his meds, whether Rob wanted them or not. Rob, as a
mature youth, will ultimately have the final say.’̂ ^

The collaboration worry—and this may be the biggest worry—is
that the teamwork with a skilled social worker will lead the lawyers to
be more manipulative and non-neutral than they would be if they
were not coupled with a social worker. Rob will always have his law-
yers and will always get his legal defense at the IEP Team meeting if
he needs it, but lawyers influenced by the wisdom of their social
worker colleagues might work on him, and in ways that are much
more likely to succeed—subtly, persuasively, kindly, effectively. They
might make Rob believe that a decision to agree to a new round of
medication is his choice, and a good choice.

So the questions are: Is it likely that this concern is valid? Will a

‘2 We borrow the term “crude” from William Simon, who used the word to describe
different approaches to the ethical demands of lawyering. See William H. Simon, Ethical
Discretion in Lawyering, 101 HARV. L. R E V . 1083, 1084 (1988).

”3 One might argue that Rob’s parent or guardian has the final say, and legally, as long
as Rob is a minor, his rights would be voiced by the adult. However, medicating an active
teenager against his will is so fraught with practical difficulties that Rob would need to buy
into any medication regimen.

690 CLINICAL LAW REVIEW [Vol. 13:659

lawyer working with a caring, best interest-focused social worker be
changed by him in a way that allows for more good-faith lawyer ma-
nipulation? If we think that answer is in some ways “yes,” is that a
bad thing professionally? If it is not, then the worry vanishes. But if
we believe that such good intentioned, subtle persuasion is problem-
atic because it disrespects client autonomy, then lawyers engaged in
interdisciphnary practice do face another ethical tension.^” Were this
a novel issue unique to such collaboration, we might well worry that
the concern is fatal to the interdisciplinary endeavor. However, attor-
neys have long recognized that they are capable of good-intentioned,
effective manipulation.’̂ ^ The problem is not new or unique to inter-
disciplinary work. Thus, while collaboration might increase the risk of
attorney manipulation, it is not its root cause.

Viewed from either side of the paternalism/zeal coin, lawyers
consulting with social workers do risk becoming less zealous and more
paternalistic. But, for the reasons we have outlined above, these con-
cerns are neither new nor unique to interdisciplinary endeavors. If
these risks are problematic, they do not stem from the interdiscipli-
nary collaboration, but instead from the demands of effective law-
yering. Whether practicing solo or with the benefit of social work
colleagues, lawyers will continue to struggle whenever they are con-
fronted with a client they feel is making a bad choice. At least in
interdisciplinary practice, there is the solace of knowing that the coun-
seling sessions have been enriched with multiple professional perspec-
tives and that there are colleagues with whom to share the lawyers’
angst.

II. T H E MANDATED REPORTING CONUNDRUM

The preceding discussion has shown that lawyers working along-
side a social worker or similar helping professional might offer a
richer quality of legal services as a result of that collaboration. But
the collaboration itself introduces a possibly insidious difficulty that
arises when a helping professional works in tandem with lawyers—the

1^ While we focus here on a potential breach of the lawyer’s professional duties, we also
care about any resulting professional dilemmas which social worker colleagues could face.
As the scenario has unfolded in this paternalism scenario, however, we submit that the
social worker has not violated any of his ethical mandates. Indeed the social worker has
advised the lawyers and client of the likely consequences of Rob’s decision on himself and
others. The social worker’s professional duties remain subordinate to those of the lawyers
because of the explicit structure of this legal team: the lawyers retained him as a consultant;
he is not providing direct service. See M O D E L RULES, supra note 12, at R. 5.3 and text
accompanying note 42, supra.

75 See Stephen Ellmann, Lawyers and Clients, 34 U.C.L.A. L. R E V . 717, 721 (1987);
Kruse, supra note 18, at 75.

spring 2007] Interdisciplinary Collaborations 691

worry about inconsistent duties regarding confidentiality of client in-
formation. This is an issue that interdisciplinary clinicians raise often,
and the one seemingly most elusive in its resolution.”^

For purposes of our analysis, we make some important prelimi-
nary distinctions which matter to our analysis. We first assess the re-
sponsibilities of a social worker working within a functioning law
firm—an organization whose essential purpose is to provide legal ser-
vices (even if richer, interdisciplinary legal services) to clients.^^ We
then compare that setting to a second social worker placement, in an
organization which offers both legal services and mental health ser-
vices, side by side, and at times independent from one another.”^ Fi-
nally, we take up yet a third iteration—using the second placement
example (a setting offering both legal and social services) we inquire
about the social worker’s duties when a lawyer and a social worker
collaborate within that agency on the same

A. The Social Worker in a Conventional Law Firm

1. The Puzzle Described

We begin by placing a social worker in an office which is a func-
tional law office. Since much of our audience works at law schools, we
will use a clinical program as our example here, even though this anal-
ysis applies to any law firm which employs a social worker.^° Let us
assume, then, a law school clinic, operating as a self-contained law
firm,̂ i with four faculty supervisor/lawyers, twenty-five law students

76 W e d o u n d e r s t a n d from o u r c o n v e r s a t i o n s w i t h social w o r k e r s e m p l o y e d in legal
s e t t i n g s t h a t , w h i l e t h e q u e s t i o n w e r a i s e is a v e r y c h a l l e n g i n g o n e c o n c e p t u a l l y , it m a y in
fact a r i s e r a t h e r i n f r e q u e n t l y . W e n e v e r t h e l e s s b e l i e v e t h a t it d e s e r v e s s o m e c a r e f u l , c o m –
p r e h e n s i v e a n a l y s i s , t n o u r a s s e s s m e n t of t h i s i s s u e , w e b u i l d o n s o m e e x i s t i n g s c h o l a r s h i p
w h i c h n o t e s t h e t e n s i o n b u t d o e s n o t a d d r e s s it c o m p r e h e n s i v e l y . See, e.g., G a l o w i t z , supra
n o t e 17; G e r a r d F , G l y n n , Multidisciplinary Representation of Children: Conflicts over Dis-
closures of Client Communications, 27 J, M A R S H A L L L , R E V , 617 ( 1 9 9 4 ) ; St, J o a n , supra
n o t e 4; L o i s G, T r u b e k & J e n n i f e r J, F a r n h a m , Social Justice Collaboratives: Multidiscipli-
nary Practice for People, 1 C L I N , L , R E V , 227, 240 ( 2 0 0 0 ) ; H e a t h e r A , W y d r a , Keeping
Secrets Within the Team: Maintaining Client Confidentiality While Offering Interdisciplinary
Services to the Elderly Client, 62 F O R D H A M L , R E V , 1517 ( 1 9 9 4 ) ,

77 See infra P a r t I I , A ,
78 See infra P a r t I I , B , 1 ,
79 See infra P a r t I I , B , 2 ,
80 W e s i t u a t e t h e l a w y e r a n d social w o r k e r in a law s c h o o l clinic for t h e r e a s o n s d e –

s c r i b e d in t h e p r e v i o u s p a r t . See supra t e x t a c c o m p a n y i n g n o t e 34, T h e fact of t h e clinical
s e t t i n g d o e s n o t affect o u r a n a l y s i s of t h e m a n d a t o r y r e p o r t i n g o b l i g a t i o n s in a n y way,

81 T h i s a s s u m p t i o n s e e m s s e l f – e v i d e n t , b u t in fact t h e e x a m p l e of a law s c h o o l clinic
m i g h t i n t r o d u c e c o m p l i c a t e d q u e s t i o n s a b o u t t h e i d e n t i t y of t h e ” f i r m , ” e s p e c i a l l y w h e n
s e v e r a l clinics o p e r a t e w i t h i n s o m e d e f i n e d s p a c e in a law s c h o o l . F o r d i s c u s s i o n of t h i s
t o p i c , a t o p i c w h i c h w e h a v e n o r e a s o n t o a d d r e s s h e r e , s e e P e t e r A , J o y & R o b e r t B ,
K u e h n , Conflict of Interest and Competency Issues in Law Clinic Practice, 9 C L I N , L , R E V .
493 (2002),

692 CLINICAL LAW REVIEW [Vol, 13:659

practicing law under a state court rule treating them as lawyer-
equivalents,^^ and a faculty social worker. And let us assume further
that in the course of that clinic’s work, one of its clients discloses to a
law student and to the faculty social worker some details about the
client’s husband’s aggressive physical punishment of the couple’s
children.

In all states, the law obligates a social worker acting in a profes-
sional capacity to report to a state agency evidence or suspicion of
abuse or neglect of children or elders.^^ in Massachusetts, for exam-
ple, a social worker who fails to comply with the mandated reporting
statute risks a fine.̂ ‘* In other states a social worker who fails to re-

82 See, e.g.. M A S S , S U P , J U D , C T , R , 3:03,

83 See A L A , C O D E § 26-14-3 ( 2 0 0 1 ) ; A L A S K A S T A T , § 47,17,020 ( M i c h i e 1999); A R I Z ,
R E V , S T A T , § 13-3620 ( 2 0 0 1 ) ; A R K . C O D E A N N , § 12-12-507 ( M i c h i e 2 0 0 5 ) ; C A L , P E N A L
C O D E § 11165,7 ( W e s t 2 0 0 7 ) ; C O L O , R E V , S T A T . § 19-3-304 ( 2 0 0 1 ) ; C O N N , G E N , S T A T .
§ 17a-101 ( 2 0 0 1 ) ; D E L , C O D E A N N , tit, 16, § 9 0 3 ( 2 0 0 1 ) ; D . C , C O D E A N N , § 4-1321,02
( 1 9 9 0 ) ; F L A , S T A T , ch, 39,201 ( 2 0 0 2 ) ; G A . C O D E A N N , § 19-7-5 ( 2 0 0 2 ) ; H A W , R E V , S T A T ,
§ 350-1,1 ( 2 0 0 2 ) ; I D A H O C O D E § 16-1619 ( M i c h i e 2 0 0 2 ) ; 325 I I I , C O M P . S T A T , 5/4 ( 2 0 0 2 ) ;
I N D , C O D E § 31-33-5-1 ( 2 0 0 2 ) ; I O W A C O D E § 232,69 ( 2 0 0 2 ) ; K A N , S T A T . A N N , § 38-1522
( 2 0 0 1 ) ; K Y , R E V , S T A T , A N N , § 620,030 ( M i c h i e 2 0 0 2 ) ; L A , R E V , S T A T , A N N , § 14:403
( W e s t 2 0 0 2 ) ; M E , R E V , S T A T , tit, 2 2 , § 4 0 1 1 – A ( W e s t 2 0 0 1 ) ; M D , C O D E A N N , , F A M , L A W
§ 5-704 ( 2 0 0 2 ) ; M A S S , G E N , L A W S C H , 119, § 5 1 A ( 2 0 0 2 ) ; M I C H . C O M P . L A W S § 722.623
( 2 0 0 2 ) ; M I N N , S T A T , § 626.556 ( 2 0 0 1 ) ; M i s s , C O D E A N N , § 43-21-353 ( 2 0 0 1 ) ; M o , R E V ,
S T A T , § 210,115 ( 2 0 0 1 ) ; M O N T , C O D E A N N , § 41-3-201 ( 2 0 0 2 ) ; N E B , R E V , S T A T , § 2 8 – 7 1 1
( 2 0 0 2 ) ; N E V , R E V , S T A T , 4 3 2 B , 2 2 O ( 2 0 0 2 ) ; N , H , R E V , S T A T , A N N , § 169-C:29 ( 2 0 0 2 ) ; N , J ,
S T A T , A N N . § 9:6-8,10 ( W e s t 2 0 0 2 ) ; N . M , S T A T , A N N . § 3 2 A – 4 – 3 ( M i c h i e 2 0 0 2 ) ; N , Y . S o c ,
S E R V , L A W § 4 1 3 ( C o n s o l , 2 0 0 2 ) ; N , C . G E N , S T A T , § 7 B – 3 0 1 ( 2 0 0 1 ) ; N , D , C E N T . C O D E § 5 0 –
25,1-03 ( 2 0 0 2 ) ; O H I O R E V . C O D E A N N , § 2151.421 ( B a n k s – B a l d w i n 2 0 0 2 ) ; O K L A , S T A T , tit,
10, § 7 1 0 3 ( 2 0 0 2 ) ; O R , R E V , S T A T , § 4 1 9 B , 0 1 0 ( 2 0 0 1 ) ; P A , S T A T , A N N , tit. 2 3 , § 6311 ( W e s t
2 0 0 2 ) ; R , I , G E N , L A W S § 40-11-3 ( 2 0 0 2 ) ; S,C, C O D E A N N , § 20-7-510 ( 2 0 0 1 ) ; S.D, C O D I F I E D
L A W S § 2 6 – 8 A – 3 ( M i c h i e 2002); T E N N , C O D E A N N , § 37-1-403 ( 2 0 0 2 ) ; T E X , F A M , C O D E
A N N . § 261,101 ( V e r n o n 2 0 0 1 ) ; U T A H C O D E A N N . § 6 2 A – 4 A – 4 0 3 ( 2 0 0 2 ) ; V T , S T A T . A N N .
tit, 3 3 , § 4 9 1 3 ( 2 0 0 2 ) ; V A , C O D E A N N , § 63,2-1509 ( M i c h i e 2 0 0 2 ) ; W A S H , R E V , C O D E
§ 26,44,030 ( 2 0 0 2 ) ; W , V A , C O D E § 4 9 – 6 A – 2 ( 2 0 0 2 ) ; W i s , S T A T , § 48,981 ( 2 0 0 2 ) ; W Y O ,
S T A T . A N N , § 14-3-205 ( M i c h i e 2 0 0 2 ) ,

O u r d i s c u s s i o n u s e s a social w o r k e r as a n e x a m p l e , b u t t h e s t a t u t e s in q u e s t i o n c o v e r
m a n y , a n d i n d e e d m o s t , t y p e s of h e l p i n g p r o f e s s i o n a l s , h e a l t h c a r e w o r k e r s , s c h o o l p e r s o n –
n e l , p o l i c e , p r o b a t i o n officers, a n d o t h e r p e r s o n s w h o m i g h t e n c o u n t e r a b u s e a n d n e g l e c t in
t h e i r o c c u p a t i o n a l r o l e s . See, e.g.. M A S S , G E N , L A W S C, 119 § 5 1 A , quoted infra at n o t e 84,
S o m e s t a t u t e s i n c l u d e l a w y e r s , as w e discuss b e l o w {see n o t e 96 infra), b u t t h o s e s t a t e s
offer a n e a s y — i f p e r h a p s u n s a t i s f a c t o r y — a n s w e r t o t h e p u z z l e d i s c u s s e d h e r e ,

84 See, e.g.. M A S S , G E N , L A W S ch, 119 § 5 1 A (2007) ( r e q u i r i n g r e p o r t i n g of c h i l d a b u s e ) .
S e c t i o n 5 1 A r e a d s in r e l e v a n t p a r t as follows:

A n y p h y s i c i a n , m e d i c a l i n t e r n , h o s p i t a l p e r s o n n e l e n g a g e d in t h e e x a m i n a t i o n , c a r e
o r t r e a t m e n t of p e r s o n s , m e d i c a l e x a m i n e r , p s y c h o l o g i s t , e m e r g e n c y m e d i c a l t e c h n i –
cian, dentist, nurse, chiropractor, podiatrist, optometrist, osteopath, public or private
school teacher, educational administrator, guidance or family counselor, day care
worker , , ,, probation officer, clerk/magistrate of the district courts, parole officer,
social worker, foster parent, firefighter or policeman, licensor of the office of child
care services or any successor agency, school attendance officer, allied mental health
and human services professional as licensed pursuant to , , ., drug and alcoholism
counselor, psychiatrist, and clinical social worker, priest, rabbi, clergy member, or-

Spring 2007] Interdiseiplinary Collaborations 693

port risks criminaF^ or (less often) civil*^ liability. In all states, a law-
yer̂ ^ is obligated by professional rules not to reveal such information
without a client’s consent unless some exception, largely not relevant
here, may be found.̂ ^ If the social worker employed by a law firm is
bound by his statutory obligations, then his mandated reporting duties
will control, and he must report to state authorities information
learned from the lawyers’ clients, without the consent of (and, indeed,
over the express objections of) the lawyer and the lawyer’s client. In
that instance, where an employee of the law firm has revealed infor-
mation when the lawyer lacks authority to do so, the lawyer will have
breached a professional duty to the client. If, in contrast, the social
worker’s obligations are defined by his role as a member of a law firm
team, then he, like the lawyers, will be obligated not to report that
information to state authorities. The contrast in obligation and in be-
havior is dramatic, as is the effect on the client and, perhaps, on the
victim of the abuse or neglect.

The social worker employed by the law firm thus needs to know

dained or licensed minister, leader of any church or religious body, accredited Chris-
tian Science practitioner, person performing official duties on behalf of a church or
religious body that are recognized as the duties of a priest, rabbi, clergy, ordained or
licensed minister, leader of any church or religious body, or accredited Christian Sci-
ence practitioner, or person employed by a church or religious body to supervise,
educate, coach, train or counsel a child on a regular basis, who, in his professional
capacity shall have reasonable cause to believe that a child under the age of eighteen
years is suffering physical or emotional injury resulting from abuse inflicted upon
him which causes harm or substantial risk of harm to the child’s health or welfare
including sexual abuse, or from neglect, including malnutrition, or who is determined
to be physically dependent upon an addictive drug at birth, shall immediately report
such condition to the [DJepartment [of Social Services] by oral communication and
by making a written report within forty-eight hours after such.oral communication;
. . . . Any such person so required to make such oral and written reports who fails to
do so shall be punished by a fine of not more than one thousand dollars. Any person
who knowingly files a report of child abuse that is frivolous shall be punished by a
fine of not more than one thousand dollars.

See also MASS. G E N . LAWS ch. 19A § 15 (required reporting of elder abuse and neglect).
5̂ See, e.g. CAL. PENAL C O D E § 11166(c) (West 2007) (“Any mandated reporter who

fails to report an incident of known or reasonably suspected child abuse or neglect as
required by this section is guilty of a misdemeanor punishable by up to six months confine-
ment in a county jail or by a fine of one thousand dollars ($1,000) or by both that imprison-
ment and fine.”).

86 See, e.g. Kimberly S.M. v. Bradford Central School, 649 N.Y.S.2d 588 (A.D. Dept.
1996); see atso Steven J. Singley, Comment, Failure to Report Suspected Chitd Abuse: Civit
Liabitity of Mandated Reporters, 19 J. Juv. L. 236 (1998) (listing seven states with statutory
civil liability for failure to report). See atso note 153 infra and accompanying text.

^’ In states where a student may practice as a lawyer, the student’s obligations are
equivalent to those of fully licensed lawyers. See Joy & Kuehn, supra note 81, at 497-98.

88 See, e.g.. MASS. SUP. J U D . CT. R . 3:07, R. 1.6. The template for most states’ confiden-
tiality rules comes from the American Bar Association’s Model Rules of Professional Con-
duct. See M O D E L RULES, supra note 12, R. 1.6.

694 CLINICAL LAW REVIEW [Vol. 13:659

whether his obligations are governed by the statute requiring him, as a
social worker, to report suspected abuse and neglect to the state, or by
the legal profession’s binding rules requiring him, as a member of a
law firm team, to maintain the secrets of his clients. Much rests on the
answer to that

2. The Puzzle Assessed

a. The Duty of Lawyers

Let us start by describing the scope of the lawyer’s duty of confi-
dentiality. It is obvious that if lawyers are required to report child or
elder abuse and neglect, then the conflict of roles disappears, for both
social workers and lawyers would be subject to the same reporting
requirements. In fact, in most states lawyers have no such duty,^° so
the role tension for the social worker remains.

An assessment of a lawyer’s responsibility requires that we start
with the rules governing the ethical responsibilities of lawyers. In all
states, a lawyer is prohibited, under penalty of professional discipline,
from revealing her client’s confidences unless the client consents or
some exception to the duty of confidentiality exists.̂ ^ Since it would

*’ As Jacqueline St. Joan has written, in describing her interdisciplinary law school
clinic’s experience with this issue:

What is a social worker in a law office to do when exposed to information that gives
rise to a reasonable suspicion of child abuse or neglect? Report the information to
authorities, as is required by mandatory reporting statutes, or keep the information
confidential as attorneys are required to do? What is a lawyer who collaborates with
a social worker required to disclose to clients about the mandatory reporting obliga-
tions of social workers in the office? Is the risk of disclosure too great to the client in
the lawyer’s view? Is the risk of nondisclosure too great to the child in the social
worker’s view? Whatever practices a clinic adopts with respect to collaborations,
what are the effects of those practices on the well-being of children?

St. Joan, supra note 4, at 426-28 (footnotes omitted).
50 See Ellen Marrus, Please Keep My Secret: Child Abuse Reporting Statutes, Confiden-

tiality, and Juvenile Delinquency, 11 G E O . J. LEGAL ETHICS 509, 516-20 (1998)(reviewing
lawyers’ obligations to report abuse and neglect).

91 Most states have adopted some version of the ABA Model Rules, see supra note 12,
and thus use an equivalent of Model Rule 1.6, which declares that lawyers shall not reveal
“information related to the representation of a client” unless the client so permits, subject
to some limited exceptions. See M O D E L RULES, supra note 12, R. 1.6(a). See STEPHEN
GiLLERS & R O Y D . SIMON, REGULATION OF LAWYERS: STATUTES AND STANDARDS 3
(2007) (47 states and the District of Columbia have adopted a version of the Model Rules
as of 2006). Fewer states employ a version of the ABA’s Model Code of Professional
Responsibility, which offers a client similar protection for “information gained in the pro-
fessional relationship that the client has requested be held inviolate or the disclosure of
which would be embarrassing or would likely be detrimental to the client.” See M O D E L
CODE, supra note 24, DR 4-101(A), (B)(l). See GILLERS & SIMON, supra, at 3 (2 states
retain a version of the Model Code). California follows neither the Model Rules nor the
Model Code, but by statute requires lawyers “[t]o maintain inviolate the confidence, and at
every peril to himself to preserve the secrets of his client,” see CAL. BUS. & PROF. C O D E
§ 6068(e)(l), subject to one exception discussed below. See text accompanying note 93

spring 2007] Interdisciplinary Collaborations 695

be rare for a client to consent to disclosure of suspected abuse, the
exceptions concerning future harm to third persons are more relevant.
In states following the principles established by the ABA’s standards,
lawyers possess the discretion to reveal otherwise protected informa-
tion “to prevent reasonably certain death or substantial bodily harm”
(in Rules jurisdictions^^ an

Nine states, though, depart from the ABA’s principles and man-
date that lawyers reveal information in some specified settings, almost
always in an effort to prevent death or substantial bodily harm.̂ ^ In
those states, a lawyer’s duties and a social worker’s duties are nearly
coexistent—but not entirely so, and thus the tension which we de-
scribe here would still exist. Consider, for instance, a state such as
Connecticut, which has adopted a child abuse reporting statute^^

infra.
92 M O D E L R U L E S , supra n o t e 12, at R. 1 . 6 ( b ) ( l ) .
93 C A L . B U S . & P R O F . C O D E § 6 0 6 8 ( e ) ( 2 ) ( ” t o p r e v e n t a criminal act t h a t t h e a t t o r n e y

r e a s o n a b l y believes is likely t o result in t h e d e a t h of, o r s u b s t a n t i a l b o d i l y h a r m t o , an
i n d i v i d u a l ” ) .

94 M O D E L C O D E , supra n o t e 24, at D R 4-101 ( C ) ( 3 ) . See also N . Y . C O M P . C O D E S R . &
R E G S . tit. 22, § 1200.19; D R 4-101(c)(3) ( e q u i v a l e n t l a n g u a g e ) .

95 See, e.g., H o w a r d D a v i d s o n , Reporting Suspicions of Child Abuse: What Must a Pam-
ily Lawyer Do?, 1 7 – W T R F A M . A D V O C . 50 (1995); R o b e r t P. M o s t e l l e r , Child Abuse Re-
porting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as
Informant, 42 D U K E L . J . 203 (1992); C h r i s t i n e A . Picker, The Intersection of Domestic
Violence and Child Abuse: Ethical Considerations and Tort Issues by Attorneys Who Re-
present Battered Women with Children, 12 S T . L O U I S U . P U B . L . R E V . 69 (1993); R o b i n
R o s e n c r a n t z , Rejecting “Hear No Evil Speak No Evil”: Expanding the Attorney’s Role in
Child Abuse Reporting, 8 G E O . J. L E G A L E T H I C S 327 (1995); Lisa H a n s e n , N o t e , Attorney’s
Duty to Report Child Abuse, 19 J. A M . A C A D . M A T R I M . L . 59 (2004).

96 F o r a n a r g u m e n t t h a t lawyers s h o u l d b e m a n d a t e d r e p o r t e r s , at least in t h e c o n t e x t
of financial e x p l o i t a t i o n , see C a r o l y n L. D e s s i n , Should Attorneys Have a Duty to Report
Einancial Abuse ofthe Elderly?, 38 A K R O N L . R E V . 707 (2005). For a c o n t r a r y s e n t i m e n t
focusing o n child a b u s e , see A d r i e n n e J e n n i n g s L o c k i e , Salt in the Wounds: Why Attorneys
Should Not Be Mandated Reporters of Child Abuse, 36 N . M . L. R E V . 125 (2006).

97 T h e n i n e s t a t e s a r e A r i z o n a , C o n n e c t i c u t , F l o r i d a , Illinois, N e v a d a , N o r t h D a k o t a ,
Texas, Virginia a n d Wisconsin. See G I L L E R S & S I M O N , supra n o t e 9 1 , at 82-88. All b u t o n e
of t h e n i n e states limit this d u t y t o actions which a r e criminal, a n d m o s t r e q u i r e a likeli-
h o o d of d e a t h o r s u b s t a n t i a l bodily h a r m . Id. See, e.g., N . J . R U L E S O F P R O F ‘ L C O N D U C T R .
1 . 6 ( b ) ( l ) (2005). T h e l o n e e x c e p t i o n is F l o r i d a , which d e c l a r e s t h a t a lawyer “shall r e v e a l ”
i n f o r m a t i o n t h e lawyer b e l i e v e s ” n e c e s s a r y (1) t o p r e v e n t a client from c o m m i t t i n g a c r i m e
o r (2) t o p r e v e n t d e a t h or s u b s t a n t i a l b o d i l y h a r m t o a n o t h e r . ” F L . S T . B A R R u l e 4-1.6
(2005).

98 See C O N N . G E N . S T A T . A N N . § 17a-101(b).

696 CLINICAL LAW REVIEW [Vol, 13:659

which covers social workers,^^ and also has a version of Rule 1.6 which
states that “a lawyer shall reveal such information to the extent the
lawyer reasonably believes necessary to prevent the client from com-
mitting a criminal act that the lawyer believes is likely to result in
death or substantial bodily harm.”i°° It is easy to imagine a circum-
stance where a social worker and a lawyer working together in a law
school clinic learn information from a client which the social worker
would be obligated by the state statute to report, but which would not
meet the standards of the lawyer’s duty to report under Rule 1.6. Not
all evidence of abuse covered by the social worker’s reporting duty
will qualify as a client’s future “criminal act . . . likely to result in . . .
substantial bodily harm.”^oi

More specifically, the Connecticut statute imposes its duties upon
any identified helping professional who “has reasonable cause to sus-
pect or believe that any child under the age of eighteen years (1) has
been abused or neglected, as defined in section 46b-120, [or] (2) has
had nonaccidental physical injury . . . .”102 A suspicion^o^ that a cli-
ent’s child has suffered the abuse or the accident just described will
frequently not be sufficient grounds for a lawyer to reveal that infor-
mation to a state agency to prevent “likely . . . death or substantial
bodily harm.” Therefore, even in a “mandatory lawyer reporting” ju-
risdiction like Connecticut, the reporting duties of a lawyer and those
of a social worker will often remain in conflict.̂ O’* The question of
whose duties control thus remains a critical one, even in such a

Several states either expressly define lawyers as mandated report-

99 Id.

100 C O N N , R , P R O F ‘ L C O N D U C T R , l , 6 ( b ) ( e m p h a s i s a d d e d ) ,

101 Id.

102 C O N N , G E N , S T A T , A N N , § 17a-101(b), Section 46b-120 in t u r n p r o v i d e s : ” ( 4 )
‘ a b u s e d ‘ m e a n s t h a t a child o r y o u t h ( A ) h a s b e e n inflicted with physical injury o r injuries
o t h e r t h a n by a c c i d e n t a l m e a n s , o r ( B ) h a s injuries t h a t a r e at v a r i a n c e with t h e history
given of t h e m , o r ( C ) is in a c o n d i t i o n t h a t is t h e result of m a l t r e a t m e n t such as, b u t n o t
limited t o , m a l n u t r i t i o n , sexual m o l e s t a t i o n o r e x p l o i t a t i o n , d e p r i v a t i o n of necessities,
e m o t i o n a l m a l t r e a t m e n t o r cruel p u n i s h m e n t , ”

103 Statutes commonly refer to reasonable cause to “suspect” child abuse. While the
term “suspect” or “suspicion” has not been defined explicitly, the available authority im-
plies that some reasonable inferences will be sufficient. See, e.g., Wilkenson ex rel, Wilken-
son V, Russell, 182 F,3d 89, 100 (2d Cir, 1999); Hawley v. Nelson, 968 F,Supp, 1372, 1386
(E,D, Mo, 1997); Hazlett v, Evans, 943 F, Supp, 785, 787 (E,D, Ky, 1996),

‘”” Another example of the disjuncture between the lawyers’ reporting discretion and
the social worker’s reporting obligation is that of emotional injury, which is expressly cov-
ered by mandatory reporting statutes but is not covered by Rule 1,6’s exception for “death
or substantial bodily harm,”

105 See also note 109 infra (noting the requirement in Connecticut’s rule that the client
intend the crime, thus not covering crimes intended against the client or her family).

spring 2007] Interdisciplinary Collaborations 697

ers along with social workers and similar helping professionals,^”^ or
require “all persons” to act as mandated reporters without exempting
lawyers.lo’̂ In such states, the problem we address here simply does
not exist, of course. Lawyers and social workers’ obligation in those
states are by statute coextensive, and no role tensions (at least in this
realm) exist in those law firms.

b. The Duty of Social Workers Employed By Lawyers

Let us proceed, then, with the working hypothesis that a social
worker working as a staff employee in a law firm in a state such as
Connecticut will, on occasion, encounter evidence within the law firm
which qualifies as reportable events under the state’s mandated re-
porting law, but which at the same time is protected from revelation
by the state’s version of Rule 1.6. To make this hypothesis more con-
crete, let us develop a bit more the simple fact pattern described

A student lawyer, a faculty supervisor, and the clinic social worker
meet with a woman, Sally, whom the clinic represents in a contested
divorce proceeding against her husband Ted. During the meeting,
Sally tells her legal team that Ted, when drinking, sometimes hits his
6- and 8-year old children with his fists. The most recent incident of
this violence occurred a month ago, when the family was reunited
for a short spell. Right now the children stay with Sally, and visita-
tion and custody are matters for which the clinic is working on
Sally’s behalf. Sally believes that the children are safe as long as
they are not left unsupervised with her husband. She does not want
the state Department of Children and Families (“DCF”) to get in-
volved in her life.

The student lawyer who has heard the information cannot reveal it
unless Sally consents.^”^ By contrast, unless his role within the clinic

106 See MISS, C O D E ANN. § 43-21-353 (2001); NEV, R E V , STAT, 4 3 2 B , 2 2 O (2002); O H I O
REV, C O D E ANN, § 2151.421 (Banks-Baldwin 2002)(states identifying all attorneys as man-
dated reporters). See also ARK, CODE ANN, § 12-12-507 (Michie 2005); CAL, PENAL C O D E
§ 11165,7 (West 2007); N,Y, Soc, SERV, LAW § 413 (Consol. 2002)(states identifying district
attorneys/prosecuting attorneys as mandated reporters),

‘0” States requiring “any person” to report abuse or neglect include Indiana, Louisiana,
New Jersey, North Carolina, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Utah,
and Wyoming, See IND, C O D E § 31-33-5-1 (2002); L A , R E V , STAT, ANN. § 14:403 (West
2002); N,J. STAT, ANN, § 9:6-8.10 (West 2002); N,C, GEN, STAT, § 7B-301 (2001); OKLA,
STAT, tit, 10, § 7103 (2002); O R , REV, STAT, § 419B,010 (2001); R,I, GEN, LAWS § 40-11-3
(2002); TENN, C O D E ANN. § 37-1-403 (2002); TEX, FAM, C O D E ANN, § 261,101 (Vernon
2001); UTAH C O D E ANN, § 6 2 A – 4 A – 4 0 3 (2002); W Y O , STAT, ANN, § 14-3-205 (Michie
2002),

108 See t e x t a c c o m p a n y i n g n o t e 8 2 supra.
109 R e c a l l t h a t in C o n n e c t i c u t a l a w y e r ” a l a w y e r s h a l l r e v e a l s u c h i n f o r m a t i o n t o t h e

extent the lawyer reasonably believes necessary to prevent the client from committing a
criminal act that the lawyer believes is likely to result in death or substantial bodily harm,”

698 CLINICAL LAW REVIEW [Vol, 13:659

provides some exemption, the social worker must report what he has
learned to the state agency authorized to investigate child abuse. Let
us assume that, for now, Sally and her legal team beUeve it prudent
not to report Ted to the state agency. Sally will not permit reporting,
and the student and her supervisor respect Sally’s wishes and agree
with her judgment that DCF intervention is not necessary at this time.

Must the social worker nevertheless report the information? It is
well accepted that a nonlawyer working as an employee in a law firm
is bound to respect the lawyers’ ethical obligations, and that lawyers
must ensure that their employees do so.”o According to Rule 5.3 of
the Model Rules of Professional Conduct, lawyers must make reason-
able efforts to ensure that nonlawyers working with them comply with
the lawyers’ ethical obhgations.i” The Restatement (Third) of the
Law Governing Lawyers, a treatise with no independent authority”^
but which aims to summarize the common law of lawyering, affirms
that a lawyer may be liable for a breach of professional obligation if a
“nonlawyer’s conduct would be a violation of the apphcable lawyer
code if engaged in by a lawyer,” if the lawyer has sufficient knowledge
of that conduct.!” The Restatement does not directly describe the
obligations of nonlawyers, but it plainly implies that nonlawyers, like
the social worker in our example, must comply with the ethical obliga-

CoNN, R, PROF’L CONDUCT R , l,6(b). In the example provided, the client has no intention
to commit any crime, so the lawyer’s obligation is not triggered, and the lawyer otherwise
has no discretion to reveal the facts she learns from her client except if the client gives
permission,

I’O See, e.g.. RESTATEMENT, supra note 24, § ll(4)(a), (b),
“1 See MODEL RULES, supra note 12, R, 5,3(c). It is true, though, that the text of Rule

5.3(c) is not without its own ambiguity. The Rule, of course, only applies to lawyers, so it
cannot declare in any explicit fashion that nonlawyers working in law firms must comply
with all the lawyers’ standards of professional conduct. Instead, it establishes the duties of
lawyers to insure that their nonlawyer assistants comply with the lawyer’s obligations. But,
in understandable fairness to lawyers, its language offers some wiggle room, lest a lawyer
risk being disciplined for an employee’s actions when the lawyer had no responsibility for
nor control over that conduct. Thus, a lawyer is in violation of Rule 5,3 only if she “orders,
or with knowledge of the specific conduct, ratifies the conduct” {id. at R, 5,3(c)(l)), or

has direct supervisory authority over the person, and knows of the conduct at a time
when its consequences can be avoided or mitigated but fails to take remedial action.

Id. at 5,3(c)(2),
“2 See Lawrence J. Latto, The Restatement of the Law Governing Lawyers: A View from

the Trenches, 26 HOFSTRA L, R E V . 697 (1998) (review of the deliberation and debate about
the Restatement); Harold G, Maier, The Utilitarian Role ofa Restatement of Conflicts in a
Common Law System: How Much Judicial Deference Is Due to the Restaters or “Who are
These Guys, Anyway?,” 75 IND. L.J, 541, 548 (2000) (Restatement has no independent
legal force); Ted Schneyer, The A Li’s Restatement and the ABA’s Model Rules: Rivals or
Complements?, 46 OKLA. L, REV, 25, 30 (1993); Fred C, Zacharias, Eact and Fiction in the
Restatement of Law Governing Lawyers: Should the Confidentiality Provisions Restate the
Law?, 6 G E O , J. LEGAL ETHICS 903, 926 (1993),

113 RESTATEMENT, supra note 24, § ll(4)(b).

Spring 2007] Interdisciptinary Cottaborations 699

tions of the law firm’s lawyers.”‘*
It may be tempting to conclude that the lawyer’s Rule 5.3 obliga-

tion confirms that a social worker working within a law firm must
comply with Rule 1.6 in all respects, but Rule 5.3’s strictures cannot
support that conclusion. A law firm might respond to the cross-pro-
fessional role tension either by refusing to collaborate with any man-
dated reporter, and thus fully protecting its client’s secrets, or
alternatively by establishing stringent protocols (“walls””^) to deter
access by any mandated reporter to the kind of disclosures which
might trigger his reporting duty, combined with an informed consent
protocol by which a client would authorize the reporting in those in-
stances where the walls have failed.”^ Either stance seemingly would
satisfy Rule 5.3. No commentator has ever proposed the former, but
many commentators assume the latter as a given in interdisciplinary
collaboration.il” Both stances inhibit substantially the prospect of ef-
fective interdisciplinary lawyering work, the former inherently so, and
the latter by its ineluctable interference with the free sharing of infor-
mation among lawyers, chents, and law firm employees.”^

Our aim here is to investigate whether a law firm indeed must
make the choice either to eschew interdisciplinary work entirely or to
establish internal walls to limit free communication about client infor-
mation. If the mandate to report survives the collaboration, then a
law firm must make that choice. If the mandate to report does not
apply to law firm employees, then the firm is free to represent its cli-
ents in the conventional manner. The question we investigate, then,
may be stated in this way: Where applicable law forbids a law firm,

“‘• The Restatement does not offer any direct authority for its proposition, but it is a
non-controversial one. The cases it cites as authority tend to arise in the context of unau-
thorized solicitation—where a law firm clerical staff member has solicited business in a
manner forbidden by the lawyers’ professional codes. See, e.g.. Mays v. Neal, 938 S.W.2d
830 (Ark. 1997); Florida Bar v. Lawless, 640 So.2d 1098 (Fla. 1994); In re Schreiber, 632
N.E.2d 362 (Ind. 1994).

115 See St. Joan, supra note 4, at 437-39 (describing her clinic’s “confidentiality walls”).
116 No firm-wide protocols can ensure that a mandated reporter employed within the

firm will never encounter client information triggering a reporting duty. That duty may be
triggered by information learned from a client, from a third party, from a lawyer’s or
paralegal’s conversations, or from a document in a client’s file. See District of Columbia
Bar Association Ethics Op. 282 (1998) [hereinafter DC Op. 282] (“the analysis [of a report-
ing obligation] does not change depending on the source of the information”). Because of
the inherent risks involved in establishing such protective protocols, if the reporting duty in
fact applies, a client must be informed of that risk and must consent to any resulting disclo-
sures. Otherwise, a law firm will have breached its duties to maintain the confidentiality of
its client’s information.

117 See Retkin, Stein & Draimin, supra note 4, at 556-57; St. Joan, supra note 4, at 437-
39; Dina Schlossberg, An Examination of Transactional Law Ctinics and Interdiseiptinary
Education, 11 WASH. U . J . L . & POL’Y 195, 222-26 (2003).

118 See infra text accompanying notes 166-67.

700 CLINICAL LAW REVIEW [Vol. 13:659

including its staff, to reveal its client secrets, and where a member of
the law firm’s staff would, if employed in a professional capacity else-
where, be required by applicable law to report suspected abuse and
neglect, which of the competing legal obligations survives?

There exists some limited authority from ethics committees and
attorney general opinions, but no reported appellate or trial court de-
cisions, addressing this question.”” Several law review articles note
the tension between the duties, but without offering a discrete resolu-
tion to it.̂ 20 None of the available authority offers any binding ruling
on the question we investigate.121 Because of the absence of any relia-
ble authority, we address the question as though we were a court̂ 22
hearing the matter as one of first impression. What ought to be the
correct answer to this question?i23

Our assessment is that a court facing this dilemma would likely
conclude that a social worker employed within a law firm ought to be
treated as a member of a legal team and not as a free-standing social
worker.124 We conclude that the arguments supporting this proposi-

” 9 See D C O p . 282, supra n o t e 116; K a n s a s A t t ‘ y G e n . O p . N o . 01-28, 2001 W L 930603
(2001) [ h e r e i n a f t e r K a n s a s A G O p . 01-28]; L o s A n g e l e s C o u n t y P u b l i c D e f e n d e r , Social
Workers’ Obligations When Confronted with Observations or Evidence of Reportable Child
Abuse, Policies a n d P r o c e d u r e s O p i n i o n E – 2 (2000) [ h e r e i n a f t e r L A P D O p . E – 2 ] ; M a r y –
l a n d A t t y . G e n . O p . 90-007, 75 M d . O p . A t t ‘ y G e n . 7 6 , 1 9 9 0 W L 595302 (1990) [ h e r e i n a f t e r
M a r y l a n d A G O p . 90-007]; S t a t e B a r of N e v a d a , S t a n d i n g C o m m . o n E t h i c s a n d P r o f e s –
s i o n a l R e s p o n s i b i l i t y O p . 30 (2005) [ h e r e i n a f t e r N e v a d a O p . 3 0 ] ; see also G i n a Y a r b r o u g h
& A n n E . T o b e y , When Professional Responsibilities Conflict: Attorney-Client Privilege v.
Mandated Reporting, in W H O S P E A K S F O R T H I S C H I L D ? ( M a s s . C o n t . L e g a l E d u c . 1999)
( l a w y e r ‘ s o b l i g a t i o n s o v e r r i d e s t a t u t o r y m a n d a t e d r e p o r t i n g d u t i e s ) .

120 P r o f e s s o r J a c q u e l i n e St. J o a n i m p l i e s t h a t a social w o r k e r m a y r e p o r t at his d i s c r e –
t i o n , a n d offers r e a s o n s w h y h e m i g h t n o t w a n t t o d o s o . O t h e r w i s e , s h e a s s u m e s t h a t a
social w o r k e r w h o a c t u a l l y p o s s e s s e s t h e r e p o r t a b l e i n f o r m a t i o n will r e p o r t it. See St. J o a n ,
supra n o t e 4, at 457. P r o f e s s o r G e r a l d G l y n n r e p o r t s t h a t c a s e law h a s n o t y e t r e s o l v e d t h i s
issue. G l y n n , supra n o t e 76, a t 6 4 1 .

121 T h e K a n s a s A t t o r n e y G e n e r a l o p i n i o n , see n o t e 119 supra, offers legal analysis b u t it
d o e s n o t h a v e t h e force of law in t h a t s t a t e . See P e r r y v. B o a r d of C o u n t y C o m ‘ r s of
C o u n t y of F r a n k l i n , 281 K a n . 8 0 1 , 1 3 2 P.3d 1279 ( 2 0 0 6 ) ( K a n s a s A t t o r n e y G e n e r a l o p i n i o n s
a r e n o t b i n d i n g o n c o u r t s ) .

122 W e i m a g i n e o u r s e l v e s as a c o u r t r a t h e r t h a n a n e t h i c s c o m m i t t e e , for t w o r e a s o n s .
First, t h e o p i n i o n s of e t h i c s c o m m i t t e e s a r e usually e n t i r e l y a d v i s o r y a n d n o n – b i n d i n g . See
U . S . V. S m a l l w o o d , 365 F . S u p p . 2 d 689 ( E . D . Va. 2005); P a p y r u s T e c h n o l o g y C o r p . v. N e w
Y o r k S t o c k E x c h a n g e , Inc., 325 F . S u p p . 2 d 270 ( S . D . N . Y . 2 0 0 4 ) . S e c o n d , t h e q u e s t i o n
p o s e d in this P a r t h a s its m o s t critical i m p l i c a t i o n s for m a t t e r s g o v e r n e d b y s t a t e c o u r t s
discipline for t h e l a w y e r s o r c r i m i n a l o r civil p e n a l t i e s for t h e m a n d a t e d r e p o r t e r s .

123 W e n o t e h e r e o u r p o t e n t i a l b i a s e s , given w h e r e w e w o r k a n d h o w w e w o r k . L y n n
B a r e n b e r g is a social w o r k e r e m p l o y e d b y t h e B o s t o n C o l l e g e L e g a l A s s i s t a n c e B u r e a u ,
w h e r e A l e x i s A n d e r s o n a n d P a u l T r e m b l a y w o r k as clinical i n s t r u c t o r s . O u r c o m f o r t level,
a n d t h a t of o u r clients, favors a c o n c l u s i o n w h i c h p r o t e c t s L y n n from h a v i n g t o r e v e a l c l i e n t
s e c r e t s . B u t w e a l s o e m p h a s i z e o u r explicit a s p i r a t i o n , in t h e s c h o l a r l y t r a d i t i o n , t o b e as
d i s p a s s i o n a t e as p o s s i b l e in o u r a s s e s s m e n t of t h e a r g u m e n t s w e identify. W e h o p e t o b e as
t r a n s p a r e n t a s p o s s i b l e as w e assess t h e c o m p e t i n g c o n s i d e r a t i o n s .

124 See N e v a d a O p . 30, supra n o t e 119, at 9 ( o n t h e conflict b e t w e e n a N e v a d a a t t o r n e y ‘ s

Spring 2007] Interdisciplinary Collaborations 701

tion are not without considerable doubt, but on balance are more per-
suasive than their opposing counterparts. We also assert that this
conclusion applies regardless of the role played by the social worker
within the law firm, so long as he is in fact part of the interdisciplinary
lawyering team which is representing the client. As we see below,i25
in hybrid offices offering separate social services and legal services,
but not in an integrated fashion, the conclusion we draw likely cannot
survive.

Our conclusion is grounded in two understandings, which to-
gether we find persuasive. First, we are by definition^^e concerned
with jurisdictions in which lawyers are not obligated to serve as man-
dated reporters (and often would be prohibited from making such re-
ports over a client’s objection), reflecting a considered choice by the
legislature that the benefits of the attorney-client confidentiality prin-
ciple outweigh whatever benefits ensue from mandated reporting.
Second, those relatively rare court decisions considering the scope of a
lawyer’s permission to reveal client secrets in order to prevent immi-
nent harm tend to stress the importance of a client’s trust that a law-
yer will only breach confidences in the most extreme circumstances.’^^
These two considerations, after weighing them against the competing
contrary considerations, lead us to the conclusions we reach.^^s

We start with the recognition that in each of the statutory
schemes with which we are concerned, a state legislature has imposed
upon certain identified helping professions a requirement that their
members breach whatever preexisting confidentiality duties they
might have to their clients or patients and report to some authorities
any suspected abuse and neglect of children and elders. In each of the
jurisdictions in that universe, the legislature has opted to exclude the

R u l e 1.6 d u t i e s a n d m a n d a t e d r e p o r t i n g d u t i e s , p r e d i c t i n g t h a t ” w h e n faced with t h e issue
t h e N e v a d a S u p r e m e C o u r t will p l a c e t h e d u t y of c o n f i d e n t i a l i t y a h e a d of t h e s t a t u t o r y
r e p o r t i n g o b l i g a t i o n ” ) .

’25 See t e x t a c c o m p a n y i n g n o t e s 156 infra.
126 See t e x t a c c o m p a n y i n g n o t e s 97-107 supra.
127 See, e.g., P u r c e l l v. D i s t . A t t y . , Suffolk, 6 7 6 N . E . 2 d 4 3 6 , 4 4 0 ( M a s s . 1997) ( c o n c l u d i n g

t h a t t h e R u l e 1.6 e x c e p t i o n s “chill[ ] free d i s c o u r s e b e t w e e n l a w y e r a n d client a n d r e d u c [ e ]
t h e p r o s p e c t t h a t t h e l a w y e r will l e a r n of a s e r i o u s t h r e a t t o t h e w e l l – b e i n g of o t h e r s ” ) .

128 I n a r r i v i n g at o u r c o n c l u s i o n , w e a c c e p t a p r e m i s e w h i c h w e o u g h t t o m a k e explicit
h e r e . W e a s s u m e t h a t in t h e s e t t i n g s w h e r e t h e s t a t u t o r y m a n d a t e will n o t a p p l y , t h e social
w o r k e r ‘ s ” c l i e n t ” is e s s e n t i a l l y t h e l a w y e r s , o r t h e law firm. A s w e s e e b e l o w , see infra t e x t
at n o t e 156, o u r c o n c l u s i o n c h a n g e s w h e n t h e social w o r k e r h a s e s t a b l i s h e d a p r o f e s s i o n a l
r e l a t i o n s h i p with t h e l a w y e r ‘ s client i n d e p e n d e n t of t h e l a w y e r ‘ s c o n s u l t i n g with t h e social
w o r k e r . T h u s , t o t h e e x t e n t t h a t t h e social w o r k e r m u s t h a v e s o m e client w h e n h e offers
his a s s i s t a n c e , w e a s s u m e t h a t his client is t h e l a w y e r o r t h e law firm. See C a r l M . Selin g er,
The Problematical Role ofthe Legal Ethics Expert Witness, 13 G E O . J. L E G A L E T H I C S 4 0 5 ,
410-15 (2000) ( n o t i n g t h a t l a w y e r s s e r v i n g as e x p e r t w i t n e s s e s d o n o t e s t a b l i s h a n a t t o r n e y –
client r e l a t i o n s h i p w i t h t h e client of t h e l a w y e r h i r i n g t h e e x p e r t ) .

702 CLINICAL LAW REVIEW [Vol. 13:659

legal profession from this requirement. One might debate the wisdom
of that exclusion as a principled matter/29 or one might cynically won-
der whether the exclusion is indeed principled at all, but instead a
reflection of the political and contributory clout of lawyers relative to
those professions which were not excluded.^o But, as a matter of sub-
stantive law, the distinction between the professions is unambiguous.

The inferences that flow from that distinction are relatively un-
ambiguous. The state legislatures have concluded that confidentiality
within the attorney-chent relationship is more sacred than that within
the other helping professions. The state lawmakers have decided that,
whatever the benefits might be to actual or potential victims of report-
ing suspected abuse or neglect, those benefits do not outweigh the
harm such reporting would cause to the lawyer/client relationship.”!
Perhaps the legislators understood that lawyers already have express
discretion to disclose the information necessary to prevent serious, im-
minent harm to victims,”^ and thus did not perceive the need for ad-
ditional reporting obligations. We might speculate about the reasons,
but the baseline conclusion is plain—lawyers are exempt from the
broader helping professions’ duties to report abuse.

Given this premise, it is difficult to conclude that a legislature
intended that lawyers who hire social workers on staff should, simply
because of that fact, suddenly be governed by the reporting duty. A
report by a social worker is, of course, identical to a report by a law-
yer. The confidentiality and privilege duties otherwise applying to the
lawyer/client interaction would be breached.

The limited authority available from agencies, bar associations
and attorney general offices does not undermine this conclusion, al-
though that authority confirms the thorniness and the ambiguity sur-
rounding this question. In addition, while some precedent on the
relationship between the attorney-client privilege and mandated re-
porting duties might appear inconsistent with the conclusion we arrive
at, on reflection that precedent is distinguishable, as we address be-

129 F o r a rich discussion of t h e s k e p t i c a l basis for t h e c o n f i d e n t i a l i t y p r i n c i p l e , s e e F r e d
C. Z a c h a r i a s , Rethinking Confidentiatity, 74 I O W A L . R E V . 351 (1989).

130 W e r e d o c t o r s n o t i n c l u d e d as m a n d a t e d r e p o r t e r s , t h e cynic’s a r g u m e n t w o u l d b e
m o r e s u b s t a n t i a l . B u t in all of t h e s t a t e s w h e r e o u r q u e s t i o n m a t t e r s , p h y s i c i a n s a n d psy-
c h i a t r i s t s of e v e r y s t r i p e a r e m a n d a t e d r e p o r t e r s , a n d l a w y e r s a r e n o t . See, e.g.. C O N N .
G E N . S T A T . § 17a-101 (2001); F L A . S T A T . ch. 39.201 (2002); M A S S . G E N . L A W S c h . 119,
§ 5 1 A (2002). B e c a u s e d o c t o r s as a p r o f e s s i o n a l g r o u p s e e m t o b e as politically a n d finan-
cially e n d o w e d a s l a w y e r s , t h e c y n i c ‘ s view is i n t e r e s t i n g b u t n o t p e r s u a s i v e .

‘ 3 ‘ See B r o o k A l b r a n d t , N o t e , Turning in the Client: Chitd Abuse Reporting Require-
ments and the Criminal Defense of Battered Women, 81 T E X . L . R E V . 6 5 5 , 666-672 (2002)
( p r e s e n t i n g policy a r g u m e n t s a g a i n s t m a k i n g a t t o r n e y s m a n d a t o r y r e p o r t e r s in t h e specific
c o n t e x t of f a m i l y / d o m e s t i c v i o l e n c e c a s e s ) .

’32 M O D E L R U L E S , supra n o t e 12, at R . 1.6(b)(2).

Spring 2007] Interdisciplinary Collaborations 703

low. We first look at the few published pronouncements on the ques-
tion we are attempting to answer.

At least two sources have questioned whether a social worker
employed by a law firm ought to be deemed as practicing in a “profes-
sional capacity” for purposes of a state’s mandated reporting law. The
Los Angeles County Public Defender (LAPD) issued a formal opin-
ion addressing the mandated reporting obligations of social workers
working within the Public Defender’s office. That agency concluded
that a social worker working within the LAPD office is not a “health
care practitioner” when serving as a consultant to the LAPD lawyers,
and thus is not subject to the California statute.”^ The opinion stated
that:

There is nothing in the Child Abuse and Neglect Reporting Act
which indicates that the legislature intended to abrogate the firmly-
established rules regarding the attorney-client relationship and the
application of that privilege to experts. . . . [I]t is thus apparent that
the legislature intended the attorney-client privilege to remain in-
tact. Indeed, given the strong policy basis for the attorney-client
privilege, and the long history of that provision, it should not be
found to be repealed without a specific statement by the Legislature
to that effect.134

Similarly, the ethics committee for the State Bar of Nevada, describ-
ing a legal aid organization which used teams of lawyers, law students,
and social work students to provide interdisciplinary legal services
(but no direct social work services) to clients, concluded that for pur-
poses of the state’s reporting laws “the social work students are legal
assistants in this context, [and] they are bound by [the attorneys’
rules] to the same extent as the Iawyer.”i35

133 See L A P D O p . E – 2 , supra n o t e 119. T h e California s t a t u t e s i n t e r p r e t e d by t h e
L A P D in its o p i n i o n i m p o s e d a r e p o r t i n g d u t y o n a ” h e a l t h c a r e p r a c t i t i o n e r . . . in his o r
h e r p r o f e s s i o n a l c a p a c i t y o r w i t h i n t h e s c o p e of his o r h e r e m p l o y m e n t . ” C A L . P E N A L
C O D E §§ 11164, 11165.8(a). T h e P u b l i c D e f e n d e r c o n c l u d e d t h a t t h e s e s t a t u t e s did n o t
a p p l y t o a social w o r k e r w o r k i n g as a c o n s u l t a n t t o t h e P u b l i c D e f e n d e r , r e a s o n i n g :

T h e u l t i m a t e c o n c l u s i o n t o b e d r a w n from this [analysis] is t h a t t h e L e g i s l a t u r e h a s
t a k e n n o a c t i o n t o affirmatively a b r o g a t e t h e a t t o r n e y – c l i e n t p r i v i l e g e [sic] in t h e
child a b u s e r e p o r t i n g s t a t u t e s . . . . A p e r s o n w h o m i g h t c o m e w i t h i n t h e definition of
a ” h e a l t h c a r e p r a c t i t i o n e r ” if e m p l o y e d for t h e p u r p o s e s of p r o v i d i n g h e a l t h c a r e
cannot b e f o u n d t o r e m a i n a ” h e a l t h c a r e p r a c t i t i o n e r ” w h e n e m p l o y e d for t h e p u r –
p o s e of assisting in t h e p r o v i s i o n of legal r e p r e s e n t a t i o n to a litigant.

L A P D O p . E – 2 , supra n o t e 119, at 4 ( e m p h a s i s in t h e o r i g i n a l ) . T h e o p i n i o n ‘ s r e f e r e n c e t o
t h e ” a t t o r n e y client p r i v i l e g e , ” a n d n o t t o t h e e t h i c a l o b l i g a t i o n , is n o t a m i s t a k e n u s e of
t e r m s . I n C a l i f o r n i a , t h e ” p r i v i l e g e ” e s t a b l i s h e d b y s t a t u t e c o v e r s b o t h e v i d e n t i a r y m a t t e r s
a n d a n a t t o r n e y ‘ s o u t – o f – c o u r t ethical o b l i g a t i o n s of c o n f i d e n t i a l i t y . C A L . E V I D . C O D E
§955.

134 LAPD Op. E-2, supra note 119, at 3.
135 Nevada Op. 30, supra note 119, at 3. The committee wrote that “[t]he policies and

practices of the organization are clearly designed to require the social work students to

704 CLINICAL LAW REVIEW [Vol, 13:659

The reasoning of the two opinions supports the reasoning we of-
fer here, and helps account for the distinction developed below be-
tween social workers employed in-house as consultants to lawyers and
those offering some social work services to the lawyer’s clients. Since
those mandated reporting statutes which impose a duty on certain
identified helping professionals (and not on the population at large)
tend to require that the actor serve in some professional capacity
before the reporting duty is triggered,!^^ the position of the LAPD
and the Nevada ethics committee would apply to most consulting so-
cial workers employed by law firms.

The District of Columbia Bar Association Ethics Committee is
the only authority thus far to issue a formal ethics opinion on the pre-
cise question addressed here.”” That committee assessed the role of
Rule 1.6 of the D.C. Rules of Professional Conduct and its applicabil-
ity to a social worker employee of a law firm. Its opinion concluded
that, for purposes of the lawyers’ confidentiality duties, the social
worker is a lawyer equivalent, and is bound by Rule 1.6 and the attor-
ney client privilege:

[W]e conclude that in the circumstances presented here Rule 1.6(e)
allows no exception to the duty to ensure that the social worker
preserves the confidences and secrets of the lawyer’s client. We be-
lieve this interpretation of Rule 1.6 is consistent not only with its
strict limitations on disclosures of client confidences and secrets but
also with its recognition that lawyers require assistance of other pro-
fessionals and lay people to represent their clients properly.’̂ ^

The committee concluded that “[i]t is arguable that the social
worker has no mandatory reporting obligations in these circum-
stances.”i39 it also concluded, however, that “[t]he Rules of Profes-
sional Conduct cannot insulate a social worker from obligations

limit t h e i r p a r t i c i p a t i o n t o t h a t of a legal a s s i s t a n t a n d t o r e q u i r e t h e m t o u n d e r s t a n d a n d
o b s e r v e t h e r u l e s of a t t o r n e y – c l i e n t c o n f i d e n t i a l i t y a p p l i c a b l e t o legal a s s i s t a n t s , ” Id. at 1,
H o w e v e r , b e c a u s e in N e v a d a l a w y e r s a r e a l s o m a n d a t e d r e p o r t e r s u n d e r t h e s t a t e r e p o r t –
ing s t a t u t e , t h e c o m m i t t e e ‘ s o p i n i o n did n o t a d d r e s s t h e s t a r k d i f f e r e n c e in r e p o r t i n g d u t i e s
t h a t t h e t e x t a d d r e s s e s ,

136 See, e.g., C A L , P E N A L C O D E §§ 11164, 11165,8(a); C O N N , G E N , S T A T , A N N . § 17a-

l O l ( b ) ; M A S S , G E N , L A W S ch, 119, § 5 1 A ,

137 DC Op, 282, supra note 116, The State Bar of Nevada’s Committee on Ethics and
Professional Responsibility issued an opinion relating to this topic, but focusing on a differ-
ent question. See Nevada Op, 30, supra note 119, Because in Nevada lawyers are man-
dated reporters, the Nevada ethics committee was asked to decide whether the mandatory
obligation of lawyers to maintain the confidences of their clients trumped the statutory
obligation to report possible child abuse or neglect learned during the professional
relationship,

138 D C O p , 2 8 2 , supra n o t e 116, a t 2 – 3 ,
139 Id. a t n , 4 .

Spring 2007] Interdisciplinary Collaborations 705

Otherwise imposed by law,”!’*’̂ and that
the social worker may have a statutory duty to report child abuse or
neglect that is inconsistent with the duty of both the lawyer and the
social worker to preserve confidences and secrets imposed by the
Rules of Professional Conduct.̂ “*!

Noting the “quandary” the law firm finds itself in, with the “anomaly”
of the social worker obligated by the lawyers’ code to remain quiet,
but obligated by a statute to reveal suspected abuse, the committee
suggests that the lawyers and social workers warn clients that the so-
cial worker “may have a statutory duty to report” suspected abuse
revealed by the clients. ‘̂’̂

This otherwise thoughtful opinion ends up straddling the question
we hope to answer here. A plausible reason for its reluctance to de-
cide the question outright is reflected in the following caveat from the
opinion:

The Committee is limited to expressing opinions concerning law-
yers’ ethics, and therefore cannot decide the scope of the social
worker’s obligations under the mandatory reporting

‘”o Id. at 3.
I”” Id. (emphasis added).
1*2 Id. at 4, The reluctant conclusion offered by the DC panel is essentially that option

prudently chosen by the interdisciplinary clinic at the University of Denver School of Law,
described in a recent article by Professor Jacqueline St, Joan. See St. Joan, supra note 4.

‘”•̂ DC Op, 282, supra note 116, at 2 (emphasis added). As a pure aside, we have long
been puzzled by this common but rather arbitrary and not entirely sensible distinction
drawn by writers of ethics opinions. Ethics committees regularly draw a clear distinction
between “ethics,” represented by the Rules or Code in effect in the panel’s jurisdiction,
and “law,” represented by everything else that would constitute “law”—statutes, common
law, administrative regulations, and the like. The writers accept full responsibility for com-
plex and, at times, effectively binding analysis about the former, see Peter A, Joy, Making
Ethics Opinions Meaningful: Toward More Effective Regulation of Lawyers’ Conduct, 15
G E O , J. LEGAL ETHICS 313, 335-37 (2002), but deny any authority for interpretations, bind-
ing or otherwise, about the latter.

We do not see such a clear distinction at all. Ethics committees draft opinions to assist
lawyers in making difficult ethical decisions in their work. Frequently, the difficult choices
facing lawyers implicate ethical rules and other state and federal law. To assume, as com-
mittees do, that the ethical rules are not substantive law is misguided. The rules governing
lavk^ers are important and complicated, and represent a serious manifestation of substan-
tive law. See, e.g., Hamilton v. State Bar of California, 591 P,2d 1254, 1259 (Cal, 1990)
(disbarment for violation of professiianal rules); Stanley v, Richmond, 41 Cal, Rptr, 2d 768,
776 (Cal, Ct, App, 1995) (breach of rule is breach of fiduciary duty); Attorney Grievance
Comm’n v. Pennington, 387 Md. 565, 589, 876 A,2d 642, 656 (2005) (attorney disbarred for
violating several rules of professional conduct); see also Lester Brickman, Ethical Issues in
Asbestos Litigation, 33 HOFSTRA L . R E V , 833 (2005) (describing Huber v, Taylor, No, 02-
0304 (W,D. Pa, Feb, 6, 2002), where plaintiffs sued their lawyers for return of millions of
dollars in fees paid, alleging a violation of the rules of professional conduct). The ethical
rules and codes are just as much “law” as a mandatory reporting statute. See W, BRADLEY
WENDEL, PROFESSIONAL RESPONSIBILITY: EXAMPLES AND EXPLANATIONS 4 (2004)
(describing the “legally binding rules”). The members of an ethics committee are equally
qualified to develop opinions about the latter as they are to develop opinions about the

706 CLINICAL LAW REVIEW [Vol. 13:659

The implication from the committee’s opinion is that, if it had jurisdic-
tion to address the legal question, it would hold that social workers
working within a law firm are not mandated reporters. But lacking
the authority to make such a holding, the committee stakes out a con-
servative stance.̂ ‘*”

No other published decision or opinion has addressed the ques-
tion as directly as do the LAPD’s opinion or the Nevada and D.C.
ethics committees’ opinions.!’*^ These few available sources of refer-
ence ‘̂’̂ persuade us that the analysis presented here is not inconsistent
with the limited authority available on this question. We also note
that some doctrine has developed surrounding the interplay of abuse
and neglect reporting statutes and the attorney-client

former. And yet, as we see in this case, the distinction remains a formidable one.
i’*4 The Ethics Committee also relies on Comment [27] to D.C.’s Rule 1.6, “expressing a

presumption against other laws superseding a lawyer’s obligation of confidentiality.” DC
Op. 282, supra note 116, at n. 5. This comment is based on former Comment [21] to the
ABA Model Rules, which was eliminated in the Ethics 2000 Commission’s revisions to
Rule 1.6.

‘”ts Two attorney general opinions have dealt with the question, but neither offers any
further insights beyond those already identified. See Kansas AG Op. 01-28, supra note
119; Maryland AG Op. 90-007, supra note 119.

The Kansas Attorney General opinion addressed the same question as the D.C. ethics
committee, and relied explicitly on that committee’s opinion without any independent
analysis. See Kansas AG Op. 01-28, supra. That result is unfortunate, because while the
DC ethics committee lacked authority to handle questions of law outside of the lawyer’s
rules, the Kansas Attorney General seems to possess such authority. The language of its
opinion supports this inference: “While we typically leave issuance of lawyer ethics opin-
ions to the Kansas Bar Association and the Disciplinary Administrator’s Office, because
your question is directed more toward the social worker’s obligation under the law, we
offer the following analysis.” W. at 2. See also KAN. STAT. A N N . §75-704 (authorizing the
Attorney General to offer legal opinions).

The Maryland Attorney General opinion concerned mental health providers who re-
ceived referrals from lawyers, rather than working within the lawyers’ offices. See Mary-
land AG Op. 90-007, supra, at 1. The opinion concluded that those providers were “acting
in a professional capacity” and therefore were bound by their statutory reporting duties.
Id. at 2. The opinion did conclude, though, that as a matter of Sixth Amendment constitu-
tional doctrine the providers’ reporting duties were trumped by the lawyer’s privilege and
ethical obligations “after the initiation of a criminal proceeding.” W.at 3.

146 \Yg note that one further source addresses this question, but in a rather limited fash-
ion. See Yarbrough & Tobey, supra note 119. In their chapter in a Massachusetts practi-
tioner manual, Yarbrough and Tobey conclude that a social worker serving as a consultant
or agent in a law firm is not bound by that state’s mandatory reporting statute, which
covers social workers explicitly but does not mention lawyers. Id. at 74. The authors focus
in their analysis on the attorney-client privilege and the work product doctrine, however,
without addressing the separate ethical obligations lawyers face under Rule 1.6. See MASS.
RULES OF PROF’L CONDUCT, R . 1.6 (2005). For that reason their input is of less direct
relevance here, but their conclusion is consistent with that developed here.

i”*̂ See, e.g. Carolyn L. Dessin, Protecting the Older Client in Multi-Generation Represen-
tations, 38 FAM. L . O . 247,259 (2004); Nancy E. Stuart, Child Abuse Reporting: A Challenge
to Attorney-Client Confidentiality, 1 G E O . J. LEGAL ETHICS 243, 245-46 (1987); Profes-
sional Liability for Failure to Report Child Abuse, 38 A M . JUR. TRIALS 1 (2007).

spring 2007] Interdisciplinary Collaborations 707

That doctrine, however, is sufficiently distinct from the present ques-
tion, and thus does not compel a change in the conclusion we reach
here.148

Our analysis may offer some benefit to a social worker or law-
follows it in good faith while acknowledging a reporting

i”8 For a rich example of that interplay, see, e.g,. Matter of a Grand Jury Investigation,
437 Mass, 340 (2002), This criminal proceeding involved charges filed against a private
high school after several students reported “hazing” practices which included sexually abu-
sive activity. The prosecution alleged that the school criminally failed to report the sexual
abuse of its students in violation of its mandated reporting obligations. Id. at 341, During
pretrial proceedings, the school objected to production of internal investigative reports
from teachers to the school’s lawyers, claiming that the papers were privileged under the
doctrine of Upjohn Co, v. United States, 449 U.S, 383 (1981), After concluding that the
reports contained information the teachers were required to disclose under the state’s
mandated reporting law, the court declared:

[UJnquestionably the attorney-client privilege may conflict with a different public
policy where the Legislature has determined that an institution must disclose certain
information to others. Here, it is clear on the record that under any reasonable view
of the attorney-client privilege, the school’s internal investigation documents are not
protected.,,, The teachers and school officials , . , knew, or should have known, that
they would have no “right to keep secret” any information disclosed by the internal
investigation concerning possible abuse victims , , . ,

Id. at 351-52 (emphasis in original). One might read the quoted language as deciding di-
rectly the question we face here, but that reading would be mistaken. The teachers’ obliga-
tions accrued when they learned of the abuse in their capacity as teachers. That obligation
cannot be extinguished by later sharing the known information with a lawyer. Because the
obligation to report preceded any claim of privilege, the privilege claim must fail. The
question would be completely different if a student had reported the abuse to his lawyer,
with a social worker sitting in as a consultant to the lawyer. Of course, no charges were
ever lodged against the lawyers for failing to report the abuse learned from the teachers,
because, the worries about the children notwithstanding, the lawyers had no obligation to
report that information without their clients’ consent.

^^^ One might assume that the question we address has its greatest personal implications
for the social worker, who faces possible prosecution for violation of the mandatory report-
ing statute. It also has indirect implications for the law firm, whose clients’ secrets may be
disclosed. But does the presence of the mandatory reporting statute present any personal
risk to the lawyer”} We cannot confidently say no. Here’s why. Assume that a law firm
employs a social worker, and the lawyers advise the social worker, relying on the kind of
analysis developed here, that he does not need to report suspected child abuse notwith-
standing the language of the state statute. If the firm guesses wrong, the social worker is of
course at risk. But the lawyers may be at some risk as well for assisting in a criminal act.
The lawyers conceivably could face sanctions under the governing Rules of Professional
Conduct, Rule l,2(d) prohibits a lawyer from assisting a client in illegal conduct, see
MODEL RULES, supra note 12, at R, l,2(d), and if the lawyers advise the social worker
about his legal rights and obligations, the latter seems to become the client of the former,
(Note that Rule 8.4(b), prohibiting a lawyer from “commit[ing] a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer ….” does not seem
to apply here. Id. at R, 8,4(b)(emphasis added),) Other criminal law doctrine or state
statutes might criminalize a lawyer’s assisting another in criminal conduct. See, e.g., United
States V. Benjamin, 328 F.2d 854 (2d Cir. 1964)(lawyer convicted for assisting client with
financial fraud). Of course, the requirement of criminal intent for any such prosecution
seems very difficult to meet, if the lawyers in fact are relying upon a careful analysis as we
have tried to provide here.

708 CLINICAL LAW REVIEW [Vol. 13:659

Statute’s plain language. It appears unlikely that a social worker em-
ployed within a law firm who does not report suspected abuse, but
acts in reliance on a legal opinion from his law firm colleagues,i5° has
committed a criminal act, especially if the “crime” requires some mens
rea.^^^ Indeed, few reported cases can be found involving prosecution
of a professional for failing to report suspected abuse under the 51
mandatory reporting statutes existing across the United States.̂ ^^ Wg
have discovered more instances, though, of a non-reporting social
worker encountering a civil claim for damages from an injured victim,
a claim which most often has not succeeded.^^s

’50 Another interesting question arising here is whether a lawyer from the law firm em-
ploying the social worker may offer advice to that social worker about his obligations
under the applicable state statute. The question is one of permissible conflicts of interest.
We might assume that the interests of the lawyer’s clients favor advice to the social worker
not to report, while the social worker needs an independent assessment of his rights and
obligations. If the lawyer offers an opinion to the social worker about the applicability of
the statute, then the social worker becomes a “client” of the lawyer for that purpose. See,
e.g., RESTATEMENT, supra note 24, at § 14 (defining who qualifies as a client). In advising
her social worker client, the law firm member might then face “a significant risk that the
representation of one . . . client[ ] [i.e., the social worker] will be materially limited by the
lavi^er’s responsibilities to another client, . . . or by a personal interest of the lawyer.”
MODEL RULES, supra note 12, at R. 1.7(a)(2). The limitations arise from the lawyer’s
commitment to preserve her client’s secrets, and her personal interest in working in a law
firm with an unconstrained social worker.

If the interaction does qualify as a conflicted one, the question turns to whether the
conflict is waivable by the social worker. See id. at R. 1.7(b). Our reasoning is that it is
indeed a waivable conflict, because the lawyer can conclude reasonably that she has the
capacity to “provide competent and diligent representation to” the social worker. It is not
at all inconceivable to imagine that the lawyer desires genuinely to arrive at the right an-
swer to the social worker’s question, not simply an answer that makes, her clients most
happy. The risks of offering wrong advice are profound, and not just to the social worker.
A competent client, like the social worker, may reasonably accept the representation of the
potentially-conflicted lawyer, and thus the conflict may be waived. See also RESTATE-
MENT, supra note 24, at §122 (describing the conditions of permissible waivers of conflicts
of interest).

151 See generally, 22 C.J.S. CRIMINAL LAW § 37 (2005) (“the word ‘willfully’ generally
means a voluntary, intentional violation of a known legal duty in bad faith or with evil
purpose”).

152 See Arthur Gross Schaefer & Darren Levine, No Sanctuary From The Law: Legal
Issues Facing Clergy, 30 LOY. L . A . L . R E V . 177, 183 (1996)(“Mandatory reporters face
possible criminal liability for failure to report”), citing Stecks v. Young, 45 Cal. Rptr. 2d
475 (Cal. App. 1995); People v. Hodges, 13 Cal. Rptr. 2d 412 (Cal. App. 1992).

’53 Our research has found a considerable number of cases involving tort damage claims
against mandated reporters or their employers for failure to report suspected abuse or
neglect adequately. Many of those claims are unsuccessful, but not all. For a sampling of
the decisions, see, e.g.. Cooper Clinic, P.A. v. Barnes, 366 Ark. 533 (2006) (no private right
of action against social worker); Ward v. Greene, 839 A.2d 1259 (Conn. 2004) (liability
runs only in favor of children about whom report was mandated, not to parent of a child
later abused); Manifold ex rel. Zaks v. Ragaglia, 2006 WL 1828461 (Conn. Super. 2006) (no
liability on the facts; immunity found); McGarrah v. Posig, 635 S.E.2d 219 (Ga. App. 2006)
(no private right of action); Estate of Peasant v. County of Seneca, 768 N.Y.S.2d 69 (N.Y.
App. 2003) (civil liability when a mandated reporter “knowingly and willfully” fails to re-

Spring 2007] Interdisciplinary Collaborations 709

TTie conclusions we have just drawn apply only to the settings
with which we began—where a social worker (or similar covered pro-
fessional) serves as an employee of or as a consultant to a law firm
representing clients in legal matters. For our purposes, the distinction
between a true employee of a law firm and a one-shot or occasional
consultant to a law firm is of no matter.i^” The critical element is that
the covered professional (here, the social worker) has no separate or
preexisting professional relationship with the client whose secrets are
at risk. The “trump” that we perceive occurring where the lawyers’
rules control the social worker’s rules arises not because of some im-
perialistic hegemony which lawyers merit over other professionals, but
instead simply because we understand the social worker to be operat-
ing as part of a lawyering team.̂ ^^

These conclusions do change, though, if the social worker does
not clearly operate in the role of a member of the legal team. In the
next section, we discuss, in much briefer fashion, three versions of that
variation.

B. The Duty of Social Workers Offering Direct Services

For this subpart, we draw a distinction between a social worker
serving as a member of a legal representation team, and one whose
relationship with the lawyer’s client is more ambiguous, or mul-
tifaceted. Let us separate out three scenarios.

1. The Multi-Service Agency

Compare the examples described earlier with the following:
An innovative social services agency establishes a street-level office

port). See also Singley, supra note 86.
We opt not to pursue here the question of how, if at all, the Tarasoff doctrine might

apply to the case of a child or elder injured after a law-firm-employed mandated reporter
concludes that he cannot report suspected abuse or neglect, except to point out that liabil-
ity ought not apply if, in fact, the professional is forbidden to report by the application of
the lawyers’ duties. See, e.g., R. Michael Cassidy, Sharing Sacred Secrets: Is It (Past) Time
for a Dangerous Person Exception to the Clergy Penitent Privilege?, 44 W M . & MARY L .
R E V . 1627, 1684 (2004) (“Thus far, there have been no reported cases in which the court
has extended the Tarasoff duty to lawyers.”); Divalent Cooper, The Ethical Rules Lack
Ethics: Tort Liability When a Lawyer Eails to Warn a Third Party of a Client’s Threat to
Cause Serious Physical Harm or Death, 36 I D A H O L . R E V . 4 7 9 , 481 (2000). F o r a discus-
sion of t h e 7 a r a i ‘ o / f d o c t r i n e g e n e r a l l y , s e e , e.g.. R E S T A T E M E N T ( T H I R D ) O F T O R T S : L I A B I L –
I T Y FOR P H Y S I C A L H A R M § 4 1 ( P r o p o s e d Final D r a f t N o . 1, 2005); V a n e s s a M e r t o n ,
Confidentiality and the “Dangerous” Patient: Implications of Tarasoff for Psychiatrists and
Lawyers, 31 E M O R Y L.J. 2 6 3 , 314-318 (1982); R o b e r t F . S h o p , The Psychotherapist’s Duty
to Protect the Public: The Appropriate Standard and the Eoundation in Legal Theory and
Empirical Premises, 70 N E B . L . R E V . 327 ( 1 9 9 1 ) .

154 See L A P D O p . E – 2 , supra n o t e 119.
155 Id.

710 CLINICAL LAW REVIEW [Vol. 13:659

which offers to its customers legal services and an array of social
services, including mental health counseling through social workers.
This agency, which we will call Essex County Community Multi-Ser-
vice Agency (“ECCMA”), touts its advantage in problem resolution
by its ability to offer genuinely “holistic” care to its customers.
Lawyers and social workers and educational specialists can work as
a team to solve problems in ways which have a greater chance of
long term success. ECCMA especially contrasts its offerings with
conventional law firms, which may provide skilled legal products,
but which may miss a client’s larger picture by the blinders the legal
training tends to produce.

At ECCMA, persons may receive just legal services from the law-
yers, or may receive just mental health or crisis counseling from its
social workers, or may receive a collaborative team’s attention in
situations which require the assistance of both a lawyer and a social
worker. Thus, at times the lawyers collaborate in their work with
social workers; at times they do not.

The agency we have described represents a common service de-
livery model, and we can see its obvious benefits.^^^ The critical ques-
tion is whether a social worker employed by E C C M A would be
required by a state mandatory reporting statute to report suspected
information relating to abuse and neglect obtained during the social
worker’s separate counseling session, even when working with a
lawyer.

The first conclusion (of three we develop here) is that a social
worker treating social work clients as a therapist within E C C M A is
bound by his statutory duties to report abuse and neglect. The mere
fact that E E C M A contains a legal services component within its oper-
ations does not bring the social worker into the ambit of the law firm.
Thus, if an ECCMA social worker sees a family for purposes of
mental health counseling, and while working with that family comes to
suspect abuse or neglect, the obligation to report would still apply.
This is the easiest of all of the conclusions we develop. In this
straightforward scenario, the social worker is acting directly as a social
worker, and we see no argument which would take him out of his
traditional role, with its standard reporting obligations.

156 As we’ve described it, ECCMA resembles several existing clinics operating across
the country. In Cambridge, Massachusetts, the Community Legal Services and Counseling
Center (“CLSCC”) offers services similar to those offered by ECCMA, and also engages in
occasional collaborative efforts. We do not, however, intend our discussion here to refer
directly to the practices of CLSCC, whose precise configurations may be different from the
fictional ECCMA here.

Spring 2007] Interdisciplinary Collaborations 711

2. The Interdisciplinary Collaboration

Our next question addresses the duties of the professionals when,
in the true spirit of ECCMA, the lawyers and the social workers func-
tion as a team to assist a client. Let us imagine the following unexcep-
tional example:

Joan Miro, a thirty-nine-year-old mother of three adolescent chil-
dren, comes to ECCMA for help with her depression and hopeless-
ness. She is assigned to see Linda Laker, a social worker, who later
refers her to the agency’s lawyers for help with her claim for state
general assistance (GA) benefits. (Joan has exhausted her lifetime
limit of TANF welfare benefits, and so GA is the only state welfare
program for which she might qualify.) Because the state awards
GA benefits only to “disabled” individuals, the lawyers cooperate
with Linda to develop evidence proving that Joan cannot maintain
employment in the regional economy in light of her depression and
anxiety. While working with Joan and the team, Linda learns that
Joan’s poor parenting skills likely qualify as “neglect” under the
state statute. Unless her working relationship with the ECCMA
lawyers changes something, she is obligated to report Joan to the
state Department of Social Services (DSS). Given the work that the
team is engaged in with Joan, and Joan’s vulnerability, Linda be-
lieves that a report to DSS would not be in the best interest of Joan
or of her children.

In this story, the initial relationship between Linda, the social worker,
and Joan is a therapeutic one, a relationship arising out of Linda’s role
as a therapist. As in the previous example,!^’ before Linda collabo-
rates with the ECCMA lawyers, there is no question that she remains
a mandated reporter. The question—and it is an important one which
will arise not infrequently—is whether the collaboration with the legal
team changes Linda’s duties.

Our understanding here is that the collaboration does not relieve
Linda of her duty to report Joan’s neglect to DSS. The critical consid-
eration is the nature of the relationship between Linda and Joan.
Here, that relationship is one of a social worker and her chent. The
collaboration with the lawyering team does not, and cannot, change
that reahty. We must proceed on the understandable assumption that
the mandated reporting statute will always apply unless some super-
seding argument renders it inapphcable. In our first example, of the
social worker/employee of the law firm,!̂ ^ we conceived the social
worker as a member of the legal team, as a lawyer-surrogate, if you
will (in the same manner that a paralegal or law clerk is a lawyer sur-

157 See supra Part II.B.l.
’58 See supra Part II.A.

712 CLINICAL LAW REVIEW [Vol. 13:659

rogate). Here, that conception is not reasonably available. Linda re-
mains Joan’s social worker, and the statute continues to apply to
her.159

If that conclusion is sound, the lawyers within ECCMA must ad-
just their cUent interactions accordingly, lest they breach a duty to
their clients. Just as the D.C. Ethics Committee^^o and several com-
mentators^^^ have suggested, the agency must warn its clients that
some of what they reveal to their lawyers may not remain protected,
but (if our earher conclusions are sound) only those chents for whom
the social worker is a member of the legal team.i^^ ^Yhis warning will
mimic the warning which the social workers will already have pro-
vided to their clients at the beginning of their work with them, as stan-
dard social worker protocol requires.^”

Note, though, an important complicating consideration for all in-
volved in a team endeavor, with social workers working side-by-side
with lawyers on their respective client’s case. The client need not only
fear that information disclosed to the social worker risks becoming
subject to the mandated reporting. The client must be aware that in-
formation disclosed to the lawyers also risks becoming subject to the
social worker’s mandatory reporting duties, if the lawyers allow the
social worker to learn that information. Because of the breadth of the
mandatory reporting schemes, which encompasses information lead-

159 A n o t h e r p e r m u t a t i o n of t h e s e s c e n a r i o s p r e s e n t s itself at this p o i n t . M i g h t E C C M A
offer J o a n t h e c h o i c e of t e r m i n a t i n g h e r t h e r a p y r e l a t i o n s h i p with L i n d a , with t h e u n d e r –
s t a n d i n g t h a t L i n d a will t h e n b e c o m e a m e m b e r of t h e legal t e a m a n d as a result will n o
l o n g e r b e subject t o t h e m a n d a t e d r e p o r t i n g s t a t u t e , b a s e d o n t h e e a r l i e r analysis? C o n –
c e p t u a l l y t h a t p r o p o s i t i o n m a k e s s e n s e , if i n d e e d L i n d a c e a s e s serving as an o n g o i n g t h e r a –
pist a n d t h e n e s t a b l i s h e s a n e w r o l e as a legal c o n s u l t a n t . Analytically, it s e e m s t o follow
t h a t facts s h e l e a r n e d while serving as a t h e r a p i s t w o u l d b e subject t o t h e s t a t e r e p o r t i n g
law; facts s h e l e a r n s while serving as a legal t e a m c o n s u l t a n t w o u l d not. W h e t h e r L i n d a
w o u l d b e p r u d e n t in a t t e m p t i n g this t r a n s i t i o n of r o l e s is a different q u e s t i o n e n t i r e l y ,
especially if s h e w e r e d e f e n d i n g , after t h e fact, a decision n o t t o r e p o r t s o m e i m m i n e n t
d a n g e r t o J o a n ‘ s c h i l d r e n .

160 D C O p . 282, supra n o t e 116, a t 3.
16′ See, e.g., B r u s t i n , supra n o t e 9, at 847-48; D o n o h u e , supra n o t e 6; St. J o a n , supra

n o t e 4, at 437-39.

162 A p r u d e n t office offering b o t h legal a n d social services will establish p r o t o c o l s d e –
signed t o e n s u r e t h a t clients u n d e r s t a n d t h e s e risks a n d t h e differentiation of r o l e r e s p o n s i –
bilities. W h i l e w r i t t e n n o t i c e s o r c o n s e n t forms m i g h t b e n e c e s s a r y , t h e y m a y n o t b e
sufficient t o c a u t i o n clients a d e q u a t e l y of t h e r e p o r t i n g d u t i e s of s o m e m e m b e r s of t h e
o r g a n i z a t i o n . T h e p r o t o c o l s t h u s m a y well i n c l u d e c o n v e r s a t i o n s with clients a b o u t t h e
n u a n c e s of this issue.

163 See S O C I A L W O R K E R C O D E , supra n o t e 1 1 , at § 1.07(d)(“Social w o r k e r s s h o u l d in-
form c l i e n t s , t o t h e e x t e n t p o s s i b l e , a b o u t t h e d i s c l o s u r e of c o n f i d e n t i a l i n f o r m a t i o n a n d
t h e p o t e n t i a l c o n s e q u e n c e s , w h e n feasible b e f o r e t h e d i s c l o s u r e is m a d e . T h i s a p p l i e s
w h e t h e r social w o r k e r s disclose c o n f i d e n t i a l i n f o r m a t i o n o n t h e basis of a legal r e q u i r e –
m e n t o r c l i e n t c o n s e n t . ” ) . See also M A S S . R E G S . C O D E tit. 258 § 20.09 (2007) ( s a m e ) .

Spring 2007] Interdiseiptinary Collaborations 713

ing the social worker to “suspect” abuse or neglect,!̂ “* a social
worker’s duties would surely be triggered by facts learned from the
lawyers’ files or the lawyers’ conversations.’^^

This reality is a sobering one for the prospect of truly effective
interdisciplinary practice.i^^ Consider the practical impUcations of the
understanding we have arrived at. While a lawyer and a social worker
work together to assist a client with complex psycho-social and legal
difficulties, the lawyers must vigilantly monitor and cull what they
share with the social worker, lest they reveal some facts which would
trigger the mandatory reporting duties. The “team” can never truly
collaborate, because the social worker can never know confidently
that the lawyers have not held back certain information to protect the
client from the social worker’s obhgations. We assume, although the
answer is not entirely evident, that it is not an effective measure for
the lawyers essentially to “toggle” each collaborative team effort with
an ongoing classification of “redacted” and “not redacted.” In other
words, we doubt the effectiveness of a solution where the lawyers say
to the social worker collaborator something like the following: “In
this case we’re holding back nothing, so we’re truly a team until we
tell you otherwise,” or (for the others) “In this case we’ll tell you up
front that we have learned some information from our client which we
unfortunately cannot open up to you, so our ‘teamwork’ will be a bit
hobbled here—not worthless, but not ideal

164 See, e.g.. CONN. G E N . STAT. § 17a-101a; Ward v. Greene, 839 A.2d 1259 (Conn.
2004).

165 W h i l e a m a n d a t e d r e p o r t e r ‘ s actions m u s t b e b a s e d u p o n reliable e v i d e n c e u n d e r l y –
ing t h e ” s u s p i c i o n , ” see, e.g., G u c c i v. C o n n . D e p t . of C h i l d r e n & Fam., 2003 W L 22853895
( C o n n . S u p e r . 2 0 0 3 ) ( o v e r t u r n i n g a b u s e finding in light of insufficient e v i d e n c e ) , t h e r e
s e e m s n o r e q u i r e m e n t t h a t a r e p o r t e r h a v e direct, n o n – h e a r s a y e v i d e n c e of t h e u n d e r l y i n g
facts. See, e.g., O ‘ H a r e v. B l a m e y , 583 S.E.2d 834 ( G a . 2003) (finding r e p o r t r e a s o n a b l e
e v e n in t h e a b s e n c e of direct o b s e r v a t i o n s ) . E v i d e n c e in a file m a d e a va ila ble t o a social
w o r k e r w o u l d t h u s trigger t h e social w o r k e r ‘ s r e p o r t i n g obligations.

166 B e s i d e s t h e difficulties a d d r e s s e d in t h e text, o n e w o n d e r s h o w effectively any lawyer
can explain t o a client t h e n u a n c e s of t h e possible risks of an i n a d v e r t e n t disclosure of t h e
client’s s e c r e t s . B e s i d e s t h e risks t o t h e client’s confidences, this difficulty c r e a t e s s e r i o u s
risks for t h e l a w y e r ‘ s e x p o s u r e t o discipline s h o u l d i n f o r m a t i o n b e r e p o r t e d w i t h o u t a cli-
e n t ‘ s k n o w i n g a n d i n f o r m e d c o n s e n t . See M O D E L R U L E S , supra n o t e 12, at R. 1.6(a)(client
m u s t give ” i n f o r m e d c o n s e n t ” t o disclosure of i n f o r m a t i o n ) ; R. l.O(e) (defining ” i n f o r m e d
c o n s e n t ” as including c o m m u n i c a t i o n of ” a d e q u a t e i n f o r m a t i o n a n d e x p l a n a t i o n a b o u t t h e
m a t e r i a l r i s k s ” ) .

16” T h e difficulty with this ” t o g g l e ” c o n c e p t is a p p a r e n t . N o t only d o e s t h e disclosure
t a i n t t h e w o r k i n g r e l a t i o n s h i p , b u t t h e client m a y s h a r e s o m e s e c r e t i n f o r m a t i o n after t h e
“all c l e a r ” s t a t e m e n t h a s b e e n given. F o r a discussion of this difficulty in t h e c o n t e x t of a
medical-legal c o l l a b o r a t i v e , see P a m e l a T a m e s , P a u l R. T r e m b l a y , T h e y W a g n e r , E l l e n
L a w t o n & L a u r e n Smith, Commentary: The Lawyer Is In: Why Some Doetors Are Frescrib-
ing Legal Remedies for Their Fatients, and How the Legal Frofession Can Support this
Effort, 12 B . U . P U B . I N T . L.J. 505, 514-15 (2003).

714 CLINICAL LAW REVIEW [Vol. 13:659

5. The Interagency Consultation

Let us end our discussion of the mandatory reporting phenome-
non with a treatment of the last iteration we can imagine occurring in
an agency such as ECCMA—where the agency staff social worker
“parachutes into” the lawyering sector to assist with a case. Our con-
clusion here is that the consulting social worker, like in the very first
examples, is best described as a member of the legal team, and the
conclusion we first drew applies here—that is, the lawyering roles
trump the state statute if lawyers are otherwise exempt from that
statute.

Let us amend our last example, involving the client Joan Miro, in
the following way:

In this iteration, the lawyers have agreed to represent Joan in her
disability benefits appeal. With Joan’s medical history and hospital
records in hand, the lawyers decide to ask Linda Laker, a staff social
worker at ECCMA, for expert assistance in understanding the na-
ture of Joan’s illnesses and how her illnesses ought to affect her
functioning. Linda agrees to join the lawyers in this role. While
working with Joan and the team, Linda learns that Joan’s poor
parenting skills likely qualify as “neglect” under the state statute.
Unless her working relationship with the ECCMA lawyers changes
something, she is obligated to report Joan to the state Department
of Social Services (DSS). Given the work that the team is engaged
in with Joan, and Joan’s vulnerability, Linda believes that a report
to DSS would not be in the best interest of Joan or of her children.
Once again, the question is whether this employment role for

Linda affects in any way her otherwise existing duties to report sus-
pected abuse and neglect. Relying on our initial analysis, we analo-
gize Linda in this setting to the social worker employee of a law firm.
The critical consideration, again, is the nature of the relationship be-
tween Joan and Linda. In the example of the interdisciplinary collab-
oration, just above, we concluded confidently that Linda was Joan’s
therapist, and so her duties remained in place, even when working
with the lawyers. Here, by contrast, Linda has no relationship with
Joan except as an expert consultant hired by a law firm to assist it in
its legal representation. If our initial analysis is sound, then there is no
principled distinction between the social worker employee and the so-
cial worker “parachuting”

168 It is entirely possible that the conclusion just expressed would change if Linda served
as a testifying expert witness for Joan’s case. See, e.g., ABA Comm. on Ethics and Prof’l
Responsibility, Formal Opinion 411 (1998) (“Ethical Issues in Lawyer to Lawyer Consul-
tation”); Jett Hanna, Moonlighting Law Professors: Identifying and Minimizing the Profes-
sional Liability Risk, 42 So. TEX. L . R E V . 421 (2001)(expert witness is not necessarily a
member of the hiring lawyer’s legal team); Selinger, supra note 128, at 410-15 (arguing

Spring 2007] Interdisciplinary Collaborations 715

C Suggestions for Responding Ethically and Responsibly to
Suspicions of Abuse and Neglect

In this final subpart we address briefly an important practical is-
sue: How the lawyer/social worker team might proceed when con-
fronting otherwise reportable evidence of abuse or neglect, even if the
laws do not require a formal report.

To conclude, as we have done, that social workers working in law
firms at times are not bound by state reporting statutes answers one
set of important questions, but leaves another set of important ques-
tions unanswered. Even if a social worker need not report evidence of
abuse or neglect, and even if the lawyers are bound by their ethical
obligation to maintain client confidentiality, how might a lawyer/social
worker team respond in a responsible and ethical fashion to such evi-
dence? D o we mean to suggest that ignoring the evidence of abuse or
neglect is a form of “best practices”?

Our phrasing the inquiry in that fashion telegraphs its answer. A
responsible and effective lawyer, working with a responsible and ef-
fective social worker, will not and cannot simply ignore the informa-
tion which might require an independent helping professional to file a
report. While this issue may deserve its own separate article, we offer
some preliminary reflections on it here. As context for our reflec-
tions, consider the following story:

The same law school clinic team that represented Sally in her di-
vorce proceedings^^^ has been appointed to represent Joe, a fifteen-
year-old 9th grader who lives with his mother, step-father and ten-
year-old sister. Because of Joe’s recent truancy, Joe’s school filed
what is known as a Child in Need of Services (CHINS) petition with
the local District Court.i’̂ ^ In an upcoming hearing, a Judge will
order a service plan of sorts, recommending particular interventions
to address the truancy.
In the course of the team’s interview with Joe he mentions that his
step-father is an alcoholic, and when drinking he has a “bad tem-
per.” Joe informs the team that his step-father has hit him on sev-
eral occasions in the past two years. These incidents have been
escalating in frequency and intensity. The most recent incident oc-
curred four weeks ago when his step-father slapped him in the face

against a consultant to a legal team serving as an expert witness in the same case).
169 See supra Part II.A.2.b.
I’O In many states, legislation authorizes school officials, parents, and others to institute

a court action intended to deliver services to children at risk. See, e.g., MASS. G E N . LAWS
ch. 119 § 39E. In such proceedings, the child is the subject of the proceeding and serves in
some respects as a “defendant,” even though the proceedings are intended to help, and not
to punish, him. In many states the child is also entitled to appointed counsel. See, e.g., id.
at § 39F.

716 CLINICAL LAW REVIEW [Vol. 13:659

and pushed him against a wall. This was about the time Joe stopped
going to school. Joe’s mother is not aware of these incidents and
Joe states emphatically that he does not want the team to tell any-
one about the incidents. He does not want the state’s Department
of Social Services (DSS) involved, he wants to stay at home (and
does not want foster care or residential placement), and wants to try
to graduate with his friends. He is also concerned that if his mother
learns about these incidents it would create more tension between
her and his step-father.

The student attorney and supervising attorney feel strongly about
representing Joe’s stated interest. He wants to stay at home and
says he will make every effort to attend school.
If Joe told his story to a social worker therapist, the social worker

would be required to report the step-father’s violent behavior to DSS.
When Joe tells the story instead to his lawyer team, the team has no
such obligation. The lawyers have discretion not to disclose the vio-
lence, although the story just told possibly provides the lawyers with
discretion to reveal the information even without Joe’s consent. ‘̂̂ i
And if the above analysis is cogent, the social worker working as part
of the team is not obhgated to disclose the violence to DSS, but shares
the same discretionary judgments as the lawyers.

Even if the lawyers have no discretion at all to disclose the step-
father’s behaviors, they cannot act as though they never learned about
the violence. While they may opt not to make a report, they will ac-
knowledge the difficult position in which Joe finds himself. Effective
legal representation will include careful, thoughtful counseling of Joe
about his needs, wants and interests, including his safety, as he lives
with the step-father. As developed above, the lawyers in this setting
may actually have an advantage by working with a social worker on
their team in achieving their counseling goals.1^2

What might this counseling look like? The lawyers will want to
ensure that Joe understands that they are his allies and his confidants,
but that they still worry about his protection. They will explore with
him his competing needs to remain in his current home and at the
same time not to be hurt. The lawyers may not persuade Joe that a
report to some authority will serve his longer term interests, but they
must be sure that Joe understands that option and its potential advan-
tages. His perceptions and his predictions may not be realistic ones—
not necessarily because he is a child, but because many chents, young

>’i See MODEL RULES, supra note 12, at R. 1.6(b)(l) (lawyer may disclose “to prevent
reasonably certain death or substantial bodily harm”). The judgment calls revolve around
predicting whether the previous violence makes it “reasonably certain” that Joe will be hit,
and whether the violence constitutes substantial bodily harm.

^T^ See supra text accompanying notes 70-75.

Spring 2007] Interdisciplinary Collaborations 717

and old, can benefit from a more objective viewpoint. This is simply
good legal counseling.

The lawyers may hope that Joe will give them permission to inter-
vene to protect him against the step-father (while they simultaneously
hope that some intervention will actually lead to his protection).’^^
But, unless their worry about his well-being is immediate and desper-
ate, we might assume that the lawyers will not betray Joe’s wishes
about confidentiality, and will not disclose the violence to any other
person.!”” That result may be more comfortable for the lawyers to
accept than for the social worker, who has been trained differently
and who sees his role as more paternalistic. If the lawyers opt not to
exercise discretion and report the violence (or if the lawyers have no
such discretion in their judgment), the team members need to engage
in a soul-searching conversation about their respective roles and the
lawyers’ reasons for so acting. The social worker may come to agree
that the lawyers have made the best decision possible under the cir-
cumstances. The lawyers may come to conclude that their decision is
in fact not justified. Or the two professionals may agree to disagree,
respecting the role differences between the professions. If this process
works well, the lawyers will understand better the implications of their
role obligations, and the social worker will feel heard and respected in
the process.

CONCLUSION

Our musings have served to cement our respect for and delight
with interdisciplinary collaboration. This survey of certain key ethical
mandates has confirmed that lawyers and social workers can satisfy
their respective professional duties in several of the critical areas
viewed by many as suspect: mandated reporting, zealous advocacy,
and client autonomy. Thanks to an interdisciplinary team’s comple-
mentary professional orientations and trainings, the legal counseling
will be richer and more comprehensive, while the representation re-

173 We include this parenthetical simply as a reminder of the blunt fact that reporting
dangerous situations to authorities like DSS will not assuredly change Joe’s life for the
better. Joe’s embeddings in his relationships with his mother, step-father, school friends,
and the like means that any changes in his life conditions, while well meant, may have
many unintended reactions.

I7t The assertion in the text may require a more extended explanation. We approach
Joe’s counseling with an understanding that ethical lawyers tend toward the anti-paternal-
ism stance—that arguments suggesting betrayal of a client’s wishes carry with them a heavy
burden of proof. See, e.g.. BINDER, BERGMAN, PRICE & TREMBLAY, supra note 2, at 4-8,
379-97; Kruse, supra note 23, at 426-440. The operating presumption against acting against
a client’s stated wishes is hardly irrebuttable, of course. If the lawyers fear for Joe’s safety
in a palpable and urgent way, we trust that they will seek outside intervention even if their
client refuses to authorize them to do so.

718 CLINICAL LAW REVIEW [Vol. 13:659

mains steadfastly zealous, rather than fatally hobbled.
We hesitate to predict whether all ethical dilemmas which may

arise in interdisciplinary practice are similarly capable of satisfactory
resolution. What for example of the statutory and ethical bars against
unauthorized practice of law? What of the ethical and moral barriers
against deceiving third parties? Further investigation lies ahead.
While we do not prejudge those debates, we do embrace their explo-
ration to ensure that interdisciplinary collaboration can flourish.

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