An Interview with Deryl Hamann, Senior Counsel at Baird Holm LLP
By Chris Burge and Scott Christoffersen, Creighton University MBA students
The purpose of the Aiming Higher project is to highlight individuals in the Omaha community who exemplify ethics. One such individual is Deryl Hamann, senior counsel at Baird Holm LLP.
Hamann, a native of Iowa, was born into the Great Depression and spent his early years without the luxuries of running water or electricity, something he simply describes as “primitive.” Around the time he was 13, the family moved to the Fort Dodge area where his father had secured work with a dairy farm. By good fortune, Hamann found a restaurant across the road and with it, a job. He probably had no idea at the time that he would work there through junior high, high school, and junior college, climbing the ladder to higher levels of responsibility.
Following junior college, Hamann decided to enroll in law school, but he knew that he would need to pay tuition himself as his parents were in no position to do so. As it happened, his boss knew the owner of a drive-in restaurant in Lincoln, Nebraska, and as a result, he found the means to pay for law school. Mr. Hamann adds that his then-wife, Carrie, also worked to help support him through law school. Following graduation from the University of Nebraska College of Law, Hamann spent a year as a clerk for U.S. District Judge Robert Van Pelt. In 1958, he joined a predecessor firm to Baird Holm, beginning what would be a lengthy relationship. Hamann recently celebrated fifty years with the firm.
What is Ethics?
For Deryl Hamann, ethics isn’t something that needs to be complicated. While he comments that there is no one, best definition of ethics, he recalls that Judge Van Pelt believed most of ethics could be boiled down to the phrase, “Don’t do anything you wouldn’t want to tell your mother about.”
Even though there may not be a universally accepted definition of ethics, for attorneys in Nebraska, the ethical standards of the bar are codified in the Rules of Professional Conduct. The legal profession provides a more formalized code of ethics than is found in many business settings, and this is in large part due to the nature of the profession. A client places an enormous amount of trust in an attorney, disclosing confidential matters he or she would not readily share with business acquaintances. The attorney is obliged to respect these confidences and to act as an advocate for the client. The standards must be set high.
Attorneys in the state are ultimately accountable to the Nebraska Supreme Court, which adopted the Rules of Professional Conduct. Recognizing that attorneys sometimes need direction, the Court created the Advisory Committee, which can issue an advisory opinion or an interpretation of the Rules of Professional Conduct upon the request of an attorney. In instances where an attorney fails to adhere to the standards of the bar, the Counsel for Discipline, an independent body, will investigate the case and make a recommendation to the Court. Such recommendations can include disbarment.
Ethics in Practice
When asked what ethical situation comes up the most in his experience, Hamann is quick to respond, “conflicts of interest.” In a law firm with seventy attorneys and a host of clients, it is very possible for two parties with conflicting interests both to have prior relationships with the firm. Hamann recalls from the Bible that man cannot serve two masters. Following the Biblical precedent in such cases, the firm is obliged to represent neither party.
Some instances present ethical matters in black and white, while others are more nuanced. When incorporating an enterprise, Hamann cautions that an attorney must be clear that he or she is representing the corporation. The attorney cannot represent the corporation and the shareholders unless the shareholders are in agreement and understand the potential for a conflict of interest, a situation that is often possible. Nonetheless, should it become evident that the shareholders are not of the same mind, the attorney is obliged to withdraw representation of the shareholders, something that is both a matter of practicality and judgment.
Hamann continues that one needs to be mindful that the mere appearance of impropriety can be damaging, regardless of its substance. This concern extends beyond the dealings of individual firms to the institutions of the bar. The Counsel for Discipline was once housed in the offices of the Nebraska State Bar Association but was later moved to a separate location to reinforce its stature as an independent body.
Ethics as a Culture
Even with the clear ethical expectations in the profession, attorneys are not perfect. According to the Counsel for Discipline, a leading cause of disbarment is the improper use of client funds. An attorney may “borrow” from a trust account to make ends meet, having every intention of paying the funds back, but in that instant a serious breach has already been committed. Hamann comments that attorneys are subject to human imperfection just like everyone else. A strong ethical culture in an organization and mechanisms for accountability reduce such temptations.
Walking the Walk
When it comes to Baird Holm, ethics has been a part of its culture since its founding. At the time Hamann joined the firm, senior partner Raymond Young was chairman of the Advisory Committee. After Young retired, Bill Baird held this position. Deryl Hamann later held the office for 12 years.
To help make sure attorneys don't find themselves representing conflicting interests, Baird Holm implemented a system used to minimize such risks. When Baird Holm considers taking on a new client, a conflict memorandum is circulated to every attorney that identifies the potential new client, names parties who may be adverse to the client, and provides background about the reason the client is seeking the services of the firm. If anyone recognizes one of the adverse parties from either prior or current work, Baird Holm generally will not accept this new work because it would represent a conflict of interest. In some cases, both parties may waive the conflict. An automated system is also in place to augment the memos, which cross references past work Baird Holm has done with the potential client to make sure nothing was overlooked.
Another check that Baird Holm uses is its client evaluation committee. This committee examines a potential client to make sure he or she is someone that Baird Holm feels comfortable representing. Sometimes a client is involved in a business or activity with which Baird Holm doesn’t want to be associated or involved, and the potential tarnish of the reputation of the firm is not worth the risk of representing the client.
The Omaha Community
When asked about Omaha and whether there is “something in the water” that makes it better to do business here versus somewhere else, Hamann believes “we would like to think so.” He says the Midwest values are perhaps not quite the same as in other places of the country. Overall, he feels that the legal community in Omaha is collegial and conducts itself in an ethical manner, perhaps more so than in certain other areas.
Looking to the future, Hamann sees ethics becoming much more formalized than in the past, with law schools requiring ethics classes. He feels this is beneficial because it gives new attorneys a more heightened awareness of the potential traps into which one can fall and how to avoid them. In addition, experienced lawyers are now required to take continuing legal education, including ethics seminars. Overall, Hamann believes the fundamental ethical business issues today are not much different than they have always been. The time-tested adage still holds true, “Don’t do anything you wouldn’t want to tell your mother about.”
© 2017, Kracher & the Business Ethics Alliance