What Asch’s Line Experiment Can Teach Us about Conformity and In-House Lawyers

Imagine that you have volunteered to participate in an experiment on visual judgment.  You, along with several other college undergraduates, file into a room in a psychology department and are shown various pictures of lines of varying lengths.  One after another, your fellow participants in the study respond to the question: “Which is the longest line?”  One after another, they give an obviously incorrect response.  The time comes for you to provide an answer.  What do you say?

Asch 1

This is the experiment that was conducted by Solomon Asch in 1951 at Swarthmore College.  Asch hypothesized that when confederates (fake participants) uniformly gave a particular response in a group setting, the lone true participant would feel pressure to conform to the group consensus.

Asch 2

Asch was correct.  Over the course of twelve critical trials, 75% of the true participants conformed to the incorrect majority at least once.  On average, there was a 32% rate of conformity, in spite of the fact that there was no real consequence for failing to conform and the answer given by the majority was clearly incorrect.

Why did the participants conform? Later work hypothesized that individuals go along with a majority for normative, reputational, and information reasons.   In other words, the group sets the standard for what behavior is appropriate (normative), the individual wants to be seen as fitting in (reputational), and the individual takes cues from the group regarding the true state of the world (informational).

Interestingly, the effect seems to dissipate when the group is small (four or fewer) and when the target has at least one other person who deviates from the group.

Lately, I’ve wondered how this very human proclivity influences attorneys who are “in house”.  A number of well-publicized cases of misconduct on the part of in-house counsel bring this question to the forefront.  Recently, Donald Langevoort, from Georgetown University  wrote the following in the Wisconsin Law Review: “[T]he most powerful effect is probably cultural, when the lawyers develop a sense of identity that is tied as much or more to their status as key employees as to their status as professional attorneys. This is a visceral process, generating the kind of loyalty that results from bonding experiences early on and, over time, being caught up in the competitive arousal and sense of corporate mission. It means bringing lawyers into the corporate team.”  Whether the process is “visceral” is a matter of debate.  But without question, it is a psychological process—with evolutionary roots—which is driven by a human need to associate closely with members of ones species who are most likely to protect and provide for the individual.  What is pack behavior in wolves is “herd behavior” in humans, at least it is to psychologists who study it.  When attorneys serve the important role of gatekeeper for a variety of corporate activities and functions, the human tendency to conform to what the majority deems good, right, or in the best interests of the firm can be a powerful force.  Even for the casual observer of human behavior, it should be unsurprising that attorneys in this position feel pressure to violate rules of ethics for the benefit of the corporate bottom-line.  This is not to suggest that all, or even most in-house lawyers behave badly.  Rather, behavioral research tells us that the impulse to acquiesce to serve the common good is both fundamentally adaptive, and irrepressibly human.  Perhaps it is time to use what we know about conformity, starting with research that is more than 60 years old, to identify strategies to encourage compliance with rules of ethics, even when pressures are overwhelming.

While executives of corporations have good reason to incentivize loyalty, psychological theory tells us that best ethical practices are encouraged when in-house lawyers feel a connection to other lawyers who have similar professional ethics training.  Encouraging in-house lawyers to make contact with lawyers outside the company is one way to increase feelings of connectedness between the in-house lawyer and other members of the legal profession.  Relationships that occur outside of the corporation can lessen pressures resulting from an insular existence, in which the corporate culture is the lawyer’s entire professional world.  These relationships can also enforce ethical norms and can encourage in-house lawyers to remember and comply with ethical rules.  Perhaps it makes sense to consider developing new avenues for in-house lawyers to meet and work with other legal professionals who will promulgate accepted ethical standards.

For more reading, please see:

http://www.duanemorris.com/alerts/static/A_SECAttyConductRules1004.pdf

http://wisconsinlawreview.org/wp-content/files/9-Langevoort.pdf

Video

A Programming Note

PBSIt is not everyday that a major TV network devotes a segment to behavioral ethics, so this episode of the PBS show, Religion and Ethics Newsweekly, deserves note.  The segment, almost nine minutes long, features experts Dan Ariely and Ann Tenbrunsel.  It also profiles a MIT trained economist who, after leaving a Washington DC-based research institute to become a bagel salesman, has gained interesting insights into dishonesty (the story of the bagel man, as he is known, was first told in the New York Times by Stephen Dubner and Steven Levitt before they wrote Freakonomics).

Here is the segment. Happy viewing.

Screenshot 2014-07-02 22.20.14

 

Categorizing Behavioral Ethics

400px-Category-diagramAs anyone who studies behavioral ethics knows or quickly learns, the subject contains a vast amount of material — much of which is primary research.  As a result, it is useful to find sources to help categorize the literature of the field.  For those interested in the behavioral aspects of legal ethics, Behavioral Legal Ethics by Jennifer Robbennolt and Jean Sternlight stands out as one of the most important. In addition, here are some other resources that I’ve found very useful:

(1) “Behavioral Ethics: Toward a Deeper Understanding of Moral Judgment and Dishonesty” by Max Bazerman & Francesca Gino. This article, by two of the leading researchers in the field, provides an excellent overview of the subject. Particularly helpful is their description of the types of influences that can produce intentional dishonesty compared to those that can produce unintentional dishonesty (note: Max Bazerman’s book, Blind Spots (co-authored with Ann Tenbrunsel), provides one of the most accessible overviews of the field).

(2) “Ethically Adrift: How Others Pull Our Moral Compass from True North, and How We Can Fix It” by Celia Moore and Francesca Gino. This article, again by leading researchers, situates the discussion of behavioral ethics inside a larger description of the many forces that can cause unethical misconduct inside organizations. The comparison of individual cognitive limitations and social influences that can produce unethical decision-making is particularly helpful.

(3) “Behavioral Ethics Meets Behavioral Law and Economics.” This article, by Yuval Feldman from Bar-Ilan University (who has written extensively about the intersection of behavioral science and law), is very useful in describing the complexity, nuance and areas of disagreement in behavioral ethics literature. It also nicely maps the different sources of research on, and relationship between, behavioral ethics and behavioral law and economics.

If anyone else has found other sources that provide useful overviews of the field, please share.  Thanks.

Fundamental Attribution Error

Person and SituationScholarship on legal ethics often turns to behavioral science to help explain the sources of misbehavior. Take, for example, the “Fundamental Attribution Error” (FAE), which is the established tendency to overestimate the predictive value of disposition (“personality” or “character traits”), rather than focusing on the power of situational forces in explaining misconduct. Many leading ethics scholars have described the power of FAE in ascribing blame. Here is one cogent explanation by Professor W. Bradley Wendel:

Another well documented feature of human psychology is the fundamental attribution error (FAE) – we tend to attribute the explanation of wrongdoing to character traits or dispositions, not features of the situation. Asked to explain the Milgram results, people will often say the subjects must have been sadists. The same effect can be observed outside the laboratory. Ask people for an explanation of the decision to launch the space shuttle Challenger, the collapse of Enron, the Abu Ghraib abuses, or the failure of the ratings agencies or the risky financial transactions leading up to the 2007 financial crisis, and you will probably hear an explanation in terms of the greed, dishonesty, or cruelty of key players – the “bad apples” account. It turns out, however, that the vast majority of participants are not bad apples, but are ordinary people whose ethical decisionmaking is subtly influenced by group dynamics such as in-group favoritism, pluralistic ignorance, induction effects that evaluate conduct in terms of previous similar actions, and subtle influences on the way people construe unfamiliar or ambiguous circumstances.

Wendel’s post on the “ingrained tendency” of the FAE, which can be found at Legal Ethics Forum (and recently republished by the Journal of Law), provides an excellent example of the phenomenon in action: he describes how the decision of the California Supreme Court to deny admission to practice law to Stephen Glass, the former journalist who was discharged from the New Republic for extensive plagiarism, has prompted unwarranted assumptions about the relative importance of Glass’s history of dishonesty. Wendel’s point is not that Glass automatically deserves admission to the bar, nor that Glass’s past misbehavior should be overlooked in assessing whether to grant him a bar license; rather, it is that the regulatory process that denied Glass his law license places too much emphasis on the types of fallacies in reasoning that the FAE can produce.

Other legal ethics scholars have also cited the FAE as part of their analysis. For example Professor Alice Woolley, who has written extensively about the application of behavioral science to legal ethics, describes here how the FAE can undermine the purported justification often articulated by bar regulators about the predictive value of past conduct. Once again, the variable that is missing from the analysis – and which is often overlooked in bar admission decisions – is the power of the situation in influencing behavior (update: for more on Woolley’s work regarding the power of situational factors, see this earlier post).

This is not to say, of course, that situational forces necessarily determine behavior. After all, as Professor David Luban points out, one-third of study participants in the famous Milgram experiments did not comply with the demands of experimenters to continue shocks all the way to “xxx.” And while there is debate about whether Luban appropriately accounts for situational forces in his theory of legal ethics, he does recognize the powerful pull of the situation, noting “how difficult – but not impossible — swimming against the situational tide is.” Legal Ethics and Human Dignity, p.284. (For a detailed discussion of the interrelationship between personality, disposition and situational forces, see Woolley and Wendel’s jointly authored article, “Legal Ethics and Moral Character,” in GJLE).

Teaching students about the FAE may be one of the most important tasks of Behavioral Legal Ethics. As usual, an excellent teaching tool can be found at Ethics Unwrapped:

And here is a wonderful video clip of a conversation with Richard Nisbett and Lee Ross, the researchers who first articulated the FAE:

(note: this video is part of an excellent MOOC, called “Think101x The Science of Everyday Thinking,” available free of charge, with great video resources, on EDx).

To explore these issues in more depth, two of the best sources available are Lee Ross and Richard Nesbitt, The Person and the Situation: Perspectives of Social Psychology (1991)  and John M. Doris, Lack of Character (2002).

A Brief Guide to Behavioral Legal Ethics

new_logo_3I’ve just posted  “A Brief Guide to Behavioral Legal Ethics” at Ethics Unwrapped for anyone who might want an overview of the field. The post is here.

As I’ve discussed before, Ethics Unwrapped is a leader in providing online training videos about behavioral ethics (there are now 36 of them!).  I use these videos and associated teaching notes regularly in my class and highly recommend them to anyone who is teaching in this area.

[Update: For those who follow Twitter, here is a fun visual from Ethics Unwrapped about my post]:

[Update #2: 07/22/14:  My post at Ethics Unwrapped discusses the  history of applying behavioral science to questions of legal ethics, citing a 1993 seminal article by Professor Donald Langevoort as one of the earliest articles in this area.  I should have added, and do now, that perhaps the earliest work in this area is by Professor Deborah Rhode, whose 1985 article, "Moral Character as a Professional Credential," 94 Yale L. J. 491 1984-1985, relies on behavioral research to critique and raise questions about the bar's moral character requirement (see pp. 555 - 562)].

What Asch’s Line Experiment Can Teach Us about Conformity and In-House Lawyers

Imagine that you have volunteered to participate in an experiment on visual judgment. You, along with several other college undergraduates, file into a room in a psychology department and are shown various pictures of lines of varying lengths on one side, and a single line on the other side. One after another, your fellow participants in the study respond to the question: “Which line on this side most closely matches the line on the opposite side?” One after another, they give an obviously incorrect response. The time comes for you to provide an answer. What do you say?

This is the experiment was conducted by Solomon Asch in 1951 at Swarthmore College. Asch hypothesized that when confederates (fake participants) uniformly gave a particular response in a group setting, the lone true participant would feel pressure to conform to the group consensus.

Asch was correct. Over the course of twelve critical trials, 75% of the true participants conformed to the incorrect majority at least once. On average, there was a 32% rate of conformity, in spite of the fact that there was no real consequence for failing to conform and the answer given by the majority was clearly incorrect. Why did the participants conform? Later work hypothesized that individuals go along with a majority for normative, reputational, and information reasons. In other words, the group sets the standard for what behavior is appropriate (normative), the individual wants to be seen as fitting in (reputational), and the individual takes cues from the group regarding the true state of the world (informational). Interestingly, the effect seems to dissipate when the group is small (four or fewer) and when the target has at least one other person who deviates from the group.

Lately, I’ve wondered how this very human proclivity influences attorneys who are “in house”. A number of well-publicized cases of misconduct on the part of in-house counsel bring this question to the forefront. Recently, Donald Langevoort, from Georgetown University wrote the following in the Wisconsin Law Review: “[T]he most powerful effect is probably cultural, when the lawyers develop a sense of identity that is tied as much or more to their status as key employees as to their status as professional attorneys. This is a visceral process, generating the kind of loyalty that results from bonding experiences early on and, over time, being caught up in the competitive arousal and sense of corporate mission. It means bringing lawyers into the corporate team.” Whether the process is “visceral” is a matter of debate. But without question, it is a psychological process—with evolutionary roots—which is driven by a human need to associate closely with members of ones species who are most likely to protect and provide for the individual. What is pack behavior in wolves is “herd behavior” in humans, at least it is to psychologists who study it. When attorneys serve the important role of gatekeeper for a variety of corporate activities and functions, the human tendency to conform to what the majority deems good, right, or in the best interests of the firm can be a powerful force. Even for the casual observer of human behavior, it should be unsurprising that attorneys in this position commit ethical violations in the form of acts or omissions for the benefit of the corporate bottom-line. This is not to say that most lawyers who take up residence in corporate environments violate ethical rules and norms. Rather, behavioral research tells us that the impulse to acquiesce to serve the common good is both fundamentally adaptive, and irrepressibly human. Perhaps it is time to use what we know about conformity, starting with research that is more than 60 years old, to more effectively identify strategies that encourage compliance with rules of ethics, even when pressures are overwhelming.

Empirical Scholarship on Legal Ethics

An important aspect of behavioral legal ethics is that it is grounded in empirical research — an approach that, of course, is not limited to behavioral science. Rather, findings from a broad range of disciplines can be important in making accurate assessments of how ethical decisions by lawyers are made. One of the most significant contributions in this area is Lawyers in Practice, published in 2012. Other works take a similar approach.

An example worth reading is an article recently published by K. Babe Howell in the Georgetown Journal of Legal Ethics, which focuses on arrest and processing statistics that demonstrate significant racial disparities in who is ultimately prosecuted and convicted for low-level drug offenses. The implications of this data for the ethical exercise of prosecutorial discretion are discussed.

Here’s the abstract:

This Article examines the discretionary power that rests in the prosecutor’s office and the ethical duty to seek justice that guides that power. I argue that chief prosecutors should decline to prosecute entire classes of minor offenses where policing choices give rise to racial disparities or lead to overburdened courts that can provide neither procedural nor substantive justice.
Prosecutors have a special ethical duty to seek justice. However, zero-tolerance policing of minor offenses have resulted in overburdened lower criminal courts in which prosecutors are unable to meet that duty. Prosecution in these overburdened courts undermines justice in two important ways. First, because zero-tolerance policing is typically enforced in communities of color, racial disparities in criminalization are exacerbated, and unequal enforcement of the law is permitted. Second, the overburdened criminal justice system does not reliably distinguish between constitutional and unconstitutional arrests, searches, and seizures, or between guilty and innocent individuals. Refusal to prosecute certain classes of minor offenses will reduce racial inequities in the criminal justice system and improve the ability of prosecutors to meet their ethical obligation to provide procedural and substantive justice in the remaining cases.