Programming Note #2

The trailer for Dan Ariely‘s upcoming film, (Dis)Honesty – The Truth About Lies, is now available:

For more information, visit the (Dis)honesty Project website.

Teaching BLE: Ethical Fading

In my survey course on legal ethics, I created a blog (accessible only to my students) to address many aspects of Behavioral Legal Ethics.  A few people have asked me about the content of the blog, so here’s a sample that focuses on Ethical Fading (which Jim Milles recently discussed).  I’d be interested in any thoughts or comments.

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Ethical Fading

A significant factor in producing unethical behavior is called “Ethical Fading.”  Here is a nice introduction from Ethics Unwrapped:

Essentially, ethical fading refers to the cluster of techniques — many of which occur unconsciously — that we use to delude ourselves about our own ethicality.

You may recall that Behavioral Legal Ethics (BLE) discusses ethical fading on pages 1120-24.  For an excellent overview, read this Op-ed from the New York Times; and for a much more detailed explanation, here is a seminal article by two of the leading researchers, Ann Tenbrunsel and David Messick.

This is a theme we will return to quite often, as it involves many different components — including the role that emotion plays in ethical decision-making, how decisions are framed, the language we use to free ourselves from morally difficult decisions, the ease with which we engage in self-deception (often by failing to make proper casual connections between our actions), and the slippery slope of small ethical transgressions into bigger ones — just to name a few.

For now, let’s focus on two related aspects of ethical fading — the idea that the way an issue is framed* matters, as well as the language used to describe the situation.

Let’s start with an example of framing:  have you ever heard of the famous Pinto case, where Ford produced a car with a gas tank in the back that was susceptible to exploding in low speed collisions?  Here’s a short video (including footage of a crash!) about the case:
 

After numerous deaths and injuries occurred, the question was why didn’t Ford prevent the defect in the first place, or at least recall the cars to fix them? Behavioral ethicists see this as a classic case of ethical fading.  According to a Ford field manager, the company employed an economic cost-benefit analysis in deciding whether to address design flaws — viewing the issue as only a business decision (assessing the frequency of the collisions to determine if a recall was needed) rather than an ethical one (assessing the human cost of injuries and deaths from the faulty design).  Here’s how the manager who was in charge of recalls described his own experience:

My cue for labeling a case as a problem either required high frequencies of occurrence or directly-traceable causes. I had little time for speculative contemplation on potential problems that did not fit a pattern that suggested known courses of action leading to possible recall. . . . I remember no strong ethical overtones to the case whatsoever. It was a very straightforward decision, driven by dominant scripts for the time, place, and context (BLE at 1121).

 In other words, the ethical dimension of the decision just faded away . . .

The language we employ also can reduce or eliminate the ethical dimensions of a question.  Do you think that calling a bombing mission during war a “surgical strike,” or describing civilian casualties that result as “collateral damage,” makes it easier to overlook the ethical difficulties involved?  Here is how one leading scholar explains the role that euphemisms play in moral disengagement.

Even famous movies help explain this phenomenon — anyone remember how Michael Corleone described the murderous ways of his crime family in The Godfather? . . .

  
How might these factors influence ethics in action for lawyers?  One obvious place to start is with the same type of business frame that occurred in the Pinto case.  Can you imagine how a corporate lawyer might become overly focused on helping a business promote its business goals, thus reducing or eliminating the need to consider the ethical aspects of decisions that are made? What about lawyers as “gatekeepers” under Model Rule 1.13 (a rule we will be discussing later in the semester) who are  required to report to their superiors when they encounter certain forms of misconduct?  There is significant legal scholarship on how these lawyers too often succumb to their clients’ business demands.  Is part of this explanation that the frame the lawyers have adopted essentially fades away the ethical dimensions of the problems they face?

What about the language lawyers employ?  Is it easier to think about “rounding up” on hourly billing than it is to call the same practice “stealing” from a client?  How about when lawyers “coach” a witness.  Would there be more sting if it was called “telling a witness to lie”?  How many other examples can you think of?

[*NB for #BLEBlog readers:  Framing as a core aspect of ethical blindness is explained in detail in the article written by Professors Guido Palazzo and Ulrich Hoffrage from the University of Lausanne, which I blogged about recently; their Coursera MOOC also does an excellent job of discussing its importance]

Athletes, Domestic Violence, and Sources of Prosecutorial Bias

Recently, the National Football League has come under scrutiny for its response to revelations about domestic violence committed by players. Most of the criticism has fallen squarely on the shoulders of NFL commissioner Roger Goodell; he has been maligned for acting slowly or not at all to suspend players following evidence of domestic abuse. For those of us who think and write about ethical lawyering, the focus is often elsewhere—on a prosecutor’s decision to investigate and charge football players and other professional athletes when evidence of violence surfaces. Do athletes and other high profile figures receive special treatment? It is an empirical question that is difficult to answer. Part of the reason for this is that the answer is complicated by the degree to which an incident has received media attention and resulting public pressure. Public outcry is often a precursor to charges being filed in a well-publicized case. In cases where athletes appear to be receiving special treatment, there is often cynicism about the motivations of those making charging decisions. However, empirical work tells us that various cognitive features of human choice may be at least part of the problem. Below is a compilation of several relevant biases:

Cognitive Dissonance: Leon Festinger coined the term “cognitive dissonance” to describe the human need for internal consistency. When an individual holds two or more contradictory beliefs, dissonance is experienced, and the individual becomes psychologically uncomfortable. This discomfort leads the individual to attempt to reduce the dissonance by changing one of the internal states. This can be accomplished by altering behavior, by changing an attitude, or by rejecting some information that contradicts previously held beliefs.

Halo Effect: The halo effect is the name for a cognitive bias in which an observer’s overall impression of a person influences the observer’s interpretation of novel information about the person’s character. Edward Thorndike first identified this effect. The halo effect is related to the confirmation bias, wherein individuals look for and selectively accept information that confirms existing beliefs. The halo effect causes individuals who have favorable impressions of a person to interpret ambiguous information about that person in a positive light.

Belief Perseverance: This bias, also related to the confirmation bias, is a psychological phenomenon in which a person clings to previously held beliefs, even when new evidence sheds doubt on the early-formed attitudes.

Bias Blind Spot: The bias blind spot relates to the failure of human beings to compensate for their own cognitive tendencies. Emily Pronin, Daniel Lin and Lee Ross adopted the term “blind spot” to describe the inability of individuals to perceive their own biases (even while acknowledging that the biases influence others). Research reveals that even when individuals are educated about the existence of biases, such as the halo effect and confirmation bias, they nevertheless claim to be significantly less vulnerable to these biases than the average person.

Professional athletes tend to be admired. The popularity of the NFL (thirty-four of America’s thirty-five most-watched 2013 fall TV shows were NFL games) means that this is particularly true for players in this league. The Halo Effect describes how this positive impression can make it more likely that prosecutors and other actors in the criminal justice system will interpret ambiguous information in a way that is consistent with players conforming to the law. Research on belief perseverance tells us that the image of football players as respectable role models decreases the likelihood that contradictory information about players will be accepted. Relatedly, cognitive dissonance explains why observers might reject information that sheds a negative light on football players. Finally, the bias blind spot suggests that those in charge of evaluating information about players are—like other human beings—naive about their own biases.

Prosecutorial Misconduct, Redux

Scales of JusticeThe epidemic of prosecutorial misconduct described by Judge Kozinski of the 9th Circuit last year continues to spread across the headlines. Take, for example, the former North Carolina prosecutor, known as America’s “Deadliest DA,” who remains unrepentant for failing to disclose Brady material that contributed to the wrongful conviction of two men just released after three decades in prison (one whom was on death row) for crimes they did not commit. Such miscarriages of justice by its putative ministers make it all too easy to assume that every act of prosecutorial misconduct reveals an intentional effort to subterfuge the judicial process.

The psychological reality, however, tells a very different story. As scholars such as Alafair Burke, Keith Findley & Barbara O’Brien, Dan Simon, Dan Medwed, and others have taught us over the years, much of the explanation for misconduct is not that prosecutors deliberately seek to sidestep their ethical and constitutional duties, but rather that they are subject to the influences of various psychological phenomena — such as conformation bias and related tendencies — that make it too easy to engage in a biased assessment and assimilation of information. The result, known by the well-coined phrase “Tunnel Vision,” can cause a prosecutor to marshal evidence relentlessly towards a defendant’s guilt, while simultaneously failing to seek and properly assess evidence of possible innocence.

A powerful reminder of these cognitive distortions is a new article by Mary Bowman, Mitigating Foul Blows (h/t LEF), soon to be published in the Georgia Law Review. Professor Bowman’s work, well worth the read, weaves the research from cognitive science into a rich description of how various actors in the judicial drama – prosecutors, jurors, and appellate judges alike – are influenced by a variety of cognitive biases that contribute to prosecutorial misconduct during the trial phase of a case.

For those of us who study how behavioral science illuminates ethical lapses, we are well served to recall the impressive body of work explaining what is missing often from the headlines: prosecutorial error is frequently not the result of a caricatured, venal government lawyer; rather, much of the blame rests with the all-too-human tendencies that we all possess.

Photograph used by permissi0n of Flikr user Michael Goghlan under Creative Commons Attribution-ShareAlike 2.0 Generic License.

Big Moral Issues and Everyday Compromises

There are certain big cases that are featured in every legal ethics casebook. In the material on Rule 1.6, Confidentiality of Information, those cases include Spaulding v. Zimmerman and the “Buried Bodies” case. These are compelling cases. Each of them presents a stark contrast between lawyers’ ethical duties and what are probably the moral intuitions of most students. In Spaulding, we examine the conduct of defense lawyers who could have done something to warn the innocent plaintiff of a life-threatening injury uncovered in the medical examination by the defendant’s medical expert. What sort of moral monster, we expect our students to ask, would do such a thing? In the Buried Bodies case, two court-appointed lawyers learn (in part through hypnosis–one of the peculiar elements that make this far from a typical capital case) that the defendant had killed two missing girls, and the lawyers do not reveal this information to the grieving families. Again–what sort of moral monster would do such a thing? Is this what I’m expected to do as a lawyer? At this point, if not before, it becomes clear which students have no intention of going into criminal defense.

This year I rethought my approach to these cases, and greatly reduced the class time we spent on them. There is a danger that focusing on such “big moral issues” cases teaches the wrong lesson: that issues of legal ethics are rare, perhaps once-in-a-lifetime situations, far removed from the practice lives of most lawyers. As an experienced lawyer once told me upon learning I taught legal ethics: “Oh, we had an ethics issue, once.”

Consider the actions of Frank Armani and Francis Belge in representing Robert Garrow in the Buried Bodies case. Neither of the lawyers wanted the case; Armani asked to be excused, but Garrow refused to work with another lawyer, and the judge did not want such a high-profile case to be tainted by the possibility of Garrow defending himself.  It was difficult enough for Armani and Belge to defend such a distasteful defendant in that small community; when it was discovered they knew the missing girls were dead, and where their bodies had been hidden, they were subjected to death threats, criminal charges, and disciplinary complaints. The criminal and disciplinary actions were dismissed, but both lawyers suffered lasting damage to their careers.

Among ethics scholars and the criminal defense bar, Armani and Belge are heroes. Faced with one of the most difficult choices they would ever make, they acted in accordance with their ethical duties. As Thomas Morgan said at an ABA CPR Conference in 2007, theirs is “a central case in our de­velopment and understanding of what it means to be a lawyer.”

What I tried to emphasize to my students this week was that, while the anger and hatred of the community that the lawyers suffered was real, from the perspective of the ABA Model Rules, this was not even a difficult case. Their duty could not have been clearer: their client’s confidentiality must not be violated. What made this a difficult problem was not determining the ethical choice: it was carrying through on that choice.

I have a theory. Without in any way diminishing the integrity of Armani and Belge in protecting their client’s confidentiality, I suggest that their actions were not all that heroic–if by heroic one means something that most of us could only aspire to, and hope to live up to if we were ever in their situation.

I asked my students what they would do in Armani and Belge’s situation. As usual, the class was pretty evenly divided: half felt they would keep the information confidential, and half thought they would find some way to disclose the information–either anonymously, hoping to avoid detection and disciplinary charges, or publicly, and willing to accept the consequences.

I suggested to my students, however, that if they were in Armani and Belge’s situation, almost all of them would do the “right” thing and protect Garrow’s confidentiality.

Armani and Belge found themselves faced with one of those “big moral issues.” The ethical weight of their decision whether or not to disclose hit them in the face. There was no possibility that they could avoid the conclusion that this was a defining moment in their careers as lawyers. To breach confidentiality and betray their client–as loathsome as he might be–was something like an existential challenge to their identity as good lawyers. To breach confidentiality would mean seeing themselves as failures.

In most ethical situations that lawyers face, the duty is not nearly so clear. Situations that might be fraught with ethical problems, such as whether to accept or continue a representation when a conflict begins to appear, can be overlooked. Ethical fading results in a dulled awareness of ethical situations, and problems that present ethical challenges are easily rationalized as business decisions.

This is why I worry about that lawyer whose firm faced an ethical issue, once. Ethical issues arise every day. Most are properly resolved with little difficulty. But the lawyer who doesn’t see them, and who is not on the lookout for ethical choices, is a lawyer at risk.

Upcoming Course on Organizational Ethics

Some readers might be familiar with Professors Guido Palazzo and Ulrich Hoffrage from the University of Lausanne who have written about the unconscious aspects of ethical decision-making.  Here, for example, is the abstract of their co-authored article, Ethical Blindness:

Many models of (un)ethical decision making assume that people decide rationally and are in principle able to evaluate their decisions from a moral point of view. However, people might behave unethically without being aware of it. They are ethically blind. Adopting a sensemaking approach, we argue that ethical blindness results from a complex interplay between individual sensemaking activities and context factors.

CourseraBut why only read about these fascinating themes? Palazzo and Hoffrage have now teamed up to produce a Massive Open Online Course (MOOC) through Coursera scheduled to start in two weeks.  Entitled, “Unethical Decision Making in Organizations,” the description sounds fascinating:

This course “Unethical decision making in organizations : A seminar on the dark side of the force” will teach you how strong organizational contexts push good people towards unethical decisions. You will also learn how to protect yourself and your organization against such forces lurking in the dark.

Need a bit more enticement?  Here’s the promotional video:

 

Anyone can sign up for the course here, free of charge.

Social Identity and Ethics in Ferguson, Missouri

The recent events in Ferguson, Missouri (my backyard) have raised important questions about the appropriate role of police departments in municipalities around the country. Mike Brown’s death at the hands of a white police officer has come to represent the victimization of a majority black community by its almost entirely white police department. The term petit apartheid refers to policing it is discriminatory in nature and typically involves targeting African-Americans in their own communities. This concept is related to the concept of profiling which has been so controversial, particularly in the area of drug enforcement interest. Others have written in great detail about these issues; I mention it here in order to set the stage for the following discussion of the way in which group and social identity can encourage ethical behavior in community members, even when circumstances would seem to encourage violence.

Discrimination on the basis of race, ethnicity, or sexual preference has typically been thought of as occurring when the members of these groups are the minority. However for many individuals who live in communities where there is discriminatory policing, the most prevalent group is the “minority” group. This fact creates a situation in which the members of the community, because of their greater numbers, have the ability to stage a resistance. In Ferguson, recent resistance involved a small number of individuals committing acts of violence and destruction, and a majority engaged in peaceful protesting.

What accounts for the difference is in the reactions of these individuals to oppressive police practices? There are questions about the extent to which the aggressive protesters were community members at all. At least a handful of looters reportedly came from as far away as Texas. Some suggest that the looting and vandalism was opportunistic rather than being an outgrowth of anger at past treatment by police. We may never know which individuals were instrumental in inciting violence, and what their motivations were. To me, more interesting than the motivations of these few is the question of why the peaceful majority remained so. The nonviolent protesters were from the community. They had been victims of the discriminatory police practices. When they took to the streets, they faced police whose appearance and actions seemed disproportionately hostile. They were tear-gassed and reportedly treated as a threat, even when they were not. Why did the majority of protesters remain peaceful, even in the face of what many deemed unnecessary aggression and violence?

It is unlikely that the underlying rationale for the behavior occurred spontaneously. Very likely, the peaceful protesters identified themselves with a group of community members that behaved according to a certain moral and ethical code. In refraining from escalating the situation and threatening the health of local businesses, these community members manifested an allegiance with those whose homes and businesses were in proximity to the protests.

Social science psychology helps to explain how social connection and belonging resulted in peaceful protesters differentiating themselves from those who were destructive. Psychologists John Levine and Richard Moreland developed the theory of group socialization or the way in which individuals welcomed into a group. Two important phases of this group socialization process (1) entry and initiation and (2) socialization. In order for an individual to be able to enter a group and become initiated, the group must determine that the individual will bring value to the group. Individuals who are seen as to the dissimilar in terms of values or who are threatening in some way will not be welcomed into the group. During the socialization phase, individuals who have recently joined the group learn the norms and expectations of the group.

Social identity is the knowledge of group membership and the value and emotional significance attached to this group membership. I have written about Henri Tajfel’s theory of social identity in a prior post on the ethics of lawyers who are in house. For many Ferguson residents, their status as members of that community became particularly salient during the events following the shooting. Several features of the situation contributed to this phenomenon. As if they could forget, community members were repeatedly reminded of their status as Ferguson residents by virtue of the intense media attention surrounding Brown’s death and the ensuing the protests. The media identified them not in terms of their education or marital status or employment or religion or political affiliation or status in the community, but as Ferguson residents and protesters. After being featured on national television as taking a stand to improve their neighborhood, to increase violence or to victimize local Ferguson businesses, would have been at odds with their purported goals, creating uncomfortable cognitive dissonance. Moreover, the precipitating event arguably (perhaps ironically) encouraged restraint in protesting residents. Particularly for those individuals who had been subjects of police misconduct, there was a self-conscious identification with the eighteen-year-old victim. That Mike Brown was unarmed when he was shot was emblematic of the nonviolent nature of residents; that he was shot by an officer was a symbol of their oppression. To respond with violence, would have undermined their identity as targets of unjustified police harassment.

The glue that holds communities together can be a powerful force that reinforces ethical behavior, even when—especially when—members of that community have a history of having been treated unethically.

Police Officer to people gathered on West Florrisant Avenue: “Go home!”

Person in the crowd: “We are home!”