Ethical Systems’ new E-book: Head to Head

ESProfiled in today’s Wall Street Journal, the new E-book by Ethical Systems, Head to Head: A Conversation on Behavioral Science and Ethics, is a great introduction to the subject. Easily accessible to non-experts, the book is formatted as an interesting conversation between ES’s CEO, Azish Filabi, and Jeff Kaplan, a leader in the field of Compliance & Ethics (Kaplan’s Conflicts of Interest blog provides a wealth of useful material on behavioral ethics in the compliance field). As the WSJ noted today:

Behavioral science can help organizations improve their ethics and compliance programs, but wading through the academic prose of such research reports can make them less useful to the people tasked with overseeing those programs. A new e-book from Ethical Systems, a collaboration of researchers that promote ethical business culture, highlights the latest insights from the behavioral science field and provides action points for organizations to incorporate any lessons that are learned.

Many of the behavioral topics in Head to Head will be familiar to readers of this blog, such as overconfidence bias, the “Holier Than Thou” effect, conformity bias, priming by money, the corrupting influence of power, slippery slopes, the counterfeit self, and the power of nudges. A great read for anyone who wants a lively refresher on the power of behavioral science to shape ethical decision-making.

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New Compliance Video

In an earlier post, I discussed the role that behavioral ethics plays in the compliance field, highlighting the work of Scott Killingsworth, Jeff Kaplan, and others. For those who teach or write in the compliance area, a new video is now available (for commercial licensing) that I highly recommend. Created by Richard Bistrong in conjunction with Mastercard, it explores Mr. Bistrong’s own compelling story. The video is exceptionally well-done and would be a valuable addition to any training or educational program. For the trailer of the video and more details, visit the FCPA Blog.

Moral Courage

 

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John Doar (right) and U.S. marshals escorting James Meredith to class at the University of Mississippi

Douglas Linder and Nancy Levit‘s inspiring book, The Good Lawyer, describes the work of John Doar (1921-2014), who, as Assistant Attorney General for Civil Rights under Presidents Kennedy and Johnson, was at the front lines of many of the most contentious events in the civil rights movement. It was Mr. Doar who guarded James Meredith during his first night in his dormitory amidst riots at the University of Mississippi in 1962; who prevented bloodshed by situating himself between police and protesters while pleading for peace three days after Medgar Evers was killed in Jackson, Mississippi in 1963; and who, despite death threats, argued for and obtained convictions in the infamous “Mississippi Burning” trial in 1967 (more here). These are but some of the courageous acts by Mr. Doar, who consistently put principle before his own personal safety in his illustrious career.

As the New York Times noted, Mr. Doar “‘was the face of the Justice Department in the South,’ President Obama said in 2012 when he presented Mr. Doar with the Presidential Medal of Freedom, the country’s highest civilian honor. ‘He was proof that the federal government was listening.'”

What was it about Mr. Doar, who also played a leading role in the impeachment proceedings against Richard Nixon, that spurred him to act so bravely in situations where others would have shied away? Linder and Levit survey the literature on three types of courage — physical, moral and psychological — noting that, as both genetic and developmental factors contribute to courageous conduct, training and the proper conditions can help nurture courage by lawyers.

My own scholarship, Moral Courage in Indigent Defense, has led me to similar conclusions. Situating the discussion of moral courage within the context of criminal defense lawyers who represent indigent clients, I explore ways to encourage defenders to resist excessive workloads that undermine competent representation.

The abstract:

This essay, part of New England Law Review’s symposium on Behavioral Legal Ethics, explores the conditions under which criminal defense lawyers for indigent clients can be expected to resist excessive workloads. Drawing from research on the psychology of moral courage, it identifies factors that have been found to correlate to courageous conduct in the face of personal risk, most notably the role of anger, moral conviction and sensitivity to injustice. Applying these findings to the field of indigent defense, it sets out some preliminary ideas about how to identify and overcome barriers to action.

 

@TheBLEBlog

Our new Twitter account has been active —  for example, highlighting scholarship over the years on subjects that we now call Behavioral Legal Ethics. For those on Twitter, we can be followed @TheBLEBlog.

Here are a few of our recent tweets:

New Implicit Bias Video and Jury Instructions for Federal Courts

Washington-westernWe’ve posted before about implicit bias, including the Department of Justice’s training on implicit bias, the ABA’s video and related work on the subject and the role that implicit bias plays in Batson challenges. In a fascinating new development, the United States District Court for the Western District of Washington (which includes Seattle) has produced a video for jurors to watch. As noted by the Marshall Project in this article discussing the initiative (originally posted here), the video is being shown to potential jurors as they wait to be called for service. The court has also posted a set of pattern jury instructions that can be used at a judge’s discretion during a trial. Will other federal courts follow suit? And will there be some form of rigorous evaluation to assess the effectiveness of this innovative approach? Developments to follow  . . .

 

 

Two Brief Announcements

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  1. As the field of Behavioral Legal Ethics matures, we are happy announce that our blog just passed 15,000 page views! Thank you to everyone who has been reading and visiting — it’s very much appreciated!
  2. To mark the occasion, we thought it would be a good idea to have our own Twitter account, so you can now find us at @TheBLEBlog. Follow us if you would like updates about recent posts, activities, etc.

As always, we are eager for feedback and suggestions, either as comments to posts or directly to the contributors.

Thank you!

Behavioral Science and the Duty to Report Misconduct

report-or-silence-switch-277x300Too often ignored, Model Rule 8.3 imposes a mandatory duty to report a violation of the Rules of Professional Conduct that “raises a substantial question as to that lawyer’s honesty, trustworthy or fitness” to practice law.  When teaching this rule, I discuss many of the behavioral reasons — such as obedience and conformity pressures — that can discourage reporting misconduct, especially by young lawyers early in their careers.  After all, it is not easy for any lawyer, much less a subordinate attorney, to accept the personal and professional risks associated with reporting misconduct by a colleague or superior.

This discussion with my students is enriched when we consider Kelly v. Hutton & Williams, No. 97-CV-5631 (JG), 1999 WL 408416 (E.D.N.Y. June 17, 1999), which is excerpted in the course book that I use. In that case, a young lawyer claimed he was fired for refusing to stay silent in the face of serious over-billing violations by a senior partner at his firm (the case ultimately settled under a confidentiality agreement, so we do not what would have happened at trial. As an interesting aside — the partner accused of over-billing later became a fugitive from justice for running a multi-million dollar ponzi scheme. He was recently arrested after more than two decades on the lam). In discussing the case with my students, we explore some of the reasons why the plaintiff in Hunton & Williams seemingly was able to resist the behavioral pressures to stay silent, including that he acted as part of a group of associates at the firm who together reported the misconduct internally. Another salient point is that the associates obtained advice from an outsider (a federal judge for whom one of them had clerked) before reporting the misconduct. We consider how these factors — acting as part of group and finding a trusted outsider who can act as a sounding board — can help reduce the obedience and conformity pressures that make reporting misconduct so difficult (for more discussion, see pages 775-78 and 800-01 of Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility).

For those looking for a more recent case that raises similar issues, Joffe v. King & Spalding, just hit the news. According to a complaint filed in federal court in Manhattan, Joffe was wrongfully terminated and denied other benefits after he complained to the firm’s general counsel (and outside counsel) about unethical misbehavior he had observed inside the firm.  Specifically, Joffe claims the firm retaliated against the him after he reported that a partner had made false statements and misrepresentations to a federal judge in a pending proceeding. King & Spalding has recently answered the complaint, denying the charges. Interestingly, the legal theory in Joffe’s complaint — that the firm’s retaliatory conduct violates precedent set forth in a 1992 New York Court of Appeals case, Wieder v. Skala — is the same legal theory put forth in Hunton & Williams. It will be interesting to see how the case proceeds (updates to come).