The Dewey & LeBoeuf implosion and subsequent criminal indictments have been all the rage in legal circles, raising a number of intriguing issues – including the decision by Manhattan DA Cyrus Vance to bring the full weight of his office against a low-level former Dewey employee who, while working as federal clerk, has been twice indicted in the case, and Vance’s decision not to disclose the deals of the seven ex-Dewey employees who have already pled guilty in the case (all of which have been subsequently unsealed by court order). Some of the behavioral aspects of the case have been discussed by Nancy Rapoport, whose forthcoming article in the St. Mary’s J. L. Ethics & Malpractice addresses the cognitive biases and blind spots that may have led to the firm’s demise.
Now comes another perspective that raises important questions for behavioral legal ethics: does Dewey’s downfall demonstrate the need for Big Law (and other law firms) to take a compliance approach when developing an ethical infrastructure? Donna Boehme, the compliance columnist for Corporate Counsel (free registration required), concludes that the answer is yes — arguing that many of the same risk factors that exist in the corporate world also apply to Big Law (her top ten reasons why the compliance model should be adopted by law firms is here).
From a behavioral science perspective, what is fascinating is that the compliance world seems to be taking seriously the role that behavioral ethics can play in creating an ethical culture. Indeed, Boehme prominently cites Bryan Cave partner Scott Killingsworth, the leading voice advocating for a behavioral approach to compliance issues (His GJLE article, entitled Modeling the Message: Communicating Compliance Through Organizational Values and Culture, has been downloaded on SSRN 2147 times by last count!).
In a nutshell, Killingsworth argues that organizations that promote and communicate implicit ethical values are more likely to successfully foster compliance with ethical norms than those that rely exclusively on traditional “command-and-control” models (such as fear of punishment and/or other explicit incentives for compliance). Along the way, he discusses the role of priming, framing, obedience to authority, procedural justice, the slippery slope, and many other aspects of behavioral ethics. His work also relies heavily on empirical work of leading researchers such as Dan Ariely, Tom Tyler and Linda Trevino, among others (Killingsworth also specifically highlights Giving Voice to Values, a program developed by Mary Gentile who previously taught for ten years at Harvard Business School (for more about GVV, there is an excellent series of videos and additional material available at Ethics Unwrapped).
So how might Killingsworth’s recommendations have helped in the Dewey case? To take but one example, he notes that organizations that promote the intrinsic motivation of employees to act ethically are more likely to produce voluntary disclosure of violations than organizations where such attributes are missing. Coming back to the Dewey example, would the fraud that is alleged to have contributed to the firm’s downfall been discovered and reported much earlier if the employees with insider knowledge felt comfortable disclosing it? (Boehme makes a similar point: “A compliance program, tailored to the law firm structure, could have given those seven Dewey employees a safety valve. If just one of them had sounded the alarm at the beginning instead of quietly acquiescing, the story might have taken a different turn.”).
Others will debate whether the Dewey case is a warning bell for how other large firms operate, including those who disagree that it portends similar egregious misconduct by other members of Big Law. But to the extent that this debate involves inquiry into how firms facing economic uncertainty should reinforce the importance of an ethical culture within their infrastructure, it is heartening to know that there is a well-developed behavioral approach that can – and should — be part of the discussion.
[update #2: 6/2/14: Jeff Kaplan has indexed all of his posts regarding behavioral ethics at the conflictsofinterestblog.com here]