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?
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 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:
James G. Milles
Molly J. W. Wilson
Tigran Eldred
Behavioral Legal Ethics 