Monthly Archives: August 2014

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!”


Judicial Assumptions about Lawyer Behavior, Take 2

Kentucky SC

Kentucky Supreme Court

Yesterday, as I was writing about how courts often overlook the psychological dimensions of human decision-making, the Kentucky Supreme Court issued an opinion making the opposite point: sometimes judges take behavioral research very seriously.  The case, USA v. Kentucky Bar Association, concludes that criminal defense lawyers are ethically barred from advising defendants on whether to accept a plea bargain that requires waiver of the right to claim ineffective assistance of counsel [it is also unethical for prosecutors to offer these types of plea deals].  On its merits, the decision is likely to have a significant impact on how plea bargaining takes place in Kentucky (and elsewhere, perhaps) (for more, see here, here and here).

As for the psychological dimensions in the opinion, the Court relied on an article I wrote discussing why defense lawyers, like everyone, experience “bounded ethicality” — a bedrock of behavioral ethics that includes a variety of aspects, including how we all tend to be unaware of the ways in which our self-interest undermines our objectivity when evaluating conflicts of interest. The Court’s discussion is the most extensive treatment of bounded ethicality that I’ve seen in a judicial opinion (see pp. 27-30).

The research on bounded ethicality is fascinating, as it reveals (once again) how we all tend to be blind to our own biases.

For more on bounded ethicality, here are a few resources:

For those who want to teach about this phenomena, as usual I recommend videos from Ethics Unwrapped, including this one on Bounded Ethicality (as my co-blogger, Jim Milles, has previously discussed). And here is a fascinating video by one of the leading researchers in this area, Max Bazerman of Harvard Business School, describing many of the underlying psychological factors that lead to bounded ethicality.

[UPDATE 09/28/14:  The Wall Street Journal is reporting that the Department of Justice has decided to end the practice of requiring defendants in plea cases to waive claims of ineffective assistance of counsel.  This is welcome news indeed (h/t LEF).

[UPDATE #2, 10/17/14: DOJ has now formally announced that federal prosecutors should no longer seek in plea agreements to have defendants waive IAC claims. Nor should they seek to enforce prior waivers “when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve.” The formal announcement is here. For more information, see here and here].

Teaching BLE: Judicial Assumptions about Lawyer Behavior

whistleblowerI just taught an introductory orientation class to the new 1Ls here at New England Law, where we contrasted a few cases that present dilemmas concerning confidentiality, including Balla v. Gambro, Inc., 584 N.E.2d 104, 107 (Ill. 1991).  For those who do not know this case, it’s quite revealing of judicial assumptions about human behavior.

In Balla, an attorney who was fired for threatening to blow the whistle on his client’s wrongdoing (a company that planned to sell defective dialyzer machines that risked serious harm to customers) sued for retaliatory discharge. In an opinion that garnered significant attention and criticism, the Illinois Supreme Court ruled that no such cause of action was available, in part, because the lawyer was already required by the Illinois Rules of Professional Conduct to make this type disclosure; as a result, there was no need to provide an additional incentive — that is, the protection that a discharge claim would provide — to ensure compliance with the ethical rules.

As Andy Perlman points out in his excellent article on unethical obedience and social psychology:

“The problem is that the [Balla] court’s opinion rested on a flawed assumption about human behavior. Social psychology suggests that lawyers in Balla’s situation would find it difficult to disclose information of the sort described in the opinion, especially without whistleblower protection. First, lawyers like Balla are unlikely to put much stock in the ethical obligation that the court referenced. The rule is ambiguous, and the various forces described earlier* can lead a lawyer to interpret the rule as not requiring disclosure. Moreover, there are very few instances where lawyers have been disciplined for failing to disclose information under similar circumstances. Thus, any fear of discipline would be overshadowed by what the lawyer had to lose (i.e., a job) by reporting the misconduct and by other situational forces, such as Balla’s distance from the prospective victims, his proximity to his bosses, the hierarchical structure of a corporation, and the presumptive absence of dissent.” Andrew M. Perlman, Unethical Obedience by Subordinate Attorneys: Lessons from Social Psychology, 36 Hofstra L. Rev. 451, 477 (2007) (*referring to Andy’s extensive discussion of the powers of conformity and obedience, as demonstrated by the famous Asch and Milgram experiments, among others).

The dissent in Balla, it seems to me, was right:

“[T]o say that the categorical nature of ethical obligations is sufficient to ensure that the ethical obligations will be satisfied simply ignores reality. Specifically, it ignores that, as unfortunate for society as it may be, attorneys are no less human than nonattorneys and, thus, no less given to the temptation to either ignore or rationalize away their ethical obligations when complying therewith may render them unable to feed and support their families.” (Balla at 113 (Freeman, J., dissenting)).

Balla provides insight into how judges — here in the majority — can make fundamental errors about human psychology. If there is any solace, it is that many other jurisdictions have rejected Balla‘s reasoning — in part, because of this flawed perspective (see, e..g., Gen. Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164, 1186, 876 P.2d 487, 501 (1994) (“By providing the employee with a remedy in tort damages for resisting socially damaging organizational conduct, the courts mitigate the otherwise considerable economic and cultural pressures on the individual employee to silently conform.”).

Alas, Balla remains good law in Illinois. But for anyone looking for an opportunity to teach the frailty of judicial reasoning when it comes to human psychology and decision-making, this case is a gem.

[photo credit: Green Whistle: Steven Depolo on Creative Commons]

New BLE Scholarship

As the field of behavioral legal ethics grows, so does its excellent scholarship.  This summer has brought new SSRN postings by two authors who have written extensively about psychology and legal ethics.  Download them for some late summer reading!

(1) ‘Nudging’ Better Lawyer Behavior: Using Default Rules and Incentives to Change Behavior in Law Firms by Nancy Rapoport

Abstract: This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers.

In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive biases and basic behavioral economics will help law firms tweak their incentives and default rules to promote the improved delivery of legal services.

(2) Behavioral Legal Ethics, Decision Making, and the New Attorney’s Unique Professional Perspective by Catherine O’Grady

Abstract: This article explores the emerging field of behavioral legal ethics and decision making to analyze the dynamic that takes place when a new attorney makes ethical decisions that diverge from their ethical beliefs. The study of decision making — known as “problem solving, judgment, and decision making” or “JDM” rests in the social sciences. It is a broad area that seeks to ascertain how people uncover and process facts and information, reach judgments, and make decisions — it provides analytic tools for decision making and focuses on systematic errors commonly made and heuristics commonly employed by decision makers. In law, knowing how to make decisions and solve problems is critical and recognized by the American Bar Association as one of the top ten “fundamental lawyering skills” every new lawyer should acquire.

The separate but related study of behavioral ethics has its roots in social psychology and business — it has been applied most frequently to ethical decisions made in a business context. In contrast to viewing ethics and morality from a philosophical perspective or as grounded in rules of conduct or societal norms, behavioral ethics explores empirically how people actually behave. It thus allows a comparison between the actor’s ultimate behavior and how the actor thinks he should or would behave and it permits fuller consideration of unintentional unethical conduct.

Recently, scholars have begun to apply behavioral ethics principles to the practice of law — examining behavioral legal ethics. This article contributes to that growing body of literature. By focusing on the new attorney’s ethical decision making, this article underscores the impact that succumbing unreflectively to intuitive decision making and heuristics can have on the new lawyer’s professional development and it offers guidance to new lawyers that they likely did not receive in law school. All accredited law schools in the United States are required to teach Professional Responsibility, but students and teachers alike focus most of their attention on the prescriptive — learning the body of laws and rules of professional responsibilities — and not the descriptive — understanding the situational pressures, psychological factors, and decision making heuristics that factor importantly into ethical (or unethical) action. Of course, all lawyers, whether experienced or new, are subject to the impact of psychological dynamics on ethical decision making, but the new lawyer experiences the psychology of ethical decision making differently than his more experienced colleague. New attorneys are uniquely vulnerable to certain situational pressures and may be especially susceptible to some decision making heuristics. Interestingly, on the other hand, research suggests that the newest attorney in a legal working group or firm may actually be the one in the room that is most likely to see ethical implications and frame a situation in ethical terms rather than relying on moral intuition, business schemas, and decision making short cuts. Thus, the new attorney is in a unique position — her inexperience makes her best able to avoid the temptations of inappropriate intuitive ethical decision making and as she begins her career, she is perfectly positioned consciously to shape the process that will guide her ethical decision making and contribute importantly to her professional development.


ABA Panel on Behavioral Legal Ethics

mainThe ABA’s Business Law Section will be holding what promises to be an excellent panel on behavioral legal ethics at its annual meeting in Chicago on September 12, 2014. It looks great and is highly recommended.

Michael Herman, the program chair, has provided the following description:

The Road to Abilene, Temporary Blindness, Slippery Slopes, and Other Hazards to Ethical Behavior by Lawyers

Lawyers confront ethical challenges, such as potential conflicts of interest, on a daily basis. Our last program discussed the largely unconscious cognitive biases that, without our being aware of them, affect everyone, including lawyers. This program will explore what research in behavioral, social, and organizational psychology can teach us about how the dynamics of group and other organizational settings, including law firms, influence our ethical choices.

The panel of distinguished scholars and practitioners (including long-time Section friend Don Langevoort, of Georgetown Law Center, and leading behavioral ethics scholar Ann Tenbrunsel, of Notre Dame) will cover topics such as bounded ethicality, self-serving bias, framing, ethical fading, motivated blindness and incrementalism, using case studies, demonstrations, and video clips.

In addition, Dr. Larry Richard will be part of the panel. Dr. Richard, a psychologist and a lawyer, will speak to how lawyers in particular are subject to some of these influences. We will also be discussing two fact-based studies to give the audience a sense of how these concepts actually play out in particular circumstances.