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.
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.
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?