Category Archives: Behavioral Ethics Research

Scholarship Update

langevoort-don_1 Thanks to Ethicalsystems.org for posting an important new draft paper by Professor Donald Langevoort of Georgetown Law Center.  In it, Professor Langevoort — one of the leading scholars in the field of behavioral law and corporate ethics — takes a multidimensional approach to the thorny question of corporate culture and compliance.  Many of the lessons have applicability to a variety of organizational cultures, including law firms and other legal organizations. A must read for anyone interested in the topic.

Here is the abstract:

In the last few years especially, law-makers have increasingly invoked culture as something crucial to good compliance. The phrase “culture of compliance” has thus made its way into common legal discourse as describing both a goal and a marker. Precisely they mean by this is contestable, but there is enough evidence that the demand for healthy compliance culture is serious to invite careful thought. What is it, or should it be, and how might we know? This article draws from organizational behavior, behavioral ethics, and financial economics to develop an approach to how and why corporate cultures resist naively appealing interventions of “tone at the top” and ethical exhortation. Though recognizing the limited institutional capacity of government enforcers to promote structural changes in corporate governance and internal controls, the article concludes that any hope of getting to a socially optimal level of compliance — including a healthy culture of compliance — depends on a strong public voice to counter the beliefs and biases that grease internal perceptions of how firms succeed. In the end, however, the most important message about cultures of compliance is for corporate leaders and, especially, boards of directors. It is much too easy to look around and see good people working hard at difficult jobs and assume that a good compliance culture exists simply because everyone has been warned of the damage that can come from getting caught doing wrong. Or worse, to assume that an observable abundance of intensity, loyalty and creativity are signs that all is good. Taking culture seriously — appreciating the opportunities for transmitting values as well as anticipating the many hidden pathways of resistance and denial — is a necessary step toward the sort of compliance that never attracts prosecutors’ unwanted attention.
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New ABA Video — “Hidden Injustice: Toward a Better Defense”

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As I’ve noted previously, research on implicit bias has taken hold at the highest levels of government, with the U.S. Department of Justice requiring training on implicit bias for all of its employees.

Criminal defense lawyers, of course, are also prone to implicit bias, as Professor L. Song Richardson has written in her excellent article in the Yale Law Journal. Now she and other experts discuss implicit bias and criminal defense in a new video, produced by the ABA, which is available here. It is an excellent introduction to the subject, and can be quite useful in classroom discussions (I plan to use it in my criminal defense ethics class this semester).

(The research basis for implicit bias also corresponds with the reasons why lawyers for indigent defendants can suffer from what I call “ethical blindness,” as I have written elsewhere).

Happy viewing!

The Moral Compass of In-House Counsel

There is a growing body of scholarship that addresses the behavioral aspects of in-house lawyers and how they function. Some of the more prominent scholars in the area include Professor Sung Hui Kim (see here and here) and Professor Donald Langevoort (see here and here). Now comes a new and important study of in-house counsel in the United Kingdom, entitled Mapping the Moral Compass: The Relationships Between In-House Lawyers’ Role, Professional Orientations, Team Cultures, Organisational Pressures, Ethical Infrastructure, and Ethical Inclination.  The study, which surveyed 400 respondents from England and Wales, provides keen insights into how in-house lawyers perceive the ethical dimensions of their work.

The abstract of the study provides more detail:

This report provides a unique profile of real differences within the in-house community. We examine individual and team orientations to the in-house role; the invocation of professional principles; and ethical infrastructure, ethical pressure and relationships with the employer. We relate these to externally validated indicators of ethical inclination: (i) moral attentiveness (the extent to which people deal with problems as moral problems and the extent to which people identify moral problems); and (ii) moral disengagement (the extent to which people are inclined to morally disengage to behave unethically without feeling distress). It is as rich a picture of what it means to be an ethical in-house lawyer as has ever been attempted.

Through this research we profile the characteristics of individuals, teams and environments most associated with a stronger or weaker inclination to behave ethically. It is important to emphasise that this mapping of the ‘moral compass’ of in-house lawyers shows that ethicality is associated with individual and professional notions of the in-house role but also with team orientations and the broader organisational environment. Ethicality is both a systemic and individual phenomenon.

To help understand the diversity in ethical identities, we identify four main groups of in-house lawyers (described in more detail in Chapter 9):

• the Capitulators (who are reasonably morally attentive but are under ethical pressure and are less morally engaged);

• the Coasters (who do not perceive themselves as under ethical pressure and have moderate-low levels of moral attentiveness but not lower moral disengagement);

• the Comfortably Numb (who do not perceive high levels of ethical pressure and have low levels of moral attentiveness and higher moral disengagement – the most concerning of the four groups); and,

• the Champions (who are under the highest levels of ethical pressure but retain the highest levels of moral attentiveness and the lowest levels of moral disengagement).

Our research suggests that ethical in-house practice is about individual understandings of the role (orientations towards commerciality; ethicality; independence; being a mere advisor; and exploiting uncertainty); it is about the approach of teams and the organisations those teams work in; it is about understanding and drawing on all the obligations of professionalism; and, it is about building a better infrastructure to manage the tensions within the role.

The report is part of a larger project, entitled Ethical Leadership for In-House Lawyers (more here).

For those who are interested, two of the authors of the study, Richard Moorhead and Steven Vaughan, will be discussing their work at NYU Business School on July 14 at 5:00 pm. Details are available here.

International Legal Ethics Conference VII (ILEC)

ILEC VII

I’m happy to report that we will have two panel discussions dedicated to Behavioral Legal Ethics at the upcoming ILEC VII Conference at Fordham Law School in New York City, July 14-16, 2016.  For those who may not know, ILEC takes place every two years and is attended by legal ethics scholars, practitioners and researchers from across the globe. This year’s conference, entitled The Ethics & Regulation of Lawyers Worldwide: Comparative and Interdisciplinary Perspectives, expects to be an exciting mix of discussions on a wide range of topics.

The first panel, “Recent Developments and Future Directions in the Study of Behavioral Legal Ethics,” will feature Professor and Associate Dean Catherine Gage O’Grady, University of Arizona James E. Rogers College of Law; Professor Jane Moriarty, Duquesne University School of Law; and Professor (and BLE co-founder) Molly Wilson, PhD, St. Louis University School of Law. Professor and Associate Dean Alice Woolley from the University of Calgary School of Law will moderate.  Here is the description:

This will explore recent developments and future directions in the study of behavioral legal ethics and its application to the professional practice of law. Panelists will discuss how unconscious biases, self-deception, and situational dynamics impact lawyers’ ethical decision making, behavior, and professional identity. In addition, the panel will explore the unique ways that behavioral legal ethics principles impact new lawyers, examine the way ethical cultures and infrastructures differ between different legal practice settings and different jurisdictions, and suggest how insights from behavioral science can be harnessed to promote ethical professionalism in a wide variety of practice settings.

The second panel, “Experiential Approaches to Teaching Behavioral Legal Ethics,” will feature Professor Vivien Holmes, Australian National University College of Law; Professor (and BLE co-founder) James Milles, University of Buffalo School of Law; and me. Professor Julian Webb from University of Melbourne Law School will moderate. Here is the description:

This panel will focus on experiential approaches to teaching behavioral legal ethics. These include simulation exercises that place students in role where situational influences that affect behavior can be explored and the use of multimedia and online resources to engage students in the foundations of behavioral science. In keeping with this approach, the panel will not only report on the latest empirical and educational research, but will involve audience members in interactive exercises so as to illuminate core findings of behavioral research.

EthicalSystems.org — The “Go To” Site for Behavioral Ethics

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EthicalSystems.org, which we have discussed many times here at BLE, is a must-read for anyone interested in behavioral ethics.  Put it on your favorites list, add it to your browser, make a sticky note reminding yourself to visit often — in other words, do what you can to be a regular visitor to this site.  You won’t be sorry.

If you need more of a nudge (!), here is a sampling of three relevant recent posts from the EthicalSystems.org blog:

  1. Framing the Language of Business:  This post, which discusses Scott Killingsworth’s excellent article on the power of framing in the business context, has clear implications for the legal community.  Just as the “business as war” frame can lead to ethical lapses, Killingsworth’s article provides a sober warning against the excesses that framing “litigation as war” can produce.
  2. Testing, Testing: Drawing Conclusions From Test Environments: This post focuses on a recent work by Professor Donald Langevoort of Georgetown Law School, who was one of the first scholars to write about behavioral legal ethics (well before we had a name for it), beginning with his 1993 article, Where Were the Lawyers? A Behavioral Inquiry Into Lawyers’ Responsibility for Clients’ Fraud.  In his recent work, Prof. Langevoort describes the state of empirical research and its application in the compliance field, but his discussion of behavioral science has wide-ranging application for virtually any area of ethical decision-making.
  3. An Executive Order Promoting Behavioral Science: This post provides a rich description of the importance of President Obama’s recent executive order mandating that federal agencies look for ways to apply the insights from behavioral science to promote public policy in executive branch decision-making.  Not that there was much doubt, but behavioral science has arrived — front and center — in policy discussions, now and for the future.

Categorizing Behavioral Ethics

400px-Category-diagramAs anyone who studies behavioral ethics knows or quickly learns, the subject contains a vast amount of material — much of which is primary research.  As a result, it is useful to find sources to help categorize the literature of the field.  For those interested in the behavioral aspects of legal ethics, Behavioral Legal Ethics by Jennifer Robbennolt and Jean Sternlight stands out as one of the most important. In addition, here are some other resources that I’ve found very useful:

(1) “Behavioral Ethics: Toward a Deeper Understanding of Moral Judgment and Dishonesty” by Max Bazerman & Francesca Gino. This article, by two of the leading researchers in the field, provides an excellent overview of the subject. Particularly helpful is their description of the types of influences that can produce intentional dishonesty compared to those that can produce unintentional dishonesty (note: Max Bazerman’s book, Blind Spots (co-authored with Ann Tenbrunsel), provides one of the most accessible overviews of the field).

(2) “Ethically Adrift: How Others Pull Our Moral Compass from True North, and How We Can Fix It” by Celia Moore and Francesca Gino. This article, again by leading researchers, situates the discussion of behavioral ethics inside a larger description of the many forces that can cause unethical misconduct inside organizations. The comparison of individual cognitive limitations and social influences that can produce unethical decision-making is particularly helpful.

(3) “Behavioral Ethics Meets Behavioral Law and Economics.” This article, by Yuval Feldman from Bar-Ilan University (who has written extensively about the intersection of behavioral science and law), is very useful in describing the complexity, nuance and areas of disagreement in behavioral ethics literature. It also nicely maps the different sources of research on, and relationship between, behavioral ethics and behavioral law and economics.

If anyone else has found other sources that provide useful overviews of the field, please share.  Thanks.