Teaching BLE: Ethical Fading

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.

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Ethical Fading

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.

For now, let’s focus on two related aspects of ethical fading — the idea that the way an issue is framed* matters, as well as the language used to describe the situation.

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.

The Godfather (1972)

Even famous movies help explain this phenomenon — anyone remember how Michael Corleone described the murderous ways of his crime family in The Godfather? . . .

“It’s not personal . . . It’s strictly business”

  
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?

[*NB for #BLEBlog readers:  Framing as a core aspect of ethical blindness is explained in detail in the article written by Professors Guido Palazzo and Ulrich Hoffrage from the University of Lausanne, which I blogged about recently; their Coursera MOOC also does an excellent job of discussing its importance]

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Teaching BLE: Judicial Assumptions about Lawyer Behavior

I 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 Flickr.com Creative Commons]

A Brief Guide to Behavioral Legal Ethics

I’ve just posted  “A Brief Guide to Behavioral Legal Ethics” at Ethics Unwrapped for anyone who might want an overview of the field. The post is here.

As I’ve discussed before, Ethics Unwrapped is a leader in providing online training videos about behavioral ethics (there are now 36 of them!).  I use these videos and associated teaching notes regularly in my class and highly recommend them to anyone who is teaching in this area.

[Update: For those who follow Twitter, here is a fun visual from Ethics Unwrapped about my post]:

Brush up on the latest in legal ethics over the long weekend… read our recent blog with a cool glass of lemonade! pic.twitter.com/eVzpsmwof3

— Ethics Unwrapped (@EthicsUnwrapped) May 23, 2014

[Update #2: 07/22/14:  My post at Ethics Unwrapped discusses the  history of applying behavioral science to questions of legal ethics, citing a 1993 seminal article by Professor Donald Langevoort as one of the earliest articles in this area.  I should have added, and do now, that perhaps the earliest work in this area is by Professor Deborah Rhode, whose 1985 article, “Moral Character as a Professional Credential,” 94 Yale L. J. 491 1984-1985, relies on behavioral research to critique and raise questions about the bar’s moral character requirement (see pp. 555 – 562)].

Teaching Through Literature

Over at Ethical Systems, which is organized by many of the leading researchers in the field of behavioral ethics, there is a post about how business schools are using literature to teach ethics to their students. Included is an excellent list of business-related novels that address professional ethics.

Which poses the question to law professors: what literature, if any, do you assign to teach professional responsibility? I know, for example, that many have assigned one of my favorite novels, Kazuo Ishiguro’s Remains of the Day, as a wonderful exemplar of questions raised by role morality. And, of course, To Kill a Mockingbird is one of the all-time classics to teach the importance of social responsibility, duties owed to clients and other important themes.

I just did a quick search and found that my alma mater, Fordham Law School, held a symposium a number of years ago on the role of story-telling in professional ethics. Here’s the link for anyone who is interested.

Teaching Partisan Bias

When I moved to Boston a few years ago, I presumed my lifelong passion for baseball would wane. After all, what room is there for a Mets fan in this American League city? But recently, teaching behavioral legal ethics to my professional responsibility students has caused me to watch more Red Sox baseball games than anticipated (or at least the highlights online). Let me explain.

In the last few weeks of the semester, we have been focusing on the duties lawyers owe to courts and third parties (MR 3.3, 3.4, etc.). We started this module by reading Andrew Perlman’s excellent article that raises important questions about whether lawyers can be objective in assessing the permissible boundaries of advocacy (for an overview, here is his presentation at the UNLV Lawyering and Psychology conference). Andy’s main point is to question what he calls the “Objective Partisan Assumption,” that is, the prevailing view in legal ethics theory that lawyers can make relatively accurate assessments about the propriety of their own advocacy. Relying on decades of empirical research from social psychology, he demonstrates that, contrary to prevailing wisdom, partisanship tends automatically to override objectivity. In our class discussion, I asked my students to consider this research and Andy’s arguments in determining whether passionate advocacy by lawyers might cloud their objectivity in applying the rules.

The conversation was fruitful, if a bit abstract — at least until we started to discuss the Red Sox and Yankees. For those who haven’t been following this epic rivalry, there were two controversial calls in games last week concerning the new use of instant replay. The videos of both are here and here. After inquiring how many of my students were fervent Red Sox fans (a majority, of course; although Yankees fans were well-represented), we watched one of the clips – involving whether a Yankee player pulled his foot off second base when tagged by the Red Sox infielder (the runner was called safe, even though the replay seems to indicate otherwise). I asked how many thought the umpire made the right call. Not surprising, partisan bias reared its head: those who identified as Red Sox fans were adamant that the Yankee player was out, while the Yankees fans came to the opposite conclusion (this, even though the video shows that the Yankee player was out, which raises an interesting question of whether motivated reasoning is limited to ambiguous situations).

Of course, my class survey claims no scientific validity, but it did provide a window to discuss the classic psychology experiment, “They Saw a Game,” which is the progenitor of much of the research in this area (and which Andy and others have cited prominently). So, if you find that a 1950s football game between Dartmouth and Princeton is not riveting enough to capture the imagination of your students, may I suggest that a more recent rivalry in your home town might just do the trick — even if the rivalry involves two teams you find distasteful!

[Update 01/24/15:  For an entertaining podcast about the “They Saw a Game” study, including background on the football game itself, listen here]

Cognitive Reflection Test

NB:  This is a modified version of a post from another forum that might be of interest to readers of this Blog.

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As part of my effort to explain the power and fallibility of System 1 thinking to my Professional Responsibility students, I provided them with the questions from Shane Frederick‘s Cognitive Reflection Test (CRT). For those not familiar with the CRT, it consists of three questions that help illuminate the errors that can occur through quick, intuitive thinking.

Here are the CRT questions [spoiler alert for those who haven’t seen the test, the answers with explanations are at the end of this post]:

(1) A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?

(2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?

(3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake?

I’ll be curious to see how my students respond and whether they exceed the performance of the approximately 3400 undergraduate students who took the test in Frederick’s original study, which was 1.24 out of 3 (although there was a wide divergence of results, depending on the school). Interestingly, the undergraduates averaged slightly better than 252 trial judges in Florida who took the CRT as part of a study by Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich, entitled Blinking on the Bench: How Judges Decide Cases.

The CRT is one way I’m exploring the foundations of BLE with my students. I’ll share others in the future (for example, this short video provides a quick overview of fast v. slow thinking). And, if anyone has used the CRT or other methods to teach any aspect of BLE, I’d be interested to hear about your experiences.

[As some may have seen, the CRT has generated publicity in the last few years for its role in studies of whether performance on the test predicts religious belief — here’s a sample].

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Here are the answers and explanations for the CRT provided by the authors of the Blinking at the Bench study (pp. 10-11, footnotes omitted):

“Each of the three CRT items has a correct answer that is easy to discern upon reflection, yet each also has an intuitive—but incorrect—answer that almost immediately comes to mind. Consider the first question. For many people, the answer that immediately jumps to mind is ten cents. Though intuitive, this answer is wrong, as a bit of reflection shows. If the ball costs ten cents and the bat costs one dollar more, the bat must cost $1.10. Adding those two figures together, the total cost of the bat and ball would be $1.20, not $1.10. Therefore, the correct answer is five cents—the ball costs five cents, the bat costs $1.05, and together they cost $1.10.

For the second question, the answer that immediately jumps to mind is 100 minutes. Though intuitive, this answer is also wrong. If five machines make five widgets in five minutes, then each machine makes one widget in that five-minute time period. Thus, it would take only five minutes for 100 machines to produce 100 widgets, just as 200 machines would make 200 widgets during that same period.

The third question immediately invites an answer of twenty-four days, which is wrong. The correct answer—obvious upon reflection—is forty-seven days. If the patch of lily pads doubles each day and covers the entire lake on the forty-eighth day, it must cover half the lake the day before.”

Teaching about the Slippery Slope

This is my first year teaching the core aspects of Behavioral Legal Ethics in my professional responsibility class. It has been a fascinating experience – the students, from what I can tell, seem engaged and I find my own knowledge of the material deepening daily. So, I’ll be posting some of my ruminations, reflections, etc. about the experience – probably in no particular order.

Here’s one:

I teach using Lisa Lerman & Philip Schrag’s Ethical Problems in the Practice of Law, which provides a rich source of material to address BLE concepts in almost every class. For example, we just discussed various aspects of unethical billing practices (padding, double billing, outright fraud, etc.). The book introduces this discussion with an excerpt from Patrick Schiltz’s sobering article, entitled “On Being a Happy, Healthy and Ethical Member of an Unhappy, Unhealthy and Unethical Profession.” This just may be the best description I’ve seen of the well-documented phenomenon often called the slippery slope (for research on the slippery slope, see here, here and here; there is also an excellent summary on pages 1118-19 of Behavioral Legal Ethics).

Here’s an excerpt from page 917 of Schiltz’s article:

Let me tell you how you will start acting unethically: It will start with your time sheets. One day, not too long after you start practicing law, you will sit down at the end of a long, tiring day, and you just won’t have much to show for your efforts in terms of billable hours. It will be near the end of the month. You will know that all of the partners will be looking at your monthly time report in a few days, so what you’ll do is pad your time sheet just a bit. Maybe you will bill a client for ninety minutes for a task that really took you only sixty minutes to perform. However, you will promise yourself that you will repay the client at the first opportunity by doing thirty minutes of work for the client for “free.” In this way, you will be “borrowing,” not “stealing.”

And then what will happen is that it will become easier and easier to take these little loans against future work. And then, after a while, you will stop paying back these little loans. You will convince yourself that, although you billed for ninety minutes and spent only sixty minutes on the project, you did such good work that your client should pay a bit more for it. After all, your billing rate is awfully low, and your client is awfully rich.

And then you will pad more and more–every two minute telephone conversation will go down on the sheet as ten minutes, every three hour research project will go down with an extra quarter hour or so. You will continue to rationalize your dishonesty to yourself in various ways until one day you stop doing even that. And, before long–it won’t take you much more than three or four years– you will be stealing from your clients almost every day, and you won’t even notice it.

I also showed the students this video, which provides a nice example of the slippery slope in action (albeit not in a legal context).

Next year I plan to include the excerpt from the Schiltz article earlier in the semester (I don’t know if I’ll assign the entire article, as I tend to agree with those who think it lacks some balance on other aspects of life in Big Law).

More ruminations to come . . .

[7/01/14 Update: here is a fascinating new study on the power of the slippery slope to produce unethical behavior].