- When faced with an ethical issue, will you stick to the rules?—or do what’s right?
Being a young lawyer is tough. We come to the practice of law knowledgeable, enthusiastic, and eager to shed the “training wheels” of externships, moot court, mock trial competitions, and clerkships. Yet, most of us harbor some degree of fear and recognition that we lack the experience to publicly ride the bicycle without noticeably wobbling, much less to win the race at this early juncture.
The general inexperience of new lawyers is also true in ethics issues. We may know the rules of professional conduct, but we do not always know how they play out in the real world, or “how much” conduct it takes to cross the line in certain instances. Model Rule of Professional Conduct 5.2 recognizes the inexperience of new lawyers by granting a safe harbor to subordinate lawyers following the ethics advice of a supervising attorney in “close call” circumstances.
Further complicating things, you already know that just because a lawyer or law firm has deep and broad experience, it does not automatically translate to superior ethics. We all know firms, and lawyers, with reputations for playing fast and loose with ethics.
When it comes to making ethics decisions, it is not so much what you know that matters, it matters what you do, at the moment, under stress, when multiple competing interests are at stake. Thankfully, understanding and staying aware of the cognitive decision-making dynamics underlying ethics issues can put you in the lead in making ethical decisions despite a lack of practice experience.
Moral licensing is the ethics equivalent of cheating on your diet. The naughty trick our brains play on us when we are dieting is to tell us: “You have been so good limiting your carbs, calories, or whatever it is you are counting, that having this one little cookie won’t “hurt.” “Or this small scoop of ice cream.” And sometimes it does not “hurt” our efforts—until we fall for the trick one too many times.
Often, we do not consciously hear the trick—it is the autopilot function, and we are the airplane. Or if we do think about it, we recognize it too late to modify our “in the moment” conduct.
Researchers Max Bazerman and Ann Tenbrunsel found that our minds play the same trick on us when it comes to ethics. We tell ourselves “I gave up date night with my spouse to help the senior partner with that stupid case, so it is OK if I don’t support the summer associate to the extent I normally would.” Or “the firm doesn’t pay me a fair salary, so it is OK if I pad my hours just a bit to meet the billable hours quota.”
Unlike dieting, which “evens out in the end,” ethical conduct stands alone. We do not have an “ethics bank account” which accepts deposits and withdrawals of ethics currency. And the currency of ethics is wildly expensive. People can, and will, remember small transgressions for many a moon. (Most are also very forgiving if mistakes are handled properly. More on that below.)
All ethics issues involve two or more competing interests—and values—which must be balanced and managed. How well we spot and manage conflicting interests determines our ethical skill level.
Ethical fading is the ethics equivalent of parents saying: “Yes, it is a serious thing that Johnny got expelled from school for hitting another student in the face, but that student was wrong for calling Johnny a dweeb. Plus, the school handled it all wrong. I am calling the principal first thing in the morning to complain about how it handled this.”
By coupling the actions of the other student and the school’s process into the analysis of Johnny’s behavior, the ethical implications of Johnny’s actions “fade.” In truth, the situation involves three issues that should be analyzed separately before attempting to balance all three interests against each other at once.
Because most lawyers are hardwired to approach issues from an analytical, almost skeptical, mindset, and because we are professionally trained to consider all perspectives and relevant facts, moral fading is almost “baked in” to our normal thought processes.
A classic example is the large, lucrative client of a firm who demands that the lawyer “bend” the rules of professional conduct in discovery. Or refuses to have a woman or a person of color working on their case. Lawyers characterizing these conflicts as “business decisions” as opposed to “ethics decisions” are engaging in ethical fading. The problem solving becomes focused on how to save the income for the firm, rendering the ethics issue merely equal to, or less than equal, to the business decision.
There is a reason “owning up” to our mistakes is considered a hallmark of ethicality, leadership, and maturity. It is because humans, generally, are not very good at it.
We have all seen famous people deny their inappropriate or hypocritical conduct in the face of overwhelming evidence to the contrary. Bazerman and Tenbrunsel found three explanations for these denials. First, the person truly is innocent. If we were presented with all the facts, we might agree with the person’s self-analysis of their character. Second, the person may know all too well that they acted unethically but claims otherwise (and often blames others for their conduct) to mitigate the damage associated with their conduct. The third, and the one Bazerman and Tenbrunsel claim is the more likely explanation, is that the person inherently believes in their own ethicality, despite evidence to the contrary. Bazerman and Tenbrunsel state:
“...we argue that ...biases occur at several stages of the decision-making process. Prior to being faced with an ethical dilemma, people predict that they will make an ethical choice. When actually faced with an ethical dilemma, they make an unethical choice. Yet, when reflecting back on that decision, they believe they are still ethical people. Together, this culminating set of biases leads to erroneously positive perceptions about our own ethicality. Worse yet, it prevents us from seeing the need to improve our ethicality, and so that pattern repeats itself."
This does not mean that people are inherently unethical. It is simply a reflection of the natural human defense mechanism of minimizing pain and embarrassment. Humans naturally distance themselves from psychological and physical discomfort.
What it does mean is that we must work to remain self-aware. And humble. (And attorneys have a huge reputation at, er, being so good at that, right?)
Contrary to our instincts to avoid discomfort, owning your mistakes and accepting responsibility for them sets a moral example for people to follow and demonstrates that people can trust you to be candid.
We all know friends and neighbors, and see political figures, who regularly exclude relevant information contradicting their mindset or political philosophy in their decision/opinion-making process. They erect artificial boundaries around the data they use to view a position or problem so they can support or justify their pre-established and comfortable point of view.
In legal ethics, this can manifest as an overreliance on the rules of professional conduct in determining what is “ethical.” By character and discipline, most lawyers are analytical and strive to be logical and objective. We like rules and laws because they provide structure and guidance, and we like to believe they make situations fair and predictable.
However, Section 9 of the Preamble to the Model Rules of Professional Conduct state that the rules are merely a “framework,” and within that framework issues “. . . must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.” In other words, the model rules of professional conduct are the minimum acceptable standards of conduct everyone agrees to abide by.
Too often we base our conduct on the minimum standards of the rules and fail to ask ourselves: “What is the right thing to do?” Often because “the right thing to do” means doing more than the rules require us to do and less than we are allowed to do.
This is significant. The research of Bazerman and Tenbrunsel indicates that when people are directed to do the best they could on a task, they did a better, more thorough job than when given specific directions. Pay attention to the Rules of Professional Conduct—but also ask what is the right thing to do in the situation. Does doing the right thing mean doing more than you are required to do under the rules? Doing less than you are allowed to do under the rules? What would you think is fair and ethical if the roles were reversed?
Thankfully, the research also indicates that most people have an innate desire to be ethical. This is a powerful dynamic when coupled with our knowledge of the tricks our minds can play on us when making ethics decisions.
Leading and succeeding means sticking to your “ethics diet,” ensuring ethics considerations do not fade in analyzing a situation, and being self-aware and humble.