The Situationist

Archive for April 2nd, 2007

Why Do Lawyers Acquiesce In Their Clients’ Misconduct? – Part II

Posted by Sung Hui Kim on April 2, 2007

In my last posting, Part I of this series, I left off asserting that there are enormous psychological pressures for lawyers, in particular, “in-house” or “inside” lawyers (lawyers employed by corporations) to acquiesce in their clients’ misconduct. graphic2.jpg These psychological pressures arise from the multiple roles that in-house lawyers play – as mere employees (subject to obedience pressures), faithful agents (subject to alignment pressures) and team players (subject to conformity pressures).

In this posting, I would like to focus solely on their role as “mere employees” and the obedience pressures that arise from that role.  In a prior posting of The Situationist, Stanford psychology professor Philip Zimbardo described the famous electric shock experiments conducted at Yale University in the early 1960s by Stanley Milgram, which provide the strongest illustration of the power of “obedience pressures.” Stanley Milgram before electric shock generator. If you are unfamiliar with these experiments, I strongly urge you to read Zimbardo’s posting,  The Situational Sources of Evil – Part I.  In short, the most common reaction of participants to the experimenter’s explicit commands (“The experiment requires you to continue to go on.  Please go on!”) was to continue administering brutal and perhaps lethal electric shocks  to the other subject (actually, a confederate) despite his desperate protests.

Zimbardo, who had known Milgram since high school, contacted Milgram and asked him whether any of the participants had even checked into the adjacent room to see if the recipient of electric shocks was in need of medical care.  Shockingly, not one of the 1000 subjects in Milgram’s experiments did so.  As explained by Zimbardo and co-author Michael Leippe, “’Stay in your seat, until I tell you that you can leave,’ is perhaps one of the most lasting lessons of our early childhood education – coming from elementary school teachers.  That behavioral rule is so internalized that it controlled the reactions of the ‘heroes,’ in the Milgram studies, who disobeyed the experimenter’s external command but totally obeyed this more deeply ingrained internal command.”

Milgram argued that in modern society, the child is socialized to obey not just mom and dad, but impersonal, legitimate authority figures, e.g., schoolteachers, police officers, bosses, who we perceive as having a right to issue commands.  Mere indications of rank – dress, diploma, title, insignia – are often sufficient to confer the status of “legitimate” authority.

Accordingly, to understand why sophisticated, educated and experienced in-house lawyers acquiesce in their clients’ misconduct, one only needs to be reminded of the banal tendency to obey superiors.  But before I talk about in-house lawyers, let me talk about obedience pressures a bit more generally. Obedience pressures played a role in Enron, WorldCom and many of the other publicized corporate scandals.  Former Enron CEO skilling.jpgJeff Skilling was sentenced last October to 24 years in jail, even though there wasn’t much evidence establishing a vivid connection between him and the Enron fraud, which, for the most part, was carried out by his subordinate, CFO Andrew Fastow. Similarly, former WorldCom CEO Bernie Ebbers was sentenced to 25 years in jail even though the fraud was carried out, for the most part, by CFO Scott Sullivan. The reality is: when your boss tells you to “make the numbers” or hit the projected quarterly earnings target, you can not underestimate the enormous pressures to make it happen — even if it means violating accounting conventions and the law.

Georgetown law professor and moral philosopher David Luban was “spot on” with his description of the lessons of Milgram’s experiments: “Milgram demonstrates that each of us ought to believe three things about ourselves: that we disapprove of destructive obedience, that we think we would never engage in it, and, more likely than not, that we are wrong to think we would never engage in it.”

belnick_mark3.jpgJuries, composed mostly of employee-subordinates, appear to at least have a basic understanding of obedience pressures, which might explain why they handed down “guilty” verdicts for the bosses at Enron and WorldCom and handed down a “not guilty” verdict for one high-profile subordinate — Mark Belnick, former general counsel of Tyco who reported to CEO Dennis Kozlowski (who is sitting in prison right now for looting Tyco).  In contrast, tenured academics, who – for the most part — can’t get fired, seem to have a tougher time comprehending obedience pressures (at least that is what I have observed).

Inside counsel, as employees of the firm, are inclined to take orders and accept the “definition of the situation” (a phrase coined by Milgram) from their superiors.  These superiors happen to be a cohort of non-lawyer senior managers vested with the authority to speak on behalf of the organization and entrusted to give direction to inside counsel.  They create the reality for inside counsel: they define objectives, identify specific responsibilities for inside lawyers and, ultimately, determine whether an inside lawyer’s performance is acceptable. 

And accepting management’s “definition of the situation” means accepting management’s framing of the inside lawyer’s role and responsibilities. This framing provides that compliance responsibilities be segmented.  Although inside counsel’s duties include a prominent role in corporate compliance, it is business management that jealously guards the right to decide whether to comply with the law, which is seen as the ultimate risk management decision.  For inside counsel to challenge management’s decisions or management’s authority to make decisions would then amount to clear insubordination.

Obedience in the corporate context will be substantial, so we should not be surprised by the banal tendency to listen to superiors.  Also, given the stark financial self-interest, which is threatened by asking too many questions or being viewed as obstructionist, we should not be surprised that inside counsel regularly succumb to the situation.  To be clear, this is not to say that all inside counsel cave into obedience pressures.  Indeed, one need only look at the few reported cases in which inside counsel sued their employers for being retaliatorily discharged (for having taken an ethical stand) to see that some (albeit a few) are able to resist those pressures.  For a more thorough treatment of obedience pressures, please check out my article, The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper.

Posted in Law, Social Psychology | 4 Comments »

Your Brain and Morality

Posted by The Situationist Staff on April 2, 2007

Bosch Painting

William Saletan of Slate has a thought-provoking piece on how activity in brain’s ventromedial prefrontal cortex, which is associated with social-emotional responses, indicates to what extent one will regard a belief or action as moral or immoral. Saletan’s piece is based on a fascinating study published in last week’s issue of Nature on how damage to the prefrontal cortex has been found to make one more “utilitarian,” or more caluclated in logic and less cognizant of the emotional and social implications of one’s decision-making. We have excerpted portions of Saletan’s piece below.

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Imagine that killers have invaded your neighborhood. They’re in your house, and you and your neighbors are hiding in the cellar. Your baby starts to cry. If you had to press your hand over the baby’s face till it stopped fighting—if you had to smother it to save everyone else—would you do it?

If you’re normal, you wouldn’t, according to a study published last week in Nature. But if part of your brain were damaged—the ventromedial prefrontal cortex—you would. In the study, people were given hypothetical dilemmas: Would you throw a fatally injured person off a lifeboat to save everyone else? Would you kill a healthy hostage? Most normal people said no. Most people with VMPC damage said yes.

It’s easy to dismiss the damaged people as freaks. But the study isn’t really about them. It’s about us. Neuroscience is discovering that the brain isn’t a single organ. It’s an assembly of modules that sometimes cooperate and sometimes compete. If you often feel as though two parts of your brain are fighting it out, that’s because, in fact, they are.

Some of those fights are about morality. Maybe abortion grosses you out, but you’d rather keep it safe and legal. Or maybe homosexuality sounds icky, but you figure it’s nobody’s business. Emotion tells you one thing; reason tells you another. Often, the reasoning side makes calculations: Letting old people die is tragic, but medical dollars are better spent on saving kids. Throwing the wounded guy off the lifeboat feels bad, but if it will save everyone else, do it.

* * *Picture of Brain

What’s moral, in the new world, is what’s normal, natural, necessary, and neurologically fit.

The catch is that what’s normal, natural, necessary, and neurologically fit can change. In fact, it has been changing throughout history. As our ancestors adapted from small, kin-based groups toward elaborate nation-states, the brain evolved from reflexive emotions toward the abstract reasoning power that gave birth, in this millennium, to utilitarianism. The full story is a lot more complicated, but that’s the rough outline.

And evolution doesn’t stop here. Look around you. The world of touch, tribe, and taboo is fading. Acceptance of homosexuality is spreading at an amazing pace. Trade is supplanting war. Democracy and communications technology are forcing governments to promote the general welfare. Utilitarians welcome these changes, and so do I. But utility unchecked can become a monster. The Internet is liberating us from visual and physical contact. Economic globalization is crushing resistance to the bottom line. Companies are sending employees to get cheap medical care abroad. Brokers are buying organs in slums. In a utilitarian world, you do what it takes. It’s all about helping people.

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Posted in Emotions, Philosophy | 2 Comments »

Phil Zimbardo Brings Lucifer to Harvard

Posted by The Situationist Staff on April 2, 2007

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Sponsored by the Project on Law and Mind Sciences at Harvard Law School, the Program on Law and Social Thought, ACLU-HLS, The American Constitution Society (at HLS), Unbound: Journal of the Legal Left, the Kennedy School of Government Center for Public Leadership, and the Edmond J. Safra Foundation Center for Ethics.

For more details, click here.

or contact Carol Igoe at cigoe@law.harvard.edu or 617-495-4863.

(Note: Professor Zimbardo will also give a lecture at MIT on Monday April 2. For details, click here.)

 

 

Posted in Events, Law, Legal Theory | Leave a Comment »

 
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