Gordon Caplan, the co-chair at the AmLaw 100 law firm Wilkie Farr who was caught up in the FBI’s recent college admission scandal, was recorded saying, while discussing plans to fraudulently get his daughter into college: “I’m not worried about the moral issue here.” Then he made an interesting comment: “To be honest, it feels a little weird.”
To be honest, feelings are one of our most important resources for guiding ethical conduct.
According to Hebrew University economics professor Eyal Winter, author of Feeling Smart: Why Our Emotions Are More Rational Than We Think, “we know that the types of decisions that invoke perhaps the most intensive collaboration between rationality and emotions are ethical or moral considerations.”
But lawyers are at risk for not being able to engage those emotions for this very important, complex task. First, the emotional intelligence skill that lawyers score lowest in is the ability to recognize their own and others’ emotions. And even if they were to recognize those emotions, the emotional management skill lawyers are most competent at is suppression–which fails miserably to rid ourselves of those emotions and compounds the problem by intensifying those very emotions while also reducing the cognitive functioning necessary to recognize and deal with them.
The memory box of all our emotional experiences accumulating over a lifetime in our emotional brain–the amygdala–is the place our “gut” feelings or intuitions develop. Awareness of those feelings, which embody past responses to ethical decisions, guides us as to how decisions being made today might make us feel, thereby leading us to avoid what we have learned makes us feel guilty or otherwise bad. Even weird.
And that’s why emotional intelligence plays such an important role in ethical conduct. Research has established that those who are more emotionally intelligent can more accurately assess the ethical risks involved in a situation, better understand which ethical standards are appropriate, and recognize and deal better with the emotional fallout from ethical choices, especially when they have been in the position of having to ignore or act against their personal values. Putting our personal feelings aside to vigorously represent “personally repugnant clients and causes,” for example, can dull our sensitivity, if we are not vigilant, to the emotional discomfort that potential misconduct would and should engender.
Another emotional intelligence skill–empathy–gives a clear edge in making ethical decisions, since people act more ethically when they can put themselves in someone else’s shoes. Empathy also gives the insight to recognize when and how others are making ethical decisions, an ability which in turn motivates peer pressure and empowers whistle blowing.
Low emotional intelligence often signals low empathy. One’s empathy may be low because of a simple lack of exercise. In one study, upper-class people with higher educations and greater wealth exhibited lower empathy simply because, researchers theorized, they weren’t as dependent on others and their emotions and therefore tapped in to them empathically less often.
The healthcare industry actively promotes emotional intelligence to improve ethical conduct. Studies undertaken to raise ethical behavior in a healthcare setting conclude that the overall emotional intelligence of hospital employees had a signiﬁcant impact on their ethical behavior, with higher emotional intelligence scores predicting higher performance in ethics.
So what about lawyers? The Carnegie Foundation’s 2007 report found that one of traditional legal education’s primary deficits is the failure to produce graduates who have “ethical and social skills,” noting that “law students’ moral reasoning does not appear to develop to any significant degree during law school,” nor, tellingly, later during practice. There is some evidence that students’ ethics actually decline during law school.
Commentators have remarked for years on the ongoing decline in ethical performance among lawyers: not the least of whom was Warren Burger in an article published over 20 years ago entitled “The Decline of Professionalism.” In a 2016 survey, 37% of respondents rated the honesty and ethical standards of lawyers low or very low, a rating worse than medical professionals, police, clergy, accountants, building contractors, journalists, bankers, real estate agents, and business executives.
Unfortunately, what we know about lawyers’ skills and conduct as a general matter justifies the public’s general distrust in the profession. Among many incidents reported of failed lawyerly ethics, in 2016 a federal judge ruled that Department of Justice prosecutors who appeared in 26 states had to attend ethics training in light of their repeated misconduct in thousands of migrant lawsuits. Another 2016 decision vacated a $200 million infringement award because of the misconduct of the awardee’s in-house counsel.
Why this epidemic of ethical misconduct? Albert Bandura, a psychology professor at Stanford University, researched what makes some people “disengage” from what they know to be morally appropriate, an inquiry “highly relevant to understanding unethical behavior in 21st century organizations.” Moral disengagement occupies the place between normal ethical behavior and the more extreme lack of ethical restraints exhibited by the personality disorders like psychopathy.
Bandura has identified “eight cognitive tactics” centered on compartmentalization and justification that deactivate our ethics. We lawyers are, of course, by both training and practice, particularly good at cognitively compartmentalizing and justifying actions, including our and our clients’ most suspect ones.
According to Bandura, people with one or more of the following four personal attributes will be most predisposed to moral disengagement: low empathy, high cynicism, lack of control, and weak moral identity. Of these predispositions, some lawyers likely fall into all four, exhibiting low empathy, high cynicism (also known as skepticism), feelings of lack of control over their professional work (similar to Professor Martin Seligman’s identification of low decision latitude as a prevailing attribute of many law practices), and a weak moral identity (as flagged by the Carnegie Foundation report).
Another factor that may be contributing to poor ethical performance appears to be social-economic standing. A group of seven studies found that upper-class individuals tend to behave more unethically than lower-class individuals, at least in less major or obviously “illegal” ways—they are more likely to break the law while driving, take valued goods from others, lie in a negotiation, cheat to increase their chances of winning a prize, and endorse unethical behavior at work, in part because they have more favorable attitudes toward greed. Sound familiar?
Perhaps the most surprising development in this school admissions matter is Willkie Farr’s response to the charges against Caplan. The firm’s statement reads: “This is a personal matter and does not involve Willkie or any of its clients. In light of the seriousness of the matter, Mr. Caplan has been placed on a leave of absence from the Firm and will have no further Firm management responsibilities.” This is quite an interesting stance. Rather than giving Caplan a leave of absence simply pending adjudication, the firm noted that the charges involve a personal matter. Are they implying that personal ethics are different from professional ethics? Or that we can be upstanding in one area and not in the other?
Personal conduct and professional conduct are neuro-scientifically related, since we have to draw on the same memory box and reason in both spheres. Don’t we now acknowledge that lawyers and other professionals are subject to being fired from their professional gig because of domestic violence, sexual harassment and sexual misconduct, for example, personal conduct that doesn’t necessarily occur in the office? Shouldn’t Caplan’s alleged personally unethical conduct “involve” his professional standing? Wouldn’t his clients think it might?
What has become of the image of lawyers as pillars of personal integrity–in their firms, their communities and their profession? It’s an image without a distinction between what is done out in the pubic and what is done behind closed doors, or, in this case, on the phone. We should all have higher expectations of ourselves and those we work with.
Back in the 2014 Kayser scandal, according to the ABA Journal, 15 of 16 lawyers — including the then-president of the ABA itself — who were approached by a plant to help launder money “offered advice on how [Kayser] could buy pricey Manhattan real estate without revealing his identity.” Their defense was that none of them took on the client, but only one lawyer declined to give any advice at all, saying “my standards are higher.”
What we know is that Mr. Caplan felt appropriately uncomfortable in this situation, even though he apparently didn’t consciously recognize it as presenting a “moral issue.” Unfortunately, Mr. Caplan didn’t pay much attention to those uncomfortable feelings. After admitting that this all felt “a little weird,” his next comment was: “But.”
Charles Darwin said this in his autobiography as he looked back on a life of professional achievements: “My mind seems to have become a kind of machine for grinding general laws out of large collections of facts . . . . [resulting in] a loss of happiness, and may possibly be injurious to the intellect, and more probably to the moral character, by enfeebling the emotional part of our nature.”
Lawyers need to pay close attention to their feelings when confronted with any situation that might pose ethical questions. It is an opportunity to draw on and build an important resource–our emotions–for guiding ethical conduct. Improving our emotional intelligence skills of recognizing emotional cues, managing those emotions and having emotional empathy for others greatly improves the odds of our making the ethically correct decision. In all aspects of our lives.