David Brooks’ editorial in the Friday, July 23rd New York Times was on morality, in particular the type which naturalists view as another outcome of evolution. The naturalist position is that, much as we have over time developed receptors for sweetness and saltiness, we have also developed receptors that recognize fairness and cruelty.
At a recent conference organized by the Edge Foundation, researchers attested to the evidence for that inborn moral sense. Paul Bloom of Yale reported on experiments in which babies were shown a figure struggling to climb a hill, another figure trying to help it, a third trying to hinder it and then the hindering figure being either punished or rewarded. Babies as young as six months clearly preferred the helping figure over the hinderer and by eight months preferred the punishing of the hinderer over rewarding her. While Bloom doesn’t pretend that this implies that people are born “good,” he does claim that it shows we are all born with an ability to distinguish basic right and wrong.
But since we homo sapiens as a group don’t seem to suffer from a surfeit of morality, how do we each arrive on our moral path?
There was some disagreement at this conference over how much we rationally control our moral behavior. The role of emotion has recently been emphasized as a critical part of decision-making (see our upcoming entry on decision-making). Some have even suggested that emotion is the real basis for a decision with moral reasoning following simply to justify the decision, much like the proverbial man on the elephant who tells himself that he is the one moving the beast but is in fact only along for the ride.
Studies done during the last couple of decades, which Brooks doesn’t mention, inquired as to why some gentiles, under no external compulsion, risked their and their families’ lives to protect Jews during the holocaust. The studies found that the gentiles in question viewed themselves as “just that kind of person,” people who had been raised with the sense of obligation to do whatever they could to help others in need, a morality which they practiced without a whole lot of forethought. That is, they performed those heroic acts essentially out of habit.
With the pressure of the economic downturn, the temptation to bypass ethical constraints is evident. Bill-padding and double-billing have increased dramatically this decade over last, as have frauds and conversions of trust and other third-party funds.
Is there also a laxity in morals, as opposed to ethics? Professional lapses not expressly prohibited but simple failures to be fair and straightforward?
Perhaps there is no mandate for lawyers to act morally or even room for moral considerations in our profession. We are, after all, supposed to be zealous advocates, and no doubt many (possibly emotion-based) ethically close calls are strenuously defended as being in clients’ best interest.
But it is also possible that high standards of morality may be a obligation owed to our clients in the interest of providing them with the best result. As reported in our entry "What’s Morals Got to Do With It?," a study by the Consortium for Research on Emotional Intelligence found that financial advisors who demonstrated high levels of “moral and emotional competency” nearly doubled the return on their client portfolios over the S&P 500 average. “Results showed that Integrity was the key behavioral competency which predicted the most positive returns for clients." Integrity was seen as someone who "walked the talk."
If morality can change a financial advisor’s returns, might not a lawyer armed with morality sway judges and opposing counsel?
Then there is the matter of how we treat each other in our law firms and law departments, where we are less burdened by the goad of zealous advocacy. The Project for Attorney Retention and the Minority Corporate Counsel Association recently reported that nearly one- third of the 700 women partners surveyed had been “bullied, threatened, or intimidated out of origination credit.” This is not a backwoods phenomenon–three-fourths of these women are in firms of over 250 lawyers. A frequent complaint is that their partners trot out women for client pitches and then exclude them from the work (and of course the origination credit). "Clients will be surprised that the attorney that they think [is working on the matter] is not getting the credit," says Roberta Liebenberg, chair of the ABA Commission on Women in the Profession.
One of the more interesting points made at the Edge conference is that “people who behave morally don’t generally do it because they have greater knowledge; they do it because they have a greater sensitivity to other people’s points of view,” otherwise known as empathy. Marc Hauser of Harvard reported that bullies—people clearly not acting morally– are surprisingly sophisticated in the ways of interpersonal commerce, particularly in reading others’ intentions, but they are not able to "feel their pain." Which makes them good manipulators and strategic operators for their own benefit without the drag on their trajectory of caring about the impact of their actions on others.
Empathy is one of the traits that lawyers often score low on–all the better to not deter us from surging onward on behalf of our clients, certainly some would say. But firms might consider steps to counter that tendency by adopting compensation and other encouragements to "feel each others’ pain."
As Brooks says, it is good to ground virtue in the day to day.