Recent reporting happened to recount within days of each other three instances of fraud in the legal world that bear some reflection. In New York in late July, after a short deliberation by the jury, two attorneys were convicted of 10 felony counts of perpetuating for over almost a decade mortgage fraud, including conspiracy to commit bank fraud and wire fraud.
"The defendants violated the trust placed in them as attorneys and further damaged the integrity of the real estate market. We will vigorously investigate and prosecute those who engage in mortgage fraud, including professionals who jettison their responsibility to reap rewards from the fraud," U.S. Attorney Loretta Lynch was quoted as saying.
A couple of days earlier, the ABA announced a censure and fine of $250,000 levied on the University of Illinois College of Law for fraudulently inflating credentials of incoming students, the fine being a first for the ABA, although it censured Villanova Law School last year for inflating undergraduate grades and LSAT scores.
"[I]ntentional reporting of inaccurate admissions data to the ABA and the public was reprehensible and misleading to law school applicants, law students and law schools, and damaging to the reputation of the legal profession," the censure of Illinois reads. Weighing against Illinois was an earlier episode in which the school fudged its Westlaw and Lexis costs to report higher per-student expenditures, which helped boost its U.S. News & World Report ranking.
The chairman of the ABA’s Council of Legal Education and Admissions to the Bar said:"The picture the council saw was one of a school that was not sufficiently concerned about its responsibility to put accurate information out there…When we looked at Illinois, we had multiple years of the false reporting of data… "
Then the Ninth Circuit just upheld a ruling that McGuireWood "egregiously breached" its ethical duties in failing to disclose to class members that incentive awards would go to named plaintiffs.
All in all, a complete sweep of the legal arena: two of many individual lawyers, a well-respected law firm and a long-established law school all found to have violated their ethical obligations.
In an article in the ABA Journal entitled "The Quaint Notion of Shame" reporting on the chutzpah of some litigants, a comment pointed to a potentially different culprit:
"The notion of the absence of shame may well begin with the legal profession itself, which most believe has changed from being an original ‘noble profession’ to the kind of dog eat dog business that it has become. Lawyers routinely inform their client that the law is not about ‘justice’… [Lawyers] are taught to help their clients in any way they can to find legal ways to avoid just agreements or just punishment. Moreover, the better they become at ‘beating justice’ the more money they make.
The concept of honor appears to have no place in the minds of lawyers, at least not if the majority of their clients are asked the question. Lawyers are continually in a position to commit the ‘perfect crime’. Which is not the crime that is known but has never been solved. It is the crime that never gets discovered. Such as being given bad advice by a lawyer, or overbilled, or charged for other people’s expenses in contingency fee cases, or when your lawyer makes a secret deal with the opposing lawyer to allow your case to go south while he profits.
All the evidence supports the conclusion that such actions are more or less routine by lawyers. So much so, that lawyers do not consider it improper and if caught will argue: I am not doing anything that every lawyer in America does not routinely do.
Therefore I say to lawyers, clean your own house if you wish to re-establish some sense of shame in society."
In Time Magazine’s "The Twilight of the Elites," the author takes the position that the last decade has demonstrated that our "elites," "the bright and industrious minds who occupy the commanding heights of our meritocratic order," are not able to reliably perform their important functions in an ethical manner, leaving "mass skepticism, contempt and disillusionment." Gallup and Edelman polls show that trust in our government institutions and businesses, even by members of the elite themselves, is at an all-time low. Historically, lawyers have fallen at the bottom of those polls.
There is a psychological concept called "moral disengagement" that occupies the place between normal ethical behavior and sociopathic behavior, which recognizes no ethical restraints. Those who can morally disengage convince themselves that in this particular instance, the normal ethical rules don’t apply for various reasons, including that this is a particularly different circumstance or that the actor is a particularly different person than who the rules should apply to. We will consider the parameters of moral disengagement further in a later entry.
But suffice it to say that lawyers are not immune to moral disengagement. "Successful people tend to have that ability to compartmentalize and juggle competing demands and loyalties. And lawyers, in particular, are very good at it. There is no group I can think of that practices the psychological act of compartmentalization with more dexterity and willingness than lawyers," according to James Dolan, a psychologist who specializes in treating lawyers. "Indeed, it may be the basic intellectual act of law practice."
As we have reported before, nice guys tend to finish first, or as Mr. Keltner, referred to below, puts it: "People give authority to people that they genuinely like." Even among non-human primates, such as chimpanzees, the surest way to accumulate power is to practice the golden rule. Frans de Waal, a primatologist at Emory University, has observed that the size and strength of male chimps is an extremely poor predictor of which animals will dominate the troop. Instead, the ability to forge social connections and engage in ‘diplomacy’ is often much more important.
So are we giving power to the wrong people? Overlooking those who are ethically challenged because of being blinded by their charisma? Some interesting research strongly points to the likelihood that it often isn’t until later stages of a career that unethical behavior arises, when power is at its height.
According to "The Power Trip", "[T]he vast majority of rude and inappropriate behaviors… come from the offices of those with the most authority. Psychologists refer to this as the paradox of power. The very traits that helped leaders accumulate control in the first place all but disappear once they rise to power. Instead of being polite, honest and outgoing, they become impulsive, reckless and rude…
‘When you give people power, they basically start acting like fools. They flirt inappropriately, tease in a hostile fashion, and become totally impulsive,’ according to Dacher Keltner, a psychologist at the University of California, Berkeley. Mr. Keltner compares the feeling of power to brain damage, noting that people with lots of authority tend to behave like neurological patients with a damaged orbito-frontal lobe, a brain area that’s crucial for empathy and decision-making… Although people almost always know the right thing to do—cheating is wrong—their sense of power makes it easier to rationalize away the ethical lapse."
The impact on decision-making of this "neurological damage" caused by power can be particularly devastating. "[E]ven fleeting feelings of power can dramatically change the way people respond to information. Instead of analyzing the strength of the argument, those with authority focus on whether or not the argument confirms what they already believe. If it doesn’t, then the facts are conveniently ignored.
Deborah Gruenfeld, a psychologist at the Stanford Business School, demonstrated a similar principle by analyzing more than 1,000 decisions handed down by the United States Supreme Court between 1953 and 1993. She found that, as justices gained power on the court, or became part of a majority coalition, their written opinions tended to become less complex and nuanced. They considered fewer perspectives and possible outcomes."
So what’s to be done?
"There is no easy cure for the paradox of power. Mr. Keltner argues that the best treatment is transparency, and that the worst abuses of power can be prevented when people know they’re being monitored. This suggests that the mere existence of a regulatory watchdog or an active board of directors can help discourage people from doing bad things.
However, people in power tend to reliably overestimate their moral virtue, which leads them to stifle oversight. They lobby against regulators, and fill corporate boards with their friends. The end result is sometimes power at its most dangerous."
Which unfortunately seems to be where a good portion of our profession is these days.