Commentators have remarked for years on the decline in ethical standards among lawyers, leading to increasing charges of fraud, theft, breach of fiduciary duties, among other crimes, and also pure incivility.

Even lawyers have long thought that lawyers are behaving inappropriately and should be more closely monitored: in one survey, 62% of the lawyers surveyed believed lawyers are inadequately policing lawyer misconduct.  Not the least of those bemoaning the state of professionalism in the law was Warren Burger in a 1993 Tennessee Law Review article entitled The Decline of Professionalism. The economic recession that began in 2008 is viewed by some as a monument to unethical practices by banking and legal professionals, one that damaged the general economy and individual organizations involved, as well as industry reputations. And one that hasn’t resulted in raising the level of our professionalism. See our entries “What’s Ethics Got To Do With It?” Part 1 and Part 2 for further discussions of the ethical state of our profession.

Why is there at least a perceived level of ethical failings among lawyers? Albert Bandura, the David Starr Jordan Professor of Social Science in Psychology at Stanford University, has developed a line of psychological research called “moral disengagement.” It focuses on what makes some people “disengage” from what they know to be the morally appropriate path–convincing themselves that in a particular instance the normal ethical rules don’t apply. “This new knowledge provides better understanding about the psychological mechanisms which deactivate moral self-regulation and allow people to make unethical decisions more easily,” which is “highly relevant to understanding unethical behavior in 21st century organizations.”

Moral disengagement occupies the place between normal ethical behavior on the one hand and the absence of ethical restraints exhibited by Machiavellians, sociopaths and psychopaths, on the extreme other.

Bandura has identified “eight cognitive tactics,” i.e. things we tell ourselves, that deactivate our ethical standards:

1. Moral Justification – making the harm appear more morally justifiable
2. Euphemistic Labeling – using morally neutral language to make bad conduct sound benign
3. Advantageous Comparison – trivializing one’s unethical behavior by comparing it with more harmful conduct
4. Displacement of Responsibility – blaming someone else for bad behavior
5. Diffusion of Responsibility – claiming no one individual but the whole group was responsible
6. Distortion of Consequences – trivializing the harm by noting limited consequences
7. Dehumanization – not recognizing the target of the harm
8. Attribution of Blame – blaming the victim

Nearly all of these tactics can be found to some degree in the various exampcited in our ethics entries noted above.  There’s also the story of the staffer who worked in a law school’s career services office tracking graduate job statistics, among other things. The dean repeatedly pressured her to record those statistics other than as dictated by the ABA regulations, she said, saying among other things that padding numbers was ok because “everyone does it.”

Lawyers are, of course, by both training and practice, particularly good at defending and justifying their own actions, including their most suspect ones. “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.”

This compartmentalization is of course what many lawyers see as necessary in order to be effective advocates.   By separating their personal values from what they consider to be solely rational arguments, they can represent morally repugnant clients and causes in furtherance of their professional duty to render competent representation.

Yet this ability to compartmentalize away their personal morals and rely almost entirely on rationality is also what may lead lawyers astray in their own conduct.

Bandura contends that people with one or more of the following four attributes will be more predisposed to moral disengagement than others:

• Low Empathy – less ability to recognize others’ feelings
• High Cynicism – a general attitude of disillusionment and distrust
• Lack of Control – belief that chance or powerful others control outcomes in their lives
• Weak Moral Identity– lower standards expected of oneself

Of Bandura’s four predispositions to moral disengagement, lawyers are likely to exhibit the first three: low empathy, high cynicism, and feelings of lack of control, and may possibly also exhibit the fourth—a weak moral identity. We have sound data that lawyers score low on empathy and high on cynicism. Feeling little control is often associated with highly structured practices–it is, after all, the supervising partner or the client or the executive committee who are ultimately in control of decisions, we often tell ourselves.  We are just the vehicle to make what they want happen. A strong moral identity is often not promoted in our business, neither in our law school training nor in our professional development. The Carnegie Foundation found in 2007 that “a number of studies have shown that law students’ moral reasoning does not appear to develop to any significant degree during law school.”

Exhibiting low emotional intelligence scores, lawyers are also less likely to hear their own “gut” feelings about ethical propriety, in addition to being out of touch with how their actions may affect others.  Guilt, fear and anxiety can be helpful signals telling us that the path ahead is not without risks.  Shutting off our access to those emotions can hobble our ability to make moral decisions. One study demonstrated that those with the ability to feel guilt, empathy and other emotional states were less likely to advocate a corporate misdeed or participate in deception or misrepresentation in connection with their company or colleagues.

There are certainly heroes of ethical conduct among us. In a UK case involving the bankrupting of a company, a British regulatory tribunal issued a severe reprimand and a record fine against Deloitte  LLP, as well as the disbarment of and fine against its corporate finance partner. Deloitte and the partner had “placed their own interests ahead of that of the public and compromised their own objectivity… a flagrant disregard of the professional standards expected and required.” The company directors convicted in connection with the case contended that a partner in a prominent English law firm that was advising the company kept them from receiving their full, and suspect, compensation package. Their position was that “it wasn’t her position to be raising questions about the directors’ remuneration and that she had done it on a number of occasions in a way that… was inappropriate.” The law firm, they asserted, “was not anybody’s moral guardian.”  The court’s response: “We do not accept this.”

Congratulations to this English lawyer for having the courage to refuse to facilitate the looting of a public company. Ethical and moral questions in the practice of law are by their very nature both tricky yet imperative to sort out properly.  Being a lawyer may be the biggest risk factor involved.