By Justine Rogers and Michael Legg -
Snapshot
- Good people do bad things – and often fairly easily.
- The way in which people process information and make decisions can lead them into trouble, especially when they involve complex factors or uncomfortable feelings, which ethical issues tend to involve.
- Understanding behavioural ethics can assist in avoiding the common missteps to poor ethical decision-making and behaviour.
History is replete with examples of seemingly good people who do bad things. Many of those examples are from times of war or great insecurity. Yet the phenomenon is not limited to those situations, as seen in Enron, Worldcom, HIH, the banks leading up to the global financial crisis, and the financial advisor scandals. Closer to home, the McCabe, Australian Wheat Board and James Hardie cases showed lawyers in a very bad light. Further, the disciplinary registers contain more mundane cases of lawyers behaving badly – overcharging clients or taking from their trust accounts.
The gravity and wider meanings of these cases vary immensely, but they reveal that our ethical sensitivity and motivation are easily numbed. Most likely, the individuals involved would consider themselves good people. Why does this happen? How are most of us almost ethical, but not quite ethical enough?
Much of this can be explained by the situational pressures within which we act: for lawyers, the firm’s or chambers’ priorities, systems and hierarchies. For instance, billable hours and high budgets aimed at profit maximisation can lead to over-servicing and bill padding. For more junior lawyers, the profit goal may manifest through billable targets that determine bonuses and promotions.
Equally, a desire to ensure client retention in an environment of increased competition can result in a loss of independence as the lawyer seeks to promote the client’s goals. These situational pressures appear obvious. Indeed, experienced lawyers will readily acknowledge these risks, and firms and chambers have, or should have, systems to prevent or mitigate them. See Legg and Rogers, ‘Ensuring Ethical Legal Practice – The Need to Go Beyond Policies and Procedures’ (2015) LSJ forthcoming.
