This article originally appeared in the March 2016 Ethics Corner column of the ABA online publication Business Law Today:
Can ethical behavior be taught? Most definitely. The social sciences have yielded several principles and practices that can aid law firm leaders in shaping desired ethical behaviors.
Following are seven suggestions, based on this research, that can help:
- Teach what to do, rather than what not to do: The first step is to stop teaching ethics the wrong way. The most common approach used in teaching ethics today is to present a series of appellate case decisions in which some lawyer did something egregious enough to cause disciplinary action. One way or another, this led to a lawsuit, and ultimately an appellate court weighed in and rendered an opinion on the behavior.
The “students”—whether it’s lawyers in a firm or law students still in school—are admonished to not do what the wayward lawyer in the case did, e.g., “Don’t commingle your funds with the client’s trust funds”; or “When there’s a possible conflict of interest, don’t assume that the client will be aware of it.”
Here’s the problem—adult learning theory tells us that adults learn appropriate behaviors better by seeing examples of what to do, as opposed to being told what not to do.
Showing a person the prohibited behavior actually stores the behavior in their brain as a potential repertoire in their brain’s behavioral menu, which increases the possibility of its occurring in the future.
To teach ethics most effectively, you need to show examples in which a lawyer comes to a choicepoint, and then makes the right decision.
- Use respected role models: It’s not enough just to show any lawyer doing the right thing. The teaching moment is more powerful when the protagonist is a highly respected role model—either a respected firm leader, or a highly regarded “thought leader” in a successful practice—who regularly and naturally embodies the ethical character qualities you’re seeking to teach.
- Use “Social Proof” to build compliance: One of the well-established principles of social psychology is that most people respond to “social proof” (also known as “the bandwagon effect” or “peer pressure”)—that is, they look around them to see what others are doing in a particular situation, and are often unconsciously guided by the flow of the crowd. The more people that are behaving in a particular way, the more likely it is that any given individual will go along and behave in the same way. People are even more likely to rely on social proof when (a) the situation contains some ambiguity about what the right way to behave is; and (b) when the individual perceives the “crowd” as similar to him/herself in some way.
So one implication for teaching ethics is to find examples of widespread ethical behavior that already exist in the firm, and concentrate on letting everyone know about them. (See comment #5 below about “stories” and “culture”.)
- Teach ethics in an experiential way, not just a didactic way: If your goal were to teach your lawyers about updates to the tax code, or about new developments in hostile takeover litigation, then the pedagogical device of choice would be the didactic lecture. (A CLE course is a good example.) But if your goal is to foster a particular behavior, or to reinforce a mindset (the teaching of ethics requires both), then didactic lectures alone are insufficient, and may even be ineffective.
A quick example: If I’m about to board a plane, and I discover that the pilot got his or her training by attending a CLE lecture entitled “How to fly”, I’m not getting on that plane. I want to know that the pilot “flew” in a simulator, received extensive feedback, and had a powerful learning experience that “burned in” the lessons for good. So how does this translate to the teaching of ethics?
When we use a CLE approach and lecture to lawyers about what ethical behavior is appropriate, we are mainly playing to their intellect. By contrast, if we invite lawyers to participate in a simulation in which they actually have to make real choices about how to behave, the learning is much deeper and more memorable.
Behavioral simulations are not only more memorable than didactic teaching, but they offer an added benefit—they may even shape the identity of the individual in the right direction. Psychologists have shown that one way that we determine who we are is by observing ourselves and noticing how we actually behave. When you see yourself behaving ethically, this increases the likelihood of your telling yourself that “I’m the kind of person who does the right thing.” It shapes your identity.
- Tell a story: We are wired to pay attention to stories. Find examples of respected lawyers in your firm who did the right thing when they came to a critical choicepoint. Tell these stories at firm retreats, meetings, common meals—anywhere that lawyers gather together informally and talk. Stories have enormous power to transmit culture—“the way we do things around here.”
- Use environmental prompts: Research has shown that people respond to cues in their environment which shape their honesty behavior. For example, psychologist Dan Ariely has reported on a series of experiments showing that when people are in a room with a poster of a person whose eyes are looking straight at you, people in the presence of such an image behave more ethically. There are many ways to structure your office environment to provide subtle reminders to your lawyers about the appropriate ways to behave.
- Provide elevating experiences periodically for your lawyers: For years, psychologists have studied “prosocial behavior”—what makes people behave well with others. Prosocial behavior includes things like helping others, collaborating, volunteering, being cooperative, being kind, sharing with others—and behaving ethically. Wouldn’t it be great if we could encourage the partners in our firms to behave a bit more in a pro-social direction. It turns out that we can. A more recent body of research involves the study of emotions of “elevation” – that is, emotions that uplift people, usually in response to beauty, grand aspects of nature, or acts of moral goodness. Examples of such emotions include awe, transcendence, majesty, wonder, reverence and inspiration. When human beings, for example, spend quiet time in a spot of either transcendent natural beauty or awesome wonders of nature (e.g., the Aurora Borealis, the Grand Canyon, etc.), they exhibit more pro-social behavior. When human beings witness one person helping someone else, it also engenders pro-social behavior. When people volunteer, they act more pro-socially, and when people act more pro-socially, they are more apt to volunteer.
Some law firms already employ this principle: think of offices with sweeping panoramic views; retreats held in a beautiful spot in nature; ongoing programs in which the firm’s lawyers help some group—either pro bono representation, involvement with charities, or sponsoring groups of disadvantaged individuals. All of these acts actually help to shape ethical behavior.
If you are in a leadership role in a law firm, the principles and practices outlined here can help you to begin building a culture of ethical behavior.
– XXX –
Dr. Larry Richard is an organizational psychologist and former practicing lawyer, and the founder of LawyerBrain LLC, a consulting firm specializing in improving lawyer performance through personality science. He is a leading expert on the psychology of lawyer behavior. He can be reached at email@example.com or go to www.lawyerbrain.com.
 Bandura, A. (1985). Observational learning. In S. Sukemune (Ed.), Advances in social learning theory. Tokyo: Kaneko-shoho
 Bandura, A. (1985). ibid.
 Cialdini, R. (2006). Influence: The Psychology of Persuasion, Revised Edition. (New York: Harper Business), especially the chapter on “social proof”
 Kolb, D. (1984). Experiential Learning: experience as the source of learning and development. (Englewood Cliffs, NJ: Prentice Hall); McCarthy, P. R., & McCarthy, H. M. (2006). “When Case Studies Are Not Enough: Integrating Experiential Learning Into Business Curricula”. Journal Of Education For Business, 81(4), 201-204
 See Bem, D. J. (1972). Self-perception theory. In L. Berkowitz (Ed.), Advances in Experimental Social Psychology, (Vol. 6, pp. 1-62). New York: Academic Press
 Cron, L. (2012). Wired for Story: The Writer’s Guide to Using Brain Science to Hook Readers from the Very First Sentence. (Ten Speed Press, Berkeley, CA)
 Simmons, A. (2009). The Story Factor: Inspiration, Influence, and Persuasion through the Art of Storytelling. (Basic Books, New York)
 Ariely, D. (2012). The (Honest) Truth About Dishonesty: How We Lie to Everyone–Especially Ourselves. (HarperCollins, New York)