I have been thinking quite a bit recently about how lawyers conceptualise and manage ethics within their organisations. Also, separately, I have begun to look at how they conceptualise and manage legal risk. Whilst the temptation is to see these processes as preventing aberrant behaviour, elements of both risk management and ethical practice involve behaviour change. In that light, I came across this work by Michie et al on managing behaviour change which provides an interest framework for thinking about interventions designed to modify existing behaviour or prevent aberrant behaviour.
Michie et al call their model the behaviour change wheel. It is a non-linear and therefore does not specifically model linkages between the different categories and subcategories within the model. However, it does provide a framework within which one can reality check comprehensiveness of analysis behind behavioural change initiatives.
They create the COM-B framework which suggest that capability and opportunity influence motivation which in turn generates behaviour (4). Capability is split into physical and psychological capabilities; opportunity into social and physical influences on how we think and act; and motivation into automatic and reflective processes. I have been doing work on the role of values, culture and incentives on the reflective processes of lawyers, so this struck a chord with me. I have modelled ethical decision making by suggesting that behaviour is influenced by three Cs: character, context and capacity – many of the sub elements of this model map onto the Michie model. There are two further layers to the model making it of practical interest. The kinds of policies that are used to influence behaviour are familiar to most of us (communications/marketing; guidelines; fiscal incentives; regulation; legislation. There are two more – I would be interested to hear if these two are used by law firms or in-house teams to manage risk and ethicality, they are: environmental/social planning (designing and/or controlling the social environment) and delivering a service (internal anonymous advice hotlines for ethics problems may be an example here, though do firms offer these?).
The most interesting element was the way the Model anatomises about how these policies actually employed rather different interventions (and here I quote from the article directly). The interventions are:
- education (increase in knowledge or understanding)
- persuasion (using communication to induce positive or negative feelings or stimulate action)
- incentivisation (creating expectation of reward)
- coercion (creating expectation of punishment or cost)
- training (imparting skills)
- restriction (using rules to reduce the opportunity to engage in the target behaviour (or to increase the target behaviour by reducing the opportunity to engage in competing behaviours)
- environmental restructuring (changing the physical social context)
- modelling (providing an example for people to aspire to or imitate)
enablement (increasing means/reducing barriers to increase capability or opportunity)
I have been doing work on ethical consciousness amongst lawyers and what has struck me to date (the work is ongoing) is how far thinking about ethics is influenced not by ethical rules or principles but by business principles and the needs of the (lawyers’ own) firm. Expectations of reward are geared around billing: heavily economic incentives influence judgments about risk and ethicality. My impression is that attempts to train around ethics are minimal and education tends to focus on instrumental approaches to key rules (bribery being current flavour of the month for obvious reasons). Relatively little work goes into persuasion. Tone from the top is of course seen as important; as is the risk of punishment should egregious conduct be exposed. We could see tone from the top as persuasion or modelling, but I harbour doubts about how deep tone from the top – or indeed the middle –runs within law firms. The babbling brook of financial targets runs more noisily and more quickly. There is a tendency still to see ethics in particular as a matter of education; and something which ought to occur before practice., whereas once in practice ethics is perhaps assumed.
Whether this is something to be worried about is moot. For all that examples of potentially aberrant behaviour are revealed by (say) the hackings scandals or the travails of banks, we do not know how common ethical problems are. The issue of legal risk appears to be a different matter. In-house lawyers and their employers are increasingly concerned about legal risk: predicting, managing and ameliorating it. To the extent that they are trying to modify behaviour within their own organisations . They might want to look through the list of policies and interventions and consider whether there are some approaches which may be missing from their armoury.