Managing Behaviour Change: Ethics and Risk

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.

Wheel of behaviour changeThey 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.

One thought on “Managing Behaviour Change: Ethics and Risk

  1. Richard

    “… far thinking about ethics is influenced not by ethical rules or principles but by business principles and the needs of the (lawyers’ own) firm….”

    Seemingly, the reality of private pro bono qua ‘ethics’ is that scarce private resources are not free, nor are they purely charitable. There is still a market based on some exchange that distributes these resources. Driving the market is not demand, but the interests and priorities of those providing the resources.
    “Institutionalised Pro Bono” is a term suggested by Cummings.1 He argues that institutionalisation already exists “distributed through an elaborate organizational structure embedded in and cutting across professional associations, law firms, state-sponsored legal service programs, and non-profit public interest groups” Cummings’ research shows a complex of disorganised discrete structures with many diverse actors at work, the competing aims and differentiated characteristics of each often furnishing different degrees of success. “They work by matching demand and supply and trying to promote collaboration among the various players, providing connections or conduits between those needing legal services and those providing them.”
    Networking opportunities and increased profile gains will naturally permeate a pro bono relationship, legal professional status improvements will occur, social and public benefits arise and if somewhat anecdotal evidence is introduced profitability will increase “The relationships between changes in pro bono activity from 1990 to 1993 and changes in the [firms’ economic] performance data over the same period are positively correlated, though not strongly.”2 Other benefits remain as opaque open questions, caught within “ a series of complex obligations,duties and claims”3
    The publication ‘The American Lawyer’4 in its rating of the top ten US law firms, considers the ‘regard’ of those firms able to substantiate their pro-bono commitment by way of a ‘pro bono score’. In turn this measure increases corporate status and adds to the general public and private esteem they receive.
    1CUMMINGS, S. (2004). “The Politics of Pro Bono,” UCLA Law Review 52, 1-149.
    2GALANTER,M. PALAY,T. “Making the business case for Pro Bono” (University of Wisconsin) Law Firm Pro Bono Project © 2000 The Pro Bono Institute
    3MITCHELL,L.G. “Greeks bearing Gifts” Cambridge University Press (1997)
    4THE AMERICAN LAWYER New York, N.Y. 10271 : PRO BONO SCORE “Firms report their activities each year,we rank them by a formula that includes both per capita hours and the number of firm lawyers who performed at least 20 hours of service annually” (14.1.2010)

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s