Nathalie Tidman has done a thorough and balanced job of reporting on recent NDA controversies for Legal Business (£). Interesting new information includes that Zelda Perkins had a barrister involved in her case, and that the firm that represented her kept the NDA in a firm safe, “with a post-it note inscribed ‘this must not walk’. All the supporting documents – including the evidence given by Perkins and her colleague – were apparently destroyed in a warehouse fire.” There’s also a fair bit on law firms wider travails with sexual harassment and keeping it secret. More pain to come on that one is the angle.
I want to focus on one comment. It comes from a fellow employment lawyer:
‘Mansell is better than most… If you want an unethical employment lawyer, I could point you towards many. Mansell is not one of them.’ Another employment law veteran observes, incredulously: ‘He’s one of us.’
I have heard similar things myself from people who say they know Mr M well. I am happy to accept a judgment of his good character. And bear him no grudge at all. Nor, if I am candid about it, given the effluxion of time, would I like to see him punished, save perhaps pour décourager les autres. Also, as it happens, I have an irrational soft spot for A&O because my first contact with them was with a partner who was among the kindest, and most charming, of any lawyer I have met. Mr M might well be one such as him. I am all for believing it.
What I want to challenge is the relevance of this to judging his conduct. It falls into the trap of thinking ethical misconduct is primarily about character. Is he or is he not a good egg clouds many a judgment. Having interviewed or talked to lawyers about how they manage for ethicality: they tell me, we recruit people like us and they learnt this stuff at law school (no, no they almost certainly did not). We don’t see a problem: it’s all about character and common sense. It is an approach which is understandable but crazy dangerous in the high stakes world of legal practice. A Gupta-like scandal with a medium sized law firm could, I think, bring a firm down; maybe even a big firm.
The point is made repeatedly in a recent book by Yuval Feldman , The Law of Good People: Challenging States’ Ability to Regulate Human Behavior (Cambridge University Press 2018). I’m not going to say a great deal here about the book as another blog is coming out on Jotwell soon (it is now published here). I do want to say this: Feldman’s central point is that most wrongdoing is done by good people. They (we!) do wrong because much of their (our) decision-making is done subconsciously, intuitively, or without reflection – we deceive ourselves albeit sometimes, importantly, with glimmers of recognition that we are uncomfortable about something.
Feldman sets out a host of reasons. One set of reasons is about biases which, I think, might be particularly important for lawyers: illusions of our own objectivity; a belief that we should discount intuitions and emotions in our decision-making (and the harm we cause to others); the ease with which we can rationalise misconduct after the event; the impact of tiredness and quick decision-making under pressure; working in competitive not collaborative environments; and, a sometimes excessive appetite for exploiting ambiguity. These often come with the territory.
That territory encourages good people to make ethical mistakes. It damages our ethical antennae and capacities to reason optimally. And, importantly, Feldman thinks, and evidence suggests, sensible, proportionate things can be done about these biases. We can make better decisions with some extra care and practice.
It is striking how often, in argument, one is exhorted to play the man not the ball; but the reverse is not true. In defence one can offer the man and ignore the ball. This is the wrong approach. A professional community must acknowledge the capacity for bad decisions to emanate even from the best people, and be willing to look at conduct forensically, and professionally; acknowledge mistakes, learn, and move one. When it comes to punishment, then yes, we should look at the man; but when thinking about what is professional, it is the man’s actions that are central. I suspect if we really embraced this, then professional regulation would look more at understanding, education, leadership, and restorative approaches to conduct complaints; and less at punishment. Here’s hoping. Focusing on whether someone is one of us, obscures the real issues. The law of good chaps does not mean we do not need to think about this.