Interests

Not every interest matters for COI purposes. In this section of the blog we will identify situations and principles illuminating this aspect of the COI field, with sub-categories devloted to various of the most common types of interests considered for COI purposes.

Lawyers as compliance officers: a behavioral ethics perspective

What role do corporate lawyers play in preventing wrongdoing by executives in their client organizations? And how is this role impacted by behavioral ethics?

In “Behavioral Legal Ethics Lessons for Corporate Counsel,” to be published in the Case Western Reserve Law Review, Paula Schaefer of the University of Tennessee College of Law  first examines “the corporate lawyer’s consciously held conceptions and misconceptions about duty owed to her corporate client when company executives propose a plan that will create substantial liability for the company—when and if it is caught.” As she shows, lawyers often have an unduly limited view of what that duty is.

Schaefer next “turns to behavioral science and highlights some of the key factors that corporate attorneys are unconsciously influenced by as they try to decide how (or if) to address client conduct that may amount to a crime or fraud.” Those factors are:

Attorney self-interest. A key point on this: “Corporate advisors keep their jobs (as inside or outside counsel) when they keep executives happy; they do this by finding ways to implement corporate executives’ plans, and not by saying no.” Of course, on some level this is obvious but, based on the research of Tigran W. Eldred of New England Law School,  she notes that lawyers are often not aware of the extent to which self-interest corrupts the professional conduct of attorneys vis a vis clients.

Obedience Pressure. A key point here: “Obedience research explains the power an authority figure or colleagues have to influence bad advice.” The best-known study in this area is, of course, that conducted by Stanley Milgram, which measured the extent to which participants were willing to inflict shocks on apparent learners in the experiment when instructed to do so by an apparent authority figure and which demonstrated just how powerful obedience pressure could be. As Schaefer notes: “In the case of a corporate attorney addressing planned conduct that may be criminal or fraudulent, the authority figure is likely the corporate executive that the attorney reports to in the professional relationship.” And as she notes this is likely to create more pressure than the instruction of some man in a white coat in Milgram’s experiment.

Conformity Pressure. Here, Schaefer describes experiments by Solomon Asch concerning the extent to which the participants gave knowingly incorrect answers to a question because of the fact that other participants did so. The results showed a high degree of such correlation. As she notes: “Asch’s research should be particularly concerning for lawyers. For Asch’s subjects, the stakes were low—the subjects likely did not know the other participants in the study and had no ongoing relationship with them. Further, the right answer was black and white, and they still felt pressured to choose the wrong answer selected by the majority. For a corporate lawyer addressing possibly fraudulent or criminal conduct, the group (with whom she feels pressure to conform) might be fellow attorneys or other decision makers at the corporation.”

Partisan Bias. Schaefer writes: “The research reveals that partisanship makes it difficult for a lawyer to filter and interpret information objectively. One study found that students who participated in a moot court competition overwhelmingly perceived that their assigned side had the better case. In another study, subjects were asked to play the role of attorney for plaintiff or defendant in determining the settlement value of a case. Even though both sides received identical information, those who were randomly assigned to play the plaintiff predicted an award substantially higher than that predicted by the defendant.”

Schaefer next considers “interventions to combat a corporate attorney’s wrongful obedience and conformity.” All of these seem sound, but I don’t have space to discuss them here.

However, I do want to add that – although not the focus of Schaefer’s paper – the research may also be relevant to the longstanding debate about whether the general counsel or other member of the law department should serve as chief ethics and compliance officer (CECO)  or if the individual in that role should be independent with respect to reporting purposes. At least to me, the research suggests that it may be more difficult for in-house attorneys to rise above the potential conflicts in this role than is generally thought.

Of course, even an independent CECO would be subject to the various biases described in this article. However, they would still – in my view – stand a better chance of ethical success since the notion of independence is truly foundational to their role, i.e., there is presumably not the same confusion about their duty than Schaefer found was the case with in-house attorneys.

Finally, note that I am not saying that this means that the General Counsel can never serve in a CECO role – only that the implications of this research should be considered along with various other factors in determining what approach makes the most sense for a given company.

For further reading:

– The Legal Ethics Blog

– An earlier post from the COI Blog with a different view on lawyers as compliance officers

Ethics made easy

We justly praise those who show true ethical heroism.  But to protect business organizations  and society generally from legal and ethical breaches we need to aim our efforts more broadly.

In “How to Design an Ethical Organization” in the May-June 2019 issue of the Harvard Business Review, Nicholas Epley, John Templeton Keller Professor of Behavioral Science at the University of Chicago Booth School of Business, and Amit Kumar, an assistant professor of marketing and psychology at the University of Texas at Austin, argue: few executives set out to achieve advantage by breaking the rules, and most companies have programs in place to prevent malfeasance at all levels. Yet recurring scandals show that we could do better. Interventions to encourage ethical behavior are often based on misperceptions of how transgressions occur, and thus are not as effective as they could be. Compliance programs increasingly take a legalistic approach to ethics that focuses on individual accountability. They’re designed to educate employees and then punish wrongdoing among the “bad apples” who misbehave. Yet a large body of behavioral science research suggests that even well-meaning and well-informed people are more ethically malleable than one might guess…Creating an ethical culture thus requires thinking about ethics not simply as a belief problem but also as a design problem. We have identified four critical features that need to be addressed when designing an ethical culture: explicit values, thoughts during judgment, incentives, and cultural norms.

The first of these is “explicit values.” Among the key points here are that:

Strategies and practices should be anchored to clearly stated principles that can be widely shared within the organization. A well-crafted mission statement can help achieve this, as long as it is used correctly. Leaders can refer to it to guide the creation of any new strategy or initiative and note its connection to the company’s principles when addressing employees, thus reinforcing the broader ethical system.

A mission statement should be simple, short, actionable, and emotionally resonant. Most corporate mission statements today are too long to remember, too obvious to need stating, too clearly tailored for regulators, or too distant from day-to-day practices to meaningfully guide employees.

The second design consideration is “thoughts during judgment.” Among the key points here are that:

– Most people have less difficulty knowing what’s right or wrong than they do keeping ethical considerations top of mind when making decisions. Ethical lapses can therefore be reduced in a culture where ethics are at the center of attention. … Behavior tends to be guided by what comes to mind immediately before engaging in an action, and those thoughts can be meaningfully affected by context.

– Several experiments make this point… In a large field experiment of approximately 18,000 U.S. government contractors, simply adding a box for filers to check certifying their honesty while reporting yielded $28.6 million more in sales tax revenue than did a condition that omitted the box.

The third consideration is incentives. Here the authors note: Along with earning an income, employees care about doing meaningful work, making a positive impact, and being respected or appreciated for their efforts… An ethical culture not only does good; it also feels good.

The final design consideration is cultural norms. Here the authors recount the results of several experiments showing the often underappreciated power of such norms in creating ethical risk.

The authors conclude the article with several helpful suggestions for putting ethical design into practice – including in the contexts of hiring, personnel evaluation, compensation.

Note that there is a lot more that could be said about how behavioral ethics can inform and fortify compliance programs. (See this index of prior posts on this subject.) But the ideas and information is this article are very helpful, and the overall point – that [o]rganizations should aim to design a system that makes being good as easy as possible – seems exactly right to me.

Point-of-risk compliance

Here is my latest column from C&E Professional – on  “point-of-risk compliance.”

I hope you find it useful.

Behavioral ethics program assessments

Rebecca Walker and I have an article in the Spring 2019 issue of Ethical Boardroom on behavioral ethics program assessments.

We hope you find it interesting.

Being a parent as a source of ethics risk

In 1973, in speaking to colleagues on the  Cook County Democratic Committee, Mayor Richard Daley of Chicago defended his having directed a million dollars of insurance business to an agency on behalf of his son John with the immortal words: “If I can’t help my sons, then [my critics] can kiss my ass. I make no apologies to anyone.”

I thought of this when I read about the college admission bribery scandal that emerged this past week. The scandal called to mind other cases where parents violated the law to benefit their children. A famous instance of this sort from the 1980s concerned the hiring (by a former Miss America) of a NY judge’s daughter to influence the judge’s decision on a pending case.  In 2016, JP Morgan settled a “Princeling” case, which involved the bank’s hiring the sons and daughters of important Chinese officials in return for business. And there are many other cases like these – presumably going back to our early history.

The behavioral ethics and compliance perspective focuses on structural causes of wrongdoing. There are many fruitful avenues for behavioral ethics inquiry suggested by the college admission bribery scandal. The one that most interests me is whether it is easier to commit a crime when one is doing so not to help oneself but to help one’s child.  (Note that I understand that there are also personal reputational benefits that parents get from having their child admitted to a prestigious university but still think that the principal beneficiaries of this corruption are the children.)

Given how powerful the drive to help one’s offspring is – both as a matter of the instincts we are born with and the social norms that we adopt – the answer is almost certainly Yes, at least as a general proposition. If this turns out to be an operative fact in the admissions bribery scandal, then I hope a lesson will be that parents should refrain from doing things for their children that ethically they wouldn’t do for themselves.

As the scandal unfolds I’ll also be interested in learning what was the role – or lack thereof – of risk assessment and auditing in the respective compliance programs of the universities involved. Based on the press accounts it seems as if this kind of corruption was probably fairly common. If that is so, where were the compliance programs?

Behavioral ethics and compliance assessments

New from the Compliance Program Assessment Blog.

Rebecca Walker and I hope you find it interesting.

Loyalty on the decline?

President Trump’s firing of then FBI director Jim Comey for refusing to pledge personal loyalty to him has given loyalty a bad name.  But on the whole loyalty plays an essential role in our business ethics/law framework.

In The Diminishing Duty of Loyalty Professor Julian Velasco of Notre Dame Law School notes:  Fiduciary duties comprise an integral part of corporate law. It is generally understood that directors owe the corporation and its shareholders two fiduciary duties: the duty of care and the duty of loyalty. Although both duties are firmly established in corporate law, they are not treated equally. It is generally understood that the duty of loyalty is enforced far more rigorously than the duty of care. …In this Article, I demonstrate that the duty of loyalty is not enforced as rigorously as is commonly believed.

Given the importance of the duty of loyalty to business ethics, this is unhappy news. But Velasco also sees some basis for a broader view of the duty of loyalty than is currently prevalent – resting, in part, on the broader view of what can cause disloyalty that was articulated by the Delaware Chancery Court in 2003:

Delaware law should not be based on a reductionist view of human nature that simplifies human motivations on the lines of the least sophisticated notions of the law and economics movement. Homo sapiens is not merely homo economicus. We may be thankful that an array of other motivations exist that influence human behavior; not all are any better than greed or avarice, think of envy, to name just one. But also think of motives like love, friendship, and collegiality, think of those among us who direct their behavior as best they can on a guiding creed or set of moral values.

Velasco notes: When writing or citing passages such as these, courts are implicitly acknowledging the need for a more comprehensive inquiry into loyalty than current law allows. I share his hope that the law will move more in this direction. And I hope also that in the realm of compliance & ethics programs – where decisions are often made regarding what types of loyalty are cognizable for conflicts of interest purposes – the broad view articulated above and in several other cases cited in his article will be embraced.

Finally, the need to strengthen the duty of loyalty does not diminish the need for a strong duty of care. As Samuel Johnson once said: “It is more from carelessness about truth than from intentionally lying that there is so much falsehood in the world.”

Deadly – and small – gifts and entertainment

Virtually every conflict of interest policy contains monetary limits for individual acts of gift giving or entertainment, but not all seek to quantify how many of such acts are permitted to occur in a given time period. This issue was raised in a particularly grim way – as described in this article in MarketWatch – by a recent study which “found that both deaths from opioid overdose and opioid prescriptions rose in areas of the country where physicians received more opioid-related marketing from pharmaceutical companies, such as consulting fees and free meals,…”

Relevant to the specific issue in this post, Magdalena Cerdá, director of the Center on Opioid Epidemiology and Policy at NYU Langone Health and the senior author on the study, stated: “A lot of the discussion around the pharmaceutical industry has been around high value payments, but what seems to matter is really the number of times doctors interact with the pharmaceutical industry,… ‘A physician’s prescribing pattern could be influenced more by multiple inexpensive meals than a single high-value speaking fee,’ she noted.”

She also said: “’We think it’s because the more times physicians interact with someone from the pharmaceutical industry, the easier it is to build a relationship of trust,… ‘We in no way think the prescribing is some kind of nefarious intentional behavior by physicians. The fact that it is the frequent, low-level payments that have the most effect shows that it’s more unintentional ‘…” Of course, unintentional conflicts tend to be more difficult to address than are intentional ones.

More generally, this finding  seems to me to be significant in a broad-based way as it presumably applies to other commercial contexts as well. And, compliance officers in all industries should make sure that their COI policies address not just high-value gifts and entertainment but also high volumes of such.

Behavioral ethics and compliance index 2019

While in the more than seven years of its existence the COI Blog  has been devoted primarily to examining conflicts of interest it has also run quite a few posts on what behavioral ethics might mean for corporate compliance and ethics programs. Below is an updated version of a topical  index to these latter posts.  Note that a) to keep this list to a reasonable length I’ve put each post under only one topic, but many in fact relate to multiple topics (particularly the risk assessment and communication ones); and b) there is some overlap between various of the posts.

INTRODUCTION 

– Business ethics research for your whole company (with Jon Haidt)

– Overview of the need for behavioral ethics and compliance

Behavioral ethics and compliance: strong and specific medicine

– Behavioral C&E and its limits

Another piece on limits

– Behavioral compliance: the will and the way

Behavioral ethics: back to school edition

A valuable behavioral ethics and compliance resource

BEHAVIORAL ETHICS AND COMPLIANCE PROGRAM COMPONENTS

Risk assessment

–  Being rushed as a risk

–  Too big for ethical failure?

– “Inner controls”

– Is the Road to Risk Paved with Good Intentions?

– Slippery slopes

– Senior managers

– Long-term relationships

– How does your compliance and ethics program deal with “conformity bias”? 

– Money and morals: Can behavioral ethics help “Mister Green” behave himself? 

– Risk assessment and “morality science”

 Advanced tone at the top

Communications and training

– “Point of risk” compliance

–  Publishing annual C&E reports

– Behavioral ethics and just-in-time communications

– Values, culture and effective compliance communications

– Behavioral ethics teaching and training

– Moral intuitionism and ethics training

Reverse behavioral ethics

The shockingly low price of virtue

Imagine the real

Positioning the C&E office

– What can be done about “framing” risks

Compliance & ethics officers in the realm of bias

Accountability

– Behavioral Ethics and Management Accountability for Compliance and Ethics Failures

– Redrawing corporate fault lines using behavioral ethics

– The “inner voice” telling us that someone may be watching

–  The Wells Fargo case and behavioral ethics

Whistle-blowing

– Include me out: whistle-blowing and a “larger loyalty”

Incentives/personnel measures

– Hiring, promotions and other personnel measures for ethical organizations

Board oversight of compliance

– Behavioral ethics and C-Suite behavior

– Behavioral ethics and compliance: what the board of directors should ask

Corporate culture

– Is Wall Street a bad ethical neighborhood?

– Too close to the line: a convergence of culture, law and behavioral ethics

–  Ethical culture and ethical instincts

Values-based approach to C&E

 A core value for our behavioral age

– Values, structural compliance, behavioral ethics …and Dilbert

Appropriate responses to violations

– Exemplary ethical recoveries

BEHAVIORAL ETHICS AND SUBSTANTIVE AREAS OF COMPLIANCE RISK

Conflicts of interest/corruption

– Does disclosure really mitigate conflicts of interest?

– Disclosure and COIs (Part Two)

– Other people’s COI standards

– Gifts, entertainment and “soft-core” corruption

– The science of disclosure gets more interesting – and useful for C&E programs

– Gamblers, strippers, loss aversion and conflicts of interest

– COIs and “magical thinking”

– Inherent conflicts of interest

Inherent anti-conflicts of interest

Conflict of interest? Who decides?

Specialty bias

Disclosure’s two-edged sword

Nonmonetary conflicts of interest

Charitable contributions and behavioral ethics

Insider trading

– Insider trading, behavioral ethics and effective “inner controls” 

– Insider trading, private corruption and behavioral ethics

Legal ethics

– Using behavioral ethics to reduce legal ethics risks

OTHER POSTS ABOUT BEHAVIORAL ETHICS AND COMPLIANCE

– New proof that good ethics is good business

How ethically confident should we be?

– An ethical duty of open-mindedness?

– How many ways can behavioral ethics improve compliance?

– Meet “Homo Duplex” – a new ethics super-hero?

– Behavioral ethics and reality-based law

Was the Grand Inquisitor right (about compliance)?

Inherent anti-conflicts of interest

A post some years back explored the idea of “inherent conflicts of interest,”  COIs so embedded in a situation that they are essentially impossible to resist. In an important column this week in Wired UK , the eminent behavioral ethicist Dan Ariely describes an approach he has developed which might be considered inherent anti-COIs. He writes:

An example of this, with which I am involved, is Lemonade, an insurance provider. In the standard insurance model, consumers pay fees and, when something bad happens, they file a claim. The problem is that in this model, an insurance company benefits financially when it refuses to pay out, creating a conflict of interest in its staff between the needs of consumers and the need for the company to make a profit. This is a tremendous conflict and some staff are likely to misbehave.

Lemonade, on the other hand, is not set up as a two-sided game between the consumer and company. Instead, we have made it a game with three players: the consumer, the insurance company and a charity that the consumer chooses. The consumer makes their payments. Lemonade keeps a fixed percentage, say 20 per cent, and pays claims from the remaining 80 per cent. Any money left over at the end of the year goes to the charity. Under this system, Lemonade makes the same profit whether it pays claims or not. And, if a consumer decides to inflate their claim, they are taking money from the charity they have nominated.

The shift here is a move from a system where companies simply ask customers to trust them, to a system where companies deliberately set up their business model in order to create trust.

In 2019, I believe we will see more companies using this approach and more consumers rewarding them for it. We are every day becoming more weary of the conflicts of interest and dishonesty that plagues so much of business and soon we will start choosing companies that have systems in place to avoid them.

I think that this is a terrific idea and hope that we will indeed see more examples of it in the coming year.

Finally, part of my wish list for 2019 is that we will also  learn from this experience more about what works generally and what doesn’t when it comes to messaging/marketing to turn ethical behavior to commercial advantage.  Among other things,  inherent anti-COIs should be a marketing “plus” not only in the insurance business but also in selling medical services and investment advice, among other things.  But actually making the cash register ring this way seems likely to be a real challenge.