Ethics and Integrityfor Senior Attorneys

June 2016

A Work in Progress

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Why do ethics matter?

• The law imposes some ethical restrictions on behavior• Laws speaking to individual ethical responsibilities and restrictions

(Ethics in Government Act of 1978; Bribery provisions of Title 18; Hatch Act; etc.)

• Rules of professional responsibility under your State Bar establish ethical rules

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Why do ethics matter?

Your Oath of Office

“ I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Source: 5 U.S.C. § 3331, Article VI of the Constitution

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Why do ethics matter?• Protecting democracy

• The point of our ethics systems in government is to “reinforce the public’s confidence in the institutions of government. If such systems fail at this purpose, they are paper structures that can actually increase the public’s cynicism.” ~ Stuart Gilman (former Director of the Office of Government Ethics) (2003).

• Laws that establish how government operates as an organization: Administrative Procedures Act • The various features of the APA requiring access and oversight “establish ethical obligations for government

organizations and those who work in them.” ~ Newell (2015)

• BUT, ethics laws do not make government ethical.• “If angels were to govern men, neither external nor internal controls on government would be

necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” ~ James Madison

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Why do ethics matter?

• Personal integrity• Individual motivations• “Somebody once said that in looking for people to hire, you look for

three qualities: integrity, intelligence, and energy. And if they don’t have the first, the other two will kill you.” ~ Warren Buffett.

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Why do we need to address it today?

• Examples of unethical behavior abound• Jeff Neely, GSA• Activities at Abu Ghraib prison• USSS agents activities in Cartagena hotel scandal• FEMA formaldehyde trailers• Enron & Arthur Andersen• Volkswagen “defeat devices”

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Why do we need to address it today?

• OPM Survey Responses

Source: 2015 Federal Employee Viewpoint Survey

“My organization’s senior leaders maintain high standards of honesty and integrity.”

Positive NeutralNegativ

e

Government-wide 52.3% 24.1% 23.6%Department of Homeland Security 36.8% 23.7% 39.4%

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Why do we need to address it today?

• Sometimes senior officials do not welcome a discussion of ethics or action based on ethics.

• Then what do you do?• How do you avoid becoming that senior official?

• Whether we like it or not, we are immersed in politics.

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Spotting Ethics Issues

• Two kinds of ethics issues: (Kidder (1995))1. Moral temptations

• Right vs. Wrong

• Governed by law or regulation

• One right answer

• Conflict between moral and immoral values

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Spotting Ethics Issues

• Two kinds of ethics issues (cont.):2. Ethical dilemma

• Right vs. Right

• Governed by conscience

• Two or more right answers

• Conflict between moral values

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Spotting Ethics Issues

• Are you responsible for addressing an ethics issue?• Squarely on you• Others• Inspector General (Management Directive 0810.1)

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How to Decide

• Identify facts and value conflicts• The problem

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How to Decide

• Tactics for quiet leaders1. Don’t kid yourself2. Trust mixed motives3. Buy a little time4. Invest wisely5. Drill down6. Nudge, test, and evaluate gradually7. Craft a compromise Source:

Badaracco (2002)

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How to Decide

• Three quiet virtues1. Restraint2. Modesty3. Tenacity

Source: Badaracco (2002)

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How to Decide

• Identify options• Avoid common default of assuming an “either-or” answer to all

problems• Generate options

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How to Decide

• Test your assumptions• Conversational inquiry, not adversarial inquiry

• Do it early• Talk to discover, not to persuade• Listen, don’t just formulate arguments

Source: Newell (2015)

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How to Decide

• Challenges to ethical behavior1. Failing to integrate reason and emotion

• Don’t kid yourself into thinking that there is no role for emotion• Probe your emotions—what are they telling you?

2. Facts, not just beliefs• Tendency to view facts selectively

3. Allowing status threats to overwhelm good thinkingSource: Newell (2015)

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How to Decide• Challenges to ethical behavior (cont.)

4. Making an ethical decision when taxed and tired• Early in the day• Avoid multi-tasking• Remove distractions

5. Thinking too fast• Slow down• Test assumptions• Discuss with others with an open mind Source: Newell

(2015)

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How to Decide

• Challenges to ethical behavior (cont.)6. Mental biases and heuristics

• Confirmation bias• Sunk costs• Anchoring bias• Availability

Source: Kahneman, Slovic, and Tversky (1982)

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How to Decide

• Tools to remember• Timing• Ability to remain calm• The power of saying “No”

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Taking Action & Explaining your View

• Practice using the right language before presenting• How will you frame your ethical decision

(opportunity/reproach)• Think beforehand about how you will be challenged

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Taking Action & Explaining your View

• Ethical “enablers”• Under your control

• Finding allies• Having all relevant information• Understanding stakeholders• How you select/sequence audiences• Appealing to shared purposes/values• Using your strengths Source: Kiddler (2005)

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Taking Action & Explaining your View

• Ethical “enablers” (cont.)• Within an organization

• Organizational policies, practices• Organizational values on ethics, debate, and discussion • Existing mechanisms for open debate and discussion• Systems for raising questions (eg. Ombudsman)• Organizational history of doing the right thing

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Taking Action & Explaining your View

• Speaking truth to power• Elements needed for moral courage

1. Must be in service to moral principles2. Must understand the dangers3. Endurance

• Two things are not enough

Source: Kiddler (2005)

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Taking Action & Explaining your View

• Guidelines for loyal dissent1. Know that dissent tries the patience of superiors—do not do it

lightly2. Do not shoot from the hip. Do your homework3. Clearly take ownership of your dissent4. Don’t personalize the challenge5. Be objective and balanced in your analysis6. Don’t challenge superiors in public unnecessarily

Source: John Johns, Federal Executive Institute

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Taking Action & Explaining your View

• Guidelines for loyal dissent (cont.)7. Do not expect radical change in opposing views8. Know your boss9. Provide alternatives to the position you are challenging10.Choose your time to challenge11.Recognize when you have pushed to the limit12.Always remember that you may be wrong13.Accept rejection graciously…OR…

Source: John Johns, Federal Executive Institute

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Taking Action & Explaining your View

• Final options• Acquiescence• Going over your boss• Requesting reassignment• Whistleblowing• Resign

Source: John Johns, Federal Executive Institute

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Organizations and Ethics

• Behavioral norms are powerful forces within an organization

• “Normalization of deviance”

Source: (Vaughan 1996)

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Organizations and Ethics

• Dangers of hierarchy• Special challenge for large organizations: making sure that

decision-makers have all of the relevant information• Tendency in some organizations to contain problems and resolve

them at a lower level without passing information up to decision-makers

• Specialization and the diffusion of responsibility

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Organizations and Ethics

• External pressures can impact ethics• Example: NASA and Challenger catastrophe (1986)• Timing pressures (White House, media, Congress)• Example: FEMA Sandy Litigation• As supervisors and leaders, you need to contain the impact of

these pressures—do not just pass them down to subordinates.• Most often, those exerting the pressures will not be the ones

held to account for ethical failures.

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Organizations and Ethics

• Elements of positive ethical culture• Leadership by example: Employees look to leaders—especially

their immediate supervisor—for signals about whether ethics matter. As a supervisor:

• Take ethics issues very seriously• Speak to employees about ethical guidelines and their role as an attorney• When facing a tough decision, discuss the ethical dimensions with

employees• Clearly express expectations concerning ethical behavior• Model ethical behavior in personal behavior and in work decisions

Source: Newell (2015)

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Organizations and Ethics

• Elements of positive ethical culture (cont.)• Encouragement of differences

• E.g., USSS Director Clancy testimony

• Rewards, sanctions, and peer support

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Pitfalls for Leaders

• List of leaders that have faced disgrace because of ethical lapses is long (David Petraeus, Richard Nixon, Bill Clinton, etc.)

• The Bathsheba Syndrome• Personal and organizational benefits that come with success can set

leaders up for ethical failure Less or no supervision Access to people and networks; privileged access Decision-making power Source:

Ludwig & Longnecker (1993)

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Pitfalls for Leaders

• Tactics to avoid ethical traps of leadership• Avoid leadership isolation• Minimize the stress of your job. Live a balanced life.• Do not delegate decisions with major ethics components unless you

have high confidence in the ethics of your subordinates.• Understand the dangers of the slippery slope• Commit to ethical action publicly• Others? Source:

Newell (2015)

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Special Rules for Members of the Bar

• Model Rule 2.1• Lawyers are to render independent professional judgment• In rendering advice, a lawyer may refer not only to law, but to other

considerations such as moral factors

• Model Rule 5.1• A lawyer having supervisory authority over another lawyer shall make

reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

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Special Rules for Members of the Bar

• Model Rule 8.4 • It is professional misconduct for a lawyer to engage in conduct

involving dishonesty, fraud, deceit, or misrepresentation.• Rule is not limited to the context of lawyer-client relationship; it

reaches conduct outside the practice of law.

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Other Points for Discussion?

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Bibliography• Dan Ariely, The (Honest) Truth About Dishonesty (2012).• Joseph Badarraco, Jr., Leading Quietly (2002).• Stuart C. Gilman, Government Ethics: If Only Angels Were to Govern (2003).• Daniel Kahneman, Paul Slovic, and Amos Tversky, Judgment under uncertainty: Heuristics

and biases (1982).• Rushworth Kidder, How Good People Make Tough Choices (1995).• Dean Ludwig and Clinton Longnecker, The Bathsheba Syndrome: The Ethical Failure of

Successful Leaders, 12 Journal of Business Ethics 265 (1993).• Terry Newell, To Serve with Honor: Doing the Right Thing in Government (2015).• Report of the President’s Commission on the Space Shuttle Challenger Accident (June 6,

1986). (“Rogers Report”)