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How to Spot Rogue Lawyers: They’re Probably Playing a Game

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How to Spot Rogue Lawyers: They’re Probably Playing a Game

Welcome to the Big Law Business section on the evolution of the legal market written by me, Roy Strom. Today we look at a new study on what drives honest decision-making among lawyers. Register to get this column delivered to your inbox on Thursday mornings.

Are you prone to feelings of guilt? Do you love the thrill of sharing unvarnished honesty? Do you view negotiations as a collaborative process rather than a zero-sum game?

It says a lot about who you are both as a person and as a lawyer, according to Taya Cohen.

Cohen is an associate professor of organizational behavior and business ethics at Carnegie Mellon University. She studies the interplay between moral character, honesty and business negotiations.

Cohen found that people who are more prone to feelings of guilt are more likely to be trustworthy. She also concluded that people overestimate the social cost of being “completely honest”.

She turned to lawyers for a study published last month in Negotiation Journal. Cohen wanted to know why some lawyers are more “honest” than others.

“It’s particularly interesting to think about honesty in the context of law because there are all sorts of strategies lawyers use to say something that’s technically true but may or may not further their counterpart’s understanding,” said Cohen in an interview.

His research built on previous work that found that people who performed better on morality exams tended to have greater “moral recognition,” meaning they saw moral aspects in a higher wide variety of decisions. Cohen thinks the opposite is people seeing things through a “game frame”.

Players don’t believe their actions reflect who they are. They view negotiations as adversarial competition with arbitrary and artificial rules. The object of the game is to win.

Cohen reasoned that attorneys with lower character scores would be more likely to apply a gambling framework to negotiations and less likely to make honest disclosures to opposing counsel.

She was right.

She passed a morality test to 215 lawyers. Next, she asked them questions about how they viewed negotiations to determine whether they viewed them through a game frame. Cohen asked participants, for example, if they viewed cooperation in negotiations as a disability. She also asked them if the way a person behaves in a negotiation reflects something about the person’s true character.

Finally, Cohen gave participants hypothetical scenarios and asked whether they would disclose or conceal certain information in each situation.

In one, she told participants to imagine they were representing a plaintiff (presumably in a personal injury lawsuit). Cohen asked them if they would correct an opposing attorney who mistakenly believed the client lacked the capacity to work.

In another scenario, she asked if attorneys would inform opposing counsel that they had omitted a specific competitor from a non-competition clause.

Lawyers with lower morality test scores were more likely to see the negotiations in a game setting, Cohen found. They were also less likely to correct opposing counsel’s erroneous impressions or disclose omissions.

“When you combine that competitive motivation to win, that adversarial part, and combine that with seeing the rules of the game as arbitrary, that’s the recipe we feel for dishonesty and other unethical behavior. “, Cohen said.

The link could explain the mental health problems of some lawyers, according to Cohen.

Lawyers are taught to “think like a lawyer” and to defend their clients diligently. This creates tension: the rules of the profession can seem ambiguous about how to be honest while still being effective.

Cohen plans to study whether students are more likely to apply a gambling framework to negotiations as they progress through law school.

“There could be a connection between people wanting to act on their values ​​related to honesty or other values, but if they feel they can’t do it to be effective, that’s a problem,” she said.

Which raises another question: Is brutal honesty good for your customers?

“Honesty promotes credibility, and credibility promotes trustworthiness, and trustworthiness really is the direct route to effectiveness,” said Robert Creo, attorney, arbitrator and mediator who co-authored the study with Cohen and Erik Helzer. , associate professor of management at the Naval Postgraduate School. .

If you’re reading this and feeling guilty about omissions you’ve made in the past, it could be a sign that you’re hiding your true desire to be trustworthy. But it could also mean that you “just think like a lawyer.” Cohen’s further research could help reconcile the two.

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It’s all for this week ! Thanks for reading and please send me your thoughts, criticisms and advice.