2013 : The year of ethical lapses among high-performing professionals

If there has been a mystery from the events of 2013, it is the emergence in Canadian public life of respected professionals as instigators of questionable deals and conflicts of interest.  The intrigue surrounding Senator Mike Duffy captured national attention, but we were also mindful of the fact that, in Québec, it was getting hard to find anyone with a clean past to step into the glare of municipal politics.  In law, we ended the year with the disappearance and death of Javed Heydary, and the trail of missing millions from his trust account.

What is common to the cast of characters is that all the alleged culprits – many of them lawyers and other professionals – were high-achieving, Type A personalities who commanded wide respect and loyalty.  Many in the legal profession and academy have been scratching their heads to find an explanation.  Have we had enough oversight?  Regulation?  Statutory penalties?

Maybe, just maybe, we have to study the high-performing professionals themselves.  After all, ethical lapses originate in the mind.  Can we see the behaviour as imbalances of innate and acquired cognition?

The belief that one can make a payment in order to take the place of a public official’s questionable expenses stems from a mental skill acquired at age four, that if you move an object from its original location (eg. a red ball), people will look for it in its original location.  The four year-old learns that if you put another object of the same kind in its place, people will treat the new one as if it were the one which was relocated.  Prior to age four, the child actually expects people to find the original object in the new location because the child cannot understand that others have minds independent to theirs whose perspectives can be limited or deceived.  Lawyers who borrow from their trust accounts or turn a blind eye to conflicts of interest understand that others can be deceived in this manner, and so they engage in the unethical behaviours.

The innate cognition of the pre-schooler does not disappear altogether.  Rather, it grows into a separate skill we value and call critical thinking.  We also see it in people who comment on events retrospectively and say the participants to the events should have seen red flags (cf. the red ball).  Too much critical thinking is considered by some to be lacking in compassion or to be unfair.

During the early days of mandatory continuing legal education in Ontario, the Ontario Bar Association started floating the idea that you cannot teach professionalism without understanding that ethical and unethical behaviour among lawyers has to do with the mind as well as rules and standards.  (See June 2011 message.)   This has evolved into enhanced programming including the hiring of professional coaches to teach lawyers how to be teachers.  We are still not at the stage of teaching anyone – law students or lawyers – how to keep these separate mental skills in balance.  We should start developing a model curriculum for the ethical Canadian professional.  Start to understand why smart, respected people do dumb, unethical things, and figure out a way to train them to stop themselves.

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