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

May 5, 2022, 9:00 AM

Welcome back to the Big Law Business column on the changing legal marketplace written by me, Roy Strom. Today, we look at a new study about what drives honest decision-making in lawyers. Sign up to receive this column in your inbox on Thursday mornings.

Are you prone to feelings of guilt? Do you enjoy the thrill of sharing unvarnished honesty? Do you see negotiations as a collaborative process instead of a zero-sum game?

That says a lot about who you are as both a person and 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 has found people who are more prone to feelings of guilt are more likely to be trustworthy. She’s also concluded that people overestimate the social cost of being “completely honest.”

She turned her attention 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’s all kinds of strategies lawyers use to say something that’s technically true but may or may not foster an understanding in their counterpart,” Cohen said in an interview.

Her research built on previous work that found people who scored higher on moral character exams tended to have greater “moral recognition,” meaning they saw moral aspects in a wider variety of decisions. Cohen believes the opposite is people who view things through a “game frame.”

Game-players don’t believe their actions reflect who they are. They view negotiations as an adversarial contest with arbitrary and artificial rules. The purpose of the game is to win.

Cohen figured lawyers with lower moral character scores would be more likely to apply a game-frame to negotiations and less likely to make honest disclosures to opposing counsel.

She was right.

She gave a moral character exam to 215 lawyers. Then she asked them questions about how they view negotiations to determine whether they saw it through a game frame. Cohen asked participants, for instance, whether they view being cooperative in negotiations as a liability. She also asked them if the way a person behaves in a negotiation reflects anything about the person’s true character.

Finally, Cohen gave the participants hypothtical 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 whether they would correct an opposing counsel who wrongly believed that the client had no ability to work.

In another scenario, she asked whether lawyers would inform opposing counsel they’d omitted a specific competitor from a non-compete clause.

Lawyers with lower scores on the moral character test were more likely to view negotiations through a game frame, Cohen found. They were also less likely to correct opposing counsel’s misimpressions or disclose omissions.

“When you combine this competitive drive to win, that adversarial part, and combine it with viewing the game rules as arbitrary, that’s the recipe we feel for dishonesty and other unethical behavior,” Cohen said.

The connection might explain some lawyers’ mental health struggles, according to Cohen.

Attorneys are taught to “think like a lawyer,” and to zealously advocate for their clients. That creates tension: The profession’s rules can seem ambiguous about how to be honest while also being effective.

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

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

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

“Honesty promotes credibility and credibility promotes trustworthiness and trustworthiness is really the direct line to effectiveness,” said Robert Creo, an 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 read this and feel guilty about omissions you’ve made in the past, that might be a sign you’re concealing your true desire to be trustworthy. But it could also mean you were just “thinking like a lawyer.” Cohen’s further research could help reconcile the two.

Worth Your Time

On SCOTUS Clerks: I wrote this week about everything a Supreme Court clerk would lose if they were found to have leaked the draft opinion that would overturn Roe v. Wade. The loss of the most promising legal career was deterrent enough to make some former clerks think a justice was more likely behind the leak.

On Diversity in Big Law: While Big Law was rushing to fill seats over the past year, they hired a larger percentage of racially diverse lawyers, Meghan Tribe reports. Diverse lawyers accounted for nearly 5% of lateral hires by the top 100 firms last year, up from about 3% in 2019, according to Firm Prospects.

On Lawyers’ Clothes: What’s behind the legal profession’s fashion history and how’s it changing? Bloomberg Law’s Andrew Satter takes a look in a new video that features plenty of wigs.

That’s it for this week! Thanks for reading and please send me your thoughts, critiques, and tips.

To contact the reporter on this story: Roy Strom in Chicago at rstrom@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; John Hughes at jhughes@bloombergindustry.com