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Jeff Kaplan/Kaplan - PPT Presentation

amp Walker LLP SCCE Compliance amp Ethics Institute October 2012 Las Vegas NV What Behavioral Ethics Can Mean For Ethics and Compliance Programs Behavioral economics wwwkaplanwalkercom ID: 566199

kaplanwalker www research amp www kaplanwalker amp research findings ethics communications moral programs people information based unethical behavioral interest

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Slide1

Jeff Kaplan/Kaplan & Walker LLPSCCE Compliance & Ethics InstituteOctober 2012, Las Vegas, NV

What “Behavioral Ethics” Can Mean

For Ethics and Compliance ProgramsSlide2

Behavioral economicswww.kaplanwalker.com

2

Studies effects of social, cognitive and emotional factors on economic decision making

Shows the limits of traditional notions of rationality

Very much part of mainstream business thinking

E.g., behavioral finance

Embraced as a matter of public policy in the UK

Nobel prize awarded to pioneer in this area 2002 Slide3

Behaviorists’ view of human reasoningwww.kaplanwalker.com

3

Per Daniel

Kahneman

,

it

is often

:

mediocre

fallible

beset by inconsistent reasoning

not trustworthy/vindictive

Reasons are:

attentional

” (in considering vast quantities of information, people have a tendency to focus on that which confirms expectations)

motivational (a need/desire to appear confident to self and others)

But

the weaknesses in decision making aren’t sufficiently

appreciated – and we suffer from overconfidenceSlide4

Behavioral ethicswww.kaplanwalker.com

4

Research showing how seemingly irrational factors can lead increase/decrease likelihood of unethical conduct

Antecedents

P

hilosophy rediscovering the role of psychology (

Appiah

)

“The

economist may attempt to ignore psychology but it is sheer impossibility to ignore human nature.”

If

the economist does ignore psychology, “he will force himself to make his own, and it will be bad

psychology” (JM Clark 1918)

Princeton Theological Seminary experimentSlide5

Overview of connection to C&E www.kaplanwalker.com

5

Two levels of relevance to work of C&E professionals

Why

C&E programs matter

A policy argument – on both public and private levels

How

to optimize C&E programs

Both in identifying and mitigating risksSlide6

Why the “why” matterswww.kaplanwalker.com

6

Two key constituencies don’t fully appreciate the need for strong C&E programs

Business leaders

Government officials

Both often think that good intentions alone are largely enough

Business leaders’ views can undercut key program support

Government officials’ views can undercut key incentive policies

Why there aren’t more “Morgan Stanley” cases

Behavioral ethics (“BE”) shows that achieving ethicality is hard work

C&E is not a machine that can run by itself

Requires considerable knowledge, resources, effortSlide7

An important historical footnotewww.kaplanwalker.com

7

From the history of the creation of the Federal Sentencing Guidelines for Organizations more than 20 years ago:

Early drafts had less on C&E and more on “optimal penalties”

This was based on a view of human nature as hyper-rational (

homo

economicus

)

Final draft

rejected

this approach – in favor of providing C&E guidance and incentives

The basic assumption of the FSGO (and subsequent related legal standards): businesses and people

need help

in staying honest

That is one of the lessons of BE, tooSlide8

Why the “how” matterswww.kaplanwalker.com

8

Many E&C programs don’t seem sufficiently impactful

A field largely “out of energy and out of ideas”

Without something new and helpful this malaise could get worse

BE can help in two ways

Make programs operationally stronger – by better tying program measures to how humans actually operate

Give programs credibility – by tying them to science

Note that many BE research findings confirm what is known anecdotally. (But some findings are very surprising)

However, being able to

prove

such knowledge can be invaluableSlide9

Where the how matterswww.kaplanwalker.com

9

BE

most likely to help

Risk assessment/culture

Conflicts of interest

Training/communications/certifications

Investigations/discipline

But other possibilities as well

It is up to C&E professionals to find the connections, as BE academics may not have enough information to do soSlide10

Risks: unknown victimswww.kaplanwalker.com

10

Research findings: in decision making, it is easier to disregard interests of unidentified individuals than known ones

The charitable giving experiment

C

ould help explain the relative ease with which so many individuals engage in offenses where the victims are not identifiable, e.g.,

Insider trading

Government contracting or tax fraud

Ben Franklin (proto behaviorist?): “There

is no kind of dishonesty into which otherwise good people more easily and more frequently fall than that of defrauding the

government” Slide11

Unknown victims (cont.)www.kaplanwalker.com

11

The specialty pipe case

Larger point: moral restraints as a form of “inner controls”

C&E program point:

Identify areas where inner controls likely to be weak

Fortify those with extra measures

General ones, and/or

Those addressed to the source of weakness itself

But this one area is tricky as long-term relationships don’t inhibit wrongdoing – just the opposite

The dentist study

The general counsel studySlide12

Risks: indirect actionswww.kaplanwalker.com

12

Research findings: acting

indirectly can blind individuals to ethically problematic behavior more than direct action

does

The pharma company experiment

Somewhat similar to unknown victims, but not the same

Suggests

that

companies should:

Recognize limits of inner controls in their

dealings

with third

parties – suppliers, agents, distributors,

joint-venture

partners and others

Undertake

supplemental targeted

C&E

measures to make up for the

shortfall (e.g., communications, auditing)Slide13

Risks: too much work/pressurewww.kaplanwalker.com

13

Research finding: individuals

with depleted resources tend to

have greater

risks of

engaging in unethical

conduct than do

others

Mitigation perspective:

Either reduce pressure (often difficult to do to any meaningful degree, since many sources may be external), or

Focus

extra C&E

mitigation efforts on

parts of an organization where employees are subject to greater-than-ordinary

stressSlide14

The risk of good intentionswww.kaplanwalker.com

14

Research findings

Being

cognizant of one’s ethical failings increases the likelihood of subsequently doing

good

T

he

converse is true,

too

Examples

G

ender equality acts “licenses” discriminatory ones

Being reminded of one’s humanitarian

traits

causes reductions in charitable donations

P

urchasing

“green” products

licenses ethically

questionable

behavior

U

ses in risk assessmentSlide15

Just-in-time communicationswww.kaplanwalker.com

15

Research findings: being

asked to read (and in one case, sign) an honor code shortly before being presented with the opportunity and motivation to cheat significantly decreased the incidence of such

cheating

Possible use in various compliance areas:

anti-corruption

– before interactions with government officials and third-party

intermediaries

competition

law – before meetings with competitors (e.g., at trade association events

)

insider

trading/

Reg

FD – during key transactions, before preparing earnings

reports

protection

of confidential information – when receiving such information from third parties pursuant to an

NDASlide16

Communications (cont.)www.kaplanwalker.com

16

conflicts of interest – around procurement

decisions, hiring

gifts and entertainment – many occasions

accuracy of sales/marketing – in connection with developing advertising, making

pitches

employment law – while

interviewing for jobs, conducting

performance

reviews, dealing with other terms and conditions of employment

Note: some of this already goes on, but not nearly enoughSlide17

Training/communications: leaderswww.kaplanwalker.com

17

Research findings:

T

hose

in power were not only more likely to condemn cheating in others but also more likely to engage in cheating themselves than were

others

The cookie experiment

Do executives at your company view ethics as being “for the little people”?

Use findings to train senior managers on their need for “heightened ethical awareness”

But obviously need to be delicateSlide18

Training: slippery slopeswww.kaplanwalker.com

18

Research finding

“People

are more likely to accept others’ unethical behavior when ethical degradation occurs slowly rather than in one abrupt shift

.”

(Francesca Gino and Max Bazerman)

Based

on a “what the hell

effect” (Dan

Ariely

)

A good focus for training/communications

Also relevant to investigations and disciplineSlide19

Motivated blindnesswww.kaplanwalker.com

19

Research findings: “We

often fail to notice others’ unethical behavior if it’s in our interest not to notice. This failure of oversight — called ‘motivated blindness’ — is unconscious and common.”

(Bazerman)

Underscores

the importance of the Sentencing Guidelines expectation that organizations should impose discipline on employees not only for engaging in wrongful conduct but

“for

failing to take reasonable steps to prevent or

detect” wrongdoing

by others

R

elatively

few companies do

this well

(and some don’t do at all

)Slide20

Motivated blindness: responses www.kaplanwalker.com

20

Build

the notion of supervisory accountability into

policies

– e.g., in the managers’ duties section of a code of

conduct

S

peak

forcefully to the issue in

training

and other communications for

managers

T

rain

investigators on the notion of managerial accountability and address it in the forms they use so that they are required to determine in all inquiries if a manager’s being asleep at the switch led to the violation in

question

Publicize

(in an appropriate way) that managers have in fact been disciplined for supervisory

lapses

H

ave

auditors take these requirements into account in their audits of investigative and disciplinary

recordsSlide21

Conflicts of interestwww.kaplanwalker.com

21

Research findings: disclosure

could be a cause of, rather than cure for, unethical

behavior

“Information providers

whose conflicts are not disclosed will feel morally bound to report accurately to information users, because they would consider it unfair to lie to someone who is unaware of the misalignment of incentives.

Disclosing

conflicts of interest would have the effect of removing the moral bound and providing a moral license to misreport

.”

(

Daylian

Cain, George

Loewenstein

, Don Moore)

“Disclosure

can place inappropriate pressure on the audience to heed the advice — for example, in order to avoid insinuating that the [disclosing party’s] advice has been

corrupted” (Cain)

Additional research by Christopher Koch,

Carsten

Schmidt Slide22

COI responseswww.kaplanwalker.com

22

I

mprove

the way in which disclosed COIs are addressed, with the possibilities including:

Educate those

involved as to the generally under-appreciated dangers of

COIs

Ensure

that decisions about COI waivers and COI management are made by those who are independent and possess relevant expertise (e.g., a C&E officer) – not line

managers

Have

a sufficiently rigorous COI management

process

Audit the process and report on the audits to senior management and maybe the boardSlide23

Other: the power of social normswww.kaplanwalker.com

23

“People

are more likely to comply with a social norm if they know that most other people comply

Associated with Robert

Cialdini

The tax compliance experiment

Apply to areas of discretionary compliance initiatives Slide24

Implications of BE for ethical reasoningwww.kaplanwalker.com

24

The two pre-eminent schools are

Utilitarianism

Deontology

Both are reasoning based

Third school – virtue ethics – seems to strike more deeply

Ethics (and other virtues) based on continuous and lifelong process of pursuing excellence

Thus, may be more suited for BE, which deals with deeply engrained behaviors

However, virtue ethics is also character based – and BE seems to show that character doesn’t count for muchSlide25

A related field: “Moral intuitionism”www.kaplanwalker.com

25

Jonathan

Haidt’s

six core moral dimensions

Care/harm

Fairness/cheating

Loyalty/betrayal

Authority/subversion

Sanctity/degradation

Liberty/oppression

While focus of work is on political morality, research

is useful to show how deep these reach into our moral selves

s

upports values-based C&E effort

Also suggests need to learn how the values can be risk

causingSlide26

References www.kaplanwalker.com

26

Books

Appiah

,

Experiments in Ethics

Ariely

,

The (Honest) Truth About Dishonesty

,

Predictably Irrational

Bazerman & Tenbrunsel,

Blind Spots

Haidt,

The Righteous Mind

Kahneman

,

Thinking Fast and Slow

Thaler

&

Sunstein

,

Nudge

Links to all studies referenced can be found at

www.conflictofinterestblog.com

– in posts found in the tab under “moral

hazard and bias