ABSTRACT
This chapter takes as its starting point the question of how otherwise experienced and principled lawyers can make blatantly unethical decisions. As recent research has shown, lawyers can become involved in legitimizing inhuman conduct, just as they can in perpetuating accounting fraud or hiding client scandal.1 To an outsider looking at these circumstances, it invariably appears that the lawyers involved consciously acted immorally. Within the common framework of deliberative action, we tend to see unethical behaviour as the result of conscious and controlled mental processes. While awareness is always part of our actions, this chapter challenges the per-
vasiveness of assumptions about the power of conscious processes in ethical decision-making. Drawing on a range of psychological research, it focuses on two important findings: first, that automatic mental processes are far more dominant in our thinking than most of us are aware; and second, that because we do not generally have introspective access to these processes, we infer from their results what the important factors in our decision-making must be. These findings challenge the notion that individuals can be fully aware of what influences them to act ethically or unethically. It also suggests that we need to concentrate on those conscious processes that we do know influence decision-making in deepening our understanding of how to improve ethical awareness. As this chapter argues, one of the most important cognitive processes in the
context of ethical awareness is rationalization. Not only is rationalization part of how we consciously reason about our ethical decision-making, but it also has the capacity, when used over time, to become an automatic mental process. This tendency can be increased by situational factors that encourage rationalization, and by professional and organizational justifications that mask unethical conduct. As such, rationalization is important to consider in the context of legal decisionmaking. If reasons such as ‘It is just my job’, ‘I was told to do it’ or ‘Everyone else
is doing it’ become deeply embedded in how lawyers think about their behaviour, and this thinking is reinforced by workplace or professional norms, ethical blindness can result. In particular, lawyers may not ‘see’ the moral components of their behaviour – not because they are morally uneducated or lack good intentions, but because rationalization processes remove the ethics from view.
