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Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio.

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Speaker 1: All right, Freddy, forget Kurshner. What's your bottom line? Primary

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Speaker 1: residents remaining assets? What are you nuts? Have you've forgotten Kurshner, Freddy,

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Speaker 1: it's a negotiation. See as plimine, Freddy. We're all friends here,

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Speaker 1: it's a negotiation. In the movie Intolerable Cruelty, George Clooney

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Speaker 1: plays a divorce lawyer for whom negotiations are a zero

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Speaker 1: sum game, and he's there to win the game at

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Speaker 1: all costs, certainly at the cost of honesty. While Clooney's

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Speaker 1: character is exaggerated, some lawyers do view negotiations as games

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Speaker 1: to be one adversarial contest where ethical standards are not

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Speaker 1: necessarily part of the rules. A new research study looks

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Speaker 1: at honesty among lawyers in negotiations. Joining me is the

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Speaker 1: studies author tay A Phoen, a professor at Carnegie Mail

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Speaker 1: and University's Temper School of Business. Why did you decide

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Speaker 1: to study lawyers? Tea? Lawyers in the law is an

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Speaker 1: interesting context to study honesty because lawyers, says, great tension

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Speaker 1: in deciding how honest they should be when negotiating any

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Speaker 1: other areas of their work, and specifically the tension between

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Speaker 1: client advocacy and honesty and specifically honest disclosure I think

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Speaker 1: can be really challenging for lawyers to navigate. Will you

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Speaker 1: explain what you call game framing in negotiations? So we

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Speaker 1: think of game framing as the opposite of an ethical

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Speaker 1: decision frame. Game frame of negotiation is a cognitive constrole

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Speaker 1: of negotiation as an adversarial context with arbitrary and artificial rules.

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Speaker 1: The idea here is that when you think of a

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Speaker 1: situation as a game, you generally think of it as

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Speaker 1: a competitive context the goal is to win, but also

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Speaker 1: a situation where how you behave doesn't see anything about

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Speaker 1: who you are or your character. So then negotiations don't

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Speaker 1: necessarily involve game framing. Correct. So when we enter into

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Speaker 1: a negotiation we think about negotiating, we can think of

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Speaker 1: what this situation is. We can ask ourselves what are

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Speaker 1: the norms that apply to this situation. And some people

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Speaker 1: you negotiations as a serious situation that how they act

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Speaker 1: says something about who they are. That the goal is

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Speaker 1: to solve a problem, that you're working with the other

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Speaker 1: side to solve a problem, and this has been discussed

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Speaker 1: as an integrated approach to negotiation. Others might see negotiation

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Speaker 1: very competitively, where the goal is to win. And what's

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Speaker 1: new in our work is this idea of a game

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Speaker 1: frame is not just seeing a negotiation is very competitive

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Speaker 1: as win lose, but also seeing it as a situation

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Speaker 1: where the rules are arbitrary, where the line between appropriate

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Speaker 1: inappropriate conducts is arbitrary, that the ethical stand words in

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Speaker 1: negotiation are no more binding or real than any other

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Speaker 1: social custom. And the idea is when we see a

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Speaker 1: negotiation as competitive, where you really trying to win, and

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Speaker 1: also where people might be willing to win at all costs,

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Speaker 1: that's going to set the stage potentially for dishonest behavior.

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Speaker 1: People often say they want a lawyer will be tough

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Speaker 1: and aggressive in negotiations. Is that the lawyer you're describing

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Speaker 1: who basically puts winning above everything else, above the rules,

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Speaker 1: above ethics. It can be, and certainly lawyers vary in

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Speaker 1: their approach. When I think about negotiations by lawyers or others,

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Speaker 1: I think there's certainly can be some short term advantages

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Speaker 1: of dishonesty or a competition or this very aggressive wind

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Speaker 1: lose kind of approach. But there's certainly disadvantages to that

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Speaker 1: as well. There's disadvantages in your reputation in terms of trustworthiness,

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Speaker 1: but ventially and how willing others are to work with you.

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Speaker 1: The majority of negotiations lawyers engage in their trying to

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Speaker 1: work with another party and trying to elicit concessions. If

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Speaker 1: people that you're negotiating with respect, you find you trustworthy,

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Speaker 1: think of you as generally honest, they'll be more likely

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Speaker 1: to make concessions in many cases, and you'll be better

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Speaker 1: able to have some kind of agreements that satisfy interests.

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Speaker 1: And so I think it varies a bit depending on

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Speaker 1: what type of law and the kinds of cases, but

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Speaker 1: certainly there is some prior work that suggests that lawyers

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Speaker 1: see ethics as important to success, and lawyers who take

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Speaker 1: a problem solving approach can be successful, especially if they're

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Speaker 1: able to maintain a positive reputation and build trust while

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Speaker 1: they're negotiating so they can get concessions from the other side.

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Speaker 1: What was your aim in the study you did? So?

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Speaker 1: Our aim was to advance our understanding of honesty and

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Speaker 1: highlight how there are many situations lawyers face where there's

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Speaker 1: not clear rules regarding when honest disclosure is required. And

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Speaker 1: so often when we think of honesty, we think of

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Speaker 1: lying being the opposite of it. But there's other situations

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Speaker 1: where there's much more complexity in that it's not about

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Speaker 1: avoiding lyne but what is the obligation of a lawyer

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Speaker 1: or any other negotiator to disclose information, for example, to

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Speaker 1: correct the misimpression held by the counterpart. And so we

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Speaker 1: started this line of work to understand what our lawyers

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Speaker 1: beliefs about disclosure and how willing they would be to

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Speaker 1: correct opposing counsel's misimpressions when they're not ethically obligated to

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Speaker 1: according to the OAR Association rules. For example, as part

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Speaker 1: of your study, you gave more than two hundred lawyers

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Speaker 1: a moral character exam. Tell us what you asked them. Sure, So,

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Speaker 1: there are many psychology studies that have looked at moral character,

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Speaker 1: and in my prior work, we've identified characteristics of people

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Speaker 1: who are more versus less likely to behave ethically and

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Speaker 1: so in this particular project, we looked at three broad

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Speaker 1: traits that relate to people's willingness to behave ethically and

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Speaker 1: morally responsibly. So we included several items in our survey

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Speaker 1: that look at the broad trait of honesty humility, and

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Speaker 1: so these are items that ask people to respond to

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Speaker 1: questions like I find it difficult to lie, or I

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Speaker 1: want to be famous, which would be reversed, Um, I'm

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Speaker 1: entitled to special treatment. I'd like to know how to

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Speaker 1: make lots of money in a dishonest manner? Does it

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Speaker 1: a general statement about oneself and sort of attitudes towards

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Speaker 1: lying or honesty and humility? Is that to mention? We

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Speaker 1: also ask people questions about their moral identity. Being someone

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Speaker 1: who has moral characteristics is an important part of who

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Speaker 1: I am. You know, specific characteristics outlined. And then the

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Speaker 1: scale that I think encapsulates moral character very well is

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Speaker 1: one that I developed several years ago to look at

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Speaker 1: guilt prone nous. And the idea here is that some people,

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Speaker 1: when they do something wrong or imagine doing something wrong,

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Speaker 1: are more likely to feel bad about their behavior than

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Speaker 1: are others. And if you are likely to anticipate feeling guilty, um,

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Speaker 1: that is associated with the greater sense of personal responsibility.

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Speaker 1: And I've shown in prior work that this is related

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Speaker 1: to a person's moral character and ethical behavior. So a

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Speaker 1: sample item from the guilt prone. This questionnaire is realizing

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Speaker 1: you have received too much change at a store, you

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Speaker 1: decided to keep it because the sales clerk doesn't notice.

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Speaker 1: What's the likelihood that you would feel uncomfortable about keeping

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Speaker 1: the money? And so we included fourteen items in this

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Speaker 1: moral character questionnaire and ask lawyers to respond to these questions.

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Speaker 1: What by indicating their agreement with the various statements tell

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Speaker 1: us about your findings. But we found that lawyers buried

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Speaker 1: in how they responded to these moral character questions. Overall,

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Speaker 1: lawyers who had lower levels of moral character according to

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Speaker 1: our questionnaire, were more likely to apply a game frame

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Speaker 1: to their negotiation. And also, lawyers who had rated themselves

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Speaker 1: lower in moral character were more willing to move forward

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Speaker 1: to settlement without correcting misimpression or the other way of

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Speaker 1: mentioning that is, lawyers who are higher and moral character

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Speaker 1: were more willing to be honest, to proactively disclose honest

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Speaker 1: information to correct their counterparts views, and lawyers who are

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Speaker 1: hiring moral character agreed less with the questions we asked

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Speaker 1: them about game freeming. This is an oversimplification, but if

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Speaker 1: the question is are you prone to feelings of guilt?

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Speaker 1: And someone answers yes, then are they less likely to

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Speaker 1: be a game player. Conceptually, that's the idea that when

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Speaker 1: people are asked to imagine doing something wrong, and there

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Speaker 1: ask the extent to which they would feel bad about

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Speaker 1: their behavior, the more likely they are to say that yes,

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Speaker 1: they would feel bad about this transgression they committed, the

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Speaker 1: less likely they are to view negotiations through a game frame.

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Speaker 1: Let's say a lawyer discovers this about himself for herself.

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Speaker 1: Is there a way to change your moral character or

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Speaker 1: is that something that's part of you? I see more

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Speaker 1: character similar to other aspects of a person's personality as

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Speaker 1: akin to a habit, and much like a habit, we

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Speaker 1: have choices about how we behave, but we develop certain

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Speaker 1: patterns over the courses of our lives. Sometimes these emerge

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Speaker 1: early on UM their result of different experiences. We have

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Speaker 1: things about who we are UM, and so when we're

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Speaker 1: UM under stress, when we're not thinking much about our behavior,

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Speaker 1: we can fall into our habitual patterns. But like a habit,

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Speaker 1: we can change. And so I think if a person

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Speaker 1: thought responded to a questionnaire UM and got feedback saying

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Speaker 1: that they were relatively low on moral character, may be

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Speaker 1: compared to peers. Then that would be something for them

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Speaker 1: to reflect on and they could consider whether that is

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Speaker 1: something they would want to change or is that an

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Speaker 1: accurate reflection of who they are and their beliefs um.

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Speaker 1: And so in every situation where in we have choices

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Speaker 1: about how ethically or responsibly honestly to behave and UM,

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Speaker 1: I don't think a person's moral character forces them to

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Speaker 1: behave in a certain way, but rather it's a tendency

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Speaker 1: that UM, that people have to behave in a certain way,

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Speaker 1: especially when they're not thinking about it. Did you find

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Speaker 1: any differences in the answers based on the sex or

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Speaker 1: age of the lawyer. We did not find any strong

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Speaker 1: gender differences in honest disclosure um, and I didn't necessarily

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Speaker 1: expect to, But we did find some differences with women

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Speaker 1: report to hire a moral character than men. That's consistent

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Speaker 1: with prior work. But age and experience were on where

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Speaker 1: we thought we might have seen some differences UM with

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Speaker 1: maybe more experience or older lawyers being more willing to

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Speaker 1: honestly disclose information or have differences in character. We didn't

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Speaker 1: see that. And prior work does suggest that people mature

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Speaker 1: as they get older throughout the lifespan, and we might

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Speaker 1: expect more honesty or higher moral characters people get olders,

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Speaker 1: but we didn't see any difference there. Another um questions,

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Speaker 1: and not really a surprise, but a question that we

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Speaker 1: aren't able to answer with the current data, is whether

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Speaker 1: lawyers differ in their views of game framing their willingness

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Speaker 1: to be honest according to what area they practice in.

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Speaker 1: And there's certainly prior work looking at people's tons like

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Speaker 1: management negotiation styles and how that might differ between practice areas.

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Speaker 1: So I think that would be an interesting question for

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Speaker 1: Sue in future work. Law students and young lawyers are

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Speaker 1: encouraged to think like a lawyer, to be a zealous

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Speaker 1: advocate for their clients, and our legal system itself is adversarial,

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Speaker 1: so does that training lead to seeing things through a

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Speaker 1: game frame? I think it's a great question, and it's

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Speaker 1: when we plan to study further. I've been in conversations

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Speaker 1: with law professors about this, and I think it's certainly

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Speaker 1: possible that the way law students are trained could elicit

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Speaker 1: these views of negotiation as a game to be one

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Speaker 1: where the ethical standards are fairly arbitrary, potentially, or that

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Speaker 1: how they behave doesn't reflect anything about their true character.

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Speaker 1: I don't think the law sch will necessarily trained students

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Speaker 1: that way, but there could be confusion between zealous advocacy

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Speaker 1: and quient loyalty and obligation to the justice system. There.

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Speaker 1: I think is a lot of training in law schools.

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Speaker 1: I understand it about client advocacy, and there are certainly

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Speaker 1: required courses about the rules for professional conducts, but often

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Speaker 1: when the young lawyers are faced with these situations, they

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Speaker 1: might not be fully prepared to navigate these situations. Um

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Speaker 1: and with experience, hopefully people become more adept at navigating

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Speaker 1: these tensions between honesty and advocacy. And so you know,

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Speaker 1: that's a long way of thinking. I think it's an

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Speaker 1: open question, but certainly the competitive nature of law school,

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Speaker 1: combined with a focus during law school training on client advocacy,

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Speaker 1: could make game framing more likely. You will also write

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Speaker 1: if students enter law school with high moral character and

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Speaker 1: an ethical frame of negotiation, but are later encouraged through

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Speaker 1: their law school training to adopt a game frame or

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Speaker 1: behave in ways that run counter to their own sense

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Speaker 1: of right wrong, it could lead to a mismatch, resulting

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Speaker 1: in ethical conflict. Psychological distress, emotional exhaustion, and worse. Would

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Speaker 1: you explain that for me? Further, I understand that there's

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Speaker 1: a great dissatisfaction among many lawyers in the profession, and

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Speaker 1: this has been documented. It's unclear why that is the case.

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Speaker 1: To the extent that people enter law school or enter

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Speaker 1: their professions with a certain set of values, and then

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Speaker 1: they feel that to be effective or to be successful,

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Speaker 1: they cannot act consistently with their values, I think they

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Speaker 1: can lead to distress. So I think it's an interesting

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Speaker 1: question to consider of how law students values might change

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Speaker 1: or how much tension they might feel as they enter

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Speaker 1: their careers between what they think it is required to

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Speaker 1: be successful versus what their own personal standards might be UM.

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Speaker 1: And so to the extent that there's some mismatch between

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Speaker 1: the values that are prevalent in the profession and the

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Speaker 1: norms and expectations and what people might feel going in

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Speaker 1: UM where their own personal values outside of that context,

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Speaker 1: then it could give rise to some tension or just

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Speaker 1: satisfaction or worse. Thanks for being on the show, tell you,

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Speaker 1: that's tell you. Cohen, a professor at Carnegie Mellon University,

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Speaker 1: is Tepper School of business. And that's it for this

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Speaker 1: edition of the Bloomberg Law Show. Remember you can always

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Speaker 1: get the latest legal news by listening to our Bloomberg

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Speaker 1: Law Podcast wherever you get your favorite podcasts. I'm June

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Speaker 1: Grosso and you're listening to Bloomberg