Swift IX: Is wrongdoing all in the mind?

Behavioural approaches focus on why 'good' people can do bad things. Here we analyse the Swift review through that behavioural lens

We conclude our analysis by looking at the Swift Review though a behavioural lens. When considering questionable work by lawyers, a behavioural approach does not assume the cause is lawyers behaving badly, being stupid, or susceptible to pressure from the clients.[1] Indeed it assumes, “[m]any ethical lapses result from a combination of situational pressures and all too human modes of thinking”.[2]  These combinations are legion, and the Swift Review may provide many examples.

The first of these weaknesses concerns the lawyer’s relationship with the client and more specifically, client loyalty. Client loyalty runs deep with professionals even in circumstances demanding independence. Yet professionals, including lawyers, are demonstrably and subconsciously influenced towards client interests when making professional judgements in ways which undermine the quality of that judgement.[3] They overestimate the likelihood and magnitude of client success. Size of the client firm and client identity can also be important in undermining their objectivity.

Confirmation bias, recalling and relying on information consistent with a preferred solution may be part of the explanation here.[4] Lawyers like any decision maker can fall prey to engaging in confirmatory information processing, where the lens of existing beliefs shapes the consideration of new information.[5] Thus, the preliminary instructions given to those conducting any review together with the initial tranche of information may well ‘bend’ the judgments made about information that is provided further down the line. Dual-processing, the two qualitatively different modes of human information processing, also plays a part.

As Langevoort explains, lawyer-decision making is often, “driven by intuition and feelings as much (or more) than explicit deductive or inductive reasoning,” and that there is, “a motivational goal being pursued, a preference in favor of the client's stated intentions to which the lawyer's mind is trying to work its way.”[6] Langevoort talks about this as a way of getting comfortable with the problematic behaviour of clients, with lawyers engaging, “in cognitive co-dependency rather than professional independence.” Lawyers depend on information from the client, as we can see well in this case, but they also tend to consider that information, and reflect it back in ways favourable to the client. This effect of the ‘client favourable lens’ is also influenced by the extent of the duration of the professional-client relationship.[7] Similarly, the commercial context favours the optimistic construal of uncertainty because, “Being positive facilitates motivation, cooperation, and trust from others.”[8] This is similar to the safe pair of hands argument made earlier in this series of blogs; the safe pair of hands can be relied on to be helpful in their interpretation of matters for the client; is constructive in their approach; and, therefore worth listening to and paying for.

It is worth emphasising these ways of thinking are partly inadvertent, borne of unconscious, automatic processing before one considers the more conscious desires of lawyers to protect and maintain their reputation and relationship with the client. The idea that ‘Horizon is not systemically flawed’ and the downplaying of the practical consequences of remote access may be examples of this phenomena.

Another pertinent point is lawyerly caution when dealing with controversy, especially controversy that they might need to suggest their client is responsible for. Mishandling this threatens their reputation and relationship with the client. Moreover, “Lawyers tend to shy away from labelling behavior as ‘misconduct,’ and are seemingly more comfortable discussing issues involving ‘gray areas’ or ‘incivility.’”[9] We see evidence of this in the way the misleading of Parliament, and the omissions in Jenkins’ evidence is dealt with. This has the advantage of reducing the sense of moral intensity around these findings. If Swift had more overtly considered the possibility that lies had been told about the remote access their conclusions might well have been different, and not just in tenor. The implications of that possibility for instance should have been considered when weighing Richard Roll’s evidence.

The perceived moral intensity of a decision (“the nature, magnitude, probability, and timing of any potential consequences”) is important.[10]  Proximity here is important – if victims remain abstract, it is less likely that emotions such as sympathy are engaged; it is cognitively easier to take unpalatable decisions if the victims concerned stay ‘unknown.’[11] The moral intensity of the judgements formed in Swift are distanced from the fate of the SPMs: a report which had begun by speaking to them, understanding and emphasising the impact of Post Office decisions on their lives might have come to somewhat different conclusion. It is notable that the Williams’ Inquiry has taken a very different approach to Swift for good reasons, beyond the presentational.

Similarly, through looking at the investigation through legal spectacles important limits are placed on the judgements formed. In one sense this can appear fairer, the standards applied are legal standards veneered in objectivity. The approach is also narrower. The task can shift from looking at the justice of a situation to justifying a response on narrowly juridical grounds.

Some suggest this degrades lawyerly judgement on ethicality, “lawyers' expertise at parsing rules, paying attention to exceptions and loopholes, interpreting text, and making arguments on both sides of an issue, while commendable in many ways, can also be problematic in this context.”[12] It can reduce right and wrong to a verbal game, a kind of arbitrariness, especially when the facts are uncertain. The agency arguments, the sterile focus on what constitutes the Horizon system, and the ways in which bullying into guilty pleas and disclosure issues are reframed as matters of expert criminal law judgment can all be seen as ways of shifting the issues towards a position helpful to the Post Office.

Some of those legal framings of issues carry their own freight. Langevoort’s work looks at banks and how banks disdained “any sense that they owed special fiduciary-like obligations to their institutional customers- [as] a way of distancing themselves so as to rationalize hyper-competitive behavior toward the customers, too."[13] Similar functions are played by the agency argument, certainly as advanced in the Bates case, and perhaps in the evaluation of evidence in the Swift Review. The agency argument was an intellectual tool for shifting responsibility, and therefore blame, onto the victims of the Horizon Scandal.

The Swift Review’s legal framing, and lack of particular criminal law expertise, also leaves ultimate responsibility for the biggest concerns expressed in the report to someone else (and someone we argue probably lacks the necessary independence to deal with them). It passes the parcel. This has the further advantage of diffusing responsibility for what happens next.

A final point worth emphasising is the vulnerability of all of us to the problem of social proof: a willingness to rely heavily on the apparent perceptions of others when forming judgements on ‘the facts’ of a situation. Judgments on false accounting, the nature of the relationship as an agency one, the systemic fitness of the computer software, and the assertion that the handling of prosecution disclosure seemed reasonable, might all be examples of that occurring here. It may have been accompanied by Groupthink, "the strong tendency to ignore concerns or risks that are inconsistent with a group's preferred interpretation of the situation it faces.”[14] In this mode of thinking, members of the group develop shared beliefs and norms which hinder critical thinking, the very thinking required in a review of this kind. Again the interpretation of Roll’s evidence is an example.

We see occasional signs of the Swift authors’ resisting groupthink, in relation to the claims that pleading theft and false accounting together may have been done improperly for instance, but groupthink also appears to be one mechanism by which concerns about remote access are downplayed or the belief that false accounting (and therefore dishonesty was widespread) came to form in the minds of the Swift Review.

Whether what we have seen in the handling of the review is merely poor decision-making or something more sinister is something that may be explored in the Inquiry. There are certainly substantial questions beyond the Review’s authors about the instructions given to the Review, its evidence base, and the way its findings were managed for dissemination. For now it is worth learning more about how forensic judgement and decision-making can be undermined by particular frailties.

Blessed by hindsight it is easy to say the review team made mistakes, as I have. I do not think, though, concerns about hindsight bias should soften the criticisms much. It would be regrettable in the extreme if we just shrugged our shoulders and say even the best make mistakes or it’s the process, not the person. Here the mistakes are sometimes concerning in size and number but more importantly still the consequences of those mistakes were important. The report was used to, and in some ways contributed to, a cover-up of systemic and operational weakness and a failure to face up to a lack of honesty in the organisation. People bear responsibility for the processes and the judgements they take within them, and those judgements were flawed. There is no room for complacency when so many people’s lives were blighted.

Protecting against such weaknesses in the future is a harder task. It is a key task for those managing legal work, their own or others. Independence is much more than a word, and is not guaranteed by instructing a lawyer with a practising certificate, even one with acres of experience. Deeper thought and more sophisticated practice is needed to make independent investigations better.

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[1] Jennifer K Robbennolt and Jean R Sternlight, ‘Behavioral Legal Ethics’ (2013) 45 Arizona State Law Journal 1107.

[2] ibid.

[3] Linda Babcock and others, ‘Biased Judgments of Fairness in Bargaining’ [1995] The American Economic Review 1337; Don A Moore, Lloyd Tanlu and Max H Bazerman, ‘Conflict of Interest and the Intrusion of Bias’ (2010) 5 Judgment and Decision Making 37; Don A Moore and others, Auditor Independence, Conflict of Interest, and the Unconscious Intrusion of Bias (Citeseer 2003) <http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.9.2829&rep=rep1&type=pdf> accessed 9 March 2014; Ronit Dinovitzer, Hugh P Gunz and Sally P Gunz, ‘Reconsidering Lawyer Autonomy: The Nexus Between Firm, Lawyer, and Client in Large Commercial Practice’ (2014) 51 American Business Law Journal 661.

[4] Perlman (n 3).

[5] Don A Moore and George Loewenstein, ‘Self-Interest, Automaticity, and the Psychology of Conflict of Interest’ (2004) 17 Social Justice Research 189.

[6] Langevoort (n 9).

[7] ‘Conflicts Of Interest And The Case Of Auditor Independence: Moral Seduction And Strategic Issue Cycling | Academy of Management Review’ <https://journals.aom.org/doi/abs/10.5465/amr.2006.19379621> accessed 26 September 2022.

[8] Langevoort (n 9).

[9] Robbennolt and Sternlight (n 48).

[10] ibid.

[11] Moore and Loewenstein (n 53).

[12] Robbennolt and Sternlight (n 48).

[13] Langevoort (n 9).

[14] Robbennolt and Sternlight (n 48).