THIS IS YOUR BRAIN ON ETHICS: ETHICS FRONTIERS ON THE ... · Expert at experts – examined and...

THIS IS YOUR BRAIN ON ETHICS: ETHICS FRONTIERS ON THE NEUROSCIENCE RANGE.

KEVIN LEAHY, West Lake Hills Knowledge Advocate

State Bar of Texas 27TH ANNUAL

ADVANCED CIVIL APPELLATE PRACTICE COURSE September 12–13, 2013

Austin

CHAPTER 7

KEVIN LAWRENCE LEAHY, J.D

Founder, Knowledge Advocate, LLC Attorney, private practice

(512) 698-6524; [email protected]

Current Work – Business Owner; Adjunct Professor; Attorney

♦ Knowledge Advocate, LLC – business consulting company that improves worker performance to leverage management excellence and drive bottom line results

Coach – offers one-on-one management, leadership, and career development services Advisor – provides strategic advice for executives; conducts pre-hire, performance and exit interviews Facilitator – closes gaps in team alignment and reveals ways to improve worker performance Manager – manages the flow of corporate information to leverage business intelligence Instructor – teaches the Well Talk® communication system; lead trainer for the Mind Athlete™ program Brain trainer – enhances control over brain wiring that optimizes work performance Strengths – expert analytical skills, “no where near the box” problem solving ability, passionate energy ♦ Adjunct Professor, UT Austin School of Law – prepares lawyers for trial

♦ Lawyer, private practice – represents brain injured plaintiffs

Prior Legal Experience

♦ Equity partner, Brown McCarroll, LLP – through 2010 Expert at experts – examined and prepared 60+ experts and created a pool of nationally known experts Builder – main contributor to a web-based knowledge system indexing 100 years of industry know-how Leader – led and managed team responsible for multi-million dollar medical strategy nationwide Champion – refuses to let legal clients down and his participation in 11 jury defense verdicts proves it Strengths – persistent, intellectually disciplined, keenly perceptive, story teller, team player

Education – Economics; Law; Business

♦ 1993 UCLA School of Law – Juris Doctor ♦ 1990 Duke University – Liberal Arts, economics, cum laude ♦ 2010 UT, Austin, Executive Education – Open Enrollment Program Certification

Professional and Community Interests

Leahy litigates complex scientific and medical issues. He earned his clients’ gratitude due to repeated success in the courtroom. As a trial lawyer he developed a keen analytical rigueur, focused research ability, and his trial experience fueled a relentless hunt for the right story. In 2007, Leahy expanded his services beyond the courtroom and began offering non-legal business consults. That work reveals client blind spots with laser sharp focus that helps deliver bottom line results for busy executives. Today, Leahy wears several hats: lawyer for brain injured clients; consultant on culture and change management projects; advisor and coach for executives including private practice attorneys; and brain trainer for those seeking to improve their brain performance. He is a national and state conference speaker, published author on topics including patent law, attorney conduct, and legal liabilities, and contributing author of an Oxford University Press compendium on tort litigation history. For fun, he leads wine tastings for non-profit organizations, serves on the Texas State Communications Studies Advisory Council, and is on the Board of Directors for Horse Link, a nonprofit organization dedicated to humanely linking human and horse welfare together for mutual benefit.

This is Your Brain on Ethics: Ethics Frontiers on the Neuroscience Range. Chapter 7

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................................................... 1 Cowboy wisdom ...................................................................................................................................................... 3 When brains go bad ................................................................................................................................................. 3 Why we need help ................................................................................................................................................... 4 “My brain made me do it” ....................................................................................................................................... 4 This is your brain on ethics in Utah ........................................................................................................................ 4 This is your brain on ethics in Iowa ........................................................................................................................ 5 Legal implications ................................................................................................................................................... 5 Scientific grounding ................................................................................................................................................ 5 The marshmallow test ............................................................................................................................................. 6 The Memory Bias Boys ........................................................................................................................................... 6 The Cognitive Bias Gang ........................................................................................................................................ 7 A note about the ethics rules ................................................................................................................................... 7 Keeping the peace ................................................................................................................................................... 8

CONCLUSION ............................................................................................................................................................... 9


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THIS IS YOUR BRAIN ON ETHICS: ETHICS FRONTIERS ON THE NEUROSCIENCE RANGE. INTRODUCTION

If our brains were pioneer towns out on the range, they’d be self sufficient, suspicious of authority, and okay with kowtowing to outlaw gangs if that would reduce trouble. In other words brains, like frontier settlements, do fine by themselves and are reluctant to place too much faith in a conscious mind that proclaims itself as lawgiver. Brains also tolerate automatic patterns, such as cognitive biases and memory biases, which can swoop in like bandits from the hills to wreak havoc on reason and rational thinking.

We can, in other words, count on brains getting a few things done: (1) breathing; (2) protection (of the ego mostly); (3) ethics assumptions; (4) sex; and (5) sleep. If they miss the mark on one, lack of effort is generally not the culprit. The point is, we have some intense programming initiatives up in our brains that organize themselves rather organically, much like a frontier outpost would have done before justice came to town.

The drive toward self-sufficiency and suspicion unfortunately generates unconscious barriers that can get in the way of our professional ethics. Because our metaphoric towns can’t solve all squabbles on their own, you (meaning the conscious part of your brain that can read this text right now and think abstractly about past and future) must regulate and enforce the laws whether they are personal, cultural, or professional. Our State Bar’s Disciplinary Rules of Conduct (DRCs) are a great example: they are human made laws that the nonconscious brain is neither designed nor set up to handle on its own.1

What does this imply? Well, to keep the peace and avoid tragic consequences, your conscious mind must act as sheriff, asserting its authority to influence and at times control the nonconscious brain when necessary.

1 Should you wish to test this point, ask your brain for a reckoning of one of the DRCs, or, request that it offer you the exact language for inspection. Not available? Not surprised: the chances that the nonconscious brain will intuit and recollect the exact letters of the DRCs is slim to none based on its design and utility features (i.e., in the scheme of things it doesn’t make much sense for the brain to remember the DRCs). This streamline approach, of course, runs afoul of good sense when your professional livelihood is at stake due to an ethical dilemma like production of bad documents or woodshedding of a witness. At times like these, you may find that your nonconscious brain is in conflict with your conscious one regarding which ethics to follow; herein lies the rub of this paper.

It is your brain’s myriad of roles and responsibilities, for example to love or protect or focus on solutions or problems, which combine together to form how you think and feel. Each separate expression of your brain’s complex patterns represents just one of the many “townspeople” that inhabit the village. So while you might wish for one big, happy gathering of folks living in Utopia-like conditions, in reality, the truth is profoundly different for most brains.2

Stepping aside from the image of tumbleweeds and dirt roads for a moment, this paper is about your brain and ethics. In it I share thoughts about how brains get things done either with or without you. We are not, after all, always present when the brain takes action: think of your absent-minded moments; the ride back and forth from work; and the bulk of your sleep cycle as examples of the brain doing just fine on its own. Here, I explore the variety of ways in which your nonconscious brain impacts your obligations under our profession’s Rules of Conduct, often setting things in motion before you consciously approve of them. This paper makes suggestions about how to check in on your nonconscious thought patterns and notice when you may need help if a genuine ethical dilemma arises.

To fill out the observations and explorations here, I point out insights developed by cutting edge brain scientists. If your skeptical senses begin to tingle, not to worry; I’ll place less emphasis on the ultimate conclusions these scientists draw and instead stick to the interesting trends their work has developed over time. I do this because much of neuroscience remains hotly debated and there exists a lack of qualified evidence to satisfy the professionally trained, skeptical reader such as yourself.

Welcome to neuroscience’s Wild Wild West, where you can learn that an electromagnetic wand has the capacity to waive your ethics without consent,3 or that ultrasound vibrations can shift your mood away from chronic pain in an instant, thereby leaving you with more conscious attention to focus on proper

2 Want proof of these disparate factions? You Tube this: “Split Brain with one half atheist and one half theist.” Here’s the link: https://www.youtube.com/watch?v=PFJPtVRlI64. 3 Young, L., Camprodon, J., Hauser, M., Pascual-Leone, A., & Saxe, R., 2010. “Disruption of the right temporoparietal junction with transcranial magnetic stimulation reduces the role of beliefs in moral judgments,” Proceedings of the National Academy of Sciences, USA, 107, 6753–6758. The “wand” is actually a transcranial magnetic stimulation device, and its power to disrupt your ethics is the tip of an intimidating iceberg of potentialities. You will not, as an example, see this author near one of these devices any time soon.


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ethical conduct.4 Never before, in other words, have so many brain-based discoveries been as relatively unknown by so many, nor subject to so much excitement, interpretation, and manipulation when people finally stumble upon them.

In this vain, feel free to have a sit by the brain science campfire as we review a few tales about your brain and ethics. By paper’s end, I hope you agree that we all deserve to better understand the inner workings of our brains. That way, we can better manage our ethics, among other things. I’ll place particular emphasis on two groups: the infamous Cognitive Bias Gang 5 and their cohorts in crime, the Memory Bias Boys.6 With these rogues in mind, or should I say “in brain,” I offer this piece of wisdom: even sheriffs and deputies deserve help from a posse from time to time. In terms of our brains, the posse arrives as ethically sound advice from colleagues and confidants who can be tremendous assets as we navigate through tough ethical dilemmas.

Now, lest you hasten prematurely out onto the neuroscience range, embracing whole hog my cow town metaphor, know that throughout history many other helpful metaphors have shed light on the relationship between the conscious and nonconscious brain. In India, they favored an elephant (nonconscious brain) and his driver (conscious brain, or mind), Sigmund Freud chose horse and rider, and others have used bicycle and bicyclist, computer and programmer, 4 Hameroff, S., Trakas, M., Duffield, C., Annabi, E., Bagambhrini Gerace, M., et al., 2013. “Transcranial Ultrasound (TUS) effects on mental states: A pilot study,” Brain Stim 6:409-15. This study does not address whether the brain takes advantage of a reduction in pain by increasing its ethical vigilance. That comment is instead poetic license in keeping with the theme of this paper. 5 The “Cognitive Bias Gang” refers to a series of brain patterns, known as cognitive biases, which compel us to draw inferences and conclusions without a thorough vetting. They are short formulas the brain relies upon to save time and energy but they can induce significant mistakes, including ethics blunders. For an excellent review of the laboratory proof, look to Nobel Laureate Daniel Kahneman’s excellent opus, Thinking, Fast and Slow (Farrar, Straus and Giroux, 2011), a book about the frailties of both the nonconscious brain, which he calls System 1, and the conscious mind, which he terms System 2. 6 The “Memory Bias Boys” refer to additional formulas the brain invokes to manage and maintain our memory, which researchers term memory biases. Though dated, take a look at Daniel Schacter’s book, The Seven Sins of Memory (Houghton Mifflin Harcourt, 2001), to better understand how memory biases impact our lives. Preeminent researcher, Elizabeth Loftus, offers insights into the pioneering work of an expert memory witness here: Loftus, E., 1986. “Ten Years in the Life of an Expert Witness,” 10 LAW & HUM. BEHAV. 241, 254-55.

and a host of other comparisons. Scientist Paul MacLean, you may recall, famously split the brain in three: a reptile brain (brain stem); a monkey brain (limbic areas); and a human-most part too (cerebral cortex).

The Office of the Attorney General of Texas recently grapple with the idea of mind versus brain by way of an image of a tiny Sumo wrestler (conscious mind) facing his severely mismatched adversary— a gigantic mountain of a man (nonconscious brain) identified as Yokozuna, or grand champion.7 Mismatch is a fair description of what can happen when we face up to our brains, and I elaborate on this point further below. It is that mismatch, particularly in the moment, which demands our attention and promotes alternative ways of considering our ethics. For example, we can practice a form of “legal mindfulness” when ethics are at issue and also remember to seek help when doubt persists.

The metaphors I mention all have something in common: the nonconscious part of our brains runs just fine with little if any need for intervention from our conscious mind. Furthermore, the brain can get surly when we try to exert control over it. Think for a moment of the bumbling efforts of Barney Fife on the Andy Griffith Show, versus say the more reasoned approach of Andy, the quintessential sheriff who kept calm and cool even when mayhem struck.8

This paper concludes that careful, mindful consideration is the better part of valor when it comes to determining which particular course of ethical action is appropriate given a set of circumstances. Throughout, I explore how you may maintain your ethics notwithstanding your brain’s automatic programming and biased influences. The metaphor of a pioneer town will help us represent how the brain’s conscious and unconscious aspects interact with your ethical obligations. Welcome to the exciting frontier of morals, ethics, and “oh mys” as we uncover the obvious and not-so obvious aspects of how our brains work. 7 Earlier this year, the author presented the OAG with a talk titled, Your Brain, Ethics, and Zealous Advocacy. During it the nuances of maintaining ethics and zealous advocacy simultaneously were discussed, and indeed, the image of a giant Sumo was involved. 8 For the younger reader, the Andy Griffith Show ran from 1960 through 1968 and was a popular rerun series thereafter. It depicted an idyllic town where the sheriff was more of a regulator than enforcer. At times, however, sheriff Andy took action to end some brewing trouble or another. It was his deputy sheriff, Barney Fife, who offered much of the show’s comic relief by inserting himself into all sorts of situations and usually, bringing about more trouble than he helped solve.


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Cowboy wisdom To further develop some aspects of the brain/mind

relationship and also to milk the Wild West theme a bit further, let’s consider for a moment cowboys and cowgirls and their trusty steeds as alternative metaphors. Doing so, we can warm the kettle of insight with some choice cowboy quotes:

• Nicholas Evans, author of the Horse Whisperer: "It's a lot like nuts and bolts - if the rider’s nuts, the horse bolts";

• Will Rogers: "Whoever said a horse was dumb, was dumb”;

• W.C. Fields: "Horse sense is the thing a horse has which keeps it from betting on people";

• Mark Twain: “I can always tell which is the front end of a horse, but beyond that, my art is not above the ordinary”;

• Pat Parelli, famous horse trainer: “A horse doesn't care how much you know, until he knows how much you care.”

Now let’s “stirrup up” the embers a bit with some good ol’ cowboy wisdom:

• The hardest thing about learning to ride is the ground;

• If you climb in the saddle, be ready for the ride;

• There are only two emotions that belong in the saddle: one is a sense of humor; and the other is patience;

• A poor horse rider blames his or her horse; • If your horse says no you either asked the

wrong question or you asked the question wrong;

• You can judge a man or woman by the horse he or she rides;

• To get ahead in life, you've gotta learn to saddle your own horse;

• It's the difficult horses that have the most to teach you;

• A stubborn horse walks behind you, an impatient horse walks in front of you, but a noble companion walks beside you;

• When in doubt, let your horse do the thinking;

• Life is too short; ride your best horse first. The cowboy and cowgirl detours complete, we can now get back to our townships and rely on the town/sheriff metaphor to help explain what’s happening with your brain on ethics. I’ll focus from here on out on this decidedly different angle by

keeping the brain and its ornery ways foremost in mind. When brains go bad

Setting aside equivocal science, let’s establish at the outset the grave consequences that can result in the wake of a brain’s unchecked impulses or desires. A particularly tragic and uniquely Texas example is the case of mass murderer, Charles Whitman.9 On the day he ascended the UT Tower on the campus of the University of Texas, Austin in August, 1966, rifle in hand and irrational rage in his heart, he left a note. It was in that note that he left a command. And it is that command that hints at Whitman’s own firsthand knowledge that things were not at all right in his head. As his story unfolds, you may conclude that Whitman’s brain may have ultimately been responsible for his deadly demise and for the deaths of so many innocent people that fated day.

In other words, Whitman’s brain may have made him do it.10 Here’s why: a special report concluded that he suffered from a glioblastoma, a cancerous tumor that forms in the brain. In Whitman’s case, the tumor was found in an area that could have impinged his amygdala, which is a cluster of brain cells involved in the brain’s fear and anger networks. It’s speculative and plausible that the excessive growth of cancer cells threw Whitman’s notions of right and wrong completely off balance. That unchecked growth may well have resulted in the stone cold, premeditated activities of the killer that terrible day. However, at this point no authority can definitely prove this fact.

Whitman’s final note requested that his brain be autopsied, as he felt certain a mental shift beyond his control had taken place. His high IQ and prior achievements, such as attaining Eagle Scout, contradicted his outrageously irrational actions.11 The results of the autopsy confirmed the presence of the brain tumor previously mentioned and though we will likely never know the causal connections involved, abnormal brain findings are trending as a correlated source of criminal and irrational behavior around the globe. This article explores how more mild occurrences in our own brains can impact our abilities to maintain sound ethical conduct, particularly since our brains seem to have a mind of their own at times.

9 “The Madman in the Tower,” Time, Aug. 12, 1966. 10 Press Conference Notes, Report to the Governor, September 8, 1966. Available online: http://alt.cimedia.com/statesman/specialreports/whitman/findings.pdf. 11 Ibid., “The Madman in the Tower,” Time.


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Why we need help We are far better off swapping each other’s

assessment of situations, particularly those of your best, most ethical relations, than we are slugging through ethical dilemmas on our own. This paper explains why this is so in the context of the scientific evidence. That said, much of the science conveyed in this paper might not pass muster during a Daubert challenge since it is new and subject to a high a rate of error as well as difficulties with repeatability. In truth, brain science is hot, crowded with opinions, and lacking probabilities. That said, stay tuned as the techniques and tools for inspection improve daily.

Because of the inevitable development of more precise ways to understand the inner workings of our brains, the future portends to be an exciting and at times frightening place filled with neurogadgets and neuroassistants that will make your wildest dreams come true. Until those times come to pass, however, the regulation and maintenance of proper behavior remains our conscious responsibility. We are the law, in other words, and count on our townsfolk getting unruly when food is scarce, rewards are in sight, or when they seek to avoid pain. It is during those times that the mettle of a great sheriff shines bright.

The scientific data uncovered to date supports the conclusion that we have a most tenuous relationship with our brains. Think bucking bronco versus playground pony. Or in keeping with the frontier town analogy, consider the brain as a town filled with independent minded pioneer folk that don’t take kindly to strangers and who get set in their ways, favor their cliques, and adopt provincial theories to explain the plausible before the probable. Such townsfolk keep their own counsel and maintain fairly narrow ideas about what right and wrong are. Convincing your brain to follow an external ethics code, therefore, can be a complex negotiation for any serious sheriff with a badge to uphold.

As with most things human, while any individual can be above average, sporting impeccable morals and ethics with not a scent of bias about him or her, epidemiologically-speaking we exhibit left brained and right brain tendencies and suffer the world over from severe biases of cognition and memory. Scale the numbers to a large enough cohort and we come to find out that most of us have large swaths of our day where we utterly lack conscious control over what we do and fall pray to all sorts of cognitive problems.

So lets get practical and read the smoke signals in the form of trends that continue to show us ways to better understand our relationship with our brains. The compounding evidence teaches that we have an obligation to inspect our brains proclivities carefully should we choose to maintain a pristine level of ethics. The purpose of this paper, in short, is to show you that the instincts of your brain can get in the way of your

optimal ethical decisions. I also highlight in here things to consider given trends that demonstrate our brains partake in risky behavior that can lead to ethics violations. The conclusion of this paper is that you can (1) follow a few smart steps to ensure that you retain your ethics and (2) check in with colleagues should the slightest ethical doubt remain after your own mindful inspection. “My brain made me do it”

An ounce of prevention is clearly worth a pound of cure when it comes to managing our brains’ affairs. While the defense that brains made the guilty do things is gaining steam, it is still not a winner in the courtroom or on ethics review boards. You may remember the infamous Twinkie defense from the trial of Dan White, who murdered San Francisco City Supervisor Harvey Milk and Mayor George Moscone. White argued that sugar-loaded snacks contributed to his depression, which in turn he claimed, caused a severe enough brain state to bring about his criminal conduct. That defense did not work since White was found guilty of his crimes.

Not surprisingly, the “my brain made me do it” defense has also been asserted as a mitigating factor to ethics violations. To date, that approach also appears to be failing: defective brain wiring is still no excuse for failing to meet your ethical obligations. Two recent cases lead the way in this area. This is your brain on ethics in Utah

The first case, out of Utah, involves the misdeeds of Clayne Corey, an attorney who essentially claimed his brain made him commit ethical violations relating to absconding with his client’s money.12 The Supreme Court of Utah reviewed his case and found his arguments for avoiding disbarment unconvincing. As a result, it reversed the lower court’s decision to suspend his license and disbarred him, concluding: “we hold that Corey’s mental impairment does not represent truly compelling mitigation evidence sufficient to rebut the presumption of disbarment.”

The gist of the defense was that Corey developed a non-malignant cyst in his brain that eventually required removal. He argued that it was his brain, and specifically the influence of this cyst, that brought him to his misconduct. The court disagreed, though it offered this observation: “We are not closing the door on the possibility that in a future case mental health issues might rise to the level of ‘truly compelling’ mitigation. If an attorney with a sparkling record of

12 In the Matter of the Discipline of Clayne I. Corey, 2012 UT 21; opinion available online here: http://lawyersusaonline.com/wp-files/pdfs-4/in-re-discipline-of-corey.pdf.


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professionalism developed a mid-career brain tumor, engaged in out-of character misconduct thereafter, and returned to his sterling past self after treatment, that could certainly sustain a finding of compelling mitigation sufficient to rebut a presumption of disbarment.” The trend into the future, in other words, may be to offer more leniencies to a brain-based defense if the situation warrants it. This is your brain on ethics in Iowa

The other case, hailing from Iowa, involved a license suspension that was upheld on appeal. The Supreme Court of Iowa reviewed the case of John Netti, Jr., who claimed he was not responsible for numerous ethical violations and further, that treatment for a brain tumor should mitigate against any adverse judgment. 13 The Iowa grievance board identified the following allegations in their complaint: trust account violations; fee agreement misconduct; failure to satisfy matters with settlement proceeds; conflict of interest; the unauthorized practice of law; and generally, dishonesty, incompetence, and neglect.

The court upheld the lower court’s finding that Netti violated numerous ethics rules and suspended his license for a period of two years. The Court considered and rejected a request for mitigating circumstances due to the impact of treatment he was undergoing for a brain tumor. It did not find this claim for mitigation compelling based on the nature of the violations committed. Legal implications

While the “brain made me do it” defense is a loser so far, it is not as far-fetched as we might believe. It seems clear that the brain can set in motion criminal activities without knowledge or resistance from the conscious mind. Here is one scholar’s thoughts on point: “Research has demonstrated that individuals with frontal lobe disorder and/or limbic system damage still know ‘right’ from ‘wrong’ and still retain the ability to form the requisite intent prior to committing a particular criminal offense. However, their judgment and reasoning are so impaired such that their knowledge that a certain act is wrongful does not prevent them from doing it. This inability to control their actions often leads to violent or aggressive behavior, including ‘rage’ attacks, creating a biological blueprint for criminal behavior.”14 Some individuals, in other words, truly are not capable of preventing the actions they take, despite their conscious awareness

13 Iowa Supreme Ct. Att'y Disciplinary Bd. v. Netti, 797 N.W.2d 591, 604. (Iowa 2011). 14 Lamparello, A., 2010. “Using cognitive neuroscience to predict future dangerousness, Columbia Human Rights Law Review, 42:481, p. 482.

and desire to stop the conduct. This quote harkens back to the note left behind by Whitman and foreshadows the famous Walter Mischel marshmallow test self-control experiments detailed below. Control matters and our conscious minds often exert far less of it than we might prefer.

Sympathetic to this awareness, the American Judges Association produced a pamphlet called Minding the Court that seeks to address some of the downsides of how brain wiring can impact the judiciary’s decision-making abilities.15 That document lists out numerous examples of how decisions are influenced by bias and fatigue. A significant conclusion in the paper is that judges deserve to become more mindful of their decisions by applying techniques and exercises that challenge their brain. In the process, doing so reduces the impact of the brain’s automatic decision-making processes. Scientific grounding

What’s going on with such grave legal implications, you might ask? Authorities have been for some time questioning the status quo when it comes to things like free will, agency, and culpability. The impact of brain science on our legal system’s long-standing precedents was presaged by the groundbreaking work of researcher Benjamin Libet from the 1960s forward.16 His studies involved testing the readiness potentials in our brains just prior to a so-called voluntary movement. It turns out that he consistently showed there is a lag of about 300 milliseconds or more between the start of the readiness potential in the brain and the eventual conscious awareness of a decision to move by the test subject. In other words, our brains ready us to move before we are aware of our intent to do so. This of course begs the question: who’s in charge, the sheriff, the townspeople, or some rogue outlaws?

Libet’s findings sent reverberations far afield and not just within the brain science community. Here were repeatable tests demonstrating that free will wasn’t so free after all. In other words, it’s not so much about free will from a consciousness perspective as it is about “free won’t.” While Libet’s work involved a very specific finding with respect to physical movement, his research has led the way to far more sophisticated

15 P. Casey, K. Burke, S. Leben, Minding The Court, A White Paper of the American Judges Association, online here: aja.ncsc.dni.us/pdfs/AJA%20White%20Paper%2010-1-2012.pdf. 16 Libet, B., Gleason, C.A., Wright, E.W., Pearl, D.K., 1983. “Time of conscious intention to act in relation to onset of cerebral activity (readiness-potential). The unconscious initiation of a freely voluntary act.” Brain; J. Neurol. 106 (Pt. 3), 623–642.


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studies into the nature and extent of our conscious intentions to act versus our urges and instincts that form the base line for how we travel through life.17

Libet’s legacy pushes the borders of what we think of as maintaining sovereign control over our actions. If our decisions are already decided for us before we are consciously aware of them, what value does consciousness serve? Does an officer of the peace make any difference? While questions like these are the kick starter for reams of research and entire days at academic conferences, for our purposes suffice to say that maintaining your ethics involves either a nonconscious brain that adopts the ethics code of conduct verbatim, or, a conscious mind that continually monitors actions and when required, lays down the law. The marshmallow test

Libet’s conscious intention research finds a compliment in the research of experimental psychologist Walter Mischel.18 In the 1970s, Mischel and his team ran a series of experiments that have become known by the popular name of “the marshmallow test.” In the experiments, young test subjects were placed in a room and asked to resist certain items, such as marshmallows, until the lab assistant returned. During the interim, they could either eat the marshmallow that was placed before them or wait for the assistant to return. By waiting, they were rewarded with another marshmallow.

No surprise, some children fared far better during the waiting period than others and earned an additional reward. Those same children, on perspective follow-up studies, have ended up being more successful in life by a variety of different measures 40 years later.19 This line of research, together with Libet’s work, makes it clear that taking our ethics seriously by attempting to exert control over our brains is tough business. In this sense, the kids who could not wait behaved a bit like clumsy Barney Fife from the Andy Griffith Show, always thinking he is in more control than he really is, and all too often getting in over his head with no ability to truly impact what will happen next.

17 E.g., Haynes, J.D., Sakai, K., Rees, G., Gilbert, S., Frith, C. & Passingham, D., 2007. “Reading hidden intentions in the human brain.” Current Biology 17, 323-328 (noting delay between brain activity and awareness during cognitive, as opposed to move-oriented, tasks). 18 Mischel, W., Ebbesen, E.B., Zeiss, A., 1972. "Cognitive and attentional mechanisms in delay of gratification.". Journal of Personality and Social Psychology 21 (2): 204–218. 19 Metcalfe, J., Mischel, W., 1999. “A hot/cool-system analysis of delay of gratification: dynamics of willpower.” Psychol. Rev. 106: 3–19.

The Memory Bias Boys “Of all the things we remember, the truly amazing

fact is that some of them are true,” explains Michael Gazzaniga in his book, The Ethical Brain. 20 Human memory systems are inherently flawed, which is why with respect to our frontier towns I term biases that impact our memories the “Memory Bias Boys.” In truth, memory biases are not boys but instead are a set of predictable patterns that our brains carry out in the absence of access to more accurate details.

These memory biases are the reason we say things we believe to be true that can be up to 100% inaccurate. Specifically, this form of bias helps us make stuff up with impunity and if we’re not careful, we can end up being often wrong and never in doubt. A recent article details, for example, how the hippocampus selectively biases future decisions based on past associations, though test subjects were completely unaware of this fact.21

Memory is a process that includes three primary stages: (1) encoding; (2) consolidation and storage; and (3) retrieval. Each stage demands careful effort to ensure that an experience is accurately recorded. But here’s the trick: memory doesn’t work like a videotape recorder. Instead, it works more like a courtroom artist who sketches scenes quickly and later fills in details, and only as needed. For instance, the brain as artist can later add details like color, shadow, and additional lines. This is the type of post-facto construction of memories that causes our memory to be so highly prone to bias and error.

If something negatively impacts any one of the three stages of memory, then the memories involved can be fatally flawed. For example, a friend might have been at a party with you, drinking eight beers in two hours. Humorous behaviors might have ensued and later, the chance of him consolidating and storing that information must be significantly lower than if he had drank only eight lemonades. He might wake up the next morning and offer, “We had fun, didn’t we?” His question will hint at the state of his memory, which may be non-existent given his stout efforts to erase them.

To summarize, the ways in which our memories store and recall information is prone to error. Here is a list of some of the most popular “Boys,” See if you recognize any:

20 Harper Collins, 2006. Gazzaniga worked with Nobel Laureate Roger Sperry on a series of studies that would become known as the split-brain studies. He currently focuses much attention on the relationship between brain science and the legal system. 21 Wimmer GE, Shohamy D., 2012. Preference by association: How memory mechanisms in the hippocampus bias decisions. Science 338: 270–273.


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• Suggestibility (a.k.a., leading questions bias) – information suggested in the course of a question can become part of the memory due to the mere suggestion, e.g., asking what was on a table beside a coke, then later asking if you recall the coke too;

• Source confusion – our memory’s ability to misattribute the source of a memory leads to an accurate detail from an inaccurate source, e.g., I know I’ve used a Bic pen but don’t recall where last, so may confuse the source if pushed for an answer;

• Primacy/recency bias – the tendency to recall things that occur first or last in a sequence, such as the lead of this paper (the frontier town metaphor) versus its middle sections (what’s been said about cowboys or court cases, for example);

• Rosy-colored glasses bias – a tendency to recall the past as being better than it truly was, e.g., you had a great time in high school and found socializing super easy;

• Misattribution bias – similar to suggestibility, this bias involves recalling information and confusing the context, for example, you wake up from a dream and mistake the facts of the dream as facts you’ve experienced in real life.

The point of mentioning these memory biases is to alert you to their impact on your ethics. Since the brain rigs its memory system to suit its needs, you are prone to potential ethics violations merely by counting on the automatic ways in which your memory recalls things. The better part of valor is to not go along with “the Boys,” but instead, verify the truth of stories you tell yourself by fact checking your brain’s assertions when ethical dilemmas are present. The Cognitive Bias Gang

I also mentioned the Cognitive Bias Gang. This is another group of brain-based marauders that can bring problems to our metaphoric pioneer towns. The term “Cognitive Bias Gang” refers to a collection of patterned responses known to result in errors of thought, hence the term cognitive bias. These biases come about in part because of the way our brains organize themselves to maximize the energy available to them.

Things like efficiency, balance, and resistance come into play as ways the brain will choose to automatically manage its energy resources and maximize efficiency while reducing waste. The brains best laid plans, of course, can and do go awry; examples include emotional outbursts and getting stuck in a negative inner talk loop filled with worry or rumination. Times like that call for a sheriff of the

caliber of Any Griffith to sort out the biases and make sense of what the brain ought to do next. This of course, is not easy to accomplish.

Here’s a laundry list of cognitive biases that can interfere with your ethics:

• Anchoring – overemphasizing things; • Belief bias – accepting the plausible over the

probable; • Confirmation bias – always leaning to the

hunch that your way is right; • Consistency bias – believing that past

conditions were the same as the current conditions;

• Egocentric bias – allowing thought and recall to consistently favor your own ends;

• Fallacy – perceive or attribute facts in error and then stand soundly behind them;

• False memory – incorrect recall; • Framing effect – experiencing a viewpoint

error due to initial conditions; • Hindsight bias – concluding the past was

predictable; • Illusion of depth – allowing some knowledge

to permit the belief in a deeper knowledge; • In group bias – lean in favor of those with

similar ways and against those who are different;

• Intrinsic bias – taking action or making decisions without understanding of the true cause;

• Overconfidence – the ability to overstate facts or abilities;

• Self-serving bias – putting yourself in the number one spot at all times.

Given the impactful nature of each of these, the right approach when you suspect they are at play is to go get help. Do that by checking in with others about your ethical conclusions to help prevent the trap of following along with your brain’s automatic patterns and allowing actions to take place that may well lead to ethical misconduct. A note about the ethics rules

So, are you a rules-based person or a principles-based person? If you are principles-based, you will appreciate the first formal instruction Nordstrom’s handed out to its employees, which amounted to this: “Nordstrom Rules: Rule #1: Use best judgment in all situations. There will be no additional rules.“

On the other hand, if you are a rules-based person, you seek to diligently understand the rules and abide by their letter. This is the time in this paper where you can brag about knowing the DRCs verbatim and how


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you meet the demand of their specific language daily in your practice, right? Or not.

Because almost no attorney can remember the DRCs without a review, I choose to not focus on the specific language of the rules here.22 We consult them instead on an as-needed basis.

Here’s the problem: whether you are rules-based or principles-based, if you don’t know the rules, you cannot abide by their letter. Similarly, if you think you know them, then you subject yourself to the rogues’ gallery of biases previously mentioned above. This is because when it comes to how our brains process things, we are creatures of gist far more than creatures of detailed assessments. Knowledge of the DRCs by mere hunch or gist plays precisely into the brain’s game. It is as though the sheriff asked the townspeople

22 For those hankering to review them, here is a selection of the rules that can become compromised by the Cognitive Bias Gang and the Memory Bias Boys:

• 1.01 Competent and Diligent Representation • 1.03 Communication • 1.05 Confidentiality of Information • 1.06 Conflict of Interest: General Rule • 1.10 Conflict of Interest: Successive Government

and Private Employment • 2.02 Evaluation for Use by Third Parties • 3.01: Meritorious Claims and Contentions • 3.03: Candor Towards the Tribunal • 3.04: Fairness in Adjudicatory Proceedings • 3.05: Maintaining Impartiality of Tribunal • 3.07: Trial Publicity • 3.09: Special Responsibilities of a Prosecutor • 4.01: Truthfulness in Statements to Others • 4.03 Dealing with Unrepresented Person • 5.08: Prohibited Discriminatory Activities [race

bias] For a taste of how gist governs your brain’s ethical oversight, here’s a summary of a few of the rules: Rule 3.01 Meritorious Claims and Contentions (take no actions that are frivolous in nature); Rule 3.02 Minimizing the Burdens and Delays of Litigation (take no actions that may increase needless costs or delay simply to gain an advantage); Rule 3.03 Candor to the Tribunal (offer every duty of candor to the tribunal); Rule 3.04 Fairness in Adjudicatory Proceedings (do not obstruct access to evidence, or pay for testimony, or falsify evidence on purpose and do not habitually violate a rule of procedure or evidence; make no false or unwarranted arguments and offer no conduct that may disrupt the proceedings); Rule 3.05 Maintaining Impartiality of Tribunal and Rule 3.06 Maintaining Integrity of Jury System (preserve the independent nature of the court and the jury as well). You can see how the summaries may not capture the true essence of the actual words. Therefore, it always behooves us to dig deeper into the meaning of the words when the situation warrants.

to make up their own laws and remind him or her from time to time about which laws govern which situations.

Therefore, whether you are rules-based or principles-based, maintaining your ethics definitely calls for a proper accounting absent any guesswork or assumptions about terms on your part. Instead, when tipped off about a potential ethics dilemma, go visit with the specific wording and see how it meshes with the instincts your brain would have led you to on its own. Keeping the peace

There are things we can all do to keep the peace in our heads. These things will reduce the infighting and neighborly squabbles and help us handle run-ins with outlaws better too. First, understand that having a gist of the DRCs is probably not enough if an ethical dilemma is possible since the stories we tell ourselves are subject to substantial error. Because of that, any story we tell ourselves deserves to be second-guessed after we become aware of it. Further, as the pamphlet put together for the American Judges Association alludes, fatigue and bias can mask the need to inspect the ethics of any proposed actions. As that pamphlet suggests, a sound solution is to become more mindful of what’s at stake.

By researching the science you will come to find out that what the Buddha, Tibetan lamas, and Hindu mystics have advocated for millennia offers sound practice with repeatable results. I refer to mindfulness meditation, and similar forms of practice are highly beneficial for keeping the peace in our frontier towns.23 The steps for increasing your mindfulness to meet your ethical obligations are relatively simple:

23 Research on the beneficial impact of meditation on our brains is impressive. A recent article, for example, proposes a model that describes how mindfulness helps reengage focus after a mind-wandering episode. Hasenkamp W., Barsalou L. W., 2012. “Effects of meditation experience on functional connectivity of distributed brain networks.” Front. Hum. Neurosci. 6:38. The model proposes that a shift of brain networks takes place between the mind wandering areas of our brain, known as the default mode network, the attention areas, known as the salience network, to finally arrive in the focus, plan and act areas, known as the executive network. The model promotes the idea, arising from the meditation traditions, that we can reduce mind wandering when we become more aware, with the aid of the salience network, that mental energy had shifted to the mind wandering state. An appropriate response involves shifting attention to the salience network and eventually to the executive network, where you can regain focus to plan out your next move and take action. This process, it turns out, is well-suited for double-checking your brain’s ethical assumptions.


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• First, notice that your mind went wandering, which mainly happens in the default mode network, where you hold your notions of self and biases too;

• Second, attend to the moment using your salience network, which helps you regain attention and focus to become aware that an ethical dilemma may be present;

• Third, leverage your newfound attention and focus in on the issues with your executive network, which will help you double check your “cognitive math” and make sure that you are not being swayed by a bias of one sort or another;

• Fourth, complete the mindfulness effort by ensuring that your executive network helps you form a plan that will encourage the appropriate steps needed to remain on ethical high ground.

If you can learn this sequence of steps and practice them when potential ethical violations present themselves, then you will greatly improve on your ability to police the frontier town that is your nonconscious brain. This will help ensure that both you and your brain retain your vitality while making sure you also retain the right to practice law. CONCLUSION

In conclusion, ours brains are magical organs. They mostly work by themselves to solve massive problems and sort through tremendous emotional circumstances. Our conscious brain, compared to them, appears to be an afterthought of sorts. This is because it is often absent, and even when present, can get overruled quickly by mental energy that steam rolls over its best intentions. Therefore, the art of maintaining your ethics is the art of learning to spot dilemmas, knowing how to mindfully address them, and when doubt presents, having the wisdom and willingness to seek help to sort through things.

I have endeavored to offer you a survey of brain science trends that can shed light on the hardship we all face of keeping our ethics in check. Because there are significant automatic forces at work in our brains that may well compromise our ethics, it is best when a dilemma arises to carefully think through things and as needed, go get help. Best of luck as you continue to serve your brain and manage its best interests. Cheers, Kevin Leahy Knowledge Advocate, LLC Austin, Texas [email protected]

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