This is the second in a three-part series describing my experience teaching compliance at Notre Dame Law School.
A fair question one might have had about my description of my Corporate Compliance & Ethics course is why I include readings in behavioural ethics and professional responsibility.
With regards to the behavioural ethics component, it is important for students to think through how unethical or noncompliant behaviour occurs. The behavioural ethics literature makes plain that anyone can fall prey to unethical decision-making. I like laying this foundation—that anyone can make poor decisions—because students often think that misconduct within firms is committed by a special group of bad actors. It can be, but it may also be committed by people who “think” there are good reasons that justify their behaviour.
The upside of clarifying this misconception is threefold. First, it neutralizes a student’s instinct to blame rogue actors for all misconduct. They have to dig a bit deeper when thinking about how and why the compliance failure in the case study occurred. Second, it alerts students to their own potential fallibility in future practice. It is relatively easy to weave in examples that they might one day face (e.g., padding hours this month, but only because you know you’ll make it up next month). Third, it prepares students for interacting with clients and potential witnesses or perpetrators in the future. My goal is for them to realize that anyone could engage in behaviour that could be harmful to firms, and to assume that someone could not is naïve.
I don’t assign, but I recommend, that my students read “Blind Spots” by Max Bazerman and Ann Tenbrunsel. I’ve also started recommending Yuval Feldman’s “The Law of Good People.” Both are excellent reads that provide a good framework for understanding the literature in the space.
With regards to the rules of professional conduct, I think learning the rules within the context of these big, corporate scandals brings them to life in a special way. For example, we learn that lawyers are supposed to be gatekeepers in certain situations, but then we also learn that lawyers must adhere to the attorney-client privilege, while also required under Model Rule 1.13(b) to engage in certain levels of reporting up within an organization. These obligations are dealt with every day by practicing attorneys, but they are inherently complex and excellent challenges for students to work through. This past fall I converted my Corporate Compliance & Ethics course to meet our school’s professional responsibility requirements, and while it took some time away from our case study discussions, it added a depth and breadth about the role of lawyers in these spaces that was quite valuable.
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