Posted to SLAW Dec 30 2013.  For the post and comments on the website, click HERE

We don’t know whether the lawyers who worked in the PMO during the Duffy debacle – Nigel Wright and Benjamin Perrin – engaged in unlawful or unethical conduct. What we do know, though, is that two men with stellar public reputations, one (Perrin) described as a “hero” by Hillary Clinton (here) and the other (Wright) as a man “of good faith, of competence, with high ethical standards” by Jason Kenney (here), became embroiled in a public relations debacle – investigated by the RCMP, disavowed by the Prime Minister and publicly castigated for their potential involvement in the payment of $90,000 to Senator Duffy. How does that happen? How might an honourable and decent person, with good moral judgment in other aspects of his life, as well as legal knowledge and training, make a decision that is legally and morally suspect?

My last few days grading student examinations have given me some perspective on this question. The administrative law examination we assigned had three questions, two very typical of the sorts of questions that students might have expected to see given past exams and the problems we had done in class, and one that was structurally quite different. The nature of the administrative decision raised by the problem was unusual, and the context in which the decision was made even more so.

The answers to the unexpected question were, in a number cases, significantly – and strangely – wrong. The students made statements about the relationship between the legislative, executive and judicial branches that were fundamentally off-base and that I know, given their other answers and the many conversations I have had with them, they do not actually think are true. Yet somehow when answering the question these students lost access to the knowledge that they possess about the functioning of the legal system and the ability to apply administrative law concepts with which, as demonstrated by their other answers, they were relatively familiar.

Why? The problem for these students may have arisen from the cognitive weaknesses to which humans are susceptible. As human beings, we are simply unable to pay attention to or process everything that surrounds us, or all the information we receive. We use heuristics to make decisions, rather than identifying and rationally assessing all of the information available to us. And, when facing something unfamiliar, particularly in an area where we lack expertise, we can often miss the obvious.

Christopher Chabris and Daniel Simons famously documented this last point in their “invisible gorilla experiment”. In the experiment participants were shown a one-minute video of people wearing white and black shirts, passing basketballs. Participants were asked to count how many times the people wearing white passed the ball. About 30 seconds into the video, a woman wearing a gorilla suit walked in front of the players, beat her chest, and walked off – being on screen for about 9 second (you can see the video here). Despite this relatively dramatic incursion onto the screen, about 50% of the participants did not see the gorilla. They did not see the gorilla because of selective attention – the attention they paid to counting the passes prevented them from seeing anything else, even something strange and obvious. In a recent variation on this experiment, researchers inserted an

image of a gorilla into a CT scan of a pair of lungs; 83% of radiologists viewing the scans did not see the gorilla (“Gorillas in the Lung”)

While the problem for my students may have arisen from any number of cognitive gaps, my guess is the main issue was one of selective attention. The unfamiliar context, and their attempt to decipher how administrative law applied to that context, led them to miss obvious aspects of what they were looking at. They were so focused on trying to figure out how what they saw could be fit into their administrative law framework, that they did not really see what they were looking at.

Why, though, did some students not suffer from this problem? Likely because their grasp of the administrative law concepts was sufficiently good to allow them to broaden the focus of their attention, and to be less disorientated by an unfamiliar fact situation. In later iterations of the invisible gorilla experiment, researchers observed that experienced basketball players were more likely to notice the gorilla, presumably because counting basketball passes required less attention for them than for someone without that experience.

And what about Wright and Perrin? As noted at the outset, neither the precise legal or moral quality of their actions, nor even their involvement (in the case of Perrin in particular), is clear. But assume for the moment that their conduct was unethical or unlawful. How could that happen? My guess is that the circumstances of the PMO would create a similar blindness to the actual quality and significance of the acts in which they were engaged. The focus on the political – on the effect for the Conservative Party and the PMO from Duffy’s profligate expenditures – made the legal and moral ramifications of their handling of the situation invisible. Wright and Perrin would want to solve the political problem, and so would not be able to see that the problem also had legal and ethical dimensions. It wasn’t what was salient, and they couldn’t see it.

Under this hypothesis, it would also be significant that neither Perrin nor Wright have spent a significant part of their careers in legal practice. Wright was a lawyer for seven years at Davies, Ward Phillips and Vineberg, but he spent many more years as a businessman, and left legal practice a long time ago (his career is discussed here). Even his role in the PMO was not a legal one. Perrin does not appear to have practiced law at all (his UBC bio is here). That lack of recent (or any) practice experience, or current expertise in legal decision-making, may have further obscured the legal salience of the issues with which they were dealing. Neither Wright nor Perrin would have routinized “thinking like a lawyer” in a way that helped them overcome the problem of selective attention. And, as a consequence, good men may have acted badly.

This column has been largely speculative. But to the extent it contains an element of truth, it suggests the significance for lawyers who wish to avoid ethical trouble of ensuring that they are in a position where the legal and ethical significance of situations will not be obscured. Modern law firm approaches to conflicts of interest – where the identification of such conflicts is systemized – is an example of how that can be done. But in other areas of ethical significance, it may be that lawyers face risks they do not even perceive.