Posts Categorized: Responsibility
Back to Basics
July 30 2019
Ever since the financial crisis started there has been a plethora of explanations about why traders and bankers behaved as they did. Some have been purely descriptive: what happened and when, allowing us to marvel at the folly of it all, at least in hindsight. At the time these clever financiers were praised by pretty much everyone from Chancellors down. There were very few pointing out at the time that the Emperor had no clothes.
But increasingly there have been attempts to use the insights gleaned from other disciplines to explain why what happened in the way it did. The latest neuroscientific findings were used to describe the biology of boom and bust (The Hour Between Dog and Wolf, for instance). Behavioural economics has had its say, as has nudge theory. Rather than nudging people to behave well, all the payment and reward incentives nudged financiers into doing what suited them financially irrespective of the effect on the customer and no matter what the expressed good intentions of the firm were. Goodness! Whoever could have predicted that, without a theory to explain it.
Psychologists have had their say, of course, though only a cynic might wonder about how much actual knowledge about the realities of life in the financial sector they have. No matter: all could opine merrily on the importance of culture in finance and on all the wonderful insights that these disciplines could bring to those seeking to manage and regulate the financial sector.
And now the anthropologists have got in on the act, as in this article by Gillian Tett. In it she points out how anthropologists have tried to analyse the cultural patterns, the rituals and symbols, even the words people use in finance to understand what was going on under the surface. In truth, the insights brought by anthropologists (at least as described here) are pretty obvious rather than thought-provoking; the article does not need them to be worth reading.
What is interesting, though, is how commentators on finance and perhaps also regulators are, perhaps unconsciously, making the same mistake as many of those traders and bankers. They are over-complicating, coming up with all sorts of theories and hypotheses apparently grounded in science or other social studies, described and interpreted by experts, using technical language to describe common human behaviours. Just as too many traders developed over-complicated products which they only half-understood and managers kidded themselves into believing that they had found a foolproof solution to valuation or risk management or any of the other difficult tasks they had, so there is a risk of developing overly complex explanations for why so many people behaved so stupidly or worse. The risk is that the more complex the explanation, the more people feel that it is all too difficult really to do anything about it or that this is something best left to the culture specialists, psychologists and other “ologists“.
Keep it simple might be the motto. In the end, by whatever means the conclusions are reached, what everyone in finance needs to remember is this:-
- Trust is at the heart of finance.
- Everyone in a financial institution is, in one way or another, managing risk. There is no such thing as a risk-free product or institution. Or, indeed, individual. Understanding the risk you are running and managing it properly is what every bank, every employee in a bank, every customer of a bank, every shareholder in a bank, every investor in a financial product and every regulator of a bank is doing. Or ought to be doing.
- Understanding properly is hard work. There is no magic bullet, algorithm, theory, process, spreadsheet, AI or killer piece of management information which will do it for you. Thinking is often required.
- There is no way of eliminating risk. Mitigating and minimising it: yes. Eliminating it: no. If anyone says otherwise (and much of the financial crisis was caused as a result of clever people thinking they had done just this and learning, painfully, that they hadn’t) they’re a charlatan or worse.
- Human beings, even clever ones (particularly them, it sometimes seems) do not behave rationally around money. Money and emotions are bosom pals. As any decent novelist or lawyer dealing with divorces or wills will tell you. The “animal spirits” Keynes described do not just apply to market participants but to all of us.
- Managing people, understanding them, motivating them, inspiring and leading them, teaching them, setting them a good example, setting them high expectations and making it clear what the boundaries are, what behaviour will not be accepted, what crosses the line, helping them get past their frailties, working effectively with them is hard work, the hardest work anyone ever has to do. And by far the most valuable – and rewarding.
- Finance is there to serve others, not itself. It is a means to an end and the moment it (and the people in it) start thinking of themselves as indispensable, as set apart from the society they are part of, as entitled to special consideration and immunity from challenge is the moment when hubris sets in. Nemesis will surely follow.
To Discipline or Not?
April 30 2019
The recent decision of the Solicitors’ Regulatory Authority to strike off Emily Scott, a junior solicitor, for being involved in misconduct while a trainee, only belatedly raising her concerns as a whistleblower after she left, raises, albeit tangentially, the difficult question of when – or if – it is ever right to discipline an employee for misconduct if they are also a whistleblower about that misconduct.
In this case, Ms Scott felt unable to report clients being defrauded by her firm while she was a trainee. She was involved in perpetrating the frauds on the instructions of the partners, the Disciplinary Tribunal finding her conduct to have been “deliberate, calculated and repeated”. It was only after she had left, some two years after the conduct in question, that she reported the fraud to the SRA who then took action against the partners of her firm and, controversially, her. The Tribunal reached its decision on Ms Scott despite accepting that she had been young, a trainee and had been “deceived, pressured, bullied and manipulated” by the partners into both carrying out the fraud and covering it up. The fact that she did not use the confidential route open to her by reporting the matter to the SRA was a factor, as was the fact that part of the conduct involved misleading the regulator when it sought answers.
Ms Scott feels that she has been punished for – eventually – doing the right thing, with the Tribunal refusing to accept her mitigation, even while expressing sympathy for her. It is easy to feel sorry for her: in her first job, anxious to impress, worried about her prospects if she refused or left and feeling bullied. In such circumstances, it is not hard to see how someone can justify to themselves what they are doing and convince themselves that they are still an honest person despite doing dishonest things.
Still, the SRA took the view that a solicitor, even a trainee one, is rightly held to a very high standard and there can be no excuse for dishonesty. Our system of justice depends on its practitioners being utterly trustworthy.
Will such a decision nonetheless lead to unintended consequences? Misconduct is often perpetrated by the most junior employees being made to do something wrong by superiors who seek to keep their hands clean. So it will often be those most involved who have the best knowledge of misconduct which should be reported and stopped. If their own careers will be lost – as Ms Scott’s has been – will this encourage those with the relevant knowledge to speak up? The SRA is, understandably, reviewing its rules in light of this case in order to ensure that it gets that balance right.
Ms Scott was not retaliated against by her employers for being a whistleblower. She was disciplined by a regulatory authority, which has different and wider concerns. Nonetheless, all employers will likely come across whistleblowers who have themselves been involved in bad behaviour and who may seek to protect themselves from the consequences of such bad behaviour by blowing the whistle, sometimes at a late stage when an investigation has already started – or is about to. Ensuring that a whistleblower is not retaliated for speaking up but is not also given a free pass against being disciplined for misconduct requires the most careful of judgments.
But the moral – however harsh it may seem – is that, ultimately, a professional – or someone aspiring to be one – is responsible for their own actions, that they need to do the right thing even if this prejudices their personal position and that acting dishonestly but saying to yourself “I’m not a dishonest person” may be comforting but is still a dangerous self-deception. It is our actions that make us what we are.
Similar considerations arose in the case of Dr Bawa-Garba, a paediatrician convicted of manslaughter over the death of a young child from sepsis, suspended from practice, then struck off and recently reinstated. There are, however, some obvious differences between the two cases:-
- The doctor was open about – and admitted – her mistakes immediately and was convicted in court. The initial medical disciplinary panel felt, however, that it was not just her mistakes which led to the child’s death and that these wider failures were a reason why her additional punishment should be suspension, during which she could do the necessary training to learn from those mistakes and improve her professional competence.
- It was the General Medical Council which sought to strike her off on the basis that her standards as a doctor were so far below those to be expected that she should not be allowed to practise.
- The concern within the medical community at this decision was that this would lead to the wrong consequences, both for doctors and patients. Criminalising individual mistakes would be more likely to lead to cover ups and a failure to learn from problems. It would have a chilling effect on health professionals’ willingness to be candid about errors and thereby learn what to do better next time. There was also significant concern that the wider failings which had been identified – lack of staff, poor supervision, inadequate resources, poor note-keeping by others – were being ignored in favour of placing the blame, unfairly, all on one individual.
- Most obviously, the consequences of the wrongful behaviour were much more serious in the doctor’s case than in Ms Scott’s. Yet it is Ms Scott who has lost her career and the doctor who will continue to practice.
Unfair? Superficially maybe. Is gross incompetence in a doctor less bad than dishonesty in a lawyer? Whatever the doctor’s failings, she was not dishonest; indeed, her very openness about her failings made it easier for her to be convicted and disciplined. A lack of knowledge or competence is something which is capable of being remedied.
Whereas integrity and honesty and the courage to say no when asked to do the wrong thing go to the heart of what it means to be a lawyer. If they are missing or capable of being so easily subverted, what else is there?
And while the work culture in which a person operates matters, often significantly, and frequently needs improving, it should never be an excuse for behaving without integrity.
December 31 2018
2018 has been a year for anniversaries, September bringing forth a slew of articles about the financial crash 10 years on and a number of books by learned professors (to add to the ones already written about the fall of individual institutions) seeking to make sense of it all. See, for instance, Adam Tooze’s “Crashed: How a Decade of Financial Crises Changed the World”.
But despite the colourful characters, scandalous activities and stories aplenty, it is curious that in the last decade novelists and playwrights have largely shied away from writing about the world of finance. It is an odd omission. 19th century writers were much less shy: see William Thackeray’s Vanity Fair with its wonderfully sardonic and cynical and oh so apposite to our times take on a world where “everyone is striving for what is not worth having“. Or Balzac with his tales of how money – having it, not having it, wanting more of it – corrodes personal relationships. And not forgetting our very own Dickens, whose every novel is stuffed with characters for whom debt was an ever-present – and often malign – reality. Mr Micawber stands as an object lesson to those who think that living beyond your means indefinitely is sustainable.
There have been a few attempts to make a drama out of a crisis: Caryl Churchill’s expletive-ridden “Serious Money”, written in 1987, just after an earlier stock market crash (and featuring the International Tin Council litigation, the very first case I was involved in as a junior solicitor) was one of the earliest. Not a play likely to feature in the repertoire of amateur dramatic societies, given its colourful language.
A few years later “Capital City” was a TV series based on the lives and loves of City traders in the late 1980’s when Britain learnt to fall in love with making Loadsamoney, as much and as fast as possible and with precious few scruples about how it was done. This was the era of the Guinness affair and Robert Maxwell and BCCI. Enough larger than life characters and juicy stories and morality tales there for even the most mathematically challenged writer. But even that great State of the Nation playwright, David Hare, whose plays in the 1990’s: “Pravda” (journalism), “Racing Demon” (the Church of England), “Murmuring Judges” (the law) and “The Absence of War” (the Labour Party) sought to take the moral temperature of contemporary Britain and its institutions, ignored the tumultuous changes in the world of finance and how they were changing British society more radically than even the most provocative newspaper or campaigning politician.
Lucy Prebble’s “Enron” in 2009 succeeded in London but failed in NY. More recently, the BBC’s McMafia series focused on Russian money laundering. John Lanchester’s 2012 novel, “Capital”, was set around the time of the 2008 crash but mainly showed the mysterious alchemy whereby ordinary London homes turned into money-making machines for those lucky enough to acquire them when they were, well, just houses. Sebastian Faulks’s “A Week in December” from 2009 had as one of its main characters someone rumoured to have been based on a well-known – and once successful – trader and featured a naive junior FSA regulator (the resemblance being purely coincidental in the latter case, one assumes). But whatever the books’ other merits, the characterisation of the bankers, traders and regulators was cartoonish and one-dimensional.
Lanchester’s “Whoops: Why Everyone Owes Everyone and No One Can Pay” was a better attempt to understand the mysterious world of finance. As was the US documentary “Inside Job”. Maybe only Michael Lewis has been able to present the human stories present in the financial world in a way which feels like fiction. Perhaps the dramatisation of real life events (“The Big Short” and Massini’s “The Lehman Trilogy”) is the only way to make sense of this world. Perhaps.
It is too easy to think that no-one will understand – or care – about the technicalities and complexities and arcane language of modern finance, let alone about the people whose lives revolve around it. A pity if so. It is not the numbers which matter but the instincts, proclivities and emotions – what Keynes called “animal spirits” – which determine what people do. There is little that is more emotional than people’s behaviour around money.
If the range of human behaviour on show in the run up to, during and after any financial scandal is not a subject for writers, it is hard to know what is. All human life is there, after all.