These were reportedly John F. Kennedy's words when discussing the 1961 Bay of Pigs debacle with his advisor and speechwriter, Ted Sorensen. The Camelot administration had backed a misconceived CIA plan to sponsor an invasion of communist Cuba by dissidents resident in the USA, despite reservations expressed by a number of its members who suppressed their concerns in deference to the group's perceived wishes. How then had this forcefully-led, intellectually bright and well-informed team stumbled into an unmitigated disaster?
The answer, thought psychologist Irving Janis, lay in the concept of "groupthink", which he defined as a "...way to refer to the mode of thinking that persons engage in when concurrence-seeking becomes so dominant in a cohesive ingroup that it tends to override realistic appraisal of alternative courses of action." Whether groupthink genuinely exists and what causes it remains a topic of debate amongst psychologists to this day.
However, commentators have nonetheless divined the phenomenon in business disasters such as Swissair, the plummeting fortunes of Marks and Spencer and (in the legal world) the collapse of Halliwells, pointing to factors such as group homogeneity (the fact that members of the decision-making group may have similar backgrounds, norms, and values); the insulation of the group from others in the organisation; a tendency to overvalue the cohesiveness of the group; and having to make decisions in a stressful environment, as predictors of poor decision-making.
These thoughts were brought to mind in reading @RichardMoorhead's excellent article on how (according to US prosecutors at least) Standard Chartered Bank's in-house lawyers contributed to their involvement in sanction-busting transactions with Iran by their willingness to endorse, indeed suggest, means of avoiding regulatory scrutiny. Elements of the decision-making here have a strong whiff of groupthink about them, particularly the rationalisation of a strategy that its "in-group" proponents (the bank's legal and compliance staff, for heaven's sake) knew was a figleaf for illegality (as external counsel had told them so).
The issue for me is not only of a company's culture - whether all members of the organisation sign up individually to an appropriate set of values, such as integrity, responsibility etc - but also involves governance structures that discourage groupthink and value dissent.
One would hope this is where in-house counsel comes into the picture, as the conscience of the organisation. Those lawyers always have the excuse, were one needed, of pointing to their regulator-enforced duty of independence. However, where lawyers forget this ethical and regulatory obligation to shout, "Stop!", or perhaps place greater importance on facilitating "group" values (such as getting the deal done, or not falling out with colleagues) then the sort of inexplicably bad plan exposed in the SCB scandal seems sure to result.
As predicted here and elsewhere, regulatory scrutiny of in-house legal teams seems set to increase in line with the growing numbers of solicitors and barristers who practise in that environment. I suspect that "ethical audits" focusing on (amongst other things) arrangements for guaranteeing independence, internal governance and reporting lines to allow objections to be raised may well become a standard feature for in-house legal teams, to demonstrate their Principle 8 compliance.
The responsibility and integrity of those have to be right at every level of the organisation. Without that the divisions of labour inherent in corporate life operate, deliberately or accidentally, as a form of organised irresponsibility. Lawyer’s role in these processes can sometimes be acute and they sometimes contribute to organisational irresponsibility. The way General Motors dealt with claims related to their faulty ignitions may be a case in point. Standard Chartered Bank is an example where the role of the lawyers deserves some scrutiny.