A Brief Guide to Behavioral Legal Ethics

Guest blogger Tigran Eldred is an Associate Professor of Law at the New England School of Law in Boston.  He has a distinguished background as a public defender and civil rights lawyer before he joined academia.  However, our particular interest in his contribution relates to his interest in behavioral ethics as it applies to the practice of law.  Professor Eldred has written extensively in the area and has been one of the driving forces behind creation of the “Behavioral Legal Ethics” blog, which should be read regularly by anyone interested in ethics, especially behavioral ethics.

 

As many of the readers of this blog know, behavioral ethics provides important insights into the conduct of professionals in various settings, including business, accounting, medicine and science, to name a few.  Law is no exception. To take a recent noteworthy example, after one of New York’s best-known law firms, Dewey & LeBoeuf, imploded two years ago in a scandal that has led to a number of criminal indictments, the immediate focus turned to the alleged wrongdoing by the top managers most responsible for the firm’s collapse.  At the same time, a behavioral inquiry started that is taking a broader view of the role that organizational and social pressures — such as conformity and obedience, and other aspects of the firm’s culture — may have played in the firm’s demise. The lessons that emerge from this inquiry will be important as efforts are made to reduce the risk of similar large-scale failures in the future.

This type of behavioral analysis in the law is nothing new. Rather, for more than twenty years, legal experts have been exploring the relationship between behavioral science and the professional obligations of lawyers – starting in earnest in the early 1990’s with attention to the psychological processes that can cause business lawyers to fail to prevent fraud by their clients. Since then, behavioral insights have been explored in a myriad of contexts in which lawyers work, including in-house counsel, law firm lawyers, government lawyers, prosecutors and criminal defense attorneys. Running through this literature is a rich description of many of the heuristics, biases and situational forces that are at the core of behavioral ethics.  More space is needed for a full description, but the highlights include many factors that are familiar to readers of this blog — including self-serving biases, conformity and obedience pressures, bounded ethicality, motivated reasoning, cognitive dissonance and ethical fading.

More recently, there have been efforts to synthesize much of the primary source material from psychology, behavioral economics, and related disciplines to determine how behavioral ethics informs the professional duties of lawyers. One of the most important articles, entitled Behavioral Legal Ethics (which, for many, has become the new name for this field of study), provides a deep and comprehensive review of how behavioral science influences legal ethics. Many other recent works have also focused on various aspects of behavioral ethics as well.  One strand of research, for example, has focused on how findings from social psychology raise fundamental questions about core assumptions that undergird many of the leading theories of legal ethics.  Behavioral science has also become an important part of the ongoing conversation among legal experts on how compliance functions inside corporations should be structured.

Other developments are also taking place. For example, the Business Law Section of the American Bar Association has recently created a subcommittee focused exclusively on behavioral ethics. And at the recently convened Psychology and Lawyering conference at the William S. Boyd School of Law in Las Vegas, presenters discussed many advances in the field (conference materials, including videos of presentations, are available here).

Finally, and perhaps of most relevance to educators from other disciplines, are the discussions underway in law schools about how to teach behavioral legal ethics to law students.  Many of us who teach in this area are now sharing materials and comparing notes on effective teaching techniques (the excellent videos and teaching aids produced by Ethics Unwrapped have been extremely helpful).  In addition, we have recently created a new blog to provide a forum for sustained discussion of these and related issues, named (not surprisingly) “Behavioral Legal Ethics.” Recent posts have focused on ways to teach partisan bias, the role of over-optimism and conflicts of interest, the Cognitive Reflection Test and a discussion about the slippery slope, among others.  For readers of Ethics Unwrapped who are interested in learning more about the intersection of behavioral ethics and law and would like to join the conversation, we hope you will visit us at: behaviorallegalethics.wordpress.com.

Further Reading:

Scott Killingsworth, Modeling the Message: Communicating Compliance Through Organizational Values and Culture, 25 Georgetown Journal of Legal Ethics 961 (2012)

Donald C. Langevoort, Where Were the Lawyers? A Behavioral Inquiry Into Lawyers’ Responsibility for Clients’ Fraud, 46 Vanderbilt Law Review 75 (1993)

Andrew M. Perlman, A Behavioral Theory of Legal Ethics (Indiana Law Journal, forthcoming)

Nancy B. Rapoport, The Dewey indictments and cognitive biases (updated)

Jennifer K. Robbennolt & Jean R. Sternlight, Behavioral Legal Ethics, 45 Arizona State Law Journal 1107 (2013).

James B. Stewart, The Collapse, The New Yorker, October 14, 2013

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