Monday, November 20, 2017

What Is Behavioral Legal Ethics?

Did you know that an attorney who represented the New York Times was, at the same time, helping Harvey Weinstein cover up his sexual misconduct?  "One of the nation’s most respected lawyers, David Boies, is among those whose work helped Mr. Weinstein try to conceal his abusive behavior."  (here)  "Mr. Boies’s representation posed a conflict of interest, because his firm, Boies Schiller Flexner, was representing The New York Times, the 'leading NY Newspaper,' in libel litigation at the same time."

"Mr. Boies denied that efforts to discredit the Times story reflected such a conflict. In his view, it was 'entirely appropriate to investigate precisely what he' — Mr. Weinstein — 'was accused of doing and to investigate whether there were facts that would rebut those accusations.' And he added, If evidence could be uncovered to convince The Times the charges should not be published, I did not believe, and do not believe, that that would be adverse to The Times’s interests.'"

The Times noted that this was an ethical conflict: "A lawyer who represents them is prohibited from accepting other matters that would reasonably be considered adverse to their interests without their informed written consent."  Mr. Boies defended himself: "Mr. Boies responded in a public statement that his firm had a clause in its retainer agreement with The Times that purported to waive all conflicts of interest on matters unrelated to cases in which the newspaper had retained the firm. But as The Times’s leadership pointed out in its own statement, it never contemplated that the firm would contract with investigators to do opposition research on its own reporters."

Why did Mr. Boies engage in conduct that so clearly violated written ethical rules?  The conventional answer would be that Mr. Boies is inherently bad, but a new group of legal ethical scholars would say that his behavior was due to "a combination of situational pressures and all too human modes of thinking."  (BLE at 5)  Stated differently, "While most of us desire to act ethically, 'psychological processes . . . [can] lead people to engage in ethically questionable behaviors that are inconsistent with their own preferred ethics.'"  (Id. at 8)  Or, as stated by Dan Ariely "What we found is that when people are thinking about honesty versus dishonesty, it's all about being able, at the moment, to rationalize something and make yourself think that this is actually okay."  (here)  Concerning Mr. Boies's conduct, he rationalized that his actions were not a conflict of interest adverse to the NY Times's interests because of defects in the human thought processes, called cognitive biases.

Professors Jennifer K. Robbennolt & Jean R. Sternlight coined the term "Behavioral Legal Ethics" to describe the effects of cognitive processes on lawyer's  ethics.  (BLE) These authors declare, "The psychology we present here helps explain how ethical lapses can occur more easily and less intentionally than we might imagine, providing substantial insight into why attorneys sometimes behave unethically, why attorneys may have difficulty curbing or reporting the unethical conduct of their clients or fellow attorneys, and why it is often difficult for attorneys to learn from their own ethical missteps and the missteps of others. It also helps us see how, even as we make what could be considered to be unethical decisions, we may still believe we are ethical actors. At the same time, the psychological research also provides insight into why attorneys are often able to resist substantial pressure to act unethically—pressure that comes from clients, adversaries, superiors, and their own self-interest."  (Id. at 6)

Excerpts from BLE:

"Ethical lapses occur more easily and less intentionally than we might imagine. While most of us desire to act ethically, 'psychological processes . . . [can] lead people to engage in ethically questionable behaviors that are inconsistent with their own preferred ethics.'"

"Unethical decisions are more likely when the decision maker does not see the decision at hand as involving ethical issues or when she believes that any potential ethical challenges can easily be overcome. Each of us tends to believe that we see the world objectively; to see ourselves as more fair, unbiased, competent, and deserving than average; and to be overconfident about our abilities and prospects.  This tendency to view the self in positive terms is heightened when the characteristic at issue is socially desirable—as is the case with ethical behavior. Indeed, attorneys tend to believe that their own ethics and their firm’s ethical standards are more stringent than those of other attorneys and other firms."

"[P]eople commonly make inaccurate forecasts of their own future emotions and behavior—and, thus, may predict that they will act ethically when this is not necessarily so."

"Another factor that can contribute to our bounded ethics is that the path to unethical conduct often runs along a slippery slope. Just as it is frequently extremely difficult for people to visually detect changes in their environment, so can it be quite difficult to notice when conduct degrades gradually."

"Ethical blindspots and the contours of the slippery slope contribute to a process of ethical fading or moral disengagement in which decision makers 'do not ‘see’ the moral components of an ethical decision, not so much because they are morally uneducated, but because psychological processes fade the ‘ethics’ from an ethical dilemma.'"

"Different ethical climates can push behavior in different directions. But, while it is important to promote ethical behavior, it is also important to promote ethical behavior for the right reasons. It turns out that instrumental ethical climates grounded in not getting caught, self-interest, or individual advancement tend to be associated with a greater likelihood of unethical behavior as compared to ethical climates based on benevolence or concern for clients, colleagues, or social justice. Thus, whereas a culture of 'eat what you kill' might be a fertile breeding ground for unethical behavior, climates based on principles or rules and standards tend to be associated with more ethical behavior."

The above gives you a flavor of how behavioral legal ethics differ from conventional legal ethics, which teaches students the rules and then threatens punishment for breaking those rules.  The new discoveries demonstrates that teaching legal ethics most be more nuanced; it must show students how defects in human reasoning can lead to unethical behavior.  It also demonstrates that students must be taught to overcome, as best they can, the defects in their reasoning.

This means that there must be a new type of legal ethics class.  As I described last week, Tigran Elred has created such a class (here).  As I have stated several times, schools should help their students develop their professional identities.  This includes teaching them about psychology and cognitive biases because students need to understand their psychological processes to understand theirselves.  I included a chapter on human psychology and cognitive biases in my book Developing Your Professional Identity: Creating Your Inner Lawyer.

Behavioral Legal Ethics is an exciting new field.  It is only in its infancy, but it has already helped us understand how law schools should be teaching their students ethics.

More tomorrow.

(Scott Fruehwald)

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