International Legal Ethics Conference VII (ILEC)

ILEC VII

I’m happy to report that we will have two panel discussions dedicated to Behavioral Legal Ethics at the upcoming ILEC VII Conference at Fordham Law School in New York City, July 14-16, 2016.  For those who may not know, ILEC takes place every two years and is attended by legal ethics scholars, practitioners and researchers from across the globe. This year’s conference, entitled The Ethics & Regulation of Lawyers Worldwide: Comparative and Interdisciplinary Perspectives, expects to be an exciting mix of discussions on a wide range of topics.

The first panel, “Recent Developments and Future Directions in the Study of Behavioral Legal Ethics,” will feature Professor and Associate Dean Catherine Gage O’Grady, University of Arizona James E. Rogers College of Law; Professor Jane Moriarty, Duquesne University School of Law; and Professor (and BLE co-founder) Molly Wilson, PhD, St. Louis University School of Law. Professor and Associate Dean Alice Woolley from the University of Calgary School of Law will moderate.  Here is the description:

This will explore recent developments and future directions in the study of behavioral legal ethics and its application to the professional practice of law. Panelists will discuss how unconscious biases, self-deception, and situational dynamics impact lawyers’ ethical decision making, behavior, and professional identity. In addition, the panel will explore the unique ways that behavioral legal ethics principles impact new lawyers, examine the way ethical cultures and infrastructures differ between different legal practice settings and different jurisdictions, and suggest how insights from behavioral science can be harnessed to promote ethical professionalism in a wide variety of practice settings.

The second panel, “Experiential Approaches to Teaching Behavioral Legal Ethics,” will feature Professor Vivien Holmes, Australian National University College of Law; Professor (and BLE co-founder) James Milles, University of Buffalo School of Law; and me. Professor Julian Webb from University of Melbourne Law School will moderate. Here is the description:

This panel will focus on experiential approaches to teaching behavioral legal ethics. These include simulation exercises that place students in role where situational influences that affect behavior can be explored and the use of multimedia and online resources to engage students in the foundations of behavioral science. In keeping with this approach, the panel will not only report on the latest empirical and educational research, but will involve audience members in interactive exercises so as to illuminate core findings of behavioral research.

An election detour . . .

In this heated election season, let’s all remember the power of confirmation bias.  Thank you Calvin and Hobbes:

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Teaching Behavioral Legal Ethics

EthicsI just posted the draft of my article, Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility, ___ Mich. St. L. Rev. ___ (2016) (forthcoming). In it, I describe how I incorporate lessons from behavioral science into the survey course I teach on professional responsibility. I have discussed some of these techniques before (for example, here, here and here), but this article explores these themes and ideas in much more detail.

Here is the abstract:

The field of behavioral legal ethics — which draws on a large body of empirical research to explore how subtle and often unconscious psychological factors influence ethical decision-making by lawyers — has gained significant attention recently, including by many scholars who have called for a pedagogy that incorporates behavioral lessons into the professional responsibility curriculum. This article provides one of the first comprehensive accounts of how law teachers can meet this challenge. Based on an approach that employs a variety of experiential techniques to immerse students in the contextual and emotional aspects of legal practice, it provides a detailed model of how to teach legal ethics from a behavioral perspective. Reflections on the approach, including the encouraging response expressed by students to this interdisciplinary method of instruction, are also discussed.

 

Scholarship Update

The role of the GM lawyers in the ignition switch case has received scrutiny, including by the legal ethics community. But, until now, the scandal has not been explored from a behavioral perspective. That has now started to change with the publication of Inside Lawyers: Friends or Gatekeepers, Professor Sung Hui Kim’s most recent consideration of the role of inside counsel. The article, which responds to a critique of her views about the gatekeeping role of inside counsel, once again explores why lawyers (such as in the GM case) possess a host of psychological biases that make it difficult to uncover and report misdeeds committed by others inside an organization. Prof. Kim’s current article, as well her earlier work that explore these psychological phenomena in more detail (see here, here and here), are a must read for anyone interested in the behavioral aspects of corporate legal ethics.

Batson: Pretext? Or Implicit Bias?

Most of us probably recall Batson, the case in which the Supreme Court held that a criminal defendant could challenge his conviction if he or she could convince a judge that jurors of a protected class were intentionally excluded because of their membership in that class. Recently, the Missouri Court of Appeals for the Eastern District published an opinion in the case of Missouri v. Rashad in which the issue was whether the prosecutor’s dismissal of two African American jurors was pretextual.  This case was interesting because the prosecutor admitted that, in the case of one African-American juror, he had made a mistake in not dismissing a similarly situated Caucasian juror.  The question for the court was whether a prosecutor’s oversight is an excuse for differential treatment.  The court answered that it was, seemingly because Batson requires intentional exclusion.

What is truly notable about this opinion is the concurrence, written by Chief Judge Lisa Van Amburg, which takes issue with Batson because it does not address implicit bias. In its simplest form, implicit bias is the unconscious tendency most people have to favor particular groups of people and disfavor others.  The Implicit Association Test (IAT) is a test in which people are asked to pair items, and their reaction time is measured.  There are a number of different versions of this test, and each measures a different type of bias.  In one, people pair black and white faces with positive or negative words.  Most people are faster when they are pairing white faces with positive words than when they are pairing black faces with positive words.  Judge Van Amburg’s point in her concurrence is that when an attorney makes an “honest mistake” by dismissing a black juror, but not a similarly situated white juror, he may well be exhibiting implicit bias.  Moreover, it is likely that this type of implicit bias occurs more broadly in the selection of jurors, and in a variety of other areas in the criminal justice system.

The opinion and concurrence can be read here: Missouri v. Rashad

Lawyers Behaving Badly

60_minutes I have watched the 60 Minutes story, Anonymous, Inc. (link here), only once and have just skimmed the report by Global Witness, so let me start by saying that these are very preliminary assessments – but on first blush, what I have seen is quite disturbing: a dozen lawyers from different firms, when presented with the opportunity for a significant fee, provided preliminary advice on how to help a potential client “scrub” dirty money by explaining how to structure transactions to hide the source of the funds (in contrast, a thirteenth lawyer who was approached refused to provide any advice or assistance to the potential client). There are a wide number of ethical questions raised: do the prescriptions of Model Rule 1.2(d) apply to prospective clients?; to what extent do the lawyers in the video “know” that the prospective client has obtained the funds through crime or fraud?; what obligation exists to perform due diligence to determine if the funds are the result of crime or fraud, etc.? (Two prominent ethics experts, who provided an opinion about the conduct of the lawyers involved in the story, have expanded on their views here).

There are also some very interesting behavioral questions: why would these lawyers, who presumably are aware of the ethical prohibitions against assisting fraud and criminal conduct, seemingly skate toward (or over) the edge of permissible conduct so easily? Merely out of greed and avarice or because of powerful behavioral factors, such as partisan bias, where advancing a (potential) client’s interest trumps the formal rules prohibiting such conduct? Is cognitive dissonance at play: once the lawyer starts to provide advice on how to structure a transaction to protect anonymity is there a need to rationalize the behavior as consistent with the ethical rules? Is motivated reasoning afoot – allowing the lawyers to convince themselves that the rules are ambiguous enough that the advice (and the potential hefty fee) is permissible? How about moral disengagement — after all, the misbehavior that produced the dirty money happened far away, across the globe, with no identifiable (or at least immediately salient) victims? Per this last point, is this an example of ethical fading, where the business aspects of the decision (how to provide the potential client with technical advice on how to hide the source of the funds) crowded out the ethical considerations involved? These are just some of the questions that jumped out at me as I watched this disturbing video.

I will spend more time thinking about these issues, posting more as I delve deeper.

(Disclosure: The CEO of Global Witness, which led this undercover investigation, and I worked together for many years and we are friends).

New Fellowship: U Chicago, Behavioral Law & Economics

Brian Leiter’s Law School Reports blog reports the new fellowship, which looks fantastic!

Here’s the announcement from Professor Jonathan Masur:

The Wachtell Fellowship in Behavioral Law & Economics is designed for aspiring legal academics with research or teaching interests in behavioral law & economics.  Fellows will have substantial time and resources (including research funding) to pursue their own research.  In addition, Fellows will have the opportunity to teach seminars of their choosing related to behavioral law & economics, present papers at faculty workshops, and participate in conferences.  The Fellowship will run for one year, with an option to renew for a second year.  We are currently accepting applications for fellowships covering the 2016-17 academic year, and we anticipate having one or more openings in subsequent years as well.  Any candidates who are interested in the Fellowship or would like more information are very welcome to email me at jmasur@uchicago.edu.