Susan Saab Fortney, Professor of Law and Director of the Program for the Advancement of Legal Ethics at Texas A&M University School of Law, has posted an interesting paper, entitled Mandatory Legal Malpractice Insurance: Exposing Lawyers’ Blind Spots, which relies on behavioral research to help explain why lawyers fail to carry proper legal malpractice insurance.
Here is the abstract:
The legal landscape for lawyers’ professional liability in the United States is changing. In 2018, Idaho implemented a new rule requiring that lawyers carry legal malpractice insurance. The adoption of the Idaho rule was the first move in forty years by a state to require legal malpractice insurance since Oregon mandated lawyer participation in a malpractice insurance regime. Over the last two years, a few states have considered whether their jurisdictions should join Oregon and Idaho in requiring malpractice insurance for lawyers in private practice. To help inform the discussion, the article examines different positions taken in the debate on mandatory insurance and recent empirical research related to uninsured lawyers and legal malpractice litigation. The article focuses on arguments in favor of mandating insurance and considers approaches that may address particular concerns expressed by those who oppose requiring lawyers to carry professional liability insurance. The article also considers select alternatives to mandatory insurance. After concluding that mandatory insurance better promotes public and lawyer protection than the alternatives, the article examines reasons why decision makers fail to require that lawyers carry a minimum level of insurance. Drawing on ethics scholarship and behavioral psychology research, the article notes that individual uninsured lawyers may fail to see the consequences of their conduct because they have a blind spot. The conclusion also suggests that the bar and judiciary may suffer from a collective blind spot that contributes to lawyers and judges not seeing financial accountability as an ethics issue. The conclusion urges decision makers and insured lawyers to address the blind spots and promote their states joining Oregon, Idaho and countries around the world that recognize that financial accountability is a hallmark of an ethical profession.
Ethics Unwrapped, a leader in the field of behavioral ethics education, has updated its core collection of videos, called Concepts Unwrapped. Here is the Twitter announcement:
Links to the individual videos are below. THANK YOU Ethics Unwrapped for your wonderful work, an essential resource for all of us who teach behavioral ethics!
Molly Wilson and I are happy to announce our new online video program by the Practising Law Institute (PLI), a leading provider of continuing legal education. Entitled Motivated Reasoning and Legal Ethics, the video takes an interactive approach to the subject. Highlights include simulated scenarios by professional actors addressing the psychological dimensions of fraught ethical situations, such as law firm billing practices and disclosure requirements by prosecutors. Also included are multimedia discussions of some of the most important scientific studies in behavioral science (i.e., Stanley Milgram’s obedience studies and Hasdorf and Cantril’s famous selective perception study about the 1951 Dartmouth-Princeton football game). Viewers are guided through an interactive environment where they are prompted to respond to the material presented.
Law teachers may find the video program useful to introduce core aspects of behavioral legal ethics in courses such Professional Responsibility and Criminal Procedure.
Here is the PLI description:
Why You Should Attend
This online program will use an interactive, video format to demonstrate how motivated reasoning can lead attorneys to act unethically or remain silent in the face of unethical behavior. Furthermore, it will show how even after these ethical lapses, actors often continue to believe that they have done nothing wrong. The course will explain, in detail, what motivated reasoning is, describe and demonstrate the most common social-cognitive biases that comprise motivated reasoning, and provide strategies to help attorneys overcome these biases, so they behave ethically. The Model Rules of Professional Conduct will be mentioned and referred to at times in discussion, scenarios, and examples.
What You Will Learn
After completing the course, participants will be able to:
- Recognize that they are subject to making poor decisions due to motivated reasoning.
- Recognize that they are subject to behaving unethically without intending to do so.
- Identify the most common cognitive biases and social influences that contribute to motivated reasoning.
- Identify common factors that can lead to poor decisions, unethical behaviors, or inaction.
- Implement strategies to address and overcome the factors that could otherwise lead to poor decisions, unethical behavior, or inaction.
- Create an environment where an attorney is more likely to follow the Model Rules of Professional Conduct.
Who Should Attend
This program will be useful to all attorneys in their practice of the law.
NOTE: The list price for the video program is $395. However, law professors and law students can receive FULL SCHOLARSHIPS by providing proof of academic affiliation (scholarships are also available for others, including judges, law clerks and government and non-profit lawyers). The scholarship application is available here.
The Behavioral Legal Ethics blog, founded as a place for a wide-ranging discussion about the intersection between behavioral science, law and ethics, recently reached the milestone of 20,000 views. Recent blog entries include discussions of the psychology of wrongful convictions, the role of loss aversion in the Watergate scandal, and the psychological dimensions of the duty to report misconduct under rule 8.3 of the Model Rules of Professional Conduct. “We are proud that the blog has become an important venue in the legal community for the discussion of how lawyers actually make ethical decisions,” stated Professor Tigran Eldred, who co-founded the Behavioral Legal Ethics blog with Professor Molly J. Walker Wilson and Professor James G. Milles in 2014.
Thank you to everyone who visits the blog. It is much appreciated!
Professor W. Bradley Wendel
For a fascinating discussion of the role of behavioral ethics in the context of judicial decision-making, see W. Bradley Wendel, Campaign Contributions and Risk-Avoidance Rules in Judicial Ethics, 67 DePaul L. Rev. 255 (2018). Professor Wendel’s work contrasts the rules of judicial recusal from those of attorney conflicts, making the argument that the former should more closely track the latter. Behavioral ethics research sits at the center of the paper. From the introduction (footnotes omitted):
“Well-understood, predictable psychological mechanisms create ‘blind spots’ in which the effect of a conflict of interest is not apparent to someone subject to it. The effect of campaign contributions on judges’ perceptions of bias is often unconscious. To make matters worse, judges also remain unaware of their unawareness resulting in a persistent and difficult-to-dispel illusion of objectivity. Judges, like other professionals, believe their ethical commitments are sufficient to withstand the bias effects of external factors, such as financial conflicts of interest.”
New videos on the psychology of wrongful convictions, a topic we have covered before, have been released by the International Association of Chiefs of Police and the Innocence Project. The announcement states:
“Law enforcement officials are human and are susceptible to the same psychological phenomena that can adversely affect decision-making,” said Paul M. Cell, president of the IACP. “We are excited to be partnering with innocence organizations to make these videos available because education and training are critical to ensuring that these phenomena don’t adversely affect investigations.”
Three of the videos, on confirmation bias, tunnel vision and implicit bias, may be of particular interest to readers of this blog.
(update: 12/11/18: For a prior post on the psychology of wrongful convictions, see here).
Professor Yuval Feldman
Recently published, Professor Yuval Feldman‘s new book, The Law of Good People: Challenging States’ Ability to Regulate Human Behavior, is a rich and comprehensive description of the state of behavioral ethics research and its impact on public policy and decision-making.
Here is the book’s abstract:
Currently, the dominant enforcement paradigm is based on the idea that states deal with ‘bad people’ – or those pursuing their own self-interests – with laws that exact a price for misbehavior through sanctions and punishment. At the same time, by contrast, behavioral ethics posits that ‘good people’ are guided by cognitive processes and biases that enable them to bend the laws within the confines of their conscience. In this illuminating book, Yuval Feldman analyzes these paradigms and provides a broad theoretical and empirical comparison of traditional and non-traditional enforcement mechanisms to advance our understanding of how states can better deal with misdeeds committed by normative citizens blinded by cognitive biases regarding their own ethicality. By bridging the gap between new findings of behavioral ethics and traditional methods used to modify behavior, Feldman proposes a ‘law of good people’ that should be read by scholars and policymakers around the world.
For an excellent review the book, see Richard Moorhead, Good People and the Ethics of Quiet Egocentricity, JOTWELL (September 17, 2018).