BLE Blog hits 20,000 views!

BLE Pic for Twitter

Announcement:

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.

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Scholarship Update

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.”

The Psychology of Wrongful Convictions

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.

 

Scholarship Update

Feldman

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).

John Dean, Watergate and Loss Aversion

John Dean

John Dean

In the wake of Watergate, where so many of the culprits of the scandal were lawyers, the ABA responded by requiring law students in accredited schools to take at least one course in professional responsibility.  Then, as now, the thinking goes that immersing students in discussions about the profession’s rules and values will encourage more ethical behavior, including at the highest levels of government.  Those of us who advocate for a behavioral approach to legal ethics, however, have come to believe that teaching the profession’s rules and values, though central, are insufficient.  Rather, students also need to learn about how ethical decisions actually are made — that is, to learn about the situational variables, cognitive biases and heuristics that contribute to unethical behavior.

Recently, I was pleased to learn that John Dean — famed former White House Counsel whose riveting testimony about the Watergate cover-up during the Senate Watergate Hearings was a key part of the saga — also believes in a behavioral approach. In an illuminating deep dive into the Watergate years on The Josh Marshall Podcast, Dean reflects upon how, he now realizes, loss aversion explains much of his misconduct during his time in the Nixon White House. As Dean states (starting around 30:00 of the podcast; and as he has written elsewhere), during his active participation in the Watergate cover-up (for which ultimately he was sentenced to jail) he was experiencing a “loss frame,” which caused him to irrationally “double down” on his own misbehavior to prevent exposure and detection.  Only later on, Dean notes — when he started to cooperate with prosecutors — did his loss aversion abate.

John Dean’s explanation of his own behavior has an empirical basis.  A number of studies have demonstrated the perils of loss framing. For instance, in one set of experiments, researchers found that “decision makers engaged in more unethical behavior if a decision was presented in a loss frame than if the decision was presented in a gain frame.” Other studies (e.g., here and here) have concluded that cheating occurs more frequently to avoid a loss than to secure a gain. And, as one expert on loss aversion has noted, “a host of empirical and experimental studies have shown that tax compliance is higher when, following overwithholding, taxpayers expect a refund (a gain frame), than when, following under-withholding, they expect to pay additional sums (a loss frame).” Eyal Zamir, Law Psychology and Morality: The Role of Loss Aversion (2015) at 32.

As the new semester begins, with Watergate again in the news, many professional responsibility classes undoubtedly will be revisiting the lessons learned from the events of more than 40 years ago.  As these conversations take place, loss aversion and its role in producing unethical behavior can be — and I hope will be — an important part of the discussions.

Behavioral Science and the Duty to Report Misconduct, Pt. 2

A previous post promised updates on an interesting case, Joffe v. King & Spalding LLP, No. 1:17-cv-03392-VEC, S.D.N.Y (2018), which addresses a common law breach of contract claim arising from the duty to report lawyer misconduct. Two weeks ago, Judge Caproni denied defendant King & Spalding’s motion for summary judgment in the case, finding that there are “questions of fact regarding whether [plaintiff] reported or attempted to report ethical concerns and whether King & Spalding retaliated against him for doing so”  (Slip Op. at 22) (the decision is available behind various paywalls; reporting is available here and here). As a result, the case now moves forward to a potential trial.

One of the most interesting aspects of Judge Caproni’s decision is the legal standard it adopts for common law breach of contract under the controlling New York case, Wieder v. Skala, 89 N.Y.2d 628 (1992).  King & Spalding had argued for an “extremely narrow” Wieder test that would permit claims “only to law firm associates who are faced with plainly unethical conduct and therefore face a ‘Hobson’s choice’ between complying with their own obligation to report unethical conduct . . . and their job” (Slip Op. at 13). In other words, proof of breach of contract would require proof of a mandatory duty to report based on a clear violation of the ethical rules. Rejecting this standard, and borrowing from frameworks in other forms of retaliatory discharge under federal law, the court concluded that “a plaintiff establishes a prima facie case under Wieder by demonstrating that he reported, attempted to report, or threatened to report suspected unethical behavior and that he suffered an adverse employment action under circumstances giving rise to an inference of retaliation.” (Slip Op. at 14). Notably, this standard does not require proof of actual misconduct; rather, the plaintiff need only possess a “sincerely held, good faith belief that there had been an ethical violation.” (Slip. Op. at 15, n.11). Once the plaintiff satisfies the prima facie test, the burden shifts to the defendant to show that either the plaintiff did not act in good faith or that the adverse employment decision “was not connected to the attempted, threatened or actual report” of misconduct. The plaintiff will then bear the burden to show that the “purported non-retaliatory reasons are pretextual.” (Slip Op. at 14-15).

Where the case goes from here remains to be seen — we will provide developments as they arise.

(7/16/18 update:  Curious development — Plaintiff Joffe’s lawyers (from Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C.) moved to withdraw as counsel.  Much of the basis for the motion is redacted (presumably to protect client confidences), but what is unredacted indicates a dispute over payment of attorney’s fees and aspects of litigation strategy.  What happens next, we will see).

(9/13/18 update: On Tuesday, Judge Caproni issued an order granting the request of Joffe’s lawyers to withdraw, finding that there were “satisfactory reasons” for the motion (the order is available here).  Expert discovery will be delayed until late November to allow Joffe to secure new counsel. Whether the case will move forward or settles remains to be seen).

(10/8/18 update: On October 2, Magistrate Judge Aaron granted a charging lien against Joffe, the amount to be determined at the end of the litigation.  Opinion here).

(10/23/18 update:  On October 16, plaintiff Joffe filed a motion to vacate the charging lien).

Behavioral Science One Sheets

ESEthicalSystems.org keeps adding valuable resources to its top-notch website, including to its collection of “Behavioral Science One Sheets”  — short, well-written descriptions of some of the most important aspects of behavioral ethics. The most recent addition is “Motivated Reasoning,” which, as it states (and I agree), is “one of the most important topics” in explaining the behavioral science of ethical decision-making. Here’s a bit more from the One Sheet:
Motivated reasoning affects decision-making in all areas of our lives, but moral decisions are especially vulnerable. Moral decisions are often high-stakes decisions. They also tend to be especially complex, emotional, and intuitive. These characteristics provide the ideal conditions for motivated reasoning to take effect.
The One Sheets series — which now includes Bounded Ethicality, Ethical Fading, Nudging for Ethics, Speak Up Culture, Ethics Pays, Goals Gone Wild and Motivated Reasoning — can be found here.  Produced in conjunction with the Notre Dame Center for Ethical Leadership, the One Sheets are great resources for anyone wanting to get up to speed quickly on these important topics — and as handouts for an ethics class!