Teaching Confidentiality . . . and Confirmation Bias

confidentialityWhen I teach confidentiality in my legal ethics class, I start by surveying my students – all in their second year of law school – on their views about the importance of confidentiality as a lawyering value. The responses each year have been largely uniform, with the students ranking the need to preserve confidential information at or near 9 out of 10 – in other words, my students start our discussion with an expectation that client confidentiality is well worth protecting.

Why this survey? Because I want the students to have some sense of how their preconceptions will impact our subsequent discussions, including their views on how, as lawyers, they might exercise their discretion to make permissible disclosures under Model Rule 1.6(b). For example, I want my students to have some sense of how their predispositions on confidentiality might influence their decision under MR 1.6(b)(1) on whether disclosure would prevent “reasonably certain death or serious bodily harm,” or under MR 1.6(b)(2) and (3) on whether a lawyer’s services have been used to cause “substantial injury to the financial interests or property of another.”

To drive the point home, we discuss the psychology of confirmation bias, a ubiquitous phenomenon that reveals the tendency we all possess to seek out, interpret and remember information in a manner that is consistent with our preexisting views.  In previous years, I have introduced the power of confirmatory reasoning by asking my students to participate in a variation of the  Card Selection Task, one of the famous experiments designed by Peter Wason to demonstrate confirmation bias. More recently, however, I have found another experiment, also designed by Wason, that I think is even more powerful.  For those unfamiliar with this experiment, known as the “2, 4, 6 Task,” it was profiled on the front page of yesterday’s New York Times in an article describing the pernicious influence of confirmation bias in spheres such as governmental policy and corporate decision-making.  For those who have not read it, I encourage you to do so.  If nothing else, it’s a lot of fun (for those looking for other ways to teach this material, you might find this video helpful as well). Enjoy!

ABA Conference on Professional Responsibility

ABACPR

For those attending the ABA’s National Conference on Professional Responsibility in Denver later this week, please join us for a panel discussion on Behavioral Legal Ethics (program here).  I am participating, along with Molly Wilson, Robert Prentice and Catherine O’GradyAndy Perlman, who was recently announced as the next Dean of Suffolk Law School, will moderate.  I will report back on the event next week.

Update:  06/4/15:  The ABA conference was excellent. Our BLE presentation followed a wonderful discussion, led by Stephen Pepper and John Barrett, and moderated by Lisa Lerman, about lawyer decision-making in Nazi Germany, which has been described as “the worst legal ethics disaster in the Western world.” Our panel on behavioral ethics focused on a more modern case of legal ethics, the Dewey & LeBoeuf debacle, which again is in the news because of the current trial of the firm’s leadership.  I understand that the materials from our presentation will soon be posted by the ABA, which I will link to here when available.  Thanks to all who helped make the panel discussion so enjoyable.

Update:  06/9/15:  The ABA has now posted the materials from the session here.

Podcast on BLE

NELRI enjoyed discussing growing interest in Behavioral Legal Ethics, including some of my scholarship in the area and how I teach this material to my students, with the editors of the New England Law Review.  Here is the podcast.

Programming Note, #4

Highly recommended for educators and students of behavioral legal ethics (look also for further upcoming podcasts, which will focus on other aspects of behavioral science).

In Memoriam: Monroe Freedman

monroe-lawnews

Monroe Freedman, former dean and professor at Hofstra Law School, passed away yesterday.  A legendary figure in legal ethics, he will be missed by so many for his warmth, generosity and tremendous and highly influential body of work.  In the field of what we now call behavioral legal ethics, Monroe may have been the first scholar to use behavioral insights from psychology with regard to lawyers’ ethics (see Lawyers’ Ethics in an Adversary System (Ch. 6, Counseling the Client: Refreshing Recollection or Prompting Perjury?) (1975)).  His subsequent book, Understanding Legal Ethics, continued to make use of the insights from psychology and related fields (See pp. 202-216 (preparing witnesses), 139-140 (confidentiality), 40-41 (adversary system) (3d ed. 2004)).

He will be deeply missed.

[update: LEF readers have been leaving their thoughts about Monroe here].

[Update #2:  Prof. Abbe Smith‘s moving remarks about Monroe are here]

McCulloch and Protesters Come to SLU Law

Yesterday, Saint Louis University School of Law hosted the student-run Public Law Review symposium, titled The Thin Blue Line: Policing Post-Ferguson.  Robert McCulloch, the prosecutor at the center of the storm of controversy surrounding the Darren Wilson/Michael Brown grand jury process, was the opening speaker.  Earlier this week, our law school faculty meeting was the scene of some intense conversation about the up-coming event.  Some faculty worried that providing McCulloch a forum would be harmful to our students of color. Other faculty expressed concern that students who supported McCulloch’s visit felt denigrated.  All faculty members were united in a single goal: to create a space where our students felt free to express divergent views in a respectful and supportive way.

Along with more than 200 guests and speakers, I was in the room for McCulloch’s talk.  He spoke about the grand jury process.  It was a page out of my Criminal Procedure class.  Several minutes into his talk, a young woman in a judge’s robe stood up and interrupted him.  She, along with several other protesters in the audience conducted a mock trial in which McCulloch was the defendant.  McCulloch asked that they stop and allow him to continue talking, as did Dean Wolff.  SLU President Pestello, who was in attendance, similarly implored them to permit McCulloch to continue.  Saint Louis police and SLU security personnel were in attendance, and many of us watched them for any sign that they would move forward to intervene.  None of them moved.  The mock trial continued, and the protesters “convicted” McCulloch.  The dissenting voices ceased, and McCulloch continued his talk.  Several more minutes passed, and a second round of protesters rose, holding signs with tombstones on them.  Their singing drowned out McCulloch’s voice, and they were stalwart in the face of more pleas from President Pestello.  When it became clear that they would not stop, several security and law enforcement personnel moved in and escorted them out.  One more round of protesters interrupted and they were escorted out in a similar fashion.

I will remember the event for a long time to come, not for the content of McCulloch’s talk, nor for what the protesters said.  Notable to me was McCulloch’s willing to come and open himself up to protest and searching questions from audience members.  As an elected official in charge of critical decisions that affect whole communities in fundamental ways, he has that responsibility.  Still, he came to a place where he had very little control over the identity of the audience members and the response to protesters.  I will also remember the protesters, who insisted on giving voice to a perspective they clearly felt had been silenced for too long.  Their approach was disruptive, and I dare say unpleasant for many in the audience.  They could have tried to convey their views during the Q&A, but they clearly felt that this forum did not allow them sufficient space to challenge McCulloch.  They wanted to be heard, and they were.

In the end, what I believe I will remember as being most significant is the pains that were taken to move carefully and to be thoughtful about the response to the protesters’ disruptions.  I don’t know who made the call, first to allow the protests to go on, and then to quell them in order to permit McCulloch to continue.  Not everyone will agree that the right balance was struck.  (Several members of the audience shouted out some version of “Take them out!” at various points prior to the removal of the protesters.)  To my mind, that is beside the point.  More important, through action and inaction, the administration of our law school conveyed acceptance of differing viewpoints, and tolerance of various forms of expression.  There was neither immediate action to silence the protesters nor acceptance of their agenda to disrupt McCulloch’s talk.

In post from November 29, entitled “Teaching Ferguson,” I wrote about my hope for a lesson I try to convey to my students:  listen to all viewpoints, keep an open mind, challenge your own views, and subject them to constant and meaningful testing.  Yesterday’s event was a delicate balancing act, but it seems to me that in the face of challenging circumstances, SLU Law managed to operate according to these principles.

Scholarship Update

JLE

Two leading scholars on psychology for lawyers, Jean Sternlight and Jennifer Robbennolt, have a new article in the current issue of the Journal of Legal Education, entitled Psychology and Effective Lawyering: Insights for Legal Educators.  As many readers know, their earlier work  has largely defined the field of behavioral legal ethics, including inspiring this blog.  This new article, which focuses more broadly on why and how law schools should teach core tenets of psychology, is a must read for anyone interested in teaching behavioral science in legal education (we also very much appreciate the mention of this blog at fn. 122).