This is my first year teaching the core aspects of Behavioral Legal Ethics in my professional responsibility class. It has been a fascinating experience – the students, from what I can tell, seem engaged and I find my own knowledge of the material deepening daily. So, I’ll be posting some of my ruminations, reflections, etc. about the experience – probably in no particular order.
I teach using Lisa Lerman & Philip Schrag’s Ethical Problems in the Practice of Law, which provides a rich source of material to address BLE concepts in almost every class. For example, we just discussed various aspects of unethical billing practices (padding, double billing, outright fraud, etc.). The book introduces this discussion with an excerpt from Patrick Schiltz’s sobering article, entitled “On Being a Happy, Healthy and Ethical Member of an Unhappy, Unhealthy and Unethical Profession.” This just may be the best description I’ve seen of the well-documented phenomenon often called the slippery slope (for research on the slippery slope, see here, here and here; there is also an excellent summary on pages 1118-19 of Behavioral Legal Ethics).
Here’s an excerpt from page 917 of Schiltz’s article:
Let me tell you how you will start acting unethically: It will start with your time sheets. One day, not too long after you start practicing law, you will sit down at the end of a long, tiring day, and you just won’t have much to show for your efforts in terms of billable hours. It will be near the end of the month. You will know that all of the partners will be looking at your monthly time report in a few days, so what you’ll do is pad your time sheet just a bit. Maybe you will bill a client for ninety minutes for a task that really took you only sixty minutes to perform. However, you will promise yourself that you will repay the client at the first opportunity by doing thirty minutes of work for the client for “free.” In this way, you will be “borrowing,” not “stealing.”
And then what will happen is that it will become easier and easier to take these little loans against future work. And then, after a while, you will stop paying back these little loans. You will convince yourself that, although you billed for ninety minutes and spent only sixty minutes on the project, you did such good work that your client should pay a bit more for it. After all, your billing rate is awfully low, and your client is awfully rich.
And then you will pad more and more–every two minute telephone conversation will go down on the sheet as ten minutes, every three hour research project will go down with an extra quarter hour or so. You will continue to rationalize your dishonesty to yourself in various ways until one day you stop doing even that. And, before long–it won’t take you much more than three or four years– you will be stealing from your clients almost every day, and you won’t even notice it.
I also showed the students this video, which provides a nice example of the slippery slope in action (albeit not in a legal context).
Next year I plan to include the excerpt from the Schiltz article earlier in the semester (I don’t know if I’ll assign the entire article, as I tend to agree with those who think it lacks some balance on other aspects of life in Big Law).
More ruminations to come . . .
[7/01/14 Update: here is a fascinating new study on the power of the slippery slope to produce unethical behavior].