A Brief Guide to Behavioral Legal Ethics

I’ve just posted  “A Brief Guide to Behavioral Legal Ethics” at Ethics Unwrapped for anyone who might want an overview of the field. The post is here.

As I’ve discussed before, Ethics Unwrapped is a leader in providing online training videos about behavioral ethics (there are now 36 of them!).  I use these videos and associated teaching notes regularly in my class and highly recommend them to anyone who is teaching in this area.

[Update: For those who follow Twitter, here is a fun visual from Ethics Unwrapped about my post]:

Brush up on the latest in legal ethics over the long weekend… read our recent blog with a cool glass of lemonade! pic.twitter.com/eVzpsmwof3

— Ethics Unwrapped (@EthicsUnwrapped) May 23, 2014

[Update #2: 07/22/14:  My post at Ethics Unwrapped discusses the  history of applying behavioral science to questions of legal ethics, citing a 1993 seminal article by Professor Donald Langevoort as one of the earliest articles in this area.  I should have added, and do now, that perhaps the earliest work in this area is by Professor Deborah Rhode, whose 1985 article, “Moral Character as a Professional Credential,” 94 Yale L. J. 491 1984-1985, relies on behavioral research to critique and raise questions about the bar’s moral character requirement (see pp. 555 – 562)].

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What Asch’s Line Experiment Can Teach Us about Conformity and In-House Lawyers

Imagine that you have volunteered to participate in an experiment on visual judgment. You, along with several other college undergraduates, file into a room in a psychology department and are shown various pictures of lines of varying lengths on one side, and a single line on the other side. One after another, your fellow participants in the study respond to the question: “Which line on this side most closely matches the line on the opposite side?” One after another, they give an obviously incorrect response. The time comes for you to provide an answer. What do you say?

This is the experiment was conducted by Solomon Asch in 1951 at Swarthmore College. Asch hypothesized that when confederates (fake participants) uniformly gave a particular response in a group setting, the lone true participant would feel pressure to conform to the group consensus.

Asch was correct. Over the course of twelve critical trials, 75% of the true participants conformed to the incorrect majority at least once. On average, there was a 32% rate of conformity, in spite of the fact that there was no real consequence for failing to conform and the answer given by the majority was clearly incorrect. Why did the participants conform? Later work hypothesized that individuals go along with a majority for normative, reputational, and information reasons. In other words, the group sets the standard for what behavior is appropriate (normative), the individual wants to be seen as fitting in (reputational), and the individual takes cues from the group regarding the true state of the world (informational). Interestingly, the effect seems to dissipate when the group is small (four or fewer) and when the target has at least one other person who deviates from the group.

Lately, I’ve wondered how this very human proclivity influences attorneys who are “in house”. A number of well-publicized cases of misconduct on the part of in-house counsel bring this question to the forefront. Recently, Donald Langevoort, from Georgetown University wrote the following in the Wisconsin Law Review: “[T]he most powerful effect is probably cultural, when the lawyers develop a sense of identity that is tied as much or more to their status as key employees as to their status as professional attorneys. This is a visceral process, generating the kind of loyalty that results from bonding experiences early on and, over time, being caught up in the competitive arousal and sense of corporate mission. It means bringing lawyers into the corporate team.” Whether the process is “visceral” is a matter of debate. But without question, it is a psychological process—with evolutionary roots—which is driven by a human need to associate closely with members of ones species who are most likely to protect and provide for the individual. What is pack behavior in wolves is “herd behavior” in humans, at least it is to psychologists who study it. When attorneys serve the important role of gatekeeper for a variety of corporate activities and functions, the human tendency to conform to what the majority deems good, right, or in the best interests of the firm can be a powerful force. Even for the casual observer of human behavior, it should be unsurprising that attorneys in this position commit ethical violations in the form of acts or omissions for the benefit of the corporate bottom-line. This is not to say that most lawyers who take up residence in corporate environments violate ethical rules and norms. Rather, behavioral research tells us that the impulse to acquiesce to serve the common good is both fundamentally adaptive, and irrepressibly human. Perhaps it is time to use what we know about conformity, starting with research that is more than 60 years old, to more effectively identify strategies that encourage compliance with rules of ethics, even when pressures are overwhelming.

Empirical Scholarship on Legal Ethics

An important aspect of behavioral legal ethics is that it is grounded in empirical research — an approach that, of course, is not limited to behavioral science. Rather, findings from a broad range of disciplines can be important in making accurate assessments of how ethical decisions by lawyers are made. One of the most significant contributions in this area is Lawyers in Practice, published in 2012. Other works take a similar approach.

An example worth reading is an article recently published by K. Babe Howell in the Georgetown Journal of Legal Ethics, which focuses on arrest and processing statistics that demonstrate significant racial disparities in who is ultimately prosecuted and convicted for low-level drug offenses. The implications of this data for the ethical exercise of prosecutorial discretion are discussed.

Here’s the abstract:

This Article examines the discretionary power that rests in the prosecutor’s office and the ethical duty to seek justice that guides that power. I argue that chief prosecutors should decline to prosecute entire classes of minor offenses where policing choices give rise to racial disparities or lead to overburdened courts that can provide neither procedural nor substantive justice.
Prosecutors have a special ethical duty to seek justice. However, zero-tolerance policing of minor offenses have resulted in overburdened lower criminal courts in which prosecutors are unable to meet that duty. Prosecution in these overburdened courts undermines justice in two important ways. First, because zero-tolerance policing is typically enforced in communities of color, racial disparities in criminalization are exacerbated, and unequal enforcement of the law is permitted. Second, the overburdened criminal justice system does not reliably distinguish between constitutional and unconstitutional arrests, searches, and seizures, or between guilty and innocent individuals. Refusal to prosecute certain classes of minor offenses will reduce racial inequities in the criminal justice system and improve the ability of prosecutors to meet their ethical obligation to provide procedural and substantive justice in the remaining cases.

Teaching Through Literature

Over at Ethical Systems, which is organized by many of the leading researchers in the field of behavioral ethics, there is a post about how business schools are using literature to teach ethics to their students. Included is an excellent list of business-related novels that address professional ethics.

Which poses the question to law professors: what literature, if any, do you assign to teach professional responsibility? I know, for example, that many have assigned one of my favorite novels, Kazuo Ishiguro’s Remains of the Day, as a wonderful exemplar of questions raised by role morality. And, of course, To Kill a Mockingbird is one of the all-time classics to teach the importance of social responsibility, duties owed to clients and other important themes.

I just did a quick search and found that my alma mater, Fordham Law School, held a symposium a number of years ago on the role of story-telling in professional ethics. Here’s the link for anyone who is interested.

Ethical Lawyers and Ethical Cultures

In a new post at Slaw, Alice Woolley discusses some of the problems with a virtue ethics approach to legal ethics from a behavioral perspective.

Prospective employers and recent law grads identify ethics and professionalism as crucial competencies for new lawyers. In a recent article Professor Neil Hamilton summarized various empirical studies showing that legal employers rank “integrity, honesty and trustworthiness” as a crucial quality in a prospective lawyer hire, regardless of the type of legal work for which the lawyer is being hired. Similarly, new graduates view professionalism as one of the most important skills for the new lawyer. In his article Hamilton notes a survey by Canada’s own Federation of Law Societies in which lawyers who graduated between 2007 and 2012 indicated that “ethics and professional skills” are essential competencies in legal practice (survey data is here).

From this review Professor Hamilton suggests various conclusions. One is that employers should try to identify hiring criteria to identify those candidates with the necessary “integrity, honesty and trustworthiness” (p. 17). Another is that law schools should incorporate competencies related to “values and virtues”, such as “Commitment to self development toward excellence at all competencies; Initiative/drive/strong work ethic; Integrity, honesty, and trustworthiness; Self awareness, the capacity to recognize strengths and weaknesses, seeks/responsive to feedback” (p. 28) . . . .

 The far bigger issue with Hamilton’s study and recommendations, however, is their underlying assumption that it is ethical people (and lawyers) who create ethical practice. This assumption is wrong. It is true that the kind of person I am will affect the choices I make. However, that is demonstrably true not in relation to my possession of particular moral virtues, but is rather true in relation to my personality – whether, eg, I am an introvert or an extrovert – and in relation to my development of good moral judgment (as a matter of reason and intuition). Further, the kind of person I am will affect my behaviour in a far less significant way than will the circumstances in which I find myself. As I have discussed in a number of papers (see, eg, here, here and here) there is far greater consistency of behaviour by different people within a single situation than there is from the same person across different situations. When, for example, a test is administered in circumstances that enable cheating, students generally will cheat; when a test is administered in circumstances that discourage cheating, students generally won’t cheat.

What this means is that if we want ethical legal practitioners we not only need to identify what constitutes ethical practice in particular practice settings, we also need to create a culture and circumstances of legal practice that encourage those behaviours, and discourage those which are unethical. If, for example, unethical recording of billable hours is an issue in large law firm practice, the circumstances of practice in a law firm, and the regulation of law firms (by clients or by regulators) need to be designed to discourage unethical billing. Trusting individual lawyers to be ethical, or trying to hire honest lawyers, is unlikely to make any material difference in creating that sort of good behaviour (or any other).

As always, read the whole thing.

Use of Force and the Representativeness Heuristic

A post on Gin and Tacos speculates on one possible contributing factor in instances of police overreaction and the use of deadly force. It makes intuitive sense to me, based on my understanding of the representativeness heuristic:

This story has gotten little play outside of the upper Midwest, but last week the Milwaukee police killed a mentally ill homeless man named Dontre Hamilton, age 31. After two different Milwaukee police patrols responded to calls that he was loitering outside of a Starbucks – in both cases the responding officers spoke with Hamilton, determined that he was not committing a crime, and departed without incident – a third pair of officers approached him. In a chain of events that isn’t entirely clear, Hamilton ended up with one of the officers’ batons. Seeing him armed with…a stick, one of the officers drew his gun without warning and shot him.

Ten times…

Ordinarily I leave the sociology to sociologists but bear with me here. I’ve harbored this theory for a long time and I don’t know how to set it up in a way that won’t make it sound weird so I will just throw it out there: have pro sports, and particularly football, led a large part of our society to believe that large black males are capable of feats of superhuman strength? Does a police officer pull his gun and believe – sincerely believe – that no less than ten bullets are needed to subdue a suspect when he happens to be black, male, and larger than average?

It’s possible that the answer is simpler. For example, we have considerable evidence that when cops start shooting they tend not to stop shooting until they’re empty. Additionally, we know that when the police are scrutinized for using excessive force or the disturbingly high number of black males who die in custody the Hamilton story is the standard line: the pitiable, outmatched police officer was faced with a large black male suspect with the strength of a dozen stout men, flipping over cars and punching through brick walls. Deadly force was the only option, naturally.

It would be staggering if there was no correlation between weekends spent watching mostly large, mostly black males perform athletic feats that defy description while showing the kind of strength usually associated with adult bears and the belief of so many Americans that every confrontation with a black male calls for the use of force – and the greatest available amount of force at that.

 

Judge Rakoff Raises Questions about Prosecutorial Ethics and Guilty Pleas

Federal District Court Judge (NY-Manhattan) Jed Rakoff offered some provocative thoughts about the pressures facing targets of criminal investigations and the role prosecutors play in creating strong incentives to accept plea deals.  As a judge and former defense attorney, Rakoff has a long history of observing the criminal justice system in action.  Among other things, he offered this comment:

Plea bargains have led many innocent people to take a deal.  People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.

More of Rakoff’s thoughts on this topic can be found at USC News and Sentencing Law and Policy (Law Prof Blogs Network):

http://news.usc.edu/61662/why-innocent-people-plead-guilty/

http://sentencing.typepad.com/sentencing_law_and_policy/2014/04/why-innocent-people-plead-guilty-judge-jed-rakoff-suggests-tens-of-thousands-of-innocent-people-have.html