As the field of behavioral legal ethics grows, so does its excellent scholarship. This summer has brought new SSRN postings by two authors who have written extensively about psychology and legal ethics. Download them for some late summer reading!
(1) ‘Nudging’ Better Lawyer Behavior: Using Default Rules and Incentives to Change Behavior in Law Firms by Nancy Rapoport
Abstract: This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers.
In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive biases and basic behavioral economics will help law firms tweak their incentives and default rules to promote the improved delivery of legal services.
(2) Behavioral Legal Ethics, Decision Making, and the New Attorney’s Unique Professional Perspective by Catherine O’Grady
Abstract: This article explores the emerging field of behavioral legal ethics and decision making to analyze the dynamic that takes place when a new attorney makes ethical decisions that diverge from their ethical beliefs. The study of decision making — known as “problem solving, judgment, and decision making” or “JDM” rests in the social sciences. It is a broad area that seeks to ascertain how people uncover and process facts and information, reach judgments, and make decisions — it provides analytic tools for decision making and focuses on systematic errors commonly made and heuristics commonly employed by decision makers. In law, knowing how to make decisions and solve problems is critical and recognized by the American Bar Association as one of the top ten “fundamental lawyering skills” every new lawyer should acquire.
The separate but related study of behavioral ethics has its roots in social psychology and business — it has been applied most frequently to ethical decisions made in a business context. In contrast to viewing ethics and morality from a philosophical perspective or as grounded in rules of conduct or societal norms, behavioral ethics explores empirically how people actually behave. It thus allows a comparison between the actor’s ultimate behavior and how the actor thinks he should or would behave and it permits fuller consideration of unintentional unethical conduct.
Recently, scholars have begun to apply behavioral ethics principles to the practice of law — examining behavioral legal ethics. This article contributes to that growing body of literature. By focusing on the new attorney’s ethical decision making, this article underscores the impact that succumbing unreflectively to intuitive decision making and heuristics can have on the new lawyer’s professional development and it offers guidance to new lawyers that they likely did not receive in law school. All accredited law schools in the United States are required to teach Professional Responsibility, but students and teachers alike focus most of their attention on the prescriptive — learning the body of laws and rules of professional responsibilities — and not the descriptive — understanding the situational pressures, psychological factors, and decision making heuristics that factor importantly into ethical (or unethical) action. Of course, all lawyers, whether experienced or new, are subject to the impact of psychological dynamics on ethical decision making, but the new lawyer experiences the psychology of ethical decision making differently than his more experienced colleague. New attorneys are uniquely vulnerable to certain situational pressures and may be especially susceptible to some decision making heuristics. Interestingly, on the other hand, research suggests that the newest attorney in a legal working group or firm may actually be the one in the room that is most likely to see ethical implications and frame a situation in ethical terms rather than relying on moral intuition, business schemas, and decision making short cuts. Thus, the new attorney is in a unique position — her inexperience makes her best able to avoid the temptations of inappropriate intuitive ethical decision making and as she begins her career, she is perfectly positioned consciously to shape the process that will guide her ethical decision making and contribute importantly to her professional development.