Judicial Assumptions about Lawyer Behavior, Take 2

Kentucky SC

Kentucky Supreme Court

Yesterday, as I was writing about how courts often overlook the psychological dimensions of human decision-making, the Kentucky Supreme Court issued an opinion making the opposite point: sometimes judges take behavioral research very seriously.  The case, USA v. Kentucky Bar Association, concludes that criminal defense lawyers are ethically barred from advising defendants on whether to accept a plea bargain that requires waiver of the right to claim ineffective assistance of counsel [it is also unethical for prosecutors to offer these types of plea deals].  On its merits, the decision is likely to have a significant impact on how plea bargaining takes place in Kentucky (and elsewhere, perhaps) (for more, see here, here and here).

As for the psychological dimensions in the opinion, the Court relied on an article I wrote discussing why defense lawyers, like everyone, experience “bounded ethicality” — a bedrock of behavioral ethics that includes a variety of aspects, including how we all tend to be unaware of the ways in which our self-interest undermines our objectivity when evaluating conflicts of interest. The Court’s discussion is the most extensive treatment of bounded ethicality that I’ve seen in a judicial opinion (see pp. 27-30).

The research on bounded ethicality is fascinating, as it reveals (once again) how we all tend to be blind to our own biases.

For more on bounded ethicality, here are a few resources:

For those who want to teach about this phenomena, as usual I recommend videos from Ethics Unwrapped, including this one on Bounded Ethicality (as my co-blogger, Jim Milles, has previously discussed). And here is a fascinating video by one of the leading researchers in this area, Max Bazerman of Harvard Business School, describing many of the underlying psychological factors that lead to bounded ethicality.

[UPDATE 09/28/14:  The Wall Street Journal is reporting that the Department of Justice has decided to end the practice of requiring defendants in plea cases to waive claims of ineffective assistance of counsel.  This is welcome news indeed (h/t LEF).

[UPDATE #2, 10/17/14: DOJ has now formally announced that federal prosecutors should no longer seek in plea agreements to have defendants waive IAC claims. Nor should they seek to enforce prior waivers “when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve.” The formal announcement is here. For more information, see here and here].


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