Teaching Confidentiality . . . and Confirmation Bias

When 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!

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