Recent research has added interesting dimensions to important components of behavioral legal ethics. For example, researchers from Bar-Ilan University recently sought to determine whether certain types of conflicts of interest can be reduced through deliberative forms of reasoning – such as making people explicitly consider the costs of succumbing to the conflict or appealing to their sense of morality about the conflict. See Yuvel Feldman & Eliran Halali, Can We Regulate ‘Good’ People in Subtle Conflicts of Interest Situations, available at: http://ssrn.com/abstract=2536575.
According to the results, “subtle” conflicts of interest produced by slight financial incentives can be reduced through these types of explicit interventions. To be sure, this is only one study and its external validity needs to be assessed. Yet, if its findings can be replicated, especially in the types of situations where lawyers face real world conflicts, it suggests that the errors produced by bounded ethicality can be reduced (at least in some instances) by explicit forms of reasoning.
Here is the abstract provided by the study’s authors:
The growing recognition of the notion of ‘good people’ suggests that many ethically relevant behaviors that were previously assumed to be choice-based, conscious, and deliberate decisions, are in many cases the product of automatic/intuitive processes that prevent people from recognizing the wrongfulness of their behaviour – an idea dubbed by several leading scholars as an ethical blind spot. With the rise of the focus on good people in psychology and management, the lack of discussion on the implications of this growing literature to law and regulation is quite puzzling. The main question, this study will attempt to explore is what are the implications of this literature to legal policy making. We examined, experimentally, using two m-Turk studies, the efficacy of deterrence- and morality-based interventions in preventing people who are in subtle conflict of interest from favoring their self-interest over their professional integrity and to behave objectively. Results demonstrate that while the manipulated conflict was likely to “corrupt” people under intuitive/automatic mind-set (Experiment 1), explicit/deliberative mechanisms (both deterrence- and morality-based) had a much larger constraining effect overall on participants’ judgment than did implicit measures, with no differences between deterrence and morality (Experiment 2). The findings demonstrate how little is needed to create a risk to the integrity of individuals, but they also suggest that a modest explicit/deliberative intervention can easily remedy much of the wrongdoing.