Paula Schaefer, Associate Dean for Academic Affairs and Professor of Law at University of Tennessee College of Law, has posted a new paper, entitled Behavioral Legal Ethics Lessons for Corporate Counsel (forthcoming, Case Western Reserve Law Review, Vol. 69, No. 4, 2019).
Here is the abstract:
This Article draws on legal ethics and behavioral science to explain what the corporate advisor should do, as well as what we have reason to believe he may do, when faced with a corporate client’s misguided—but potentially lucrative—scheme. Part I starts with the corporate lawyer’s consciously held conceptions and misconceptions about duty owed to her corporate client when company executives propose a plan that will create substantial liability for the company—when and if it is caught. This Part focuses on the legal ethics piece, without the behavioral science perspective, and discusses not only what the lawyer should know but what many falsely believe about their duty.
Then, Part II turns to behavioral science and highlights some of the key factors that corporate attorneys are unconsciously influenced by as they try to decide how (or if) to address client conduct that may amount to a crime or fraud. This discussion moves from attorney self-interest, to obedience and conformity pressure, and concludes with partisan bias. While numerous other biases, heuristics, and situational factors can subtly impact any person’s decision making, these are some of the most salient influences for the corporate advisor. Both the consciously held beliefs and unrecognized influences can combine to lead a well-meaning corporate attorney astray. Research reveals that many will fail to advise against corporate misconduct, and some will even become enthusiastic participants in that misconduct.
It is against this backdrop that Part III considers which interventions could lessen the risk of corporate attorneys providing poor advice to company agents on the brink of liability-creating conduct. Again, drawing on legal ethics and behavioral science, this discussion suggests the pressure points—from priming to education—that are most likely to result in positive changes in attorney advice. The Article concludes with thoughts on what corporate attorneys can learn from behavioral legal ethics in order to provide better advice to their corporate clients.
(Prof. Shaefer’s article was just profiled on the Conflict of Interest blog, a wonderful resource for discussion of behavioral ethics and other topics)
(update: 7/9/19: Prof. Shaefer’s article has also been profiled on Law360.com).