Congratulations to the Practising Law Institute for winning a Gold Award, the highest level of recognition, in the “Best Use of Video for Learning” category in the Brandon Hall Group’s Excellence Awards, for its video MOTIVATED REASONING AND LEGAL ETHICS. This video is freely available to legal educators. More information here.
Here is the press release about the award.
Two of the audiences for this blog are teachers of legal ethics who want to explore the behavioral aspects of ethical decision-making with their students and practicing attorneys who grapple with ethical decisions. For the former group, recently I culled from our archives blog posts that might be of interest. Finding ways for the latter group to access relevant material can be more difficult — after all, practicing lawyers tend to be quite busy and learning about a new field, especially one that is inter-disciplinary, has its challenges. This is why I am thrilled to learn about what looks like an excellent CLE program on the subject, sponsored by the Texas Center for Legal Ethics, entitled “Your Brain on Ethics: How That Thing Between Your Ears Can Lead You Astray” (for a description, see Your Brain on Ethics — course description — April 2019).
This program caught my eye for two reasons (in addition to its catchy title). The first is that the faculty involves a leader in the field of behavioral science scholarship and pedagogy, Professor Robert Prentice, who is Department Chair, Business, Government and Society, at McCombs School of Business, University of Texas at Austin. For those not familiar with Professor Prentice’s work, I commend his long list of publications on behavioral science and decision-making, including his more recent work about behavioral ethics pedagogy (listed in this post). In addition, Professor Prentice is a founder of Ethics Unwrapped, one the best resources available for teaching behavioral ethics (I guest blogged for Ethics Unwrapped a few years ago).
The second reason that this CLE program caught my eye is that it includes an excellent written overview of the field of Behavioral Legal Ethics, entitled “Ethical Decision Making, Fast and Slow,” which is now publicly available here. The summary includes a description of the role of Systems 1 and 2 processing, as well as the many situational factors and cognitive and motivational biases that can produce unintended unethical behavior. For anyone looking for an introduction to the field, this is a wonderful place to start.
This program will next be presented at the Texas Health Law Conference on October 8, 2019, for anyone who might be interested.
Update: 9/12/19: Here is the Table of Contents for the written materials for “Ethical Decision Making, Fast and Slow”:
An interesting application of the research on behavioral ethics to adoption lawyers: Malinda L. Seymore, Ethical Blind Spots in Adoption Lawyering, University of Richmond Law Review (2019), Forthcoming.
Here is the abstract:
Lawyers engaged in adoption work often call it “happy law,” and consider adoption – finding a child for yearning parents, finding parents for a needy child – an unmitigated good. That attitude can mask the fact that all adoption begins with loss. One family loses a child so that another family can gain one. A lawyer’s assurance that she is engaged in positive work can lead to ethical blind spots that ignore the complexities of adoption practice. And while the touchstone of adoption is the best interests of the child, the primacy in legal ethics of the interests of the client, who is rarely the child, skews that focus. This article discusses ethical issues relevant to adoption attorneys, centering on the Model Rules of Professional Conduct most applicable to adoption practice, as well as the lessons from behavioral ethics that inform the ethical blind spots common in the practice. Rules relating to competency and confidentiality, conflicts of interest and dual representation, and the lawyer’s role as counselor are particularly germane. Since legal ethics can be both descriptive and normative, this article addresses both what the ethical requirements of professional responsibility are, and what they should be in adoption practice. This article sketches the contours of ethical lawyering in adoption in order to shine light on the ethical blind spots adoption attorneys should avoid, and to suggest some solutions from behavioral ethics to eradicate blind spots.