Testimony Before the New York Commission on Statewide Attorney Discipline

This afternoon I appeared to speak at a hearing in Buffalo held by the New York Commission on Statewide Attorney Discipline.

Chief Judge Jonathan Lippman created the Commission on Statewide Attorney Discipline to conduct a comprehensive review of the state’s attorney disciplinary system to determine what is working well and what can work better, and offer recommendations to enhance the efficiency and effectiveness of New York’s attorney discipline process.
Among the issues to be studied by the Commission are whether New York’s departmental-based system leads to regional disparities in the implementation of discipline; if conversion to a statewide system is desirable; and how to achieve dispositions more quickly in an effort to provide much-needed closure to both clients and attorneys.

Here is a slightly edited version of my written testimony. I include it here because I’m drawing on behavioral ethics in my take on how perceptions of the disciplinary process affect law students.

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Chief Judge Lippman created this commission to review the system of attorney discipline in New York. This is an important task, and it brings much-needed attention to the practices and values of the legal profession. However, my experience teaching legal ethics and professional responsibility reveals a divergence between the disciplinary system in New York and how legal ethics is taught in law schools. Legal ethics casebooks pay little or no attention to the process of attorney discipline or to questions regarding disciplinary sanctions. No casebook with which I am familiar devotes more than a page or two to how attorney disciplinary systems work; a few mention the ABA Model Rules for Lawyer Disciplinary Enforcement (2002). Most casebooks I have examined mention the ABA Standards for Imposing Lawyer Sanctions (1992), but none address more than a few paragraphs to the discussion of disciplinary sanctions, how sanctions serve the different functions of punishment and deterrence, and how different sanctions are calculated.

There are several possible reasons for this neglect. For one, discussion of sanctions means that there has already been an ethical failure. Legal ethics courses generally aim to teach law students, at minimum, how to avoid disciplinary sanctions by understanding the ethical rules and applying them correctly to resolve difficult ethical problems. Disciplinary sanctions come after the ethical violation has already occurred. Discipline means that there has been a failure of ethical behavior. Legal ethics teaching hopes to prevent those failures. Casebook authors may fear that extensive treatment of sanctions amounts to suggesting that law students are likely to fail in their ethical responsibilities.

However, another reason for neglecting disciplinary sanctions in legal ethics courses may be a concern that teaching students about sanctions may contribute to disrespect for the disciplinary process and disregard of the ethical rules. Despite the explicit guidance of the Rules of Professional Conduct, what the bar and the courts choose to sanction, and what sanctions are imposed, may say more than the rules do about the real values of the profession.[1]

The Preface to the ABA Standards for Imposing Lawyer Sanctions (2002) states that the function of standards for disciplinary sanctions is deterrence.

For lawyer discipline to be truly effective, sanctions must be based on clearly developed standards. Inappropriate sanctions can undermine the goals of lawyer discipline: sanctions which are too lenient fail to adequately deter misconduct and thus lower public confidence in the profession; sanctions which are too onerous may impair confidence in the system and deter lawyers from reporting ethical violations on the part of other lawyers. Inconsistent sanctions, either within a jurisdiction or among jurisdictions, cast doubt on the efficiency and the basic fairness of all disciplinary systems.[2]

The New York Court of Appeals in Levy v. Ass’n of the Bar of the City of N.Y. agreed that deterrence, not punishment, is the principle driving disciplinary sanctions.

The proper frame of reference, of course, is the protection of the public interest, for while a disciplinary proceeding has aspects of the imposition of punishment on the attorney charged, its primary focus must be on protection of the public. Our duty in these circumstances is to impose discipline, not as punishment, but to protect the public in its reliance upon the presumed integrity and responsibility of lawyers.[3]

Whether one views deterrence or punishment as the function of sanctions, the nature of the sanctions imposed and the process by which they are imposed are important in signaling collective values. From an instrumental view, “behavior is motivated by rewards and punishments in the external environment.”[4] Under this theory, a disciplinary system of disciplinary aims to “alter[] citizens’ behavior by . . . delivering or threatening to deliver sanctions.”[5] Such a view of disciplinary sanctions would presume that especially severe ethical violations should be met with severe sanctions such as suspension or disbarment. Less egregious violations, or violations in situations where there are significant mitigating factors, should be met with less serious sanctions such as censure. However, as Professor Gillers has demonstrated,[6] there are significant variances in the degree of sanction imposed for the same type of violation among the four judicial departments. From a purely instrumental perspective, such variances are problematic because they fail to assure that severe violations will be met severely.

On the other hand, according to the procedural justice theory developed by Yale Law Professor Tom R. Tyler, people obey the law when they view it as having legitimate authority. The basis of legitimacy is procedural justice. “Legitimacy is linked to the justice of the procedures by which the police and courts implement the law.”[7] If authorities “act in ways that [are perceived] as procedurally just, their rules are viewed as more legitimate, and are more likely to be obeyed.”[8] According to this theory, it is may be less important that sanctions be harsh than that they be perceived as fair and consistent.

Under either theory—an instrumental view of punishment and deterrence, or a procedural justice theory—sanctions are significant. How disciplinary authorities respond to ethical violations exposes the real values held by the profession and by the court. Deterrence is ineffective where the disciplinary process is slow and some disciplinary committees treat violations with greater leniency than others. Procedural justice is absent where sanctions are perceived as arbitrary.

The New York Rules of Professional Conduct provide guidance in determining what kinds of actions by lawyers are acceptable and laudatory, and what actions are unacceptable and worthy of condemnation. Such rules should help lawyers make choices to resolve difficult questions of professional responsibility. When the sanctions are arbitrary and inconsistent, however, the sanctions may tell a different story than that told by the rules. The sanctions imposed by the disciplinary committees and the four departments of the Appellate Division tell us what the rules really mean.

Until recently, disciplinary sanctions in New York were rarely published. The Court’s recent mandate that attorney disciplinary records be publicly searchable is a step in the right direction. This greater transparency may, however, have the undesired result of making even more visible the arbitrary nature of the disciplinary process.

Legal ethics teachers differ on whether we should teach values, or should focus on what Judith Maute calls “safe lawyering,” or “the law of lawyering.”[9] However, even teaching “safe lawyering” necessarily teaches the bar and the court’s implicit values. Although students, like practitioners, may have little direct exposure to disciplinary actions, they pick up on the messages sent by disciplinary enforcement—or lack thereof—indirectly.

Although lawyers may not be familiar with the details of all discipline cases, some decisions are published, others are abstracted in local legal newspapers and bar magazines, and still others become the subject of gossip within the profession. Lawyers thus form impressions about whether, how often, and in what types of cases disciplinary agencies pursue sanctions. These impressions may have a substantial influence on how lawyers respond to or respect particular rules.[10]

Law students may be particularly susceptible to the undermining effect of a seemingly arbitrary disciplinary system. Students, especially in legal ethics and professional responsibility, want to know “the answer.” The Multistate Professional Responsibility Exam reinforces the view that there should be clear right and wrong answers, in legal ethics if in no other field. Law students, if they look beyond the immediate pressures of the MPRE, want to know what they must do to avoid, or minimize, disciplinary sanctions in practice.

Inconsistent and arbitrary sanctions send a message, and it is not a message of deterrence, or even a message of procedural justice: it is a message that the profession does not take legal ethics seriously. Lack of standards teaches that the rules themselves are arbitrary; that the real question is not, “what are my ethical duties,” but “what can I get away with?”

The arbitrary nature of disciplinary sanctions when teaching legal ethics based on the ABA Model Rules is magnified when we turn our attention to the disciplinary system in New York. A fragmented attorney disciplinary system that imposes different standards on lawyers based on whether their offices are downstate, upstate, or in Western New York raises questions as to why they are treated differently. University of San Diego law professor David McGowan notes that “[o]ne of the hardest things to teach students is how to deal with the sometimes significant variation in judicial reactions to similar conduct. . . . ‘Pay close attention to custom’ is helpful, and an obvious point, but I do find that students throw up their hands and tend toward nihilism when they perceive how much variation they will face.  Teaching realism without nihilism is important but tough.”[11]

Differences between sanctioning standards between states are troubling but manageable. For law students preparing to practice in New York, however, wide disparities in sanctions for the same violations depending on which part of the state one practices in may lead to a nihilistic attitude toward the very idea of ethical duties. New York’s system of disciplinary sanctions should be one worthy of respect.

[1] “Individuals look to others to figure out how to behave and to understand the relevant social norms in a situation, particularly in ambiguous circumstances. They may conform their own behavior to the behavior of others; they learn vicariously through the experiences, rewards, and punishments of others; and they engage in social comparison processes.” Jennifer K. Robbennolt, Behavioral Ethics Meets Legal Ethics, 11 Ann. Rev. Law & Soc. Sci. 6.1, 6.6 (2015).

[2] “Preface,” ABA Standards for Imposing Lawyer Sanctions (2002).

[3] Levy v. Ass’n of the Bar of N.Y., 333 N.E.2d 350, 352 (N.Y. 1975) (internal quotation marks omitted).

[4] Tom Tyler, Why People Obey the Law 21 (1990).

[5] Id.

[6] Stephen Gillers, Lowering the Bar: How Lawyer Discipline in New York Fails to Protect the Public, 17 Legis. & Pub. Pol’y 485 (2014).

[7] Tyler, supra note 4, at 273.

[8] Id. at 274.

[9] Judith Maute, Remarks at the W.M. Keck Foundation Forum on the Teaching of Legal Ethics (Mar. 22, 1996), quoted in Lisa Lerman, Teaching Moral Perception and Moral Judgment in Legal Ethics Courses: A Dialogue About Goals, 39 Wm. & Mary L. Rev. 457, 461(1998).

[10] Fred C. Zacharias, The Purpose of Lawyer Discipline, 45 Wm. & Mary L. Rev. 675, 739 (2003) [“when rule violations that are visible or well-known go unsanctioned, such failure to prosecute undermines the professional standard as a credible threat. It encourages other lawyers to violate the particular standard or the codes as a whole” (citations omitted)]; id. at 727, n. 191 [“For example, the deterrent effect of a particular sanction may depend as much on how frequently or automatically the targets perceive that punishment is imposed as on the severity of the punishment”].

[11] David McGowan, Realism Without Nihilism–An Example From a Sanctions Order for Deposition Objections, Legal Ethics F. (Aug. 1, 2014, 1:33 PM), http://www.legalethicsforum.com/blog/2014/08/realism-without-nihilism-an-example-from-a-sanctions-order-for-deposition-objections.html.

Video: “Returning the Client to Legal Education”

On April 4, 2014, I was one of the participants in an innovative conference, Igniting Law Teaching, at American University’s Washington College of Law. Over a dozen speakers delivered short TED-style talks on topics relating to improving legal education. My talk, “Returning the Client to Legal Education,” without citing the literature explicitly, was informed by my study of cognitive biases and conflict of interest. I welcome any comments.

Big Moral Issues and Everyday Compromises

There are certain big cases that are featured in every legal ethics casebook. In the material on Rule 1.6, Confidentiality of Information, those cases include Spaulding v. Zimmerman and the “Buried Bodies” case. These are compelling cases. Each of them presents a stark contrast between lawyers’ ethical duties and what are probably the moral intuitions of most students. In Spaulding, we examine the conduct of defense lawyers who could have done something to warn the innocent plaintiff of a life-threatening injury uncovered in the medical examination by the defendant’s medical expert. What sort of moral monster, we expect our students to ask, would do such a thing? In the Buried Bodies case, two court-appointed lawyers learn (in part through hypnosis–one of the peculiar elements that make this far from a typical capital case) that the defendant had killed two missing girls, and the lawyers do not reveal this information to the grieving families. Again–what sort of moral monster would do such a thing? Is this what I’m expected to do as a lawyer? At this point, if not before, it becomes clear which students have no intention of going into criminal defense.

This year I rethought my approach to these cases, and greatly reduced the class time we spent on them. There is a danger that focusing on such “big moral issues” cases teaches the wrong lesson: that issues of legal ethics are rare, perhaps once-in-a-lifetime situations, far removed from the practice lives of most lawyers. As an experienced lawyer once told me upon learning I taught legal ethics: “Oh, we had an ethics issue, once.”

Consider the actions of Frank Armani and Francis Belge in representing Robert Garrow in the Buried Bodies case. Neither of the lawyers wanted the case; Armani asked to be excused, but Garrow refused to work with another lawyer, and the judge did not want such a high-profile case to be tainted by the possibility of Garrow defending himself.  It was difficult enough for Armani and Belge to defend such a distasteful defendant in that small community; when it was discovered they knew the missing girls were dead, and where their bodies had been hidden, they were subjected to death threats, criminal charges, and disciplinary complaints. The criminal and disciplinary actions were dismissed, but both lawyers suffered lasting damage to their careers.

Among ethics scholars and the criminal defense bar, Armani and Belge are heroes. Faced with one of the most difficult choices they would ever make, they acted in accordance with their ethical duties. As Thomas Morgan said at an ABA CPR Conference in 2007, theirs is “a central case in our de­velopment and understanding of what it means to be a lawyer.”

What I tried to emphasize to my students this week was that, while the anger and hatred of the community that the lawyers suffered was real, from the perspective of the ABA Model Rules, this was not even a difficult case. Their duty could not have been clearer: their client’s confidentiality must not be violated. What made this a difficult problem was not determining the ethical choice: it was carrying through on that choice.

I have a theory. Without in any way diminishing the integrity of Armani and Belge in protecting their client’s confidentiality, I suggest that their actions were not all that heroic–if by heroic one means something that most of us could only aspire to, and hope to live up to if we were ever in their situation.

I asked my students what they would do in Armani and Belge’s situation. As usual, the class was pretty evenly divided: half felt they would keep the information confidential, and half thought they would find some way to disclose the information–either anonymously, hoping to avoid detection and disciplinary charges, or publicly, and willing to accept the consequences.

I suggested to my students, however, that if they were in Armani and Belge’s situation, almost all of them would do the “right” thing and protect Garrow’s confidentiality.

Armani and Belge found themselves faced with one of those “big moral issues.” The ethical weight of their decision whether or not to disclose hit them in the face. There was no possibility that they could avoid the conclusion that this was a defining moment in their careers as lawyers. To breach confidentiality and betray their client–as loathsome as he might be–was something like an existential challenge to their identity as good lawyers. To breach confidentiality would mean seeing themselves as failures.

In most ethical situations that lawyers face, the duty is not nearly so clear. Situations that might be fraught with ethical problems, such as whether to accept or continue a representation when a conflict begins to appear, can be overlooked. Ethical fading results in a dulled awareness of ethical situations, and problems that present ethical challenges are easily rationalized as business decisions.

This is why I worry about that lawyer whose firm faced an ethical issue, once. Ethical issues arise every day. Most are properly resolved with little difficulty. But the lawyer who doesn’t see them, and who is not on the lookout for ethical choices, is a lawyer at risk.

Ethical Lawyers and Ethical Cultures

In a new post at Slaw, Alice Woolley discusses some of the problems with a virtue ethics approach to legal ethics from a behavioral perspective.

Prospective employers and recent law grads identify ethics and professionalism as crucial competencies for new lawyers. In a recent article Professor Neil Hamilton summarized various empirical studies showing that legal employers rank “integrity, honesty and trustworthiness” as a crucial quality in a prospective lawyer hire, regardless of the type of legal work for which the lawyer is being hired. Similarly, new graduates view professionalism as one of the most important skills for the new lawyer. In his article Hamilton notes a survey by Canada’s own Federation of Law Societies in which lawyers who graduated between 2007 and 2012 indicated that “ethics and professional skills” are essential competencies in legal practice (survey data is here).

From this review Professor Hamilton suggests various conclusions. One is that employers should try to identify hiring criteria to identify those candidates with the necessary “integrity, honesty and trustworthiness” (p. 17). Another is that law schools should incorporate competencies related to “values and virtues”, such as “Commitment to self development toward excellence at all competencies; Initiative/drive/strong work ethic; Integrity, honesty, and trustworthiness; Self awareness, the capacity to recognize strengths and weaknesses, seeks/responsive to feedback” (p. 28) . . . .

 The far bigger issue with Hamilton’s study and recommendations, however, is their underlying assumption that it is ethical people (and lawyers) who create ethical practice. This assumption is wrong. It is true that the kind of person I am will affect the choices I make. However, that is demonstrably true not in relation to my possession of particular moral virtues, but is rather true in relation to my personality – whether, eg, I am an introvert or an extrovert – and in relation to my development of good moral judgment (as a matter of reason and intuition). Further, the kind of person I am will affect my behaviour in a far less significant way than will the circumstances in which I find myself. As I have discussed in a number of papers (see, eg, here, here and here) there is far greater consistency of behaviour by different people within a single situation than there is from the same person across different situations. When, for example, a test is administered in circumstances that enable cheating, students generally will cheat; when a test is administered in circumstances that discourage cheating, students generally won’t cheat.

What this means is that if we want ethical legal practitioners we not only need to identify what constitutes ethical practice in particular practice settings, we also need to create a culture and circumstances of legal practice that encourage those behaviours, and discourage those which are unethical. If, for example, unethical recording of billable hours is an issue in large law firm practice, the circumstances of practice in a law firm, and the regulation of law firms (by clients or by regulators) need to be designed to discourage unethical billing. Trusting individual lawyers to be ethical, or trying to hire honest lawyers, is unlikely to make any material difference in creating that sort of good behaviour (or any other).

As always, read the whole thing.

Use of Force and the Representativeness Heuristic

A post on Gin and Tacos speculates on one possible contributing factor in instances of police overreaction and the use of deadly force. It makes intuitive sense to me, based on my understanding of the representativeness heuristic:

This story has gotten little play outside of the upper Midwest, but last week the Milwaukee police killed a mentally ill homeless man named Dontre Hamilton, age 31. After two different Milwaukee police patrols responded to calls that he was loitering outside of a Starbucks – in both cases the responding officers spoke with Hamilton, determined that he was not committing a crime, and departed without incident – a third pair of officers approached him. In a chain of events that isn’t entirely clear, Hamilton ended up with one of the officers’ batons. Seeing him armed with…a stick, one of the officers drew his gun without warning and shot him.

Ten times…

Ordinarily I leave the sociology to sociologists but bear with me here. I’ve harbored this theory for a long time and I don’t know how to set it up in a way that won’t make it sound weird so I will just throw it out there: have pro sports, and particularly football, led a large part of our society to believe that large black males are capable of feats of superhuman strength? Does a police officer pull his gun and believe – sincerely believe – that no less than ten bullets are needed to subdue a suspect when he happens to be black, male, and larger than average?

It’s possible that the answer is simpler. For example, we have considerable evidence that when cops start shooting they tend not to stop shooting until they’re empty. Additionally, we know that when the police are scrutinized for using excessive force or the disturbingly high number of black males who die in custody the Hamilton story is the standard line: the pitiable, outmatched police officer was faced with a large black male suspect with the strength of a dozen stout men, flipping over cars and punching through brick walls. Deadly force was the only option, naturally.

It would be staggering if there was no correlation between weekends spent watching mostly large, mostly black males perform athletic feats that defy description while showing the kind of strength usually associated with adult bears and the belief of so many Americans that every confrontation with a black male calls for the use of force – and the greatest available amount of force at that.

 

NYS Board of Law Examiners to Simplify Character and Fitness Examination

The New York State Board of Law Examiners today announced plans to simplify the Character and Fitness investigation process. “The current process, requiring the bar applicant to submit a significant amount of paperwork, is cumbersome and time-consuming, as well as subjective and prone to error and bias,” the BOLE said in a statement. “It also fails to address the competitive pressures that play such an important part in many ethically problematic situations.”

The new Character and Fitness process will feature a series of practical, objective tests to assess the bar applicant’s ability to make ethical decisions in circumstances of limited information. In the elimination round of the test, pairs of bar applicants will stand on a bridge over a trolley track, while a group of retirement-age law professors attempt to repair the track before the arrival of the oncoming trolley. In the judgment and decision-making round, the bar applicant will be stationed near a train switch. On one fork of the tracks will be a group of recent law school graduates (funded on a temporary basis by their law schools), while a fellow bar applicant with a higher law school GPA will be tied to the other track.

“Our analysis of the data shows that, over time, this process will help to resolve the current market imbalance between the number of law grads and available law jobs,” the statement continued. “The outlook for law school admissions is bright, especially for applicants with quick reflexes and good upper body strength.”

The Psychology of Legal Ethics

Friends of the blog Michael T. Colatrella Jr., Catherine Gage O’Grady, Andrew M. Perlman, Nancy Rapoport, Randy D. Gordon, Jan L. Jacobowitz, and Scott Rogers presented a panel on The Psychology of Legal Ethics at the first Psychology and Lawyering conference at UNLV Law School on February 21, 2014.

Panel 5 – Legal Ethics – 2.21.14 from William S. Boyd School of Law on Vimeo.

BLE In the Classroom, Part 1

Over the past few years I have tried a variety of approaches to incorporating behavioral legal ethics into my Legal Ethics and Professional Responsibility class. A few years ago I assigned Carol Tavris and Eliot Aronson’s Mistakes Were Made (but Not by Me) as a supplemental text to my casebook. A few students appreciated it, but most seemed to view it as irrelevant psychobabble, and halfway through the semester I dropped the remaining readings from Tavris and Aronson. This semester I’m trying again, with a focus on the behavioral ethics and conflicts of interest.

I’ve found conflicts of interest to be the hardest part of the class to teach, or at least the part where students are most resistant. Some students, at least, seem to have a very hard time getting their minds around the idea of having to turn down or withdraw from a representation. Part of this, I think, is because of students’ fears about making a living in the current legal market. Turning down a paying client sometimes seems to be too much to ask. Cognitive biases like hyperbolic discounting, self-serving bias, or the endowment effect might themselves also play a part in students’ overvaluing of the immediate rewards of fees over the risk of disciplinary sanctions. My working hypothesis is that students’ and lawyers’ assessment of conflict of interest problems and the degree of communication required to obtain informed consent are areas where an understanding of behavioral ethics can be especially valuable. So I soldier on.

Last week I introduced conflicts of interest with the aid of the Bounded Ethicality and Fundamental Attribution Error videos from The University of Texas at Austin, McCombs School of Businss Ethics Unwrapped series.

Last night I continued the discussion of material limitation conflicts under Rule 1.7(a)(2) with a TEDTalk on Optimism Bias by Dr. Tali Sharot of University College London’s Faculty of Brain Sciences:

I wanted my students to think about flawed assessment of the risk of conflicts arising where they may not be obvious at the inception of the representation. As we worked through the problems in the casebook (Lisa G. Lerman & Philip G. Schrag, Ethical Problems in the Practice of Law), I occasionally warned the students when they were viewing a situation through “big optimism glasses,” and reminded them to put their “pessimism glasses” on to think about the likely problems of joint representation of criminal co-defendants or family members. It’s too early to tell how well it worked, but I think the images of “optimism glasses” and “pessimism glasses” provided a useful tool for analysis.

New on SSRN: Epistemics at Work: The Theory of Mind in Principal-Agent Relations

An interesting working paper that offers a useful perspective on allocation of decision making between lawyer and client.

Epistemics at Work: The Theory of Mind in Principal-Agent Relations

Stefan Linder, ESSEC Business School

Nicolai J. Foss, Copenhagen Business School – Department of Strategic Management and Globalization

Diego Stea, Copenhagen Business School – Department of Strategic Management and Globalization

February 24, 2014

Abstract: 

Agency theory studies the impact of and remedies to asymmetrically distributed information in principal-agent relations. Yet, it does so in a surprisingly binary manner: it assumes the principal to be perfectly knowledgeable of some pieces of information (such as the agent’s risk aversion), while others (such as the agent’s true effort exerted) are considered to be perfectly private information of the agent. Agency theory thus makes very asymmetrical assumptions about the knowledge of principals and agents, largely neglecting the human capacity for interpersonal sense-making. This chapter explores the implications of instilling agency theory with a more realistic account of the human capacity to read other people’s desires, intentions, knowledge, and beliefs — that is, to have a theory of someone else’s mind.