Too often ignored, Model Rule 8.3 imposes a mandatory duty to report a violation of the Rules of Professional Conduct that “raises a substantial question as to that lawyer’s honesty, trustworthy or fitness” to practice law. When teaching this rule, I discuss many of the behavioral reasons — such as obedience and conformity pressures — that can discourage reporting misconduct, especially by young lawyers early in their careers. After all, it is not easy for any lawyer, much less a subordinate attorney, to accept the personal and professional risks associated with reporting misconduct by a colleague or superior.
This discussion with my students is enriched when we consider Kelly v. Hutton & Williams, No. 97-CV-5631 (JG), 1999 WL 408416 (E.D.N.Y. June 17, 1999), which is excerpted in the course book that I use. In that case, a young lawyer claimed he was fired for refusing to stay silent in the face of serious over-billing violations by a senior partner at his firm (the case ultimately settled under a confidentiality agreement, so we do not what would have happened at trial. As an interesting aside — the partner accused of over-billing later became a fugitive from justice for running a multi-million dollar ponzi scheme. He was recently arrested after more than two decades on the lam). In discussing the case with my students, we explore some of the reasons why the plaintiff in Hunton & Williams seemingly was able to resist the behavioral pressures to stay silent, including that he acted as part of a group of associates at the firm who together reported the misconduct internally. Another salient point is that the associates obtained advice from an outsider (a federal judge for whom one of them had clerked) before reporting the misconduct. We consider how these factors — acting as part of group and finding a trusted outsider who can act as a sounding board — can help reduce the obedience and conformity pressures that make reporting misconduct so difficult (for more discussion, see pages 775-78 and 800-01 of Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility).
For those looking for a more recent case that raises similar issues, Joffe v. King & Spalding, just hit the news. According to a complaint filed in federal court in Manhattan, Joffe was wrongfully terminated and denied other benefits after he complained to the firm’s general counsel (and outside counsel) about unethical misbehavior he had observed inside the firm. Specifically, Joffe claims the firm retaliated against the him after he reported that a partner had made false statements and misrepresentations to a federal judge in a pending proceeding. King & Spalding has recently answered the complaint, denying the charges. Interestingly, the legal theory in Joffe’s complaint — that the firm’s retaliatory conduct violates precedent set forth in a 1992 New York Court of Appeals case, Wieder v. Skala — is the same legal theory put forth in Hunton & Williams. It will be interesting to see how the case proceeds (updates to come).
As the field of Behavioral Legal Ethics expands, it’s exciting to watch how law professors are teaching the material. My article on how I teach behavioral science as part of a required 3-credit legal ethics course was recently published. Others have also started publishing about their experiences.
But what about those who want to delve into the material more deeply by teaching a semester long seminar dedicated to legal ethics and behavioral science? For those looking for a model, I encourage you to take a look at the syllabus that Professor Paula Schaefer from the University of Tennessee Law School has graciously shared. As you can see, Professor Schaefer’s course on Behavioral Legal Ethics — which is structured around a series of case studies — is an in-depth exploration of many of the core themes that has emerged from the science of ethical decision-making. The course looks fantastic (indeed, I wish I could take it!) — and I will be eager to hear more about the experience of teaching this material in a seminar setting.
The description of Professor Schaefer’s course is as follows:
Behavioral science provides insight into why lawyers who believe themselves to be ethical nonetheless engage in professional misconduct. Students will gain an understanding of the psychological factors outside of the lawyer’s conscious awareness that impact decisionmaking and develop strategies for combatting these issues in practice. Course materials will include case studies of illegal and unethical lawyer conduct and behavioral science research. Students will analyze and discuss readings in online forums and in the classroom. In a final project, students will present research into how behavioral science explains attorney misconduct in a selected practice setting.
(ps: If others know of other seminars dedicated teaching BLE, feel free to share them in the comments — it would be nice to start gathering this material in one place).
I just posted the draft of my article, Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility, ___ Mich. St. L. Rev. ___ (2016) (forthcoming). In it, I describe how I incorporate lessons from behavioral science into the survey course I teach on professional responsibility. I have discussed some of these techniques before (for example, here, here and here), but this article explores these themes and ideas in much more detail.
Here is the abstract:
The field of behavioral legal ethics — which draws on a large body of empirical research to explore how subtle and often unconscious psychological factors influence ethical decision-making by lawyers — has gained significant attention recently, including by many scholars who have called for a pedagogy that incorporates behavioral lessons into the professional responsibility curriculum. This article provides one of the first comprehensive accounts of how law teachers can meet this challenge. Based on an approach that employs a variety of experiential techniques to immerse students in the contextual and emotional aspects of legal practice, it provides a detailed model of how to teach legal ethics from a behavioral perspective. Reflections on the approach, including the encouraging response expressed by students to this interdisciplinary method of instruction, are also discussed.
A leading approach to ethics training in business schools comes from Professor Mary Gentile’s ground-breaking curriculum, Giving Voice to Values (GVV). What makes GVV so valuable is that it provides students with the specific skills they will need to act upon their values in situations where there are deep pressures to act unethically. Through a structured curriculum that draws on research findings from behavioral ethics, and that employs role plays, case studies, and simulations, students are taught how to develop what is described as a “moral muscle” — where, through practice and preparation, they pre-script and rehearse approaches to acting ethically in difficult situations. Many excellent resources are available to learn more about GVV, including Prof. Gentile’s book, Giving Voice to Values: How to Speak Your Mind When You Know What’s Right, and a series of videos about GVV narrated by Prof. Gentile and produced by Ethics Unwrapped.
Until recently, little had been written to adapt the GVV approach to the law school environment. That has now changed with an excellent article by Vivien Holmes of Australian National University College of Law (readers might be familiar with her earlier work on behavioral approaches to legal ethics). The just published article, entitled “Giving Voice to Values”: Enhancing Students Capacity to Copy with Ethical Challenges in Legal Practice,” describes ANU’s approach to teaching GVV to more than 600 law students a year (alas, it is behind a pay wall; hopefully, many readers will have access through their institutions).
Here is the abstract:
Legal ethics pedagogy does not often attend to the gap between principles and effective action. A pedagogy that does attend to this gap is ‘Giving Voice to Values’ (GVV). Developed by a US business academic, Mary Gentile, GVV focuses not on the normative questions of ’what is the right thing to do?’ but on the behavioural question ‘how do we get the right thing done?’ GVV has much to offer efforts to foster ethical behaviour in lawyers. In this article, I situate GVV within the behavioural ethics literature, which examines how and why people make the decisions they do in the ethical realm. I then turn to a discussion of the GVV curriculum and a case study of its application in legal education. I report preliminary results from research into the effectiveness of the GVV approach in postgraduate practical legal training. Finally, I encourage legal ethics teachers to experiment with GVV as a way of helping students develop skills for dealing constructively with ethical challenges in legal practice.
Highly recommended for anyone interested in teaching behavioral legal ethics!
If you are in need of continuing legal education credit (or are otherwise interested), I will be co-presenting an upcoming seminar on Behavioral Legal Ethics on November 10, 2105, with Professor Catherine Gage O’Grady of the James E. Rogers College of Law at the University of Arizona. The program provider, Practising Law Institute, is a leader in the field of CLE education.
Here is the link and description for anyone who might be interested:
Ethics discussions often focus narrowly on the “bad apples” who deliberately choose to evade the rules of the profession. But as decades of empirical research demonstrate, unethical behavior frequently results from a broader set of variables that can cause even well-intentioned lawyers to act contrary to their own principles. Recently dubbed “Behavioral Legal Ethics,” this area of study draws lessons from behavioral science – including social psychology, behavioral economics and neuroscience – to explore the many subtle, often unconscious, factors that influence ethical decision-making. These include, for example:
- The power of conformity and obedience to authority
- The role of framing in ethical deliberation
- The slippery slope toward misbehavior
- The pernicious influence of overconfidence and self-serving biases
Please join Professor Catherine Gage O’Grady from the University of Arizona’s James E. Roger College of Law and Professor Tigran W. Eldred from New England Law | Boston for a one-hour briefing on Behavioral Legal Ethics. Topics to be explored will include how behavioral science challenges standard conceptions of legal ethics, as well as how a behavioral approach can address misconduct in diverse practice settings. This session will be of particular interest to newly admitted lawyers, who are uniquely vulnerable to the behavioral factors that contribute to unethical behavior and, conversely, are well-suited to overcome them.
(full disclosure: the program fee is $299, which is the tuition charged by PLI for the event)
Update, 11/20/15: I thoroughly enjoyed teaching this material with Professor Catherine Gage O’Grady. The recording of the PLI session is available at a reduced rate here.
Robert Prentice, whose excellent online resource, Ethics Unwrapped, we have profiled here many times, is one of the leading thinkers and writers on the pedagogy of behavioral ethics. His newest article, co-written by Minette Drumwright and Cara Biasucci, is entitled Behavioral Ethics and Teaching Ethical Decision Making. The published version is available behind a pay wall here. A downloadable draft version is available here. Highly recommended!
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!