Short Primer on Motivated Reasoning and Legal Ethics

Here is a short primer on Motivated Reasoning and Legal Ethics, published in the PLI Chronicle. This is a companion to the interactive video on the same subject, which is available here. The co-authors are Prof. Molly Walker Wilson and Tigran Eldred.

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Debating Debate (repost)

Many lawyers started on their path toward law in high school and college — as members of an organized debate team, arguing one side and then the other of the annual national resolution. For me it was an all-consuming affair in high school, with travel most weekends to debate tournaments across the country. Exhilarating and formative, debate taught me many of the analytical and research skills I have needed since — as a lawyer and now a teacher.  So, I was very happy to see Robert Prentice’s excellent response to the recent NYT op-ed critique of organized debate.  Professor Prentice is correct that, if we are looking to understand our wayward political discourse, the explanation is not to be found in the tools taught by organized debate, but rather in the psychological processes that produce self-serving and related psychological biases. These are useful lessons for all lawyers, especially those interested in the psychology of ethical decision-making.

As Professor Prentice notes:

When politicians engage in excessively partisan wrangling, it is not because of the debate training that some small number of them may have had. It is because of the self-serving bias. Debaters, more than others, know that there are at least two sides to every argument because they’ve practiced arguing for both sides. They know better than others that they should be open minded, though the self-serving bias may cause them to ignore than knowledge.

Because of their training, debaters also know better than most, that some arguments are better than others, that real facts should be more persuasive than “alternative facts,” and that calling something “fake news” just because you wish it were fake new does not make it fake news.

Those of us who wish to be moral actors must realize that (a) in the political arena, we must fight against the undue impact of the self-serving bias, and (b) the self-serving bias undermines the integrity of our moral judgments just as it does our political judgments. But you can let your kids go out for the debate team, we promise.

Professor Prentice’s full response is available here.

Has competitive debate trained students to make one-sided arguments that have led to our current "unproductive political discourse," or is there something else at play? #newblogpost https://t.co/lBbFfYvfBC

— Ethics Unwrapped (@EthicsUnwrapped) October 17, 2019

Scholarship Update

Anyone who is interested in ethical decision-making by in house counsel now has an exhaustive new study on which to draw. Entitled In House Lawyers’ Ethics:  Institutional Logics, Legal Risk and the Tournament of Influence, the book  is co-authored by Richard Moorhead, Stephen Vaughn and  Cristina Godinho.

 

Here is the abstract:

This book provides an empirically grounded, in-depth investigation of the ethical dimensions to in-house practice and how legal risk is defined and managed by in-house lawyers and others. The growing significance and status of the role of General Counsel has been accompanied by growth in legal risk as a phenomenon of importance. In-house lawyers are regularly exhorted to be more commercial, proactive and strategic, to be business leaders and not (mere) lawyers, but they are increasingly exposed for their roles in organisational scandals. This book poses the question: how far does going beyond being a lawyer conflict with or entail being more ethical? It explores the role of in-housers by calling on three key pieces of empirical research: two tranches of interviews with senior in-house lawyers and senior compliance staff; and an unparalleled large survey of in-house lawyers. On the basis of this evidence, the authors explore how ideas about in-house roles shape professional logics; how far professional notions such as independence play a role in those logics; and the ways in which ethical infrastructure are managed or are absent from in-house practice. It concludes with a discussion of whether and how in-house lawyers and their regulators need to take professionalism and professional ethicality more seriously.

(for an excellent review of this book in JOTWELL by Professor Amy Salyzyn, see here).

Job Opportunity @ Ethical Systems

Ethical Systems, a leader in the field of behavioral science and business ethics, is seeking a new Executive Director. Readers of this blog know how often we cite to, and rely on, the work done by Ethical Systems. This is a fantastic opportunity to lead an organization that is at the cutting edge of behavioral science and ethical decision-making.

Here is the tweet announcing the position:

We are looking for someone to take the helm at Ethical Systems—please share!

Do you understand the corporate world and respect empirical evidence? Can you build and lead a team that will improve companies using evidence-based methods?

Apply here! https://t.co/62J8gJQaGs

— Ethical Systems (@EthicalSystems) July 3, 2019

Must See TV (actually YouTube video)

Anyone interested in the psychology of negotiation is likely to be well acquainted with the scholarship of Professor Russell Korobkin, who is Vice Dean for Academic and Institutional Affairs and Richard C. Maxwell Professor of Law at UCLA Law School (for the breadth of his scholarship, see here). Professor Korobkin recently gave the 2019 Chris Beecroft Jr. Lecture at the UNLV William S. Boyd School of Law, entitled “Behavioral Ethics and Legal Negotiation.” The lecture provides a wonderful overview of the field of behavioral ethics and how it relates to types of ethical issues that arise during legal negotiations (as an added benefit, the lecture is introduced by Professor Jean Sternlight, Director of the Saltman Center for Conflict Resolution at UNLV Law School, whose work essentially co-founded the field of Behavioral Legal Ethics).

Here is the video:

BLE Blog hits 20,000 views!

Announcement:

The Behavioral Legal Ethics blog, founded as a place for a wide-ranging discussion about the intersection between behavioral science, law and ethics, recently reached the milestone of 20,000 views. Recent blog entries include discussions of the psychology of wrongful convictions, the role of loss aversion in the Watergate scandal, and the psychological dimensions of the duty to report misconduct under rule 8.3 of the Model Rules of Professional Conduct. “We are proud that the blog has become an important venue in the legal community for the discussion of  how lawyers actually make ethical decisions,” stated Professor Tigran Eldred, who co-founded the Behavioral Legal Ethics blog with Professor Molly J. Walker Wilson and Professor James G. Milles in 2014.

Thank you to everyone who visits the blog.  It is much appreciated!

Scholarship Update

Professor W. Bradley Wendel

For a fascinating discussion of the role of behavioral ethics in the context of judicial decision-making, see W. Bradley Wendel, Campaign Contributions and Risk-Avoidance Rules in Judicial Ethics, 67 DePaul L. Rev. 255 (2018).  Professor Wendel’s work contrasts the rules of judicial recusal from those of attorney conflicts, making the argument that the former should more closely track the latter. Behavioral ethics research sits at the center of the paper. From the introduction (footnotes omitted):

“Well-understood, predictable psychological mechanisms create ‘blind spots’ in which the effect of a conflict of interest is not apparent to someone subject to it. The effect of campaign contributions on judges’ perceptions of bias is often unconscious. To make matters worse, judges also remain unaware of their unawareness resulting in a persistent and difficult-to-dispel illusion of objectivity. Judges, like other professionals, believe their ethical commitments are sufficient to withstand the bias effects of external factors, such as financial conflicts of interest.”

John Dean, Watergate and Loss Aversion

In the wake of Watergate, where so many of the culprits of the scandal were lawyers, the ABA responded by requiring law students in accredited schools to take at least one course in professional responsibility.  Then, as now, the thinking goes that immersing students in discussions about the profession’s rules and values will encourage more ethical behavior, including at the highest levels of government.  Those of us who advocate for a behavioral approach to legal ethics, however, have come to believe that teaching the profession’s rules and values, though central, are insufficient.  Rather, students also need to learn about how ethical decisions actually are made — that is, to learn about the situational variables, cognitive biases and heuristics that contribute to unethical behavior.

Recently, I was pleased to learn that John Dean — famed former White House Counsel whose riveting testimony about the Watergate cover-up during the Senate Watergate Hearings was a key part of the saga — also believes in a behavioral approach. In an illuminating deep dive into the Watergate years on The Josh Marshall Podcast, Dean reflects upon how, he now realizes, loss aversion explains much of his misconduct during his time in the Nixon White House. As Dean states (starting around 30:00 of the podcast; and as he has written elsewhere), during his active participation in the Watergate cover-up (for which ultimately he was sentenced to jail) he was experiencing a “loss frame,” which caused him to irrationally “double down” on his own misbehavior to prevent exposure and detection.  Only later on, Dean notes — when he started to cooperate with prosecutors — did his loss aversion abate.

John Dean’s explanation of his own behavior has an empirical basis.  A number of studies have demonstrated the perils of loss framing. For instance, in one set of experiments, researchers found that “decision makers engaged in more unethical behavior if a decision was presented in a loss frame than if the decision was presented in a gain frame.” Other studies (e.g., here and here) have concluded that cheating occurs more frequently to avoid a loss than to secure a gain. And, as one expert on loss aversion has noted, “a host of empirical and experimental studies have shown that tax compliance is higher when, following overwithholding, taxpayers expect a refund (a gain frame), than when, following under-withholding, they expect to pay additional sums (a loss frame).” Eyal Zamir, Law Psychology and Morality: The Role of Loss Aversion (2015) at 32.

As the new semester begins, with Watergate again in the news, many professional responsibility classes undoubtedly will be revisiting the lessons learned from the events of more than 40 years ago.  As these conversations take place, loss aversion and its role in producing unethical behavior can be — and I hope will be — an important part of the discussions.

Behavioral Science and the Duty to Report Misconduct, Pt. 2

A previous post promised updates on an interesting case, Joffe v. King & Spalding LLP, No. 1:17-cv-03392-VEC, S.D.N.Y (2018), which addresses a common law breach of contract claim arising from the duty to report lawyer misconduct. Two weeks ago, Judge Caproni denied defendant King & Spalding’s motion for summary judgment in the case, finding that there are “questions of fact regarding whether [plaintiff] reported or attempted to report ethical concerns and whether King & Spalding retaliated against him for doing so”  (Slip Op. at 22) (the decision is available behind various paywalls; reporting is available here and here). As a result, the case now moves forward to a potential trial.

One of the most interesting aspects of Judge Caproni’s decision is the legal standard it adopts for common law breach of contract under the controlling New York case, Wieder v. Skala, 89 N.Y.2d 628 (1992).  King & Spalding had argued for an “extremely narrow” Wieder test that would permit claims “only to law firm associates who are faced with plainly unethical conduct and therefore face a ‘Hobson’s choice’ between complying with their own obligation to report unethical conduct . . . and their job” (Slip Op. at 13). In other words, proof of breach of contract would require proof of a mandatory duty to report based on a clear violation of the ethical rules. Rejecting this standard, and borrowing from frameworks in other forms of retaliatory discharge under federal law, the court concluded that “a plaintiff establishes a prima facie case under Wieder by demonstrating that he reported, attempted to report, or threatened to report suspected unethical behavior and that he suffered an adverse employment action under circumstances giving rise to an inference of retaliation.” (Slip Op. at 14). Notably, this standard does not require proof of actual misconduct; rather, the plaintiff need only possess a “sincerely held, good faith belief that there had been an ethical violation.” (Slip. Op. at 15, n.11). Once the plaintiff satisfies the prima facie test, the burden shifts to the defendant to show that either the plaintiff did not act in good faith or that the adverse employment decision “was not connected to the attempted, threatened or actual report” of misconduct. The plaintiff will then bear the burden to show that the “purported non-retaliatory reasons are pretextual.” (Slip Op. at 14-15).

Where the case goes from here remains to be seen — we will provide developments as they arise.

(7/16/18 update:  Curious development — Plaintiff Joffe’s lawyers (from Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C.) moved to withdraw as counsel.  Much of the basis for the motion is redacted (presumably to protect client confidences), but what is unredacted indicates a dispute over payment of attorney’s fees and aspects of litigation strategy.  What happens next, we will see).

(9/13/18 update: On Tuesday, Judge Caproni issued an order granting the request of Joffe’s lawyers to withdraw, finding that there were “satisfactory reasons” for the motion (the order is available here).  Expert discovery will be delayed until late November to allow Joffe to secure new counsel. Whether the case will move forward or settles remains to be seen).

(10/8/18 update: On October 2, Magistrate Judge Aaron granted a charging lien against Joffe, the amount to be determined at the end of the litigation.  Opinion here).

(10/23/18 update:  On October 16, plaintiff Joffe filed a motion to vacate the charging lien).

Two Brief Announcements

1. As the field of Behavioral Legal Ethics matures, we are happy announce that our blog just passed 15,000 page views! Thank you to everyone who has been reading and visiting — it’s very much appreciated!
2. To mark the occasion, we thought it would be a good idea to have our own Twitter account, so you can now find us at @TheBLEBlog. Follow us if you would like updates about recent posts, activities, etc.

As always, we are eager for feedback and suggestions, either as comments to posts or directly to the contributors.

Thank you!