Category Archives: Uncategorized

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.  What happens next, we will see).

Advertisements

Two Brief Announcements

Twitter BLEBlog Pic

  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!

Repeated Misconduct and “Unethical Amnesia”

Those of us who study and write about ethics often wonder why human beings repeat unethical behaviors and fail to learn from their mistakes. Recently, researchers from Northwestern and Harvard have grappled with that question and believe that they may have an answer. Maryam Kouchakia and Francesca Gino conducted a study on cheating and found evidence that people suffer from “Unethical Amnesia,” the tendency to forget past, unethical behavior.  Kouchakia and Gino hypothesize that the psychological discomfort that individuals experience when they cheat leads them to obfuscate memories of their ethically questionable actions. As a result, these individuals fail to learn from the past, and are more likely to repeat bad acts.

More information about the research can be found here: Unethical Amnesia

New ABA Video — “Hidden Injustice: Toward a Better Defense”

2016-08-23_1426

As I’ve noted previously, research on implicit bias has taken hold at the highest levels of government, with the U.S. Department of Justice requiring training on implicit bias for all of its employees.

Criminal defense lawyers, of course, are also prone to implicit bias, as Professor L. Song Richardson has written in her excellent article in the Yale Law Journal. Now she and other experts discuss implicit bias and criminal defense in a new video, produced by the ABA, which is available here. It is an excellent introduction to the subject, and can be quite useful in classroom discussions (I plan to use it in my criminal defense ethics class this semester).

(The research basis for implicit bias also corresponds with the reasons why lawyers for indigent defendants can suffer from what I call “ethical blindness,” as I have written elsewhere).

Happy viewing!

BLE and the Practicing Lawyer

Having recently returned from International Legal Ethics Conference VII, I was happy to see so much interest in the emerging field of Behavioral Legal Ethics (BLE).  The two BLE panels on which I participated were well attended.  Other panels also included discussions of BLE, including a fascinating discussion of how behavioral science is making its way into the education of South African lawyers.

I am also heartened to see that the field is expanding to include important discussions among legal practitioners.  For instance, Catherine O’Grady and I have produced this online CLE program with the Practising Law Institute that has been viewed by more than 800 lawyers (registration fee required).  As another example, I just came across this article in a recent edition of the Oregon State Bar Bulletin (the magazine for Oregon’s practicing lawyers) that lays out some of the fundamentals of BLE (citing many leading BLE scholars such as Jean Sternlight & Jennifer Robbennolt, Robert Prentice and Catherine O’Grady).  How great that BLE has started to take hold with those who need it most — lawyers who regularly struggle with the ethical dilemmas that arise in practice.

For anyone interested in BLE, it is an exciting time indeed!

The Supreme Court’s Intuition

I’ve noticed over the years that, at least with regard to judicial disqualification, the Supreme Court has a penchant for making interesting assertions about human psychology, but then failing to provide an empirical basis for its claims — a matter I discuss in more detail with regard to the Court’s recent decision in Pennsylvania v. Williams in a new blog post on the New England Law faculty website, On Remand.

Update: 06/23/16:  Others have written more extensively about the role of unconscious bias with regard to judicial recusal and disqualification.  For some of the scholarship in this area, see:

Debra Lyn Bassett, Three Reasons Why the Challenged Judge Should Not Rule on A Judicial Recusal Motion, 18 N.Y.U. J. Legis. & Pub. Pol’y 659 (2015)

 Melinda A. Marbes, Reshaping Recusal Procedures: Eliminating Decisionmaker Bias and Promoting Public Confidence, 49 Val. U. L. Rev. 807 (2015)

 Melinda A. Marbes, Refocusing Recusals: How the Bias Blind Spot Affects Disqualification Disputes and Should Reshape Recusal Reform, 32 St. Louis U. Pub. L. Rev. 235 (2013)

 Debra Lyn Bassett & Rex R. Perschbacher, The Elusive Goal of Impartiality, 97 Iowa L. Rev. 181 (2011)

Ethics By Design

2016-06-14_1121

Many of the leading researchers and scholars in the area of behavioral ethics and systems design gathered last week at a conference held by EthicalSystems.org.  Entitled “Ethics By Design,” the conference focused on business ethics, but much of what was discussed has direct applicability to the world of Behavioral Legal Ethics. Luckily for those of us who were not in attendance, videos of the conference presentations are now available here.  Thanks EthicalSystems.org for your leadership and work in the field!

Update: 6/17/16:  For those not familiar with the work of EthicalSystems.org or its approach, the introduction to the conference by the organization’s founder, Jonathan Haidt, is a great introduction: