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).
Professor Molly Wilson
Co-founder of this blog, Molly J. Walker Wilson, has written an important article, Defense Attorney Bias and the Rush to the Plea, about psychological biases that infect the plea bargaining process. A topic near and dear to my heart (see here), Wilson’s article is a must read for anyone interested in the human behavior that drives what she describes as the “‘meet-em-and-plead-em’ culture of public defense.”
This summary from the article provides a snapshot:
This article challenges the current attorney-controlled, plea-bargain system of criminal justice and calls for a greater role for criminal defendant choice in pretrial decisions. The central claim of this Article is that defense attorneys are vulnerable to biases that influence their perceptions of their clients’ cases and predispose them to be overly favorable to plea deals. Giving defendants more voice in pretrial choices will lead to more pretrial investigation and fewer ill-advised plea deals.
Part II of this Article discusses the psychological biases that influence defense attorney decision-making. These biases include those resulting from repeat experience with the criminal justice system, biases associated with a desire to confirm existing beliefs, and biases that are motivated by a need to preserve one’s own positive self-concept. Part III delves into the phenomenon of the “meet-em-and-plead-em” culture of public defense. This Part outlines the features of the current crisis in public defense and explains how the lack of resources lead public defenders to pressure clients to take deals offered by prosecutors. Part IV introduces the problem of the innocent indigent defendant and explains why attorneys’ incentives to pressure clients to take deals can result in bad choices. Part V provides a closer look at how lawyers’ biases lead them to favor deals and how courts nevertheless routinely privilege attorney choice. Part VI proposes an alternative model, one in which the criminal defendant himself plays a dominant role in every major step in the criminal defense process. This Part reveals a number of advantages to a defendant-led defense, and provides a data-driven rationale for why the defendant, and not the attorney, should be in control of the decision process.
The articles produced in conjunction with New England Law Review’s symposium on Behavioral Legal Ethics are now available online. Thanks to all for helping to make this event such a success:
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).
The final version of my article, Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility, has been published in the Michigan State Law Review. It is available here.
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.
I’m happy to announce that the New England Law Review‘s fall symposium on November 10th will focus on Behavioral Legal Ethics. The symposium’s lead article, by Associate Dean Catherine Gage O’Grady from The University of Arizona James E. Rogers College of Law, is entitled “A BEHAVIORAL APPROACH TO LAWYER MISTAKE AND APOLOGY.” Response articles include:
- Professor Donald Langevoort, LAWYERS, IMPRESSION MANAGEMENT AND THE FEAR OF FAILURE
- Professors Nancy Sachs and Milton Regan, Jr., BEHAVIORAL ETHICS AND THE FOUR-COMPONENT MODEL OF MORAL JUDGMENT AND BEHAVIOR
- Professor Wallace Mlyniec, LAWYERING PRACTICE: UNCOVERING UNCONSCIOUS INFLUENCES BEFORE RATHER THAN AFTER ERRORS OCCUR
- Professor Tigran Eldred, MORAL COURAGE IN INDIGENT DEFENSE
Panelists at the symposium include Dean O’Grady; Professor Paul Tremblay (Clinical Professor of Law and Law School Fund Distinguished Scholar, Boston College Law School); Barbara Bowe, LICSW (Lawyers Concerned for Lawyers); and me.
Admission is free and open to the public.
Thanks to Ethicalsystems.org for posting an important new draft paper by Professor Donald Langevoort of Georgetown Law Center. In it, Professor Langevoort — one of the leading scholars in the field of behavioral law and corporate ethics — takes a multidimensional approach to the thorny question of corporate culture and compliance. Many of the lessons have applicability to a variety of organizational cultures, including law firms and other legal organizations. A must read for anyone interested in the topic.
Here is the abstract:
In the last few years especially, law-makers have increasingly invoked culture as something crucial to good compliance. The phrase “culture of compliance” has thus made its way into common legal discourse as describing both a goal and a marker. Precisely they mean by this is contestable, but there is enough evidence that the demand for healthy compliance culture is serious to invite careful thought. What is it, or should it be, and how might we know? This article draws from organizational behavior, behavioral ethics, and financial economics to develop an approach to how and why corporate cultures resist naively appealing interventions of “tone at the top” and ethical exhortation. Though recognizing the limited institutional capacity of government enforcers to promote structural changes in corporate governance and internal controls, the article concludes that any hope of getting to a socially optimal level of compliance — including a healthy culture of compliance — depends on a strong public voice to counter the beliefs and biases that grease internal perceptions of how firms succeed. In the end, however, the most important message about cultures of compliance is for corporate leaders and, especially, boards of directors. It is much too easy to look around and see good people working hard at difficult jobs and assume that a good compliance culture exists simply because everyone has been warned of the damage that can come from getting caught doing wrong. Or worse, to assume that an observable abundance of intensity, loyalty and creativity are signs that all is good. Taking culture seriously — appreciating the opportunities for transmitting values as well as anticipating the many hidden pathways of resistance and denial — is a necessary step toward the sort of compliance that never attracts prosecutors’ unwanted attention.