We’ve posted before about implicit bias, including the Department of Justice’s training on implicit bias, the ABA’s video and related work on the subject and the role that implicit bias plays in Batson challenges. In a fascinating new development, the United States District Court for the Western District of Washington (which includes Seattle) has produced a video for jurors to watch. As noted by the Marshall Project in this article discussing the initiative (originally posted here), the video is being shown to potential jurors as they wait to be called for service. The court has also posted a set of pattern jury instructions that can be used at a judge’s discretion during a trial. Will other federal courts follow suit? And will there be some form of rigorous evaluation to assess the effectiveness of this innovative approach? Developments to follow . . .
- 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!
- 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.
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.