Using behavioral ethics means to reduce legal ethics risks

In various prior posts the COI Blog has explored the potential impact of “behavioral ethics” on how compliance and ethics programs are designed and deployed, and separately has asked whether law firms should have C&E programs to address legal-practice-related risks.  So, I was delighted to learn recently of a soon-to-be-published paper which more or less seeks to connect these two topics, and also does much more than that.

In “Behavioral Legal Ethics,” – which will soon appear in the Arizona State Law Journal  and a draft of which is available for free download here –   Jennifer K. Robbennolt, Professor of Law and Psychology at the University of Illinois    and Jean R. Sternlight, Director of the Saltman Center for Conflict Resolution and Michael and Sonja Saltman Professor of Law, William S. Boyd School of Law, University of Nevada Las Vegas  offer what is apparently the first comprehensive overview ever published of the many  implications of behavioral psychology for legal ethics.  They initially describe how – through “ethical blind spots,” slippery slopes, “ethical fading” and other behavioral ethics phenomena – lawyers (as well as others) are affected by “bounded ethicality.”   They next review how various professional norms and contexts (such as the principal/agent relationship) can lead to unethical conduct by attorneys, as can the intense economic pressures of legal practice and the relatively high status and power of many members of the profession.   Added to this parade of horribles are various factors – such as the “illusion of courage” –  that give attorneys (and others) a misleading sense of comfort that they will respond appropriately when faced with the misconduct of others.

Additionally, unlike many other behavioral ethics studies, Robbennolt and Sternlight also offer detailed and – to my mind –  compelling possible solutions to the ethics risks they identify.  On an individual level, these include attorneys:  maintaining an awareness of the impact of psychology on ethical issues they may face,  doing more actively to consider ethics in their professional lives and to be more self-critical, planning ahead as to how  they would deal with ethical dilemmas,  and recognizing and confronting others’ unethical conduct.

Most important from my perspective are the article’s recommendations on an organizational – i.e., C&E program –  level.  Among other things, the authors propose enhancing the ethical culture of the entities in which lawyers practice (i.e., firms, corporate law departments, government agencies, etc.),  such as by discussing and modeling appropriate professional conduct  and improving  ethics education (with the latter effort including helping lawyers understand behaviorist risks).  With respect to the important (and challenging)  area of C&E-related incentives, the authors recommend  that organizations do more both to protect lawyers from the various stresses – financial and other – that can contribute to ethical failures, and also to reward ethical behavior (i.e., use of positive incentives).

The authors suggest as well that organizations take greater steps to promote attorneys reporting of suspected ethics violations, including by:

–          making  “clear that ensuring organization-wide ethical compliance is part of attorneys’ job responsibilities and will benefit the organization”;

–          providing many channels through which to report suspected violations – including the appointment of  an ethics counsel, an ethics committee, or an ethics ombudsperson; and

–          “publiciz[ing] instances in which reporting led to positive change, while at the same time being careful to protect confidentiality and not to  spark retaliation.”

Finally, they argue that law firms should monitor the ethical conduct of their attorneys (such as using “software to monitor billing patterns…”).

For readers of this blog who share my interest both in behavioral ethics and compliance programs for lawyers, “Behavioral Legal Ethics” is an important article indeed (and I am looking forward to the publication of the final version in the coming months).