Excerpt from Carole Silver's Jotwell post:
Andy Perlman’s timing couldn’t be better. His new article, A Behavioral Theory of Legal Ethics, comes out just as negative reports of lawyers’ conduct are front page news again, this time as part of the GM story. The company’s lawyers failed to save their business and engineering colleagues from disastrous decisions; in fact, their conduct may have hindered GM from addressing problems systemically. While corporation counsel generally are not the sole check on ethical and competent decision making by company insiders, they certainly are positioned structurally to a framework that is intended to lead to good decision making. But it is not just corporate lawyers who are an issue for ethical conduct, of course. Prosecutors’ failure to reveal exculpatory evidence is a continuing concern, tax lawyers’ gaming the tax shelter system is the topic of a new book by Mitt Regan and Tanina Rostain (Confidence Games), and there are many more examples.
Imagine a lawyer who discovers that a client has several smoking gun documents that will doom the client’s case if produced in discovery. Also assume the client tells the lawyer to use all lawful methods to avoid producing the information. Some legal ethicists argue that the lawyer should comply with the client’s instruction and pursue every permissible tactic, i.e., go right up to the line but not cross it. Critics of this so-called “dominant view” suggest that the lawyer should take into account other considerations, such as the interests of justice or morality.
One important practical problem with these competing prescriptions is that they do not help lawyers avoid unethical conduct. For example, even though the dominant view says that lawyers should protect the potentially discoverable documents only to the extent permissible under the law, lawyers who claim to be following the dominant view often cross the line. Similarly, prosecutors who are committed to the pursuit of justice regularly fail to comply with their constitutional obligations to disclose material exculpatory information to defense counsel. These failures raise an important question: why do lawyers who subjectively believe they are complying with prevailing theories of legal ethics — whether the dominant view or its alternatives — fail to apply the theories in the manner scholars intend?
This article suggests that the answer lies in social psychology. A vast body of research reveals that situational factors, such as placing a lawyer in a partisan role, can result in behavior that is inconsistent with conventional ethics theories. This article suggests that legal ethicists can develop more accurate and useful theories by accounting for the ways in which partisanship distorts objectivity, just as behavioral economists have drawn on social psychology to develop more accurate and useful understandings of economics.