49 Pages Posted: 2 Apr 2009 Last revised: 27 Apr 2014
Date Written: April 1, 2009
Whenever a new corporate or governmental scandal erupts, onlookers ask "Where were the lawyers?" Why would attorneys not have advised their clients of the risks posed by conduct that, from an outsider's perspective, appears indefensible? When numerous red flags have gone unheeded, people often conclude that the lawyers' failure to sound the alarm must be caused by greed, incompetence, or both. A few scholars have suggested that unconscious cognitive bias may better explain such lapses in judgment, but they have not explained why particular situations are more likely than others to encourage such bias. This article seeks to fill that gap. Drawing on research from behavioral and social psychology, it suggests that lawyers' apparent lapses in judgment may be caused by cognitive biases arising from partisan kinship between lawyer and client. The article uses identity theory to distinguish particular situations in which attorney judgment is likely to be compromised, and it recommends strategies to enhance attorney independence and minimize judgment errors.
Keywords: Cognitive Biases, Partisan Kinship, Lawyers and Clients, Identity Theory, Independence, Judgment, Situational Effect, Identity Salience, Torture Memos
JEL Classification: K49
Suggested Citation: Suggested Citation
Robertson, Cassandra Burke, Judgment, Identity, and Independence (April 1, 2009). 42 Connecticut Law Review 1 (2009); Case Legal Studies Research Paper No. 09-11. Available at SSRN: https://ssrn.com/abstract=1372138