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Why Good Intentions are Often Not Enough: The Potential for Ethical Blindness in Legal Decision-Making

REAFFIRMING LEGAL ETHICS: TAKING STOCK AND NEW IDEAS, Reid Mortensen, Michael Robertson, Lillian Corbin, Francesca Bartlett, Kieran Tranter, eds., Routledge, Forthcoming

ANU College of Law Research Paper No. 09-32

20 Pages Posted: 7 Nov 2009 Last revised: 17 Nov 2009

Kath Hall

Australian National University - ANU College of Law

Date Written: November 4, 2009

Abstract

This chapter takes as its starting point the question of how otherwise experienced and principled lawyers can make blatantly unethical decisions. As recent research has shown, lawyers can become involved in legitimizing inhuman conduct just as they can in perpetuating accounting fraud or hiding client scandal. To an outsider looking at these circumstances, it invariably appears that the lawyers involved consciously acted immorally. Within the common framework of deliberative action, we tend to see unethical behaviour as the result of conscious and controlled mental processes.

Whilst awareness is always part of our actions, this chapter challenges the pervasiveness of assumptions about the power of conscious processes in ethical decision making. Drawing on a range of psychological research, it focuses on two important findings: first, that automatic mental processes are far more dominant in our thinking than most of us are aware; and second, that because we do not generally have introspective access to these processes, we infer from their results what the important factors in our decision making must be. These findings challenge the notion that individuals can be fully aware of what influences them to act ethically or unethically. It also suggests that we need to concentrate upon those conscious processes that we do know influence decision making in deepening our understanding of how to improve ethical awareness.

Keywords: Lawyers, Professional Misconduct, Ethics, Psychology, Ethical Decision Making

Suggested Citation

Hall, Kath, Why Good Intentions are Often Not Enough: The Potential for Ethical Blindness in Legal Decision-Making (November 4, 2009). REAFFIRMING LEGAL ETHICS: TAKING STOCK AND NEW IDEAS, Reid Mortensen, Michael Robertson, Lillian Corbin, Francesca Bartlett, Kieran Tranter, eds., Routledge, Forthcoming ; ANU College of Law Research Paper No. 09-32. Available at SSRN: https://ssrn.com/abstract=1500137

Kath Hall (Contact Author)

Australian National University - ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

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