Wrongful Obedience and the Professional Practice of Law
Catherine Gage O'Grady
University of Arizona - James E. Rogers College of Law
19 J. L. Bus. & Ethics 9
Occasionally, brand new attorneys engage in unprofessional or unethical conduct. This article explores the probable impact of one theory, grounded in social psychology, that may help explain egregious conduct in a new lawyer — wrongful obedience. The article begins by discussing the seminal studies on obedience conducted by Stanley Milgram in the 1960s, which were recently partially replicated. While almost no one thinks they would engage in wrongful obedience, Milgram’s experiments and recent replications suggest that 2/3 of us would wrongfully obey. Applying what we know about obedience to the professional practice of law presents an interesting dichotomy: every lawyer, even a brand new lawyer, has, at a minimum, an individual, autonomous professional obligation to practice law ethically and professionally. Yet, attorneys work in groups, often in hierarchies that exist within established office cultures, and new attorneys face overwhelming pressures to conform to the perceived group ethic. The fact that every new lawyer knows about her independent professional obligations does not appear to weaken an attorney’s desire to obey a supervising authority.
While rule changes might help facilitate defiance against wrongful directives and encourage attorney whistleblowing, my thesis is that revising statutes and rules of professional conduct will not go far enough to ward off a new attorney’s tendency to obey — attorneys simply will not actively resist their own wrongful obedience, and indeed may not even recognize it as such, unless the culture of their immediate work environment encourages them to exercise autonomous independent judgment in the face of conformance pressures. This conclusion finds recent support within the tragic circumstances of the long time child sexual abuse committed by Pennsylvania State University football coach Gerald Sandusky and the conclusions of the Special Investigative Counsel, as found in the recent report known as the “Freeh Report.” In the last section of this paper, I draw parallels to Milgram’s conclusions as well as to recent efforts within and outside of law, including the Freeh Report’s recommendations to universities, to offer suggestions for managing and supervising lawyers within legal organizations to guard against wrongful obedience and ensure that conformance pressures do not override autonomous professional judgment in the legal workplace.
Number of Pages in PDF File: 37
Keywords: Professional Responsibility, Behavioral Ethics, Ethics, Social Psychology Law
Date posted: August 26, 2012 ; Last revised: February 24, 2013