63 Pages Posted: 2 Oct 2012 Last revised: 13 Jun 2013
Date Written: September 28, 2012
The reasons criminal lawyers so often fail to provide adequate legal representation to indigent defendants are well-known: severe underfunding, excessive workloads and other disincentives for competent representation work together to encourage quick disposition of cases, with little regard for the quality of legal services that are provided. Yet, largely overlooked in this equation is whether defense lawyers who provide subpar representation are aware of their own shortcomings. To answer this question, this article focuses on the psychology of ethical decision-making. Relying on research that reveals the subtle ways that self-interest can cause people to overlook unethical behavior, it argues that defense lawyers will tend to be “ethically blind” to their own poor performance. Concluding that lawyers who suffer from ethical blindness cannot be expected to improve the quality of legal representation on their own, it recommends ways to reduce psychological barriers to competent representation that have proven successful in other contexts.
Keywords: criminal law, indigent defense, public defenders, professional responsibility, psychology, behavioral economics, behavioral ethics, ethical blindness
JEL Classification: K14
Suggested Citation: Suggested Citation
Eldred, Tigran, Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases (September 28, 2012). 65 Rutgers Law Review 333 (Winter 2012); New England Law | Boston Research Paper No. 12-04. Available at SSRN: https://ssrn.com/abstract=2153869