Behavioral Legal Ethics

Abstract

Complaints about lawyers’ ethics are commonplace. While it is surely the case that some attorneys deliberately choose to engage in misconduct, psychological research suggests a more complex story. Iit is not only “bad apples” who are unethical. Instead, ethical lapses can occur more easily and less intentionally than we might imagine. In this paper, we examine the ethical “blind spots,” slippery slopes, and “ethical fading” that may lead good people to behave badly. We then explore specific aspects of legal practice that can present particularly difficult challenges for lawyers given the nature of behavioral ethics - complex and ambiguous ethical rules and standards, agency relationships, the ethos of the adversarial system, the financial and temporal pressures of modern legal practice, positions or feelings of relative status or power, and cues or pressure from others. The psychology we present provides substantial insight into why attorneys sometimes behave unethically, why attorneys may have difficulty curbing or reporting the unethical conduct of their clients or fellow attorneys, and why it is often difficult for attorneys to see and learn from their own ethical missteps and the missteps of others. At the same time, the psychological research also provides insight into why attorneys are often able to resist substantial pressure to act unethically. We draw on the psychological research to make suggestions for how individual attorneys and legal employers can enhance their approach to ethics.

Keywords: ethics, ethical fading, ethical blind spots, law and psychology, professional responsibility

JEL Classification: K10, K30, K49