28 Pages Posted: 13 Aug 2014 Last revised: 25 Mar 2016
Date Written: May 13, 2015
This article explores the emerging field of behavioral legal ethics and decision making to analyze the dynamic that takes place when a new attorney makes ethical decisions that diverge from ethical beliefs. The study of decision making is a broad area that seeks to ascertain how people uncover and process facts and information, reach judgments, and make decisions — it provides analytic tools for decision making and focuses on systematic errors commonly made and heuristics commonly employed by decision makers. In law, knowing how to make decisions and solve problems is critical and recognized by the American Bar Association as one of the top ten “fundamental lawyering skills” every new lawyer should acquire. The separate but related study of behavioral ethics has its roots in social psychology and business — it has been applied most frequently to ethical decisions made in a business context. In contrast to viewing ethics and morality from a philosophical perspective or as grounded in rules of conduct or societal norms, behavioral ethics explores empirically how people actually behave. It thus allows a comparison between the actor's ultimate behavior and how the actor thinks he should or would behave and it permits fuller consideration of unintentional unethical conduct.
Recently, scholars have begun to apply behavioral ethics principles to the practice of law — examining behavioral legal ethics. This article contributes to that growing body of literature. So far, scholars of behavioral legal ethics have generally treated the field as homogenous. By focusing on the new attorney’s ethical decision making, this article shows how the predictions of behavioral ethics may be heterogeneous across attorneys, in particular impacting new lawyers differently than more experienced lawyers. The article highlights the influences of situational and psychological pressures and the dangers that succumbing unreflectively to intuitive decision making and heuristics can have on the new lawyer's professional development. New attorneys are uniquely vulnerable to certain situational pressures and may be especially susceptible to some decision making heuristics. Interestingly, on the other hand, research suggests that the newest attorney in a legal working group or firm may actually be the one in the room who is most likely to see ethical implications and frame a situation in ethical terms rather than relying on moral intuition, business schemas, and decision making short cuts. Thus, the new attorney is in a unique position — confronting a number of unique situational challenges, but in a posture that makes her best able to avoid the temptations of inappropriate intuitive ethical decision making, she is perfectly positioned consciously to shape the process that will guide her ethical decision making and contribute importantly to her professional development.
Keywords: Behavioral Legal Ethics, Decision Making, and the New Attorney’s Unique Professional Perspective
Suggested Citation: Suggested Citation
O'Grady, Catherine Gage, Behavioral Legal Ethics, Decision Making, and the New Attorney's Unique Professional Perspective (May 13, 2015). 15 Nevada Law Journal 671 (2015); Arizona Legal Studies Discussion Paper No. 16-09. Available at SSRN: https://ssrn.com/abstract=2479081