Introducing Behavioural Legal Ethics

Justine Rogers

Search the TV channels most nights, and you’re likely to come across the lawyer with “moral pluck”. You know, the witty and resourceful lawyer who has become, according to William H. Simon, the most depicted lawyer of popular culture. You’ll know him (and it’s almost always a ‘him’); the one who’s willing to commit moral transgressions to support an informal, sympathetic set of values. A local example is Cleaver Greene, the brilliant but slightly sketchy Sydney barrister in the series, Rake.

But it’s not just writers who are interested in lawyers’ ethics, legal scholars have long tried to understand their nature and effects. And now there’s a new approach that examines it from the perspective of psychology. It’s called Behavioural Legal Ethics.

Don’t let the psychology connection put you off. Rather than the waving about the diagnostic model like a judgmental teacher’s pointer, the starting position of Behavioural Ethics is that most people who do bad are not inherently bad. Research from this field has shown that these are simply normal people responding to environmental pressures, using typical modes of human thinking. In this way, for our purposes, rather than: Why are lawyers bad? Or, Which kinds of lawyers are bad? The question becomes: How can good lawyers do bad things?

Two examples of typical human thinking that can influence ethics are our obedience bias and our over-confidence in our own ethicality. In law, the role morality and partisan bias that characterises the ‘zealous advocate’ relies on and demands additional cognitive framing and filtering. Driven by our need for a stable identity, these patterns of thought serve our particular social and professional situations, including, for lawyers, the legal institutions in which they work. These processes can result in ethical lapses or blindspots or even the circumvention of ethics altogether. Through this approach, ethics and the thinking that it involves becomes something very social and very human.

This past semester, I have incorporated this new legal scholarship in our course, Lawyers Ethics & Justice, at UNSW Law  and I have found it immensely valuable. Among many things, it gives students a handrail to engage with the rest of the material. More specifically:

• Its human quality means students can start to see themselves in the ethics scenarios, regardless of the specifics of the legal practice elements, which can otherwise have a faraway quality for them.
• It seems to reduce the students’ shame in discussing ethics issues since unethical behaviour is examined as an outcome, in most instances, of the interaction between the human mind and certain situational forces. It is not about singling out the virtuous from the pack.
•  It encourages, then, connection. It overcomes, in a somewhat meta way, the students’ natural over-confidence bias, which allows them to disconnect on the unspoken grounds that they would never do bad things, and their rationalisation that they might not practice law anyway.
• Finally, it’s been very exciting for students to have certain concepts with which to confidently identify and assess ethics issues. Without much prompting, the students have keenly shared in class and in the online forum, examples of the decision-making errors, both general and legal, that characterised a range of ethical infractions and scandals.
• Many of them have said that this part of the course has changed their own behaviour.

So, yes, I’d recommend having a look at what’s going on in this field. For a nice overview and some excellent further resources, see Associate Professor Tigran Eldred’s post here. Tigran is one of the main contributors to the new Behavioral Legal Ethics blog, which is dedicated to discussing research and teaching in the new area. Just be warned though, you’ll never look at your favourite pop culture law (or politics or medical) shows in the same way again!