The importance of regulatory context: some questions for legal educators

By Justine Rogers

ANU College of Law hosted its annual legal ethics roundtable last week. The theme was ‘reimagining lawyer regulation’.

The regulatory ideas presented raised many worthwhile questions for legal education. I’ve selected two here.

From the talk given by keynote speaker, Professor Leslie Levin, expert in the legal profession, ethical decision-making and lawyer discipline, University of Connecticut:

1) How do we teach law students to be professional when the primary influence over their ethical attitudes, decision-making and compliance will be their particular, divergent work contexts?

Building on other research, Levin’s study of some 1300 lawyers revealed that of all the determinants of future ethical behaviour, most decisive is practice context (workplace, type of client, court etc) and the behaviour of those who inhabit it. Far less so or less significantly are the things that students need to disclose for admission (such as mental health).

Context shapes the importance given to the professional bodies outside the workplace when deciding what values and rules are worth following, such as, the associations, the regulators (or the disciplinary architecture), the court, and the insurers. For instance, big firms look within their own firms and otherwise interact with insurers, prosecutors are less concerned with criminal liability (when does that happen?), in-house counsel don’t worry about discipline, whereas sole practitioners do. In other words, different things matter to different practices.

Levin asked: How do we create professional training, sanctions, and incentives in order to motivate lawyers to behave the way we want them to and to teach them what positive norms there are in the profession? How do we regulate lawyers if context (what matters in each context) is the key variable?

This also means we need to think about how to develop professional integrity and core ethical skills among students for contexts that will introduce, emphasise and enforce professional values in very different ways.

From the talk given by Dr Stephen Tang, Lecturer, ANU College of Law:

2) What is the proper role of behavioural ethics (or any applied psychology) in legal ethics courses?

Behavioural (Legal) Ethics is ‘trending’ in legal ethics education. Popularised by books like Thinking Fast and Slow, and Nudge, this scholarship argues that people are fundamentally irrational and use cognitive short cuts that can lead to suboptimal decision-making. At UNSW Law, we use behavioural legal ethics material in our core course to allow students to better identify, prepare for and discuss ethics issues. Our material includes this leading Robbennholt and Sternlight piece and this wonderful series of ‘Ethics Unwrapped’ videos from UT Austin, both of which were commended by Tang.

This material is useful, he argued, at least as a set of cautionary tales of how irrationality can contribute to immorality and discrimination in routine, subconscious ways. But his concern with behavioural ethics, or the behavioural economics or applied psychological approaches from which it derives, is how the information can be used  – and is used – to manipulate behaviour, even if in a benignly paternalistic or ‘nudging’ way. Equally concerning, its use is usually guided by simplistic, narrow, short-term and consequentialist (eco-based) ideas of people’s motivations and values.

When regulating lawyers, he argued, we need to contemplate and include professional narratives, and organisational climates, and cultures – or more complexity. We will have, then, a better chance of success in fostering certain positive behaviour because we will understand bigger psychological dimensions and developments over time, not just quick, aesthetic behavioural changes, of the same sort as the etched image of a fly in a urinal used to lead to cleaner bathrooms (yes, that’s a real example of applied psych). “If regulation is inescapable, then we must understand people in context. We need to have a sense of our own limits as regulators when deciding what other people decide.”

Similarly, I would say, when teaching students behavioural ethics to more effectively engage in ethical discussions, it must involve a commitment to use the information transparently and inclusively as a way of better understanding and discussing mistakes and fallibilities, of broadening the range of harms considered, and not ruling out or underestimating other motivations, explanations and solutions.

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