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: Continue reading