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Article Preview: Ain’t Misbehaving: Behavioral Ethics and Rest’s Model of Moral Judgment

Lawyers and law students are taught how to spot ethical issues through analysis of hypothetical situations. When it comes to recognizing our own ethical mistakes, there appears to be a disconnect between the ability to apply that knowledge to theoretical situations and to use it to resolve situations in practice.

In their article Ain’t Misbehaving: Behavioral Ethics and Rest’s Model of Moral Judgment, authors Milton C. Regan, Jr. and Nancy L. Sachs respond to Associate Dean Catherine Gage O’Grady’s analysis of the “dynamics that can affect new lawyer’s ability to recognize that they have made a mistake and their willingness to acknowledge it to others.” As both Associate Dean O’Grady and the authors point out, these kinds of mistakes can have significant ethical implications if the mistaken attorney cannot or will not acknowledge the impact of her error. In order to assist in the process of acknowledgment and avoid ethical issues, Regan and Sachs propose a framework for guiding these issues to their appropriate conclusion. Regan and Sachs find value in the union of psychology and ethics to guide the thinking of a new lawyer deciding whether to acknowledge her mistake to others and the ethical violations that can arise from that choice.

The authors borrow from moral development psychologist James Rest’s four components of ethical decisionmaking and behavior to make their “checklist” for new lawyers facing the fear of mistake. Rest’s four components are: (1) how does the person interpret the situation and how does he or she view any possible action as affecting people’s welfare; (2) how does the person figure out what the morally ideal course of action would be; (3) how does he or she decide what to do; and (4) does the person implement what he or she intends to do.

Rest’s first component—which the authors characterize as “moral awareness”—is used in this context to “refer to the perception by a new lawyer that deciding whether to acknowledge a mistake has ethical significance.” The challenge here is to overcome the desire to “avoid the dread,” asAssociate Dean O’Grady calls it, that comes with acknowledgement of mistake. In utilizing Darley and Batson’s Good Samaritan experiment to explicate the idea of moral awareness, Regan and Sachs illustrate particularly well how this component and Rest’s model can help young lawyers conquer their fear of mistake.

The second guideline offered by Regan and Sachs is that of moral reasoning—thinking about what ought to be done in a particular situation. This type of thinking will sound familiar to any lawyer or law student who has completed an ethics course in law school. The ability to apply rules to a factual situation is a basic foundation of legal education, but the desire to avoid the potential consequences of mistake acknowledgement in actual practice impairs a new lawyer’s ability to utilize this skill.

The third phase of Rest’s model—moral action—may be the most difficult to put into practice for young lawyers. This involves realizing the course that one should take, the aforementioned moral reasoning, and actually putting it into practice to possibly correct mistake and resolve ethical issues that have arisen. Unfortunately, many inherent psychological processes work against the young lawyer in putting what she knows she should do into action. On a more basic level, the desire for approval by more senior attorneys and the wish to avoid blame and criticism push against the knowledge that a mistake has been made and ethical problems are present.

Finally, Regan and Sachs illustrate the concept of moral implementation where the young lawyer must put into action the plan she has developed by working through the previous components of Rest’s model. Regan and Sachs deftly utilize the example of the famous—perhaps infamous—Milgram experiment to demonstrate why deference to authority can impair a young attorney’s moral implementation. The Milgram experiment, which involved a subject’s administering supposed “shocks” to another on command of a “teacher,” revealed how deference to authority can override one’s conclusion of what is the right thing to do. The natural tendency to defer to a higher authority is increased when one’s career advancement is, or is perceived to be, on the line.

Regan and Sachs are careful to characterize this proposal as a series of guiding principles to assist lawyers on what they should be considering when deciding whether to acknowledge mistake. Incorporating these principles of behavioral psychology may help young lawyers to better acknowledge past mistakes and avoid them in the future.

Regan and Sachs’ article will appear in Volume 51, Issue 1 of the New England Law Review.

Contributing Editor: M. Abigail Pratt

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