Article Preview: Lawyering Practice: Uncovering Unconscious Influences Before Rather Than After Errors Occur

It will likely come as no shock that most lawyers will inevitably face ethical challenges shortly after they begin to practice law. The types of ethical dilemmas faced by new attorneys, and the manner in which those ethical challenges are resolved, is largely dependent on the environment in which the new attorney has chosen to work. Associate Dean Catherine O’Grady’s recent legal scholarship has focused on the ethical decision-making of new attorneys working in private law firms. In her latest article, A Behavioral Approach to Lawyer Mistake and Apology, Associate Dean O’Grady argues that senior lawyers in law firms should examine ethical missteps made by lawyers through the lens of social psychology. By focusing on behavioral principles of psychology, Associate Dean O’Grady believes, senior lawyers in law firms will be in a better position to address ethical lapses after they occur and to prevent their recurrence by developing leadership models that allow them to pass their insights on to the firm’s new lawyers.

In Professor Wallace J. Mlyniec’s response to O’Grady’s article, titled Lawyering Practice: Uncovering Unconscious Influences Before Rather Than After Errors Occur, Professor Mlyniec argues that Associate Dean O’Grady’s after-the-fact approach to rectifying ethical lapses should be coupled with more robust training and contemporaneous reflection. Professor Mlyniec, drawing from his experience as a long-time clinical law professor, maintains that training that allows for reflection by new attorneys prior to beginning work on a client matter will make the attorney cognizant of problematic ethical and professional issues before they arise. Professor Mlyniec argues that a deterrence-oriented training model, although costly and time-consuming, will increase the probability that ethical issues are dealt with before they come to fruition. This model will allow firms to better prevent any potential damage arising from ethical and professional lapses of the firm’s new attorneys.

After briefly summarizing Associate Dean O’Grady’s work, Professor Mlyniec chronicles how economic forces and client expectations have led law firms to become more business-minded institutions. Professor Mlyniec argues that this has caused many firms to eliminate formal, in-house law firm training programs for new associates, as they are no longer viewed as profitable. This business climate, Professor Mlyniec posits, may have led Associate Dean O’Grady to conclude that an after-the-fact approach is the most viable way to address, resolve, and prevent ethical lapses. However, Professor Mlyniec argues, addressing these issues after they arise may not cure the problem, and new lawyers will likely continue to make the same mistakes if they are addressed in such a manner.

Instead, Professor Mlyniec’s clinical teaching experience has shown him that a new attorney’s pre-event review of client matters with an experienced legal practitioner allows for legal and ethical issues to be foreseen and addressed before any harm is done to the client or to the firm itself. Although Professor Mlyniec admits that this will be both costly and time-consuming, he believes that a renewed emphasis on formal training of new attorneys is a worthy endeavor that will help to ensure that new lawyers act ethically and make sound professional decisions.

Mlyniec’s article will appear in Volume 51 of the New England Law Review On Remand.

Contributing Editor: Robert S. Murphy III

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