LAB, CLASSROOM,
REALITY: LAWYER
ETHICS AND A
BEHAVIOURAL TURN
Richard Moorhead, UCL Centre for Ethics and Law
@richardmoor...
My argument



Research led teaching
What we teach not just how we teach
 Law

dominated by knowledge and doctrinal
man...
I learnt early on this was
possible…
Lawyers and ethics
Lawyers‟ philosophies
Structure [agency]
Promotion to partnership
PEP and other indicators
Hourly rates/NWNF/Publics
Reputation
Business focus
The Triad


Public Interest in the administration of justice



Client Interest



Firm Interest
Examples (allegations not
proven)








Reporting on „independent investigations‟ to be
shown to third parties
Givin...
Examples (allegations not
proven)






Giving opinion letters that may facilitate
accounting fraud
Avoiding regulatory...
Traditionally ways of looking at
these problems?



Are rules broken?
Power and structure?
Philosophical choices?



Yes...
Designing Ethics Indicators for Legal Services
(Moorhead et al, 2012)
#itsagoodthinghonest
IHC: Should you give the
opinion?


You are GC at a large investment bank that
wants to lower its leverage by engaging in...
Two noticeable phenomena



They did not agree



What guided their
decision making
Motivation
and reflection
Am I different?
Universalism
2
Self-Direction

1.5

Benevolence

1
0.5
0
-0.5

Stimulation

Conformity

-1
-1.5
Group Mean...
Balance sheet problem…
77% said no
Universalism
1.5
Self-Direction

1

Benevolence

0.5
0

-0.5

Stimulation, .01

Conform...
Other problems and
experiments


Values related to decisions



Different types of lawyers
Lawyers: Practice and Ethics


Professionalism – Professional Regulation



Costs and incentives



Quality and markets...
Things we could look at „in the
lab‟


Are “professionals” more or less ethical
 http://lawyerwatch.wordpress.com/2013/0...
Rules


The effect of different rules
 You

should always act in good faith and do your
best for each of your clients
 ...
Out in the field




Riskier cultures
Complexity vs
simplicity
 Principles







vs rules

Institutional design
Go...
Not just behavioural
experiments


Three and a half minute contracts
 http://lawyerwatch.wordpress.com/2013/09/29/se

cu...
Conclusions










If lawyers are there to influence behaviour
And ethics is about influencing our own
behaviou...
LAB, CLASSROOM, REA
LITY: LAWYER ETHICS
AND A BEHAVIOURAL
TURN
Richard Moorhead, UCL Centre for Ethics and Law
@richardmoo...
Cepler 2013 behavioural turn
Cepler 2013 behavioural turn
Cepler 2013 behavioural turn
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Cepler 2013 behavioural turn

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Cepler 2013 behavioural turn

  1. 1. LAB, CLASSROOM, REALITY: LAWYER ETHICS AND A BEHAVIOURAL TURN Richard Moorhead, UCL Centre for Ethics and Law @richardmoorhead http://lawyerwatch.wordpress.com r.moorhead@ucl.ac.uk
  2. 2. My argument   Research led teaching What we teach not just how we teach  Law dominated by knowledge and doctrinal manipulation  Context/philosophy  Behavioural and economic approaches  The best lawyers, the best law firms, the best governments, and the best critics need….
  3. 3. I learnt early on this was possible…
  4. 4. Lawyers and ethics
  5. 5. Lawyers‟ philosophies
  6. 6. Structure [agency] Promotion to partnership PEP and other indicators Hourly rates/NWNF/Publics Reputation Business focus
  7. 7. The Triad  Public Interest in the administration of justice  Client Interest  Firm Interest
  8. 8. Examples (allegations not proven)     Reporting on „independent investigations‟ to be shown to third parties Giving deliberately misleading evidence to a Parliamentary Committee “Continuing” to act for clients who lie in parliamentary investigations Threatening to sue on facts known to be untrue
  9. 9. Examples (allegations not proven)    Giving opinion letters that may facilitate accounting fraud Avoiding regulatory detection in ways which appear to be illegal, $300m Preventing information getting to your client‟s audit committee, $7bn
  10. 10. Traditionally ways of looking at these problems?  Are rules broken? Power and structure? Philosophical choices?  Yes, but….  
  11. 11. Designing Ethics Indicators for Legal Services (Moorhead et al, 2012)
  12. 12. #itsagoodthinghonest
  13. 13. IHC: Should you give the opinion?  You are GC at a large investment bank that wants to lower its leverage by engaging in off balance sheet accounting. There is room for doubt as to whether it is lawful under accounting rules, but your view is that it is probably not lawful. They ask you to give a piece of advice which does not touch on accounting rules that will help them make the case it is lawful. That opinion will be competent and correct but may lead to a fraud, but you do not know that it will.
  14. 14. Two noticeable phenomena  They did not agree  What guided their decision making
  15. 15. Motivation and reflection
  16. 16. Am I different? Universalism 2 Self-Direction 1.5 Benevolence 1 0.5 0 -0.5 Stimulation Conformity -1 -1.5 Group Mean -2 Hedonism Tradition Achievement Security Power
  17. 17. Balance sheet problem… 77% said no Universalism 1.5 Self-Direction 1 Benevolence 0.5 0 -0.5 Stimulation, .01 Conformity -1 No -1.5 Yes Hedonism Tradition Achievement Security, .1 Power
  18. 18. Other problems and experiments  Values related to decisions  Different types of lawyers
  19. 19. Lawyers: Practice and Ethics  Professionalism – Professional Regulation  Costs and incentives  Quality and markets  Innovation and technology  The influence of business on inhouse  Theories of ethics  Values and ethical decision making  Zeal and advocacy  Truth telling and negotiation  Confidentiality and privilege  Creativity and responsibility
  20. 20. Things we could look at „in the lab‟  Are “professionals” more or less ethical  http://lawyerwatch.wordpress.com/2013/06/05/wh at-does-thinking-like-a-professional-mean/   How money influences behaviour De-biasing strategies  Conflict of interest rules pretty limited  As are informed consent strategies  Are there better ways?
  21. 21. Rules  The effect of different rules  You should always act in good faith and do your best for each of your clients  [You] must promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to [your] own interests or to any consequences to himself or to any other person
  22. 22. Out in the field   Riskier cultures Complexity vs simplicity  Principles     vs rules Institutional design Good management Appetite for risk Tolerance of ambiguity
  23. 23. Not just behavioural experiments  Three and a half minute contracts  http://lawyerwatch.wordpress.com/2013/09/29/se curities-lawyers-and-sticky-contracts-innovationand-elite-law/  elders and betters  boilerplate  law firm systems  the economics of contracts and commercial awareness  Contracts as enterprise design not words on a page
  24. 24. Conclusions         If lawyers are there to influence behaviour And ethics is about influencing our own behaviour for the better Then we need to be more behavioural Multi-disciplinary Invest in capacity Engage between practice and academy There are limitations and there will be failures But we need new ideas and practices
  25. 25. LAB, CLASSROOM, REA LITY: LAWYER ETHICS AND A BEHAVIOURAL TURN Richard Moorhead, UCL Centre for Ethics and Law @richardmoorhead http://lawyerwatch.wordpress.com r.moorhead@ucl.ac.uk

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