The Situation of Legal Ethics

Kath Hall recently poster her situationist paper, “Why Good Intentions are Often Not Enough: The Potential for Ethical Blindness in Legal Decision-Making” on SSRN.  Here’s the abstract.

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This chapter takes as its starting point the question of how otherwise experienced and principled lawyers can make blatantly unethical decisions. As recent research has shown, lawyers can become involved in legitimizing inhuman conduct just as they can in perpetuating accounting fraud or hiding client scandal. To an outsider looking at these circumstances, it invariably appears that the lawyers involved consciously acted immorally. Within the common framework of deliberative action, we tend to see unethical behaviour as the result of conscious and controlled mental processes.

Whilst awareness is always part of our actions, this chapter challenges the pervasiveness of assumptions about the power of conscious processes in ethical decision making. Drawing on a range of psychological research, it focuses on two important findings: first, that automatic mental processes are far more dominant in our thinking than most of us are aware; and second, that because we do not generally have introspective access to these processes, we infer from their results what the important factors in our decision making must be. These findings challenge the notion that individuals can be fully aware of what influences them to act ethically or unethically. It also suggests that we need to concentrate upon those conscious processes that we do know influence decision making in deepening our understanding of how to improve ethical awareness.

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To download the paper for free, click here.  To read a sample of related Situationist posts, see “The Situation of Lawyers’ Complicity,” “Gatekeepers Inside Out – Abstract,” “The Situation of Lawyers and Practicing Law,” “Law, Chicken Sexing, Torture Memo, and Situation Sense,” “The Situation of John Yoo and the Torture Memos,” “Why Do Lawyers Acquiesce In Their Clients’ Misconduct?,” Part I, Part II, and Part III, “The Illusion of Wall Street Reform,” “On the Ethical Obligations of Lawyers: Are We Snakes? Are We Supposed to Be?.”