This document discusses applying a behavioral approach to teaching lawyer ethics. It argues that research-led teaching is needed, focusing not just on how ethics is taught but also examining the context and underlying philosophies. It suggests that behavioral and economic approaches could provide insights beyond traditional doctrinal analysis. The document also presents examples of ethical issues lawyers may face and calls for new ideas generated through multi-disciplinary collaboration between legal practice and academia to better influence ethical decision making.
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Cepler 2013 behavioural turn
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. My argument
ď¨
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Research led teaching
What we teach not just how we teach
ď¤ Law
dominated by knowledge and doctrinal
manipulation
ď¤ Context/philosophy
ď¤ Behavioural and economic approaches
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The best lawyers, the best law firms, the best
governments, and the best critics needâŚ.
8. Examples (allegations not
proven)
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Reporting on âindependent investigationsâ to be
shown to third parties
Giving deliberately misleading evidence to a
Parliamentary Committee
âContinuingâ to act for clients who lie in
parliamentary investigations
Threatening to sue on facts known to be
untrue
9. Examples (allegations not
proven)
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Giving opinion letters that may facilitate
accounting fraud
Avoiding regulatory detection in ways which
appear to be illegal, $300m
Preventing information getting to your clientâs
audit committee, $7bn
10. Traditionally ways of looking at
these problems?
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Are rules broken?
Power and structure?
Philosophical choices?
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Yes, butâŚ.
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16. IHC: Should you give the
opinion?
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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.
22. Lawyers: Practice and Ethics
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Professionalism â Professional Regulation
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Costs and incentives
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Quality and markets
ď¨
Innovation and technology
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The influence of business on inhouse
ď¨
Theories of ethics
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Values and ethical decision making
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Zeal and advocacy
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Truth telling and negotiation
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Confidentiality and privilege
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Creativity and responsibility
23. Things we could look at âin the
labâ
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Are âprofessionalsâ more or less ethical
ď¤ http://lawyerwatch.wordpress.com/2013/06/05/wh
at-does-thinking-like-a-professional-mean/
ď¨
ď¨
How money influences behaviour
De-biasing strategies
ď¤ Conflict
of interest rules pretty limited
ď¤ As are informed consent strategies
ď¤ Are there better ways?
24. Rules
ď¨
The effect of different rules
ď¤ You
should always act in good faith and do your
best for each of your clients
ď¤ [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
25. Out in the field
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Riskier cultures
Complexity vs
simplicity
ď¤ Principles
ď¨
ď¨
ď¨
ď¨
vs rules
Institutional design
Good management
Appetite for risk
Tolerance of
ambiguity
26. Not just behavioural
experiments
ď¨
Three and a half minute contracts
ď¤ http://lawyerwatch.wordpress.com/2013/09/29/se
curities-lawyers-and-sticky-contracts-innovationand-elite-law/
ď¤ elders and betters
ď¤ boilerplate
ď¤ law firm systems
ď¤ the economics of contracts and commercial
awareness
ď¨
Contracts as enterprise design not words on a
page
27. Conclusions
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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
28. 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