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(Self) knowledge is power: reinforcing the ethics of lawyering

Cover Story

Cite as: June 2012 86 (06) LIJ, p.28

The integrity and reputation of the legal profession  will be enhanced as lawyers develop a greater  awareness of the moral factors that motivate  their decisions.

By Adrian Evans

Concern about lawyers’ misbehaviour is perennial, but as lawyers we are understandably irritated by continuous reports of colleagues’ and peers’ ethical failures. Inside the profession, it could be more useful to have a discussion about prevention than to hand wring about outsiders’ ignorance of what lawyers do and what pressures they have to manage. More can be done to strengthen practising lawyers’ capacity for doing the right thing, in advance of problems occurring.

It is not to the point that our misdemeanours have always been with us or that lawyers as compared to other professionals may be no better or no worse. If as lawyers we stray from a path of moral accountability then there can be little long-term confidence in the integrity of the other professions, who in fact depend on our individual probity, scrutiny and dedication to human responsibility. It seems obvious that our profession needs a variety of more sophisticated preventative mechanisms in limiting some lawyers’ misbehaviour, not only for our own quality of life but also in the interests of greater public confidence in our values, motives and social contributions.

In this article, some of the possible mechanisms are briefly canvassed. Importantly, these proposals often involve a process of “ethics confirmation”: the notion that each of us ought to participate in an assessment of our ethical functioning several years after admission to practice – when our ethical sensitivities ought to have matured – as a part of our ongoing CPD.

ASSESSMENT OPTIONS

A number of mechanisms are possible in assessing lawyers’ ethics. In Figure 1 they are arranged according to the likelihood of their “evolutionary” birth and political survival: that is, the likelihood of their effectiveness, simplicity of implementation and political acceptability to the legal profession. I started with historically accepted approaches and progressed to more recent and controversial approaches.

Knowledge of professional conduct rules

There is considerable scholarship to the effect that knowledge of conduct rules in Figure 1 is unlikely to be productive of improved learning about legal ethics (and the frequent necessity for ethical choice), beyond the behaviours prohibited by local and/or national rules of professional conduct.1 This is so because professional rules are at best “signposts at the crossroads not a fence along the entire length of the highway”.2 Rule identification, articulation and delineation is, after all, lawyers’ essential skill and an expression of “social capital”. It might almost be said, I hope not too unfairly, that our training to avoid or distinguish unwelcome rules provides us with an automatic psychological ability to evade “stop” signs and engage in proscribed activity where we think our client (and ultimately therefore, our own interest) requires it.

In this climate, an assessment of our knowledge of conduct rules alone will yield important (and relevant) information about our memories of the rules, but not much else. Since human memory is commonly selective, this information might even tend to indicate which rules are more important to lawyers and hint at our underlying priorities, but for the most part, testing of memory will indicate very little about our underlying values, attitudes and thought processes, with which we must make ethical (or unethical) choices.

Awareness of (personal) values and emotions

If we ask what ethical attributes can be tested and assessed in an individual lawyer, then awareness of our own values must be at the top of the list, closely followed by some measure of awareness of feelings in ourselves and others.3 Assessing such awareness is likely to be necessary because we may as a general rule be practised in denying to ourselves the importance of personal feelings and being “in touch” with our underlying values.4 Lawyers of both genders may tend to see awareness of feelings as very ephemeral or even a sign of weakness, even though many younger lawyers might be less sceptical because of some greater exposure to psychology.

Lawyers who can recognise their own feelings – for example, of fear, hurt or elation – in relation to challenges ahead of them may assess risk with more precision. Confused feelings can make it hard to make considered, ethical decisions. Lawyers in a confused emotional state might not be able to identify their values: in other words, what their “gut instinct” is saying to them, even if the particular decision required by a partner could wind up damaging their careers. Deciding to act for a new client against a longstanding and loyal current client is a striking example.5

But there are many other factors apart from rules to weigh up for the “virtue-aware” lawyer: for example, being conscious of who will benefit and who will suffer if a criminal defendant is discouraged from explaining “exactly what happened”. And if our decisions must sometimes be made in the middle of some corruption, we will be especially vulnerable to implicit inducements to do this or that if we have not explored what it is that we really value and will defend energetically. Some of us will face the bleak truth at the end of such an examination that we can’t find our values anywhere in the mix, except perhaps the completely existential and ultimately meaningless “I can only do the best that I can”.

So what can lawyers value if their decisions are to be ethical? Values are commonly a private set of priorities such as honesty, loyalty, respect and care (or deceit, faithlessness, disrespect and greed). Most of us have a mixture of both. Our values mix will not be completely determinative of behaviour, but will be influential.6 And these individual qualities, however mixed up, are a key contributor to ethical dilemmas. Assessment of values’ awareness is simply the process that checks to see if our self-scrutiny and awareness is genuine or contrived. However, assessments of individuals’ awareness of feelings and values must be tackled obliquely. Awareness of the importance of these qualities is not the same thing as measuring their actual presence or absence in an individual lawyer. Direct assessment of values and emotions as states of mind or of consciousness per se would require a complex and very expensive neurological research program and, although that methodology is explored below, it is not proposed for these purposes because an indirect approach is likely to be sufficient. Accordingly, assessment of an individual’s awareness of values and emotional intelligence is recommended, because subject awareness is an accessible cognitive quality very commonly approached through a group discussion focused around specific scenarios.7

Individual awareness of psychological “type”

A lawyer’s awareness of their own psychological type – that is, of a preference to respond in a particular way when confronted with a challenging situation – is also likely to be an important underlying or enabling contributor to assessing their ethics. For example, a lawyer who is extroverted and who has a tendency to see things in a linear, “black and white” manner might find that they jump too quickly when reacting to a suggestion that they have a conflict of interest, rejecting the assertion without considering the circumstances carefully. Alternatively, a lawyer who is introverted and inclined to want to think about all angles in a new problem and ponder their significance over several days might find that, while they can work through the ethical complexities, they could have difficulty deciding what to do and then acting in a timely manner.

There are many research studies that support the importance of understanding underlying psychological type when coming to grips with lawyers’ behavioural problems. Unfortunately, this research discloses a pathology of the legal profession as under stress and in need of additional support in a struggle to retain some accountability to anyone beyond the current client.8 Much effort has been expended in the United States in trying to apply general psychological type theory to law students’ and lawyers’ particular stresses. The Myers-Briggs Type Indicator (MBTI)9 has been applied to law students to considerable effect.10 Peters found that Florida law students differed from other students in their preference for “thinking” over “feeling”: that is, their thought processes dominated their emotional responses.11 This is an unsurprising finding, but one which supports the case for lawyers’ understanding of their personal psychological processes. As Susan Daicoff noted:

“Lawyers tend to be more logical, unemotional, rational and objective in making decisions and perhaps less interpersonally oriented than the general population, [explaining] . . . why lawyers and their clients at times have trouble interacting with and relating to each other”.12

It might be suggested that the many lawyers who seem to fit the so-called INTJ profile (Introvert-Intuitive-Thinking-Judging: the focused problem-solvers who comprise the Thinkers) are more likely to be successful as lawyers than are sensitive-caring lawyer types – conceivably those who might be more attentive to truth-telling than other types. But even if this conclusion has yet to be decisively demonstrated, the intuitive likelihood of both associations further points to the desirability of all lawyers’ understanding what “type” drives them.

A scaled self-assessment tool

A prototype instrument or “scale” has recently been developed with funding from Monash Law School (and the survey support of the LIV) to allow lawyers in Victoria (and, arguably, anywhere in Australia) to discover their innate ethical preferences. This scale, which I hope will be available through the LIV website in coming months, is a set of self-responding statements designed to clarify for lawyers which of several ethical categories or types they are most comfortable with: in other words, to determine their preferred legal ethical “type”.

The four type options, as articulated by Parker, are Zealous Advocacy; Responsible Lawyering; Moral Activism and the Relationship of Care.13 The concept depends on the hypothesis that a lawyer who is aware of their preferred mode of ethical behaviour, as a result of preparing for and completing the self-assessment scale, will more consciously consider alternative ethical “types” in future decision making, and in any event will be more likely to reflect on whether what they are about to do is the “right” course of action. The prospects for improved behaviour depend on lawyers “drilling down” into their own preferred type to seek greater understanding of their alternatives when presented with challenging choices.

Importantly, developing such a scale does not require an agreed ranking of ethical priorities. Self-assessment also has the major advantage of complete engagement; it can have no element of coercion and, because it builds on awareness raising or heightened consciousness, advances ethical sophistication as an educational mechanism and not a regulatory process. Lawyers need only undertake the instrument, have their responses analysed and then privately reflect on the implications for their future professional choices.

Organisational psychology techniques

Established managerial tools such as the “360-degree” profile measure others’ opinions about an individual’s strengths and weaknesses as leaders, including their sense of integrity, reliability and “conscientiousness”. These tools have demonstrated acceptance within managerial selection environments and leadership development. Law firms are among those employers who now routinely use them to measure future employees’ suitability. Nevertheless, it would require a considerable further step, yet to be attempted, and significant funding to develop a scaled psychological instrument (or more than one) to test honesty/integrity in lawyers.

But it’s not conceptually impossible. Conventional lie detection tests have no credibility and zero chance of implementation, but one limited approach might involve another self-assessment tool. This instrument could, for example, try to identify for lawyers how accurate they are in distinguishing between professionally-sanctioned silence (that is, through professional conduct rules) and outright lies; in other words, a tool for their own awareness of what honesty actually means to them.

Neurological testing – “lie mapping”

The final possibility in developing a test for ethical functionality involves neurology: the science of the brain’s functions. It has been suggested that certain neurological tests – for example, a functional magnetic resonance imaging test (fMRI)14 – would help to identify when a person is telling a lie. These tests are believed to function by “map[ping] the flow of oxygenated blood around the brain as questions are put to a subject. This way, the mental effort required to construct a false story can be detected in the brain’s neuronal activity, even if the subject remains completely calm”.15

The neurological link may never be conclusively demonstrated, but even if such connectivity is nailed down, there will still be debate: for example, as to whether a decision not to lie can be made consciously or is genetically predetermined and beyond our control.16 In other words, can any tendency to lying be unlearned through cultural influence, particularly through education – for example, awareness-raising mechanisms?

In any event, even after any technical acceptance occurs, neurological lie testing as a general mechanism will face enormous and reasonable opposition from those fearful of Orwellian government, military or corporate hegemony. It has no immediate prospect of implementation, outside the security services.

FROM THEORY TO PRACTICE: EDUCATING FOR SELF-AWARENESS

For the moment, the possibilities of scaled instruments for lie detection and neurological testing of lawyers’ integrity can be placed to one side. But since awareness of ethical type can be measured though a credible instrument and assigned a numerical value, it is still plausible for that prototype measure to provide a basis for development of a larger, composite scale of ethical functionality, one that combines assessed awareness of values, of psychological type and of legal ethical type. That composite measure would have nothing of the “science fiction” or Orwellian potential that might allow detractors of lie-mapping or even scaled instruments to dismiss ethics assessment as neither cost-effective nor efficacious. And the administrative infrastructure is available through the compulsory CPD process.

If the profession chooses to go on the front foot in ethics assessment, it might also limit the regulator scrutiny that occurs after a complaint is registered or a scandal breaks in the courts or media. Regulators’ post-complaint investigations of this nature are likely to be considerably more damaging for a practitioner, their firm and the wider profession than pre-emptive law society activity designed to confidentially assist members to strengthen their own understanding of ethical choice.

ADRIAN EVANS is Professor of Law and Associate Dean (Staff), Faculty of Law, Monash University. This article is based on a presentation to the sub-group on Legal Professional Values and Identities, at the Working Group on Comparative Studies of the Legal Profession, Paris, 8–10 July 2010.

  1. Many moral issues remain in areas where formal rules are clear. Thus, do we engage in conscientious disobedience of laws we consider immoral or unjust? In less extreme situations where conscientious disregard is not warranted, do we comply with the minimum letter of the law only? Formal rules often permit but do not compel ethical responses, leaving a moral choice to the lawyer. See generally Deborah Rhode and David Luban, Legal Ethics, 1995, Foundation Press, Westbury, NY. See also “Memorization of abstract rules, removed from conflicting pressures of practice, does not constitute learning about ethics” (USA), cited approvingly in Kim Economides and Justine Rogers, “Preparatory ethics training for future solicitors”, The Law Society of England and Wales, February 2009, p82: see http://tinyurl.com/7vlrjzv (accessed 13 April 2012).
  2. H. Ferguson, “Motivation and responsibility in tax practice: the need for definition” (1964–65) 20 Tax Law Review 237.
  3. Hugh Brayne, ‘Learning to think like a lawyer: one law teacher’s exploration of the relevance of evolutionary psychology’ (2002) 9 International Journal of the Legal Profession 283, 301.
  4. Susan Daicoff, “Lawyer, know thyself: a review of empirical research on attorney attributes bearing on professionalism” (1997) 46 The American University Law Review 1337; D Peters and M. Peters, “Maybe that’s why I do that: psychological type theory, the Myers Briggs Type Indicator, and learning legal interviewing” (1990) 35 New York Law School Law Review 169.
  5. See, for example, Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248.
  6. See generally, Josephine Palermo and Adrian Evans, “Almost there: empirical insights into clinical method and ethics courses in climbing the hill towards lawyers’ professionalism” (2008) 17 Griffith Law Review 252.
  7. See generally, Adrian Evans, Assessing Lawyers’ Ethics, 2011, Cambridge University Press, Melbourne, Sec. 7.2.
  8. Daicoff, note 4 above, generally, n v.
  9. See Isabel Briggs-Myers with Peter B, Briggs, Gifts Differing: Understanding personality types (2nd edn), Davies Black Publishing, Palo Alto, California, 1995.
  10. Lawrence R. Richard, “Psychological type and job satisfaction among practising lawyers in the US” (unpublished PhD), Temple University, USA, 1994.
  11. Daicoff, note 4 above, p1394, referring to Richard, note 10 above, p78, n xi.
  12. Daicoff, note 4 above, p1394, n v.
  13. Christine Parker, “A critical morality for lawyers: four approaches to lawyers’ ethics” (2004) 30 Monash Law Review 49, 53–6.
  14. Ian Leslie, “Mapping lies”, The Australian Financial Review, Review, 6 November 2009, 4.
  15. “Is fMRI the future of lie detecting?”, Times Online, 5 November 2009. For a general discussion of the possibilities and limitations of fMRI, see http://spectrum.ieee.org/biomedical/imaging/mri-lie-detectors/3.
  16. Henrietta Moore, “How wisdom is learned?”, The Australian Financial Review, Review, 9 April 2010, 2.

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