Bad Apples, Bad Lawyers or Bad Decisionmaking: Lessons from Psychology and from Lawyers in the Dock

Abstract

Richard Abel’s book, "Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings", presents six detailed case studies of New York lawyers who engaged in serious misconduct. He uses these case studies to carefully explore the social, psychological and structural conditions of lawyer deviance that lead to betrayals of trust. This essay considers what additional light some of the psychological literature, in particular, might shed on the behaviors of Abel’s lawyers for the purposes of better understanding how to prevent lawyer misconduct. More specifically, it considers how social and psychological processes may help to explain the trajectory of lawyer misconduct and some of the specific behaviors that Abel describes. It starts by describing how lawyers learn norms from their communities that can lead to misconduct. It then looks at research concerning various psychological processes that may have affected the lawyers in the case studies. For example, it considers how self-serving biases may contribute to neglect of client matters and how psychological processes may affect the decisionmaking of experienced lawyers when they confront a novel ethical problem in their practices. It also discusses how the power of commitment to a course of conduct and self-deception contribute to the seemingly irrational behaviors that Abel describes. The essay further explores the role that the discipline process itself may play in perpetuating self-justifying behaviors. It will then consider, in light of the social and psychological processes at play, some strategies for addressing lawyer misconduct.

Keywords: legal profession, legal ethics, lawyer discipline, cognitive psychology, social psychology, ethical decisionmaking