Lawyers have duty to protect and promote the rule of law. Sometimes that duty is crystallised with particular emphasis. Decisions about when evidence needs to be disclosed; ‘gatekeeper’ opinions on the status of debt instruments; decisions about witnesses who might give perjured evidence; decisions to allege fraud: all these emphasise interests other than the clients. Courts and regulators not uncommonly rely on the ethicality and objectivity of lawyers in these circumstances. Legal Professional Privilege depends on it. And corporate clients sometimes rely on the objectivity of in-house lawyers as experts on legal risk (though sometimes of course they want zealous advocacy).
There is an assumption that legal training increases our objectivity. It enables us to see problems from all angles. It encourages a forensic, analytical approach to sifting strong arguments from weak; big problems from small; real concerns from speculation. Professional rules and pride affirm a commitment to independence.
Yet this analytical, rule-based analysis is under challenge. Occupationally, this anxiety is growing for some as the bussinessification of law intensifies. Usually those concerns are directed at new providers of legal services; but they are as well directed at law firms. In research terms, there is a growing body of interest in behavioural approaches to lawyers ethics. The central point is that lawyers need to think of ethical problems as both systemic and individual problems. Rules are an element in play; but cultures, incentives and individual characteristics influence each other (see here for some work I was involved in along these lines). Lawyers need to think less of themselves as professionals governed by rules and more as operating within systems which influence each other.
In this vein, Andrew Perlman (a US law professor) has written an interesting paper, A Behavioral Theory of Legal Ethics, specifically concerned with the problem of objectivity that confronts lawyers.
He points to a raft of studies some from law some from other professions to point out psychological partisanships effects. In simulations, a study showed accountants more likely to find a company’s financial reports accounting principle compliant if they are in the role of the company’s accountant. Those given the role of an outside investor in that same company are the opposite. The argument is that professional obligations of neutrality were not sufficient to extricate the accountants from natural partisanship.
Similar studies have been conducted on how lawyers value cases depending on which side the lawyers are asked to represent. Law students have been shown to interpret facts being litigated in different ways depending on which side they are told they represent. They also appear to overestimate the legal merits of the side they are randomly assigned to represent even once the moot is over (presumably thinking the judge was biased not them).
There are a variety of reasons why such partisanship biases may arise. Group affiliation builds loyalty to the firm and to clients. Optimism bias may mean we see through the lens of what the client wants. Confirmation bias may mean we reinforce judgments which suit our initial positions. And ethical fading may occur through deference to authority figures (be they colleagues or clients) and the gradual nature in which many ethical problems arise. This is compounded by the tendency to believe that we are moral even when we are driven by self interest.
In bottom line terms, overvaluing cases harms clients’ interests (except of course where it leads to us negotiating higher settlements or advising clients they can do things which a more objective judgment would have told them was verboten). It is also important where lawyers are expected to exercise judgments with a strong public interest component.
As Perlman points out the partisan bias may be worse for lawyers. Professional obligations oblige lawyers (within limits) to make the best case for their clients. This blog has highlighted a number of cases where that partisanships may (I emphasise the may here) have clouded their judgment: hacking; Hillsborough; wire-stripping and the NightJack cases all being cases in point. Potentially.
Lawyers also perceive of themselves as objective. This perception has been demonstrated (elsewhere) to increase bias (judicial readers take note). It is possible that because lawyer training purports to render people more objective, that it does the opposite and makes bias worse:
Because lawyers are trained to be objective, told that objectivity is a professional value, and praised for their objectivity, this training may have the counterintuitive effect of making lawyers less objective and less able to engage in an accurate assessment of new information.
Perlman’s argument deepens interestingly when he suggests that where a persons’ sense of “identity and self-worth” is tied to their partisan stances bias may be further exacerbated. There is empirical evidence from other disciplines to support this contention and, “Various studies have found that lawyers’ identities and feelings of self-worth are particularly likely to be contingent on professional success.” Law firms and in-house lawyers have for many years sought to emphasise that they are not naysaying lawyers but astute, commercially aware, deliverers of client outcomes. This is, in many ways, and not always unconsciously, cultivation of the partisanship bias. It is not unreasonable to surmise as Perlamn does that, “their senses of self-esteem and identity are so intertwined with client-favorable outcomes, these lawyers may find it more difficult to assess information that tends to undermine their clients’ positions.” The psychological evidence suggest this ‘standing back and taking stock’ is not so easy.
That is not to suggest that lawyers’ objectivity will always be compromised. A lot depends on how black and white the facts and law are. The greyer the situation, the more potential there may be for bias. I suspect firms and individuals will claim they adopt some of his debiasing suggestions (seeking second opinions from neutrals, writing out the counterarguments to a course of action, sensitising people to their own biases), though perhaps not audits of case-decisions to pick up potential problems. Ad hoc-ery is probably the order of the day and often we need not worry – after all clients expect lawyers to be on their side, if the legal institutions are robust enough to withstand the ethical fading that can sometimes go with zeal. Equally, there have been some spectacular examples of what look like things going badly wrong. And whilst firms say doors are open and second opinions are taken, I sometimes pick up the sense that door may be open but the path to it is mined.