A recent plane flight provided me the privilege of reading Leslie Levin's ambitious review essay, Bad Apples, Bad Lawyers or Bad Decisionmaking: Lessons from Psychology and from Lawyers in the Dock, 22 Georgetown Journal of Legal Ethics 1549-94 (2009) (reviewing Richard Abel's Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings). As Leslie skillfully details, Rick Abel has done the profession a valuable service. His book provides revealing case studies of seven lawyers (six cases) who have been the subject of disciplinary proceedings in New York's first department. Here is Leslie's delicious description of what it felt like to travel with Rick on the journey that led these lawyers into such deep trouble:
"Reading the record of some of the cases is like viewing an impending train wreck -- obvious to the observer, horrible to watch, but too mesmerizing to avert the eyes." (p. 1550)
You will need to read Rick's book or Leslie's essay to get the full story of each of these less than perfect attorneys, but suffice it to say they committed a range of ethical infractions. Misconduct included paying kickbacks to insurance adjusters, conspiring with those engaged in unauthorized practice of law, pocketing a client's tax refund to cover your own fee, and using documents stolen by a client from opposing counsel's conference table.
The point, of course, of Rick's thick description is to offer lessons about the sorts of lawyers who ultimately find themselves in hot water and the sorts of situations that lead them there. Such lessons come in many flavors, and Leslie's essay adds another. It's easy to observe, for example, that, as is true for most lawyers who receive discipline, the chosen subjects "predominantly practice in solo and small firms and represent individuals or small businesses rather than large organizations." But what Leslie adds are insights from psychological studies that may provide a sort of generalization about lawyer misconduct beyond the ones found in Abel's book.
Leslie borrows concepts from experimental literature such as the idea of an overconfidence bias to help explain why lawyers sometimes get into trouble thinking they can handle more than they can (that's why my briefcase on the plane was so needlessly heavy). She notes how people also take cues on ethical norms from how those around them act suggesting that lawyers without many well acculturated peers may more easily go astray. (Perhaps I shouldn't have followed the lead of people getting up to use the facilities even though the seat belt sign was still on). (And was my decision a psychological group following or a logical assessment of my chances of being called out?). I found particularly insightful her emphasis on lawyers' need to self-justify once they have been challenged. These sorts of now well-understood biases should be incorporated into our thinking about lawyer regulation, Leslie argues, and who could disagree? She also suggests that law students should be taught about these sorts of biases,even as she concedes it's unclear whether this would do any good.
Of course, Abel's case studies are also open to alternative interpretations. One thing worth exploring is the extent to which the lawyers who went astray had fully internalized the value of the ethical rules and not merely understood that they were breaking one. If I think immigrants are better off with some legal advice from a non-lawyer than with no advice at all, I might not think it so awful for me to participate in a scheme to provide that advice even if I know this is against the rules. Many of the lawyers Abel describes might have found it easier to cheat because the rules they broke weren't quite the equivalent of thou shall not steal.
In any event, Leslie is to be congratulated for advancing the ball on this very important topic. It's hard to see how we could meaningfully reduce the amount of lawyer misconduct until we do much more to understand it. Bravo!