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Schooled in Ethics
SCHOOLED IN ETHICS By: Paula Schaefer
Associate Dean for Academic Affairs and Art Stolnitz Professor of Law University of Tennessee College of Law
I recently posed the following hypothetical to my Professional Responsibility students:
Associate Cherise tells Partner Steve that her recent legal research reveals that their brief (filed with an appellate court) failed to cite an important case. The case is clearly applicable, hurts their argument, and should have been addressed in their brief. Cherise will be arguing the case in the appellate court the next day. She has reviewed RPC 3.3.1 Based on that rule, she has decided she should reveal the case to the court. Steve tells Cherise: “It’s not a big deal. Opposing counsel didn’t find the case. The court probably won’t find it either. We will definitely lose if you raise the issue during oral argument. You need to drop this.” What should Cherise do?
Admittedly, the question is simpler than it would be in real life. My students are required to assume the case should be disclosed pursuant to Rule 3.3. Cherise has already made that determination. And Steve doesn’t argue that Rule 3.3 is inapplicable. Instead, he justifies non-disclosure as good for the client and unlikely to be detected by the court.
My students do not hesitate, because they know what Cherise must do: she needs to disclose the adverse authority to the court. I ask if it might be difficult to contradict Steve’s instructions. They recognize that it would be a tough conversation, but they have no doubt that Cherise will do the right thing. Certainly, they would do the right thing.
In the 1960’s, Stanley Milgram’s work on obedience was groundbreaking.2 His research addressed how far a person would go in carrying out an authority figure’s instructions when those instructions conflicted with the person’s conscience. Test subjects were told that they were participating in a study about the impact of punishment on learning. A person in a white lab coat (the authority figure) directed the subject to flip a switch that would provide an electric shock to a “learner” (who was strapped to a chair and connected to an electrode) when the learner provided an incorrect answer to a question. The subjects were put in control of a shock generator that contained thirty switches that ranged from 15 volts (marked “Slight Shock”) all the way to 450 volts (two switches prior were marked “Danger: Severe Shock” and the final two switches were marked XXX.). The subject was directed to increase the shock’s intensity when the learner gave a wrong answer. The learner was behind a screen, but the subject could hear his pained grunts and then screams as he was shocked after each incorrect answer. When the learner pleaded the subject to stop, the subject looked to the man in the white lab coat for direction; that man consistently told the subject that the experiment must continue.
Milgram’s experiment revealed that almost two-thirds of study participants were willing to shock the learner at the direction of the man in the lab coat. In post-experiment interviews, Milgram found that most subjects did not view themselves as responsible for their conduct. Subjects explained they would not have engaged in this conduct themselves, but that they did it because they were required to by the man in the lab coat—the person in charge.
Junior attorneys can be in a similar situation. Even if they believe their conduct is prohibited by professional conduct rules, they will look for guidance from an authority figure—a senior attorney like Steve in our hypothetical. If the senior attorney tells the junior attorney to engage in the conduct, it will be difficult for the junior attorney to act in accordance with the rules. It is undoubtedly even more difficult when the senior attorney makes an argument that the rule does not apply at all—something that an attorney might do when determining if a bad case is “directly adverse” and must be disclosed despite being overlooked by an opponent.3
Perhaps just as important, Milgram also studied how good we are at predicting unethical obedience—by others and ourselves. In one study, Milgram asked students to predict the behavior of 100 hypothetical subjects in the study. These students predicted that only between 0 and 3% would shock to the highest level. In another study, Milgram asked subjects to predict whether they personally would continue the shocks to the end. Not a single person predicted that they would give the highest level of shock. These predictions are striking when compared to what happened in the actual experiment. The results tell us that we are more likely to follow bad advice than we may think.
But it is not all bad news. In one of numerous variations on Milgram’s original experiment, the subject was given competing instructions from two authority figures—each in a lab coat and each seemingly playing a similar role in the experiment. When the learner loudly protested at the 150-volt level, the men in lab coats provided the subject with contradictory commands. One told the subject that he must continue the experiment, while the other told him the experiment has to stop. Of twenty subjects, eighteen immediately ended the experiment, one ended the experiment at the following volt level, and one had already stopped prior to the disagreement between the experimenters.
The take-away for junior attorneys is that a competing authority figure can help you find your way through an ethical dilemma. There are several avenues for an attorney to get advice from a second authority figure. An attorney may want to consult an additional senior attorney at the law firm. That could be the firm’s ethics counsel or another trusted senior colleague who can provide a second opinion. Either type of senior attorney can help the junior attorney navigate the situation with the other attorney. But even when there is not another firm attorney who can play this role, RPC 1.6(b)(4) allows an attorney to consult with an outside attorney to seek advice about compliance with professional conduct rules. This outside attorney could be ethics counsel at the Board of Professional Responsibility4 or a trusted attorney at another firm. Looking to an outside advisor—someone detached from the situation—can help a junior attorney navigate a difficult ethics question, despite bad advice from a senior attorney.
1 Tennessee RPC 3.3(a)(2) provides that a lawyer shall not “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” 2 Stanley Milgram, Behavioral Study of Obedience, JoUrnal of abnormal anD Social pSychology, Vol. 67, No. 4, 371, 375 (1963); Stanley milgram, obeDience to aUthority an experimental View 3 (1974). 3 The phrase “directly adverse” is not as flexible as some attorneys may perceive.
See, e.g., Tyler v. Alaska, 47 P.3d 1095, 1104 (Alaska Ct. App. 2001); Miche Bag,
LLC v. Compton, 2009 WL 2338150, *1-2 (D. Utah 2009). 4 The TBPR provides a link for informal ethics inquiries. https://www.tbpr.org/forlegal-professionals/informal-ethics-inquiries
