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The Problem of Disagreement in Legal Ethics Theory

Published online by Cambridge University Press:  20 July 2015

Alice Woolley
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Extract

Legal ethics theories give competing and exclusive accounts of the ethical foundations of the lawyer’s role. They disagree about the relationship between morality and law, about the content of the lawyer’s central ethical duties and about how specific ethical problems should be resolved. Each theoretical account asserts that the others are mistaken in some fundamental way. Yet all legal ethics theories are theories of action; legal ethics theorists do not seek merely to enlighten, they also seek to influence how lawyers and the legal profession respond to ethical issues. This creates a problem of disagreement: the problem created by the divergent but exclusive claims made by different ethical theories at the point when those theories are to be translated into action. This paper considers how, given the problem of disagreement, legal ethics theories can have any impact on individual ethical decision-making or public policy. Specifically, it considers how theories can have any impact given a) that they fundamentally disagree; and b) what experimental psychology tells us about how people make ethical decisions in fact, and the nature of lawyer regulation.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 26 , Issue 1 , January 2013 , pp. 181 - 217
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Copyright © Canadian Journal of Law and Jurisprudence 2013 

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References

The author is grateful to CJLJ's anonymous reviewer for the rigorous and helpful comments on this paper.

1. As discussed in Part IIA, below, the theories of lawyers’ ethics can be roughly divided into three categories based on the stance they adopt on the relationship between morality and law: 1) those that justify the lawyer’s role in its “standard” form (or some close variation thereto) through the authority/legitimacy of law, and understand the lawyer’s ethical duties in terms of the entitlements of citizens relative to a system of law; 2) those that critique the lawyer’s role in its standard form and argue that lawyers are ethically bound by the law’s morality; 3) those that critique the lawyer’s role in its standard form and argue that in any given situation the ethics of the lawyer’s conduct are legitimately assessed against the requirements of ordinary morality. In the first category see Fried, Charles, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation” (1976) 85 Yale LJ 1060 CrossRefGoogle Scholar; Freedman, Monroe, “Personal Responsibility in a Professional System” (1977-1978) 27 Catholic U L Rev 191 Google Scholar; Pepper, Stephen L, “The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities” (1986) American Bar Foundation Research Journal 613 CrossRefGoogle Scholar; Dare, Tim, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role (Burlington, ON: Ashgate, 2009)Google Scholar; Wendel, W Bradley, Lawyers and Fidelity to Law (Princeton, NJ: Princeton University Press, 2010)CrossRefGoogle Scholar. In the second category see Simon, William H, The Practice of Justice: A Theory of Lawyers’ Ethics (Cambridge, MA: Harvard University Press, 1998)CrossRefGoogle Scholar and Simon, William H, “Ethical Discretion in Lawyering” (1988) 101 Harvard L Rev 1083 CrossRefGoogle Scholar. In the third category see Wasserstrom, Richard, “Lawyers as Professionals: Some Moral Issues” (1975) 5 Human Rights 1 Google Scholar; Postema, Gerald, “Self-Image, Integrity and Professional Responsibility” in The Good Lawyer, Luban, David, ed (Totowa, NJ: Rowman and Allanheld, 1984)Google Scholar; Postema, Gerald, “Moral Responsibility in Professional Ethics” (1980) 55 NYU L Rev 63 Google Scholar; Luban, David, Lawyers and Justice: An Ethical Study (Princeton, NJ: Princeton University Press, 1988)Google Scholar; Luban, David, Legal Ethics and Human Dignity (New York: Cambridge University Press, 2007).CrossRefGoogle Scholar

2. This is most notably the case with the work of Daniel Markovits which, while ultimately concluding that it is not possible for a lawyer to achieve a life well-lived, is uniquely concerned with the question of the intersection between legal practice and a well-lived life. See Markovits, Daniel, A Modern Legal Ethics (Princeton, NJ: Princeton University Press, 2009)Google Scholar. However, Alvin Esau has suggested that all theoretical scholarship is concerned with the question of “what kind of lawyers we want to be, or what we are as persons that lawyering actualizes or destroys”. Esau, Alvin, “Teaching Professional Responsibility in Law School” (1988) 11 Dal LJ 403 Google Scholar at 417.

3. It should be noted that legal ethics scholarship generally spends considerable time on matters of public policy or discreet ethical issues. The theoretical or philosophical branch of that scholarship does so much less frequently and certainly much less systematically. See on this point, Freedman, Monroe, “A Critique of Philosophizing About Lawyers’ Ethics” (2012) 25 Geo J Legal Ethics 91 Google Scholar. A notable exception is the extensive discussion by several philosophers of the ethical issues raised by the memos written by lawyers at the Office of Legal Counsel suggesting the legal validity of water boarding and other forms of “enhanced interrogation”, the so called “torture lawyers”. Luban, Legal Ethics and Human Dignity, supra note 1 at ch 5.

4. Arguably all ethical theories are theories of action. As Aristotle noted, the point of ethical inquiry, “is not, as in other inquiries, the attainment of theoretical knowledge: we are not conducting this inquiry in order to know what virtue is, but in order to become good” (Aristotle, Nicomachean Ethics, trans 1962, 1103b.) See also, Patrick O’Donnell, “The Therapeutic Model of Philosophy: Philosophy as Applied Philosophy”, online; Religious Left Law http://www.religiousleftlaw.com/2012/06/the-therapeutic-model-of-philosophy-philosophy-as-ap-plied-philosophy.html. O’Donnell notes that most modern philosophers don’t see themselves that way; however, this relationship between theory and action does apply to theories of lawyer ethics. See Markovits, supra note 3 at 17-18.

5. This is true of legal theory generally—regardless of the field discussed, theoretical analysis of law will tend to be both normative and practical. What distinguishes legal ethics, and creates the problem of disagreement, is discussed in Part IIB below. In brief, the aspirational, open-ended and discretionary nature of legal ethics “rules”, and the nature of the positions taken by legal ethics theorists, which orientate directly towards how individuals should behave, and often do so quite apart from what the law of lawyering does or should require, create a closer link between theory and action in the area of legal ethics than may exist in other legal fields.

6. Two points must be noted here. First, as will be set out in Part IIIC, no theory can claim to be “correct” in any objective sense—all theories of legal ethics are equivalent as forms of moral reasoning. The invocation of correctness here is to highlight the extent to which the different theories claim to be correct, and the sense in which the resolution of the disagreement inherent in those claims has existential significance for a lawyer. Second, as compellingly articulated by Bernard Williams, even if there is an objective justification for conduct that injures another, a person may remain morally disturbed for having engaged in that conduct. That said, the ability to identify an objective justification for behaviour does at least partially assist in answering the question, “am I a good person even if I did this”? See Woolley, Alice, Understanding Lawyers’ Ethics in Canada (Toronto, ON: LexisNexis, 2011) at 42–43 Google Scholar.

7. As discussed in Part IIB below, this analysis of the problem of disagreement is usefully complicated by the observation that disagreement can also exist within a single theoretical framework—even if we are all Dworkinians, we might very well disagree about what a Dworkinian analysis requires in any given case. That secondary point of disagreement is distinct, however, insofar as it does not create the risk of a moral vacuum or moral paralysis that this problem of disagreement does. Disagreement about how to apply a moral theory is constrained by the moral parameters of the theory. By contrast, when theories offer competing and exclusive claims and no reasoned basis for choosing between them, there is a risk that the moral project may simply be abandoned. Further, the central argument of this paper is that moral pluralism is inevitable given the existence of competing moral perspectives and the role of intuition and circumstances in shaping moral behaviour in fact. That moral pluralism may be heightened (made more pluralistic) by intra-theoretical disagreements, but it begins with the problem of disagreement identified here, and the intersection of that problem with the psychological features of moral decision-making.

8. As identified by Kohlberg. For this see Crain, William, “Kohlberg’s stages of moral development” in Theories of Development: Concepts and Applications 5th ed (Englewood Cliffs, NJ: Prentice Hall, 2004) at 151–73Google Scholar; Buckingham, Donald E, “Rules and Roles: Casting Off Legal Education’s Moral Blinders for an Approach That Encourages Moral Development” (1996) 9 Can JL & Jur 111 Google Scholar; Hartwell, Steven, “Promoting Moral Development Through Experiential Teaching” (1995) 1 Clinical L Rev 505 Google Scholar; Schwinn, Steven D, “Developmental Learning Theory and the American Law School Curriculum” (2009) 3 J Marshall LJ 33 Google Scholar at 33-44.

9. As discussed further in Part IIIC, the highest form of moral reasoning that humans can achieve is post-conventional reasoning, in which they analyze moral problems through the application of universal principles as well as conventional practices. All of the theories of legal ethics reflect post-conventional reasoning and are, in that sense, equivalent as forms of moral reasoning.

10. This is discussed further in Part III, but see Haidt, Jonathan, “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment” (2001) 108 Psychol Rev 814 CrossRefGoogle ScholarPubMed; Haidt, Jonathan, “The New Synthesis in Moral Psychology” (2007) Science 316 Google ScholarPubMed; Cushman, Fiery, Young, Liane & Hauser, Marc, “The Role of Conscious Reasoning and Intuition in Moral Judgment: Testing Three Principles of Harm” (2006) 17 Psychological Science 1082 CrossRefGoogle ScholarPubMed; Mendez, Mario F, “The Neurobiology of Moral Behavior: Review and Neuropsychiatric Implications” (2009) CNS Spectr 608–20CrossRefGoogle ScholarPubMed; Haidt, Jonathan, “Moral Psychology Must not Be Based on Faith and Hope: Commentary on Narvaez (2010) 5 Perspectives on Psychological Science 182 CrossRefGoogle Scholar; Ham, Jaap & Bos, Kees van den, “On Unconscious and conscious thought and the accuracy of implicit and explicit judgments” (2011) 29 Social Cognition 648 CrossRefGoogle Scholar; Ham, Jaap & Bos, Kees van den, “On Unconscious Morality: The Effects of Unconscious Thinking on Moral Decision Making” (2010) 28 Social Cognition 74 CrossRefGoogle Scholar; Hogarth, Robin M, “Intuition: A Challenge for Psychological Research on Decision Making” (2010) 21 Psychological Inquiry 338 CrossRefGoogle Scholar; Vélez García, Alicia E & Ostrosky-Solís, Feggy, “From morality to moral emotions” (2006) 41 Int’l Journal of Psychology 348 CrossRefGoogle Scholar; Bargh, John A, “Unconscious Thought Theory and Its Discontents: A Critique of the Critiques” (2011) 29 Social Cognition 629.CrossRefGoogle Scholar

11. Although some lawyers may be pluralist in fact.

12. An example of this point would be the debates between legal ethics theorists about the relative merits of inclusive and exclusive positivism for articulating a theoretical understanding of the lawyer’s role. As interesting as those debates are, it requires quite a bit of further work to see how the difference might matter for any question of ethical practice or regulation. See, e.g., Dare, supra note 1 at 67-71 and Wendel, W Bradley, “Legal Ethics and the Separation of Law and Morals” (2005-06) 91 Cornell L Rev 67–128 Google Scholar. Although as the discussion in Part IIA indicates, different theoretical starting points can make a difference for how you think about specific ethical problems. Indeed, that is why the problem of disagreement is a problem. The point here is simply that the intra-theoretical debates in and of themselves, are not especially elucidating, and can reach a point where they add relatively little.

13. Monroe Freedman recently made a similar point, stating that “One of the reasons for my impatience with the work of the philosophical ethicists is that their moral sensitivity and keen intellects could be used to bring about much needed improvement in the ethics and practice of lawyers and judges”: Freedman, supra note 3 at 104.

14. Although see supra note 7.

15. One point on the nature of the problem of disagreement should be noted. In essence what I am suggesting is that the divergence between theoretical approaches creates a choice problem; it creates a challenge for lawyers in deciding what constitutes the right thing to do. In this way the choice problem is really about choosing between different morally justifable approaches to a problem, rather than about choosing between a morally justifable approach and a wrongful approach. It should be noted, however, that as a secondary point I am also suggesting that the problem of disagreement may make it more likely that a lawyer will choose to act wrongfully. If what constitutes the right thing to do, or even how to think about what is the right thing to do, is unclear, it will be more likely that the lawyer will simply abandon ethical thinking in favour of rationalization. By contrast, if there is a way for a lawyer to internalize and embrace a normative approach, identifying what is right, and avoiding what is wrong, may be easier to do.

16. In Canada there are two additional perspectives worth noting. The first is Randal Graham’s economic analysis of lawyers’ obligations and professional regulation (see Graham, Randal, Legal Ethics: Theories, Cases and Professional Regulation, 2d ed (Toronto, ON: Emond Montgomery, 2011))Google Scholar. The second embraces a post-modernist approach to ethics (see Farrow, Trevor, “Sustainable Professionalism” (2008) 46 Osgoode Hall LJ 51 Google Scholar; Hutchinson, Allan, “Calgary and Everything After: A postmodern Re-vision of Lawyering” (1995) 33 Alta LR 768)Google Scholar. Graham’s perspective is not considered here because the point of his economic analysis is to assess lawyers’ ethics without regard to debates concerning morality. As Graham notes, his book avoids “the trap of explaining legal ethics by reference to mythical or inexplicable notions” like good or evil, relying instead on “the decision making model that courts and regulators use when devising ethical rules” (page 2). As such, Graham simply does not participate in the debate about the relationship between morality and law, and their significance for legal ethics, that I am focusing on here. Although it should be noted that his arguments may have as much or more relevance for those thinking about how to regulate the profession, since speaking to the issues of efficiency and efficacy, that, as I note, are essential to proper regulation. The post-modernist approach, and its implications for the problem of disagreement, are considered in Part IIB, below.

17. This is the approach taken by Dare and Wendel, supra note 1. See also Woolley, supra note 6 at ch 2.

18. See in particular the writing of Stephen Pepper, supra note 1, and also Pepper, Stephen, “Integrating Morality and Law in Legal Practice: A Reply to Professor Simon” (2010) 23 Geo J Legal Ethics 1011 Google Scholar at 1028, and Fried, supra note 1.

19. Trevor Farrow nicely encapsulates this feature of the political philosophers’ approach: Farrow, Trevor, “The Good, the Right, and the Lawyer” (2012) 15 Legal Ethics 141 Google Scholar at 147.

20. Pepper suggests that lawyers play this role, whereas both Dare and Wendel express reservations about the lawyer’s qualifications to counsel. Dare, supra note 1 at 54-55; Wendel, supra note 1 at 136-43.

21. Dare suggests, for example, that where ordinary morality conficts with lawyer’s obligations, lawyers should remember that outside of the context of a particular representation they may work to reform moral deficits in the law: Dare, supra note 1 at 54-55.

22. This aspect is less discussed by the political philosophy theorists, but is captured in Kate Kruse’s terrific essay, “Beyond Cardboard Clients in Legal Ethics” (2010) 23 Geo J Legal Ethics 103.

23. “Ethical Discretion”, supra note 1 at 1090.

24. Simon, William, “Role Differentiation and Lawyers’ Ethics: A Critique of Some Academic Perspective” (2010) 23 Geo J Legal Ethics 987 Google Scholar at 998-99.

25. Ibid at 999.

26. In the The Practice of Justice, supra note 1, Simon describes his position as substantivist, which at some points diverges from specific stances taken by Dworkin (although he acknowledges Dworkin as a primary example of substantivist approaches to law) (see, e.g., 55).

27. Ibid at 1000.

28. Ibid at 138.

29. Tanovich, David, “Law’s Ambition and the Reconstruction of Role Morality in Canada” (2005) 28 Dal LJ 267 at 284 Google Scholar.

30. Luban, Legal Ethics and Human Dignity, supra note 1 at 63.

31. Weiser, Benjamin, “Doubting Case, a Prosecutor Helped the DefenseGoogle Scholar”, NY Times (23 June 23 2008), http://www.nytimes.com/2008/06/23/nyregion/23da.html?_r=1&pagewanted=al.

32. Stephen Gillers, cited in New York Times, ibid. In Canada the obligation of a prosecutor is to “present before the trial court all available credible evidence relevant to the alleged crime in order that justice may be done through a fair trial on the merits” (see, e.g., Canadian Association, Bar, Code of Professional Conduct (Canadian Bar Association: Ottawa, 2009)Google Scholar. That duty is further elaborated through the guides provided to federal and provincial prosecutors that direct prosecutors to proceed in cases where there is sufficient evidence to justify “the institution or continuation of proceedings” (Department of Justice, Federal Prosecution Service Deskbook (Ottawa, ON: Department of Justice, 2000), s 15) and by case law that makes it clear that during a trial a prosecutor properly acts in an adversarial fashion (R v Cook, [1997] 1 SCR 1113). The difficulty for a prosecutor like Bibb that arises in both jurisdictions is that someone senior in his office made the determination that the evidence was sufficient to warrant prosecution. Bibb disagreed, and manifested his disagreement by throwing the trial. Whatever the virtues of Bibb’s conduct, it seems likely that his conduct was inconsistent with his obligations; he did not ensure a “fair” trial as the Supreme Court has defined that in the criminal context. He could have resigned from his employment (although it is not clear that this sort of disagreement would give him ethical grounds for doing so—see Canadian Bar Association Model Code Chapter IV, Commentary 18 and Federation of Law Societies Model Code Rule 2.02(8)) but not presenting the case in the ordinary way seems to violate his legal obligations to his client, the Crown. Hence the divergence in the theoretical analysis—if you privilege the law, he should proceed; if you privilege moral obligations distinct form the law, he shouldn’t.

33. Luban, David, “The Conscience of a Prosecutor” (2010) 45 Val U L Rev 1 Google Scholar at 14.

34. Stephen Pepper has, for example, suggested that Bibb’s approach might have been reason-able—that law incorporates morality to that extent: Pepper, Stephen, “The Lawyer Knows More than the Law” (2011) 90 Texas L Rev 691 Google Scholar at 696. See also Woolley, Alice, “To What Should Lawyers Be Faithful? A Review of W Bradley Wendel’s Lawyers and Fidelity to Law “ (2012) 31 Criminal Justice Ethics 124–36CrossRefGoogle Scholar.

35. Wendel, supra note 1 at 121.

36. Simon, William, “Authoritarian Legal Ethics: Bradley Wendel and the Positivist Turn” (2011) 90 Texas L Rev 709 Google Scholar at 711-12.

37. Although adapted from an older book by Bellow and Moulton: Gary Bellow & Moulton, Bea, The Lawyering Process: Materials for Clinical Instruction in Advocacy (Foundation Press: New York, 1978).Google Scholar

38. Simon, supra note 24 at 988.

39. Ibid at 1000-02.

40. Pepper, supra note 18 at 1030. In Canada the rule against sharp practice (Canadian Bar Association Model Code Ch IX, Commentary 7; Federation of Law Societies’ Model Code Rule 6.02(2)) may prohibit lawyers from taking advantages of legal errors during negotiations, but that is not entirely clear. See Woolley, supra note 6 at 81-85 and Part IIB.

41. Simon, The Practice of Justice, supra note 1 at 185.

42. Luban, Legal Ethics and Human Dignity, supra note 1 at 73.

43. Simon, supra note 24 at 1002.

44. Simon, supra note 36 at 726.

45. Simon, supra note 24 at 993.

46. Luban, David, “Reason and Passion in Legal Ethics” (1999) 51 Stan L Rev 873 CrossRefGoogle Scholar at 876.

47. Pepper, supra note 18 at 1012.

48. Wendel, W Bradley, “Legal Ethics as ‘Political Moralism’ or The Morality of Politics” (2008) 93 Cornell L Rev 1413 Google Scholar at 1415.

49. Kruse, Katherine R, “The Human Dignity of Clients” (2008) 93 Cornell L Rev 1343 Google Scholar at 1346. Amongst the many other articles of this type see Luban, David, “The Lysistratian Prerogative: A Response to Stephen Pepper” (1987) American Bar Foundation 637 Google Scholar; Markovits, Daniel, “How (and How Not) to Do Legal Ethics” (2010) 23 Geo J Legal Ethics 1041 Google Scholar; Woolley, Alice, “Truth or Truthiness: A Modern Legal Ethics’ Understanding of the Lawyer and her Community” (2010) 13(2) Legal Ethics 231 CrossRefGoogle Scholar; Woolley, Alice, “Regulating Dignity: A Review of Legal Ethics and Human Dignity “ (2008) 11(2) Legal Ethics 261.CrossRefGoogle Scholar

50. Federation of Law Societies’ Model Code, Rule 1.01(1). The Code also requires that lawyers “uphold the standards and reputation of the legal profession and…assist in the advancement of its goals, organizations and institutions” (Rule 1.01(2)).

51. Federation of Law Societies’ Model Code Rule 4.01(2)(b). Consider also the lawyer’s obligation only to pursue avenues of cross-examination that she has a good faith basis for pursuing: R v Lyttle, [2004] 1 SCR 193. Only the lawyer will know whether that basis truly existed.

52. See Harry W Arthurs, “Why Canadian Law Schools Do not Teach Legal Ethics” in Economides, Kim et al, Ethical Challenges to Legal Education and Conduct (Oxford: Hart, 1998) 105 Google Scholar at 112; Arthurs, Harry W, Weisman, Richard & Zemans, Frederick H, “Canadian Lawyers: A Peculiar Professionalism” in Abel, Richard L & Lewis, Philip SC, eds, Lawyers in Society: The Common Law World, vol 1 (Berkeley: University of California Press, 1988) 123 Google Scholar; Arthurs, HW, “The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?” (1995) 33 Alta L Rev 800 Google Scholar; Woolley, Alice, “Regulation in Practice: the “ethical economy” of lawyer regulation and a case study in lawyer deviance” (2012) 15(2) Legal Ethics 243 CrossRefGoogle Scholar.

53. British Columbia does provide some guidance in this respect, but only to a limited extent.

54. Woolley, supra note 52.

55. Luban, Lawyers and Justice, supra note 1 at 156.

56. Canadian Bar Association Model Code Ch IX, Commentary 7; Federation of Law Societies’ Model Code Rule 6.02(2). See in general, Woolley, supra note 6 at 81-85.

57. Woolley, ibid at 82.

58. Crosby v Guardian Insurance Co of Canada, [2001] OJ No 1120 (SCJ).

59. Another excellent example of this point is the issue of client selection. There are no meaningful doctrinal constraints on client selection, yet this issue is one of the most significant, and certainly the most frequently arising, ethical questions that lawyers face. See Hutchinson, Allan, “Taking it Personally: Legal Ethics and Client Selection” (1998) 1 Legal Ethics 168–83CrossRefGoogle Scholar.

60. It may be the case that the problem of disagreement does arise in other doctrinal areas, and poses risks specific to those areas, and which may be related or distinct from those arising in the field of legal ethics. The analysis here may be illustrative of how to think about the significance or resolution of that problem.

61. In particular the work of Allan Hutchinson and Trevor Farrow, supra note 16.

62. Hutchinson, ibid at 781-82.

63. Further, in the discussion below I will argue that the theories of legal ethics are equivalent as forms of moral reasoning, relying on Kohlberg’s levels of moral reasoning. Those levels assert the possibility of objective moral reasoning, an assertion that a post-modernist will take issue with.

64. With respect to regulation, this paper argues that the regulatory process allows for selection between competing theoretical accounts, and that this also results in a pluralist regulatory outcome. This, too, could be characterized as a post-modernist outcome although, again, I do not accept that characterization because I do not think that the nature of regulatory decision-making shows that principles themselves are indeterminate, and because the process may regularly choose and rely upon the non post-modernist approaches discussed earlier.

65. James Rest posits that there are four components to moral decision-making: moral sensitivity, moral judgment, moral motivation and moral will—i.e., the ability to identify, assess and act properly in response to an ethical dilemma. I will not be expressly discussing Rest’s criteria here, although I have done so elsewhere, and think they provide a useful scaffolding for explaining the interaction between individual decision-making and moral problems, and will be implicitly used in that way here. See Rest, James, Development in Judging Moral Issues (Minneapolis: University of Minnesota Press, 1979)Google Scholar; Rest, James, “Why does college promote development in moral judgment?” (1988) 17 J Moral Educ 183 CrossRefGoogle Scholar; Rogers, Glen, “Rethinking Moral Growth in College and Beyond” (2002) 31 J Moral Educ 325 CrossRefGoogle Scholar; Beabeau, Muriel, “The Defining Issues Test and the Four Component Model: contributions to professional education” (2002) 31 J Moral Educ 272 Google Scholar; Alice Woolley & Bagg, Sara, “ Ethics Teaching in Law School” (2007) 1 Canadian Legal Education Annual Rev 85 Google Scholar; Woolley, Alice, “Intuition and Theory in Legal Ethics Teaching” (2012) 9 University of St Thomas LJ 285.Google Scholar

66. Matsumoto, David, “Culture, Context, and Behavior” (2007) 75 J Personality 1285 CrossRefGoogle ScholarPubMed. Writing generally about behavior, Matsumoto suggests that individual behavior is a combination of “basic human nature (via universal psychological processes), culture (via social roles), and personality (via individual differences in role identities)… moderated by the situational context which the individual is in and behavior is occurring” (1304). See also, Fleeson, William & Noftle, Erik E, “Where Does Personality Have Its Influence? A Supermatrix of Consistency Concept” (2008) 76 J Personality 1355 Google Scholar (describing various ways in which personality traits can lead to consistent behaviors across circumstances) and Reed, Don Collins, “A Multi-level model of moral functioning revisited” (2009) 38 Journal of Moral Educ 299 CrossRefGoogle Scholar at 300, suggesting that moral functioning involves the brain, personality, social interaction and culture; Blumenthal, Jeremy A, “Does Mood Influence Moral Judgment: An Empirical Test with Legal and Policy Implications” (2005) 29 Law and Psychology Rev 1 Google Scholar (presenting empirical evidence of the influence that a person’s mood can have on her moral judgments). Note, though, that in general the correlation between personality and morality is not strong, perhaps because some moral problems are more likely to be correctly resolved by some personality traits, while other moral problems require quite different moral traits. In addition, personality traits may vary in intensity and combination, and may change and develop over time, and how those combinations and intensity of traits operate to determine specific behaviors in context, would be difficult to meaningfully track.

67. See, e.g., Zimbardo, Philip, The Lucifer Effect: How Good People Turn Evil (New York: Random House, 2007)Google Scholar; Doris, John M, Lack of Character: Personality and Moral Behavior (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar; Ross, Lee & Nisbett, Richard E, The Person and the Situation (New York: McGraw-Hill, 1991)Google Scholar; Harman, Gilbert, “The Nonexistence of Character Traits” (2000) 100 Proc Aristotelian Soc’y 223 CrossRefGoogle Scholar; Harman, Gilbert, “Moral Philosophy meets Social Psychology: Virtue Ethics and the Fundamental Attribution Error” (1999) 99 Proc Aristotelian Soc’y 315 CrossRefGoogle Scholar; Doris, John M, “Persons, Situations, and Virtue Ethics” (1998) 32 Noûs 504 CrossRefGoogle Scholar.

68. Although we clearly believe that people demonstrate such consistency, and are willing to attribute character traits such as honesty to people based on limited and situationally specific behaviours. This is called the fundamental attribution error and is much discussed by Doris et al, ibid.

69. King, Patricia M & Mayhew, Matthew J, “Moral Judgment Development in Higher Education: Insights from the Defining Issues Test” (2002) 31 J of Moral Educ 247 CrossRefGoogle Scholar at 259-63. Some of the discussion in this section is drawn from Woolley, Alice & Stacey, Jocelyn, “The Psychology of Good Character: the past, present and future of good character regulation in Canada” in Reaffrming Legal Ethics, ed by Tranter, Kieran et al (New York: Routledge, 2010) at 165.Google Scholar

70. See in general, Doris, supra note 67. This particular aspect of the experiments is discussed in Luban, Legal Ethics and Human Dignity, supra note 1 at 266.

71. Miller, Christian, “Social Psychology and Virtue Ethics” (2003) 7 Journal of Ethics 365 CrossRefGoogle Scholar at 370.

72. Gilbert Harman, “Moral Philosophy Meets Social Psychology”, supra note 67 at 315-31.

73. Doris, “Persons, Situations, and Virtue Ethics”, supra note 67 at 504. Also of interest is the Stanford Prison experiment, created by Zimbardo and discussed at length in his book The Lucifer Effect, supra note 67, in which students were assigned to be “guards” or “prisoners” in a prison created by Zimbardo at Stanford University. Despite knowing that this was an experiment, the students increasingly acted in a manner consistent with the role to which they had been assigned. After only a few days Zimbardo cancelled the experiment for ethical reasons.

74. See, e.g., Simon, The Practice of Justice, supra note 1 at 74; Luban, Legal Ethics and Human Dignity, supra note 1 at 65-66; Wendel, supra note 1 at 15-16.

75. Wendel, ibid.

76. See, e.g., Shanab, ME & Yahya, KA, “A behavioural study of obedience in children” (1977) 35 J Pers S Psych 530–36CrossRefGoogle ScholarPubMed.

77. This section has been adapted in part from my paper “Intuition and Theory in Legal Ethics Teaching” (2012) 9 University of St Thomas LJ 285.

78. King & Mayhew, supra note 69 at 260-62.

79. None of the materials I addressed dealt with the issue of persons with intellectual disabilities or developmental delays, and the impact of this on moral reasoning, but it seems that all of the empirical data relied upon incorporates only cognitively typical individuals. My own observation is that people with intellectual disabilities do not consider or even perceive moral problems in the same way that a cognitively typical person would, and so this qualification seems important.

80. The correlation between education and moral development is very strong; however, the reasons why education increases moral development, and the mechanisms through which it does so remain unclear. King & Mayhew, supra note 69 at 255-58.

81. An alternative explanation of moral development stages, one which permits a greater incorporation of relativist thinking than does Kohlberg, is offered by Perry. I emphasize Kohlberg here because of its strong empirical support, and also because Kohlberg did attempt to incorporate some relativist concepts within his thinking. His stages of moral development are intended to be neutral as between different ethical positions, focusing instead on ways of analyzing ethical problems. For an excellent explanation of the relationship between Kohlberg and Perry’s views see Wangerin, Paul T, “Objective, Multiplistic, and Relative Truth in Developmental Psychology and Legal Education” (1987-88) 62 Tul Law Rev 1237 Google Scholar at 1277-81. Perry and Kohlberg are also discussed in Schwinn, Steven D, “Developmental Learning Theory and the American Law School Curriculum” (2009) 3 J Marshall LJ 33 Google Scholar.

82. Crain, supra note 8.

83. Hartwell, supra note 8 at 510.

84. Crain, supra note 8.

85. Hartwell, supra note 8 at 510.

86. Gibbs, John C et al, “Taking development seriously: Critique of the 2008 JME. Special Issue on moral functioning” (2009) 38(3) J of Moral Educ 271 CrossRefGoogle Scholar at 277.

87. Gilligan, Carol, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1993) at 24–39.Google Scholar

88. See Landsman, Maury & McNeel, Steven P, “Moral Judgment of Law Students Across Three Years: Influences of Gender, Political Ideology and Interest in Altruistic Law Practice” (2003-04) 45 South Texas L Rev 891 Google Scholar at 904 and Hartwell, supra note 8 at 524-28.

89. Wangerin, Paul T, “Objective, Multiplistic, and Relative Truth in Developmental Psychology and Legal Education” (1987-88) 62 Tul Law Rev 1237 Google Scholar at 1279-80.

90. See Fuller, Lon L, The Morality of Law, rev ed (New Haven, CT: Yale University Press, 1964)Google Scholar at ch 2.

91. Supra note 86.

92. Despite their assertion of the indeterminacy of moral principles, I would also suggest this to be true of the post-modernists. Hutchinson, for example, suggests that the conscientious judgment that people engage in should result in a “respectful and responsible heterodoxy” (Hutchinson, supra note 16 at 782). The orientation of the post-modernist approaches may not be towards the application of specific norms, but it is nonetheless towards the sort of moral criteria that post-conventional reasoning would involve.

93. At least through reason. As discussed in the next section, affective responses make us likely to adopt one ethical stance over the others.

94. One point that should be noted is that if moral decisions were made primarily through moral reasoning, then presumably a normative framework could be selected in some way—perhaps at random?—and then the precepts of that theory could be used to analyze a particular ethical problem. The difficulty with this approach is of course that moral decisions are not made entirely through reasoning. Further, it is difficult to see how a theory selected at random could actually motivate moral decisions; even reasoning needs to be motivated by something. It seems necessary to have some basis for selecting a theory before that theory can ever influence a person’s conduct in fact.

95. Haidt, supra note 10 at 816.

96. Ibid at 814.

97. Ibid at 818.

98. Ibid.

99. Ibid. As noted below, I think Haidt’s theory is most plausible when an equal emphasis is placed on the other “links” he identifies—the ability for individual reasoning and reflection to influence commitments.

100. Ibid at 819. As he notes, there is no particular reason to think that people generally decide through unconscious and automatic reactions, but when it comes to moral problems they decide through reason alone.

101. Ibid at 817-20.

102. Wheatley, Thalia & Haidt, Jonathan, “Hypnotic Disgust Makes Moral Judgments More Severe” (2005) 16 Psychological Science 780 CrossRefGoogle ScholarPubMed. See also, Haidt, Jonathan, “The New Synthesis in Moral Psychology” (2007) Science 316.Google ScholarPubMed

103. Mendez, Mario F, “The Neurobiology of Moral Behavior: Review and Neuropsychiatric Implications” (2009) CNS Spectr 608 CrossRefGoogle ScholarPubMed, at 609, 616.

104. Inbar, Yoel, Pizarro, David A & Bloom, Paul, “Conservatives are more easily disgusted than liberals” (2009) 23(4) Cognition and Emotion 714 CrossRefGoogle Scholar at 720.

105. Note that the experiment had to control for gender since women almost always are more disgust sensitive than men. Thus, the actual conclusion is that women who feel more disgust than other women tend to conservative political views, and men who feel more disgust than other men tend to more conservative political views.

106. This test of implicit association is most notable for having demonstrated that most people implicitly associate black faces with negative words and white faces with good words. See in general: https://implicit.harvard.edu/implicit.

107. Ham, Jaap & Bos, Kees van den, “On Unconscious and conscious thought and the accuracy of implicit and explicit judgments” (2011) 29 Social Cognition 648 CrossRefGoogle Scholar at 663. See also: Ham, Jaap & Bos, Kees van den, “On unconscious Morality: The Effects of Unconscious Thinking on Moral Decision Making” (2010) 28 Social Cognition 74 CrossRefGoogle Scholar and Bargh, John A, “Unconscious Thought Theory and Its Discontents: A Critique of the Critiques” (2011) 29 Social Cognition 629.CrossRefGoogle Scholar

108. Cushman, Fiery, Young, Liane & Hauser, Marc, “The Role of Conscious Reasoning and Intuition in Moral Judgment: Testing Three Principles of Harm” (2006) 17(12) Psychological Science 1082.Google Scholar

109. Ibid at 1085.

110. Ibid at 1087.

111. Greene, Joshua D et al, “An fMRI Investigation of Emotional Engagement in Moral Judgment” (2001) 293 Science 2105 CrossRefGoogle ScholarPubMed.

112. Greene, Joshua D et al, “The Neural Bases of Cognitive Conflict and Control in Moral Judgment” (2004) 44 Neuron 389 CrossRefGoogle ScholarPubMed at 397.

113. Haidt, Jonathan, “The New Synthesis in Moral Psychology” (2007) Science 316 Google ScholarPubMed at 1001. For an excellent discussion of this, including of Haidt, see Pinker, Steven, The Better Angels of Our Nature: Why Violence Has Declined (New York: Viking, 2011) at 625–28.Google Scholar

114. Haidt, Jonathan, “The moral emotions” in Davidson, RJ, Scherer, KR & Goldsmith, HH, eds, Handbook of affective sciences (Oxford: Oxford University Press, 2003) 855 Google Scholar from the abstract.

115. Hogarth, Robin M, “Intuition: A Challenge for Psychological Research on Decision Making” (2010) 21 Psychological Inquiry 338 CrossRefGoogle Scholar at 347.

116. Haidt, supra note 10 at 818.

117. Although note my qualification on this point below, where I observe that there may be some fluidity in lawyers’ intuitions, or the possibility for lawyers to have a more pluralist conception of the kind of lawyer they are than do those who theorize about it.

118. David Luban is not a lawyer, but his capacity for legal analysis, his immersion in the world of lawyers and his sensitivity to the concerns of practice make him indistinguishable for the purposes of this point.

119. Ariely, Dan, The (Honest) Truth About Dishonesty: How We Lie to Everyone—Especially Ourselves (New York: Harper Collins, 2012) at 14–29 Google Scholar. Ariely’s experiment essentially involves giving people a test and having them mark the test themselves. When the score is reviewed by another person, people scored the test accurately. But when they were given an opportunity to cheat they did so, but only by a little bit. And even where a greater opportunity for cheating was offered they did not cheat anymore. The other experiment they did was to have two women, one blind and one not, take a ride from the airport to the Strip in Las Vegas, and to pay by the meter. Over twenty rides each, the blind rider consistently had a lower fare.

120. This is not only because of the point demonstrated by Ariely that we can maintain our self-image while cheating just a little bit, but also because situational factors can obscure the ethical implications of dilemmas that lawyers face. The problem in Enron, for example, was not that lawyers saw unethical behaviour and turned away, but that the circumstances made it much more difficult to perceive the behaviour as unethical. And this meant that the lawyers could act badly, without seeing themselves in a negative light. See Regan, Milton C Jr, “Teaching Enron” (2005) 74 Fordham L Rev 1139–249Google Scholar.

121. I do acknowledge that it is possible that a lawyer will not embrace any moral approach to practice, and may practice amorally (or immorally). The point here is not to say that theories will always motivate individual action, but that despite the problem of disagreement there is a mechanism for them to do so.

122. The courts’ authority most obviously includes how lawyers conduct litigation, but also includes management of conficts of interest (in and outside of litigation), adjudication of private law claims against lawyers (contract, tort and fduciary) and review of lawyers fees (through the taxation power).

123. Except, perhaps, if the individual decision was made on the advice of counsel, or if the question is whether the person has moral/criminal culpability. I.e., it may go to the significance of a moral fault, but it does not determine in itself whether the moral act that followed was right or wrong. Thus, while in the famous case R v Murray (2000), 48 OR (3d) 544 (SCJ), in which a lawyer failed to disclose videotapes of a crime properly, the lawyer was acquitted of criminal misconduct because of a lack of mens rea, but everyone agrees that his decision was nonetheless a violation of his ethical duties as counsel.

124. It may grant that authority and impose that duty, but whether it does so or not is not relevant to the discussion here.

125. As will be noted, a significant issue with public policy making in respect to lawyers relates to the absence of sufficient legitimate process.

126. Where a lawyer does not do so, one can ask whether that lawyer has in fact internalized a normative point of view, or is simply adopting the window-dressing of normative positions to justify self-interested decision-making. Or, it may be that that lawyer has a more pluralist conception of what it means to be an ethical lawyer, consistent perhaps with the post-modernist positions articulated by Farrow et al, supra note 16.

127. It must be emphasized at this point, and this is a critique of regulation that I take up below, that regulators often do not consider, either expressly or implicitly, the normative significance of the positions that they adopt. Indeed, while it is often the case that the norms behind their positions can be derived or extrapolated, the positions themselves seem to be more directed at matters of expedience or professional self-interest, rather than at norms. The point here is simply that regulation can resolve the problem of disagreement through its legitimate processes, and de facto does make choices between competing ethical accounts. The critique and suggestion made below is that it ought to do so more consciously, and through a democratically legitimate process.

128. Some might argue, for example, that the difference between civility and confidentiality reflects the interests of the profession, rather than some legitimate but incoherent approach to the broader normative questions. That is a reasonable objection, but one which could be overcome were it shown that the motivating factor in the regulatory approach was indeed normative.

129. It also suggested that affecting the circumstances of practice can allow a theory to translate into practice but that aspect will be discussed in the section on public policy.

130. Could a lawyer have a pluralist account as well—i.e., an individual lawyer adopt a plurality of normative conceptions? As noted in note 127 above a lawyer could. Where the lawyer’s intuitions are pluralist or post-modernist, for example, the lawyer will not have a consistent moral persona. However, the question is always whether that lawyer is adopting a morally grounded self-conception, or simply rationalizing amoral or self-interested decision-making through invocation of different theoretical concepts as the occasion suits.

131. See, for example, Woolley, Alice, “Lawyers Regulating Lawyers (Redux)” ABlawg (June 11, 2012)Google Scholar, online: ABlawg http://ablawg.ca/2012/06/11/lawyers-regulating-lawyers-redux and Alice Woolley, “Lawyers Regulating Lawyers”, ABlawg (November 3, 2011), online: ABlawg http://ablawg.ca/2011/11/03/lawyers-regulating-lawyers/; Alice Woolley, supra note 52; Woolley, Alice, “Legal Ethics and Regulatory Legitimacy: Regulating Lawyers for Personal Misconduct” in Bartlett, Francesca et al, eds, Alternative Perspectives on Legal Ethics: Reimagining the Profession (New York: Routledge, 2010) 241 Google Scholar; Woolley, Alice “Tending the Bar: The Good Character Requirement for Law Society Admission” (2007) 30 Dal LJ 27.Google Scholar

132. Or in particular the more arcane points of argument—see note 12 above for a fuller account.