(Oxymoron?) Ethical Decisionmaking by Attorneys: An Empirical Study

Florida Law Review, Vol. 48, No. 2, 1996

Posted: 1 Dec 1998

See all articles by Susan Swaim Daicoff

Susan Swaim Daicoff

Independent since 2018, current Legal Aid Program Director

Date Written: April 1996

Abstract

Public attitude towards attorney ethics is typically poor. Little empirical research has focused on the ethical decisions or moral behavior of lawyers, except to find that lawyers may differ from similarly educated adults in that they may disproportionately exhibit a Kohlbergian "Stage 4 - Law and Order" stage of moral reasoning when faced with ethical dilemmas. Past research involving ethical decision making by mental health professionals was extended into the legal field. Ethical decision making by attorneys in Orange County, Florida was studied. Questionnaires were mailed to 400 randomly chosen members of the county bar association. The attorneys were randomly divided into groups; one group was asked to choose (from several choices) what they should do in each of five professional ethical dilemmas and the second group was asked to choose (from several choices) what they would do. All were asked to select reasons (from four rationales) for their decisions; two rationales were codified (upholding a law or published ethical principle) and two were noncodified rationales (personal moral values or intuition). It was hypothesized that: (1) what they said they "should" do would be more restrictive or more ethical than what they said they "would" do; (2) overall, lawyers' choices would be more frequently based on codified rationales; and (3) choices which were based on codified rationales would be more ethical or more restrictive than choices based on noncodified rationales.

Results did not support these hypotheses, but significant differences were found. Instead, the results suggest that: (1) attorneys' ethical decision-making differs substantially from that of mental health professionals, perhaps as a result of different ethics codes and different functions for such ethics codes in the two professions; and (2) attorneys make professional ethical decisions on a case-by-case basis, so that their responses and rationales varied from situation to situation. These results further suggest that attorneys may view the legal code of ethics as a minimum for acceptable behavior, while mental health professionals view their ethics code as a maximum, or aspirational ideal. Relying on law or the legal ethics code seemed to produce a minimum standard of care. In contrast, more ethical or restrictive choices were more often based on noncodified reasons (specifically, on personal values, standards, intuition, or unknown). Also, attorneys did not rely on codified rationales more frequently overall, perhaps suggesting a need to replicate or refute earlier research indicating that attorneys disproportionately operate at Kohlberg's Stage 4 of moral reasoning. Finally, the results suggest that attorneys' ethical decision making depends on whether or not their behavior will be judicially scrutinized; they appeared to rely on codified reasons more often for their ethical decisions in litigation settings, but relied on noncodified reasons when making decisions about office practice situations. Results of this study imply a need for civility codes to serve as aspirational ideals for attorney behavior, as well as for additional research on the moral reasoning of attorneys in personal and professional situations.

Suggested Citation

Daicoff Baskin, Susan Swaim, (Oxymoron?) Ethical Decisionmaking by Attorneys: An Empirical Study (April 1996). Florida Law Review, Vol. 48, No. 2, 1996, Available at SSRN: https://ssrn.com/abstract=140742

Susan Swaim Daicoff Baskin (Contact Author)

Independent since 2018, current Legal Aid Program Director ( email )

Phoenix, AZ Arizona 85020
United States
904-534-3411 (Phone)

HOME PAGE: http://www.susandaicoff.webs.com

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