February 28, 2004
Obedience, depravity, and the quest to make partner
When I chose Legal Ethics as my "perspective elective" this semester, I did so not with the hope of gaining any perspective, but with pragmatic desire to satisfy my Professional Responsibility requirement. For the first seven weeks, I haven't been disappointed. The course reading has been universally "touchy-feely" and wholly tangential to what I believe to be the "meat" of my legal education. The class discussion is consumed by charmingly idealistic classmates, with an utter lack of experience with real world ethical dilemmas, and a blinding naivety of the pressures created by a mountain of debt, a mortgage, and a couple of kids.
I consider myself to be an ethical person, but I am not prepared to say I'll be willing to up and quit my job when faced with a tough ethical choice, as so many of classmates swear they would do. Furthermore, I'll be damned if I could tell you what "ethical" is. And I'll be further damned if anyone else has been able to convince me that they have found the elusive definitions of "good" or "moral" or "ethical." From my perspective, a lawyer is uniquely bound by the ethical constraints imposed by the Model Rules, as codified in various state statutes. Beyond that, however, a lawyer's moral decisionmaking is driven by the same forces as anyone else's: Will I be able to sleep at night? What would John Lennon do? What will my spouse or kids think of me? What does my gut tell me? A lawyer has neither a special exemption from nor an enhanced duty to moral judgment.
That said, today's ethics reading really turned it up a notch. The topic was cognitive dissonance, the dangers of obedience, and how an ethical lawyer can quickly find herself on the "slippery slope" to destruction. The framework for the piece was Stanley Milgram's 35-year-old experiment on obedience.
In his experiment, Milgram placed a volunteer in the position of "teacher" and compelled him to delivery increasing levels of electric shock to the learner (who was actually an actor, in on the experiment) each time she missed a question. The shocks would begin at 15 volts and increase in 15 volt increments until, 30 shocks later, the "learner" was receiving 450 volts of electricity. Milgram hoped the experiment might illuminate how so many people could have blindly followed the Nazi regime. Milgram hypothesized that "all but a few sadists" would refuse to complete the experiment, and refuse to shock the "learner."
In reality, 65% of the "teachers" completed the experiment, despite the “learner's” consistent and pitiful complaints about the pain, a heart condition, and wanting to stop. Some “teachers” asked Milgram to stop, but when told that the experiment must go on and that Milgram assumed all liability, they readily continued to the end. No "teacher" quit before 300 volts. Why?
The human desire to please and obey others simply overpowered the conflicting desire to "do no harm." Further, cognitive dissonance enabled the "teachers" to minimize their actions. By increasing the voltage incrementally, it becomes difficult to draw the line at what is too much. To say that 300 volts is too much would require an admission that 285 was probably too much, as well.
How does this apply to legal ethics? The drive to make partner can be seen as a pressure causing obedience to the firm or a senior attorney to override a young attorney’s moral barometer or adherence to the rules. In addition, it highlights the potential risk of a slippery slope in legal practice. With inauspicious beginnings, a young attorney fights a legitimate discovery request in the name of zealous advocacy. Where does it go from there? See David Luban, “The Ethics of Wrongful Obedience in Ethics in Practice (Deborah L Rhode, ed.).
What does it mean to me? It means I am more certain than ever that some very important choices lay ahead of me. In my opinion, the only true ethical choice we have is deciding what type of practice to pursue. Once we make that choice, unfortunately, many other choices may be made for us...
I consider myself to be an ethical person, but I am not prepared to say I'll be willing to up and quit my job when faced with a tough ethical choice, as so many of classmates swear they would do. Furthermore, I'll be damned if I could tell you what "ethical" is. And I'll be further damned if anyone else has been able to convince me that they have found the elusive definitions of "good" or "moral" or "ethical." From my perspective, a lawyer is uniquely bound by the ethical constraints imposed by the Model Rules, as codified in various state statutes. Beyond that, however, a lawyer's moral decisionmaking is driven by the same forces as anyone else's: Will I be able to sleep at night? What would John Lennon do? What will my spouse or kids think of me? What does my gut tell me? A lawyer has neither a special exemption from nor an enhanced duty to moral judgment.
That said, today's ethics reading really turned it up a notch. The topic was cognitive dissonance, the dangers of obedience, and how an ethical lawyer can quickly find herself on the "slippery slope" to destruction. The framework for the piece was Stanley Milgram's 35-year-old experiment on obedience.
In his experiment, Milgram placed a volunteer in the position of "teacher" and compelled him to delivery increasing levels of electric shock to the learner (who was actually an actor, in on the experiment) each time she missed a question. The shocks would begin at 15 volts and increase in 15 volt increments until, 30 shocks later, the "learner" was receiving 450 volts of electricity. Milgram hoped the experiment might illuminate how so many people could have blindly followed the Nazi regime. Milgram hypothesized that "all but a few sadists" would refuse to complete the experiment, and refuse to shock the "learner."
In reality, 65% of the "teachers" completed the experiment, despite the “learner's” consistent and pitiful complaints about the pain, a heart condition, and wanting to stop. Some “teachers” asked Milgram to stop, but when told that the experiment must go on and that Milgram assumed all liability, they readily continued to the end. No "teacher" quit before 300 volts. Why?
The human desire to please and obey others simply overpowered the conflicting desire to "do no harm." Further, cognitive dissonance enabled the "teachers" to minimize their actions. By increasing the voltage incrementally, it becomes difficult to draw the line at what is too much. To say that 300 volts is too much would require an admission that 285 was probably too much, as well.
How does this apply to legal ethics? The drive to make partner can be seen as a pressure causing obedience to the firm or a senior attorney to override a young attorney’s moral barometer or adherence to the rules. In addition, it highlights the potential risk of a slippery slope in legal practice. With inauspicious beginnings, a young attorney fights a legitimate discovery request in the name of zealous advocacy. Where does it go from there? See David Luban, “The Ethics of Wrongful Obedience in Ethics in Practice (Deborah L Rhode, ed.).
What does it mean to me? It means I am more certain than ever that some very important choices lay ahead of me. In my opinion, the only true ethical choice we have is deciding what type of practice to pursue. Once we make that choice, unfortunately, many other choices may be made for us...
