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The Ethical Health Lawyer: An Empirical Assessment of Moral Decision Making

Published online by Cambridge University Press:  01 January 2021

Extract

The empirical literature exploring lawyers and their moral decision making is limited despite the “crisis” of unethical and unprofessional behavior in the bar that has been well documented for over a decade. In particular we are unaware of any empirical studies that investigate the moral landscape of the health lawyer’s practice. In an effort to address this gap in the literature, an interdisciplinary team of researchers at Vanderbilt University designed an empirical study to gather preliminary evidence regarding the moral reasoning of health care attorneys. The primary research question was how health lawyers respond when they encounter ethical or moral dilemmas in their practice for which the law fails to offer a bright-line solution. In exploring this question, we sought to understand better what motivations or influences guide action when health lawyers confront ethical quandaries, and whether there are specific differences, e.g., gender, experience, or religiosity, that are associated with specific responses to situations testing ethical or moral boundaries.

Type
Independent
Copyright
Copyright © American Society of Law, Medicine and Ethics 2009

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References

Wendel, W. B., “Public Values and Professional Responsibility,” Notre Dame Law Review 75, no. 1 (1999): 1123, at 17 (“Very little empirical work has been done on the moral decision making of lawyers …”); Zacharias, F. C., “Specificity in Professional Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics,” Notre Dame Law Review 69, no. 2 (1993): 223-309, at 236 (“Hard evidence concerning lawyers' common behavior and reactions is virtually nonexistent.”) But see sources cited in note 13.Google Scholar
Bogus, C. T., “The Death of an Honorable Profession,” Indiana Law Journal 71, no. 4 (1996): 911947; Burger, W. E., “The Decline of Professionalism,” Fordham Law Review 63, no. 4 (1995): 949-958, at 950; Buchanan, J. C., “The Demise of Legal Professionalism: Accepting Responsibility and Implementing Change,” Valparaiso University Law Review 28, no. 2 (1994): 563-582; Kronman, A. T., The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge: Harvard University Press, 1993): at 1.Google Scholar
Cramton, R. C., “The Future of the Legal Profession: Delivery of Legal Services to Ordinary Americans,” Case Western Reserve Law Review 44, no. 2 (1994): 531620, at 611 (“A lawyer who cares about clients, who is accountable to them, who engages in moral dialogue with them, and who wants the legal profession to see that client interests are protected” is a “major element of a renewed vision…of what it means to be a lawyer in today's world.”)Google Scholar
See generally Gantt, L. O. N. II, “More Than Lawyers: The Legal and Ethical Implications of Counseling Clients on Nonlegal Considerations”, Georgetown Journal of Legal Ethics 18, no. 2 (2005): 365420; Dinerstein, R. and Ellmann, S. et al., “Connection, Capacity and Morality in Lawyer-Client Relationships: Dialogues and Commentary,” Clinical Law Review 10, no. 2 (2004): 755-804; Wendel, W. B., “Civil Obedience,” Columbia Law Review 104, no. 2 (2004): 363-425; Stuckey, R., “Understanding Casablanca: A Values-Based Approach to Legal Negotiations”, Clinical Law Review 5, no. 1 (1998): 211–270; Cramton, R. C. and Knowles, L. P., “Professional Secrecy and Its Exceptions: Spaulding v. Zimmerman Revisited”, Minnesota Law Review 83, no. 1 (1998): 63-127; Atkinson, R., “How the Butler Was Made to Do It: The Perverted Professionalism of The Remains of the Day”, Yale Law Journal 105, no. 1 (1995): 177-220; Allegretti, J., “Shooting Elephants, Serving Clients: An Essay on George Orwell and the Lawyer-Client Relationship”, Creighton Law Review 27, no. 1 (1993): 1-24; Pepper, S. L., “Autonomy, Community, and Lawyers' Ethics”, Capital University Law Review 19, no. 4 (1990): 939-966; Luban, D., Lawyers and Justice: An Ethical Study (Princeton: Princeton University Press, 1988); Ellmann, S., “Lawyers and Clients”, UCLA Law Review 34, no. 3 (1987): 717-779; Menkel-Meadow, C., “Toward Another View of Legal Negotiation: The Structure of Problem-Solving”, UCLA Law Review 31, no. 4 (1984): 754-842; Shaffer, T., “The Practice of Law as Moral Discourse”, Notre Dame Lawyer 55, no. 2 (1979): 231-53.Google Scholar
See generally Wasserstrom, R., “Lawyers as Professionals: Some Moral Issues”, Human Rights 5, no. 1 (1975): 124; Fried, C., “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation”, Yale Law Journal 85, no. 8 (1976): 1060-1089; Postema, G. J., “Moral Responsibility in Professional Ethics”, New York University Law Review 55, no. 1 (1980): 63-89.Google Scholar
Shaffer, T., “The Practice of Law as Moral Discourse”, Notre Dame Lawyer 55, no. 2 (1979): 231253.Google Scholar
Pepper, S. L., “The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities”, American Bar Foundation Research Journal 11, no. 4 (1986): 613635, at 635.CrossRefGoogle Scholar
Id., at 630.Google Scholar
Pepper, S. L., “Lawyers' Ethics in the Gap Between Law and Justice”, South Texas Law Review 40, no. 1 (1999): 181205, at 205.Google Scholar
Daicoff, S., “(Oxymoron?) Ethical Decision-Making by Attorneys: An Empirical Study”, Florida Law Review 48, no. 2 (1996): 197262, at 227.Google Scholar
Id., at 240–241. For instance, Professor Daicoff notes that attorneys seeking guidance in their moral deliberation may rely on formal rules and regulations as well as personal values and standards to varying degrees and without consistency, depending on whether the dilemma being confronted is more personal or more professional in nature. Thus, she concludes: “[L]awyers may be internally inconsistent. If such an inconsistency exists in lawyers' bases for decisions, it would tend to highlight and support the existence of a personal dilemma for lawyers.” Id., at 241. Professor Daicoff suggests that such dilemmas result “from the need to think logically, ‘like a lawyer,’ at work and to be a human being at home.“The internal dilemma that can be created by a disproportionate emphasis on “thinking like a lawyer” during the formation of one's professional identity is explored in Perry, J. E., “Thinking Like a Professional,” Journal of Legal Education 58, no. 2 (2008): 159165.Google Scholar
Mather, L., “What Do Clients Want? What Do Lawyers Do?” Emory Law Journal 52, Special Edition (2003): 10651086, at 1072–1081; Gordon, R. W., “The Ethical Worlds of Large-Firm Litigators: Preliminary Observations”, Fordham Law Review 67, no. 2 (1998): 709-38; Messikomer, C., “Ambivalence, Contradiction, and Ambiguity: The Everyday Ethics of Defense Litigators”, Fordham Law Review 67, no. 2 (1998): 739-772; Nelson, R. L., “The Discovery Process as a Circle of Blame: Institutional, Professional, and Socio-Economic Factors That Contribute to Unreasonable, Inefficient, and Amoral Behavior in Corporate Litigation”, Fordham Law Review 67, no. 2 (1998): 773-808; Sarat, A., “Enactments of Professionalism: A Study of Judges' and Lawyers' Accounts of Ethics and Civility in Litigation”, Fordham Law Review 67, no. 2 (1998): 809-836; Suchman, M. C., “Working without a Net: The Sociology of Legal Ethics in Corporate Litigation”, Fordham Law Review 67, no. 2 (1998): 837-74; Frenkel, D. N., “Ethics: Beyond the Rules – Questions and Possible Responses”, Fordham Law Review 67, no. 2 (1998): 875-884.Google Scholar
Krause, J. H. and Saver, R. S., “The Ethical Health Lawyer: Ethics in the Practice of Health Law”, Journal of Law, Medicine & Ethics 32, no. 4 (2004): 766–69, at 766-767.CrossRefGoogle Scholar
This study met the “Exempt Review” requirements of 45 CFR 46.101(b)(2), which specifies that a survey may be “exempt” if the information obtained is recorded in such a manner that human subjects cannot be identified and any disclosure of the responses outside the research cannot reasonably place the subjects at any risk. Moreover, the Survey Monkey software was programmed to delete IP addresses of all respondents, thereby preventing the research team from tracing survey responses to individual computer users and helping to ensure the anonymity of respondents. Additionally, in the openended demographic questions respondents were advised to insert “confidential” or skip entirely any particular question that might result in specifying information that could result in potential respondent identification.Google Scholar
Robinson, J. P. and Shaver, P. R., Measures of Social Psychological Attitudes (Oxford, England: University of Michigan Institute of Social Research, 1969).Google Scholar
Plante, T. G., Vallaeys, C. L., Sherman, A. C. and Wallston, K. A., “The Development of a Brief Version of the Santa Clara Strength of Religious Faith Questionnaire”, Pastoral Psychology 50, no. 5 (2002): 359368, at 368.CrossRefGoogle Scholar
Responses to a fourth scenario suggested that some participants found it confusing. Furthermore, the results from the analysis of this scenario neither contributed to nor contradicted the findings reported below. For these reasons, this fourth scenario was dropped from the analysis.Google Scholar
Due to the small sample of participants who responded to this question, no demographic analyses were conducted.Google Scholar
Due to the complexity and paucity of responses across the eight coding categories, no demographic analyses were conducted.Google Scholar
See Daicoff, , supra note 11, at 247.Google Scholar
See Pepper, , supra note 7, at 630. See also, Pepper, S. L., “Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering”, Yale Law Journal 104, no. 7 (1995): 15451610, at 1563 (“…[A] lawyer is not limited to giving only legal advice…unadulterated with other aspects of life. Lawyers can attempt to open clients' perspectives, pointing out the values of ongoing contractual relationships, or of a reputation for honoring one's obligations. A lawyer can (and should) engage in what has been called a ‘moral dialogue’ with clients who are contemplating wrongful or harmful conduct.”)CrossRefGoogle Scholar
E-mail correspondence from members of the Tennessee Bar Association Health Law Section (March 8, 2007) (on file with Joshua E. Perry).Google Scholar
See Wasserstrom, , supra note 5, at 5. (“Consider.the role-differentiated behavior of the lawyer. Conventional wisdom has it that where the attorney-client relationship exists, the point of view of the attorney is properly different — and appreciably so — from that which would be appropriate in the absence of the attorney-client relationship….[I]t is often appropriate and many times even obligatory for the attorney to do things that, all other things being equal, an ordinary person need not, and should not do. What is characteristic of this role of a lawyer is the lawyer's required indifference to a wide variety of ends and consequences that in other contexts would be of undeniable moral significance.”)Google Scholar
See generally Wendel, W. B., Lawyers and Fidelity to Law (Princeton: Princeton University Press, 2009) (forthcoming), manuscript at 16 (noting that while “[m]ost academic philosophers use the terms ethics and morality interchangeably,” “lawyers often use the term ‘legal ethics’ to refer to the rules of professional conduct promulgated and enforced by public institutions.”) Prof. Wendel's forthcoming book explores at length the academic debate and real-life tensions between role morality and ordinary morality.Google Scholar
See supra note 24. See also Id., at 56 (“[T]he demands of the lawyer's role may create a conflict with ordinary morality. I am concerned here with the claim that professional roles create duties that really are duties, and should be followed in all but exceptional circumstances, not merely considerations that are taken into account in practical reasoning. Understood in this way, professional obligations require a lawyer ‘to put to one side considerations of various sorts — and especially various moral considerations — that would otherwise be relevant if not decisive.’ [citing Wasserstrom, supra note 5, at 3] It is this exclusionary character of the lawyer's role, which creates genuine duties, but which also leads to the charge that lawyers are inhabiting a simplified moral universe without justification.” [citing Postema, supra note 5, at 65]).Google Scholar