Legal Ethics in Pop Culture

Transcription

1 Legal Ethics in Pop Culture Nancy B. Rapoport Acting Executive Vice President & Provost, UNLV Garman Turner Gordon Professor of Law, William S. Boyd School of Law Affiliate Professor of Business Law & Ethics, Lee Business School Nancy B. Rapoport All rights reserved.

2 Lawyer ethics aren t that hard to get : Legal ethics Common sense Basic human behavior

3 You already know the rules. Know your client. Know the ethics rules that apply to you. Don t lie. Remember your obligations as an officer of the court. Avoid conflicts of interest.

4 You already know the rules. And yet (like Ron Popeil s commercials), there s more: Be diligent. Be competent. Don t be abusive. Don t churn fees. Communicate.

5 What are your first memories of lawyers in pop culture? This is the participatory part you can call out names. Do you remember how those lawyers made you feel?

6 What clients know about ethics:

7 The four eras of pop culture lawyers. Lawyer as hero of the community. Lawyer as anti-hero. Lawyer as worse than anti-hero. Lawyer as flawed human.

8 Lawyer as hero: [SNIP] Inherit the Wind (movie, 1960; MGM/UA Home Entertainment 2007)

9 Lawyer as hero: [SNIP] To Kill a Mockingbird (movie, 1962; Universal Studios Home Entertainment 2012)

10 Lawyer as anti-hero: [SNIP] And Justice For All (Columbia Pictures 1979)

11 Lawyer as devil s spawn: [SNIP] The Devil s Advocate (Warner Bros. 1997)

12 Lawyer as flawed human: [SNIP] Liar Liar (Universal Pictures 1997)

13 The future looks marginally brighter, though. Now we re not the devil s spawn any more. Or the first victim of the T. Rex in Jurassic Park. We re complicated humans, with flaws and talents. Even television is starting to show more balanced lawyering. Although I still bear a grudge about Ally McBeal.

14 There s also a whole genre of law students in the movies: [SNIP] The Pelican Brief (movie, 1993; Warner Home Video 1997)

15 Law students: [SNIP] Legally Blonde (MGM 2001)

16 What about the bankruptcy law pop culture references? For a long time, I only had this next one:

17 The Rainmaker (American Zoetrope 1997) [SNIP]

18 Now I also have this one: [SNIP] The Office (Season 4) (NBC/Universal Home Entertainment 2007) (Episode 4: Money)

19 Ethics sensitivity training time:

20 The Office (Season 5, Episode 2 Business Ethics) (NBC/Universal Home Entertainment 2008) [SNIP]

21 The Lincoln Lawyer (Lions Gate Films Home Entertainment 2011) [SNIP]

22 Ghostbusters II (film, 1989; Sony Home Entertainment 2005) [SNIP]

23 The Rainmaker (American Zoetrope 1997) [SNIP]

24 The West Wing (In the Shadow of Two Gunmen, Part 1 (Season 2, Episode 1 (aired 2000)): [SNIP]

25 The West Wing (Bad Moon Rising, Season 2, Episode 19 (aired 2001)): [SNIP]

26 Double Jeopardy (Paramount 1999): [SNIP]

27 If you want to change people s behavior: It s important to understand why people behave the way they do.

28 Think about incentives: People work to meet the incentives they re given whatever those incentives may be. To change behavior, it s important first to identify the incentives that triggered that behavior. Every change in incentives involves a risk of creating new, bad incentives. Humans make certain cognitive errors. An organization s culture matters.

29 Why should we care especially if we re lawyers? Supervisory lawyers have an ethical duty to monitor their employees compliance with ethics rules. In some situations, non-compliance with matter-specific rules can cost firms money. E.g., not billing in tenths of an hour in large chapter 11 cases. Now is a good time to encourage law firms to change. Lots of pressure on BigLaw.

30 Subtle default rules and other ways of changing behavior:

31 Examples of bad incentives:

32 Let s start with why I want to nudge organizations: My work as a fee examiner got me started thinking about this topic. Are there little changes that we could make inside organizations that might help them: Run better/be more profitable? Serve clients better? Encourage more ethical behavior?

33 All organizations can use a nudge or two. A law firm isn t that unique an organization. It s all about an organization s culture.

34 Setting the correct cultural expectations is a first step but not the only necessary one. Does the firm encourage the sharing of clients, or is it an eat what you kill kind of system? Does the firm tolerate bad behavior from star performers? John Gellene Milbank. The symbolic frame and the stories we tell about an organization.

35 On nudging / ethics: For some of my ideas on this topic, see: Nancy B. Rapoport, Nudging Better Lawyer Behavior: Using Default Rules and Incentives to Change Behavior in Law Firms, 4 ST. MARY S J. L. ETHICS & MALP. 42 (2014). Randy D. Gordon & Nancy B. Rapoport, Virtuous Billing, 15 NEV. L.J. 698 (2015).

36 Bottom line: First off, enjoy the movies/tv shows/books. Second, make sure that you re keeping in mind the difference between pop culture lawyering and real lawyering.