Title

How Improving Decision-Making and Mindfulness Can Improve Legal Ethics and Professionalism

Document Type

Article

Publication

Journal of Law, Business & Ethics

Year

2015

Abstract

Lawyers who behave unethically and unprofessionally do so for various reasons, ranging from intention to carelessness. Lawyer misconduct can also result from decision-making flaws. Psychologist Chip Heath and his brother Dan Heath, in their best-selling book, Decisive: How to Make Better Decisions in Life and Work, suggest a process to improve people’s decision-making. They introduce the acronym WRAP as the mnemonic for these decision-making heuristics: (1) Widen your options, (2) Reality-test your assumptions, (3) Attain distance before deciding, and (4) Prepare to be wrong. The WRAP process mitigates these cognitive biases: (1) narrow framing of a decision problem, (2) confirmation bias of seeking only supportive information, (3) temptation of short-term emotions, and (4) overconfidence in predicting the future. This Article applies the WRAP process to analyze how lawyers can improve their ethical and professional decision-making. This Article thus proposes teaching law students about how to improve their ethical and professional decision-making in general and the WRAP process as a particular method of doing so. This Article also offers primers about mindfulness and real options theory before applying real options theory to develop eight properties concerning the values of two complementary real options that mindfulness provides, namely the real option to engage in ethical or professional behavior and the real option to engage in unethical or unprofessional behavior. This Article is novel in being the first article to apply real options theory from modern financial economics to analyze the value of mindfulness in legal ethical and professional decision-making. Finally, this Article analyzes some interrelationships among the WRAP process, mindfulness, and positive psychology. By explaining how mindfulness and the WRAP process are related, this Article also connects mindfulness with behavioral economics.

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