Hinshaw and Alberts (2012) wrote an article that describes a research project designed to determine if gender affects ethical outcomes in the practice of law. They reported that a number of prior studies had led to the impression that “women report being less tolerant of unethical conduct than men” (p. 147), while other studies “suggest there are few to no ethical differences between males and females.” Basically, they created a questionnaire having to do with an hypothetical scenario involving “a client request to engage in a fraudulent negotiation scheme to settle a case” (pp. 147-148). The results indicated a higher likelihood that women would engage in a proscribed practice than would men.
The specific main decisions the several hundred respondents were asked to make were two, both related to the same scenario: suit has been threatened on behalf of a client who believed he had been infected with a deadly disease by his girlfriend. A negotiation is scheduled in hopes of pre-empting the suit. At this point, I should comment that the scenario seems a stretch because someone who is dying is unlikely to be suing someone else who is dying also. Nonetheless, negotiation is hypothesized and just before it is to commence, the plaintiff informs counsel that he has been informed that he is not infected, but that he doesn’t want the defendant to know: he is angry that he has been scared on account of her careless conduct, and wants retribution. He asks his lawyer to keep the news a secret while negotiating a settlement.
The second decision is about a further client directive that it is alright to admit the disease-free status if asked, but that the lawyer should abstain from volunteering information.
The respondent lawyers, each putting themselves in the stead of the hypothetical litigator, were asked if they would accede to each of the two requests. The ethics prescribed for lawyers preclude accession to either of these two client requests, and generally the more inexperienced male respondents were more in accord with these ethical guidelines than were the women of similar professional tenure, but the lawyers that had been practicing for more than 20 years were more likely to provide the “right” answer. Effectively, the study seemed to show that female lawyers are more likely to be confused about the right thing to do in their early years of practice than were male lawyers, but that this variance narrows as experience increases. It should be noted that, as Tokarz and Hollander-Blumoff (2012, 8) tell us, “Hinshaw and Alberts found no difference in behavior between the genders when considering the question of whether to agree to the client’s request that he or she not disclose the information during negotiation; instead, most of the gender differential came from responses to the question of whether the attorney would agree to the client’s request that he or she withhold the information unless asked directly.”
The authors then explore why this might be, and the explanation that most resonated with me is that women are more prone to resolve ethical dilemmas on the basis of relationship implications while men are more likely to do it on the basis of justice implications. In short, the women commiserated with the client while the men would have told him to suck it up and do right. Of course, we can mount arguments against that hypothesis, but it seems rational and experiential.
I quite enjoyed the article and feel that it was objective and useful.
References
Hinshaw, A. & Alberts, J. K. (2012). Gender and attorney negotiation ethics. Washington University Journal of Law & Policy, 39,145-188. Retrieved from http://digitalcommons.law.wustl.edu/wujlp/vol39/iss1/6/
James, N. J. (2004). Australian legal education and the instability of critique. Melbourne University Law Review, 28(2), 375+. Retrieved from http://www.questia.com
Tokarz, K. & Hollander-Blumhoff, R. (2012). Introduction: New directions in negotiation and
ADR. Washington University Journal of Law & Policy, 39,1-12. Retrieved from http://digitalcommons.law.wustl.edu/wujlp/vol39/iss1/2
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