Sept. 16, 2015 – Why do smart people do dumb things? For lawyers caught up in the unauthorized practice of law, it may be a sincere (but mistaken) desire to help a client.

Attorneys are used to hearing about the unauthorized practice of law (UPL) when it comes to nonlawyers or questionable websites providing legal advice. Yet, it bears remembering that UPL also applies to lawyers providing advice outside of the jurisdiction(s) in which they are licensed to practice.

The ease with which clients can search for and contact a law firm that doesn’t practice in their jurisdiction makes it easier than ever for attorneys to fall into this trap.

It should be this clear: “If I’m standing in here in Wisconsin and I’m licensed in Wisconsin, and I’m giving legal advice to a Texan about Texas law without a bar card: unauthorized practice.”

Nevertheless, says Nancy Rapoport, a law professor and acting executive vice president and provost at the University of Nevada – Las Vegas, “there’s a lot of reasons why a very smart person can do things that later on you look back and think, ‘boneheaded move.’”

The Dangers of Cognitive Dissonance

Appearing on a panel session at the 2015 Annual Meeting & Conference titled “Unauthorized Practice of Law Issues in Multi-State Practice,” Rapoport discussed the social science behind why an attorney, knowing they are not licensed to practice law in a jurisdiction, still does it.

A major reason is cognitive dissonance.

“People cannot hold in their brain two competing moral views of themselves,” says Rapoport. “So if you think of yourself as a good person – and I’m pretty sure everybody does – and you do something bad, your brain is going to help you rationalize why you did the bad thing.”

When it comes to attorneys involved in UPL, you hear them say things like “‘But the client needed it and couldn’t wait,’ and ‘the client knows me more than any lawyer in that jurisdiction, so I had to do it.’”

And because attorneys, like most people, view themselves positively, they rationalize their actions because the first rule as a lawyer is to represent your client diligently and competently.

“There are hundreds of different types of cognitive errors,” says Rapoport. They happen all the time, and lawyers are not immune.

“Sometimes when a cognitive error is particularly egregious, you can find the person wearing federal prison orange at the end of it, like the case of John Gellene at Milbank Tweed, who forgot to do the right type of disclosures, and found himself in federal prison.”

Protecting Yourself from Cognitive Errors

If we know that humans are prone to making cognitive errors, can we prevent them?

“Sort of,” says Rapoport.

“You can come up with ways to do cross-checks to slow down your decision-making and to make it harder to make bad decisions.”

Create checklists or implement computer programs that explicitly ask if you are licensed to practice in that jurisdiction. And while these are a good first step, it means diligently using them.  

Without cross-checks, “lawyers are human like everybody else and the chances are decent that all of us will make bad decisions even while well-meaning at some point in their lives.”

Social Pressure at Law Firms

Lawyers are also at risk of social pressure in their law firm, common to many organizations.

Rapoport points to a series of experiments by psychologist and pioneer in social psychology Solomon Asch to see how much social pressure could affect people.

In a now famous conformity study, Asch hired a number of actors to sit in a room with a test subject. Participants were shown two cards, the first with one line on it, and the other with three lines of different lengths. The participants would then be asked which of the lines matched the first card.

At first, all of the actors answer the questions correctly. Then, the actors slowly begin to all pick the same wrong answer.

“What Asch found is that it took maybe two or three people to change the subject’s behavior,” says Rapoport.

Even though “your eyes will tell you, by and large, if line A is like line C,” test subjects would change their answer to go along with the decision of the group.

Why does this matter?

“When a lawyer in a firm sees behavior that’s not consonant with what he’s supposed to be doing, and a couple of other people are doing it, that lawyer is more likely to go along with the bad behavior.”

In other words, how your colleagues act has an impact on your own actions.