Embodying Legal Ethics

My presentation explores the ways in which mindfulness, as a pedagogical method, can contribute to the development and realization of ethical law practice. My argument begins with a recognition of the gap between, on the one hand, the robust developments in legal ethics theories over the past five or so decades, and, on the other, the lack of noticeable implementation of these theories in practice. 

I contend that this implementation problem stems from two related issues, both of which are rooted in a lack of attention towards the role embodied processes play in learning and doing ethics. First, I will illustrate that there is a problematic overemphasis in the field of ethics, and particularly legal ethics, on reason and analytic thought despite the centrality of more somatic and automatic processes like moral instincts, judgements and attraction and aversion in shaping both ethical thought and behavior, or what I will call ‘the problem of rational dominance.’ Second, I will argue that the widespread issues of lawyer (un)well-being stymie lawyers’ abilities to act and perform ethically because experiences such as stress and anxiety impede the operation of faculties that are necessary for ethical behavior such as reflective decision-making and effective communication, or what I am terming ‘the reactive lawyer problem.’

I argue that these ‘embodied’ obstacles to ethical lawyering have been particularly intractable as their solution requires a different sort of training than lawyers (and most people) are used to, one that goes beyond knowledge acquisition to developing an attunement to the mechanisms of our bodies. This sort of intervention would assist with the first ‘rational dominance’ obstacle by enabling lawyers to become aware of (so that, if needed, they can adjust) their more instinctual, sub-conscious ethical priming, and with the second by helping mitigate the negative effects of stress and other (un)well-being markers so that more ethical action is even possible. I offer mindfulness training as this type of needed alternative intervention due to its ability to cultivate knowledge of one’s body and its signals and processes in a way that is highly learnable and gaining increasing acceptance in a variety of sectors of society.