Conflicts of interest and
the psychology of disclosure
BY JENNIFER K. ROBBENNOLT, JD, PHD • UNIVERSITY OF ILLINOIS
Paul Cortez was convicted of murdering Catherine Woods. On appeal, Cortez argued that he was ineffectively represented by counsel at trial because one of his attorneys had a
conflict of interest. The attorney had been indicted on charges
that she had smuggled drugs to one of her clients in prison —
thus, she faced the prospect of being prosecuted by the same
prosecutor’s office as her client. These facts presented the troubling possibility that the attorney’s interest in how her own case
would be prosecuted would constrain the zeal with which she
defended her client (State of New York v. Cortez).
At a pre-trial hearing to address the conflict, the trial judge
noted the conflict (but said that she was “not quite sure [she
saw] it”) and asked Cortez to indicate that he understood what
was “going on” and that he desired to go forward despite the
conflict. Cortez responded: “Yes, I understand that. And she has
not compromised this case on account of her own.”
Defendants are allowed to waive conflicts if they do so in a
manner that is “knowing, intelligent, and voluntary” (Edwards
v. Arizona, 1981). The judges on the appellate panel disagreed
as to the specifics of what should be required of a trial court
judge who accepts a defendant’s waiver. They did, however,
hold that the exchange between Cortez and the trial judge was
not sufficient to constitute an adequate waiver of the attorney’s
conflict. Nonetheless, they concluded that there was no evidence
to show that the conflict had resulted in any deficits in the
defense of Cortez’s case.
In theory, when a conflict is disclosed, the affected party
can evaluate the disclosure, discount any conflicted advice
and make an objective determination about the value of
continued representation. But psychologists have shown that
it is difficult to sufficiently discount conflicted advice and
assess the advisor objectively (see review in Loewenstein,
Cain, & Sah, 2011).
Just as jurors have difficulty ignoring inadmissible testimony
or discounting coerced confessions, legal clients may have
difficulty ignoring advice even when it has been offered by an
advisor with a conflict. It may be hard to adjust away from the
anchor provided by the advice. And, even more insidiously,
when an advisor discloses a conflict, the advisor can seem even
As a client considers whether to waive a conflict, he or
she may be disinclined to second-guess his or her decision
to hire the attorney or to act in a way that would signal
distrust in the lawyer. The fundamental attribution error
can mean that the client underestimates the ways in which
the advisor’s judgment may be influenced by the situation
presented by the conflict. And the client may overweigh the
certain and immediate loss of trial counsel as compared
with the nebulous and future potential effects of the conflict
(Cameron & Miller, 2009).
Ironically, disclosure might even increase the extent to
which the conflict biases the attorney’s advice. In particular,
psychologists have found that acting ethically at an earlier time
can result in less ethical behavior at a later time (Monin & Miller,
2001). But while disclosure itself may not cure the conflict, the
prospect of disclosure may motivate advisors to avoid conflicts
at the outset when they can (Sah & Loewenstein, 2014).
Legislatures, bar ethics committees and courts — like the
courts that considered the Cortez case — should find this recent
psychological research useful as they consider how to address
conflicts of interest, the effects of disclosure and the quality of
client waivers. n
“Judicial Notebook” is a project of Div. 9 (Society for the Psychological Study of Social Issues).
• Cameron, J. S., & Miller, D. T. (2009). Ethical standards in
gain versus loss frames. In D. De Cremer (Ed.), Psychological
perspectives on ethical behavior and decision making (pp. 91–
106). Charlotte, NC: Information Age Publishing.
• Loewenstein, G., Cain, D. M., & Sah, S. (2011). The limits
of transparency: Pitfalls and potential of disclosing conflicts of
interest. American Economic Review, 101, 423–428.
• Monin, B., & Miller, D. T. (2001). Moral credentials and
the expression of prejudice. Journal of Personality and Social
Psychology, 81, 33–43.
• Sah, S., & Loewenstein, G. (20140). Nothing to declare:
Mandatory and voluntary disclosure leads advisors to avoid
conflicts of interest. Psychological Science, 25, 575–584.