Legal Ethics

The branch of philosophy that defines what is good for the individual and for society and establishes the nature of obligations, or duties, that people owe themselves and one another. In modern society, ethics define how individuals, professionals, and corporations choose to interact with one another.

The word ethics is derived from the Greek word ethos, which means "character," and from the Latin word mores, which means "customs." ARISTOTLE was one of the first great philosophers to study ethics. To him, ethics was more than a moral, religious, or legal concept. He believed that the most important element in ethical behavior is knowledge that actions are accomplished for the betterment of the common good. He asked whether actions performed by individuals or groups are good both for an individual or a group and for society. To determine what is ethically good for the individual and for society, Aristotle said, it is necessary to possess three virtues of practical wisdom: temperance, courage, and justice.

The need to control, regulate, and legislate ethical conduct at the individual, corporate, and government levels has ancient roots. For example, one of the earliest law codes developed, the CODE OF HAMMURABI, made BRIBERY a crime in Babylon during the eighteenth century B.C. Most societies share certain features in their ethical codes, such as forbidding murder, bodily injury, and attacks on personal honor and reputation. In modern societies, the systems of law and public justice are closely related to ethics in that they determine and enforce definite rights and duties. They also attempt to repress and punish deviations from these standards.

Laws can be neutral on ethical issues, or they can be used to endorse ethics. The prologue to the U.S. Constitution states that ensuring domestic tranquility is an objective of government, which is an ethically neutral statement. CIVIL RIGHTS laws, on the other hand, promote an ethical as well as legal commitment. Often laws and the courts are required to resolve strong ethical dilemmas in society, as in the controversial issues of ABORTION (ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147), AFFIRMATIVE ACTION (UNIVERSITY OF CALIFORNIA V. BAKKE, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750), and SEGREGATION (BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873).

Laws also permit many actions that will not bear ethical scrutiny. In other words, what the law permits or requires is not necessarily what is ethically right. For instance, laws allow disloyalty toward friends, the breaking of promises that do not have the stature of legal contracts, and a variety of deceptions. Laws sometimes require gross immoralities, as did the FUGITIVE SLAVE ACT OF 1850, which required citizens to return runaway slaves to their masters, and the U.S. Supreme Court's DRED SCOTT decision, which in 1857 declared that slaves were not citizens but property (60 U.S. 393, 19 How. 393, 15 L. Ed. 691).

Local, state, and federal regulatory acts influence the conduct of some professions. Business executives are faced with two types of ethical issues in conducting their day-to-day affairs, and the law holds them accountable for their actions in these areas. Micromanagement issues include conflicts of interest, employee rights, fair performance appraisals, SEXUAL HARASSMENT, proprietary information, discrimination, and accepting or offering gifts. Macromanagement issues include corporate social responsibility, PRODUCT LIABILITY, environmental ethics, COMPARABLE WORTH, layoffs and downsizings, employee screening tests, employee rights to privacy in the workplace, and corporate accountability.

Although the law does influence the conduct of some professions, many ethical issues cannot be settled by the courts. The ethics of a particular act is many times determined independently of the legality of the conduct. In fact, decisive answers cannot always be given for many ethical issues because there are no enforceable standards or reliable theories for resolving ethical conflicts.

The response of many professions to the challenging and demanding problem of institutionalizing business ethics is to implement codes of ethics, develop statements of corporate goals, sponsor training and educational programs in ethics, install internal judiciary bodies that hear cases of improprieties, and create telephone hot lines through which employees can anonymously report possible ethical violations. A code of ethics provides members of a profession with standards of behavior and principles to be observed regarding their moral and professional obligations toward one another, their clients, and society in general. The primary function of a code of ethics is to provide guidance to employers and employees in ethical dilemmas, especially those that are particularly ambiguous.

A code of ethics is often developed by a professional society within a particular profession. The higher the degree of professionalism required of society members, the stronger and, therefore, more enforceable the code. For instance, in medicine, the behavior required is more specific and the consequences are more stringent in the code of ethics for physicians than in the code of ethics for nurses. In addition, professions that require licensure from a state-authorized board, which guarantees both the competency and the moral efficacy of its members, place a duty on the licensed professional to help prevent UNAUTHORIZED PRACTICE by unlicensed providers as a means of protecting the public.

Medical professionals must adhere to a high standard of ethics. The American Medical Association has an enforceable, written code.
AP/WIDE WORLD PHOTOS

Decisions in ethical situations can be made more easily if the code is specific, gives detailed directions on what actions should or should not be taken, and spells out explicit penalties for unethical behavior. Therefore, some large and influential professional associations have developed highly detailed and enforceable codes for their membership. The American Medical Association's (AMA's) Principles of Medical Ethics has seven provisions, supplemented by numerous interpretive opinions of a judicial council. The Model Rules of Professional Conduct of the AMERICAN BAR ASSOCIATION (ABA) contains eight sections, construed according to 138 ethical considerations and implemented by a comparable number of parallel disciplinary rules. The Rules of Conduct of the American Institute of Certified Public Accountants has six major principles, each with numerous specifications. The American Psychological Association's Ethical Principles of Psychologists and Code of Conduct contains six principles, with several provisions under each.

Other professions with codes of responsibility include dentistry, social work, education, government service, engineering, journalism, real estate, advertising, architecture, banking, insurance, and human resources management. However, because some of these professions are not licensed, anyone can claim their title and perform their function—thus making it difficult to find legal recourse to claims of unethical conduct.

All professional codes can be considered quasi-public because of the effect they may have on legal judgments during litigation. Many states adopt accrediting associations' codes of ethics, thereby establishing those standards as public codifications. Failure to comply with a code can, in some professions, result in expulsion from the profession. The AMA's Principles of Medical Ethics, for example, are not laws per se, but the maximum penalty for violation of the principles is expulsion from the AMA. In addition, the ABA's Model Rules of Professional Conduct provide evidence of professional standards of loyalty and care, and they become directly enforceable public law when they or their variants are adopted as binding upon lawyers admitted to practice within a state.

The most common violations of ethics codes that are brought before state professional associations and the legal system are breach of contract, including that resulting from incompetent behavior or decisions or from failure to exercise GOOD FAITH; FRAUD, or an intent to deceive; and professional MALPRACTICE, or NEGLIGENCE, which include incompetence and the performance of unnecessary services.

Since the legal profession is more self-regulating (i.e., regulated by attorneys and judges themselves rather than by government or outside agencies) than most professions, every state supreme court or legislature has a committee authorized to enforce the state rules of professional legal conduct. The state conduct committees make factual determinations on whether to privately reprimand a lawyer, publicly censure him or her, suspend the attorney's license to practice, or permanently revoke the license (i.e., disbar the attorney, or permanently disqualify the attorney from practicing law in the state).

Specific procedures on discipline in the legal profession vary from state to state, but every state allows for court review of the conduct committee's recommendations. If a license is revoked, the lawyer may petition the committee for readmission to the bar after a period of time specified by the state rules. Not every violation results in disbarment. This drastic measure is most commonly reserved for theft or misuse of client funds.

Besides laws based on professional bar association codes of ethics, separate federal and state laws define ATTORNEY MISCONDUCT and empower judges to discipline unethical conduct by attorneys. For example, rule 11 of the Federal Rules of CIVIL PROCEDURE (28 U.S.C.A.) requires sanctions for lawyers and clients who file frivolous or abusive claims in court.

Courts may restrict lawyers in some cases from making public statements that would otherwise be protected by the FIRST AMENDMENT.A U.S. court of appeals held in the case In re Morrissey, 168 F.3d 134 (4th Cir. 1999) that lawyers, under certain circumstances, may be constitutionally prohibited from making pre-trial statements to the press in criminal cases if there is a "reasonable likelihood" that those statements would interfere with a fair trial. The appeals court continued a line of cases holding that similar restrictions upon a lawyer's speech are constitutional in the appropriate circumstances.

The attorney in Morrissey was convicted of criminal CONTEMPT for his out-of-court public statement, which violated a local court rule prohibiting certain statements during potential or imminent criminal litigation. Other circuit courts of appeals and the U.S. Supreme Court have reached similar results when reviewing similar restrictions, but some, such as the Seventh Circuit in Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), have reached opposite results. Accordingly, the permissible bounds for the restriction of a lawyer's speech remain somewhat vague.

Although every state has adopted either the ABA's Model Rules or one of its predecessors, the interpretation of each state's law regarding lawyer conduct is left to the courts and ethics commissions of the various states. Like other areas of laws, these interpretations vary from state to state. In 1999, the American Law Institute (ALI) approved the RESTATEMENT OF LAW Governing Lawyers, which was designed as a CODIFICATION of the rules derived from decisions of state courts, ethics commissions, and similar agencies. The Restatement is not binding upon any court, but like other Restatements, such as those governing contracts and property, it is a highly persuasive body of work.

The Restatement includes provisions regarding the regulation of the legal profession, the relationship between lawyer and client, civil liability of lawyers, treatment of confidential client information, representation of clients, and conflicts of interest. Development of the Restatement's provisions took several years, and the ALI considered a number of drafts before approving the final draft in 1999. State courts have already begun to interpret its provisions.

For example, in Levine v. Bayne, Snell & Krause, Ltd., 40 S.W.2d 92 (Tex. 2001), the Texas Supreme Court looked to the Restatement to determine whether an attorney's fee under a contract that provided for a CONTINGENT FEE arrangement should be offset by a counterclaim against the client. The Restatement resolved the dispute, and the Texas Supreme Court held that the law firm in the case should only recover a percentage of the amount recovered by the client after the counterclaim. Similarly, other state courts have applied the Restatement to resolve disputes regarding, for instance, ATTORNEY-CLIENT PRIVILEGE.

Judges must comply with the CODE OF JUDICIAL CONDUCT, which was formulated by the ABA in 1972. This code is not considered law; however, federal and state governments have adopted it, and its violations are used as the basis for punitive action against judges. Any person may lodge a complaint of misconduct against a judge with the appropriate JUDICIAL REVIEW council. Punitive actions include public or private reprimand and suspension from office.

New fields of ethics, such as bioethics, engineering ethics, and environmental ethics, have arisen with the rapid social change and technological developments of modern society. New areas of concern have also opened up, not just for the professions involved but for society as well. For instance, physicians, who have taken the Hippocratic Oath to save life, cure disease, and alleviate suffering, are now faced with whether to use medical devices that can prolong life at the cost of increasing suffering or to follow patients' requests to be allowed to die without extraordinary lifesaving precautions or to be provided with medications or devices that will end life. As such professions grapple with expanding their codes of responsibility to keep up with technological advances and societal pressures for stricter business ethics, changes in laws governing business ethics are bound to change too. Since societal ethics has evolved through the law, it mirrors the ethical norms agreed on by the majority.