GPSolo Magazine - October/November 2005
Avoiding Ethical Atrophy
Several years ago I was at a continuing legal education course on ethics in which the presenters spoke entirely about the rules and regulations of the bar. Too often in that talk they spoke of how far a lawyer could go without breaching the rules, as though ethical behavior were a game. I found this troubling, and I find it troubling any time talk about ethics focuses on the rules and regulations.
Mandated standards are well and good, but we need to be aiming higher than that. Healthy, happy practitioners live by a set of principles and values that are much more effective than any mandate.
It has been said that a society’s health can be measured by the gap between its morals and its laws—or, in my language, between ethics and rules. The minimum ethical behavior for a minimally healthy society is to obey the rules. The higher our ethical standards become, the healthier we will be and the healthier our society will be. When I am operating from my values and those values are considerate of the common welfare, then I will barely need to know the rules. I will always act in a way that is considerate of my self, my neighbors, the environment, the common good, and the specific situation.
We must continually develop our ability to make ethical decisions. As we become more governed by laws and rules, our focus shifts to following the rules. If we do not continually work at exploring and living by our values, our ability to make ethical decisions and act in an ethical way will diminish. I call this process ethical atrophy.
To act ethically, we must be aware of our own personal values, of what is important to us . We must be aware of the values of the group in which we are participating, and we must be aware of the circumstances that exist at the time a decision must be made. This requires discipline, the ability to contemplate, the ability to be curious about others, and the ability to access and determine clearly our perceptions, thoughts, feelings, and awareness of others. Most importantly, it requires the courage to be honest about all this—to ourselves and others.
This set of abilities does not come ready-made; it must be developed. The failure to regularly and routinely access, reflect upon, determine, and act upon one’s personal values will cause this ability to atrophy, just as a muscle atrophies if not used.
The Downside of Rules
I believe that we are creating a maelstrom in our society and in the practice of law by focusing on external rules.
The current fiascoes with Enron, WorldCom, and others did not simply happen. We did not go from a world in which businesses were ethical to one in which fraud and corruption is massive and blatant. I believe the road down was paved with a focus on rules.
- The first step down this road is to focus on the rules and stop paying attention to our own values. We stop making choices based on all factors in any given situation. Because there are innumerable situations, we begin to formulate more rules in an attempt to cover them all.
- Next we focus on how to get around any given rule, finding loopholes. This becomes accepted, even standard procedure. Although it may seem that there is nothing wrong with finding loopholes, the intention of an agreement can get lost or ignored in the process.
- The next step is to test the limits of the loopholes. Perhaps we even get caught. The negative impact is minimal, however, because we can claim that we were trying to follow the rules, but missed. Still, no one is asking, “What is the right thing to do in these circumstances?” or “What do I want to do to live in accordance with my values?” The question is, “How do I get away with as much as I can?”
- The next step is to forget the rules. The question is now, “Who can I blame if I get caught?”
As with any disease, ethical atrophy doesn’t happen all at once. We deteriorate progressively.
A Matter of Health
This is not just a moral issue or a business issue; it is a matter of personal health. Loss of a sense of one’s own personal values is a common symptom in virtually all the distressed people I see. It seems to be a core problem of people dealing with mood disorders, depression, anxiety, addictions, mental problems, and OCD—as well as people dealing with career dissatisfaction.
If each of us focuses on being a healthy lawyer, we will do more to produce a healthy profession than if we focus solely on living by the disciplinary rules. I believe we will also end up living by much higher standards than those rules.
Perhaps this process of self-reflection is something that lawyer assistance programs can bring to the profession. The process of examining oneself and asking questions such as, “Why were we chosen?” “Why did we want to become lawyers?” and “What do we bring to the law?” is useful and healthy. I recently heard another great question: “What am I doing in my profession to bring ‘awe’ alive?” Or, as I like to put it, “What is so AWEsome about being a lawyer?”
Derek LaCroix is executive director of the Lawyers Assistance Program of British Columbia. He is a Commissioner of the ABA Commission on Lawyers Assistance Programs and Co-Chair of the CoLAP conference in Charleston, South Carolina, in 2005. He received the designation of Queens Counsel in 2004 in recognition of his work in the legal community. He can be reached at email@example.com.