The goal of this paper is to develop an approach to teaching ethics that can be used in business courses such as Business Law and Legal Environment, law school courses, and particularly in continuing education courses for professionals. This paper uses the legal profession as an example of how the approach can be applied in undergraduate courses, law school courses, and Continuing Legal Education (CLE) ethics courses. To accomplish this, we first present information about the legal profession’s rules of professional conduct and the current status of CLE ethics requirements. We then critique the historical approach to teaching legal ethics and CLE ethics courses.2 The paper continues by providing recommendations for teaching ethics in business law courses, law school, and CLE ethics classes.3 The suggestions include a robust principles-based ethical decision model that can be used for ethics education for students and practicing professionals. We then present the development and results of a survey administered to legal professionals about six ethical dilemmas in practice. As part of the analysis of the survey results, we show how the ethical decision model can be used to enhance analysis of ethical dilemmas beyond a professional code of ethics. Finally, we provide a summary and draw conclusions about ethics education for students and practitioners.
II. Professional Ethics and Ethics Education in the Law Profession
The American Bar Association’s (ABA) Canons of Professional Ethics was originally adopted in 1908.4 It was a long arduous process to craft this first code as outlines in the preface to the current ABA Model Rules of Professional Conduct:
On August 27, 1908, the Association adopted the original Canons of Professional Ethics. These were based principally on the Code of Ethics adopted by the Alabama Bar Association in 1887, which in turn had been borrowed largely from the lectures of Judge George Sharswood, published in 1854 as Professional Ethics, and from the fifty resolutions included in David Hoffman’s A Course of Legal Study (2d ed. 1836).5
The Preamble to this document set the tone by articulating the lofty goal of obtaining unbiased justice. This required proper conduct and motives of the legal practitioners by stating, “The future of the Republic, to a great extent, depends upon our maintenance of Justice pure and unsullied. It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men.”6 Moreover, the authors of the Preamble humbly recognized that their canons of ethics, enumerating particular duties, were limited and “should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned.”7
The 1908 Canons, while amended primarily in 1933 and 1937,8 remained in effect until 1970. The longevity of the Canons life was impressive. However, it is somewhat shocking to consider that the Canons, even when they were adopted, may not have been taken very seriously.9 As one writer put it:
The 1908 Canons originally consisted of thirty-two hortatory statements that insisted that a lawyer pursue the high road in every endeavor mentioned. They did not attract a great deal of meaningful professional or public attention at the time. The Canons were not originally adopted in order to serve as a regulatory blueprint for enforcement through disbarment and suspension actions. Instead they seem to have been a statement of professional solidarity – an assertion by elite lawyers of the ABA of the legitimacy of their claim to professional stature. The fact that the Code was copied from much earlier documents, and in verbiage and conceptualization that even in 1908 must have appeared terribly dated, was hardly objectionable in a document whose drafts intended primarily to celebrate the ancient lineage of the bar’s professional stature.10
The 1970 ABA Code of Professional Responsibility contained Disciplinary Rules and Ethical Considerations.11 However, this Code was also viewed with disdain due to its lack of strong enforcement procedures as the Disciplinary Rules were created to set minimum standards of conduct such as in the areas of advertising and etiquette, unrelated to ethics. The Ethical Considerations were envisioned to set forth the aspirations and guidelines for the legal profession, and not intended to be seriously enforced.12
By 1974, this Model Code had been adopted by 49 of the state bar associations. Nonetheless, in 1977 the ABA leadership appointed another committee to suggest revisions. Finally, on August 2, 1983, a new improved ABA Model Rules of Professional Conduct was adopted. This new Model Code took out any reference to Ethical Considerations and inserted specific rules with commentaries. Over time, various amendments to this code were approved with significant changes adopted in 2002. It is interesting to note that the preamble of the Model Rules of Professional Conduct emphasizes primarily duties with a focus on representation, confidence, conduct, demonstrating respect, following legal procedures, and seeking improvements.
Ethical consideration is generally absent in the code sections themselves and has been neglected in the preambles, especially for Section 9:
 In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all-difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation to zealously protect and pursue a client’s legitimate interests within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system.
In section 16, the Preamble gives a nod to the 1908 Preamble as it also takes a more conciliatory, or even a humbler stance, by suggesting there are additional factors and considerations outside the list of rules, cases, and commentaries:
16)... The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.
Nevertheless, although the Preamble in section 16 (1977) and the Preamble of the 1908 Codes suggest that there may be additional considerations beyond the specific rules set forth in these codes, one is hard pressed to find these codified words of any real importance.
The Multistate Professional Responsibility Exam (MPRE) arrived March 4, 1980.13 Certainly, in the preparation for taking the ethics portion of Bar exams in the questions themselves, there does not appear to be any focus on ethical principles beyond the black letter code sections with little, if anything, reflecting a knowledge of ethical concepts or tools. As one author put it:
Most law professors appear to regard the exam at best as a tolerable embarrassment unworthy of much attention. What little commentary that has been offered from that quarter has been uniformly and fundamentally negative. One might say that among legal academics the overall reaction to the test has been one of hostile indifference. 14
The National Conference of Bar Examiners (NCBE) developed and administers Multistate Professional Responsibility Exam (MPRE). According to the NCBE, the “MPRE is based on the law governing the conduct and discipline of lawyers,” as found in the American Bar Association Model Rules of Professional Conduct, the ABA Model Code of Judicial Conduct, and “controlling constitutional decisions and generally accepted principles established in leading federal and state cases and in procedural and evidentiary rules.”15 As the most recent MPRE Information Booklet explains in more detail, questions dealing with the discipline of lawyers are governed by the Model Rules, while questions beyond that context “are designed to measure an understanding of the generally accepted rules, principles, and common law regulating the legal profession in the United States. In these items, the correct answer will be governed by the view reflected in a majority of cases, statutes, or regulations on the subject. To the extent that questions of professional responsibility arise in the context of procedural or evidentiary issues, such as the availability of litigation sanctions or the scope of the attorney-client evidentiary privilege, the Federal Rules of Civil Procedure and the Federal Rules of Evidence will be assumed to apply, unless otherwise stated.”16
Currently, the purpose of the MPRE has been significantly reduced and reads on the NCBE website: “The purpose of the MPRE is to measure examinees’ knowledge and understanding of established standards related to the professional conduct of lawyers. The MPRE is not a test to determine an individual’s personal ethical values. Lawyers serve in many capacities: for example, as judges, advocates, counselors, and in other roles. The law governing the conduct of lawyers in these roles is applied in disciplinary and bar admission procedures, and by courts in dealing with issues of appearance, representation, privilege, disqualification, and contempt or other censure, and in lawsuits seeking to establish liability for malpractice and other civil or criminal wrongs committed by a lawyer while acting in a professional capacity.”17
When first administered, there were 50 multiple-choice questions, today there are 60.18 But there does not appear to be any change in the focus of the exam. It is limited to “testing examinee’s knowledge and understanding of established standards related to a lawyer’s professional conduct.” And is not interested in the “individual’s personal ethical values.”19 Further, the emphasis is on avoiding punishment as stated in the “purpose of the exam,”
The law governing the conduct of lawyers in these roles is applied in disciplinary and bar admission procedures, and by courts in dealing with issues of appearance, representation, privilege, disqualification, in contempt or other censure, and in lawsuits seeking to establish liability for malpractice and other civil or criminal wrongs committed by a lawyer while acting in a professional capacity.20
Whether as a business student, a law student, or a practicing attorney taking a CLE class, many of us believe the study of professional ethics will be not only boring, but also irrelevant. Many students who take ethics classes are unprepared, unmotivated, and cynical. Unfortunately, at many schools, professional responsibility is the only required upper division “ethics” course. Sadly, this course is met with resistance as its perceived purpose is to aid in passing the MPRE. In many states, members of the bar have to enroll in continuing ethics education programs, regardless of whether or not they like it, find it relevant, or let alone interesting. Upon going into these ethics classes, law students and law professionals expect the law that guides and governs lawyers to be more simplistic than it really is.21
Legal ethics is still largely neglected within legal education today. Some contributing factors may be that the notion exists that solely professional and pedagogical practices ensure lawyers are ethical. Many see no need for being taught legal ethics when they learn how to be a professional. Also, there is a misconception that legal academia is a strictly scientific pursuit and therefore ethics are irrelevant. Finally, and probably the most frightening view, is that moral development is finished once one reaches adulthood.22 The fault in this thinking is that it takes away the person’s agency to change and to grow as a person. Though ethics may be mandated, the courses should be restructured to embrace the belief that future students and practicing lawyers can actually benefit from what ethics has to offer.
The ABA’s 1996 report includes “ethical conduct and integrity” as an “essential characteristic of the professional lawyer.”23 These proclamations found in the ABA’s report show that there are high ethical standards that are crucial to professionalism and the privilege of being able to practice law. Society allows lawyers to regulate themselves as long as they practice being ethical, are competent, and place the public interest above their own. There has been a huge gap between the Bar’s official proclamation and the actual education of professionalism. In the 1950’s the Association of American Law Schools recommended that law schools offer ethics and pervasive teaching of ethics throughout their curriculum.
The contemporary era of teaching ethics began in 1974 following the Watergate scandal. Watergate prompted a significant distrust of lawyers. The many lawyers involved never thought about the ethical consequences that would follow after their involvement in the break-in and cover-up of the Democratic National Committee headquarters in 1972. Some use the excuse that they were never taught to question their actions as reason for why they did not foresee the consequences or implications of their actions.24 Prior to Watergate, lawyer’s ethics were based on a vaguely worded list, and had not been changed much in 80 years. Also, it was just an elective class that lawyers had the option to take in law school. The ABA finally intervened and made changes to the ethics code guiding lawyers.25
The way that professional responsibility was being taught socialized students to believe that legal ethics are not important.26 Despite recommendations from the 1986 report issued by the ABA commission on Professionalism, respect for lawyers has continued to drop. One of the reasons why professionalism failed was because of the refusal of law professionals to comply with the recommendations issued by the ABA. Most law schools failed to give legal ethics the same attention as other courses and did not allow it to play a central role in the curriculum.27
As a way of continuing education and to compensate for the limitations of education in law school, most states with mandatory CLE rules require ongoing legal ethics education. Just like law students, lawyers do not feel the need to take ethics classes to be effective practitioners because they feel this knowledge is intuitive or that they have all the information they need to know through their practice of law. There are a number of limitations to CLE programs. For example, there is no way to grade the lawyers. This allows them to act on their feelings of needing to participate or pay attention.28
There are various critiques of the ethics taught to business students, law students, and practicing lawyers. In the legal profession, professionalism is often the target of these critiques because the legal ethics classes that are taught are professional ethics, not ethics more broadly conceived. The rules of professional ethics keep lawyers somewhat honest, while also protecting the profession and the people involved in the profession. On the other hand, some students believe that their moral choices have been prevented by the Rules and Code. As a result, they do not engage in critical thinking to evaluate professionalism or their own actions.29
When teaching ethics to students, they are often reluctant to engage in the subject at hand when it is only seen as compliance with no real-life effect. They experience cognitive dissonance when faced with the law of lawyering and their own moral discourse. In addition, students are very cynical in a course like this, which is, in part, due to law school’s reliance on quasi-Socratic teaching of moral issues in which often no conclusion is given and there is no way to arrive at a reasoned decision.30 These students also believe that any classroom agenda that does not prepare them for the bar is a waste of time.31
There has been a consensus amongst experts that courses in ethics are some of the most challenging to teach. In the classroom setting, both students and teachers are uncomfortable, reflecting a “mismatch between institutional resources, student expectations, and faculty aspirations.”32 Ethical uncertainty places students in an uncomfortable state, and teachers are uncomfortable leading discussions in which they have no special ethical expertise.33
There are several reasons why academics look with disdain on legal ethics. First, there is the belief that practice of the profession will automatically ensure that lawyers act ethically. Second, there exists an erroneous assumption that ethics and the science of law do not mix favorably. Lastly, there is a belief among academics that teaching legal ethics in turn cannot make law students ethical.34 These, coupled with the often-pessimistic attitudes of law students, lawyers, institutions, and teachers, have created mediocre legal ethics classes. Unaspiring in the sense that as the joke says, what is the shortest book ever written? “The Code of Ethics for Lawyers.”35
There is a need for ethics education to reveal, review, and reiterate legal rules and regulations. However, this should not be the only attention of our ethics education programs. Focusing only on following professional codes creates a deontological morality primarily on ‘the intention of following the rules.’ This approach abandons virtue ethics, which allows an individual to bring in their own experience as well as concerns regarding the consequences of such actions, a teleological approach. Such a split is as old as Greek philosophy and as current as today’s newspapers. As Joanne Ciulla, citing John Stewart Mill asserts, “deontological tells us about the morality of a person’s motives and teleological demonstrates the morality of the actions.”36 We therefore need to teach both and allow the tension between these theories to be laid bare in order to teach a combination of rules, values, and virtues to reveal their interconnectedness.37 Ethics is complex and simply following rules is not a safe harbor for the truly ethical professional.38 Not only is this true in law and accounting, there are a plethora of other professions; ethics in law should no longer be reduced to simply what the codes of conduct state.39 A suggested “pedagogical approach” by Murray. S Levin, Professor of Business Law from the University of Kansas’s Business School, “attempts to center more on ‘‘the why’’ than ‘‘the rule.’’” He highlights that “rather than having my students focus foremost on identifying rules of law and retaining them to memory, I prefer to have my students focus more on conceiving possible rules for application to a set of real-life circumstances and analyzing why we should favor one such rule over another.”40 CLE should provide, in addition to a rules-based approach, a broad foundational base that will be more personal and will even be more interesting due to the self-referencing of the material. This combination of rules and virtue ethics, the split between the intent and the outcome, is necessary for a more honest discussion of professional ethics.41 In short, a strong ethical underpinning, as part of a professional self-definition, is not created in most legal ethics courses. Accordingly, the concept of professional ethics needs to move away from a virtual pure compliance modality where the focus is essentially limited to a listing of rules and potential consequences.42 Robert Prentice also notes that acting ethically can produce positive results:
There are many positive reasons to act ethically as well. Students seem to have a good sense that ethical actions breed trust and that trust in a society is a key to economic growth. They understand that by acting ethically they can contribute to the social capital that makes societies and economies flourish. …Acting ethically is also a long – term strategy for success. In many ways, acting ethically is its own reward.43
There is an ongoing debate in the academic literature about what teaching ethics can, and should, achieve. In law, goals of ethics being discussed include:
- “to develop students’ familiarity with a body of knowledge about the law and legal processes relating to lawyer regulation
- to develop their ability to recognize and resolve ethical dilemmas
- to influence their commitment to ethical and professional norms.”44
One of the many justifications for ethics courses is allowing students to recognize that the cognitive and structural forces that form moral judgment may help to better inform their decision making. Moral decision making is not simply knowing relevant rules and principles. It is more important to know how to apply those rules and which principles are most important in actual situations.45 A well-designed course can improve moral reasoning, especially since the moral views of individuals change drastically in early adulthood.
In an ideal world, ethics would be first taught in undergraduate courses as a foundation before a student enters law school. Ethics education would then continue through the core law school curriculum and then, eventually, when one gets into upper-level courses, through participation in clinics. This is not the case at many institutions. It becomes just as important for institutions to give students a variety of ethics and professional responsibility classes to choose from, which may include supplementary readings and the “integration of interdisciplinary and practitioner perspectives.”46
IV. Recommended Approaches for Ethics CLE
We believe that to build an effective professional ethical environment, an understanding of one’s personal values and moral thinking is essential. This is true for all business and legal professionals. If the ultimate goal is for legal professionals to act ethically, as defined by ABA’s relevant code sections in a lawyer’s particular state, then what are the educational steps needed to support and help achieve this goal? Certainly, a major step is to help ensure that the code sections and laws relating to ethical conduct are understood.
Unlike a compliance program that effectively disregards personal ethics, a carefully crafted legal ethics program should incorporate a personal ethics educational component using tools and exercises that allow the legal professional to integrate his or her personal experiences and values as a critical aspect of their professional ethics. Following this foundational connection, a review and application of relevant state ethics code sections can take place. CLE participants may thereby gain an appreciation for the importance of taking ethics seriously, combined with a foundation and tools to assist them in ethical decision-making.
Based on the experience of one of the author’s many years of teaching a combination of personal and compliance based CLE ethics courses for lawyers, it is obvious that morality is a struggle for all serious legal professionals. When those present at the CLE program are asked to write down a significant ethical issue that they have encountered in their professional practice, there is little hesitation. As Kant observed:
From such warped wood as is manmade nothing can be fashioned...Man is an animal that, if he lives among other members of his species, is in need of a master, for he certainly abuses his freedom in relation to his equals. He requires a master who will break his self-will and force him to obey a universally valid will, whereby everyone can be free ... He finds the master among the human species, but even he is an animal who requires a master.
For Kant, the master is not an individual leader, but ‘morality.’47 The “Rule” approach is based on Kant’s categorical imperative prompting the “decision maker to evaluate each alternative as if that alternative were to become the rule for all others to follow.” Thus, this logic “encourages the students to give importance to all decisions. It is impossible under this analysis to rely on notions like, ‘‘it is just one small violation,’’ and other such rationales.”48 However, Kant’s deontological view of universal principles, as we noted previously, has been heavily criticized49 and is at odds with the teleological concept that allows for the examination of individual experiences and personal values to also play a role in guiding the professional’s actions.
Although our focus in this section is on CLE ethics courses, there are four foundational aspects of teaching personal ethics that we include in teaching Business Law and Legal Environment courses, as well as ethics in accounting and other business courses. In the CLE courses, as a prelude to a review of relevant legislation, we recommend including: (1) formation of a list of personal core values, (2) development of a personal mission statement, (3) understanding the importance of an organization’s ethical environment, and (4) facility in using an ethical decision model. We discuss each below.
1. Formation of a list of personal core values
An effective exercise for lawyers in a professional ethics class is to list their top five to six personal core values.50 A relatively short list captures the fundamental personal beliefs that can provide guidance and focus to making ethical decisions in professional and personal settings. In effect, clarification of your key core values helps you to better understand yourself, who you are becoming, and what you view as truly important.51 To assist the attendees in this exercise, the following list may be offered.52 The list below is not to be considered an exhaustive list of values for legal professionals, but only a tool to help them consider their personal core values:
- Honesty (truth telling, candidness, openness)
- Integrity (acting on convictions, courageousness, advocacy, leadership by example)
- Promise keeping (fulfilling the spirit of commitments)
- Fidelity (loyalty, confidentiality)
- Fairness (justice, equal treatment, diversity, independence)
- Caring (compassion, kindness)
- Respect (human dignity, uniqueness)
- Citizenship (respect for law, societal consciousness)
- Excellence (quality of work as a professional attorney)
- Accountability (responsibility, independence)
- Professionalism (following codes of conduct)
2. Development of a personal mission statement
A personal mission statement provides an opportunity to define one’s goals by reflecting on life’s priorities. It can become a “personal constitution,” setting a standard for life’s decisions, small and large.53 The lawyer’s personal core values may be helpful as a reference in completing this exercise. In order to assist, attendees draft an operative personal mission statement in the limited time of a CLE class. It has been found effective to help the attendees focus on four key elements of a successful mission statement: heroic ambition, challenges to reaching the heroic ambition, signposts of achievement to show progress towards one’s heroic ambition, and a healthy balance between work, family, and self.54
3. Understanding the Importance of an Organization’s Ethical Environment and Psychological Biases
A lawyer working in a firm or corporation will often feel constrained or guided solely by the perceived values of that organization. Whether it is a multi-national firm or a small-town business, each institution has its own ethical environment. Individuals in that atmosphere quickly perceive the business and ethical norms and act accordingly. Moreover, if it becomes clear that the organization rewards those who follow these norms, whether they are ethical or unethical, such a system will likely influence an employee’s performance. Research demonstrates that the ethical climate of an organization can have an effect on dysfunctional behavior and important job outcomes, such as job satisfaction, organizational commitment, and psychological well-being.55 Also, unethical and corrupt behavior in organizations may be maintained through various rationalization and socialization techniques.56 It is therefore critical for employees to understand the values in their workplace and determine whether or not their personal values are in conflict with those in their environment. An exercise that may be useful at this point is having the CLE participants list the six values practiced in their employment environment. Attendees can then be asked to discuss the similarities and disparities between this list and their list of personal core values. This allows for a rich discussion and a deeper appreciation of the possible influence of workplace values on one’s personal ethics.
It is clear that moral challenges affect all of us in varying degrees and that self-knowledge, self-control, and creating an environment to support one’s ethical choices is critical.57 A discussion of the ethical environment of the workplace may also include aspects of finances, time, and relationships outside of the work environment.
First, there is a need to consider how personal financial pressures or goals may make it easier to act unethically in order to keep one’s job or to earn additional funds. Second, it is important to have close friends who are outside one’s field of employment who can be objective and issue warnings when actions appear to be straying or crossing the threshold of that which is unethical and potentially illegal. If all of one’s friends are in the same field of endeavor, they may have adopted values and behaviors accepted as normative and cannot provide the detached perspective necessary to fully understand if one’s actions are in accord with acceptable conduct. Third, it is critical for legal professionals who take ethics seriously to engage in activities outside of work. Working all the time is unhealthy physically and it is also unhealthy ethically. When a professional’s only definition of personal success is based on his or her prestige or income as a prosperous lawyer, there is a danger of acting unethically if such behavior is believed essential to maintaining that status. Accordingly, activities outside of work, where one is valued as an important individual apart from the workplace, lessen the dependence on the need to maintain one’s status as a successful lawyer and thus may be less susceptible to unethical actions.
4. Facility in using an ethical decision model
Ethical decision models allow for a cognitive process, which usually includes considering the relevant stakeholders, values, and options.58 Ethical decision models help practitioners take into account such indicia as the legal professional core ethical values, outside viewpoints, and the need to review additional alternative actions.59
Stakeholder analysis, for example, is critical because it allows the decision maker to appreciate how others may view a particular situation differently from one another and from the decision maker. Values clarification assists the decision maker to push aside self-interest and short-term gains to understand the values at play in the situation under consideration. Pressure to ascertain the pertinent values therefore brings up awareness and alters the emphasis of self-serving motivation too often used to control decision-making. Looking at a variety of options can open up one’s thinking and allow for a productive brainstorming of ideas. Often a decision maker in a stressful situation believes that there are limited options from which to choose. However, with time and the directive to think outside the parameters initially given, more options from which to choose are found. It has been the experience of many professional ethicists that a better option is to address the situation by taking time to list more alternatives than those that were initially presented.
Beyond the reasons given above for the use of a decision model, two additional purposes need to be considered. First, the use of a decision model allows one to take time just to think and calm down. Unfortunately, some professionals believe that a quick and forceful decision will project a sense of strong leadership. This approach is shortsighted and often leads to antagonistic relationships over the issues of power and control. Time and energy is then wasted in apologizing and attempting to mend the broken fences that might not have cracked if the original decision had been made more carefully. Second, a model that involves input from others allows for the building of respectful relationships. Often the final decision becomes less important and will cause less acrimony if others feel that they were involved and their opinions respected, even if they were not followed.
The ABA’s Model Rules of Professional Conduct does not explicitly provide an ethical decision model on how to resolve ethical dilemmas. However, many general ethical decision models have been proposed over the years. Most models developed by ethicists are intended to be used for a wide range of ethical dilemmas. Below we offer an ethical decision model that incorporates compliance with professional standards and law, while also providing a broader framework that can be applied to most ethical dilemmas that may be faced by a professional attorney.60 While this model has been found helpful to many in the legal profession because it is perceived as user-friendly, each professional should take time to create or find a model that is personally comfortable and useful. Further, this model is easily adaptable to general business students and to other professions, particularly the accounting profession. In fact, only the relevant legal and professional standards might be different for different users of the model. The model includes eight major steps, described below.
- Define the problem carefully and be certain that all pertinent facts have been gathered. Too often we act without taking time to obtain necessary information.61
- Research professional standards, laws, and regulations that are relevant to the situation. One’s duty as a professional requires adherence to professional standards. When professional standards provide clear guidance for an ethical dilemma, except in the most unusual circumstances, a lawyer should comply with professional standards and the law. However, when professional standards are ambiguous or not applicable, other parts of the decision model may be prioritized (see step 6 below).
- List all of the parties that you believe may be affected by the decision (stakeholders). This part of the decision model is based on stakeholder analysis, under which responsible ethical decisions involve considerations of the impact of the decision on the network of persons who have a stake in the decision. Accordingly, a decision that does not take into account the way in which it may affect others is not ethical, regardless of its actual consequences. 62
- List all the personal and work related values that are involved in the decision. These values may include those listed earlier in the article. This portion of the decision model is based on a theory of absolute values. According to this theory, there are certain ethical principles that are universal and that impose an absolute duty on a person. Immanuel Kant referred to such duties as ‘categorical imperatives’ because they leave room for no exception.63
- List all possible alternative actions. Often one believes that there are only a limited number of options, when in fact there are several others that may resolve the situation in a way that produces either the greater good or the least harm. This aspect of the decision model is based on utilitarianism, a theory that requires the ethical person to evaluate the likely consequences of contemplated conduct and weigh the good the act may produce against the harm it may cause.64
- Choose and prioritize:
- A. Determine which professional standards, laws, or rules pertain to the decision. Identify all options that fall within professional standards.
- B. Of all the parties you listed above, select the one that you believe is most important for purposes of making this decision.
- C. Of all the values you listed above, select the one you believe is most important for purposes of making this decision.
- D. If professional standards are not clear or are inapplicable, of all the options you listed above, select the one that you believe will cause the greatest good, or least harm.
- Make a decision based on the above priorities. While this step may seem obvious, making a decision is not always easy. The goal of the previous steps is to help move to the stage of action. It is interesting to note that at this step, the professional lawyer will almost always deem professional responsibilities as more important than simply the stakeholders and needs to include both personal and organizational values.
- Devise a strategy that will effectively implement your decision. This last step requires the professional to pause and understand that the way one implements a decision may include important organizational and ethical implications. A successful implementation strategy can be as important as the decision itself.65
Although the ethical decision model is highly effective for a group decision process, it is also a very appropriate tool for an individual. However, it cannot be overemphasized that one should not make a decision alone. As noted earlier, it may be a good idea to consult with a trusted friend or mentor who is not in the profession. Consultation can help insure that a thorough and thoughtful decision is made. Within an organization with a good ethical climate, consultation and collaboration will normally result in a better decision and may protect the organization from uninformed or ill-advised individual decisions. Of course, lawyers must respect requirements for confidentiality of information when consulting others about an ethical dilemma.
All of these suggestions and tools are simply a way to raise the consciousness that ethics is not only a choice, but also requires work to create a supportive environment for making ethical decisions. In effect, being an ethical lawyer means that one has built a strong foundation of personal ethics, which has become part of one’s self-reflection as an ethical lawyer.
V. A Survey on Ethics: Development and Results
Development of the Survey
As part of our goal to consider the implications of principles-based and compliance-based approaches to ethical dilemmas, we chose to focus on the legal profession and CLE ethics education. A survey instrument was developed and distributed to lawyers taking an ethics CLE course. The survey consists of three parts: 1) demographic and professional questions, 2) five self-constructed scenarios involving ethical dilemmas that a professional lawyer might face, and 3) items that comprise the ethics position questionnaire (EPQ).66
In developing the demographic and professional questions, the objective was to obtain information about the subjects’ professional experience and current position, and their opinion of the ethicality of themselves, other lawyers, and their clients. Five professional scenarios were created. Each scenario presented the respondent with four options for what the lawyer in the scenario could do. Scenarios ranged from situations in which professional responsibilities are relatively clear in professional rules to situations in which there are no specific rules and/or the facts are more ambiguous. The scenarios included in the survey are reproduced in the Appendix. For purposes of this article, the numbers assigned for the scale used to measure the level of ethicality for the four options are included parenthetically (1 for least ethical, 4 for most ethical). Finally, the EPQ was included in the survey.
The EPQ measures the idealism and relativism of individuals using items measured on a scale from strong agreement to strong disagreement. Individuals who score high on the idealism scale “assume that desirable consequences can, with the ‘right’ action, always be obtained.”67 Items on this scale include statements such as, “A person should make certain that their actions never intentionally harm another even to a small degree,” and, “It is never necessary to sacrifice the welfare of others.” Relativism reflects the fact that “some individuals reject the possibility of formulating or relying on universal moral rules when drawing conclusions about moral questions.”68 Items on this scale include statements such as “There are no ethical principles that are so important that they should be a part of any code of ethics,” and “What is ethical for everyone can never be resolved since what is moral or immoral is up to the individual.”
Prior Relevant Studies
We could find no studies of lawyers using the EPQ. However, several other studies of professionals provide some expectations about idealism and relativism. Ziegenfuss and Singhapakdi developed three ethical scenarios for a sample of members in the Institute of Internal Auditors (IIA).69 They found that higher ratings of the IIA Standards of Conduct in the IIA Code of Ethics were positively related to levels of ethical perception of the three scenarios. Idealism and relativism played a moderately minor role in the ethical perception of the respondents. Relativism was negatively related to one of the scenarios, while idealism was positively related to a different scenario (both at the .10 level). Holding the CIA (certified internal auditor) designation had no impact on the ethical outcomes. Shaub, Finn, and Munter use the term “ethical orientation” to describe the components of idealism and relativism.70 For a sample of Big 6 auditors, they found that idealism and relativism were negatively correlated (.01 level). Using path analysis, they found that idealism and relativism were both negatively associated with ethical sensitivity (at .053 and .05 levels, respectively). Sparks and Hunt used a marketing scenario to examine the ethical sensitivity of marketing students and marketing professionals.71 Relevant to this study, they found that professional socialization was not associated with ethical sensitivity, while ethics education and relativism were negatively associated with ethical sensitivity.
The survey was distributed to lawyers during the preliminary part of their CLE ethics courses at various locations in the United States. There were 143 lawyers who volunteered to complete the survey. After eliminating 13 surveys due to lack of sufficient data, our final sample for analysis includes 130 surveys.72 Demographics of our respondents and the ways in which the demographics influence their ethical orientation and ethical decisions are important considerations. Therefore, measures from the survey are examined in various ways, including analysis of descriptive data and examination of the statistical relationships among the variables measured, and how certain demographic data and ethical orientation are related to the decisions respondents made in each of the six scenarios.
Table 1 presents descriptive data for the variables measured, as well as a comparison of the data for gender. In the sample are 86 males and 44 females. The survey asked respondents three questions about the ethical level of “most lawyers,” “yourself,” and “your clients” from “not very ethical” to “very ethical.” Table 1 shows that respondents, on average, rated themselves highest, followed by their fellow lawyers, and then their clients. On average, the respondents have a substantial amount of experience (just over 20 years, with a range from 1.5 to 48 years). Male respondents have more experience than do female respondents. Male respondents rate job satisfaction and the ethicality of clients statistically higher than do female respondents. Reliability for the idealism and relativism measures in our study are .799 and .764, respectively (measured by Chronbach’s alpha). These are comparable to prior studies and exceed .700, normally considered to be sufficient for reliability. For idealism and relativism, females have a higher level of idealism when compared to that of males (at p ≤ .05). The descriptive statistics for the scenario outcomes are discussed below.
Table 2 presents the univariate associations among all of the variables. Table 2 is calculated using Spearman pairwise correlations. Because the ethical responses may be considered ordinal, rather than continuous, we use Spearman rank correlations, a non-parametric method.73 The results for gender are all consistent with the results in Table 1. Experience is positively related to job satisfaction and the perception of ethicality of self and clients. This suggests that the longer attorneys are in practice, the more satisfied they are with their work and the higher their perceptions are about their own ethics and the ethics of their clients. There is a highly significant and positive relationship between job satisfaction and the perception of ethicality for other attorneys, self, and clients (p≤.01). Although it is not possible to determine the causality, attorneys who perceive other attorneys, themselves, and clients to be more ethical are more satisfied with their work. There is also a positive relationship between perceived levels of client ethicality and both self-perception and perception of ethicality of other attorneys (p≤.01). It appears that there is a general bias toward judging the ethicality of all three (including self) in the same direction. A more generous interpretation would be that ethical attorneys gravitate toward a relationship with ethical clients and other ethical attorneys. Lawyers with higher level of self-perception of ethicality have lower levels of relativism (p≤.10). They may be more assured of the ethical viewpoints they hold. The perception of the ethicality of other legal professionals is negatively associated with idealism (p≤.10). There are relatively few significant relationships between the results for the six scenarios and the other variables. We discuss those as part of the discussion of the scenarios below.
We evaluate the results for each scenario using quantitative and qualitative analysis. The quantitative analysis is presented in Table 1 (descriptive statistics and t-tests for gender), Table 2 (Spearman rank-correlations), and Table 3 (frequencies, means, and standard deviations). For each scenario, we interpret the quantitative results, which include application of the ethical decision model developed in the first part of the paper. The scenarios provided to the participants do not include any specific language from a code of ethics, but in some cases, we provide some information about the code of ethics in the jurisdiction in which the attorney in the scenario practices. We use the Model Rules of Professional Conduct as our basis for evaluating the extent those applicable rules or guidelines exist for attorneys. Our general expectation is that situations in which ethics rules are more salient there will be less variation (smaller standard deviations) in the responses by the attorneys than for situations in which ethics rules are more ambiguous or non-existent. Therefore, we expect the ethical decision model will be more (less) useful in its application for scenarios that have more ambiguous (less ambiguous) guidelines for lawyers in the Model Rules of Professional Conduct.
In Scenario 1 (see Appendix for each scenario) the ethical issue is about the potential for an attorney to have an affair with a client going through a divorce. The Model Rules of Professional Conduct (MRPC) are very clear on sexual relations with a client:
A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.74
The scenario includes a statement that “the code of ethics for this jurisdiction permits attorneys to have personal relationships with one’s client unless it would impair representation.” This statement provides more leeway for the legal professional than does the MRPC guidance. Nevertheless, the MRPC and the statement clearly caution the attorney about relations with a client. Ethical responses 3 and 4 (highest ethicality) both indicate that the attorney, Jim, should decline to represent the client, Nicole. Tables 1 and 3 show a mean response of 3.13 and a standard deviation of .68. On the 4-point ethical scale, the mean response is relatively high. The standard deviation of .68 is relatively low in comparison to the standard deviations for the other five scenarios. Table 3 indicates that the most common response is number 3 and that 115 of the 127 responses (just over 90%) are either 3 or 4, which are both consistent with the MRPC guidance, but are more stringent than allowed by the jurisdiction (according to the case). Respondents overwhelmingly chose the most ethical responses and this is likely due to the fact that ethical guidelines are very clear about sexual relations with clients. Despite the strong overall ethical response, it should be noted that females had an even stronger ethical response than did males to this scenario involving a male attorney and female client (Table 1, p ≤.10; Table 2, p ≤.05). Also, those respondents with higher levels of idealism had higher ethical responses (Table 2, p ≤.01). The responses can be considered to be consistent with the ethical decision model in that the model emphasizes prioritizing professional standards and principles. However, even in this rather straightforward ethical dilemma, consideration of both the potential consequences to the stakeholders and the values associated with acting ethically would be useful. A decision to pursue an affair while representing the client could have negative personal and professional outcomes. At a minimum, the attorney’s objectivity could be compromised, and at worst the affair could negatively affect the settlement of the case and the reputation of the lawyer and/or the client. Integrity and objectivity are two relevant values that also could reinforce the ethical choice.
The ethical issue in Scenario 2 is centered on a situation in a consumer and pharmaceutical products company. As the result of injury from the use of a company product, a customer has filed a complaint and seeks compensatory and punitive damages. The CEO is concerned about negative publicity and the potential for additional lawsuits. William, corporate counsel for the company, is considering options to defend the lawsuit, which he believes has merit. In addition to the advisor role from the MRPC noted above, there are three additional MRPC sections relevant to this case:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.75
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.76
It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another… (d) engage in conduct that is prejudicial to the administration of justice.77
The mean response for the scenario is 3.84 (nearly 90% of respondents selected the highest ethical response) and the standard deviation is .51. This is the highest mean and lowest standard deviation of all six scenarios. The injury in the case is real (thus, the case has merit) and problems with the product will likely harm others. Rule 3.1 seems to be on point and clear. In addition, respondents may have also reacted to the concern for safety of women who continue to use the product. The respondents also seem to have taken into account the role of advisor (Rule 2.1), moving the litigation and safety issues forward in the short-term and long-term interests of the client (Rule 3.2), and resisting the potential pressure by the CEO to violate the rules (Rule 8.4). That is, the code of ethics (professional standards) and the potential damage to additional customers (consequences to stakeholders and the value of concern for the health and safety of customers) appear to have been considered by respondents. The lack of ambiguity in the case and the code resulted in a high ethical response with little variation. As expected, when the code and facts of a case are clear, the value of an ethical decision model may be more limited. Nevertheless, reference to the professional standards, the consequences for stakeholders, and personal and work values would reinforce the decision in this case.
The ethical issue in Scenario 3 is focused on a relevant memo discovered by the attorney, Carlos, representing a homeowner in an arbitration proceeding against the contractor who built the client’s home. The memo is harmful to the client’s case to recover damages from the contractor. The most relevant MRPC guidance is:
A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act…(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.78
Respondents with higher levels of self-perceived ethicality had higher ethical responses (Table 2, p ≤.10), suggesting that more ethical attorneys are less likely to conceal information. Table 2 also shows that respondents with lower levels of job satisfaction have higher ethical responses (p ≤.10), which is difficult to interpret. The mean response for this scenario is 2.59 with a standard deviation of 1.27. This scenario has the largest standard deviation of the six scenarios. The large standard deviation and observation of the frequencies of the responses (Table 3) suggests little agreement by the respondents. The lowest ethical response (response 1) was selected by about 26% of respondents (33 of 128) and the two lowest ethical responses were selected by about 57% of respondents (73 of 128). On the other end of the spectrum, about 42% of respondents (54 of 128) selected the highest ethical response (number 4), which was to withdraw from the case if the homeowner insists on pursuing a maximum settlement without producing the memo. The case indicates that “sharing of documents is not mandatory in arbitration,” so the relevance of the guidance we quote above is limited in that it is focused on legally required documentation, but it is very clear that the memo in this case has significant evidentiary value. It appears that the response was almost evenly split between those that would not and those that would insist on producing the memo (or withdraw). The ethical decision model requires an attorney to also consider consequences to all stakeholders and individual and work place values. In this case, the contractor has overlooked (or forgotten) the existence of the memo. Fairness and integrity would require sharing the memo. This viewpoint does not recommend seeking no damages, as clearly the contractor was negligent for not installing some kind of drainage system. Indeed, the attorney can be diligent on the client’s behalf in working toward a fair settlement. This scenario shows the importance of using the complete ethical decision model to consider and prioritize alternative actions.
Client confidentiality is the ethical issue in Scenario 4. An attorney has learned from a new client that the client is responsible for a murder for which another person has been wrongly found guilty and is soon to be executed. The relevant MRPC section and comment are as follows:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm.79
Disclosure Adverse to Client… Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.80
Rule 1.6 and the comment on Rule 1.6 allows, but does not require (“may reveal information…”; “permits disclosure…”), an attorney to reveal information in the circumstances represented in the case. The mean response is 3.13 with a standard deviation of 1.04. A majority of the respondents (just over 56%) selected the most ethical response, which states that the attorney “should reveal the information to an appropriate government official.” However, 37.5% of respondents chose one of the first two ethical responses, in which the lawyer would not reveal the information. This group evidently chose a narrow interpretation of the code by not considering duties that go beyond the client. Consideration of the consequences for all relevant parties and recognizing the “overriding value of life and physical integrity” would, at the very least, require an attorney to think deeply about the person on death row. A discussion with others that includes all aspects of the ethical decision model may have moved more legal professionals toward the decision to reveal the information to an appropriate official.
Scenario 5 involves an injury case in which a woman suffered a broken arm and lost wages resulting from a fall in a grocery store after slipping on spilt milk in the grocery aisle. The ethical issue revolves around the merits of the case and the recommendations of the attorney. Rule 3.1: Meritorious Claims and Contentions, shown above with Scenario 3, is again relevant. Similar to Scenario 4, job satisfaction is negatively associated with higher ethical responses (p ≤.10). The mean response for this scenario is 2.50 and the standard deviation is .93 (Table 3). As can be observed in Table 3, there is a rather wide distribution of responses, with the largest number of respondents selecting response 3 (nearly 50%), which is the second most ethical response. The facts of the case strongly indicate that the grocery store is not negligent and, therefore, there is no merit to the case. Use of the ethical decision model would offer a discussion of the relevant parties and values associated with pursuing this case, even if there is no merit (essentially, the lowest two ethical responses). An attorney might conclude that the client deserves something merely because she has suffered and perhaps the grocery store could afford to pay out on a settlement. However, in addition to the potential monetary loss to the grocery store, such a settlement could damage the reputation of the grocery store and cause it additional monetary harm by shoppers choosing to shop elsewhere. There is also the potential for damage to the reputation of the attorney if it is thought that the lawyer lacks integrity in the pursuit of settlements.
VI. Summary, Limitations, and Conclusions
This paper examines ethics education for lawyers with important tools that are also applicable to business law, legal environment of business, and other business program courses. This paper also explores the need for a broader, principles-based approach that goes beyond rules. We analyze the historical approach to ethics education and continuing legal ethics education for lawyers, which we find to be inadequate to address all ethical dimensions of practice and decision making. We present recommendations about how tools, such as listing core values, creation of a personal mission statement, and the utilization of a comprehensive ethical decision model, can be incorporated into CLE ethics courses for lawyers as well as ethics education in academic programs. We also present the results from a survey that captured certain demographic information about the participants as well as ethical responses to five ethical dilemmas presented in the survey. Finally, the paper demonstrates how the recommended tools can be employed to enhance CLE for ethical dilemmas, particularly those that cannot be satisfactorily resolved using a rules-based approach.
The results of the survey provide some interesting and important conclusions. In our sample, we found that males had more experience, higher levels of job satisfaction, a higher perception of the ethicality of their clients, and lower levels of idealism than that of the female respondents. We also found higher levels of experience to be positively associated with job satisfaction and self-assessment of ethicality. Higher levels of job satisfaction are associated with higher levels of perceptions of ethicality of self, other attorneys, and clients. Our general expectation was that there would be more agreement among the ethical response to ethical dilemmas when the facts of the case are unambiguous and rules exist that are more clearly related to the dilemma. We generally found this to be true. When facts of the case are more ambiguous and rules are not clear, the importance of the use of a comprehensive ethical decision model is increased. Lawyers can come to a more robust ethical decision when considering not only legal guidance available, but also consideration of the consequences for all parties affected (stakeholders) and individual and work values. We believe these findings would also be relevant to the application of the ethical decision model to codes of professional conduct in other professions.
Our research has some limitations, particularly related to the survey and survey results. First, like any survey using a sample, the results from our sample may not be representative of all lawyers. Second, our ethical response measures may lack validity for purposes of measuring levels of ethicality. Although we believe that the ethical responses are appropriate ordinal responses ranging from least ethical (response 1) to most ethical (response 4), we recognize that others may disagree on one or more issues. Our goal was to not only incorporate the law, but to also include a scale in which higher levels of ethicality are related to higher levels of interest in others (and lower levels of self-interest). Some may not agree that this approach would be appropriate in measuring the ethics of a decision. Also, others may disagree about whether or not we actually capture higher levels of ethical responses in the words used for each of the choices in the scenarios. Statistically, we attempt to address these issues by using non-parametric ranking for correlations and presenting the frequencies of responses. Qualitatively, we use the frequencies and standard deviations to help guide our analysis to evaluate the responses within the context of professional standards and the comprehensive ethical decision model. That is, we do not solely rely on the means and correlations to interpret the results.
We also note that each state has a modified version of the Model Rules of Professional Conduct. Therefore, it is possible that there would be some variation in responses to some ethical dilemmas due to the state in which the respondents practice.
Ethical considerations for lawyers and other professionals must go beyond a narrow interpretation of the law and rules presented in a code. The first statement in the preamble of the Model Rules of Professional Conduct is a fitting part of our conclusion about the importance of increasing and broadening ethics education for law students and practitioners.
A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.81
The application of a comprehensive ethical decision model in education and practice can improve the ability of lawyers, and other professionals, to fulfill their responsibilities to their clients and to a just society.
Note: Survey participants were provided four answers to choose from for each scenario. For purposes of analysis, answers were recoded from least ethical (1) to most ethical (4). The recoded values are in parentheses for each scenario below.
Jim is a successful divorce attorney who is well known as being aggressive in the courtroom, in out-of-court negotiations, and in his ability to get good settlements. Nicole seeks out Jim as her attorney for what is turning out to be a very messy and ugly divorce. Nicole is devastated by the divorce but is also a very smart, strong and successful businesswoman. Nicole makes it known to Jim that she is attracted to him and would find a personal relationship to be a source of much needed comfort. Jim is also attracted to Nicole. He honestly believes that exploring a personal relationship with Nicole would not compromise his objectivity and effectiveness in the divorce proceedings. In addition, he believes that this divorce, due to the types of complex assets involved, will take several years to fully resolve and that it would be hard and unnatural to put off the relationship for such an extended time. Matter of fact, Jim believes that not being able to develop the personal relationship would make the working relationship more difficult and even impair his ability to effectively represent Nicole.
Presume that the code of ethics for this jurisdiction permits attorneys to have personal relationships with one’s client unless it would impair representation. Which of the following best represents what you think Jim should do?
- (4) Jim should decline to represent Nicole and direct her to another divorce attorney and not pursue the relationship.
- (3) Jim should decline to represent Nicole, direct her to another divorce attorney, and should then feel free to pursue a personal relationship with her.
- (2) Jim may continue to represent Nicole, but if he does he should not pursue a personal relationship with her.
- (1) Jim should, if in good faith he believes it would not impair his representation, continue to represent Nicole and pursue a personal relationship at the same time.
William is the corporate counsel to a successful company called “Women Helping Women.” This company sells products to women that are ‘safe, sensitive, and made for caring women by caring women.” One of their products, a contraceptive gel, has been one of their best sellers and has received very positive reports during the testing phase of the product. However, there have been some scattered reports that the gel may have caused, in a very small number of women, unhealthy side effects such as swelling and nausea. The CEO of the company gives William a complaint filed by a woman claiming that the gel has caused her injury and is seeking both compensatory and punitive damages.
The CEO is concerned about the possible negative publicity from a successful lawsuit or settlement. The CEO also is concerned that other women who have had similar problems with the product would come out of the woodwork and file law suits. William believes that the damages are real but notes that the law firm filing the lawsuit is quite small, with a limited staff and limited financial resources. As a former civil litigator, he believes that he could generate so many motions, requests for documents and interrogatories that the law firm would be overwhelmed and would strongly recommend that the client agree to a confidential settlement for a relatively small amount. If that didn’t work, he would be able to intentionally drag the lawsuit out for several years in both trial and appellate courts. The lengthy delays are expected to wear down this particular claimant and deter others from filing additional suits in the future. Which of the following best represents what you believe William should do?
- (1) William should ‘paper’ the other side by filling motions and other legally permissible requests in order to force a small and confidential settlement.
- (2) William should seek to pay a relatively small settlement on the condition that the settlement and complaint are kept confidential.
- (3) In addition to settling the claim for a reasonable amount, William should recommend that the company should send out a public notice and offer to compensate others who have been harmed by the product.
- (4) In addition to a confidential reasonable settlement, William should recommend that the company quickly and quietly review the product’s safety record, make necessary changes in the formula and/or add a warning of the possible dangers.
Carlos represents a homeowner involved in an arbitration proceeding with the contractor who built her new home. The primary and most clearly contestable dispute is that the contractor failed to install below the surface drains as specified in the building plans and has resulted in subsequent flooding in the house. As Carlos prepares for the hearing, he comes across a memo in the homeowner’s handwriting that acknowledges she had agreed to the specified drains not being installed in exchange for a higher quality of roof to be mounted. The homeowner, however, clearly expected some working drainage system to have been installed. When Carlos asks the homeowner about the agreement, she states that the contractor has likely forgotten about it since it was during a particularly hectic time when her’s and several others’ construction projects were in process. The contractor has never denied that he had forgotten to put in the drains. Which of the following best represents what you believe Carlos should do?
- (1) If the homeowner requests, Carlos should request compensation for the failure to install the drains without reference to the memo.
- (3) Even if the homeowner objects, Carlos should turn over a copy of the memo to the other side even though sharing of documents is not mandatory in arbitration.
- (2) Carlos should strongly recommend that the information be shared with the contractor with a request for a reduced amount of settlement.
- (4) Carlos should withdraw from the case if the homeowner insists that Carlos request compensation for the failure to install the drains and not produce the memo.
A new client enters an attorney’s office and asks the attorney if their conversation will be protected by the attorney-client privilege. The attorney responds in the affirmative. The client first seeks advice on a large dollar land contract negotiation, but it soon becomes apparent that another matter is more important to him. The new client then informs the attorney that he has murdered someone in another state and that someone else has been arrested and convicted for this crime. He also mentions that this person is on death row and is scheduled for execution next week.
Which of the following best represents what you think the attorney should do?
- (4) The attorney cannot stand idly by while an innocent person is put to death and should reveal the information to an appropriate government official.
- (1) The attorney should not share the information as it is protected by the attorney client privilege and it is the state that may hurt an innocent man and not the client.
- (2) The attorney should strongly urge the client to confess to the murder and if the client does not, refuse to represent him.
- (3) The attorney should anonymously leak information so that it will become apparent that someone else committed the murder and not the person on death row.
Sally comes into John’s office with a cast on her right arm. She has recently broken her arm, has been told by her doctor that she should not work for at least a week, and is feeling pain in both her arm and shoulder. She is seeking John’s counsel on potential legal remedies for her broken arm.
Sally states that she went shopping at a local grocery store that is part of a national chain. As she was shopping, she did not notice some spilt milk in the aisle. When she walked into the puddle of milk, she lost her balance and broke her arm when she fell to the ground. The store manager has told her that the spill had just happened and they were being told of the spill as they heard her scream when falling to the ground. She further states that she has shopped in the store for several years and has always found the aisles to be clean. Perhaps this is why she didn’t pay attention and assumed that the aisles would be clean and safe. Which of the following best represents what you think John should do?
- (1) John should take the case and promptly notify the grocery store that he plans to sue for medical costs, lost wages from the days missed, physical and emotional harm.
- (3) John should tell her that he needs to research the store’s procedures and policies for keeping their aisles safe and will take the case if they did not act reasonably.
- (2) John should tell her that he will take the case and attempt to get a settlement from the grocery store but does not think that it is worth her while to bring a law suit.
- (4) John should not take the case based on what she said and his knowledge of the store which indicates that the store acted reasonably and should not be held liable.
1. The AACSB is the Association to Advance Collegiate Schools of Business International. It is a voluntary, non-governmental accrediting agency that oversees the standardization of collegiate schools of business and accounting nationwide.
2. As we will assert in various places throughout the paper, the critique can be applied to other professions, such as the accounting profession.
3. Although we specifically address business law courses at the undergraduate level, the model presented may easily be applied in any undergraduate discipline.
4. The Preamble and Canons 1 through 32 were first adopted August 27, 1908. Code of Professional Ethics Canons of Ethics, American Bar Association (1908), https://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2015-aba-annual/2015_aba_annual_wm/2p_1_1908_canons_of_ethics.authcheckdam.pdf.
5. Peter Geraghty, History of U.S. Legal Ethics Standards, Eye on Ethics, ABA (Dec. 2016), https://www.americanbar.org/publications/youraba/2016/december-2016/a-brief-history-of-the-development-of-legal-ethics-standards-in-.html.
6. Code of Professional Ethics Canons of Ethics, supra note 4, at 575.
8. Additional amendments occurred in 1928, 1942, 1943, 1951 and 1956.
9. Laurel Terry, A Survey of Legal Ethics Education in Law Schools, in Ethics in Academia 61-74 (S.K. Majumdar et al. eds. 2000).
10. Id. See also Charles Wolfram, Modern Legal Ethics 54 (West 1986).
11. The ABA Code of Professional Responsibility was adopted in August of 1969 and became effective January 1, 1970.
12. Terry, supra note 9.
13. Paul Hayden, Putting Ethics to the (National Standardized) Test: Tracing the Origins of the MPRE, 71 Fordham L. Rev. 1299-1337 (2003).
15. The MPRE (Multistate Professional Responsibility Examination), http://www.ncbex.org/exams/mpre/preparing/ (last visited June 25, 2018).
17. The MPRE (Multistate Professional Responsibility Examination), https://www.ncbex.org/exams/mpre/ (last visited June 25, 2018).
21. Lisa Lerman, Teaching Ethics in and Outside of Law Schools: What Works and What Doesn’t, The Professional Lawyer 57-66 (2006).
22. Russell Pearce, Teaching Ethics Seriously: Legal Ethics as the Most Important Subject in Law School, 29 Loy. U. Chi. L.J. 719-739 (1997).
23. REPORT OF THE PROFESSIONALISM COMMITTEE OF THE ABA SECTION OF LEGAL EDUCATION (1996), p. 7.
24. Mark Hanson, 1965-1974 Watergate and the Rise of Legal Ethics, A.B.A. J. (Jan. 2015).
26. Pearce, supra note 22.
28. Bruce Green, Teaching Lawyers Ethics, 51 St. Louis U. L.J. 1091 (2006).
29. Christine Venter, An Alternative Approach to Teaching Legal Ethics, 58 Law and Contemporary Problems 287-296 (1995). For more theoretical and detailed discussions on the topic of legal and moral aspects, see, e.g., Samuel J. Levine, The Law and the Spirit of the Law in Legal Ethics, J. Prof. Law. (2015) and Joshua P. Davis, Legal Dualism, Legal Ethics, and Fidelity to the Law, J. Prof. Law. (2016).
30. Deborah Rhode, Teaching Legal Ethics, 51 St. Louis U. L.J. 1043-1058 (2007).
31. Id. at 1047.
34. Pearce, supra note 22.
35. The Shortest Books Ever Written, http://www.arcamax.com/entertainment/humor/jokes/s-477199?print (last visited June 25, 2018).
36. Joanne Ciulla, Emerging Issues in Leadership – Culture, Gender and Ethics, in Ethics And Leadership Effectiveness 302-327 (2003). The utilitarian John Stuart Mill (1987) saw this split between the ethics of the person and the ethics of his or her actions clearly. He said the intentions or reasons for an act tell us something about the morality of the person, but the ends of an act tell us about the morality of the action.
37. Domenec Mele Carne, Ethics in Legal: Not Teaching Only Rules, 57 J. Bus. Ethics 87-109 (No. 1, Mar. 2005). Ciulla, supra note 36. The ethics-and-effectiveness question parallels the perspectives of deontological and teleological theories in ethics. From the deontological point of view, intentions are the morally relevant aspects of an act. As long as the leader acts according to his or her duty or on moral principles, then the leader acts ethically, regardless of the consequences, whereas teleological theories locate the ethics of the action in its results.
38. One’s ethical environment plays an important role of defining one’s behavioral norms and therefore needs to be addressed. Schrader, Ravenscroft, Kaufman, & West, Classroom Cheating and Student Perceptions of Ethical Climate, Teaching Ethics 1-35 (2012).
39. Carne, supra note 37.
40. Murray S. Levin, Reflections on Enhancing the Understanding of Law Through Ethical Analysis, 27 J. Legal Stud. Education 247-275 (No. 2, 2010).
41. Ciulla, supra note 36.
42. Ethical behavior primarily depends on moral sensitivity, moral judgment, moral motivation, and moral virtues. Carne, supra note 37.
43. Robert Prentice, Teaching Behavioral Ethics, 31 J. Legal Stud. Education 325-365 (No. 2, 2014).
44. Green, supra note 28.
45. Rhode, supra note 30.
47. Quoted in Joanne Ciulla, Ethics and Leadership Effectiveness, in The Nature of Leadership 508-540 (J. Antonakis, A. T. Cianciolo & R. J. Sternberg eds., 2004).
48. Jennifer M. Mitchell & Eric D. Yordy, Cover It: A Comprehensive Framework for Guiding Students Through Ethical Dilemmas, 27 J. Legal Stud. Education 35-60 (No. 1, 2010).
49. Some of the issues raised by critics of Kant include the following: “Critics of this view point to human diversity and the difficulty of deriving a single, ‘true’ morality that everyone would hold in common at all times and in all circumstances. The fact that beliefs and behaviors have changed over time in relation to individual preferences and social approval suggests that an absolutist approach may ultimately conflict with observed human nature and behavior.” And, Kant’s approach does not take into account that ‘human character is shaped over time by a combination of natural inclinations and influences of such factors as family, culture, education and self-reflection.” Deb Bennett-Woods, Ethics at a Glance, Regis University (2005). A major difficulty for Kant’s theory is that it seems that not every universal maxim is a moral one – it could be trivial or amoral, it is not clear how Kant could distinguish moral obligations from social etiquette – someone could easily will everyone to eat with a knife and fork and be outraged at the thought of some adults using their hands or just spoons. Kant’s approach is impractical because it provides no substantive help in making moral decisions when we are faced with moral dilemmas. The Categorical Imperative does go some way in this direction but if we encounter conflicts between different duties Kant offers no way for us to choose. Garth Kemerling, Criticisms of Kant, The Richmond Philosophy Pages, Britannica Internet Guide Selection (2011), philosophypages.com/ph/kant.htm. Mill thinks that Kant’s view really amounts to an appeal to utility, to what we would now call rule-utilitarianism. One of the Hegelian objections is that universal law test is empty. The other Hegelian objection pulls in the opposite direction: instead of showing the test to be empty, it shows it to be too strong. Christine Korsgaad, Kant’s Formula of Universal Law, 66 Pacific Phil. Quarterly 24-47 (1985).
50. Anne Loehr, How to Live with Purpose, Identify your Values and Improve your Leadership, The Huffington Post (May 6, 2014).
52. For a comparison of other lists of core values, The Josephson Institute of Ethics suggests its own list of core character values. See The Josephson Institute of Ethics, http://josephsoninstitute.org/ (last visited June 12, 2018).
53. See Stephen Covey, The seven habits of highly effective people (1989).
54. This list of the four essential aspects of a personal mission statement was devised as an effective tool to help attendees in a CLE class to quickly grasp the core concept and aspects of a mission statement since most of them had never heard of, let alone drafted, a personal mission statement.
55. See, e.g., K. D. Martin & J. B. Cullen, Continuities and extensions of ethical climate theory: A meta-analytic review, 69 J. Bus. Ethics (No. 2, 2006).
56. V. Anand, B. E. Ashforth & M. Joshi, Business as usual: The acceptance and perpetuation of corruption in organizations, 19 Academy of Management Executive 9-23 (No. 4, 2005). See also Robert Prentice, Teaching Behavioral Ethics, 31 J. Legal Stud. Education (No. 2, 2014), for a discussion of additional psychological and situational factors.
57. Ciulla, supra note 36.
58. Manuel Velasquez et al., Thinking Ethically: A Framework for Moral Decision Making, 7 Issues in Ethics (No. 1, 1996).
59. The origin of ‘stakeholder’ in management literature can be traced back to 1963 when it appeared in an international memorandum at the Stanford Research Institute defining the term as ‘those groups without whose support the organization would cease to exist.” Arun Elias & Robert Cavana, Stakeholder Analysis for Systems Thinking and Modeling (2000).
60. Our proposed model has been adapted from several sources, primarily: T. L. Beauchamp & N. E. Bowie (eds.), Ethical Theory and Business (1983); Michael Josephson, Making Ethical Decisions 1-34 (2002), available at https://store.charactercounts.org/wp-content/uploads/sites/10/2015/09/50-0450-E.pdf; Markkula Center for Applied Ethics, Making an Ethical Decision, retrieved on June 25, 2018, https://bit.ly/1Tx0rhd; and Manuel G. Velasquez, Business Ethics: Concepts and Cases (1982).
61. Velasquez et al., supra note 58.
62. Elias & Cavana, supra note 59; Arun Elias, A system dynamics model for stakeholder analysis in environmental conflicts, 55 J. Envtl. Plan. & Mgmt. (No. 3, 2012).
63. Categorical Imperative, Encyclopedia Britannica (2014). “Act only according to that maxim by which you can at the same time will that it should become a universal law” is a purely formal or logical statement and expresses the condition of the rationality of conduct rather than that of its morality, which is expressed in another Kantian formula: “So act as to treat humanity, whether in your own person or in another, always as an end, and never as only a means.”
64. Velasquez et al., supra note 58.
65. In working with various business and legal professionals, there is often a sense of competition when a decision is made and insignificant consideration given to the implementation phase. Too often, ethical and organization norms are violated and alternative implementation options ignored that would have better supported the organization’s culture.
66. D. R. Forsyth, A taxonomy of ethical ideologies, 39 J. Personality & Social Psychology 175-184 (No. 1, 1980).
67. Id. at 176.
68. Id. at 175.
69. Douglas E. Ziegenfuss & A. Singhapakdi, Professional Values and the Ethical Perceptions of Internal Auditors, 9 Managerial Auditing 34-44 (No. 1, 1994).
70. M. K. Shaub, D.W. Finn, & P. Munter, The Effects of Auditors’ Ethical Orientation on Commitment and Ethical Sensitivity, 5 Behavioral Research in Accounting (1993).
71. J. R. Sparks & S.D. Hunt, Marketing Researcher Ethical Sensitivity: Conceptualization, Measurement, and Exploratory Investigation, 62 J. Marketing 92-109 (1998).
72. Of the 130 surveys used for analysis, not all questions were answered, but most data was available for each of the 130 retained for analysis.
73. We also calculated the relationships using Pearson pairwise correlations. The results are substantially the same.
74. Model Rules of Prof’l Conduct R. 1.8 (Current Clients: Specific Rule, (j)) (2017).
75. Model Rules of Prof’l Conduct R. 3.1 (Meritorious Claims and Contentions) (2017).
76. Model Rules of Prof’l Conduct R. 3.2 (Expediting Litigation) (2017).
77. Model Rules of Prof’l Conduct R. 8.4 (Misconduct, (a) and (d)) (2017).
78. Model Rules of Prof’l Conduct R. 3.4 (Fairness to Opposing Party & Counsel, (a) and (d)) (2017).
79. Model Rules of Prof’l Conduct R. 1.6 (Confidentiality of Information, (a) and (b)(1)) (2017).
80. Id. cmt. (6).
81. Model Rules of Prof’l Conduct, Preamble: A Lawyer’s Responsibilities (2017).