Ethics and Professionalism

Ethics & Professionalism: Why Good People Do Bad Things

Michael G. Daigneault
Ethics Resource Center 1996

This traditional perspective on the key ethical issue facing individuals and organizations masks the real question that everyone working within a legal organization should address: Why do good people sometimes make bad ethical choices?

Leaders in the legal community plow a field filled with ethical land mines no less perilous than those navigated by their clients. Nonetheless, many lawyers who head firms ignore organizational ethics as a management imperative for their own firms. This remains the case even though those very same lawyers are instrumental in shaping the ethical culture of their clients' enterprises and despite the fact that a number of firms have come under scrutiny for their business and billing practices.

Critical to this issue is the question of why individuals we would consider "bad" make improper or unethical choices. This traditional perspective on the key ethical issue facing individuals and organizations masks the real question that everyone working within a legal organization should address: Why do good people sometimes make bad ethical choices?

In our attempts to rationalize why good people do bad things, recent focus has been on the organizations, institutions, etc. in which these "good" people work. It is often in a competitive environment that perhaps the greatest pressures for good people to either commit to bad choices or engage in unethical conduct can exist.

Over the past several decades the legal community has seen a dramatic shift in the definition and focus of the practice of law. No longer is the practice of law perceived as a profession in the traditional sense (except by a dwindling minority). Indeed, the practice of law has grown into a multifaceted business in which competition is stiff, the stakes are high, and emphasis rests heavily on how much money the practice brings in rather than the degree to which the client is efficiently and satisfactorily served.

With this transition into the more entrepreneurial realm comes all the nuances, variances, and subtleties that are inherent to business entities, including the job-related dilemmas and pressures that plague employees of these entities daily. Ethical issues that can arise include conflicts of interest, improper giving and/or receiving of gifts and other amenities, questionable pricing or billing strategies, the improper gathering of competitive information, treatment of employees, sexual harassment, revealing confidential information, and lying to supervisors. Further, whether unethical behavior is recognized and appropriately dealt with in an organization is somewhat of a product of the "corporate culture" of that organization.

When vision, standards, and a strong, visible show of support from the leadership for practicing ethical behavior is lacking, any corporate culture ≈ including a legal organization ≈ can prove to be a breeding ground for unethical behavior. Conversely, given the proper framework and show of support from the top, the corporate culture can be the venue to foster ethical behavior by an organization’s employees.
What Influences Bad Choices or Unethical Behavior?

People can have the most forthright and scrupulous of intentions, but put them in an office setting where they are called upon daily to make quick, sometimes incongruous decisions without sufficient time to reflect on the consequences, and even the most ethical individual can succumb to the challenges of the work place and make bad decisions or engage in unethical behavior.

People generally want to perform their jobs successfully. Again, however, a problem can rest with what is often called the corporate culture of an organization. For individuals to perform their jobs well, choices must oftentimes be made when success is defined almost exclusively in monetary terms, when the decision-maker does not possess the proper information or guiding mechanisms with which to render a good decision, is given powerful incentives to do "whatever it takes," or does not have time to rationally decipher the real problem(s) that should be addressed. In that regard, more often than not, bad choices are made and unethical conduct results.

In any business organization or institution, the choices and decisions employees make can stem from any one or number of pressures and/or rationalizations. Some of the more prominent of these influences are shown in the box on this page.

There are, of course, a multitude of other factors that can influence well-meaning individuals to make bad choices or engage in unethical behavior. In the context of the practice of law, not only must lawyers deal with the pressures of operating within a business, they must also deal with the pressures inherent to the practice of law: meeting filing and discovery deadlines; making court appearances; keeping the client abreast of the status of his or her case; following the rules of practice in any given jurisdiction; and, of course, adhering to the applicable rules of professional responsibility.

These pressures compounded by those inherent to the business environment equate to a burden that may be too large for some to carry. Too often there are choices that must be made between competing interests (e.g., between the business aspect of law and the practice of law itself). The potential for bad choices to be made and for things to slip through the cracks is great.

Eight Rationalizations For
Ethical Compromise

1. I have to cut corners to meet my goals.
2. I lack the time /resources to do what is right.
3. My peers expect me to act this way.
4. My superiors want results, not excuses.
5. I don't think it is really wrong or illegal.
6. Others would think that it is a good choice.
7. No one will ever know the difference.
8. I am afraid to do what I know is right.
Lessons from the Business Community

The world in which we live is much more complex now than it was hundreds of years ago. Our society today is based on heightened public awareness of what occurs in politics, in the legal community, and in the business realm. No longer will people look the other way when misdeeds are committed. Accountability is being demanded.

Regarding the practice of law, we have seen the image of the legal profession as a whole critically diminished in the public and business community's eyes. Like those working in the business community, lawyers must redefine and practice ethical conduct in the hopes of improving the organizations in which they work, as well as improving their own practice of law and themselves.

Many corporations have implemented codes of conduct that define unacceptable behavior and serve as a guideline for the practice of ethical conduct. That is a step in the right direction, but it is not enough for an organization merely to have a written code of ethics. Many business organizations are also taking a more proactive position in the area of promoting the practice of ethical behavior.

Focus has turned to developing strong values, communicating those values, and letting employees govern themselves. In that regard, the codes of conduct that are implemented should be formulated with employee participation and be fully embraced and endorsed by the organization’s leadership. Such codes should not be overly legalistic in language or tone nor should they be strictly compliance oriented. Rather, to be effective, codes of conduct should both inspire and address practical issues.

The code must also be promoted and continually communicated within the organization, from top to bottom. One way to accomplish this is to have a comprehensive ethics program that is not solely focused on compliance but has as its mission the goal of encouraging responsible conduct. Central to such a program are ethics training workshops and seminars for all employees that include discussion of the organization's code as well as realistic hypothetical case studies. To reinforce the organization’s values and standards, ethics training programs should be held on a regular basis rather than being a one-shot deal. Also consistent with an internal comprehensive ethics program is the designation of an ethics officer whose task it is to receive and respond to ethics questions as well as reports of misconduct.

Other solutions to prevent bad choices or unethical conduct can include a system of crisis management. Typically, breakdowns occur when the organization is frequently or always in the reactive mode, putting out the fires and then playing catch up. This type of situation is one that is ripe for the occurrence of unethical conduct. Proper planning and foresight can diffuse an emergency situation before it even happens. Organizations that establish and communicate clear standards and guidelines for dealing with urgent or emergency situations are in a better position to avoid falling into the reactive mode and chancing the occurrence of unethical behavior than organizations that have no such plan.

Good communication is another key factor in promoting ethical behavior within one’s organization. The lines of communication must remain open from top to bottom, across the board. Employees should be encouraged to discuss ethical situations or decision-making dilemmas with supervisors or colleagues. Individuals who have a leadership role should pay particular attention to how assignments and decisions are communicated to their staff.

Some lawyers may believe that their behavior as a lawyer is governed only by the rules of professional responsibility that are enforced in the jurisdictions in which they practice. This is a dangerous perception. Yes, lawyers are responsible for adhering to the rules of professional responsibility and conduct that exist in the jurisdictions in which they practice. They are also responsible for the ethical climate of their firm.

As the practice of law becomes more like a business than a profession, there are many additional laws and regulations that can apply not just to lawyers but to all employees of a law firm or practice (no matter the size). It is therefore important that lawyers, as well as other employees in a law firm, be cognizant of the organization’s standards of conduct and what the procedures are when confronted with a dilemma. This is especially true when the problem falls into an area in which the distinction between ethical and unethical conduct is unclear. If the organization does not already subscribe to relevant, non-complex, non-contradictory standards of behavior that are clearly communicated to all employees, the organization’s leadership would be well advised to do so.

The author is an attorney and past-president of the Ethics Resource Center, a Washington, D.C.-based nonprofit organization, providing training and consulting service in the fields of business, law, association and government ethics, as well as character education. Sheri L. Gordon, a former associate consultant with the center, assisted in the preparation of this article.