Monday, November 22, 2010

Ethics, Morals, and Professionalism

I have been writing about the so-called tenets of the legal profession listed as the clue to the meaning of professionalism in Rule 3 of the Vermont MCLE Rules. My theme has been that the rule provides us precious little guidance on what professionalism is, especially if we cling to the crisp distinction drawn by the Court between professionalism and ethics.

Much more could be said about the tenets laid down in the rule -- and the somewhat different list offered in the Reporter's Note. And I have pointedly not discussed several tenets that may actually have some ascertainable content -- in particular, civility and respect for others (other lawyers, witnesses, parties, clients, and so forth). But I want to step back from this detailed look at specific tenets to reconsider the assumption behind the tenet-listing exercise.

I want to suggest that the problem may lie with the effort to distinguish good action (professionalism)  from ethical action -- as if one can be ethical without being good. If professionalism means more than intelligent business practice, if it involves something deeper than the sort of suits one wears or the language one uses in public, if it entails something beyond good manners, it inevitably infringes upon the moral domain. The distinction the Court tries to fashion is founded on an incredibly narrow understanding of "ethics," though it may be one that is congenial to people who find themselves sometimes "compelled" to engage in behavior that most people find downright wrong (e.g., lying or at least proceeding blithely unconcerned about the truth or falsity of the position being taken, keeping secrets when lives are at stake, causing pain to another human being because doing so has benefits for your client, and so on). Except in the context of "professional ethics" (notice how those terms -- "professional" and "ethics" -- keep coming together), ethics is usually taken to involve something more than adhering to rules narrowly parsed to permit the greatest possible latitude of action. Even the note to the professionalism rule arrives at that insight, for it tells us that "truly ethical people measure their conduct not by rules but by basic moral principles such as honesty, integrity, and fairness." Said another way, truly ethical people display a body of virtues and do not simply abide by rules of conduct.

The Reporter's Note goes on to point out that "people can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or the code." True, but to proceed to call such people "ethical" is bizarre -- and that is exactly what the distinction drawn between ethics and professionalism seems to suggest. The problem may lie not so much with the definition of professionalism (although the very word is problematic in my view), as with the perverse limitation of the meaning of ethics. The attempt of the professions -- including law -- to carve out a body of rules distinct to their activity and to consider anyone who adheres to those rules "ethical," however common and accepted, is at fault for many things, not least of which is the incredible incivility and inhumanity we see displayed in the behavior of lawyers who would defend their heartless and obnoxious behavior by calling it zealous representation. That attempt also generates the sort of definitional difficulties our Court wrestled with in trying to craft a notion of professionalism different from rule-bound ethics. 

The problem is that ethics is bigger than any body of rules, let alone a practice-driven set of rules like those that govern professional conduct. Rules are really nothing more than attempts to draw out the implications of basic principles or fundamental virtues of character in particular situations. Until we re-examine the fundamental presuppositions that shape the topic of ethics, professionalism, and morals, we will be condemned to witness professionals who justify their blameworthy antics by reference to so-called "ethical" rules, rules that virtually encourage those antics by defining them out of the realm of ethics. 

Are lawyers who steal from their client trust accounts, or reveal client confidences, or do any of the other things prohibited by the Rules of Professional Conduct unethical? Probably, because most of those acts involve either fundamentally immoral actions (lying, stealing, cheating) or breaches of trust (which, I would contend, are also fundamentally immoral). But notice that I do not draw a distinction between ethics and morals -- a distinction that has crept into discussions of professional conduct and should be rejected. I think that "ethics" and "morals" refer to the same thing -- the basic principles that should guide our conduct, the basic virtues of character that good people possess. Interestingly, when pushed to develop a public statement, those who draft codes of conduct and professionalism rules agree with the identity of ethics and morals -- for they call their codes "rules of professional conduct" not "ethics rules," and they say things like "truly ethical people measure their conduct by basic moral principles."

If ethics is about anything, it is about the virtues of character that define how we should act in the world. Lawyers, like everyone else, should strive to develop those virtues. To the extent that they fail, they can be faulted for being unethical or immoral. It is those virtues that give us principles that can help guide our actions. To the extent that we want to develop a profession known for its morality -- and it seems obvious to me that we should want this -- we should demand that the members of our profession seek to develop the virtues of character of the good person. We should insist that they act on the principles of action that flow from those virtues. Serious failures to abide by those principles, or to display those virtues, should be punished. All failures should be treated as opportunities to examine the virtues and the principles, and it is there that the conversations the Court wants to encourage about professionalism can be most fruitful. But we must give up the tendency -- perhaps particularly common in a profession given to treating all of life's issues analytically -- to draw arbitrary, unjustified, strange, and awkward distinctions between morals, ethics, and professionalism. 

Truly professional lawyers are good people, and evince the virtues and seek always to act according to the principles characteristic of good people. Codes of conduct for professionals must be consistent with morals. They do not chart out a separate territory; they merely look at the same territory through the eyes of people whose work creates specific sorts of situations and raises specific sorts of questions. Codes of conduct apply the virtues of character to specific issues that pop up in professional practice. Professionalism is not something apart from, or even distinguishable from, ethics or morals -- it is the same thing. Nor is it apart from, or distinguishable from, good professional conduct -- it is the same thing. The conversation we should have is about what it means to be a good person. And if we are serious about wanting professionals who are "truly ethical people," we must be willing to punish those who refuse to do so by refusing to let them join or continue as members of a truly ethical profession.

1 comment:

  1. Dianne R. PallmerineDecember 3, 2010 at 6:58 AM

    I continue to think the Professional/Ethics divide is meaningless. I have been unable to distinguish the two since the new requirement was created, even after the 4 hours of "professionalism" credits I have taken. What I would find more useful than this vague "professionalism" would be practical CLE's, applying ethics to practice management. My current concerns are about how to store and/or dispose of old files properly. I have the ABA book on this topic and all reading it did was leave me "frozen in the headlights". Meeting the standards set out by the ABA book in any cost-effective way seems impossible.