Ethical Atrophy

Several years ago I was at a CLE on Ethics in which the presenters spoke entirely about the Rules and Regulations of the Bar. Too often in that talk they spoke of how far could a lawyer go without breaching the Rules as though ethical behaviour is a game. I found this troubling and I find it troubling any time talk about ethical behaviour focuses on the Rules and Regulations.

I think mandated standards are well and good, however, I think we need to be aiming much higher than that. Healthy happy practitioners live by a set of principles and values that are much more effective than anything that could be mandated.

I believe this is an important subject from a health standpoint of both individuals and of the profession.

It has been said that a society's health can be measured by how large the gap between the laws and the morals, in my language, between ethics and rules. The minimum ethical behavior for a minimally healthy society is to obey the rules. The higher our ethical standards become the healthier we will be and the healthier our society will be. When I am operating from my values and those values are consistent with being considerate of the common welfare then I will barely need to know the rules. I will always act in a way that is considerate of my self, my neighbours, the environment, the common good and the specific situation.

Ethical atrophy is a term I coined to express my belief that if we do not continually work at exploring and living by our values our ability to do so will diminish.

We need to work on developing our ability to make ethical decisions. We have to continually be aware of our values and how we are performing relative to them. As we become more governed by laws and rules our focus shifts to following the rules.

What is ethical atrophy?

It is the deterioration of the ability to make ethical decisions and act in an ethical way. To act ethically one must be able to be aware of her/his own personal values, of what is important to her/him. One must be aware of the values of the group in which he/she is participating and one must be aware of the circumstances that exist at the time at which the decision must be made. This requires discipline; the ability to contemplate; the ability to access and determine clearly one's perceptions, thoughts, feelings, and awareness of others; an ability to be curious about others; and most importantly courage to be honest about this, to self and others.

This is not an ability, or rather a set of abilities, which just happens, rather these abilities can and must be developed.  I think these form part of a healthy maturation process, but for the purpose of this discussion I will leave that.

The failure to regularly and routinely access, reflect upon, determine and act upon one's personal values will cause the ability to do so to atrophy, just as a muscle atrophies if not used, just as the brain function decreases if not used.

I posit that we are creating a maelstrom in our society and in the practice of law by focusing on external Rules.

The current fiascoes with Enron and WorldCom and others did not just happen. We did not just go from a world in which businesses were ethical to one in which fraud and corruption is massive and blatant. I believe the road down was paved with a focus on rules.

  • The first step is to focus on the rules and stop paying attention to our own values and stop making choices based on all factors in any given situation. Since there are innumerable situations and no rule can cover all permutations we begin to get more rules to try to cover all situations.
  • The next step is we begin to focus on how we can get around any given rule, finding loopholes. This becomes acceptable because, "there is nothing wrong" with finding loop holes. (In fact in the income tax world the whole game is to maximize tax avoidance, and not slip into tax evasion)  However, the intention of a business agreement can get lost or ignored in the loophole finding process.
  • The next step is to test the limits of the loopholes. Perhaps we even get caught. There is now not much negative impact because we were trying to follow the rules but missed. By this time no one is asking, "what is the right thing to do in these circumstances?" of "what do I want to do to live in accordance with my values?". The questions are how do I get away with as much as I can.
  • The next step is to forget the rules. How can I get away with as much as I can? Who can I blame if I get caught?

As with any dis-ease this ethical atrophy doesn’t happen all at once but rather one deteriorates progressively.

This is not just a moral issue, or a business issue, it is a personal health issue. Loss of a sense of ones own personal values is a common symptom in virtually all the distressed people I see. It seems to be a core problem with people dealing with mood disorders, depression, anxiety, addictions, mental problems, OCD, as well as with career dissatisfaction.

This is a long way of saying that focusing on being a healthy lawyer will go further towards having a healthy profession than will focusing on living by the disciplinary rules and will, I believe, lead to living by standards much higher than the rules.

I think the concept of examining oneself and of asking questions such as, "why we were chosen?", “why did we want to become lawyers?” is useful and healthy. “What do we bring to the law?” and many other questions are great. As is having mentoring. Perhaps these are things the LAPs can bring to the profession.

I just heard a great question; what am I doing in my profession to bring “Awe” alive? Or as I like to put it, “What is so AWE-some about being a lawyer?”