If you're a lawyer in the State of Ohio you are required to earn a certain number of "continuing legal education" credits every two years in order to retain your license. In the past my law school teaching, lecturing outside the classroom (like that recent trip to Boston about promissory notes and foreclosure), and the publication of one or more of my seven casebooks, have always done the trick, with one exception. The State requires lawyers to take a 2.5 hour course during the period on "Ethics, Professionalism, and Substance Abuse." Today I spent the morning in such a course, and, for a change, it was well done. Two of the presenters kept saying "you know," but let that pass.
|Douglas Whaley Walks to Work, 1968|
Whether you're a lawyer or not, when faced with ethical dilemmas it's all too easy to make the wrong choice and cause yourself major trouble. Some ethical decisions can be decided by application of basic rules of fairness and/or the guidance of a spiritual counselor. Others require a more complicated analysis.
For four decades I've given the following advice to my students about how to avoid being reported to the disciplinary committee of the bar association.
First I tell them to avoid asking the WRONG questions when making their decision.
Wrong question #1: "Can I justify this to myself?" That won't help at all---you will almost always be able to justify what you want to do. All of us are very good at putting our actions in the best possible light.
What I ultimately urged upon my students as the right question is what I call the "Ugly Headline Test": how's it going to sound when some reporter who doesn't like you writes an article, naming you, detailing what you've done, and then publishes it for all the world to see? If the headlines get ugly enough, it doesn't matter that you're the President of the United States (Richard Nixon learned this, and Bill Clinton had his problems with it too)—down you go. So before you act, ask yourself how it's going to sound when it's become big news and everyone from your mother to the prosecutor learns the facts.
More than once through the years I've run into former students who told me that the Ugly Headline Test had saved them from disaster. One said that when all the firm's lawyers agreed to try a shady practice, he'd stopped it cold by reciting for them what the possible headline might say, and how the body of the news article would then explain it all. "I wasn't very popular," he comment, "but we chose to do something else that wouldn't ever be newsworthy."
How long should you think these dilemmas over before choosing? It's a delicate question. Deciding too quickly frequently means that you didn't have enough information, nor give sufficient thought to the issue before making your choice. The opposite, however, is dithering over the decision for too long a period of time, going nowhere. Give yourself a realistic deadline for choosing, and then choose. If it can't be reversed, immediately quit debating whether it was the right choice or not. When it's done, it's done. Move on to dealing with the consequences.
No one said life is easy. Sometimes you have to do hard things.
Accept that and do the best you can.
"The Deathbed Test," July 27, 2010
"Life's Little (But Important) Rules," April 23, 2010
“A Guide to the Best of My Blog,” April 29, 2013