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Wednesday, December 1, 2010

How To Make Ethical Decisions

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
Ethical issues are tough, and any lawyer can tell you that when they come along they can keep you up nights worrying about what to do with, say, the client who propositions you, your partner who is drinking too much, the judge who asks for a campaign contribution while hinting at quid pro quo in future cases. When I graduated from law school and went to practice law in Chicago I was 24 years old. Ethical problems came up almost immediately. One of the associates at my firm, a mentor, took me with him when he went down to the Cook County Sheriff Office. "I'm going to show you how we bribe a sheriff in this town," he told me. I was horrified. "Why do it?" I asked, pointing out he could be disbarred. "If we don't do it, the sheriff won't serve the summons at all, and our lawsuit won't get started." I protested that the sheriff's practice should be reported promptly to the judge. "The judge takes a kickback from the sheriff," he replied, adding, "The whole system is as corrupt as it can be, but we have to do what we have to do." Shortly thereafter I was promoted within the firm and put in charge of sewer assessments bonds for four states. It was tedious work, which I hated, but at least I never had to face the choice between bribing a sheriff or resigning from the firm. [I like to believe that Cook County, Illinois, has since cleaned up this corruption.  I like to believe that.  I do.]

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.

Wrong question #2: "What are other people in this situation doing?" That sounds appealing until you realize that the number of people getting into trouble doesn't excuse them from punishment—it just means you'll all be going down together. The fact that there are lots of other lemmings going over the cliff with you does not soften the bounce at the end. If the Cook County sheriff bribery scandal had erupted, all the lawyers involved were going to face disbarment and/or jail.

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.
Related Post:
"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


  1. Great post! Some other tests we try to promote are:

    The Role-Model Test
    The Golden Rule
    The Bell, Book, and Candle Test

    Our Founder and President, Michael Josephson (also a former law professor) has spent a lot of time the past few months writing about Making Ethical Decisions on our new Business Ethics Blog -

    Thanks for the post!

  2. Tell Michael Josephson Douglas Whaley says hello---I used to work for him in the bar review days.