Assume that you find yourself in the terrible dilemma of possibly having to report an improper act by one of your business partners. Reporting has consequences; not reporting does, too. Think about the myriad tricky issues you may face en route to a decision. You would certainly consult your code of conduct. You would also consider a host of other practical issues such as the seriousness of the misconduct, alternative remedial options, the potential impact on the business and individuals, the reporting escalation path and even the consequences for your career.
After wading through this muddle of issues, however, an obvious solution isn’t always clear.
Usually, we gain insights into the difficulty of managing our ethical responsibilities from well-publicized ethical lapses. Commentators (including yours truly) examine the reports of ethical failures in order to extract lessons that can guide us through the ethical minefield.
But the other day, I read a fascinating account of a lawyer’s otherwise private struggle with making a reporting decision. The lawyer, Mercer University School of Law Professor David Hricik, is a co-blogger of the Legal Ethics Forum. He decided to share the agony he faced in deciding whether to report an apparent misdeed of which he became aware. The author offered the following glimpse into his torment:
“This was a horrible place to be, as it would be for any lawyer. The feeling of being put between a rock and a hard place was overwhelming–if I reported, I clearly met the duty if it existed. If I didn’t, there was risk to me. But, as is probably often the case when reporting issues crop up, reporting would create problems for people I knew, and likely cost me time and emotional capital in dealing with the whole thing.
“Recognizing that erring on the side of caution was not the easy option is something that I had not felt as an adviser and teacher. It is a powerful feeling–you want to do what is right, but you want to do it only if you absolutely have to, because it could hurt people you know. That lies at the core of reporting.
“Worse are understandable internal rationalizations you go through. You pit theoretical ‘maybe this will never come to light’ versus actual ‘if I report, this gets brought into the daylight.’ It is a very difficult place to be.”
This remarkable description of the fusion of the legal and emotional aspects of our ethical obligations compels us to consider how we would handle a similar challenge. Two issues bearing on the quality of your decision-making process deserve contemplation.
First, we know from many reports that various ethical failures have stemmed from inside counsel’s misplaced loyalty to the management team over the true client, the organization. You must constantly assess your ability and willingness to serve the best interests of the client, even in the face of enormous pressure flying under the banner of business mandates. An inability to remain objective while managing your ethical obligations will subvert already grueling decisions.
Second, when these issues arise, get some help. Do you have an ethics counselor or confidant to whom you would turn when dealing with ethical challenges? You will need to have a resource outside your organization and its management team who can counsel you through ethical quandaries. In other words, you should not use your standing outside counsel to guide you. Instead, find an independent ethics expert to help you through the minefield. Ethics experts guide law firms all the time. It’s a best practice that in-house counsel should adopt.