The Price Paid for Abandoning Common Sense Ethics

Last month, I attended a Chicago conference called “Reimagining the Legal Profession.” One of the facilitators was surprised to learn that there was no ethical equivalent in the law to primum non nocere (first do no harm) found in the medical profession. After an engaging multi-hour conversation, our group came to a consensus that reimagining the legal profession required an inquiry into the profession’s principal role. That role, we concluded, is to protect the social contract under which our society functions. We also concluded that our failure to uphold that obligation could result in social disintegration and violence. Lawyers are the guardians of the rules and order that allow our society to function. But we cannot carry out that function if we betray our society’s trust. And that is where our individual and collective ethics come into play.

Here, I’m not talking about the rules of professional conduct or the statutory authorities giving rise to them. If those were our only standards and their policing was the only inducement to compliance, our profession already would have imploded. I am talking about ordinary, common sense ethics, which in my mind, fall into three overlapping categories: no misrepresentation, by act or omission; no misappropriation, by act or omission; and no other action, intentionally or negligently, that causes harm to others. I think that most of us spend most of our time abiding by these rules. And, it is because we do, that the profession persists. But, unfortunately, the profession does not “thrive” in any other sense than financial. And, in my mind, the profession fails to thrive, on that larger platform, because we have reordered our hierarchy of values to put profit at the top of the pyramid.

The funny thing is that there is plenty of room for both high ethical behavior and profit. But, you have to keep both of them in mind at all times. And, I would argue that if you perceive that ethics can be sacrificed to the altar of profit, any marginal financial benefit you may receive will be short lived and largely illusory. The adage, “What goes around comes around,” fully applies here. Let’s look at the price you pay for abandoning common sense ethics.

In 1983, Howard Gardner, an American developmental psychologist, proposed his theory of multiple intelligences. Since his original delineation, there has been a bit of skirmishing about what constitute separate intelligences, but there is a growing consensus that at least the following domains exist: cognitive, somatic, emotional, social and, many argue, spiritual. If you examine common sense ethics in the framework of these intelligences, you begin to see how high a price is paid, individually and collectively, by straying from the common sense ethical path. Most incidents of unethical behavior arise from fear. You didn’t leave yourself enough time; you didn’t understand the situation; you overlooked an important fact, consideration, or process; or you don’t have the competency or energy to properly complete the task. Your concern is not how you feel about yourself. For if it was, you would not misrepresent, misappropriate or cause harm. It is because you are externally referencing that you take the unethical step - avoiding malpractice, avoiding a
perception of incompetency, avoiding a “loss,” financial, professional or otherwise. Then, your unethical action works - as far as the world knows! But, you’ve created cognitive dissonance.

Internally, you know your action was wrong; externally, you dodged a bullet. Then another, similar circumstance arises. Which way do you go now? If you are driven toward external gratification, you are going to have to tone down the dissonance. You’re going to have to make up a story about how your “wrong” is “right.” In other words, you have to close down part of your mind to justify your actions. You now have a secret, so you probably no longer can collaborate on certain matters. If you acclimate to the “easier” path, you begin to shut down your creativity, your tenacity, and your curiosity - you begin to stop exercising the very skills that made you competent in the first instance. As to the skills, “if you don’t use them, you’ll lose them.”

The “closing down” aspect is not limited to cognition. The cognitive dissonance is a stressor. No matter what narrative you create for yourself to exonerate your behavior, you will not confuse your body. Your body is a great truth teller. If you want to drive around with one foot on the accelerator and the other on the break, don’t expect much from the longevity of the machine. It will break down. If you like high blood pressure, increased risk of cancer, reduced immune defenses, you’re going down the right path. You are shutting down your somatic intelligence, which connects you to the world.

In my work coaching lawyers, I have found a remarkable number of somatically unintelligent practitioners, living under tremendous stress. Consider the following: your brain does not connect you to the world, your body does. If you put your body into a state of chronic stress, you reduce its ability to receive environmental cues. What might you be missing by being so “out of touch?” How might your ability to counsel, negotiate or litigate be impaired by this chronic, stress?

And, as you consider how stress arising from common sense ethical violations impairs your somatic intelligence, consider its impact on your emotional intelligence. The two intelligences are interdependent and inseparable. Emotions don’t happen cognitively; they happen somatically. The angry brain in the vat from 1950s science fiction can’t really exist. You have emotions because you can feel them. You can feel them because you have a body that transmits them. It’s very difficult to be a competent lawyer when you don’t know what or where your emotions are. Will your communications be emotionally appropriate under all circumstances? Not if you can’t feel your emotions.

So let’s consider how high functioning your social intelligence will be when you have impaired your somatic intelligence “receiver” and handicapped your emotional intelligence “transmitter.” Effective social interaction is premised on openness, curiosity, awareness and generosity. Nothing about unethical behavior supports those characteristics. No matter how artful your narrative, you will convey that you are hiding something.

Consider, without knowing any particulars, you already have identified unethical people in your life. What cues gave rise to that judgment? Why would you believe that others could not detect the same in you? What I have observed is that folks that have something to hide either are isolated or form “clusters.” Isolation is painful, but it is ambiguous. Clusters should just buy a billboard to advertise what brought them together. You know who they are. You know what they do. And, you keep your distance. One of the great ironies to me is how people believe there is some sort of barrier between ethics at work and at home. Don’t kid yourself. It’s all the same. A shut down intelligence is ubiquitous; it doesn’t have office hours. Your spouse, your children, your friends will detect the impairments.

In all my writings, I maintain a secular perspective. But, I do want to touch on what nominally is being called “spiritual intelligence.” Although most of the writing on the subject is in the area of religion, at its base, spiritual intelligence is about viewing and acting in the world as “more than me.” Spiritual intelligence rests on the fundamental belief that all beings are mutually interdependent and human beings owe a unique responsibility, to one another and to other life forms, to preserve and enhance their mutual survival. If I were to identify the area of intelligence in which I see our profession most wanting to develop, it is here. Common sense ethics promote spiritual intelligence.

Last week, Apple’s Steve Jobs and Oakland Raiders’ owner, Al Davis, passed from this world. To those of us in the Bay Area, that was big news. I only dealt with Jobs on one matter and never dealt with Davis. But I’m confident that neither took with them their fame, power, or money. Both were “big personalities”; I know nothing of their ethics. But I do know, from my work as a hospice volunteer, about mortality. The more you keep your mortality in mind, the easier it will be to adhere to common sense ethics. You are a finite creature. You want a fulfilled life and you deserve it. And, you can live to fulfillment by adhering to some fundamental values irrespective of your “profitability.” But I’m equally confident that you cannot live” better” by living outside of them.