Discussion Draft Just Posted: 'Lawyers are not algorithms: Sustainability, corruption, and the role of the lawyer in institutional frameworks and corporate transactions'

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Ethics has always been a term that is easy to pronounce, easier to segregate and narrow, and nearly impossible to produce easy answers.  That tendency toward the use of ethics as a slogan (generally), applied as a narrowly tailored set of professional rules of conduct, has had two effects.  As a slogan ethics has been broadened to signify any sort of conduct that is to be condemned; as a narrowly tailored disciplinary rule system, it has become an arcane science with a vocabulary and logic of its own that is hardly ever self evident (as at least a couple of generations of law students might attest). The problem becomes more immediate, at least for me, when one considers a lawyer's ethics (the imperative toward moral conduct) within emerging morally suffused fields--sustainability and corruption are two that come to mind--where the lawyer is not herself, that is where she is an autonomous actors but one who serves as the agent of another (while retaining her own autonomy as a moral actor) within institutions and in the context of client transactions.

And this led me to consider the semiotics of ethics. This required a somewhat different disaggregation of ethics--of ethics as an object, as a sign/symbol, and as the signification of both within a collective and among (autonomous?) individuals. Is it possible that the semiotics of ethics Might provide a useful lens for taking a fresh look at the concept and more importantly, its internalization within individuals and among collectives? Might it prove more useful still when ethics--that combination of norm and conduct, is applied within simultaneously powerful normative and institutional contexts--is understood as a moving target within a matrix of normative elements (the rules of personal conduct plus the morals of the thing undertaken) and personal position (as a moral agent, the the moral agent of another, and as a moral agent of the collective)?

These were the organizing thoughts within which I approached the challenges for lawyers on their ethical responsibilities in relation to sustainability and corruption. Those initial thoughts were shared in remarks that I made at the Joint Osler, Hoskin & Harcourt LLP Business Law Forum, and the Wickwire Legal Ethics Lecture, which for 2019 had as its theme “ The ethical and professional responsibilities of business lawyers: Business, Human Rights, and the Sustainable Development Goals.” The event took place at the Schulich School of Law, Dalhousie University, Halifax, Nova Scotia 26 September 2019. The PowerPoint of my remarks and a description of the event can be accessed here: The Lawyer is not an Algorithm": Remarks on the Ethical Responsibilities of Lawyers in Relation to Sustainability and Corruption. The video of the event may be accessed HERE: watchwatch. All with great thanks to the remarkable Sara Seck. 

I have recently prepared an initial draft of my thoughts , now perhaps a little further developed, in essay form. That essay is entitled 'Lawyers are not algorithms: Sustainability, corruption, and the role of the lawyer in institutional frameworks and corporate transactions.' It may be accessed HERE. For those interested the abstract and introduction follow. I welcome engagement of any form with the materials.

Lawyers are not algorithms: Sustainability, corruption, and the role of the lawyer in institutional frameworks and corporate transactions.

Larry Catá Backer

W. Richard and Mary Eshelman Faculty Scholar & Professor of Law and International Affairs, Departments of Law and International Affairs, Pennsylvania State University, University Park, Pennsylvania, USA

239 Lewis Katz Building, University Park, PA 16802
1.814.863.3640 (direct), lcb11@psu.edu

Provide (B.A. Brandeis University; M.P.P. Harvard University Kennedy School of Government; J.D. Columbia University). His research and teaching focus on comparative constitutional law, legal regulation of religion, corporate law, corporate social responsibility, multinational corporations, transnational law, and international organizations. He has lectured in South America, Europe and Asia. . In addition to journal articles and contributions to collected multi-authored works, his publications include Elements of Law and the U.S. Legal System (Carolina Academic Press forthcoming 2020), Cuba’s Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era (Little Sir Press 2018); Comparative Corporate Law (Carolina Academic Press 2002), and an edited collection of essays, Harmonizing Law in an Era of Globalization (Carolina Academic Press, 2007). He has published over one hundred articles and book chapters in journals in the U.S., Latin Americas, China, and Europe. His short essays on many of these topics may be found on his blogsite: “Law at the End of the Day”.

Lawyers are not algorithms: Sustainability, corruption, and the role of the lawyer in institutional frameworks and corporate transactions

Abstract: Lawyers are moral actors deeply embedded in the social and political orders to the principles of which they owe a high degree of fidelity. A lawyer’s ethical obligations are grounded in that basic fidelity and they may advance their client’s interests only consistent with this higher duty. Thus, the ethical duties of lawyers flow to clients but from the principles on which the social order is founded. It is in that context that one may speak to the ethical obligations of lawyers in their institutional roles and as advocates in corporate transactions. institutional role of lawyers. Among key emerging societal principles to which a lawyer owes a high degree of fidelity are those that advance sustainability and that combat corruption. This essay considers the character of those ethical obligations when sustainability and corruption meet the needs of institutions and the objectives of “deals.” Part 1 introduces the self-reflexive challenge of lawyer ethics. Part 2 then maps the lawyer’s ethics universe as —conduct, compliance, responsibility, and duty. Part 3 then turns to the framework and challenges of the ethical lawyer. It situates the role of lawyers as gatekeepers and in that context considers the ethical challenges of lawyers generally, distinguishing between ethics as right conduct, as norms, as compliance, as responsibility, and as duty. Part 4, then applies the insights developed to examine the lawyer’s ethical dilemmas as they may manifest themselves within the specific context of sustainability and corruption, and within institutional frameworks and client transactions. The essay concludes with a central insight to be drawn from that examination—that beyond context, ethics is a deeply moral project that ought to drive ethical decision making.

Keywords: legal ethics; sustainability; corruption; compliance; lawyer agency; moral agency; reporting; due diligence word

Subject classification codes: M14

1. Introduction—the self-reflexive challenge lawyer and ethics

“When one trains one's conscience, it kisses one while it bites.”[1] This essay distils[2] my examination of a lawyer’s ethics. The distillation is undertaken in a more specific context: the way a lawyer embeds ethics in her service to clients, and to the society in which she participates, respecting issues touching on sustainability and corruption, as she fulfils her role (and its duties) within institutions or in the context of a business transaction. The analysis is grounded in semiotics,[3] that is in the way in which lawyers make meaning, and its application to the meaning of meaning making we understand as ethics.[4]



The essay speaks to ethics at its broadest, drawing on its original sense from the ancient Greek “ēthos "moral character."[5] This is a definition that personifies ethics and aligns it with a judgment of character. To be ethical is both an individual endeavour and a moral one, that is one based on the recognition and respect for cultural and societal taboos,[6] or to work around them (which presents its own ethical contradiction).[7] It is one that reflects on the character of a person as a moral being. That notion of ethics is in turn related to the ancient Greek ēthos or "custom" in the sense of the incarnation of the collective morals of a society or social order. This moves ethics from an engagement (an internalization) in an individual, to the externalization of morals within a societal collective reflected in the collective’s customs and traditions, it “manners.” Here one encounters ethics as proper behaviour and behaviour expectations, that is of the application of the principles of collective moral character to conduct.[8] It is in this last sense that one encounters the intertwining of ethics and compliance.[9]

The essay’s context is the lawyer and the lawyer’s engagement with, and embodiment of, ethics. Traditionally, ethics was something that was external to the lawyer—a thing to be applied in the service of a higher calling—the client, the state, society, and the constitutional order. The very idea of lawyers as a neutral actor, as a carrier and applier of an ethics which was to be applied through her, but which required no internal investing, suggested a positive amorality.[10] Yet in a larger sense, that cultivated immorality detached the individual from herself and suggested a bifurcation of ethics—ethics as an object, a box signified by the interpretive bundle to be taken out and applied—like a slave—to the wounds of her clients. The ethics of lawyers, then, appears as a tool (ethics itself), as well as a toolkit (ethical principles), as well as the measure of accountability of the conduct of both lawyer and client.[11]



For the lawyer, then, ethics is a semiotic construct, it serves simultaneously as an object,[12] a symbol,[13] and a precise set of meanings that frame the way she understands and acts in the world.[14] In its simplest forms, then, ethics might be understood as individual moral virtue and character[15] rationalized to produce the principles that set out a society’s (and an individual’s) sense of right and wrong,[16] and more particularly that of her client.[17] It does so, for my purposes, simultaneously from the perspective of the individual and the society of which she is a part. That is, ethics centres the individual and her character, and at the same time centers the collective and its customs and manners. The ethical person is one of good character, of moral character, the measure of which is made against the customs and traditions, the core principles under which society is ordered and organized. But that ethics is operationalized through acts—of compliance, of responsibility, and as duty.[18]



Where they are in sync, the ethical synergies work in two directions—the first reinforces the internalization of collective ethics within individuals, the second reinforces the externalization of the aggregated practice of individual ethics within the collective. Yet there is a tension there that requires examination.[19] When they are not in sync, the ethical synergies rupture. Internalization of collective ethics or externalization of individual ethics are rejected. And in place of ethics unity there is fracture and conflict. This rupture can also reflect the rupture of the collective source of ethics.[20] These are also operationalized through acts of compliance, of responsibility, and as duty but now centred on distinct principles and sources.



It is at the point where these tensions may produce rupture, the ethical incoherence, that serve as the starting point of this essay. The essay argues that lawyers are moral brings deeply embedded in the social and political orders, to the principles of which they owe a high degree of fidelity. A lawyer’s ethical obligations are grounded in that basic fidelity and they may advance their client’s interests only consistent with this higher duty. Thus, the ethical duties of lawyers ought to flow to clients but from the principles on which the social order is founded. It is in that context that one may speak to the ethical obligations of lawyers in their institutional roles and as advocates in corporate transactions. That role and those transactions, in turn, are increasingly contextualized within key emerging societal principles to which a lawyer owes a high degree of fidelity. The essay considers two of these: one set that advances sustainability[21] and another the object of which is to combat corruption.[22] This essay considers the character of those ethical obligations when sustainability and corruption meet the needs of institutions and the objectives of “deals.”


Part 1 introduces the self-reflexive challenge of lawyer ethics. Part 2 then maps the lawyer’s ethics universe as —conduct, compliance, responsibility, and duty. Part 3 then turns to the framework and challenges of the ethical lawyer. It situates the role of lawyers as gatekeepers and in that context considers the ethical challenges of lawyers generally, distinguishing between ethics as right conduct, as norms, as compliance, as responsibility, and as duty. Part 4, then examines the lawyer’s ethical dilemmas in sustainability, corruption, institutional frameworks, and client transactions through the lens of these framework challenges. The essay concludes with a central insight to be drawn from that examination—that beyond context, ethics is a deeply moral project that ought to drive ethical decision making.



NOTES

[1] Friedrich Nietzsche, Beyond Good & Evil: Prelude to a Philosophy of the Future (Walter Kaufmann, trans., New York, Vintage Books, 1989) §98.


[2] The word was chosen with some care. To distil derives ultimately from the Latin distiller, a compound that brings together the notion of “dis” to take apart, and ”stillare,” to drip or drop. Etymology online, “distill” available https://www.etymonline.com/word/distill (accessed 5 June 2020). And, indeed, the object of this essay is to both take apart and to seek from that teasing out the essence of the ethics—the concept distilled and then applied.


[3] “On the one hand, there are no specific semiotic texts (even not texts meant to be on semiotics) and on the other hand, all texts contain semiotics elements to be discovered, deciphered, and read.” Jan M. Broekman and Larry Catá Backer, ‘Eco and the Text of the Communist Manifesto’ in Jan Broekman and Larry Catá Backer, Signs in Law—A Sourcebook: The Semiotics of Legal Education III (Dordrecht: Springer, 2015) pp. 21-24 .


[4] Jan M. Broakman, ‘Legal Theory and Semiotics: On the Origins of Legal Semitics’ in Jan M. Broekman and Larry Catá Backer, eds., Lawyers Making Meaning: The Semiotics of Law and Legal Education II (Dordrecht: Springer, 2013) p. 89-97.


[5] Etymology Online “ethics”, available https://www.etymonline.com/word/ethic (last accessed 6 June 2020).


[6] This presents challenges in expanding areas of taboos and societal constraints, especially for the ethical business lawyer. See, eg, Margaret Lindorff, Elizabeth Prior Jonson, and Linda McGuire, ‘Strategic Corporate Social Responsibility in Controversial Industry Sectors: The Social Value of Harm Minimisation’ Journal of Business Ethics 110:457-67 (2012).


[7] See Martha Augoustinos and Danielle Every, ‘Contemporary Racist Discourse: Taboos Against Racism and Racist Accusations’ In: Ann W., Bernadette M.W., Cindy G. (eds) Language, Discourse and Social Psychology (London: Palgrave Advances in Linguistics. Palgrave Macmillan, 2007), pp. 233-254.


[8] This from the Latin manuarius (belonging to the hand”). Etymology Online “manner”, available https://www.etymonline.com/word/manner (last accessed 5 June 2020).


[9] Compliance is a term that is used broadly to cover a host of mandatory and regulatory relations within consenting communities. It has become an important element in international relations. See, Abram Chayes and Antonia Handler Chayes ‘On Compliance’ International Organizations 47(2):175-205 (2009). But compliance is also inherently directly to individual and institutional actors in the domestic and private sphere. For example, the American Law Institute’s Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations consist of a group of best practices, principles and recommendations for ‘right conduct’ around issues of compliance, risk management and enforcement. The compliance function is defined as “the set of rules, principles, controls, authorities, offices, and practices designed to ensure that the organization conforms to external and internal 3 norms.” American Law Institute, ‘Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations’ Preliminary Draft No. 1 (Philadelphia: ALI, 2015) §5.01. Importantly, compliance is understood as inherently ethical, at least as aspirational principles. Section 5.59 states that an “organization should aspire to conduct its affairs not only legally, but also in 28 accordance with broader standards of ethics.” The Reporters’ Notes to this section (Ibid., p109) cite Thomas Baxter, Executive Vice President 5 and General Counsel, Federal Reserve Bank of New York, Compliance – Some Thoughts About 6 Reaching the Next Level (February 9, 2015) (“The symbiotic relationship between ethics and 7 compliance arises because of the close connection between values and rules. Ethics is about 8 values and compliance is about rules. You obtain the beneficial symbiotic effect when the values 9 and the rules live in harmony. A different result is obtained when you have organizational values 10 that conflict with the rules.”).


[10] See, e.g., Pepper, ‘The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities’ American Bar Foundation Res Journal 1986:613 (1986).


[11] Nietzsche noted (Friedrich Nietzsche, Beyond Good & Evil: Prelude to a Philosophy of the Future (Walter Kaufmann, trans., New York, Vintage Books, 1989) § 189):

There are systems of morals which are meant to justify their author in the eyes of other people; other systems of morals are meant to tranquilize him, and make him self-satisfied; with other systems he wants to crucify and humble himself, with others he wishes to take revenge, with others to conceal himself, with others to glorify himself and gave superiority and distinction,—this system of morals helps its author to forget, that system makes him, or something of him, forgotten, many a moralist would like to exercise power and creative arbitrariness over mankind, many another, perhaps, Kant especially, gives us to understand by his morals that "what is estimable in me, is that I know how to obey—and with you it SHALL not be otherwise than with me!" In short, systems of morals are only a SIGN-LANGUAGE OF THE EMOTIONS.


[12] Ethics is expressed by the objects through which it is memorialized—stories, opinions, rules, and tokens of good behaviour—awards and commendations. See, e.g., Jan Broekman, ‘Firstness and Phenomenology’ in Anne Wagner and Jan Broekman, eds., Prospects of Legal Semiotics (Dordrecht: Springer, 2010), p. 37f. But ethics is itself an object, an incarnation of a set of beliefs that itself acquires its own being. Indeed, to speak of ethics, as is commonly done, is to distill the objectivity of ethics from the aggregations of its principles and commands. It is in this sense that ethics becomes a thing that can itself be infused with content—that is, it becomes an object that can be signified in a variety of different ways. Semiotic objectification is to be understood in contradistinction, for example, to feminist notions of sexual objectification, “used as a pejorative term, connoting a way of speaking, thinking and acting that the speaker finds morally or socially objectionable.” Martha Nussbaum, ‘Objectification’ Philosophy and Public Affairs24(4):249- 291 (1995). On the objectification of ethics, see, e.g., --------.


[13] See, e.g., Roberta Kevelson, ‘Property: The Legal ‘Thing’ as Artwork’ in Law and Semiotics 3:193-209 (Springer, 1990) in (assumption that “law may serve instrumentally as a means for observing social values, i.e., for the ethical norms which law attempts to represent in everyday life, is closely tied to various notions. . . of law as an imagistic sign of social principles” ibid., p.194). On signification see Charles Sanders Peirce, ‘Two Letters to Lady Welby’: Oct. 12, 1904and Dec. 24/25, 1908 in Charles Sanders Peirce, Collected Papers Vol. 8, Chapter 8, Nos. 327-379 (A. W. Burks, ed., Cambridge: Belknap Press of Harvard University Press, 1958-1966).


[14] See, Jan Broekman and Larry Catá Backer, Signs in Law—A Sourcebook: The Semiotics of Legal Education III (Dordrecht: Springer, 2015).


[15] One can take this one back to Aristotle, Nichomachean Ethics (DB Chase (trans) London: Everyman, 1911) the means to the Chief good to which all things aim); Edwin M. Hartman, ‘Socratic Questions and Aristotelian Answers: A Virtue Based Approach to Business Ethics,’ In Gabriel Flynn (ed) Leadership and Business Ethics (Dordrecht: Springer, 2008), pp. 81-101.


[16] See Emmanuel J. Udokang, ‘Traditional Ethics and Social Order: A Study in African Philosophy,’ Cross Cultural Communication 10(6):266-270 (2014); K. Yamamoto, ‘The Origin of Ethics and Social Order in a Society Without State Power,’ Collegium Antropologicum 23(1): 221-229 (1999).


[17] Catherine Lanctot, ‘The Duty of Zealous Advocacy and the Ethics of the Federal Government Lawyer: The Three Hardest Questions’ Southern California Law Review 64:951 (1990-1991)


[18] Peter Singer, Ethics Into Action: Henry Spira and the Animal Rights Movement (New York: Roman and Littlefield, 1998).


[19] See, e.g., Geoffrey Hazard, ‘Personal Values and Professional Ethics’ Cleveland State Law Review 40:133 (1992)


[20] As Deborah Rhode noted long ago:



Problems of professionalism arise from complex interrelationships among socioeconomic incentives, institutional structures, and professional ideologies. In some instances, these problems involve violations of existing rules; the difficulty lies in enforcement. In other instances, the conduct is at least arguably permissible; the difficulty lies in the content of the rules and in their economic and ideological foundations.

Deborah Rhode, ‘Institutionalizing Ethics’ Case Western Reserve Law Review 44(2):665 (1994).


[21] The focus will be on the UN Sustainability Development Goals (SDGs). The SDGs were adopted by UN General Assembly resolution. See, UN General Assembly, ‘Transforming our world: the 2030 Agenda for Sustainable Development A/RES/70/1 (21 October 2015) available https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E (last accessed 12 June 2020) (announcing 17 SDGs with 169 associated targets “which are integrated and indivisible.” Ibid., § 18; the goals are listed ibid., § 59 p. 14 and the associated targets listed § 59, pp. 15-27). See discussion in, e.g., Luisa Huaccho Huatuco, Peter D. Ball, The quest for achieving United Nations sustainability development goals (SDGs): Infrastructure and innovation for responsible production and consumption’ RAUSP Management Journal 54(3):357-362 (2019); Matthias G Raith and Nicole Siebold ‘Building Business Models Around Sustainable Development Goals’ Journal of Business Models 6(2):71-77 (2018). See also, Johnston P, Everard M, Santillo D, and Robèrt KH, ‘Reclaiming the definition of sustainability’ Environmental Science and Pollution Research International14(1):60-66 (2006). The intertwining of sustainability and ethical conduct is emerging in the literature. This is sometimes grounded in virtue ethics. See, e.g., Karen Jordan & Kristján Kristjánsson, ‘Sustainability, virtue ethics, and the virtue of harmony with nature’ Environmental Education Research 23(9):1205-1229 (2017). Most interesting is the emergence of both within the curricula of university departments other than law and business schools. See, e.g., Abbas El‐Zein, David Airey, Peter Bowden, Henriikka Clarkeburn, ‘Sustainability and ethics as decision making paradigms in engineering curricula’ International Journal of Sustainability in Higher Education 9(2):170-182.


[22] Like sustainability, corruption as a moral imperative has only recently taken contemporary form. Even in the late 1980s, corruption was described as a sensitive subject, though its intimate connection with public morality (however one approached the subject) was firmly established. See Robert Klitgaard, Controlling Corruption (Berkeley: University of California Press, 1988) (Indeed the opening lines of the book make this clear: “’What worries me more than anything’. . . , said Nigerian President Shedu Shangari in 1982, ‘is that of moral decadence. . . There is the problem of bribery, corruption, lack of dedication to duty, dishonesty, and all such vices.’” Ibid., p1). It pervades both individuals, institutions, and states. See, e.g., Susan Rose-Ackerman, Corruption: A Study in Political Economy (New York: Academic Press, 1978). And like sustainability, its definition covers a broad range of human activity that include within a commonly accepted set of definitions public office centred, market centred, and public interest definitions. See, AJ Brown, ‘What are we trying to measure? Reviewing the Basics of Corruption Definition’ In Charles Sampford, Arthur Shacklock, Carmel Connors, and Fredrik Galtung (eds) Measuring Corruption (Aldershot, UK: Ashgate, 2006), pp. 57-79. He offers a taxonomy with a primary focus on abuse of power, and a secondary focus sources of abuse. Ibid., pp. 59-61.