By Leonard Bucklin
Abstract: Neoethics is a new word — a fresh idiom — for a necessary modern approach to legal ethics. We use this new word to emphasize a new world of legal and corporate ethics.
This century has brought a changed complex of social, cultural, and business conditions affecting the nature of the ethics (1) an individual lawyer or businessperson must follow and (2) the legal community and the business community must embrace.
When committees discuss the structure, governance, and future of a legal firm or and business company — the committees usually are missing and important point. They have not thought about the neoethics culture upon us.
Corporate executives and law firm leaders are generally socially and politically adept. They know that social and cultural changes have occurred since Enron, WorldCom, 911, and the houseing market collapse of 2007. But generally they have not understood sufficiently the nature of the public ethics and public governance of lawyers and business which have followed the social and cultural changes of the last decade.
Neoethics is the new combined legal/social ethical framework in which lawyers work and businesses operate.
That new framework creates a new way in which lawyers and corporate managers must perceive ethics as a subject of study and as a tool for superior performance in the marketplace.
Both lawyers and also corporate managers need to perceive ethics as aspirational goals.
Ethics can no longer be only bright line minimum legal standards to be checked off as barely met. We must learn ethics issues sensitivity. We must take into our hands the easily available tools to help us solve ethics problems in a new way. Law and business both need new ethics rules and structures that govern how they operate respond to the new public framework and how the public perceives the public’s governance of individual lawyers and businesspersons.
We know that social and cultural changes have occurred since Enron and 911. But we do not sufficiently understand the nature of the “legal ethics” and “corporate governance” which have followed (not lead) the social and cultural changes of the last half dozen years.
There are two common definitions of “ethics”:
1. Ethics. The study of the general nature of morals and of the specific moral choices to be made by a person; moral philosophy.
2. Ethics. The rules or standards governing the conduct of a person or the members of a profession.
Neoethics, the new world of legal and corporate ethics, exists because of the merging of these two dictionary definitions. Moral philosophy and the standards governing lawyers are merging, as they never have before. The public and government now demand something from lawyers that courts and even plaintiff’s malpractice lawyers previously have not demanded. The public and government demand that the legal rules governing lawyers’ conduct respond to the public perception of the moral choices lawyers and corporate officers should make. Lawyers who do not recognize that will find themselves more and more often visited by the malpractice committee of the bar or a plaintiff’s attorney.
The same is true of corporate governance, that is: moral philosophy (definition # 1 above) and the standards governing businesses (definition # 2 above) are merging, as they never have before. The public and government demand that the legal rules governing corporate governance equate to the public perception of the moral choices corporate officers should make. Businesses who do not recognize that will be behind the pack in a few years!
This is a “new ethics” requirement for private practice lawyers and corporate counsel: to act in accordance with a contemporary public morality instead of a lawyer-generated set of rules. The contemporary public morality is becoming the law standard. This is new in corporate internal governance and in lawyer malpractice cases.
There is something to Lon Fuller’s view [Lon L. Fuller, Positivism and Fidelity to Law, 71 Harvard L. Rev. 645(1958).] that the legal order has an implicit internal morality. In a democracy, laws are enacted on society’s ideas based on an implicit internal morality. Our common law negligence actions (malpractice) and our statutory regulation of commerce (e.g., the new SEC rules for lawyers) are based on the majority’s idea of justice. These standards are not constructed in an ivory tower of academia. And today’s standards for lawyers and businesses are not being set by bar associations and trade associations. Today’s standards — which are becoming law through statute, court decision, and jury verdict — are being driven by a public morality in action.
The penalties for violating this contemporary neoethics requirement are both new and substantial. They affect not only individual lawyers and corporations, but also the entire legal system as a social institution.
* Neoethics Note: Neoethics is a trademark of Bliss McKnight Properties, Inc., used with permission.