Ethics Cannot Be Saved for Sunday, Family, and Friends

By September 9th, 2019

Blog No 104
September 10, 2019

 Ethics Cannot Be Saved for Sunday, Family, and Friends

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By Mack W. Borgen
Recipient of Eight National Book Awards

This article is the first in a series about the ethics, morality, and manner in which business is too often (mis-)conducted in Modern America. More specifically, these articles are about how the obligations of our nation’s businesses are too often viewed too narrowly and how our nation’s businesses – especially our nation’s large corporations – too often and too routinely mislead their customers, ignore the needs of their employees, and abuse their leverage.

In part, these articles are based upon my long career as a business and corporate attorney. In one of the later articles in this series, I will also address how attorneys too often and too coldly assist corporate clients by the nearly-routinized abuse or misapplication of legal strategies and remedies.

Not about Politics  

But first. It is early Fall, 2019. And another election cycle is spinning around us. Thus, it is necessary to expressly state that this article is not about politics. This article has no intent to endorse any candidate, ridicule any party, or promote any agenda. But still, the impact of politics in this country is too everywhere. Politics sits like a weight upon our public conversations making disclaimers such as this necessary.

Political campaigns make things even worse because during such campaigns nearly everything becomes “political.” Every remark is scrutinized for secondary meanings and through the thick fog of politics. Every facial expression is examined. Every word is dissected. There is a heightened fear that all motivations are driven by agenda.

So, the disclaimer is again made. This article is not about politics. The elections will soon enough be over. And that is good.

Then we can go back to the more simplifying, almost unifying, rallying cries of many Americans that “enough is enough” and that it is time for the politics to calm down and the election process to be shortened. But those subjects are for another day. This article is about the role and boundaries of morals and ethics.

However, since this article is about how business is too often (mis-)conducted in America, it is also appropriate to loudly acknowledge, without doubt or reservation, that many businesses are decently, honestly, and well-run.

Many Fine Businesses and Corporate Officers But Certainly Not All

Over the course of my career, it has been my honor to work with and represent many fine, wonderful, and honorable business men and women and to serve as counsel to many well-run corporations. It is comforting to believe that America, as of now and in my opinion, rightfully holds the lead on the development, production and marketing of many of the world’s products.

But over the decades there have been changes. This author observed many clients (with varying degrees of willingness and, in a few cases, with almost cynical excitement) change their behavior and business practices. Similarly, these clients consistently lowered their expectations of others – of their suppliers, their employees, their customers, and even their own partners and shareholders.

This was partly because there have been tectonic (albeit subtle) shifts in the morals and ethics of businesses. Business has always been a tough game. A lot is always on the line. Competition can be fierce. However, it is time to recognize that the business environment in this country has been changing. Slowly. Steadily. And in the wrong, long-run direction.

Apart from the tighter reading of lengthier contracts and the generalized, arms-length manner of conducting business, these tectonic shifts are routinely articulated through the use of many defensive rationalizations and dismissive retorts.

“Everyone is doing it.”

“We have no choice.”

“Who will ever know?”

“I’m just doing what I was told.”

“It’s my job.”

“So sue me.”

 “If we don’t do it, someone else will.”

 “In America’s lousy, overly-regulated business environment (something about which this author partly agree)s, “we have no choice but to round the truth and cut the corner.”

Note: This spurning of “choice” was comfortably and conveniently reinforced by the passionate echoing of Reagan’s 1980’s belief that ‘the government is the problem not the solution’” and furthered by Milton Friedman’s narrow, naïve, and self-serving insistence “the sole purpose of businesses was the generation of profits for its shareholders.”

“In the world’s new global economy,

we have to follow the practices of other nation’s and other economies.”

And the worst:

“If it’s legal, then it’s o.k.”

And, most embarrassingly on behalf of my profession,

“My lawyers said that it was o.k.”

These articles suggest that all of the above school yard rationalizations can be short-sighted. They can be dangerous. Collectively, they diminish all of our lives. They lessen our community. Worse, they are self-perpetuating and wrong.

Know that this author is no saint – both heaven and a couple thousand people know that. And it is oftentimes neither easy nor rewarding to do the right thing. But to the extent these rationalization are over-used and abused, they have to be viewed for what they are: Rationalizations.

It is here humbly suggested that for the betterment of all of our lives and for the necessary re-direction of our society, ethics cannot be saved for Sunday, family, and friends. You cannot be a tough, ruthless, free-market-jerk Monday through Friday, and then get absolution on the weekends by going to church, donating to charities, or even by simply being a good family man or woman.

Strangely, it is at the same time both simpler and more complicated than that.

Focus Upon the Behavior of Major Corporations

These articles will generally address the conduct of business in the United States, but they focus especially upon the conduct of the larger of the nearly 1.7MM corporate businesses as opposed to the nearly 7.4MM partnerships and S corporations or the 23.0MM sole proprietorships.[i] The reasons for this focus are multi-faceted.

First, while admittedly debatable, the “tone” of this nation’s economic environment is oftentimes led, if not set, by the larger, more market-impacting corporations as opposed to the more localized small businesses. Second, because of their size, revenues, and budgets, it is the larger corporations which routinely use the services of legal counsels and which most readily retain marketing, advertising, public relations, and damage control specialists.[ii] Similarly, it is they which most readily have the means (and the inclination) to purchase the benefits and the insulating protections afforded from the 11,586 registered lobbyists in Washington, DC. (and from their many counterparts at the local and state levels). Thirdly, and most importantly, it is the major corporations which can most readily afford and have the capacity to move ethical lines.

And before this author enters the dangerous territory of ethics and morality,  it needs to be noted, indeed under-scored, that this author is a passionate believer in capitalism – albeit sometimes “restrained capitalism.”

The Dangerous Territory of Ethics and Morality

This author knows that he is walking into the dangerous territory of ethics and morality. The subjects addressed in these articles include the context of defining business success, the evaluation of certain business practices, and some rough suggestions for the establishment of certain ethical boundaries for the conducting of business in our society. Most importantly, these subjects are discussed in the hope of restraining the misuse of leverage and, very bluntly, the sometimes knowingly wrongful assertion of certain legal rights and remedies.

However, once again, this article is not written from a place of piety. I stopped counting my mistakes many years ago. Partly, I just ran out of numbers. Over my accumulated years, I, possibly like you, have look back and see my mistakes. I remember my opportunities lost and the roads not taken. I, to, reflect upon the things not said; thoughts poorly expressed, and words poorly chosen. And on and on it goes.

But personally and for my own preservation, I have stopped counting my mistakes and started counting my blessings instead. It is not a perfect system, but sometimes it works.

But despite the fact that ethics and morality are dangerous territories for any writer, it is here suggested that ethics and morality in our private and commercial business dealings – must be elevated.

All Might Be “Fair in Love and War”

But “Anything Goes” Cannot Be the Standard of American Business

 – Even in Our Darwinian Economy –  

Anyone who has read Carlos Baker’s biography[iii] of Ernest Hemingway knows that Hemingway was no prince. And he certainly was no St Peter. But in his later years, he was interviewed by a young reporter from the Kansas City Star. The young reporter asked Hemingway what his definition of “ethics and morality” was. After a long pause (and probably a few more glasses of wine), Hemingway said that he didn’t really have a definition of “ethics or morality.” But he said the closest he could come to a definition was that if he felt good after he did something, it was probably moral. If he felt bad, it was probably immoral.

And I suggest that even by that low definitional standard of ethics and morality, American society generally and many American corporations specifically are not doing well.

It will be a long, long way forward to a more ethical and moral society, but at a certain point we have to start unlocking our doors. As a society, we cannot long subsist on a diet of “Amber Alerts” and “stranger danger.” We cannot sit for hours trying to reach a human voice when we call the 1-800-Customer-Service line. We cannot endure sleeping at airports due to wrongly cancelled flights. We cannot have our health insurance claims routinely denied by the insurance companies because they know that only a small percentage will be appealed. We cannot spend our nights toiling over the fine print in our contracts. We cannot sign our lives away by God-knows-what-it-says “Click To Agree” terms and conditions. We cannot tolerate vaping companies marketing innocent-sounding Candy Crash, Watermelon, and Razzleberry nicotine to our children. We cannot allow drug companies to peddle drugs to our country through the mechanisms of thinly-veiled bribery schemes with our doctors. We cannot allow banks to bury service charges or open accounts in our name.  And on and on.

Furthermore, wrongdoing, even if technically lawful, must be called out. It must be loudly and consequentially condemned. Conversely, “good doing,” especially if not legally required, must be advertised, communicated, and commended.

The salvation of a supposed contract or a de facto “agreement,” sometimes should not be enough.

Even Contracts and Legal Codes Are Not Enough

Every law student, on or about day one, is taught that an oral contract is not worth the paper it is not written upon.

Every law student, on or about day two, is latined-up with the concept that caveat emptor (or “buyer-beware”) is the bedrock of all of our buys and sells and, basically, all contractual dealings in our life.

And I am a lawyer. I respect the need for written contracts. I know the importance of memorializing the details of our agreements. I appreciate the sobering significance of one’s signing upon the proverbially dotted-line. Over the years, I have even published articles on the importance of “boilerplate” provisions in contracts.

But even in our papered-up, buyer-beware, “as-is,” click-here-to-agree, no refunds, dog-eat-dog, Darwinian economy, capitalism needs restraints. And the cold legal codes of our many jurisdictions are not enough for us to live in a decent and fair society.

“Unfettered capitalism” has been rejected since the beginning of the Industrial Revolution. “Unfettered capitalism” was feared even before Upton Sinclair, Ida Turbell, Frank Norris and the other muckrakers of the Progressive Era (1890-1920). The needs for the protection of the American workers were known long before the rise of the union movement in the late 19th and early 20th Century and before the formation of protective agencies such as OSHA in 1970. The paralleling needs for the protection of individuals, consumers, families, communities, and our environment are too numerous to name, but they have been known for decades as well.

But even with all of the laws, rules, and regulations (and I readily admit that there are too many of them) which supposedly define the minimum parameters of our business, employer, consumer behavior and inter-actions, legal codes (e.g. federal, state, and local) cannot be the sole basis for defining behavior. They should not even be the primary bases for defining behavior. They, at best, can serve as socially-defined minimum standards of behavior. They, at best, can define the baseline requirements for our societal interactions.

Why? Because our communities need more. Daily living needs more. Again, ethics and morality cannot be defined by our laws. Thus, it is one’s social duty to try to live within the admittedly hazy boundaries of ethical and moral behavior. And even in the context of our business dealings, ethics cannot be reached by one’s mere compliance with technical legalities; by the filing of necessary papers and reports; or by cold compliance with the fine-print portions of documents, contracts, and rules and regulations. It crosses my mind why United States Chief Justice Earl Warren shocked the world when, in the midst of oral arguments before the Court, he would routinely ask “but is it fair.”  Possibly you and I understood what he was getting at. The parties before his court too often and too sadly did not even understand the relevance of his question.

Stated again, ethics and morality cannot be saved for Sundays, family and friends. America has gone a long ways down its road, but the relentless divergence between our personal and familial ethics and our business ethics can no longer be tolerated. Like our echoing voices of our grandmothers, staying out of jail is not enough. Behavior matters.

Similarly, ethics and morality cannot be written off with a “nothing personal” remark. “It’s just business” cannot be allowed to whitewash inflicted pain. That line might have sounded good in Scorseses’ Goodfellas, but it does not work in our real lives.

In a community, even in our large national social and business community, ethics and morality are ideally required of every citizen. Ethics and morality have to be served up regularly and routinely. And ethics and morality should not be allowed to be monetized or supplanted by the mere making of (tax-deductible) charitable contributions. Charitable giving is are wonderful, but it is not enough. Think of it this way — rarely does even a large tip justify the loud and obnoxious behavior of a patron or assuage the feelings of an offended waiter.

So where does all of this go?

So what does all of this mean?

Simply put, the sad truth is that the world is tough place. But it would be good, and now I believe it is at a point of necessity, for handshakes to, once again, mean something. It would be good if one’s word would more often be viewed as sacrosanct. It would be good if corporations conducted their business and marketed their products (and in some instances even their prices) based upon ethics and morality rather than (mere) legal compliance.

America is not New Guinea. It is our behavior, not our physical environment, which is turning America into a jungle.

We Thought It Was Just a Movie Line

When we first heard Michael Douglas proclaim, in his role as Gordon Gecko in Oliver Stone’s 1987 movie Wall Street, that “greed is good,” we thought that it was merely, or at least mostly, a movie line. Few of us even then, mid-way through the boom-boom 1980s, thought it would become the over-arching ethos of our society. Heck, the movie also starred Charlie Sheen. Were we really supposed to take it all seriously? Were we really supposed to adopt this line as our mantra for conducting business; as our manner of conducting our lives?.

I suggest no.

It doesn’t help that ethics and morality can be so complicated. But, complicated or not, they are too often the missing ingredients in our communities and in the conducting of our nation’s businesses. Again, they are too blithely dismissed. They are too regularly ignored. Instead, lies are told. Rules are bent. And worst of all, too little is expected.

And so some of the articles which will be forthcoming over the next months will address many, more specific aspects of these issues. The articles will be humbly offered for your patient consideration. Examples of just a few of such future topics are as follows:

The Broader Obligations of Businesses.

The Obligations of Corporations. What are the too-often-neglected obligations of businesses towards this country, its peoples, its customers, and its employees?

The Dangers of Two Personas. Is it possible for a society to long survive when an individual can embody two personas — one for work and business and one for Sundays, family, and friends?

The Politicization of Our Courts. How is it that we have devolved from the famous “but is it fair” questioning of the Earl Warren Supreme Court (1953-1969) to the politicized, 6-3, 5-4 baseball scoring of our current Supreme Court? Why does every reporter feel a need to identify a judge as a “Bush-, or an Obama-, or a Trump- appointee?  It didn’t used to be that way.

The Ethical Obligations of Attorneys and The Abuse of Legal “Tools.”  What are the socially ethical obligations of attorneys as they craft documents, advise clients, and file or defend lawsuits?  What have been the real impacts of attorneys and businesses too readily using certain legal “tools” such as the threat of litigation or the filing of bankruptcy as mere mechanisms of leverage? Obviously attorneys seem not to live by the “do no harm” ethos of doctors, but should there not be some stronger ethical boundaries beyond the rampant demands of our clients? Are there and should there be moral limitations?

A Matter of Choice. Most importantly, is it not a matter of our choice as to whether we would rather drift further into our Darwinian economic jungle as opposed to enjoying a national and more civil(ized) community? Tolerance and individualism are powerful component of American life. They have a rightful place. But so does leadership – by example or otherwise.

 Closing

– Maybe We Can Agree and Some Cautious Reasons for Optimism –

As noted above, this author certainly has no corner on the truth. Never had it. Never claimed it. But maybe we can agree that we don’t need to be right in order to be concerned. Maybe we can agree that it is time to step back and reflect – “to stand still until we really see.”

And though there are reasons for concern, there are also reasons for optimism — because we can do better.

My next article on this subject will focus upon the broader obligations of businesses and the meaning, the sometimes dangerous consequences of the current five-word mantra of American business life – “A deal is a deal. “

FOOTNOTES:

[i]     TaxFoundation.org and US Census Bureau.

[ii]     This is most frequently done by such major corporations either individually or through membership and participation in corporate or industry lobbying organizations.

[iii]    Baker, Carlos, Hemingway: a Life Story (1969).

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