Sandusky’s Lawyer & Business Ethics

Just like a defence lawyer in a criminal trial, a CEO has a specific goal to achieve. The CEO’s goal is to turn a profit, and it’s a goal rooted as much a duty to society as it is a duty to shareholders. And, importantly, when it comes to both defence lawyers and CEOs, you don’t have to agree with their goals in order to value the role they play in the larger system.

The trial of former football coach Jerry Sandusky illustrates what I’m talking about.

Jerry Sandusky’s lawyer has an unenviable job. His job is to defend—vigorously and wholeheartedly—a man that pretty much everyone else has already assumed is guilty.

Joseph Amendola, lead defence lawyer for Sandusky, has taken on the task of defending the former Pennsylvania State University assistant football coach against 52 charges of child sexual abuse. In the minds of many, this makes Amendola only slightly less worthy of scorn than his client. After all, how can anyone seriously defend a man against whom there is so much compelling evidence?

The catch here is that we cannot evaluate the ethics of a defence lawyer without looking at the bigger picture, and the bigger picture is the adversarial system within which the defence lawyer operates. Amendola isn’t just some guy defending a child molester; he’s a defence attorney playing his part in a system that places very specific ethical obligations on defence attorneys.

The point here isn’t really about the legal system. The point is that the people who play a role in a system don’t necessarily have to pursue the goals of the system directly. In fact, in some cases that would be downright counter-productive. Let’s assume, for example, that the goal of the criminal justice system is precisely what the name implies: justice. The fact that justice is the goal of the system absolutely doesn’t imply that every participant in the system has to pursue justice. Compare: a football team’s objective is to get the football into the opponent’s end-zone. But that doesn’t mean that every member of the team is trying to get the ball across that line. An Offensive Guard who focused on moving the ball would be failing at his job: his job is, pure and simple, to protect the quarterback.

What’s important in any complex institution—football team, system of justice, or a market — is that every ‘player’ do his part. Then if the institution is designed reasonably well, the sum total of the actions of various ‘players’ will result in the system that performs well as a whole. If all the players on a football team do their jobs well, the ball moves forward toward the end zone. If all the lawyers in a system of criminal justice do their jobs well, then more often than not the guilty will be punished and the innocent will go free.

So, Amendola is duty-bound to make Sandusky’s interests his first priority. But the reason is not that Sandusky deserves it. The reason is that the system as a whole requires it. The adversarial legal system can only have any hope of rendering justice if the parts of the system diligently play their roles.

The exact same principle applies to the profit-seeking behaviour of CEOs. As Joseph Heath points out in his scholarly work on this topic, the profit-seeking behaviour of companies is an essential element of the pricing function of the Market. When companies pursue profits in a competitive environment, it helps drive prices toward market-clearing levels. This helps ensure that supply of and demand for a given product settle at the socially-optimal level. So it is important, not just to shareholders but to society as a whole, that companies pursue profits. That is how companies and their CEOs play their role in producing the social benefits that flow from the market.

Of course, in the case of both defence lawyers and corporate executives, the obligation to pursue partisan goals is not unlimited. There are certain things you cannot do as a defence lawyer—suborning perjury, for example, or tampering with evidence. Such behaviour would reliably subvert the goals of the system. Similarly, there are things that an executive must not do in pursuit of profits. Figuring out which things those are—what the limits are on competitive behaviour in an adversarial market—is the very heart of business ethics.

18 comments so far

  1. Carol Sanford on

    Elegant and meaningful description of the roles played to make systems work. That for making it transparent. Still makes you cringe sometimes for sure, but is better than the alternative so far.

  2. jpbauer on

    I agree with Carol’s summary of your blog – “Elegant and meaningful description of the roles played to make systems work”.
    As their are different system’s of justice around the world, so are there different corporate laws and related regulations which govern the behavior and conduct of companies and their officers, agents and employees. We must keep in mind that our law makers have the power to tweak the laws to regulate undesirable conduct and activity of its constituents. This applies equally to the justice system as well as to the country’s commercial and corporate laws.

  3. Constant Geographer on

    I’d like to see your analogy played out in terms of “justice” versus “fairness.” I tend to think people conflate the terms and use them interchangeably when they are really very different.

    • Chris MacDonald on

      I’m not sure I understand the question. The only role justice plays in the analogy is that that is the goal of the criminal courts.

      • Constant Geographer on

        People often say “thats not fair” when they fell slighted or a decision has not gone the way the person felt the decision ought.

        For example, some legal judgments against corporations or Wall Street which affect hundreds or thousands of people result in probation or a few years of jail time. Sentencing is performed using current legal statutes.

        In comparison, some non-violent drug offenders are sentenced to 25 yrs or more for offenses. Again, sentencing is carried out according to laws on the books.

        In both cases, the sentencing is just; the sentencing is carried out according the law, so the Justice System works.

        But are the sentences fair? Does a non-violent drug user deserve a greater punishment than a stock trader or financial manager who has disrupted financial markets and affected real livelihoods in quantitatively measureable ways?

        Above, you state (hypothetically) the goal of the Justice System is Justice. Fairness, on the other hand, is not necessarily a goal.

      • Chris MacDonald on

        Since the relationship between justice and fairness is controversial, the distinction you’re after might be better described in terms of the difference between procedural and substantive justice. OJ Simpson probably didn’t get what he deserved, in terms of substantive justice, but he was found not-guilty by a jury of his peers, so we unfortunately have to admit that, as a matter of procedure, justice was served.

  4. Daniel on

    Dear Chris,

    One difference between lawyers and executives is that lawyers have clear and detailed codes of conduct – their practicing rules and bar rules. Corporate executives do not have anything comparable. You note in your final paragraph that the purpose of business ethics is to determine what is, and what is not, acceptable for executives to do in the pursuit of profits. Perhaps what is needed – extending your analogy – is clear rules for executives akin to those which lawyers are required to adhere to. Then executives would presumably waiver less often in conducting business in a socially useful way.



    • Chris MacDonald on

      Sure, there are lots of differences. But I’m not arguing for the professionalization of management. In fact, I don’t think that’s workable.

  5. Hajo Gscheidmeyer on

    I do not by any means share the views outlined in this the essay!
    I think there is a clear difference in the roles compared and hence they are not as equivalent as described in the essay. Whereas the defense attorney with 1st priority is devoted and clearly responsible to the law (and only then and only through this lens towards the interests of the accused person!). The attorney is part of the system of the division of the tree important powers in modern society (legislative, judicative, executive). There is now such privilege and clearly defined professional social duty in the case of the CEO, albeit his/hers »Executive« role. Being paid to serve justice or being paid to make money is the difference it can be boiled down to.
    And that difference to my opinion is big and obvious enough to make the comparison offered to a comparison between apples and pears.

    • Chris MacDonald on

      The key to the comparison is that both have roles to play in a larger system. And no — although it might be different in different jurisdictions — a defence lawyer’s first obligation is NOT to justice. If that were the case, lawyers would have to turn in clients who they believed to be guilty. In North America, at least, that sort of thing would likely result in disciplinary action or loss of license.

      • Hajo Gscheidmeyer on

        Dear Chris,
        the so called »larger systems« are completely different an not comparable (Why: see my last sentence below).
        And you can be guilty in very different ways; there may be excuses, minimizing the degree of crime and hence the sentence to be found.
        So the defense lawyer has to my opinion not to turn in the guilty, but to defend him/her in the best way according to law and according to the facts and circumstances. The judge/the jury has to make the decisions.
        So I keep up my thesis: Where the CEO has to have success in economy of his enterprise only, the lawyer serves the idea of justice as part and on behalf of the entire society.
        Best regards

      • Chris MacDonald on

        Let me try again:

        Both CEO and lawyer play a role in a larger system.
        Both are (and should be) guided primarily by a narrow goal that is different from that of the larger system.
        Both are limited, however, in their pursuit of that narrow goal. Neither the lawyer nor the CEO is morally permitted to pursue narrow interests without limit. Both have to play by the rules of the game, and the rules of the game are best understood as those rules that best promote the goals of the system as a whole.

      • Hajo Gscheidmeyer on

        Dear Chris,
        I get usually deeply suspicious, when it comes to »the interests of a system are per se of higher value then the interests of an individual« (be it a lawyer, a CEO or just you and me). I would say, this depends very much on the interests and the circumstances.
        Not by chance but on well considered purpose have we got human rights,which protect the individual against any unjustified dominance of »a system«. And your statement, “the lawyer/CEO is following narrow interests, not the interests of the system” is just a proposition and not testified reality either.

      • Chris MacDonald on

        I didn’t actually say that the interests of the system are of higher value than the interest of the individual; nor does my argument depend on such a claim.

  6. Jilly on

    One thing is missing from your very interesting analysis: the fact that the justice system depends on the concept of innocent until proven guilty. In spite of the media coverage on this particular case, it appears that Mr. Sandusky was legitimately proven guilty. But technically, until that decision was taken, he was innocent, and deserved all of the assistance that an innocent person can get under the law. The public attitude toward his lawyer is the result of a failure in education on a more basic level than your analysis implies. Innocent until proven guilty is one of the great advances in human rights in history. And in a limping, imperfect and variable way, the ideal is still upheld in the legal system.

    The basis of the capitalist system is that the market is “free,” the implication being that purchasers can have a real choice, and can make it on the basis of price, and of “externalities” such as corporate responsibility. Given the concentration of corporate power, the influence of corporation lobbyists on government, and the profound failure of regulatory agencies on every front, how well is this ideal upheld in the economic system?

    • Chris MacDonald on

      Even if defendants were not “innocent until proven guilty,” the role of the defence lawyer would arguably still be the same. They’re separable issues.

      • Jilly on

        I agree that they are separate issues. My point was that one system appears to be working, however imperfectly. I question whether the same can be said of the other. If I am correct, which I will certainly admit is not a certainty, then the comparison may not be a valid one.

  7. Hajo Gscheidmeyer on

    Quote: »Both are limited, however, in their pursuit of that narrow goal. Neither the lawyer nor the CEO is morally permitted to pursue narrow interests without limit. Both have to play by the rules of the game, and the rules of the game are best understood as those rules that best promote the goals of the system as a whole.«
    Dear Chris, what does the quote mean, if not that the larger system dictates the rules and hence is of higher power/value than the narrow one?

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