Chapter Goals

• Understand why law does not establish morality
• Define duty
• Define prima facie duty
• Distinguish between positive and negative duties
• Distinguish between different uses of the term “fiduciary”
• Define the fiduciary relationship between professionals and clients
• Understand the range of duties associated with the fiduciary relationship
• Contrast fiduciary, paternalistic, agency, and contract relationships
• Understand the limited role of paternalism in professional relationships

2.1 Partnership

Suppose you are going you move to a new town and must locate a new doctor, or accountant, or you need to work with the local public school because your child has special needs. When you meet with them to discuss your needs, what do they owe you? That is, what must they do for you if they are ethically responsible professionals?

This chapter assumes that, normally, the answer is based on a specific kind of professional-client interaction: the fiduciary relationship.The professional and the client work as partners to address the client’s problems. (Unless otherwise indicated, the chapter assumes that the client is a competent adult.) In this partnership, the professional is an advisor who shares technical knowledge and the client retains responsibility for any decision-making about their own situation. This ideal of partnership reflects the foundational belief that competent individuals should be granted the maximum autonomy in their dealings with others, including their dealing with professionals.

The process normally begins because the client recognizes a problem—why do I feel dizzy? Why does my child have such difficulty reading? What do I owe on my taxes? How can I mend my broken relationship with a family member? The client shares relevant information about their situation, values, and goals with the professional, who offers an analysis of the problem and possible solutions. The professional’s analysis of the situation may not be what the client expects. If the client endorses one of the proposed solutions, the professional will generally assist the client in achieving that solution, or will put the client into contact with someone who can do so.

The heart of the partnership is the open and honest sharing of information, focused on a client’s needs and the professional’s goal of doing what is best for that client in relation to their needs. This process requires professionals to create an environment in which clients will feel that they can be honest without being judged. (Guilt, shame, and fear of being morally judged prevent many clients from giving professionals important information.) However, needs must be distinguished from wishes and desires. A client’s wishes do not always align with any actual need that the professional has a duty to address.

The main goal of this chapter is to introduce the idea that professionals have special duties relating to their role as expert advisors. A secondary goal is to outline a set of basic duties of a professional who is in an advising relationship with a client. Alternative, non-advisory relationships will also be explained and evaluated.

2.2 Legally right versus morally right

What is legally permitted and what is morally right are not always the same. Furthermore, some morally correct action is illegal in many places.

Consider the following situation, which closely follows a true story. An adult married woman with two children is concerned that there has been a failure of her usual method of birth control. She and her husband agree that she should use “Plan B” or “morning-after” contraception, that is, a drug that will prevent pregnancy if taken within 72 hours of sexual activity. The woman lives in a rural area and the nearest pharmacy is 10 miles from her home. It is January and there is heavy snowfall and very poor visibility, but she drives to the pharmacy despite the “no travel advised” warning that is in effect for the area. When she gets to the pharmacy, she learns that the medication is kept “behind the counter.” (Although the medication does not require a prescription, it is not on the shelves where everyone has access.) She is shocked when the only pharmacist on duty informs her that although the pharmacy has the medication, he will not dispense it because his religious beliefs oppose the use of birth control. She asks him when a different pharmacist will be on duty, and she learns that he is the only one working there for the next two days. He advises her to wait until the snow storm passes and then to go the next nearest pharmacy, about 20 miles away. “But I know the pharmacist there,” he says, “and he probably won’t give it to you, either.” The woman drives to that pharmacy. When she gets there, she learns that they do not keep “Plan B” drugs in stock.

Although the example provides the basic details of a situation that unfolded in Minnesota in 2019, variations of this scenario are not uncommon. In some states, what the pharmacist did was legal and protected by state law. In other states, there is no legal protection for pharmacists who claim the right to decide that women cannot have birth control or Plan B. In these states, women sometimes sue for damages when the drug is denied. However, even when there is no legal protection for refusing services, many juries made up of ordinary citizens have favored the pharmacist rather than the woman. But is it right for any professional to refuse to provide services that are considered to be a normal and routine service in their profession? Is it right for a professional to refuse to help an individual who seeks a completely legal service, simply because the professional does not support it?

There are two distinct issues here. First, how does legality relate to morality? Second, can it be morally right for a professional to impose their personal values on their clients?

This book concentrates on morality, not legality. Before he was president, Abraham Lincoln was a lawyer. Early biographies of Lincoln contain a story about a situation where Lincoln refused to file a lawsuit for a potential client because the man’s legal claim was doubtful. Although Lincoln thought he might be able to win the case, he rejected it, telling the man, “You must remember that some things that are legally right are not morally right. I shall not take your case.”

Many people assume that the law sets the basic ethical standards, and that a professional is acting ethically as long as they do not break the law. Thus, some people will argue that as long as Lincoln broke no laws in supporting the man’s claim, there would be nothing wrong with it. Likewise, this way of thinking supposes that if Minnesota does not have a law requiring a pharmacist to dispense a medication, a pharmacist would be just like Lincoln: the pharmacist does nothing wrong in denying the woman access to the medication. Others will look at a state such as Texas, where the law explicitly gives pharmacists a right to refuse services if providing the service is contrary to their moral beliefs, and will again conclude that it is morally allowable for a Texas pharmacist to deny birth control to a woman there.

However, the focus here is morality, and the law is not an adequate guide to what should or should not be done. Why not? Because it cannot be the case that simply changing a law or crossing a border can change immoral behavior into moral behavior, nor vice versa. For example, it is only very recently that many states in the U.S. have recognized a problem with the traditional view of “spare the rod, spoil the child.” That is to say, it was traditionally acceptable to beat disobedient children with belts, switches, and other objects, and there were no laws against it. Nonetheless, it is now generally recognized that using “the rod” is child abuse, and that physical violence in the name of punishment is a major source of trauma. But hitting children until they have welts or broken skin did not become immoral because it became illegal. It’s the other way around: it became illegal because social workers and other child care advocates made people understand that it is immoral. In other words, the view adopted here is that society was previously misguided but now has a better understanding of how children should be treated. Until recently, the law wrongly protected immoral behavior when punishing children. In fact, laws still permit teachers use corporal punishment on children in 17 states, and it is legal in private schools in the majority of states. But, again, the same behavior cannot be moral in a private school in Iowa while immoral in a private school in Minnesota simply due to state line on a map. Laws are place-specific, but it is a basic assumption about morality that it is not place-specific.

A parallel point can be made about many other practices, including ones involving professionals and their clients. A law that protects pharmacists who refuse to dispense birth control and “Plan B” might be protecting immoral behavior. To consider another health-related example, the idea that health care professionals must get informed consent from patients before giving them care is relatively new. Similarly, until the 1980s, medical research was routinely conducted on patients without their consent and without informing them that they were research subjects. U.S. law was slow to recognize that patients have a right to know what medical professions are planning to do to them, and a corresponding right to refuse care. In fact, the phrase “informed consent” does not appear in any American legal document until 1957 (in the case of Salgo v Leland Stanford Jr University Board of Trustees). (For more on informed consent, see Chapter 5.)

The evolving recognition of the need for informed consent captures an important contrast in two approaches to professional-client interactions. In the past, the superior knowledge that comes from professional training was interpreted as supporting paternalism. Derived from the Latin word for father, paternalism is the doctrine that someone’s father, or another male authority figure, has the right make life-altering decisions about other family members without discussion or consent. Professionals were seen as father figures who had the unquestioned power to decide how clients should be treated. However, paternalism is not a simple application of control over the lives of others. It is supposed to be balanced against a duty to care for the weaker, dependent person. The person who is in control is supposed to be guided by the duty to benefit the weaker party. (Because research demonstrates that corporal punishment does not benefit those who are punished, and causes both physical and mental harm, it cannot be a legitimate option for adults to use when punishing children.)

As resistance to paternalism in professional life increased, an alternative model of professional-client relationships became standard. This approach is the one referenced in Section 2.1. It is the fiduciary relationship, where the professional assumes an advisory role instead of making decisions and imposing them on the client “for their own good.”

Since the 1970s and 1980s, all professions have come to understand that paternalism is unethical in standard professional-client relationships. Here, we are understanding a “standard” relationship to be one in which an adult client who has basic intelligence seeks the help of a professional. Granted, there are many situations where the client does not voluntarily seek help, or is a child, or is an adult with mental deficiencies that limit comprehension. Someone with addiction issues may be ordered by a court to undergo addiction counseling or therapy, and a child in an elementary school does not get to select which subjects will be taught. These are examples of appropriate professional paternalism. And laws that give individual pharmacists a right to control women’s access to birth control seem to be protecting paternalism on the part of pharmacists. However, we will set this topic to one side for now and will begin with the standard model, which opposes paternalism except when clearly justified.

Why is the distinction between paternalistic and fiduciary relationships so important? Because although they both endorse a core duty to act in the best interests of the client, many other professional duties are different in the two relationships. Some behavior that is morally correct under paternalism is immoral in a fiduciary relationship. Therefore, it is important for both professionals and clients to understand the differences.

2.3 The concept of duty

This book adopts a duty-based approach to professional ethics. Not every professional has precisely the same duties in relation to every client. Before getting to this idea, we must address the basic idea of duty. (Other words for this are responsibility and obligation. Some people claim that these refer to slightly different things, but that level of hair-splitting is beyond the scope of this book.)

• A positive ethical duty requires the person to do something for someone, giving support in some specific manner.
• A negative ethical duty means that you are required not to do something to someone. A negative duty is a duty of non-interference.

Notice that duties are action-oriented obligations or responsibilities. For each duty, a corresponding type or class of actions is either required or prohibited.

For example, if you own your car, then it is your property. Therefore, others have a duty of non-interference. Everyone else has a duty or obligation to leave it alone unless you give permission otherwise. Generalizing, property ownership creates negative duties for other people. If someone drives away in your car without permission, they have stolen it, which is to say that they failed to uphold their negative duty to leave it alone. However, this duty is not absolute. There are exceptions: the negative duty can be removed if you fail in your own duties. If you park the car where the city has posted “No Parking,” then the city may tow it away. If you fail to pay your loan, the loan company can repossess it.

Consider the contrasting case of parenting, which is importantly different from car ownership. Ethically, it generates many positive duties. True, it generates some negative duties other people: for the most part, other people should not interfere. However, it places positive duties on the parents. Unless there are good reasons why someone else should substitute for a child’s parents, the parents have primary responsibility to provide for all of the child’s basic needs. They must protect, nourish, and educate the child. When someone else has temporary responsibility for a child (such as when a child is at school), another adult can be acting in loco parentis. That is, the other adult is, for that time, charged with fulfilling the positive duties of the child’s parents. When a child’s parents prove to be unfit or unable to meet their child’s basic needs (or, perhaps worse, are direct agents of harm), another person may have to step in to serve as the child’s guardian. Notice that the professions of law and social work play key roles in custody determinations in contemporary society.

This book is based on the idea that professional conduct is guided by a mixture of positive and negative duties. Typically, each professional has a positive duty to educate and advise their clients in assist a client in arriving at a determination about their best course of action. A typical negative duty concerns client confidentiality: the professional should not share information about clients with others.

At the same time, these duties are best understood as prima facie duties. “Prima facie” is Latin for “first look” or first impressions. The point is that first impressions can be deceptive. For example, if you go to lunch with a friend but realize you are low on money, you might ask your friend to pay, and promise to pay for lunch next time. Your promise creates a prima facie positive duty to pay next time. It is a positive duty because it dictates that there is some action you need to take. Adding the phrase “prima facie” indicates that you would be morally wrong not to fulfill your promise, unless something much more important arises that interferes with doing so. (Generally, this will mean that there is a conflicting duty.)

For example, suppose that the next time you have lunch together, you get a phone call in the middle of lunch saying your spouse has been taken to the hospital following a car accident. You rush out of the restaurant without thinking about the promise to pay. No one will think that you were immoral because you left without paying. This kind of case suggests why we do not want to regard duties as absolute, that is, as never having any flexibility or justifiable exceptions. We often find that we have conflicting duties, and life would be unmanageable if the duty to keep relatively trivial promises was treated as equivalent to our positive duties to our loved ones and family.

In practice, a conflict between positive and negative duties can pull a professional in opposite directions, creating ethical conflicts. One duty will recommend one course of action, while another duty prohibits it. This is an additional reason why it is important to see that our duties are not absolute. We must sometimes relax our adherence to one in order to fulfill another.

For example, Chapter 6 explores the professional duty of confidentiality—that is, the duty to keep information about the client private and secure. If we think this duty is absolute rather than prima facie, then laws requiring some professionals to report certain information about clients (e.g., concerning crimes and physical abuse) must be immoral laws. However, seeing confidentiality as a prima facie duty means that some circumstances will justify a violation of the promise of confidentiality. The moral challenge is to identify when a situation justifies a violation of the standard duty. This is another topic where laws vary, and where it is plausible to regard some reporting laws as immoral interference with professional conduct. (See Chapter 6, Section 6.4.)

These points can now be aligned with the points made in the previous section about legality and morality. At best, legal duties establish a bare minimum of what must be done to have an ethical relationship with clients and the larger community. For example, professionals often speak of a “duty of care” or “standard of care.” This is a legal concept that indicates the presence of both a positive duty (the duty to benefit the client) and a negative duty (the duty not to bring harm to the client). As a legal term, it is very broad, covering both professional and non-professional business relationships. In practice, it means little more than permission to sue for damages if a professional or business partner commits fraud or generates unreasonable levels of risk of harm to a client, business partner, or investors. But there is limited practical guidance here: it advises professionals not to be negligent, that is, not to provide services that are conspicuously below average for the profession. However, it is left to the courts and to juries to decide when the duty of care has been violated. Furthermore, like so much else, different states have widely divergent legal standards concerning the minimal duty of care. For all these reasons, the idea of a “duty of care” is generally avoided in accounts of the ethical dimension of professional life. It is most often discussed in the medical profession, but only to guide health professionals in how to avoid lawsuits.

Professionals need an understanding of their basic moral duties to supplement their minimal legal duties.

To summarize what has been explained in this section, the central point is that when someone has an ethical duty, we are justified in saying that the person behaves in an immoral or unethical way if they fail to carry out the action specified in that duty. This can be either of two things: (1) a failure to provide support as required by a positive duty, or (2) interference with someone else despite a negative duty of non-interference. Finally, professional duties should be regarded as prima facie obligations. Conflicts can arise between two duties, or there can be unusual circumstances in a particular case, and these complications may cancel a duty that would otherwise be in force.

Given this background, the stage is set to review the standard ethical duties of a professional-client relationship.

2.4 The fiduciary relationship, defined

When a professional deals with an adult client who is capable of independent decision making, the ideal relationship is a fiduciary relationship. Establishing and maintaining a fiduciary relationship, with its associated fiduciary obligations, is the central prima facie duty of every professional. It is referred to as “the fiduciary duty.” It is a duty to do what is best for someone else.

Consider the following situation. After forty years of marriage, a couple plan to retire and hope to move to a state with better weather and lower taxes. However, they will no longer have the health insurance provided by the wife’s employer, which is currently valued at more than $24,000 annually and which they receive tax free. After retirement, the government will provide them with Social Security income and Medicare that covers some of their health costs. However, they will need to purchase supplemental health insurance, and they will have to live on a fixed income. Furthermore, housing costs are likely to be higher than for their current mortgage payments in a small town in rural Minnesota. They also hope to travel regularly in order to spend time with family. Unsure if they can afford this combination of retirement goals, they consult a financial advisor. They ask some of their friends for recommendations for a good one.

However, if they are like most people, this couple probably does not know to ask for a recommendation of a licensed fiduciary advisor. Only about 10% of financial advisors in the United States are certified or registered as fiduciary professionals, such those registered with the National Association of Certified Financial Fiduciaries.

But what does it mean to be a fiduciary advisor? And why does it matter?

This topic can be very confusing. Understanding it requires paying attention to several key distinctions.  Like many words, “fiduciary” implies different things in different contexts. A “bat” can be sporting equipment or it can be an animal. A “second” can be unit of time. But it can also refer to a support person, such as a person who supports a motion in meeting or support personnel in a fight or duel. Or it can be a manufactured product with minor flaws, sold at a reduced price. Similarly, “fiduciary” does not mean the same thing when talking about an accountant or dentist that it means when talking about non-professionals who operate as fiduciaries.

“Fiduciary”comes from the Latin word for trust, and it implies that someone can be trusted when they provide assistance. But it does not spell out the form of the assistance. In some contexts, “fiduciary” actually refers to paternalism. The most common case of this is someone is a legal guardian who is responsible for handling the finances of someone who is not competent to handle these matters. This person is a fiduciary. More generally, when the phrase “a fiduciary” indicates a legal guardian or financial guardian, the fiduciary may make decisions without conferring with the person they are helping. (Some people will be familiar with the related idea of power of attorney, which is a legal document that appoints someone as a legal fiduciary for specified purposes.)

Beware! Except for a duty to benefit someone else, the paternalism established in the legal sense of “fiduciary” does generally forbidden in professional life.

Rather than being fiduciaries (guardians with a power to take action), the normal situation is that professionals establish a fiduciary relationship with adult clients (i.e., they hold a position of trust) without being legal guardians of those clients. What they have in common is the duty to act in the best interests of those they assist. This shared duty is “the” fiduciary duty.

Let’s return to the example of the couple thinking about retirement and seeking expert advice. Unfortunately, American law does not require financial advisors to uphold the basic fiduciary duty to act always in the best interest of the client. Roughly 90% are allowed to operate under a much lower standard. They are allowed to be selective in what they tell clients, and they have no duty to put the client first. For example, many non-fiduciary advisors are paid by commissions. In addition to anything they charge the client, they collect fees for getting the client to invest in specific financial products, and they are allowed to recommend these products even if the client would be much better served by other choices or investments. In contrast, a fiduciary planner has a duty to recommend whatever is best for the client, even if it means lower earnings for the professional. Again, we see that American law often sets a very low standard for professionals: the legal expectations are much less than the ethical ones.

Consequently, the majority of financial planning advisors in the United States are not considered professionals. They do not agree to uphold the most basic duty of professional life, the fiduciary duty. Among financial advisors, only licensed fiduciary advisors can be considered professionals, for they have pledged to maintain a fiduciary relationship with their clients.

2.5 Moving from one duty to many duties

When a professional deals with an adult client who is capable of independent decision making, the ideal relationship is a fiduciary relationship.

Due to the specialized training and privileges of the professional, there is a basic inequality between professional and client when it comes to the professional’s area of expertise. Therefore, the client generally has to trust that the professional is acting in the client’s best interests. It is the job of the professional organization (and sometimes government licensing agencies) to ensure that professionals deserve the trust placed in them by clients, and it is the duty of every professional to maintain standards that will protect the public’s trust in the profession. The importance of trust is why we speak of a “fiduciary” relationship between clients and professionals.

So, what exactly does a client have a right to expect from a professional when they enter into a fiduciary relationship?

A professional maintains a fiduciary relationship with a client by seeking to advance the client’s best interests, and does so by having a dialogue exploring the client’s needs, goals, and values, as well as dialogue to educate the client about potential strategies that will be of benefit the client. Normally, this process leads to a determination of whether the client gives informed consent to some specific service from the professional, such as a particular investment strategy, a medical treatment, or help with an application for a social service benefit.

We begin by assuming, again, that the client is autonomous, that is, can engage in self-determination and can make plans and take action to achieve goals that they select as best for themselves. When working with a minimally autonomous client, a professional has a prima facie duty to respect and enhance client autonomy. (For more on the idea of autonomy, see Chapter 4.) The professional must not assume that the client and the professional share all the same values and goals, and therefore the professional must offer guidance to the client without forcing any decisions or goals on the client.

Fundamentally, the professional in a fiduciary relationship is assisting and advising the client so that the client can determine how to proceed in dealing with a need or problem. The professional should take the client through the progressive stages of needs assessment, planning, education, and informed decision-making. (Where the client is not autonomous and requires a guardian or surrogate, the professional assists and advises that person.)

In working with a client, therefore, a professional will, ideally, satisfy these prima facie duties:

• The process begins with a duty to accurately assess the client’s situation and needs. The professional will interview the client and will determine why the client needs assistance and what the client wants to achieve. The professional, having more expertise than the client, must not assume that the client adequately understands the situation for which the client seeks services. A client’s wishes do not always align with any actual need that the professional has a duty to address.
• The professional should respect the client’s autonomy. In addition to getting information about the problem the client faces, the professional must gain an understanding of the client’s wishes, values, and goals. These should inform (and sometimes limit) any planning undertaken by the professional. For minors and others with guardians, this duty extends to understanding their wishes, values, and goals to whatever extent that is reasonable and possible.
• The professional has a duty to restrict their services to their area of expertise, and has a duty to remain current in current knowledge and practices relating to their area(s) of expertise. This duty is sometimes included under the broad heading of a “duty of care.”
• As appropriate, the professional will supplement standard knowledge and practice by engaging in personalized research that is relevant to the client’s situation and needs.
• Guided by the patient’s values and needs, the professional will identify feasible plans of action addressing the client’s needs.
• The professional will educate the client on the feasible alternatives and will accurately convey the advantages and disadvantages of alternative actions.
• The professional will present all information at a level understandable to a person who is not trained in the profession. The professional should not proceed if there are doubts about the client’s comprehension.
• The professional has a duty to let the client determine which alternative will be selected, if any. (The professional has a duty to ensure that the client is aware of the right to refuse the professional’s guidance or recommendations.)
• The professional will not recommend one plan of action over others unless the client desires that guidance. In other words, the professional should not “push” their own preference on the client. Recognition that the client is autonomous requires letting the client decide which action is best within the range of feasible alternatives.
• If a client endorses one of the alternatives, the professional will help the client to carry it out.
• If issues arise that may change the anticipated consequences for the client, the professional has a duty to inform the client and may need to restart the process of self-determination by the client.

In light of this list of duties, look again at the example at the start of this chapter, where the pharmacist simply refuses to provide “Plan B” drugs. In this case, the pharmacist understands the goal of the woman who has come to the pharmacy to purchase it, but the pharmacist does not approve of that goal. To be clear about it, the pharmacist in the example has a religious objection, not a medical objection. The pharmacist and the client have a conflict of values: one thinks that using the product is immoral, and the other thinks it is moral. In refusing to provide a standard treatment that the profession endorses, the pharmacist rejects the client’s autonomy and also rejects the fiduciary relationship. Notice how this differs from the example of Lincoln refusing to file a lawsuit: Lincoln did so only after conferring with the client and learning the details of the particular case. (For more on the topic of refusing to help a client, see Chapter 4, Section 4.7.)

Given the operating assumption that the professions exist to assist people in specialized areas, together with the assumption that one is not respecting their autonomy if one is forcing choices on them, we can see that serious moral issues arise whenever a professional imposes their own values on the professional-client relationship. At the same time, a framework of prima facie duties recognizes that duties may be suspended or amended when there is a competing duty. The pharmacist in this case sees a competing duty, most likely a duty to value life more than autonomy. Lincoln clearly saw a competing duty to the public that conflicted with his duty to help the client. We will return to this kind of conflict in Chapter 3.

2.6 Complications

The sequence outlined above contains eleven different duties. While many clients expect immediate or at least rapid help with their problems, the proper relationship is normally slowed by the process of analysis, planning, advising, and consent. Except in extreme emergencies, professionals should not take positive steps to help the client until a considerable number of duties have been fulfilled. The surgeon schedules surgery, or the lawyer files a lawsuit, or the architect produces construction blueprints only after fulfilling the duties that lead up to client’s consent to a specific plan of action.

We must also take note that professionals commonly work in teams and have professional assistants. The professional who is responsible for a particular client will often delegate some tasks to an assistant. Lawyers use paralegals. Licensed dental hygenists carry out some work under the direction of a dentist. Supreme Court justices have law clerks who carry out most of the legal research used by the justices. And an elementary school teacher may determine that another professional, such as a speech therapist or a social worker, should work directly with a particular child when addressing a specialized problem. In other words, in practice “the professional” is often a team. This reality can be seen as generating yet another duty. Someone must take responsibility for proper coordination of the activities of the members of the professional team.

Understood as prima facie duties, each of these many duties will be modified according to important variations in the client’s case. For example, if a pediatrician is working with a child instead of an adult, most of the conversation will be with the child’s parent or adult guardian. However, they should keep the child in the conversation to the extent that the child’s comprehension allows them to give input. If an accountant is helping a client with tax preparation, the client may say that they do not want to spend their time hearing about a range of options, and the professional might therefore agree to present only a single option as a recommendation to that client.

In other words, each duty in the sequence of analysis, planning, advising, and consent is subject to complications and justified exceptions. One of the main tasks of professional ethics is to identify these complications and to provide advice about how to deal with them in a manner that is consistent with the core values of professional service. As suggested above, this book assumes that the ethical relationship involves service addressing basic needs while respecting client autonomy.

For example, autonomy generates additional duties. In recent years these are often handled under the general heading of client privacy. Some people who have been trained in certain professions may be surprised to find that privacy is not highlighted in the list of eleven duties. As we will see, privacy is better described as an issue of secrecy and confidentiality. For reasons to be discussed in Chapter 6, client autonomy is normally supported through a promise of confidentiality, and the professional will treat their exchanges of information as a private matter and will not share it with others. However, the duty of confidentiality must be flexible. As a practical matter, few professionals work in a one-person private practice, dividing their time between working with clients and running the business. In the 21st century, if your dentist does not share the details of your treatment with the billing or accounts manager, how will the dentist handle billing, bookkeeping, insurance adjustments, and the other financial aspects of professional practice?

Speaking of finances, there is another complication. Financial incentives can create a conflict of interest. Some of these are captured by the following questions. (For more on conflicts of interest, see Chapter 5.)

• How does the professional benefit financially from interactions with a client?
• Does a professional have a duty to disclose the degree to which a client’s decisions financially benefit the professional? (This issue informs the idea that the professional should not “push” any specific action plan on the client.)
• What if a client cannot afford the action plan that seems best in relation to the client’s needs?
• Should the professional limit the choices offered to a client based on a client’s ability to pay? Or does a professional have a duty to provide services without cost or at a loss if those services are the ones that address the client’s needs?
• More radically, what duty does an individual professional have to those who cannot afford professional services, and what duty does the profession itself have?

Additional complications arise when the client’s goals are in conflict with social norms or when helping the client will harm to others. For example, clients frequently use the duty of confidentiality as a means of hiding behavior from their family and friends. An individual may ask an accountant for advice on how to hide income from their spouse. A city might hire a hydraulic engineer to advise them on how to reduce flooding from rainstorms in high-income neighborhoods despite the fact that low-income neighborhoods face a greater problem. Some cities have gone so far as to seek engineering advice on how to zone land in order to direct industrial pollution toward low-income neighborhoods while sparing higher-income neighborhoods. Is it ethical for professionals to assist in such planning?

Furthermore, different professions will adjust this set of basic duties in different ways, based on what is reasonable for professionals to do in looking out for the best interests of their clients. For example, suppose someone is admitted to a hospital and a hospital employee not assigned to the case sees that the patient is having breathing problems. Unless a non-intervention order is clearly present, that employee is expected to take action to help the patient, and they should do so even if they have not been assigned to that patient’s case If the patient is unresponsive and cannot give consent to medical help, the health worker should proceed without waiting for consent. Switching professions, suppose an accountant sees a problem with a client’s finances in an area the client did not ask about. The accountant should inform the client that there is a problem they should discuss. The health professional is expected to take action in an emergency without engaging in advising and consent, while the accountant is only expected to invite further conversation.

2.7 Paternalism

When one person assumes they know better than another what is in the second person’s best interests, and acts on that belief, the relationship is paternalistic.

The pharmacist who refuses to provide standard, over-the-counter medications to someone who wants them is establishing a paternalistic relationship with clients. However, disapproval of a client’s values is not the only reason why a professional might set aside some of the fiduciary duties presented in the last section. Another common reason is a professional’s overvaluation of their own expertise. After all, the professional is almost always more knowledgeable than the client concerning the issues and solutions in their area of expertise. (This won’t always be true, since a surgeon may need the service of another surgeon, a dentist may need a cavity treated, and so on.) It is therefore very tempting for professionals to confuse their expertise about their field with a parallel expertise about what is best for the client. However, what a client desires can be very different from what a professional considers best.

There are four other common motivations that can encourage a professional to behave paternalistically.

(1) The professional may believe that a particular issue has one good solution, and other solutions are not worth consideration. For example, a gynecologist might provide advice about only one method of birth control to clients seeking it. Or a dentist only offers porcelain crowns to patients with a broken tooth, and refers patients elsewhere if they want a less expensive crown, such as one made from metal alloy.

(2) The professional recognizes that the issue has multiple solutions and is prepared to offer them to clients. However, the professional might think that there is one obvious best choice for a specific client given their circumstances. Therefore, the professional presents several options, but manipulates or withholds information so that the client will accept the professional’s preference for this option. For example, a defense lawyer might overemphasize the risks and expense of going to trial in order to steer the client toward accepting a plea bargain that the lawyer regards as a good deal for the client.

(3) Comparing their own extensive education with the client’s limited knowledge of the subject, the professional concludes that a client is not in a position to make an informed choice. The professional sees no point in explaining things to the client. For example, an accountant is working with a small business owner who shows no understanding of financial statements, tax regulations, or investment strategies. The accountant concludes that the client cannot grasp the advantages and disadvantages of different accounting practices and tax planning options. The accountant tells the client there is one way to proceed, and summarizes the plan without reviewing other options.

(4) In a practice that the medical community calls therapeutic privilege, a professional might decide that a specific client is not emotionally equipped to handle an honest and full discussion of the client’s situation. In order to “spare” the client, the professional censors some information that a client would ordinarily regard as relevant in their decision making. For example, suppose a student is struggling in the second grade and the teacher meets with one of the parents. (Suppose the child’s parents do not live together.) The teacher suspects that the student has undiagnosed attention-deficit/hyperactivity disorder (ADHD), which greatly reduces the child’s ability to stay on task and learn. The teacher recommends testing to determine if ADHD is present. At the same time, the child’s general behavior also leads the teacher to suspect that there may be issues in the child’s home environment that are hurting the child, such as a general lack of adult supervision and poor nutrition. However, because a diagnosis of ADHD can be time-consuming and stressful the teacher decides to leave the other topics for a later conversation. The teacher thinks ADHD is the more immediate educational issue and the parent will be overwhelmed by confronting both a finding of ADHD and the implication that their parenting is part of the problem. (Therapeutic privilege is discussed more fully in Chapter 5, Section 5.5.)

The basic problem with situations (1) through (3) is that the professional deprives the client of informed consent.

Because fiduciary duties are prima facie duties, we must be open to the idea that professional paternalism is not always wrong. For example, an elementary school teacher is normally classified as a professional, yet a first-grade teacher is expected to uphold a basically paternalistic relationship with the children in their care. Most of the time, the teacher directs the children in what they will be doing rather than recommending what they should do. When it is reading time, the school teacher does not advise the child that they should learn to read and then get consent before proceeding with the lesson! And some degree of paternalism continues even with adult learners, such as college students. A college professor will normally construct all assignments and select supporting material and a textbook based on their own judgment about what is best for the students, and will do so without any input from those students. At the same time, we also expect a responsible college professor to engage in some sort of evaluation process that invites student feedback on a regular basis. Furthermore, the larger institutional setting is based on a fiduciary relationship. College students are not forced to be there, and they are provided with advisors who offer direction to students based on the educational goals that the students choose for themselves. Likewise, there is also an element of the fiduciary relationship in the case of the elementary school teacher: teachers have a fiduciary relationship with the parents or guardians of the students.

There is another important way paternalism can be present and acceptable in professional life. The profession, rather than any individual professional, may determine that some options should be excluded from consideration when helping clients. For example, during the COVID-19 pandemic, social media promoted the idea that the drug ivermectin could help people with severe COVID infections. Ivermectin is used by veterinarians as a horse and cow de-wormer. Many people started to ask doctors and pharmacists to provide them with access to ivermectin. In response, the major professional organizations that represent doctors and pharmacists quickly issued statements against its use by humans. (The drug only treats parasites, and COVID is a virus and not a parasite.) As a result, almost all doctors and pharmacist refused to comply with requests for the drugs. (A number of patients then sued their doctors when the doctors refused to give them access to it.) Here, the medical profession interpreted the basic duty of care to mean that they should not fulfill client requests for a non-beneficial, potentially harmful drug. By rejecting client requests for it, the health care profession acted paternalistically.

Later, research overwhelmingly confirmed that ivermectin does not treat COVID. This last point highlights another justification of professional paternalism. If there is not clear evidence of how various options align with benefits and risks, professionals should emphasize client safety, and should reject and withhold solutions that are likely to be more harmful than beneficial.

The ivermectin example is simply one of countless cases where professions have determined that specific services are either worthless or harmful, and advise members of the profession not cooperate in supplying those services despite client demand for them. This kind of evidence-based paternalism is appropriate in professional life. After all, there is no point to expecting professionals to obtain advanced knowledge in a field unless the profession is going to base its own practices on what experts learn about the consequences and risks associated with various options. Professional status is rooted expertise and knowledge. For example, many physicians actually recommended cigarette smoking as a treatment for chronic respiratory problems. When scientific research established that smoking increases the risk of certain cancers and heart disease, the profession reversed its recommendation and advised patients not to smoke. In contrast, the pharmacist who withholds “Plan B” for religious reasons is not operating in this way: these pharmacists are rejecting the profession’s determination that the product is safe and appropriate for clients who request it.

Finally, there is another area where paternalism is appropriate. The core value of expertise leads most professions to set education and other standards for joining the profession. As a group, they dictate what others must do in order to join them in the profession. Expecting a pharmacist to prove proficiency in chemistry and an accountant to prove knowledge of bookkeeping before being admitted to the profession. Social paternalism is at work when society restricts who can offer services as a medical doctor or electrical engineer, but this mode of paternalism is important in safeguarding future clients of these professions. (See also Chapter 4, Section 4.4.)

Summarizing this material, there are some situations where professional paternalism is a justifiable alternative to the fiduciary relationship.

(1) Sometimes the professional relationship involves clients who do not have sufficient mental development, life experience, and self-control to make decisions about their own life and future. Obvious examples are infants and young children, as well as various categories of vulnerable adults. However, the professional is expected to maintain a fiduciary relationship with the guardian if they are not themselves the guardian.

(2) Educators may set minimum education standards for different levels of education, and professions may set standards for entering the professions.

(3) Based on expertise and current knowledge, a profession may determine that some options may be rejected as unsuitable methods for addressing client issues. The profession may prioritize other methods as best practice.

Apart from the three categories just specified, paternalism in a professional-client relationship becomes morally troubling or objectionable when a professional determines what is best for the client and takes action on behalf of the client without the client’s consent.  (Again, we are talking of non-emergency cases of adults with capacity to engage in self-determination about their own futures.)

To offer a seemingly trivial example, suppose that the director of a nursing home dictates that all televisions in the public areas of the home will be locked into news stations, and no game shows or sporting events will be allowed on the televisions. The director does this in the belief that game shows and sporting events are a waste of time, and the residents are better off with news programming. Notice that the director who dictates the television programming is well-intentioned. Paternalism is normally well-intentioned! However, we proceed here on the assumption that, so long as they are not harming or risking harm to others, adults have a right to self-determination about what they do with their own time and to themselves. If the majority of the residents of the nursing home do not want to see news programming all the time, the director’s judgment should not substitute for theirs.

The essential tension is that the professions have specialized expertise that other people lack, yet many people have personal values that lead them to reject choices that many other people would regard as best. The lawyer who is asked to help create a will that will donate all of the client’s considerable fortune to the study of earthworms might think that this is a waste of the money, and might suggest alternative charities. However, a lawyer should assist the client so long as it is clear that the client is making the choice with sufficient understanding. (What counts as sufficient understanding? This topic is discussed in Chapter 4.)

To put it very directly: a professional’s expertise in their professional area does not make them an expert in values. We are a pluralistic society. While professional expertise justifies some paternalistic constraints, each professional should work to further the best outcomes possible for the client, where “best” aligns with the client’s own determination of what is best for them. At the same time, professionals are not individuals acting in isolation from each other. Working collectively through professional organizations, each profession should work to promote and uphold the fiduciary ideal, which may dictate prohibitions against outdated, illegal, and overly risky client requests.

2.8 Two other kinds of relationships

Consider a variation of the example that opens this chapter. The woman drives through the threatening weather to the pharmacy, finds the “Plan B” treatment on an open shelf next to other over-the-counter contraceptives, takes it to the cashier, purchases it, and drives home. There is no interaction with the pharmacist.

Agency

In this scenario, the woman’s relationship with the pharmacist is an agency relationship. The professional simply does as the client wishes, which is to stock the shelves with products the client wants to buy. The professional simply sells a service that permits the client to move toward their goal. The professional is not an advisor, and does not advise the client about the goal or the best way to reach it. Instead, the professional is simply an “agent” in the core meaning of that word: someone who makes something happen. The expertise of the professional is not used to help select a goal or course of action; these things are determined independently by the client. At the same time, some kinds of transactions are restricted to pharmacies for public safety, and therefore the client needs a pharmacist. In practice, an agency relationship might be understood as impersonally transactional, where there is no duty to engage in dialogue and information exchange.

Anyone who is familiar with the actual use of a pharmacy in the context of the American system of medicine might conclude that pharmacists are very different from other professionals in having an agency relationship with most clients instead of a fiduciary relationship. Compared to pharmacists in many other countries, it may seem as if American pharmacists are basically well-educated shopkeepers.

However, morally responsible pharmacists maintain a fiduciary relationship with clients. This is to be understood by making a distinction: the client’s preference for an agency relationship—buying products without seeking consultation or advice—does not erase the pharmacist’s ongoing availability for a fiduciary relationship. In fact, people who bring a new prescription to a pharmacy are routinely asked if they have taken the medication before and if they have any questions or concerns. This exchange may be initiated by an assistant, but the point is that the assistant is determining if the pharmacist should engage in direct dialogue with the client before selling the medication. In many other cases, a pharmacist will not issue a medication to a new client, or support a new or altered prescription for an existing client, without first establishing a minimal level of dialogue. In this way, the pharmacist verifies patient comprehension and, often, evaluates the risks associated with medicinal interactions. Similarly, pharmacists are available to serve in an advisory, fiduciary role when people buy over-the-counter medications.

Understood in this way, we see that many interactions with professionals will proceed like an agency relationship, with the client “calling the shots,” but only when the transactions are so routine that the professional will not require dialogue and advising before providing or continuing a professional service. Elementary school teachers are generally overburdened with work, so a third-grade teacher is far less likely to initiate conversation with the parents of average and above-average students. Or an accountant prepares the annual tax filing with a client and, finding nothing unusual in it, files it for the client without discussing it with them. But the point is that the morally responsible professional is always monitoring what they are doing for a client, and will initiate in a discussion of problems, goals, values, and strategies as the need arises.

Because the fiduciary relationship is present, we say that the pharmacist has clients, not merely customers. This is a key distinction between the professions and businesses. Because the professions have fiduciary duties, a professional is very different from someone who sells used cars or someone who runs a lawn care business. The car salesperson and the lawn care person might be highly knowledgeable about their products and services, and they might engage in extensive dialogue with customers about their customers’ goals, values, and needs. However, the car salesperson and the lawn care person are not understood to have a duty to place the interests of the client above their own. Like unlicensed financial advisors, they have not violated any duty in relation to a customer if they increase their profits by promoting and providing a product or service that they know to be a poor fit to the client’s needs and goals. There is a Latin expression, caveat emptor (“let the buyer beware”). This is true of customers, but it should not hold for the relationship between a professional and a client. This point aligns with the contrast explained in Chapter 1. The basic purpose of a business is to make a profit for the owners. The basic purpose of a profession is to provide a service to the community by helping people meet basic needs that are addressed by the various professions.

Contract

There is one more kind relationship that should be mentioned, but it can be dealt with quickly. A contract relationship is sometimes established with clients. This contract may include an agreement to cancel or modify the fiduciary relationship. In this relationship, the professional and client come to an explicit understanding—often in the form of a written contract—in which they spell out their agreement to suspend some or all of the standard fiduciary duties. The contract between professional and client might specify that the professional will not take action except as specified, or will not discuss any topic except those specified.

When the contract relationship rejects dialogue and informed consent, the relationship becomes one that looks more like either paternalism or agency. This is most common when one professional hires another professional to handle a routine task, trusts this second professional, and does not want to get involved in the details of how things are handled. When the contracted professional is given a goal and some basic limitations (such as maximum expenditures) and is turned loose to proceed with all the planning steps and the decision making, it looks like an agency relationship. Thus, an electrical engineer might be given a budget and a goal for a new commercial building and will then handle all tasks involving selection and installation of the electrical system. If, instead, the professional is empowered to take over the complete management of something, including the setting of goals and determination of what is a satisfactory outcome for the client, then it will resemble paternalism. In higher education, students must accept educational goals set by accrediting bodies (such as the Higher Learning Commission and Southern Association of Colleges and Schools) without consideration of whether they personally endorse those goals. By enrolling, students enter into a contract, agreeing to pursue these goals. In expecting every student to become scientifically literate and ethically aware, the accreditor introduces a paternalistic contract relationship into higher education.

However, the underlying, basic fiduciary duty remains in force even in these cases: the paternalistic professional is still required to do what is best for the client. The key difference is whether there is a duty to inform, discuss, and get consent before the professional pursues a specific plan of action or provides services. Only an explicit contract in a contract relationship can suspend the basic fiduciary duty.

2.9 Summary

Except in special circumstances, professionals should adopt a fiduciary relationship with their clients. This involves more than the simple fiduciary duty of working in the client’s best interests, which is compatible with paternalism and an agency relationship. A fiduciary relationship requires the professional to avoid paternalism by treating the client as an autonomous individual whose goals and values may differ from the norm and from the professional’s. As such, the professional works to understand the needs and values of the individual client, provides advice, and facilitates the client’s informed consent (which may mean the client’s decision to do nothing). Exceptions include children and adults with mental disabilities or impairments, in which case the advising and consent process is coordinated with a guardian. Other exceptions are competent adults who prefer a contract or agency relationship.