Chapter Goals

• Understand the concern that professional are amoral service providers
• Understand the proposal that the fiduciary relationship demands a suspension of personal judgment
• Define egoism
• Understand responses to proposals about amoral professionalism and egoism
• Define integrity
• Understand how integrity supports the fiduciary relationship
• Understand why loyalty is not a distinct duty

This chapter introduces and explores some ethical complications that surround the fiduciary relationship. In particular, it explores two common objections to the idea that the fiduciary relationship is the ideal model for professional-client interactions. It then examines separatism, which is the claim that professionals are not subject to normal moral limitations on their behavior. These views are countered by the idea that professionals can, and should, act with integrity.

3.1 Amorality

Chapter 2 outlined a fiduciary model of professional conduct. However, a number of people think it sets the wrong standard, because it is unworkable. Obviously, anyone who thinks this way is unlikely to endorse most of the duties that were presented in Chapter 2 in relation to the fiduciary relationship.

Two reasons are commonly given to reject the fiduciary model. The objections share two assumptions. First, they agree that the autonomy of the client should take precedence. Second, they agree that professionals must suspend personal judgments about values in order to maximize the client’s freedom and autonomous decision making. However, the conclusions they draw from these two points are very different.

The first objection says that it is impossible (or at least very difficult) for most professionals to put aside their own interests in order to promote the interests of their clients. This objection to the fiduciary model is psychological. Basically, the objection says that, as a matter of human psychology, the fiduciary model is unworkable. It sets too high a standard because, as the catchphrase has it, everyone is “looking out for number one.” Professionals, too. Professionals cannot, and therefore do not, set aside their own interests in order to prioritize the interests of clients.

The second objection makes a claim about ethical consistency. If the professional has no expertise in values and should work to advance the interests of the client in relation to the client’s values, then how can we trust the professional to judge what is and what is not in the client’s interests? Even if the professional is capable of setting aside or downplaying their own interests in favor of the client’s, can they be trusted to understand them objectively? The professional’s attempts to understand “the client’s interests” will be filtered through the professional’s mindset, which includes a set of values they are trained to adopt. Professionals cannot suspend their own views of better and worse while they think about what is best for the client. Furthermore, professionals are expected to distinguish between what a client needs and what a client wants, prioritizing solutions that address needs. That distinction involves value judgements that will often conflict with the client’s perspective. Why should the professional decide what counts as need versus want in the client’s life? In making this distinction, professionals impose evaluations that frequently diverge from the client’s priorities.

To put it another way, the fiduciary model says that clients should be confident that they will not be morally judged by the professional when they reveal their problems and situation. But how is this possible? The objection says that, as they operate now, this is a false promise. The professions are guided by all sorts of value assumptions. (Just look at their public codes of ethics.) The only way professionals can genuinely advance the client’s interests is to limit their role to dispensing information. Therefore, the objection continues, we should expect a professional to review and explain technical solutions, together with their benefits and risks. But they should do nothing more, thus leaving all evaluation to the client. After that, they should simply do whatever the client specifies.

Both objections conclude that because the professional is supposed to serve the client’s interests, the proper relationship will be an agency relationship. (See Chapter 2, Section 2.8.) If someone wants help lowering their tax liability and wants to claim some legally questionable tax deductions, then their accountant should help with that. At most, the accountant should warn the client of the risks of an Internal Revenue Service audit and resulting fines, but should proceed to help the client who understands the risks and wants to go ahead anyway. If a structural engineer’s client thinks the cost of a project has been needlessly inflated by the cost of a proposed retaining wall, the professional should scale it back to a minimum level that can pass a building inspection, letting the client assume the higher risk that the retaining wall will fail if there is unexpected stress.

Either way, the two objections favor an agency model in which the professional is an amoral helper. By “amoral,” we mean that decisions are made without concern for moral standards, principles, and duties. The first objection says we ask too much of professionals by expecting them to put the client’s interests first. The second says that the professional cannot determine what might count as best for the client if the professional is also supposed to suspend their own values in favor of the client’s. The only honest way to proceed is to help the client pursue their wishes. The professional’s role is that of an assistant who offers multiple ways to satisfy those wishes. In doing so, professionals should set aside their own ethical standards. Professionals reduce themselves to mere agents, serving as a helper for getting something done.

3.2 Responses to the amorality problem

Although these objections share a common concern with putting the client first, neither objection gives us a solid reason for thinking that professionals should adopt an amoral stance.

The first objection is based on questionable psychology. The idea that no one can put the interests of others before their own is known to philosophers as psychological egoism. It has been discussed for centuries, and there are many reasons to reject it as false. The most obvious evidence against it is that there are many people who engage in self-sacrifice, such as the driver who will swerve into a tree rather than drive over a child who runs into the road. More extreme examples are the soldier who volunteers for a “suicide” mission. There are also notable examples of people who knowingly reject something that benefits them, such as deeply religious people who refuse a life-saving blood transfusion because their religion forbids it. However, we need not stress exceptional people and circumstances. Most parents make many sacrifices for their children, most social workers and teachers have knowingly entered professions with notoriously long hours and low pay in order to help society, and millions of people volunteer for military service because they put their country’s needs before their own. Finally, people constantly make all kinds of lifestyle choices that go against their best interests. Bad diets, impulsive actions, smoking, and other self-destructive behavior are all around us.

Egoists often respond to these facts by claiming that all of these people are actually advancing their own interests, because these choices advance the individual’s self-interest as the individual defines their own interests. After all, the egoist says, haven’t we already said that professionals should let the values of the client guide the relationship? Haven’t we conceded that “best” is always to be defined by the person making the choice? Whatever an individual wants, that is the same as what’s in that person’s best interests. When it comes to helping clients, some professionals will think it best for themselves to work to make the client happy. (Doing so makes others more trusting, leading to more paying clients.) Other professionals will be less concerned with public relations and will think it best for themselves to milk the client for whatever they can get in profit. Either way, the egoist says, egoism cannot be avoided, because every professional acts in their own self-interest.

However, this way of seeing things is basically an attempt to redefine our concept of self-interest or best interests. These should not be reduced to whatever one thinks might be of benefit. After all, some people are happier with their lives than others, and people can generally see that this is the case. If it means anything at all, an action is in the interests of a person affected by it when it contributes to their being happier. If we say that people should exercise and watch what they eat because it is in their interest to be healthy, what we mean is that healthy people are happier than unhealthy ones. To the extent that an individual’s interests align with what makes them happy, we can see that people often make bad choices that make them less happy. Best interests cannot be reduced to whatever someone (momentarily) wants. Professionals are people who have expertise about what is effective in dealing with various problems, and therefore they are in a position to objectively comment on what is (and is not) in a client’s best interests.

The egoist has another argument waiting in the wings. Isn’t happiness subjective? A sports fan enjoys the hours spent in a stadium in bad weather watching a college football game, while the same activity makes many people bored and miserable. Or the expensive red wine that one person enjoys can taste like ruined, acidic juice to the beer drinker. The egoist extends this insight to all choices, and concludes that any attempt by a professional to say what is in another’s “best” interests is just an expression of their own subjective preference concerning that situation.

In response, we can concede that different people have different preferences and enjoy different things, but that does not show that we’re in the dark about what will or will not contribute to an individual’s happiness, given their preferences. The egoist’s argument confuses subjectivity with randomness. An individual’s preferences aren’t totally random. You probably have a good idea what your mother will like, or not like, as a birthday gift. If you have a good friend and you know them well, you are likely to be correct when you advise them, “Trust me, you’ll hate this remake of your favorite movie.” Given facts of this sort, it is absurd to think that variance in preferences means that other people cannot ever determine what is in another individual’s interests. We live in a world of cause-and-effect, we can understand these causes and effects, and we can sometimes predict what is in someone’s interests better than they can themselves.

Since predictions about other people’s interests are both possible and common, we should also accept that properly trained professionals can frequently determine what is in the best interests of various clients. This is why a fiduciary relationship based on dialogue: the professional needs to understand the client in order to predict which actions or solutions will align with a particular client’s interests. Furthermore, we have evidence that people can put the interests of others before their own, so we also have reason to allow that professionals can do so, too. If one is cynical and thinks that it is very hard to do this, then that is an argument in support of the idea that the professions should carefully screen who enters the profession and should “police” the behavior of those who practice it. It is not an objection to the fiduciary relationship itself.

Let us backtrack to the goal of the two arguments, which was to support the idea that a professional should be an amoral agent who does not advise the client about what is in the client’s best interests. However, the two arguments were shown to be weak. Furthermore, we can launch a direct challenge to the idea that professionals should not attempt to be anything more than amoral assistants. We can launch the challenge by reminding ourselves of a central premise of professional life, which is that the professions are more than jobs. Professionals do not simply sell their services. The professions are public services or goods. That is, the professions exist to address basic human needs in situations where the average individual does not possess the expertise and advanced knowledge needed for informed decision making. The professions exist to help people navigate these situations. Due to their training, professionals are in a better position than the average person to understand the dangers and misuses of their field, and so must be willing to engage in moral evaluation of decisions that fall within their field of expertise. Rather than abandon the fiduciary model, it is important to demand that professionals pursue it with sufficient integrity. (See Section 3.4 below.)

Chapter 1 said that the professions are organized groups that work collectively to provide essential services to society. Therefore, professional ethics prioritizes social welfare and the public good over all other goals. In doing so, the professions must concentrate their energies on fulfilling basic needs rather than things people may want but do not need. Professional time and energy is a resource, and, in many areas, in short supply.

This difference distinguishes professional ethics from business ethics. However, because the individual professional enters the profession with the understanding that the primary task is to provide a public good, the professional cannot ignore questions of the public good when helping an individual client. If a client seeks help in harming others or in a manner that conflicts with the public good, the professional must draw a line and refuse to help. Therefore, professionals cannot simply set aside their own moral standards in favor of those of each client. In addition, the idea of the professional as amoral agent makes the professional complicit in any wrongdoing pursued by a client. Again, this is contrary to the duty of advancing the public interest.

The lawyer who lies for a client or files frivolous lawsuits is not praised as a good lawyer. The law profession does not endorse their behavior. It may suspend or cancel their law license. The public-school teacher who provides the answers on standardized tests in order to improve graduation rates might be seen as doing a favor to the students, but juries have sent educators to jail for doing so. Doctors who recklessly run a “pill mill”—providing unnecessary opioid drugs to patients who want those drugs—risk loss of their medical licenses and some of them are sent to prison. Although it is true that some professionals accept a transactional and amoral agency relationship with clients, this is neither the norm nor is it tolerated when the results sacrifice the public good.

3.3 Separatism and synchronism

Some people regard professionals as amoral agents for yet another reason. They generalize from cases where professionals may seem to be rewarded for ignoring the public good. Law is one of the most prominent professions, and many people associate the legal profession with the sub-field of defense lawyers. Here we find a field of professionals whose work involves defending their clients with the goal of keeping them free from punishment. Successful lawyers help horrible and dangerous people avoid fines and incarceration. Although their clients deserve to be punished according to the law, defense lawyers work to help them escape punished. Other people will point to divorce cases in which lawyers have succeeded in getting a client a settlement with minimal spousal alimony and child support, so that the result is clearly harmful to the spouse and, often, their children. Thus, some are tempted to say, we can see that professionals are often amoral agents of clients. Professionals are understood to have duties in relation to their clients that cancel or suspend their ordinary duties to other people.

The idea that the professional-client relationship suspends ordinary moral codes is known as separatism. (This label appears to have originated with Alan Gewrith.) The professional-client relationship is so special that the professional must be allowed to separate some professional activities from the constraints of ordinary moral considerations. Consequently, amoral professional behavior is sometimes ethically appropriate. Joseph Ellin prefers to call it “the parallel view,” on the model of the tracks of a train line that run parallel. The professions, on this view, operate with a distinct set of moral rules, so that the professions are separated from, but operating in tandem with, the rest of society. Again, defense lawyers are the clearest example. But another is medicine. Normally, it is wrong to harm others. But many medical procedures and treatments are harmful to many patients, from chemotherapy to CPR. Doctors are permitted to proceed with them anyway, permitting them to harm many patients while helping only some.

One might brush this off by noting that the vast majority of lawyers are not criminal defense lawyers or divorce specialists. Most lawyers engage in other kinds of legal work. We might also excuse the risks taken in medical research by noting that most doctors are not researchers, and most medical practice is governed by a commitment to avoid harming patients.

Still, defense lawyers are not that unique in prioritizing clients at the expense of other people. We see something similar at work with other professionals, as well. For example, recent years have seen disruptions in the production and supply of a number of pharmaceutical products, including Adderall and Ritalin to treat attention-deficit/hyperactivity disorder (ADHD), and liraglutide, an injectable drug that treats type 2 diabetes. In response, many pharmacists adopt a policy of reserving these drugs for long-standing clients and will not accept new prescriptions from new clients, leaving many newly diagnosed patients scrambling to locate a supply. Clearly, these professionals are prioritizing their own clients over other people, giving them a full supply while sometimes forcing others to do without entirely. This indifference to the suffering of the needs of others who have the same medical condition appears to be amoral favoritism of their own clients over the interests of others.

Medical research is another area that seems to fit a separatist model. Our cumulative experience with medical research demonstrates that the vast majority of patients who participate in medical research will not benefit in any way from the research. In fact, the majority of research trials end in failure: no medical advance is made. So, medical research is based on the willingness of vast numbers of sick people to sacrifice themselves, often risking harm to their weakened health, in the unlikely hope of a miracle. Furthermore, most medical research creates some risk of harm for those enrolled in the research. Yet the vast majority of research studies are failures. Very few of the research subjects are helped, and very little research yields an advance in medical practice. Normally, we would stop a costly, risky practice that benefits so few people. But we must tolerate risky, frequently worthless research if we are to have any medical progress. Therefore, the profession of medicine seems to offer a clear case of ethical separatism. We suspend normal ethical standards in pursuit of professional goals. The good ends justify a level of harmful activity that we would not otherwise tolerate.

Given examples of these kinds, one might conclude that it is standard practice for professionals to adopt an amoral stance toward society in order to prioritize their clients’ interests.

However, this generalization is clearly mistaken. We can see that separatism is not the norm by looking at several other professions.

• The American Society of Civil Engineers promises that “first and foremost, [engineers] protect the health, safety, and welfare of the public.” National Society of Professional Engineers says that “Engineers, in the fulfillment of their professional duties, shall hold paramount the safety, health, and welfare of the public.” In other words, engineers shall not prioritize the goals and preferences of clients over the safety and welfare of the public.
• The National Association of Social Workers pledges that its members shall “seek to resolve conflicts between clients’ interests and the broader society’s interests in a socially responsible manner consistent with the values, ethical principles, and ethical standards of the profession.”
• Accountants pledge to maintain independence from the particular goals of clients: their primary duty is to ensure the integrity of the financial system, and only secondarily are they agents for specific clients. We find other similar commitments in the ethical codes of other professions. In short, there is no general endorsement of the idea that a parallel, separate standard can justify amoral solutions to client problems.

The alternative to separatism is synchronism. It is the position that professionals must synchronize their work with ordinary moral standards. Professionals work to secure what is best for their clients, but this does not free them to violate basic moral expectations that apply to everyone else. (If anything, professions are expected to be better at upholding those standards than most other people.) Looking back, we might even say that separatism used to be the common approach to professional ethics, because people were expected to accept the decisions of professionals without question. In the past, society allowed professionals to be paternalistic, and so they were relatively free to do as they pleased. However, separatism stopped being the operative model when society determined that paternalism was no longer acceptable as the standard approach to professional-client relationships.

However, if synchronism is the correct model, how do we justify the harms that can be attributed to defense lawyers and medical researchers? By stepping back and  looking at the big picture. Many common activities have harmful side effects, yet we generally permit harmful side effects when they are unintended harms caused by otherwise positive actions. Or we adopt a straightforward utilitarian calculus: we accept some amount of harm when a practice has, on balance, positive results. Internal combustion engines pollute, but we accept some level of pollution because of the convenience and personal freedom they produce.

Although some common professional behaviors seem to routinely disregard the public good, they can also be understood as a price we pay to secure the public good. Justice is served and the rights of citizens protected by the practice of providing a strong defense for accused criminals, upholding the presumption of innocence. Professional codes for lawyers reject wrongdoing on behalf of clients, and this code applies to defense attorneys, too. For example, these codes condemn a defense lawyer who permits a client to commit perjury (to lie under oath) if the lawyer knows it is false testimony. Similarly, modern guidelines for medical research prohibit hiding evidence of high levels of harm to test subjects in order to keep support payments coming to researchers from a pharmaceutical company.

Still, some people are troubled that the American system expects lawyers to offer a reasonable and strong defense of a client even if the client has admitted guilt to the professional. Why is it ethical to defend someone you know is guilty, but not cross the line and allow lies that will protect them? Basically, by recognizing the presence of competing duties: professionals should support their clients and they should not cheat others in the process. Society’s interest in protecting the innocent has created a system in which the burden of proof is on the prosecution to prove guilt. Rather than thwart justice for the guilty, the defense lawyer defends every client to the best of their ability in order to make sure that the accused will not receive punishment if the prosecution fails to present sufficient evidence. In short, the professional has a duty to the profession to make sure that other professionals are doing their job, too. Similarly, the medical researcher is obligated to report and halt any research trial that is clearly more harmful than beneficial.

Therefore, it is not true that society endorses separatism for the professions.

At the same time, many professions have accumulated considerable economic and political power in most modern societies. Professionals are human, and so, like other people who find themselves in positions of power and authority, some professionals take advantage of their status. However, the fact that there are unethical professionals is not evidence that professionals are expected or encouraged to operate in a zone of amoral decision making. Furthermore, the idea that the professions hold a relatively privileged position in modern society does not excuse professionals from normal moral expectations. On the contrary, it creates a greater responsibility. Professionals owe society their best efforts in return for having been allowed to monopolize central services that address basic needs.

3.4 Integrity

To function, societies must maintain some basic social consensus that is built upon trust in others. Many laws are irrational unless we trust other people to obey them. For example, a green traffic light would put drivers in danger if they could not trust the vast majority of other drivers to obey the red light synchronized with the green one. Furthermore, there are many common, unspoken rules that are never encoded in law, yet these rules regulate behaviors in ways that reflect an unwritten “social contract” that people have established with each other. Two common examples are expectations not to stare at strangers, and not to attempt extended eye contact with them, either. Another is to hold a door open for someone who is coming in right behind you.

These points are background to noting that some key values and moral expectations are associated with social cooperation. For example, integrity Is crucial to the operations of the professions. All other things being equal, most clients rightly expect professionals to adhere more strictly to basic values. To put it another way, professionals are expected to prioritize the virtue of integrity.

Put simply, a person has integrity when they consistently uphold a set of values. More importantly, they uphold those values even when there are psychological pressures to “bend” on those values, and they uphold them even when others might excuse them for lapses. Consequently, the person of integrity tends to earn trust and respect from others. However, it is important to see that integrity is not simply a matter of following one’s conscience or personal moral compass. It has a social dimension, too. If someone endorses the values of a group, such as a professional organization, then integrity implies that one must uphold those values if one benefits from group membership.

Put very directly, if someone pledges—either explicitly or implicitly—to uphold the values and goals of a group they voluntarily join, the prima facie duty of integrity directs them to uphold that pledge.

At least three important things follow from this social aspect of integrity. First, one should not join a profession if one’s personal values cannot be aligned with the ethical commitments of the professions. Second, integrity should not be confused with unthinking loyalty to the group. For example, if the profession is not living up to the values it says that it promotes, professionals have a duty to address the problem.

Third, because the professions have (mostly) abandoned paternalism, professional integrity requires professionals to understand and uphold the fiduciary model. Professional-client interactions degenerate into business transactions unless clients can trust professionals to set aside their self-interest and personal preferences when helping clients. To put it bluntly, the professions have our trust only so long as the majority of professionals resist the ongoing opportunities to take advantage of clients. This chapter opened with a discussion of psychological egoism and an explanation of why it cannot be assumed to be in place in every professional-client interaction. At the same time, we cannot ignore that fact that some doctors try to make more money by pushing unnecessary services, some teachers experience burn-out and begin to neglect their duties, and some accountants help clients commit fraud. However, just as the number of people who run red lights is small in comparison to the number who drive responsibly, the number of professionals who behave unethically is small in comparison to the number who fulfill their duties.

Still, we should not underestimate the number of people who distrust professionals—thinking they’re only in for money, or put themselves above their clients. Too many people have had negative experiences with professionals who act paternalistically toward clients. Others see an injustice in the expense of professional services. (See Chapter 7.) Responsible members of the professions are aware that they face widespread public mistrust, and this mistrust has grown in recent years. As explained above, some people think that professionals operate (or should be permitted to operate) in an agency relationship, where professionals set aside their own values in pursuit of the client’s goals.  These negative impressions can be hard to shake off.

The major professions address these negative impressions by making public statements of their ethical commitments. Furthermore, most of the core professions require new professionals to pledge integrity by requiring each person entering the profession to make an explicit promise to uphold the profession’s ethical standards. New professionals promise that they will at all times demonstrate that they deserve the trust of the public and their clients. Direct reference to maintenance of public trust is present in many professional codes of ethics, such as those of counselors, certified public accountants, architects, and the legal profession.

Private Behavior Reflects on the Professions, Too

There was widespread criticism of West Virginia’s Chief Justice, Elliott “Spike” Maynard,  after the release of photographs that showed him vacationing in Europe with Don Blankenship, head of Massey Energy Company, the nation’s fourth largest coal company. Specifically, there were demands for Maynard’s disqualification from a $76.3 million court case involving Massey. The lawsuit accused Massey of committing fraud that forced Harman Mining and its head, Hugh Caperton, into bankruptcy. The photographs, taken in Monaco and France in 2006, included at least ten in which the two men are seen with female companions taken on different dates and a range of different settings. This evidence suggests that the two men were close friends who vacationed together, which raised concerns about Maynard’s impartiality overseeing the lawsuit against Massey. Caperton’s lawyers argued that the photos suggested a close relationship between Maynard and Blankenship, which could bias Maynard’s judgment. Caperton’s lawyers argued that Maynard should step down from the case and withdraw his previous rulings against Caperton and Harman.

Judges are expected to recuse themselves (i.e., remove themselves) from cases where their impartiality might be reasonably questioned or if they have a personal bias. A close friendship is likely to generate personal bias in favor of the friend. After Caperton’s lawyers raised objections based on the photos, Blankenship admitted that he and Chief Justice Maynard had been friends for about 30 years, and their meeting in Monaco wasn’t coincidental.

Although Maynard stated that he paid for his own expenses when vacationing with Blankenship, he recused himself  from the case. In May, 2008, West Virginia voters removed him from office. Political analysts believe that the photos led voters to remove him.

Suppose that Maynard really was capable of remaining impartial and fair when dealing with his friend’s case and it did not impact his professional behavior. Even so, the May, 2008, election suggests that the public loses faith in professionals based on the mere appearance of a lack of integrity.

For this reason, the integrity of Supreme Court Justice Clarence Thomas came under scrutiny in 2023. Journalists discovered and reported that Thomas had enjoyed numerous vacations with his wealthy friend Harlan Crow, paid for by Crow. Technically, Crow did not personally have direct business before the Supreme Court while Thomas has been a judge. However, Thomas has ruled on several cases where the result could easily have an impact on Crow’s finances. As a real-estate billionaire, one of Crow’s businesses was sued by an architecture firm. The case was eventually appealed to the Supreme Court, which declined to hear the case, resulting in a favorable “win” for Crow’s business interests. Thomas also participated in cases involving the Federal Government’s right to regulate real estate and regarding taxes on wealth, two issues likely to affect Crow’s financial situation. Therefore, even if Thomas was not influenced by Crow or by the financial benefits he has received from Crow, many people have been concerned that his previously undisclosed private behavior demonstrates a lack of professional integrity. Even if he has done nothing legally wrong, his behavior might encourage distrust of the nation’s highest court.

Most often, the pledge of integrity emphasizes professional honesty and the need to maintain client privacy. However, integrity involves much more than that. As explained in Chapter 2, the fiduciary relationship assumes that competent individuals should be granted maximum autonomy in their dealings with others, including their dealing with professionals. As explained in Chapters 5 and 6, honesty and confidentiality can be understood as two aspects—among many—of the expectation to endorse and respect client autonomy. Once we see that honesty and confidentiality are demanded by respect for client autonomy, they become directly integrated into the guiding assumptions about the operations of modern professional life. Therefore, while honesty and confidentiality play an important role in maintaining public trust in the professions, that is not the strongest reason to uphold these values. After all, there will be many situations where small lies and workplace gossip about clients will never reach the public. Small violations are unlikely to reduce public trust, so there would be no reason to be strict about honesty and confidentiality if the only purpose was public trust. Instead, the professional who operates with integrity sees the need to uphold honesty and confidentiality because they are essential to respect for clients. Therefore, the professional who operates with integrity will uphold them consistently, and will do so because they are part of what it means to be a professional who upholds fiduciary relationships with clients.

The upshot of these reflections on integrity is that professional integrity is not simply rule-following on the part of professionals. People who simply follow rules are aiming to meet minimal standards. In contrast, the professional should understand why certain behavioral standards are in line with the core aims of the profession.

In short, integrity requires self-awareness and self-regulation. Integrity is a value that operates on other values. A person with integrity is routinely on the lookout for ways in which they might be compromising their values. Thus, it involves self-regulation in the form of ongoing monitoring of whether one’s actions conform to one’s commitment to other, more specific values. That, in turn, requires self-awareness, because self-monitoring requires conscious understanding of both the appropriate standards and the degree to which one’s actions are aligned with them. Returning to a point made in Chapter 1, modern professional life is directed by the twin values of societal well-being and respect for client autonomy. Therefore, professional integrity must be measured in relation to both the community and to specific individuals within the larger community. The actions of a professional should be evaluated in relation to their treatment of individual clients, but it also has to be measured in relation to society, which depends on the professions for meeting basic human needs, and in relation to the profession itself which lays out expectations and standards when addressing those needs.

Consequently, integrity also extends to the profession’s collective self-regulation (and not just each professional’s personal self-regulation). The professions spell out their ethical commitments and expect members of the profession to know what they are. The professions then discipline members who consistently or seriously violate that code of ethics.

The idea that the profession sets ethical standards for its members has an important consequence. Consider, again, the case in Chapter 2 of the pharmacist who denied “Plan B” to a woman. Or consider the high school math teacher who supplies the answers on standardized tests to students in the belief that this is doing a favor to the students and the school by improving the graduation rate. When the professional’s judgement of what is good for clients leads to unnecessary paternalism (the pharmacist case) or unwarranted agency (the cheating case), the professional violates the ethical standards of the profession. Since no one is granted professional status without first learning about the ethical expectations of professional life, a professional cannot simply substitute their personal values for the moral standards of the profession. To enter professional life is to enter into a social contract with others in the profession and with all future clients. In other words, there is an implicit promise—and, often, an explicit promise—to uphold the profession and its values.

Thus, there is a lack of integrity in two very different sorts of cases. There is a lack of integrity when a professional lets a personal value (whether selfish or altruistic) interfere with duties to support the public good and respect client autonomy, and there is also a lack of integrity when a professional goes to the opposite extreme of letting the client dictate to the professional.

Because the case of religious conflict is a common yet specialized case, it will be treated separately. (See Chapter 4, Sections 4.3 and 4.4.)

3.5 Loyalty

The codes of ethics of some professional organizations emphasize a duty of loyalty. Some readers may be surprised that is not included among the duties outlined in Chapter 2. For example, the American Bar Association says that lawyers have a duty of loyalty to current clients. However, it turns out that they mean that a lawyer should not do anything to create any conflicts of interest. (See Chapter 4.)

Here are three additional examples.

1. Certified financial planners pledge loyalty to their clients. The pledge is parallel to the one demanded by the American Bar Association.
2. In the real estate profession, the Institute of Real Estate Management (IREM) includes a duty of loyalty to clients. It also adds a duty of loyalty to the employer (if there is one).
3. The American Nurses Association emphasizes loyalty, but the details of the discussion show that it’s being used as a generic label for a cluster of other duties, such as the duty of confidentiality.

Only one of these, the IREM code, identifies a duty to anyone other than clients. It mentions employers. But when there is a conflict between loyalty to a client—that is, supporting the client’s best interests—and loyalty to the employer, how is the conflict to be settled? Loyalty to the employer is either the idea that one’s actions should prioritize benefit to the employer, or it means that a subordinate should always accept the choices and decisions made at a higher level in the organization’s hierarchy. However, if the decisions are made for business reasons (e.g., to increase profits) and they involve a reduction of services for clients, loyalty to the employer is in direct conflict with loyalty to the client. As such, loyalty is incompatible with the core fiduciary duty of the fiduciary model of professional-client relationships. (See Chapter 2.) In other cases, appeals to loyalty seem to mean that members of an organization should avoid doing anything that would bring harm to the organization. But if that is what it means, that falls within the scope of integrity.

In practice, an appeal to loyalty is often used as a tool to silence employees who raise problems or voice criticism of current practice. Loyalty is used as a reason not to embarrass, criticize, or incriminate the group. (See also Chapter 6, Section 6.5.) For this reason, a number of philosophers have concluded that loyalty is not a duty, because it requires silence and sacrificing personal judgment in support of the group. In the professions, a demand for loyalty is equivalent to rejecting the expertise and independent thinking that characterize professional life. It is an expectation of amoral participation, and so should be rejected for the reasons given earlier against endorsing a model of amoral professionalism. Furthermore, there is not much point to asking for loyalty unless the purpose is to inhibit independent judgment and vocal opposition at times when the organization has strayed from its mission or has done something unethical. There is little or no need for loyalty in an ethically responsible organization.

The Sandusky Sexual Abuse Scandal

In 2015, the Illusion Theater in Minneapolis, Minnesota, premiered Lee Blessing’s new play For the Loyal. Based on a real case that had recently made national news, the play explored how a sense of team loyalty warps the moral judgment of a football coach.

 

While there is no end of examples demonstrating the dangers of organizational loyalty, consider the case of Jerry Sandusky, who was an assistant football coach at The Pennsylvania State University (Penn State) from 1969 to 1999. Sandusky sexually abused young boys for many years. He did so in the locker room of the Penn football team. Other coaches knew about it and covered up his use of his official status to “groom” victims. Sandusky’s actions were finally investigated by a grand jury (in 2011) and he was found guilty of the sexual abuse of ten boys and sentenced to prison (in 2012). But the investigation and trial revealed that many others at Penn had heard reports about his behavior and had worked to keep it a secret for many years. The school’s athletic director and the university president were both part of the coverup, and both were charged with the crime of perjury and related crimes for their obstruction of the eventual criminal investigation.

As part of the Penn State coaching team, Sandusky worked under the direction of head coach Joe Paterno. Together, they made Penn’s team the top college team in the United States, with more wins and NCAA bowl appearances than anyone else in the late twentieth century.

College athletes are, of course, students, and their coaches are members of the education profession.

Sandusky set up a non-profit charity in 1977, with the official purpose helping at-risk youth. Thanks to his coaching job and celebrity status, Sandusky was able to raise funds for the charity from 1977 until his arrest, and the organization gave him contact with numerous disadvantaged boys. He frequently brought boys ranging from age 8 to young teens to the Penn athletic facilities. On multiple occasions, other coaches saw him showering nude with these boys and making physical contact with them, such as naked hugging, but kept silent about it. Beginning in 1998 (if not earlier), parents of some of the boys made allegations that he abused their sons. Penn officials then “investigated” Sandusky and then issued an internal finding that nothing had happened. The administration warned him about his behavior and he promised not to shower with boys in the future. After Sandusky retired from coaching in 1999, the university continued to let him use the athletic facilities as a place to conduct his “charity” work. Two years after his retirement, an assistant on the football staff reported witnessing Sandusky sexually molest a boy in the athletic facility’s shower. At this point (if not earlier), coach Paterno was informed. His only action was to tell Sandusky that he could no longer bring boys to the athletic facility.

Finally, in 2008, a victim contacted law enforcement. This charge led to an independent investigation and the downfall of Penn football. Paterno was fired and his winning record erased by the NCAA. (His record was restored after the university sued the NCAA.) The university president was fired, as well. The total number of Sandusky’s victims is unknown, but the university has paid compensation to at least 30 men.

Sandusky’s behavior in the Penn football facilities may have lasted for thirty years, and other professionals at Penn State are documented as having been silent about it for twelve or more years. Email records show that both the athletic director and the university president said that loyalty to Penn football and their school demanded silence about what they knew. People close to Paterno said his loyalty to his staff was his reason to remain silent after he learned what Sandusky had been doing.

If not the employer, who deserves loyalty? The only plausible answer is the profession, either in general or in the form of a professional organization. However, this seems to collapse into the idea of integrity. (See above, Section 3.4.) So, again, no special duty is to be found here.

For these reasons, a distinct duty of loyalty is not needed in the fiduciary model, and those who prioritize it are creating potential conflicts with the fiduciary relationship.

3.6 Concluding Summary

Numerous criticisms are directed against setting the fiduciary relationship as the standard model for professional-client relationships. The most common objection is that service users are customers, and the customer-seller relationship is not a fiduciary relationship. On the one hand, doubts are raised about the ability to maintain the level of neutrality demanded by a fiduciary relationship. On the other hand, the fiduciary duty of placing the client first has been understood to mean that professionals must suspend their own ethical commitments in favor of those adopted by the client. As such, professionals are amoral assistants. Responses to these objections can be grounded in the ideal of the professions as public goods. Furthermore, these objections underestimate the value of professional integrity and the role of personal and collective self-regulation. Finally, a duty of loyalty is sometimes assigned to professionals. However, this duty is either redundant, collapsing into some other duty or duties, or proposes a competing duty that conflicts with fiduciary responsibilities.