Filling Ethical Gaps

By FASPE Chair David Goldman

I have written previously about the responsibility for individual leadership as America faces a less-present Washington, a smaller (even largely absent) “regulatory state.” And, as Washington is attacking many of the fundamental ethical constructs of our professions, I write again as we are now seeing the consequences.

We are seeing an administration that, as a matter of social, governmental and fiscal policy, is far less interested in providing social, health, environmental, food sufficiency, and education-opportunity safety nets, among many others—both in America and globally. As to the latter, any such assistance will be provided, if at all, on a purely transactional basis that only considers America’s economic self-interest.

Without debating the political questions around the role of government, without arguing over the effectiveness (or meaning) of a “trickle-down” economic philosophy, we know that there are significantly widening gaps today because of the speed of these transitions in policy. These gaps grow larger by the day.

Who will fill these gaps in healthcare, educational opportunity, environmental protection, scientific and medical research, new technologies, the rule of law, as well as racial, economic and gender justice? Do we sit by, wring our hands, and bemoan the very existence of such gaps?

The answer can only lie with individuals and non-government institutions—providers of services of all kinds (medicine, law, consulting, etc.), philanthropists, manufacturers, designers and algorithmists, and many more.

Perhaps all of us—on the right, left and middle—should acknowledge the certain failure of a structure in which we relied on the government to fill all gaps, to act as culture-carriers, to impose regulations on almost everything, to provide all the safety nets, thus allowing (inviting?) us to cede social and individual decision-making responsibility to the government.

Why did we cede that responsibility? Why have we taken no ownership for that failure? Why do we confuse legal compliance with personal ethics? Why did we think that “legal ethics” has only to do with fees and conflicts rather than choices and defense of the rule of law? Why do we think that equality and equity can be measured by obligations and restraints imposed by regulation rather than engrained social shifts? Why do we believe that fairness and altruism cannot live organically alongside capitalism?

What might such a shift in our perspective and approach look like? Some ideas—naïve or silly as they may be at this early stage:

• Universities: many of the greatest research universities, i.e., those that are under attack where the weapon is the largest reduction in government support, have endowments that exist to protect the future. Perhaps the future is here: take the risk and draw down on those endowments to fill the gaps in funding rather than reducing education and research opportunities in the humanities and sciences.
• Manufacturers, many of whom first railed against, and then developed means of complying with, environmental regulations, now have the basic understanding of the environmental consequences of their industrial processes. They know the environmental consequences of their activities and, through their historic compliance structures, can create and enforce their own policies to protect the environment rather than seek to reduce costs by abandoning environment-protecting behavior.
• Private philanthropists and philanthropy organizations possess unimaginably vast resources and infrastructures. They are devoted to different things—some to the narrow interests of their founders, many limit their annual giving in order to protect their principal and ensure unlimited futures. They were created for altruistic purposes; so, they have the ethical fundamentals and capacity to rethink those narrow purposes and limited annual gifts and work harder to meet gaps—from replacing the traditional US government provision of vaccine protections throughout the world to supporting responsible scientific research, to developing theories and supporting efforts to protect the rule of law. Of course, even combined into one big pot, they do not have the capacity to fill more than a small fraction of the gaps, but perhaps creative and organized behavior can help.
• Our giant technology companies are behind the social media that thrives on misinformation. They build the algorithms behind artificial intelligence. They employ the technologists who have been trained to solve problems, to develop solutions, often without regard for the moral consequences. These companies can devote their resources to deploying these technologists to develop protections against misinformation and in the name of responsible AI. Their approaches might also include reallocating budget monies from lobbyists who seek to avoid such threatened regulations.
• Big Pharma provides the drugs and devices that advance medical care; individual doctors provide healthcare in giant hospitals and individual practices; private equity funds own many of the country’s hospitals and clinics. They have the means and ability to continue to develop groundbreaking medical treatments, to fill the gaps in what are flawed healthcare policies in Washington, to establish a commitment to patient care, to find workarounds to what are certainly burdensome government/insurance company processes.
• Law firms are today producing profits at levels that would make others blush. They devote millions of dollars each year to pro bono services—largely meeting the minimum levels dictated by their self-governing bodies. They have the economic wherewithal to far exceed those minimum levels, and they have partners and associates who feel committed to the causes represented by their pro bono work, even if these are not popular with the Trump administration.
• We live in a world in which decline in church and other religious institutional attendance has been well documented while, at the same time, Christian nationalism is on the rise. Religious and faith leaders exist in numbers and intent sufficient to provide the faith-guidance that remains in demand—in hospitals, educational institutions and even corporations. They can fill these gaps through a creativity that recognizes faith leadership beyond the pulpit.
• The private sector provides the vast majority of employment to America’s workers. While the government may wish to impose political policy affecting qualifications for employment, the private sector need not bend to any such effort. The private sector has the ability to hire whom they wish in their own self-interest, which, again, includes commitments beyond short-term economic returns.

Perhaps the above and other similar examples represent the rant of a naïve optimist. Perhaps the above appears unrealistic for the single individual or single corporation. Perhaps the above ignores the power that the administration is seeking to employ through control over government contracts. But ethical leadership makes its own demands, including the need for individual action as well as group action and commitment. Professionals of all sorts have the ability to make an impact. We need their leadership now; we need ethical leadership across professions and within professions, including even among economic competitors. Where regulations have been taken away and because of the absence of government, we owe it, as a matter of ethical responsibility, to act on our true and better ethical impulses.

"Considering Professional Ethics" is a monthly essay shared in the FASPE e-newsletter.

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The Dangerous Devaluation of the Civil Service Profession

By David Goldman, FASPE Chair

We are seeing a complete dismantling of the Civil Service. Brick by brick the edifice is stripped. Let’s not pretend otherwise: this is not “Government Efficiency;” this is no careful exercise in identifying inefficiency and taking measured actions in response. Nor is this about fraud and abuse; no connections have been made between the terminations and fact-based accusations (let alone proof) of fraud and abuse.

How can we explain this behavior? How can we explain the failure of any uniform uproar, any cohesive resistance in opposition?

Americans do not respect the Civil Service. Americans all too often dismiss the Civil Service as a collection of slow moving, lazy, 9 to 5, paycheck-cashing parasites on the American public. (Apologies if I exaggerate, using the language of so-called DOGE for the sake of drama)—these times call for explicitness, for directness.  Elon Musk, with his clownish  chainsaw-antics, takes advantage of this unfortunate reality.

Europeans do respect the Civil Service. The Civil Service is embedded in the very core of European civil society. Young people strive to become civil servants, serving their countries and the European project. They do not do it for the money, for the pension, or for the power—each of which could be found in greater quantities elsewhere. They become civil servants because they believe in the impact such professionals can have.

Consider what the Civil Service in America is: the bodies that defend the rule of law; that defend “the homeland” from both internal and external threats; that protect our physical health: that establish the rules that create order in dealing with otherwise dangerous modes of transportation, firearms, drugs and medical devices; that protect us consumers from corrupt business practices; that feed and clothe the poor among us; that feed, clothe and protect the underserved throughout the world in ways that have established America as a moral force; and on and on.

Why, then, do we not respect it?

The Civil Service is not composed of lazy pencil pushers. Some civil servants are lawyers; some are doctors. But many are professionals in their own right, people whose expertise lies in the particular methods and systems by which they do their work. The Civil Service is a profession. A profession according to FASPE’s own parlance.

FASPE does not follow the traditional definition of a profession—lawyers, doctors, engineers for whom there are formal certification requirements, educational prerequisites, and governing bodies. No, FASPE defines professions as those with outsized impact. By virtue of their impact, we must insist on their ethical behavior, on ethical leadership. Professionals make an impact. They have responsibility. And, that impact and responsibility derive not only from their expertise but also by virtue of the respect that we accord to them. Respect that they are due because of their impact. If this reasoning seems circular, it is only because of how deeply embedded each trait is in the other. It starts and ends at the same place—impact and expertise.

We would not tolerate the dismantling of our medical system—which is for sure inefficient and sadly ineffective—by having DOGE fire X% of doctors throughout America. Why the Civil Service?

Sowing distrust in our professions and professionals is at the heart of nationalist autocracies—from 1933, from earlier, down to today.

It is time for Americans to recognize the Civil Service as a profession; FASPE will do its part to lead that effort. For now, we must recognize the dismantling of this profession for what it is: an attempt to commandeer a critical part of what drives America, what protects America—what is America.

"Considering Professional Ethics" is a monthly essay shared in the FASPE e-newsletter.

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By FASPE Chair David Goldman

I fear making analogies to 1933 Germany—analogies to Nazism are often unhelpful. Such comparisons are frequently mere ad hominem attacks for the sake of shock, often even bordering on demagoguery. On the other hand, should we avoid these analogies when the shoe fits?

We may be witnessing a frightening analogy today. One of the go-to methods of autocratic regimes is to sow distrust in the very institutions that underlie democratic societies. That distrust is particularly amplified and effective if the regimes can break these institutions from within. This is exactly what we are seeing with the Trump administration's attack on law firms and law firms’ willing participation in or complacency in response.

No institutional construct is more important to the functioning of a democratic society than the Rule of Law. It is fundamental to a functioning democracy. And the system of justice that affirms the Rule of Law requires an active and independent legal profession.

The early years of National Socialism are relevant. The pre-1933 legal profession in Germany looks very familiar to us. The new Hitler government quickly eviscerated the profession by taking control of what had been a self-governing structure. Even more, this attack capitalized on the economic self-interest of lawyers by removing tens of thousands of lawyers—the Jewish lawyers—from the competitive marketplace.

That history informs us today. The Trump administration, acting through executive order and the bully pulpit, seeks to undermine the independence of the legal profession by blacklisting some of America’s greatest law firms and threatening others. The Trump administration’s aim is clear: single out and punish those lawyers and law firms that it perceives to have opposed the President; and in so doing instill fear that restrains other law firms from speaking out.

As pernicious as the Trump administration’s actions themselves are, the ethical failure of law firm leaders to speak out against this attack on the ethical foundation of lawyering is even more disappointing and damaging.

Our commitment to the Rule of Law starts with ethical lawyering. Yes, everyone is entitled to a lawyer and, yes, every lawyer must do her best to represent her client. But, every lawyer must possess her own personal ethical constraints on whom she chooses to represent, on the projects that she chooses to become involved in and, indeed, even in the arguments which she is willing to deploy in service of her client. Individual lawyers and law firms must not be morally neutral in their choices and actions. That is a path to societal moral neutrality. We demand more from our professionals.

I do not suggest that it is unethical to represent unpopular clients or to take on matters that have distasteful implications. Just the opposite. American history is replete with examples of courageous attorneys representing individuals or causes that were widely unpopular. No one would contest either the rights of the unpopular to legal representation or of lawyers to represent them.

Instead, I do suggest that I, as a lawyer, am entitled to make these decisions, to establish my ethical constraints, free of governmental interference. That freedom is not only my right; it is my ethical duty as a professional.

Let us be clear. These executive orders and speeches from the bully pulpit that call out law firms because of whom they represent today or whom they represented in the past (or whom they may represent in the future) threaten the fundamental ethical underpinnings of lawyers and of the legal profession.

Which leads to the question: where is the pushback? Why isn’t every lawyer in America standing up to these executive orders and pronouncements? Why aren’t the leaders of the great law firms of America speaking out? Is it that they are so cowed by the potential reputational or economic risk associated with being on the wrong side of the Trump administration? Is it that they fear that they will lose clients or potential clients by speaking out? Is it that they are outraged privately but lack the moral compass or courage to speak out publicly? Are they secretly hoping that others will speak out and they will enjoy the free-rider benefit? Is this simply a variation on the classic Prisoners’ Dilemma where actors move in what they mistakenly believe is their own best short-term interest without acknowledging the greater and longer-term consequences?

Are those law firms and lawyers who fail to speak out complicit by their inaction? The reference to the early years of Nazism is apt. The attacks on the German legal profession were successful with the consequence that the revised system of “justice” became one of the cudgels of Nazi rule. There is no place for silent complicity today.

Paul Weiss, in explaining its choice to negotiate with the Trump administration, essentially blames the silence of other law firms. Ignoring the cowardice of that argument, it is proof of the consequence of silence: it is complicity.

Let us applaud the moral certainty, even moral courage, of those law firms that have aggressively defended the attacks, namely Perkins Coie and Covington & Burling (and the firms representing them), as well as those few other law firms that have spoken out. Let’s urge similar clarity and courage from those who have to date remained silent. The consequences of the early 1930s teach us that timing matters. Speaking out before it is too late is critical. Waiting to speak out, hoping that others will do the hard work or that the threat will pass, is not ethical leadership.

Law firm leaders: now is the time to question your ethics. The issue at play here is not just your short-term financial success or profits per partner; it is your responsibility to speak and act for your profession and for our Rule of Law. That is ethical leadership.