could sue the right party and have the case decided on the merits. Since I regarded myself as ethical, I was highly offended by his accusation. On consulting a number of other attorneys in the area, about half thought I had
acted unethically and the other half found nothing wrong with what I had
Now to the problem of excuses. I was genuinely unaware that there was
an ethical issue. Is that an acceptable excuse? My legal education, which
did include a course in the legal profession and ethics, had not prepared me
to deal with such a problem. Was that a violation of the duty of my teachers
and, if so, was their failure to perform their responsibilities, an acceptable
excuse for my conduct? Did I in fact have an ethical duty to inform the attorney on the other side that he had sued the wrong party? The resolution of
that depends on how much I follow the informal code of conduct about duties between fellow professionals and how much I adhere to ultimate loyalty to the client's interests. Is that conflict of duties an acceptable excuse for
choosing either alternative? Does a good motive, the difficulty of proving
on the merits that the claim was weak, justify using the technical defense to
reach, what in my judgment, was the right result? Is that an acceptable excuse? Forty years later, I still find these issues difficult.
The caveat as to doctors arises out of a relatively new problem, the obligation of doctors to report cases of suspected child abuse, even when it is the parent
who brings the child to the doctor, tells her about the injury, and is the paying client. In addition, some medical associations are seriously considering amending
their formal ethical rule on confidentiality to require doctors to notify police if a
patient makes a threat about killing someone else. See
Jane Gadd, "MD Reporting
of Threats Wins Backing," THE GLOBE AND MAIL, Toronto (Tuesday, July 11, 1996): A3.
For a nice account, with examples, of medical doctors being unaware of the
presence of moral issues see
Samuel Gorovitz, DOCTORS' DILEMMAS: MORAL
CONFLICT AND MEDICAL CARE ( New York: Macmillan, 1982), pp. 15-21.
See my discussion of the teacher's responsibility in
McDowell, "The Ethical
Obligations of Professional Teachers (of Ethics)," PROFESSIONAL ETHICS: A
MULTIDISCIPLINARY JOURNAL, Vol. 1, Nos. 3 & 4 ( 1992):53.
Christopher Lasch, THE CULTURE OF NARCISSISM: AMERICAN LIFE
IN AN AGE OF DIMINISHING EXPECTATIONS ( New York: Warner Books, 1979), p. 209.
If, however, the professional charged with acting unethically tries to pass it
on to subordinates over whom he has control, such as younger professional associates or staff, the excuse is not very effective. He must accept responsibility for
their weaknesses since he selected, ought to have monitored, and could have discharged them.
The character appears in
Ross Thomas popular set of novels, CHINAMAN'S CHANCE, OUT ON THE RIM, and VOODOO, LTD.