moral judgment

Lawyers have moral responsibilities too

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In the middle of last week, a story broke about a businessman who had made financial settlements using Settlement Agreements including NDAs (non-disclosure agreements) on a number of occasions following claims of sexual harassment and racial abuse.

Despite the undeniably serious nature of the original actions, in a world of global news reporting it may not have warranted front page news, except the businessman in question took an injunction out against the newspaper that had investigated the claims preventing it from publishing the details. And then in return, a Lord used parliamentary privilege to name the businessman.

I’ve followed the story, beginning to end and you know what? The whole thing stinks.

It stinks because instead of having the right debate, we’ve wrapped the story up in one of legal rights and wrongs. We’re discussing the integrity of the courts versus parliament, we’re discussing the integrity of NDAs, we’re discussing the integrity of legal precedent.

When we should be discussing the integrity of the people involved. The individual(s) that carried out the act in the first place. The leaders and HR professionals that sustained the culture in the organisation(s). And of course, the victims.

But also the lawyers that drafted the agreements, that defended the agreements and who have now lost sight of the individuals at the heart of the matter and are making intellectual arguments about legal supremacy, when if they and their peers done the right thing in the first place, this wouldn’t have been an issue.

Now I know that I’ll be faced with arguments that these agreements are entirely legal and proper, that it isn’t for lawyers to determine right or wrong but simply to enact what is legal and what is not. That the sanctity of the independence of the courts is paramount etc. I know, I’ve heard the arguments before. But I call b******t.

I’m sat here wracking my brains trying to think of a time in my 25 years of practice where I’ve been involved in a case where we’ve used a settlement agreement to settle a case of sexual harassment or racial abuse, and simply I can’t think of one. So to have multiple ones in the same organisation?

You can talk about the sanctity of the agreement and the “independent legal advice” that the individual has to take before they sign, but I want to talk about the moral responsibility of people propping up a rotten culture. I hold my profession to account, I hold leaders to account, but I also hold the legal profession to account. You can’t make clever arguments to claim immunity, you own this problem too.

So instead of continuing to engage in intellectual masturbation on the rights and wrongs of a member of the House of Lords naming the individual in question, let’s ask ourselves why they had to. Instead of debating the use of NDAs versus public interest, let’s ask ourselves why they’d ever be used in a case of this kind. And instead of pointing the finger at others, let’s start by asking ourselves a few searching questions.

Lies, damned lies and business

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Business is full of lies. FACT.

Sometimes the lies are big, sometimes the lies are small. Sometimes the lies are inconsequential and sometimes they rock the foundations of the civilised world. But like the urban myth that you’re never more than 8 foot from a rat, in business you’re never more than one cubicle away from a lie.

And that is just the way that it is.

I’m not going to try to argue that the Nick Leeson, the Olympus Corporation, Lehman Brothers or Jérôme Kerviel lies are in any way appropriate or defendable.

But the only difference between these and the others is the size and the consequences, those that make a moral judgment would be better off looking closer to home.

Is it a coincidence that so many public limited companies come in within their stated profit targets every year? Good management or good financial management? Over perform and you run the risk of raising expectations for future years, underperform and you run the risk of your share price being devalued and your tenure being reduced.

If you release provision in a bad year to bolster the bottom line, or take bad news in a good year to managed down profits, are these really lies? Well yes, in the truest sense of the word they are. But they are universally accepted and ignored.

And in the same way how many companies that state “people are their greatest asset” would stand up at the AGM and announce,

“Profits? Shareholder return? Pah…..we’ve got great people….we rock!”

Business is full of lies.

Anyone who has ever answered the question, “Which dress do you prefer?” with a, “they both look great, but I prefer that one because it matches your eyes, not because there is anything wrong with the other one which is perfectly lovely and looks great on you in every single way…..” (you can tell I’ve practised that).  Can easily transfer this to, “you performed really well and we really enjoyed meeting you, unfortunately we need to make a decision and there were candidates who better matched the criteria for the role”.

Likewise the “bijou property with unusual features and scope for improvement” can easily become, “we are committed to the development of all our employees and helping them fulfil their career potential”.

The language of business is a weasel mix of truth and lies, correct. But it isn’t any different from any other part of society. Politicians, Teachers, Doctors, Sportspeople, Charities, Husbands, Wives, Children.  Let he is who without sin etc. etc.

It is very easy for the press, for the public, for the politicians to highlight individual failings and to find a helpful scapegoat.  Business shouldn’t be held to any higher moral standard than we would hold anyone else. We shouldn’t confuse profit-making with profiteering, we shouldn’t engage in duality or assertions of duplicity. We should be open and honest about our imperfections and the societal need for conformity and complicity.

Lies are an everyday part of our lives and in covering over this fact we are of course reasserting its veracity; an inconvenient, but inescapable truth. Just like any other context, business needs lies to survive, it needs lies to maintain balance and it needs lies to underpin its existence. But like in our social lives, like in sport, like in the church, sometimes a lie becomes so big, so grave that it causes damage, hurt and concern. The fact that in business they are reported more sensationally, doesn’t mean that they are more prevalent or indeed any worse.

Business is full of lies. Guilty as charged. But lets face it, it isn’t in the dock all alone.