As I thought it might, the Ethics Quiz about “The Ethicist’s” position that a nurse practitioner was obligated to help an unemployed, unmarried, 16-year-old high school drop-out get pregnant provoked a lot of discussion. Here is how the poll results on the issue are running:
And here is Arthur in Maine’s Comment of the Day on the post, “Ethics Quiz And Poll: The Nurse Practitioner’s Dilemma”:
It is seldom that I strongly disagree with NYU philosophy professor Kwame Anthony Appiah, “The Ethicist” of the New York Times Magazine’s long-running advice column. A month ago I did, and emphatically so.
The question posed to him involved a professional ethics dilemma, and “The Ethicist” was so certain he had the correct answer that he was uncharacteristically terse about it. I’m pretty certain about the answer too, except that my certainty is that he’s wrong. But I have some doubts, based on my ethical positions in related situations.
The inquirer was a a nurse practitioner working at a primary care clinic for low-income patients. She said that a 16-year-old patient told her that she had stopped coming by the clinic to have her birth control pills replenished because she and her partner were trying to have a baby together. She had been having unprotected sex for a while, and she was concerned that she might have some physical problem preventing her from conceiving. The nurse practitioner asked, “Would it be ethical for me to steer her away from trying to get pregnant? …Or, as her health care provider, do I have an ethical duty to try to help her conceive?”
Appiah doesn’t see any wiggle room. He says,
“You’re her health care provider. You should certainly tell her about the medical consequences of pregnancy. But the social and economic consequences don’t fall within your professional competence. An intervention about her life choices may seem moralizing and intrusive to her, and it could drive her away; and then she’d be losing your guidance on the things you are trained to help her with.”
Really? Continue reading
Lately I’ve been helping a lot of lawyers seeking to create so-called Rule 5.4 law firms in the District of Columbia. In these firms, unique to the District, non-lawyers can be full partners. This means that they can share in the firm’s fees, which is something otherwise forbidden and a major ethics breach in the 50 states. Lawyers cannot, must not, dare not share their fees with non-lawyers…unless those non-lawyers are partners in the same firm.
There are certain requirements for that to happen, and the main one is that the non-lawyers must be supervised by a lawyer in the firm to ensure that the non-lawyers don’t engage in conduct that would be unethical for a lawyer. The legal profession is justifiably wary that the unique priorities of the legal profession cannot be easily absorbed or understood by those who have been trained and influenced in a different culture.
It is right to be wary. Lawyers have enough trouble avoiding violations of their own rules; doctors, accountants and others, steeped in different alignments of values, can’t just shift gears like suddenly being in a law firm is like test driving a sports car. For so-called “non professionals,” a category that is increasingly contentious, it may be even harder to adjust, if not impossible.
Lawyers are often overly optimistic about their non-lawyer partners’ ability to learn the importance of keeping all client confidences, not crossing over into the unauthorized practice of law, sensing possible conflicts of interest and illicitly soliciting clients, or engaging in misrepresentation and deceit, to name just a few. Lawyers tend to think that all professional ethics should be fungible. It’s a dangerous misconception, and there is a little cautionary tale from, of all places, Broadway, that illustrates it.
It has been mostly forgotten, but in 1969, a musical called“Buck White” opened at the George Abbott Theater. Its unlikely star: draft-resisting ex-heavyweight boxing champion Muhammad Ali.
Yes, you read that correctly. Continue reading
The discussions regarding Joe Biden’s age-related decline reminded me of a post that had been languishing on the runway since mid February. It was prompted by a tip from Neil Doer (I think it was Neil) who pointed me to this article about a well-respected federal judge in Brooklyn, Jack B. Weinstein who was retiring after more than a half-century on the bench. He’s 98 years old, and it seems like he’s been an outstanding judge. My position was and is, however, that it is unethical for a judge, and indeed any professional, to continue in a position of responsibility at such an advanced age.
Obviously, I would apply that principle to politicians and leaders as well. This is another area where professional sports, especially baseball, provides useful case studies that can be instructive. Players who were great at 25 are also better when they are 40 than the more average players, whose natural decline as the result of aging will usually cause them not be able to perform at an acceptable standard by late middle age. The great player often will still be good, but almost no player (almost) will be as excellent in his late 30s and early 40s as he was in his prime. As the financial benefits and other perks of playing major league baseball have increased over time, fewer aging greats are willing to go gentle into the good night of retirement. Their last years are often sub-par, certainly for them, or worse, but they will not voluntarily retire. Check the records of Miguel Cabrera, Pete Rose, Willy Mays, and Mickey Mantle, to name just a few.
Famously brilliant and contrary judge Richard Posner took the unpopular position among his colleagues that federal judges ought to have a mandatory retirement age. He recommended 80, but in his own case, when everyone expected him to stay until the bitter end, he retired at 78, because, he said, it was time. I’m not convinced that 80 isn’t still too old, but at least it’s a limit.
I remember well my one meeting with Antonin Scalia at a bar function not long after he had joined the Supreme Court. He was relaxed and jovial, and when I asked him how long he thought he’d stay on the Court, he laughed and said that he couldn’t imagine staying until they “carried him out,” like so many other justices. He said it was important to leave the bench “while you still have most of your marbles.,” and to him, this meant before 80. He said he would stay about ten years.
Antonin Scalia died while still on the Court, in his 20th year of service, just short of his 80th birthday.
Here, from 2009, is “Age and the Judge.”
I can’t believe I have never written about this diagram before, but apparently I haven’t. That’s my fault, and a major one.
The diagram, the creation of my friend, attorney John May, shows the inter-relationship of the three ethical systems professionals must employ when they face ethics problems. For although we tend to think about making decisions in one context, there are several, and which sphere—these are circles after all—we choose will often determine what balance of values, principles and outcomes dictates the ultimate course.
Here are what the circles represent:
The Big Circle, in yellow, includes the ethics culture that we all live in. It includes our nation, society, community, family, and friends, and is a messy, inconsistent, multi-faceted, often contradictory melange of traditions, religion, customs, literature, history, heroes, fables, family influences, teachers, peers, laws, and more. This the largest system of all, the sun to the planet-sized influence of the other two systems. within it are not only the often competing ethics theories of Reciprocity, Absolutism, and Utilitarianism, but also all the variations in between and beyond–Ayn Rand, Nietzsche, Marx, and many others. In his invaluable book “The Science of Good and Evil,” Michael Shermer posits that despite all the internal inconsistencies, the Big Circle is remarkably functional, agreeing on what is right and wrong perhaps 97% of the time. The disagreements are in the realm Shermer calls provisional ethics, akin to what Ethics Alarms is referring to when it cites The Ethics Incompleteness Principle. These are the troublesome problems where the usual principles don’t always work.
The Core Circle, in green, represents the values, principles, beliefs and the priority of these for an individual–you. It comprises all of those, plus such core qualities as conscience, self-esteem and courage. It’s location in the Big Circle varies with the individual. A section of it even may protrude outside Big Circle, representing the degree to which a person does not embrace the values of his or her community or culture.
Finally, there is the Compliance Circle, in red. That circle defines the special ethics of a profession, and includes ethics codes, traditions, aspirational values and professional obligations and duties.
Notice that part of the Red Circle is outside the Yellow one. These are the values about which a profession is bound to adhere to at all costs, even though the society at large often and even usually does not have the same ethical priorities. Quoting Star Trek, this is Prime Directive territory. In Gene Roddenberry’s fictional Star Fleet, it was forbidden to use the immense power a starship could muster to interfere with a planet’s inhabitants and their conduct, even to prevent what appeared to be a horrible wrong. This principle would be repugnant to the the public at large. For example, if a starship had an opportunity to stop a genocidal race from wiping out another race on its planet, the Prime Directive would make it a crime to do so. The Big Circle would certainly view this as monstrous, but the Prime Directive wisely holds that interference must be avoided. Continue reading
I know a lot of teachers get angry with me for my increasing certitude that they are in an unethical profession with some ethical members (like them), rather than an ethical profession with isolated unethical exceptions. This incident supports my critical views. Unless mental illness is involved, an adult doesn’t belong to a profession with well-defined standards and ethics rules and act like this.
At W.H. Adamson High School in Dallas, Texas, art students were treated to an epic meltdown by their teacher, Payal Modi, who screamed “Die!” and shot President Trump’s image on the screen with a water gun as students watched his inauguration on TV. A student caught this on video, and Modi, who was proud of the planned display, posted it to her Instagram account.
This is more political indoctrination the classroom, which educators not today only tolerate but nurture. A teacher modelling violence toward any individual, but especially the President of The United States, in front of students, is such a stunning breach of professional ethics that no teacher should have the idea even flicker across her mind. Payal Modi planned it. A teacher who behaves like this cannot be trusted with students. A teacher like Modi calls into question everyone and every institution connected with her.
Adamson High School assistant principal Bobby Nevels confirmed that Modi shot the squirt gun at the TV, during class and in front of students. It is six days later. Why does she have a job? Why has the school not made a public apology? Why hasn’t the teachers’ union condemned her actions?
In eight years, no teacher did anything displaying close to this level of hostility and disrespect to President Obama. What do you think the reaction would have been by a school district if one had? Would the official position be, as Nevels’ was, “The district will not comment on personnel issues.” How about reassuring parents and the public that the district recognizes that this isn’t just a personnel issue, but an incident that calls into question the integrity of the education system and the teaching profession? Modi is the product of an unethical culture that is rotting public education from within.
Is there a specific Teachers Code of Conduct provision, enforced and universal, that would guide a teacher not to do something this outrageous? The NEA has a Code, but there is no enforcement mechanism. There is also no prohibition against demonstrating hostility and disrespect toward public figures, or engaging in violent displays in class. Here are the provisions relevant to Modi’s meltdown: Continue reading
In a much attacked post here way back in 2010, I offered some ethical guidelines for April Fool’s Day, which was just beginning to get out of hand. I was right, my critics were wrong, and maybe some of the mockers who are now trying to figure out when their favorite news organization is lying to them today for fun, as opposed to the rest of the year when it lies to them out of bias or incompetence, are beginning to appreciate my position.
I just watched three different morning news shows that contained fake news or commentary that the reporters and anchors, at least, seemed to think was hilarious. In one case, on Fox, conservative talk-show host Laura Ingraham dead-panned a remarkably even-handed and fair explanation for HHS Secretary Sibelius’s much-maligned TV silence when asked about the Affordable Care Act’s unpopularity. April Fool! Laura wasn’t being fair or objective, she was just tricking Fox’s audience into being angry at her for being fair and objective, or, in my case, admiring her integrity for pointing out that the incident had more than one plausible interpretation. Got me, Laura. I just heard an NPR host plead with the audience not to regard the upcoming segment as a hoax because of the date, an especially difficult plea since NPR springs virtual hoaxes on its audience all year.
The first and most important of my April Fools guidelines was this:
1. April Fools’ Day tricks are not for professionals to play on those who depend on them, trust them, or otherwise rely on them for information or services, unless there is a special relationship as well. The risks of harm and abuse are too great.
The succeeding four years have validated my position. Journalism, government and politics are the prime examples. CNN played a video that showed Jay Carney crowing yesterday about the Affordable Care Act’s success even as the Healthcare.gov website had crashed. Wait..is this a joke? Did the Obama White House film this for fun and games? They wouldn’t do this, you say? Government officials don’t use their high office for jokes and hoaxes? Really?
Sen. Ted Cruz, also on Fox, showed his new tattoo, apparently an April Fools’ joke, but also said he was certain that the Affordable Care Act would be repealed. Which is more likely, that the AFA will be repealed, or that wacky Ted Cruz would get a tattoo? Slate has a post up by someone called Rehan Salan, which is, clearly, a clever anagram for “En Anal Rash” or something, arguing that adults without children should be forced to pay extra taxes to support parents. Hah! Good one, Slate! That should turn the “pro choice” crowd on its head: lets; punish the choice not to have children via a penalty—I’m sorry, Chief Justice Roberts, a tax, wink-wink. Wait…that isn’t a joke? Ok, well, I’m sure about this, then: that fake video showing famous tough guy Don Baylor, a record holder for being hit by pitches when he played and now a coach for the Los Angeles Angels, “breaking his leg” catching the ceremonial first pitch of the baseball season. April Fools, right ESPN? No????
Alex Rodriguez has done a lot of bad things, but everything he does isn’t wrong. Kudos to lawyer/baseball pundit Craig Calcaterra for flagging a typical bit of pundit idiocy.
Yesterday, the news was that Rodriguez, rather than accept his season-long suspension as a result of the arbitration panel’s final decision regarding the disciplinary action against him taken by Major League Baseball, is suing MLB, and the players union for not properly defending him. This involves allegations that the union’s late Executive Director, Michael Weiner (who perished last year of an inoperable brain tumor) failed in his duty to A-Rod, a member in good standing, though a slimy one. This, to various sportswriters, broadcasters and bloggers, was the smoking gun proof that Alex’s heart is as black as a Mamba: how dare he impugn the character of a dead man, a beloved family man who died before his time? For example, here is Yahoo Sports’ indignant Jeff Passon:
“Alex Rodriguez is a sad, desperate man, and sad, desperate men do sad, desperate things like blame their sad, desperate circumstances on a beloved, deceased man. Of the many layers of pathetic A-Rod has peeled back in trying to excuse his own wretched choices, never had he spoken ill of the dead, not until Monday when his failing defense found a new nadir.”
Rodriguez may well be a sad, desperate man as well as a certified rotter, but his treatment of Weiner is not one of his many transgressions. Continue reading
Personally, I find few varieties of unethical conduct more nauseating than individuals of fame, position, power or influence who use that status to squeeze special privileges and considerations from ordinary citizens. From the cop who assumes that he won’t be charged for street grocer’s apple, to the judge who talks his way out of a speeding ticket, to the famous actress who tries “Do you know who I am?” when she’s stopped while driving drunk, this behavior warps justice, broadcasts unfairness, and saturates the culture with the toxic assumption of class and privilege, the idea that not only are the rich, powerful and famous subject to different and more lenient standards than the rest of us mere mortals, but that they deserve such treatment.
Ari Pregren, a Miami-Dade County prosecutor, was just fired from his job for embracing this tactic, and appropriately so. The fascinating aspect of the incident for me is that I am certain that his miserable conduct does not rise to level that the legal profession would deem professional misconduct. In Pregren’s case, this means that a state prosecutor who uses his position to get special consideration at a strip club is an unethical jerk, but not necessarily an unethical lawyer, at least in the eyes of the legal profession.
Hmmmmm…. Continue reading