A Call for Ethics and Civility in Governance and Litigation: Changing Culture and Increasing Accountability

• Publication year: 2017

A Call for Ethics and Civility in Governance and Litigation: Changing Culture and Increasing Accountability

Aloke Chakravarty

A CALL FOR ETHICS AND CIVILITY IN GOVERNANCE AND LITIGATION: CHANGING CULTURE AND INCREASING ACCOUNTABILITY

Aloke Chakravarty^*

Introduction

Civility is under attack in boardrooms, conference rooms, and courtrooms. This is not surprising as these public spaces are reflections of a broader society that appears more polarized, less accountable, and more competitive.¹ In some ways, it's understandable that public institutions might be more susceptible to the pressures of incivility, despite the fact that they are frequently subject to higher legal standards than the public at large. In many cases, corporations owe disclosure requirements and fiduciary obligations to other stakeholders, including employees, constituents and clients. Government officials and officers of the court also typically bear duties to act honorably, if not also politely.² Ethics and civility are essentially the tools to project and protect honorable conduct in these affairs, which share a public interest.³ Because of this disproportionate societal influence, government officials, corporate officers, and litigators are uniquely suited to be a bulwark against expedience at the expense of ethics; it is time to insist upon the highest ethical and civil conduct in these public spaces.

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Civility should be recognized as the sign of strength that it is. This is not a quaint question of sensibility. Creating independent institutions with integrity and courtesy has long been a bedrock principle of American democracy and it has frequently been under threat. John Adams, then a famed litigator, foretold:

I fear that in every assembly, members will obtain an influence by Noise, not sense. By Meanness, not Greatness. By Ignorance, not Learning. By contracted Hearts, not large souls. I fear too, that it will be impossible to convince and persuade people to establish wise regulations . . . There must be a Decency, and Respect, and Veneration introduced for Persons in Authority of every Rank, or We are undone. In a popular Government, this is the only Way. . . .⁴

Over the past century, our population has grown and migrated, the diversity of our country has increased, the information age and the Internet have allowed self-selecting media-participation and we face myriad social frustrations that are palpable. At this moment in American history, Adams' admonition is particularly prescient.

As experienced during the financial crisis around the last Presidential transition, governance of America's public companies and governmental institutions forms an important pillar of this country's strength and resilience. Corporate cultures are largely responsible for this reputation, strengthening our standing at home and abroad. Likewise, governmental institutions, with some exceptions, have longstanding reputations for fairness and uniformity.⁵ The American economy relies upon the predictability, fairness, and lawfulness of these institutions, as they have outsized power in this country and ultimately play a critical role in supporting national security.

Considering the significance of this correlation, a national public-private initiative to strengthen ethical governance and civil discourse is a low-cost, high-return investment in America, sure to yield broader dividends. While many adopt this culture of civility naturally and without the need for regulation or legal risk, there are others who choose to ignore these norms for politics or profit.⁶ Consequently, ethics and civility must be more than merely

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aspirational goals in corporate governance. They should become clear and enforceable norms. This can be achieved in a bi-partisan manner, without intrusive government, but only through focused initiative to change the way these organizations operate. Good things can come from ending fractiousness and cultivating cultures of civility with private-sector partners, government components, and among the Bars. At the same time, enforcement mechanisms must be empowered as well. There is incentive for organizations to act cooperatively on both of these objectives. Though the lines are sometimes unclear, the notion of ethical conduct implies conduct that is beyond the reach of legal restrictions and government oversight, and organizations will want to keep it that way. Consequently, regardless of its ability to enforce ethical norms, because the government is accountable to the People, it can play a valuable role in encouraging and supervising efforts to encourage ethical behavior.

I. Invest in an Initiative to Encourage Cultures of Ethics and Civility

Organizations whose cultures respect ethics and civility are more successful and ultimately benefit Americans. They allow productivity to grow, people to thrive and institutions to flourish amid innovation and possibility. organizational decisions are usually not limited by law, but rather, rely on business objectives and ethical clarity. Consequently, values like mutual respect, self-determination, and equal opportunity are among those that fuel successful companies as well as public administration. The law is silent about most affairs of man, and so it is with many of the internal workings of companies, public administration, and among lawyers. Hence, it becomes increasingly imperative that these institutions strengthen their commitment to ethics and civility to avoid disputes in the first place and to settle them when necessary.

In their work on the effects of incivility to businesses, Porath and Pearson brought into focus the massive internal and external costs of even rare

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incivility in organizations.⁷ In addition to finding damaged customer relationships and brand value, Porath and Pearson documented the viral nature of incivility on the workforce and corporate productivity.⁸ They found that worker productivity, creativity and team cohesion suffered.⁹ In their broad-based study, 48% of workers who had received uncivil treatment at work, in any form, intentionally decreased their effort at work, and 38% of those workers "intentionally decreased the quality of work".¹⁰ Even if not intentional, 80% of workers who had...