CHAPTER 5 ETHICS AND PROFESSIONALISM IN A GLOBAL ENVIRONMENT
| Jurisdiction | United States |
(Apr 2015)
ETHICS AND PROFESSIONALISM IN A GLOBAL ENVIRONMENT
Senior Vice President, General Counsel & Secretary
General Counsel
Noble Energy Inc.
Houston, Texas
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ARNOLD J. (ARNE) JOHNSON is Senior Vice President, General Counsel and Secretary of Noble Energy, Inc., overseeing the company's Corporate Affairs including the legal, compliance, security and communications and government relations functions. He is a 1980 graduate of Creighton University School of Law, where he serves on the alumni advisory board, and a 1977 graduate of Northwest Missouri State University, where he serves on the foundation board as vice president. Mr. Johnson is also a member of the board of World Affairs Council of Houston, serving as vice president, and the advisory board of Catholic Charities of the Archdiocese of Galveston-Houston. He has held leadership roles in a number of other professional organizations, including on the board of the Institute for Energy Law as well as chair of the Louisiana Mineral Law Institute, the Oil, Gas and Energy Resources Law Section of the State Bar of Texas, and the Oil, Gas and Mineral Law Section of the Houston Bar Association. Mr. Johnson is a Sustaining Life Fellow of the Texas Bar Foundation and a Life Fellow of the Houston Bar Foundation. In 2013, he was named "Best General Counsel for a Large Legal Department" by Houston Business Journal. He is a member of the Texas, Colorado and Nebraska bar associations, and has authored and presented numerous articles on ethics and other legal topics involving the oil and gas industry.
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Table of Contents
I. Introduction.
II. The Realities of the Global Marketplace.
A. Diverse Stakeholders.
B. Laws Reflecting Ethics.
C. Overlapping Guidelines.
D. Public Opinion.
E. Technology.
III. The Tenets of Legal Ethics.
A. Independence.
B. Honesty, Integrity and Fairness.
C. Conflicts of Interest.
D. Confidentiality/Professional Secrecy.
E. Lawyer's Undertaking.
F. Competence.
I. Fees.
IV. Professionalism.
A. Civility.
B. Responsibility for Conduct.
V. Summary.
I. Introduction.1
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Lawyers have been recognized for the vital role they play in the preservation of society, representing clients, serving as officers of the legal system and as public citizens having a special responsibility for the quality of justice.2 These noble accountabilities provide a framework, but little detail, for a discussion of ethics and professionalism in a global environment. This article will explore some of that detail, taking a practical look at the realities of ethics in today's fast-paced world, considering some common tenets among legal ethics codes and discussing professionalism and its rise to prominence in the practice of law.
II. The Realities of the Global Marketplace.
For many lawyers, international practice is inevitable. Cross border transactions and disputes are on the rise, and more foreign clients are seeking host country legal assistance. This ever changing environment lends uncertainty to any conversation about ethics today. Five realities frame that conversation, as the number and diversity of stakeholders for most global businesses is increasing, more laws are being enacted in response to perceived ethical lapses, overlapping guidelines are confusing the standards of expected behavior, public opinion is dictating what is right and wrong and technology has sent ethics sailing into uncharted waters.
A. Diverse Stakeholders.
The first reality is that there are many stakeholders in today's global marketplace. Investors around the world are looking beyond operational and financial results, to the ethics and social cultures of their investees. Employees, contractors and business partners all share vested interests in the success of the companies with which they associate. Host country governments and local communities are key stakeholders for those doing business within their boundaries. Non-governmental organizations also play a stakeholder role, drawing attention to important topics in a wide array of areas.
The social responsibility programs of many lawyers' corporate clients are expanding to address stakeholder concerns, with companies seeking to responsibly address social and environmental issues raised in the course of business through support for international norms and sustainable practices in such areas as broad-based human rights, labor rights, rights of indigenous peoples, environmental stewardship and transparency.3 Legal and regulatory compliance is also integral to those programs. Many companies are publishing sustainability reports to highlight their efforts to the stakeholder community.
B. Laws Reflecting Ethics.
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The second reality is that more laws are being enacted, and enforced, in response to perceived ethical lapses. The fight against corruption is an obvious example, with the United States ("U.S.") Foreign Corrupt Practices Act of 19774 and United Kingdom ("U.K.") Bribery Act of 20105 garnering much recent attention. Most countries have similar laws in place. Protection of human rights, as noted above, is an area of emphasis given concerns over violence against women and children, sexual violence in conflict, genocide, indigenous people, children in armed conflict and human trafficking.6 Governance is a third area, with examples in the U.S. including the Sarbanes-Oxley Act of 2002,7 which was passed by Congress in a targeted effort to restore confidence in the financial markets after a series of major corporate scandals, and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010,8 which takes steps to reform the U.S. financial regulatory system.
C. Overlapping Guidelines.
The third reality is that overlapping guidelines are confusing the standards of expected behavior. Legal ethics principles vary by jurisdiction, from common law to civil law, between barristers and solicitors and in effect, with some mandatory while others permissive. In some cases multiple organizations impose requirements within the same jurisdiction.
U.S. lawyers are generally licensed at a state level, and thus subject to mandatory legal ethics rules of their state--most of which are based on the American Bar Association Model Rules of Professional Conduct ("U.S. Rules").9 Similarly, the Council of Bars and Law Societies of Europe has adopted a Code of Conduct for European Lawyers ("European Code")10 that provides a statement of common rules applicable to all lawyers from the European economic area regardless of what bar or law society they belong to in relation to their cross-border practice.11 It respects member state requirements, but seeks to bridge the gap between them.
One advisory code goes further. The International Bar Association adopted the International Principles on Conduct for the Legal Profession in an effort to establish a generally accepted framework to serve as a basis on which codes of conduct may be implemented by the
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appropriate authorities for lawyers in any part of the world.12 This article is organized around some of those principles.
Other organizations have developed ethics codes relevant to the practice of law in a global setting. One example is the United Nations Basic Principles on the Role of Lawyers ("U.N. Principles"),13 which looks at the legal profession through a different lens--that of the individual whose rights need protection. It was formulated to assist member states promote and ensure the proper role of lawyers, and is premised on the right of all persons to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings. Another example is the International Code of Ethics for Lawyers Practicing Before International Arbitral Tribunals ("International Arbitration Code"), which was adopted by the International Council for Commercial Arbitration Congress and prevails over national ethics or other standards for the practice of law before international arbitral tribunals.14
Lawyers do not hold an exclusive franchise on ethics or professionalism. In fact, there are other standards that may affect them. Examples include the ethics codes of their company clients, which typically represent a compilation of policies regarding laws and business conduct as well as processes to identify and address potential violations,15 and those of various professions seeking to ensure the integrity of their members, such as the Society of Petroleum Engineers Guide for Professional Conduct.16
Last, but not least, unwritten codes and norms abound. Some, like the "Golden Rule," are easy to articulate, while others defy precise definition. In any case, their most common application is to provide a moral backdrop to the analysis of an ethics issue.
D. Public Opinion.
The fourth reality is that public opinion today is dictating, or at least setting expectations as to, what is right and wrong. That opinion is being increasingly influenced by television, movies and social media, and subtleties are often lost in summary portrayals of the facts and circumstances. As a result, ethical close calls are often "rounded down" in the public eye to improper conduct.
Television and movie scripts understandably oversimplify facts, but unfortunately the image of the legal profession often suffers as a result. Some have observed that the usually negative portrayal of lawyers in contemporary cinema and television is a reflection of how they
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are viewed by society,17 a view that has been decidedly negative in the half-century following the high water mark of Gregory Peck's portrayal of Atticus Finch in the 1962 screen adaptation of Harper Lee's To Kill a Mockingbird.18 There is also evidence that the primary way people learn about lawyers is by watching...
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