Beyond Professional Codes

Should cameras be allowed in the courtroom? What are the special responsibilities of TV's legal analysts and pundits? Should laws that shield reporters from revealing confidential sources be changed?

These concerns dominated "Courts and the Mass Media: The Ethical Questions," a January conference sponsored by the Markkula Center for Applied Ethics and Santa Clara University School of Law.

More than 300 people attended as these issues were debated by panelists including O.J. Simpson defense team members Johnnie Cochran, Robert Shapiro, and Gerald Uelmen; law professors Laurie Levenson, Erwin Chemerinsky, and Peter Arenella; and journalists Geraldo Rivera and Rikki Klieman.

Explaining the purpose behind the conference, Center Director Thomas Shanks, S.J., said, "Almost every person in America has strong opinions about media coverage of high-profile cases such as those of the Menendez brothers, Rodney King, and O.J. Simpson. Few, however, have explored the complex ethical issues these cases raise for journalists, lawyers, and the public at large. This conference focused all of us on serious questions concerning how these professions can best serve the common good."

Issues in Ethics asked Shanks, also a professor of communication at SCU, and fellow conference organizer Uelmen, a professor of law, to discuss these questions further with Christopher Kulp, SCU associate professor of philosophy. Their dialogue follows:

Issues in Ethics:
The ethics of both lawyers and journalists have come in for a lot of criticism recently, especially in the wake of the O.J. Simpson trial. Can you begin by talking about how you see your professional responsibilities? Are there conflicts between your professional ethics and what might be generally understood as good conduct?

Gerald Uelmen

Gerald Uelmen:
When students say to me, "Once I concluded that the client I was representing was guilty, I would have real difficulty being a vigorous advocate on their behalf and attacking the prosecution's case, making the prosecution witnesses look like liars," I have to say to them, "You probably shouldn't do defense work because once you take on the responsibility of defending someone, you owe it to the client to deliver the vigorous advocacy that he's entitled to."

Thomas Shanks, S.J.:
But how do you answer the question, "Aren't you forcing lawyers to be unethical, to do something that they think is wrong?"

Gerald Uelmen:
No, because we define the lawyer's role as not just serving the client but serving the system. When I say, "I'm going to give you the vigorous representation you are entitled to even though I find you morally reprehensible," I'm not just serving my client, I'm serving a system that values that kind of representation. This is the kind of adversary system we want.

Thomas Shanks, S.J.:
That's the same thing journalists are doing; they're also serving the system. In fact, the press claims constitutional protections because it's serving the common good by ensuring unfettered information. Society has decided that this is the role these institutions should be playing.

Gerald Uelmen:
There's not much public understanding of that, though. To me, it's not a coincidence that lawyers and journalists are among the professional groups in our society that are most derided and despised because their role and their role-driven ethics are largely misunderstood. I don't think people appreciate that lawyers and journalists are playing a role they have been assigned.

Issues in Ethics:
What happens when this professional role conflicts with other ethical standards?

Christopher Kulp:
Journalists and lawyers are going to have profession-specific obligations, and surely it's appropriate to draw up codes of ethics that are applicable to professionals in a given profession. But by the same token, they retain a relationship to the broader community as well.

Quite understandably, when lawyers or journalists are in the professional mode, they tend to see things through that lens; but ultimately, this can lead to a narrowness of view. Of course, any professional is liable to lapse into this sort of disregard for the broader responsibilities they have to something larger than just their profession; that's very hard to avoid. But it behooves us to try to avoid falling into that trap.

Gerald Uelmen:
You know, after the Simpson trial, George Will wrote a column saying that Johnnie Cochran was a good lawyer but a bad citizen. The implication was that by making an argument that created racial divisiveness in the country, he was ill-serving the common good although he may have been serving the narrow interests of his client.

I just don't see it that way. I think it's an oxymoron to say that if you're a good lawyer, you're a bad citizen. By definition, being a good lawyer means you are serving the goals of our adversary system, which require that the lawyer serve the interests of the client. Good lawyers make decisions about what arguments they are going to make based on the best interest of the client not on the public interest. You are not a lawyer serving the public; you are serving the client. We have ascertained that the public interest is best served by an adversary system in which there are lawyers on two sides, both of whom are representing a client and presenting that client's case in the best possible way.

Christopher Kulp:
Not to talk about Johnnie Cochran per se-just lawyer X-one might urge that it's actually not oxymoronic to argue that a person could be a good lawyer and a poor citizen. On the one hand, you could hold that if you are taking part in a justifiable practice, you are being a good citizen insofar as you act in accordance with this justifiable practice to the best of your ability. That's the kind of defense a lawyer might make-that you are defending a client very vigorously. And if it should result in public unrest, well, that's an unfortunate but undesired consequence; and it occurs in the pursuit of a legitimate practice.

What do you say, then, to the person who argues, "Well, yes, but a person doesn't check his or her moral agenthood at the door when he or she becomes a lawyer. There is a legitimate sphere for saying, 'Even though I could do this in accordance with accepted standards of practice, I don't think I should.'" Does that argument make sense or do you think there's some flaw in it?

Gerald Uelmen:
The flaw I see is that the moral resolution of the problem becomes simply a withdrawal of the lawyer. Ultimately, I think respecting the autonomy of the client requires the lawyer to say, "You have a legal right to have this position asserted, but I'm not going to assert it for you. Therefore, I can't serve as your attorney."

Issues in Ethics:
Do attorneys and reporters operate under the same moral strictures as everybody else?

Thomas Shanks, S.J.:
I remember the first time I started looking into journalistic ethics, I asked, "Is there something about the profession of journalism that somehow sets the journalist apart from the moral responsibilities that every human being has just as a function of being a human being?" There's a similar question for lawyers. I think the answer is no because what might be justifiable practice might fly absolutely in the face of what any rational human being would say is good for the community.

Christopher Kulp:
Some years ago, there was an ethics and media discussion on PBS with a number of well-known, distinguished journalists. A question was put to them, roughly to the effect: Look, if you were covering a battle in which the United States was fighting some other outfit and you had information that could tip off the U.S. troops that they were going to be attacked, would you let the U.S. troops know? After wrestling with this, some of the journalists finally said no.

Now, from a nonjournalist's point of view, it looks to me as if these people are taking their work too seriously. They have obligations not just to the profession-which are, among other things, to present information and be an uninvolved chronicler-but they also have obligations to their society, a society that does much to make their profession possible.

Freedom of the press and the importance of the press being unbeholden to any group seem to me fairly skimpy grounds for saying that you shouldn't let a platoon of U.S. soldiers know they're going to get blown up. We likely have a case here where people are operating excessively within the parameters of their profession and not thinking seriously enough about the common good.

Issues in Ethics:
What is the basis of the relationship between these professions and the common good?

Thomas Shanks, S.J.:
Some philosophers suggest there's an unwritten social contract between professions and society that goes something like this: You can do your work. We will protect what you need in order to do your work on the understanding that you won't do positive harm to society at large.

I think shield laws are a good example of this contract. Under these laws, journalists cannot be forced to reveal confidential sources. Society says, "We're going to protect you so that you can do what you need to do as a media person or else our system will come grinding to a halt."

Gerald Uelmen:
There's a strong parallel between journalists and lawyers in terms of the obligation to protect confidences. Journalists will go to jail before they will breach a promise to a source that they will keep the source's identity confidential because they believe, once it's perceived their promise won't be kept, the source of news that ultimately serves the public good will just dry up.

Lawyers see it from the same perspective. The promise of confidentiality serves the need for the lawyer to have a relationship of candor with the client. You can tell me anything, and it won't get beyond me. And you can have confidence that when you tell me something, I'm not going to use it against you. Once we breach that promise, clients will be reluctant to repose their secrets in their lawyers; and we believe the public good is best served if clients do have confidence that their secrets are safe.

Issues in Ethics:
What can the public do when the institutions of the press or the bar are not operating in the common good?

Gerald Uelmen:
In general, I think one of the problems is the extent to which there is public participation in formulating rules of professional conduct. Shield laws are a good example of a profession going to the public and saying, "We need this protection," and getting a responsive legislative process that endorses their position. In that respect, they are speaking from a very strong position: "This is the public good as defined by the public, not as defined by the press."

The legal profession has moved in the direction of public participation, at least to the point of having public representatives on the governing board of the bar. Also, there has been some legislative input into formulating rules of professional conduct. That's one way to go at it. Then the rules are not put together just from the narrow perspective of lawyers or journalists but from a broader public interest.

Thomas Shanks, S.J.:
For journalists, the public has said very little about what professional conduct should be. Journalists themselves have written seven or eight major ethical codes, but they are all self-regulating; there's no disciplinary structure at all.

Christopher Kulp:
Within a highly complex, pluralistic society like ours, with well-known problems in coming to agreement on moral matters, can we expect journalists-coming from these different perspectives-to be constrained by anything other than what the law prohibits them from doing? In that case, morality, if it doesn't just drop out, is certainly not front and center.

Gerald Uelmen:
I think the big difference between the press and the bar in this is that lawyers are publicly licensed. In order to keep our license, we may have to meet certain standards imposed and enforced by the licensing authority. But there's no such thing as a license to be a reporter, so journalists are only answerable to their employers for their conduct.

Issues in Ethics:
And their employers have changed significantly during the past 10 years. Today, many reporters work for media conglomerates. How has that affected journalistic ethics?

Thomas Shanks, S.J.:
That's an important context for this conversation. Many reporters now answer to multinational communication businesses whose main concern is often the bottom line, to the exclusion, in some cases, of real concern for the public good.

Then, because of technology, we have a huge increase in media outlets with the Internet, cable stations, and all the rest. When there is a national story now, we have an unbelievable amount of competition for what's new, what's fast.

Gerald Uelmen:
To me, that pressure is the biggest problem in terms of relying on voluntary restraints. Those who do accept voluntary restraints find themselves at a competitive disadvantage because another news group out there will take advantage of their restraint.

Thomas Shanks, S.J.:
It really affects the level of public discourse. Look at the conflict in the broadcast media over whether to break away from the coverage of the O.J. Simpson civil trial verdict to air the president's State of the Union message. Eventually, the public has to say, "Who are we, and would we really rather choose O.J. over the State of the Union? What does that say about us?"

Christopher Kulp:
When you consider the attention to the O.J. Simpson case, it seems we are engaged in a celebration of people's baser instincts. When you have reporters being rewarded for things that really don't serve the common good, there's need for reevaluation by society, falling especially on the offending profession. Journalists have an obligation here. The public good may be served by entertainment, but some things should not be seen that way. Trials don't qualify as entertainment.

Gerald Uelmen:
If we have created a system that feeds into a downward spiral where the public is more interested in entertainment and titillation than in substance, something is basically wrong. Our system should be elevating the process. But a lot of criticism of journalists should be directed at the public. Basically, we get the media we deserve.

Issues in Ethics:
What role do professionals have in changing the system?

Gerald Uelmen:
When lawyers address questions of how we should govern ourselves as a society, they've got to get beyond representing the narrow interests of the client. That's where I have difficulty with a lot of lawyers: When they step beyond the representation of a client into the domain of what the standard should be, they continue to represent the client. That is, lawyers take on their client's identity across the board, not just in the role of being an advocate for the client but even in the role of participating in public debate and resolving public controversy.

Thomas Shanks, S.J.:
The problem for the journalist is probably the opposite, in a sense. What we have in the traditional formulation is the journalist as the protector of the common good, which is understood as the maximum amount of information for the maximum number of people. If journalists are going to err, they err on the side of trampling individual rights.

The courts, over and over again, have basically said that's fine. So, for example, it becomes very hard to show that someone has been defamed if they're a public person; individual privacy rights often are trumped by the public's right to know. If the lawyer is focusing on the client, the journalist, at least theoretically, focuses on the public to the exclusion of the individual.

Issues in Ethics:
You've described what separates the ethical approaches of journalists and lawyers. Is there anything they share?

Christopher Kulp:
Can we at least agree that the ethical codes of the legal profession and the media ought to preserve the minimal generic requirements of any justifiable practice?

We expect this even from military people who have a "license to kill," so to speak; in fact, they can be court-martialed if they refuse to fight under certain circumstances. But they can't do just anything. Maybe they could win the battle by going in and mowing down a couple of elementary schools or firebombing a few hospitals, but they're going to get in big trouble, and quite rightly, if they do that.

Any legitimate practice is going to have to preserve certain minimal requirements that are prescribed by quite a broad range of normative ethical views. For example, if in either of these two professions, you treat people with disregard, if truth-telling is of no consequence in your code, if your code has no concern for the manipulation and exploitation of people, if your code sanctions cruelty-I submit that these are the kind of basic things prohibited by Kantian ethics; by utilitarian ethics, at least under most circumstances; and by natural law ethics. If you fall outside of these norms, then something is inherently the matter with your practice; the practice itself needs to be modified. If we can't get agreement at this level, we're really in trouble.

Thomas Shanks, S.J.:
We might look at professional codes as a minimum standard, but when the code bumps up against human moral absolutes, it's time to reconsider the code.

This article is drawn from a longer discussion. A transcript of that dialogue is available.