COMMENTARY 863.5: Loopholes and Slippery Slopes

by Michael Josephson on January 23, 2014

in Commentaries, Policing, Law, The Nature of Character

As a former law professor, I know all about loopholes.

I trained students to find omissions and ambiguities in wording — a perfectly legal way to evade the clear intent of laws and agreements. After all, that’s what lawyers are paid to do. And, despite commonly expressed disdain when lawyers do this, that’s precisely what most clients want and expect when they hire a lawyer.

Because long-standing traditions, the rules of professional conduct, and the marketplace support the search for and exploitation of loopholes, I don’t condemn either lawyers or clients who seek the advantages of this less-than-noble and socially corrosive practice. But I have come to believe that strategies to evade the spirit of laws and promises put our integrity on a slippery slope.

Former Supreme Court Justice Potter Stewart once said, “There is a big difference between what we have a right to do and what is right to do.” People of character often do less than the law allows and more than the law requires.

Further down the integrity slope is the common practice of misrepresenting or mischaracterizing facts, lying about true intentions, or falsely denying one’s knowledge or recollection of something. Whatever moral ambiguity may cloak the use of legal loopholes, these practices are fundamentally dishonest and dishonorable.

For example, a common ploy encouraged by politicians and used by political contributors to evade limits on campaign contributions is to donate funds in the name of minor children. Falsely representing that the children actually exercised control and independent judgment isn’t a clever loophole, it’s a fraud.

The same is true for executives who back-date documents, workers who falsely claim to be sick, and parents who lie about their address to get a child into a better school or about a child’s age to qualify for a discount.

This is Michael Josephson reminding you that character counts.

{ 12 comments… read them below or add one }

Wyatt Chambers May 16, 2011 at 1:19 pm

Thank you for these great commentaries. I listen to them every day as I am driving on AM 1070 news radio. Oftentimes this is the highlight of my day.
I really enjoy this post because it speaks to the heart of modern America. For example, I teach English as a Second Language (ESL) to employees on- the- job. Many companies cut corners by hiring immigrant employees that speak little or no English. With English lessons, we improve company communication, retention, customer service, safety, and morale.
In regards to the comment about Thoreau. Thoreau did not believe in any form of conventional education whether private or public. In fact, he started a private school with his brother, and closed it because he did not believe in conventional education within a classroom setting.
Also, his views on healthcare are more about eating a more natural diet and working less.
I think that Thoreau is very misunderstood by many people. He was not politically engaged in his writing other than his way of life was very anti- modern. He lived most of his life holed up in a cabin in Walden Pond, worked less hours than many of us, loved his mother, and sold #2 pencils.
What

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Glenn May 20, 2011 at 5:49 am

Michael,
In the US, it seems, the ethical slippery slope in the legal profession has become a cliff. It appears that deliberate misrepresentation of fact and fanciful interpretation of law have become standard practices rather than abberations. While I suppose that cause and effect are ambiguous, I believe that the initial impetus toward the ethical cliff can be attributed to the legal ethics training in law schools which counsels that the lawyer’s first duty is “zealous advocacy of your client’s interests”. That’s a prescription for bad behavior and a race to the bottom. The remedy should begin with a sea change in ethical legal training which puts honesty as the lawyer’s first duty. It would be a start. Perhaps in a couple of generations we’ll see some impprovement.
P.S. Love the Potter Stewart quote.

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Anonymous May 20, 2011 at 6:08 am

Yes all those so called loop holes are in fact legal, but the unbelieveable part in all of this is where is justice? we as a country claim to have the best legal system in the world yet in almost every case the defense lawyer cares nothing about justice instead his intire focus is to find some way to get their client off regardless of wether they are guilty or not. How can you or any lawyer in good faith allow a murderer to walk back on the street simply because he is paying you a lot of money to somehow confuse people, distort facts use the same old arguments about bad police work, etc…. and feel good about what you do. I wonder how defense lawyers would feel if it was someone in their family that was hurt robbed or cheated……..
G. Rivas

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chips70 May 20, 2011 at 7:48 pm

For a long time I have shared this view point, but not only with the legal profession. For example, CPA’s ( tax preparers) help their clients to circumvent the clear meaning of the law. And in our everyday lives we can notice that when driving people know that allow the speed limit may be 55 MPH they can go 60 and not get a ticket. In the end I believe that America is missing the boat. I see the law as the bare mimimum we must do as a society. We should strive to a higher standard then the minimum.
The legal profession brings another dimension to the debate. Although an attorney has an obligation to vigoriously defend the position of their client, I do not beleive that that duty extends to profering lies, withholding information, or purposely misrepresenting facts. In my forty year careear as an enforcement officer for a public agency I too often saw this a practice standard.

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Steve June 6, 2011 at 11:26 am

I’m shocked by this commentary because Michael Josephson admits that he participated in unethical practices as an attorney and goes on to justify them. (He doesn’t say whether he continues to teach attorneys how to “evade the clear intent of the law.”) He rationalizes that these shady legal practices may be acceptable (although a slippery slope) because of tradition and professional roles, and he won’t condemn these unethical behaviors. That’s a weak argument that can be used to justify any unethical practice: “It’s my job” (Eichmann), or “Everyone else is doing it.”
This morning the IMG head Strauss-Kahn appeared in court to contest rape charges against him. His wealthy wife has hired top attorneys and private investigators to scour the victim’s background. The lead defense attorney Branfman is noted for teaching courtroom interrogation. The news account says his videotape urges “badgering” (his term) the victim so she or he will become confused, angry, intimidated. Would Michael Josephson condemn this legal practice? Or is it acceptable because of tradition and marketplace success?

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george January 23, 2014 at 7:27 am

Michael,
I wonder what others have to say today about this post, it is even more discouraging to see what is going on today with the law in this country, now even the federal government is trying to use the law for their own agenda (i.e. the I.R.S. and nonprofits) and we could just go on and on…creating hate laws to somehow force people to accept their views or else, very disturbing when you look at the big picture I think if common sense people would step away from their busy lives and look at what is happening in our country we would see how free we no longer are.
George

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george January 24, 2014 at 7:06 am

Michael,
I believe the last part of your post which you wrote a few years ago really justifies the means and the end for all these professions in other words “everybody does it” isn’t that what we all say, the tragic part is usually someone is hurt or ruined for life with some of these decisions and very few people really care anymore; I’m curious Michael what is your response today to this commentary?
George

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Brenda January 25, 2014 at 2:18 pm

I used this to examine my own conduct and tendencies, not that of others. Also, to learn who to interpret and know when someone is being less than honest or using a “loophole.” We must confront those who do it, especially if it comes from a public servant, b/k/a politician but the reality is that our very existence is based on a system of loopholes!

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george January 27, 2014 at 3:02 pm

I believe our existence is based on absolutes laid out in scripture, humanity created loop holes to benefit our so called way of life and sadly that has failed terribly in every part of our existence!!!! God had and has a plan for each and everyone of us he just gave us free will to choose his way or whatever other way we make for ourselves; I think humanity has shown what happens when we try to do it our way.
George

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Tom January 28, 2014 at 1:07 pm

“After all, that’s what lawyers are paid to do.”

I was a practicing attorney and now a judge. This may be what some lawyers are paid to do, but it is wrong. This quote by William Raleigh appropriately directs the ethical lawyer:

“There is a fundamental tension in the profession. It is zealously protecting your client while acknowledging your duty to the judicial system. The ability to tolerate and balance this tension differentiates the average lawyer from the exceptional lawyer. An exceptional lawyer has the fortitude and self-confidence to convince a client not to misuse the system.”

Of course, it is naïve to believe that most lawyers would take this road less travelled but thank goodness there are some that do.

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george January 28, 2014 at 2:47 pm

Tom,
I salute your views which in my mind represent character from someone in the profession; it’s refreshing to read that their are still people like you in our judicial system.
George

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Keith January 29, 2014 at 12:00 pm

Tom,

I believe your quote by William Raleigh is one that all law students should be taught.

Keith

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