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.

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