COMMENTARY 970.3: Loopholes and Slippery Slopes

00 Legal loopholesAs 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 can’t condemn anyone who seeks the advantages of this less-than-noble and socially corrosive practice. And I confess I have done so myself more than once.

I suspect most people are willing to use loopholes and ambiguities when it’s advantageous. We even feel foolish if we fail to do so.

But I have come to realize that if we are not careful we can find that  clever ploys put our integrity on a slippery slope.

Despite the temptations to blindly seek an edge, the moral rules of fairness, caring and decency must override expediency. There is a difference between what’s permissible and what’s proper and there has to be a point where we are more concerned about honor than advantage, about doing what is right to do rather than what we have a right to do.

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.

Among the practices I think take us too far down the slippery 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.

Similarly, I object to the common ploy encouraged by some politicians and used by political contributors to evade limits on campaign contributions by donating 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.

Legal or not, successful or not, these tactics and techniques erode integrity and trust.

People who are adept at finding and willing to use loopholes and ploys may seem to win more often but they don’t win respect and without respect victories are hollow and transitory.

It’is not naive or foolish to place honor over advantage. Worthiness is the highest form of net worth.

Strive to be a good person, better than you have to be.


Comments 14

  1. 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.

  2. 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.

  3. 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

  4. 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.

  5. 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?

  6. 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.

  7. 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?

  8. 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!

  9. 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.

  10. 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.

  11. While it would be nice if everyone played nice, it isn’t going to happen. My gripe is that while we can/should expect evasive, perhaps purposefully vague verbiage, or benign misrepresentation of “facts” from the likes of Lawyers and Salespeople- we have every right to expect better of our elected officials! The concept is really simple- Lawyers are paid by their clients, and Salespeople by their employers, to serve and protect their best interests. Everyone who gets a paycheck from the U.S. Government is paid by the taxpayers, thereby incurring an obligation to serve our collective best interests.

  12. “Everyone who gets a paycheck from the U.S. Government is paid by the taxpayers, thereby incurring an obligation to serve our collective best interests” Yes and no. While elected officials do indeed receive a paycheck funded by the taxpayers, they receive far more funding from various special interest groups for their re-election campaigns and receive offers for employment as special interest lobbyists for when they retire. It is an unfortunate political reality that effectively corrupts our political process and results in the majority no longer having effective influence on those we have elected to represent us.

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