Trapped: When Acting Ethically is Against the Law

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There is no prohibition in the ABA Model Rules against a departing lawyer advising clients that he or she intends to leave the firm. The nature of the communication is the major concern. Pursuant to rules 7. The communications should not urge the client to sever a relationship with the original firm or disparage that firm. The requirement under Rule 7. Ideally, a departing lawyer and the firm can agree on the content of a joint announcement. Whether the lawyer can take client lists, continuing legal education materials, practice forms or computer files may turn on principles of property and trade secret law.

A law firm in Massachusetts maintained a Web site that contained a link allowing visitors to send e-mails directly to lawyers at the firm. But the site contained no warning or disclaimer regarding the confidentiality of the information sent. So when a company—call it ABC Corp. Opinion May 23, First, because the firm failed to provide necessary disclaimers, the committee said the lawyer who received the e-mail must maintain the confidentiality of the information furnished by ABC Corp.

And second, the firm may not continue representing XYZ Corp. In this case, a marketing tool intended to help attract clients appears to have lost a firm two of them. The bane of our existence. Step away from your desk or ignore your BlackBerry for an hour, and 15 more have arrived—all demanding instant responses. For further proof of this mixed blessing, consider these e-mail ethics traps waiting for lawyers and clients. Of course, most of us automatically label every e-mail we send that way, just to make sure.

Even the order to the deli for five corned beef sandwiches with Russian dressing. Label the message itself. Then a judge will know you actually thought about it. E-mails permit instantaneous communication. They can forward a message on to hundreds more through long strings that add but rarely subtract addressees. So share e-mails only with client representatives who need to know. Watch where your privileged message is going, and make sure your clients do, too.

E-mails accumulate by the millions. As a result, companies institute policies for discarding the damned things. The consequences of post-threat destruction are severe indeed, for both client and lawyer. Marland dropped his suit after agreeing to accept a percentage of any fees Thelen Reid got from the California suit. Thelen Reid filed its own action in U. District Court seeking to enjoin Marland from pursuing his action. In February, a district judge ruled that Thelen Reid must produce documents the firm had sought to protect on grounds that they related to its representation of the insurance department.

District Judge Vaughn R. The duty to communicate is essential to every aspect of the fiduciary duty a lawyer owes to the client. Trinity Health Systems Inc. Statewide Grievance Committee , A. Remember to initiate communications on six key occasions: The duty to communicate with clients is simple enough. Martyn is a professor at the University of Toledo College of Law.

New York City attorney Vincent I.

Eke-Nweke drew up a lease for a building on Staten Island. It had some problems—enough for the document to come under the scrutiny of a U. But contrary to New York requirements, Eke-Nweke never advised the client to seek independent counsel, nor was the lease written or explained in terms she could reasonably understand.

Weinstein in his Aug. First, the terms of the transaction must be fair and reasonable for the client; and the lawyer must explain them, in writing, in a way that is reasonably comprehensible to the client. Third, the client must sign an informed consent to the transaction disclosing that the lawyer is representing the client in the deal.

Doing business with a client includes such things as loaning money a particularly bad idea , obtaining an ownership interest in a corporate client, joining in a business venture for a client, and receiving a security interest in client property to protect your fees. In McMahon , the attorney should have provided the Rule 1.

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A lawyer may also be required by Model Rule 5. Also, making substantive changes to an existing fee arrangement with a client may cause it to be treated as a business transaction. In re Hefron , N. One final consideration is that many professional liability policies will not provide coverage if the lawyer has a financial interest in the client. Shely of the Shely Firm in Scottsdale, Ariz. When attorneys Scott G. Lindvall and Patricia J.

Under a joint defense agreement, they attended confidential meetings with other defendants in which evidence and strategies were discussed in detail. A few months later, Pfizer Corp. A defense motion to bar Kaye Scholer followed almost immediately. Kaye Scholer contended that it had dealt with the potential conflicts before taking on Pfizer, and that Lindvall and Clarke had even obtained a written waiver of conflicts from Ivax. Not enough, said U. District Judge John J. Lifland in Newark, N. The joint defense agreement had created an implied attorney-client relationship between Lindvall and Clarke and all the other defendants in the gabapentin action, so conflict waivers should have been sought from those other defendants, too.

Lifland barred Kaye Scholer from representing Pfizer. In re Gabapentin Patent Litigation , F. If I had a quarter for every time I heard about a firm that got itself in a pickle because of a failure to anticipate conflicts, I could buy dinner for eight at a top Manhattan restaurant. Kaye Scholer did try to plan ahead in the gabapentin action, and there are good arguments why consent from Ivax should have sufficed.

They would never do that in any other field of law. Would an antitrust lawyer who ran into a complicated intellectual property question make an educated guess at the answer? He or she would consult an IP lawyer or do some serious research. Doing neither would be malpractice. The legal ethics class they took 10 or 20 years ago in law school? But those days are long gone. The law and ethics of lawyering is a specialty and, like other fields, it is constantly changing. Harry Issler was listed as counsel of record on a medical-malpractice case, even though he referred the case to Greg Starr.

The two New York lawyers entered into a fee-sharing agreement in , when they shared office space. Their work relationship soured in , when Issler lost his lease and would not sublet space to Starr at his new office. Renwick held that, under the New York ethics code, joint responsibility essentially means that the referring lawyer—in this case, Issler—assumes joint and several liability for any act of malpractice, even if he or she has no ethical obligation to supervise the work of the lawyer to whom the case was referred. The judge ruled that the language of their fee agreement met that requirement.

The Comment to Rule 1. The ABA House of Delegates added that definition to the Comment in to clarify that lawyers who share fees on a joint responsibility basis in effect become partners for purposes of the representation, and assume financial, legal and ethical responsibility for the matter that would also presumably include a duty to supervise under Model Rule 5. State ethics opinions do not agree on what is meant by joint responsibility.

The State Bar of Wisconsin Opinion E found in that the referring lawyer has a duty to make competent referrals, must remain sufficiently aware of the performance of the lawyer to whom the matter was referred, and must assume financial responsibility for the matter. But Arizona Bar Association Opinion states that the requirement is satisfied if a lawyer assumes financial responsibility for any malpractice. They did not think an earlier representation of a wholly owned subsidiary of the company disqualified them. The physicians risked being caught in a conflict between the patient and the relative, and believed a conflict would threaten the patient's wellbeing.

If the relative insisted on treatment the physicians did not want to intervene in a conflict and so had difficulty in upholding the patient's best interest. Physicians knew from experience that, once started, dialysis treatment could continue for a long time with the risk that the patient would become totally confused. Yet, in order to avoid a conflict, physicians hesitated to make the final decision to withdraw treatment. They felt trapped by demands from the patient, the patient's relatives and also from frustrated RNs who hear complaints from the patient.

We let the relatives know that he wanted to stop the treatment but they ignored him He suffered from an infection which he couldn't cope with and we were obliged to amputate one of his legs. The wound from amputation never healed and it became necrotic with an open wound area where the bone was visible. Despite that and repeated discussions she [the daughter] could not accept that there was nothing to be gained'. In retrospect, from an ethical perspective, I think we should have defended the patient, disregarded the daughter and taken the risk of being reported, but she was strong and overbearing, so we did as she wished.

I still wonder if we did the right thing and who we did it all for, was it for her [the daughter's] sake or for his [the patient]? And I think we failed the old man [patient]'. When they reflected, physicians questioned the purpose of dialysis treatment and wondered who, after all, benefited from it.

Their conscience was troubled which made them realize they had not been sensitive enough to the patient's wishes. Their intention was to do good by complying with the relatives' demands and avoiding conflicts. Instead, the patients suffered. The physicians wished they had been brave enough to help the patients and relatives understand what was best for the patient, even if it meant encountering conflict. In these situations the physicians found that it was not medically defensible to start or continue dialysis, yet felt uncertain about their authority and the power of their words.

They did not want to influence the patient's and relatives' choice and hesitated far too long before opening the question about withdrawing treatment for a fragile patient whose opinion was sometimes difficult to interpret due to dementia or ambiguous communication. According to the physicians, this was a life or death question; the patient's answer depended on how physicians raised the question. Dying sometimes takes a while but it obviously creates frustrations and you always get the answers afterwards in some way Sometimes it can be painful'.

The narratives told about patients, relatives and physicians from different perspectives and provided a variety of interpretations of the situation. From experience, the physicians could see the condition of the patient deteriorating, but maintained a defensive manner because they sympathised with the relatives and were afraid of influencing them too much. The physicians became uncertain, decided to continue dialysis and hoped that the relatives would gradually gain some insight. The narratives speak of situations when the patient was very critically ill, suffering severely with no chance of improvement.

The RNs complained because they had to be very attentive to the patients during dialysis and sometimes even had to restrain their arm to prevent them from hurting themselves.

The physicians believed that patients and relatives were living with a kind of hope and did not want to force them to face reality, even though they wanted to suggest withdrawing treatment. They felt trapped in their uncertainty and afraid of using their authority. She and her husband had been living together for a long time and were quite isolated so the husband had to take on a great responsibility. Most of their life revolved around her and her care In some way it felt as if we were giving her dialysis for his [the husband's] sake rather than for her own He didn't want to withdraw treatment because he still felt she had a kind of quality of life when not on dialysis'.

On reflection, physicians had troubled consciences because they realized they were afraid of exercising their authority to guide the patient and their relative in the most realistic direction. Physicians believed they did the right thing in giving the patient and relative enough time to let the best decision mature but, afterwards, it felt as though they had failed the patient. The physicians felt alone when having to make a critical decision. They experienced a lack of consensus. They tried to discuss things with each other but found it difficult because they had different values, professional experiences and opportunities to see alternatives.

Thus, consensus was not easy to reach. Ultimately, the principal physician had to make the decision alone and take responsibility for the consequences, unsure if it was for the best. Less experienced physicians believed dialogue with colleagues with similar views would be helpful and wished they had more time for in-depth discussions in ethically difficult situations. Therefore one should not be forced to make decisions that one cannot back'. The narratives also concern the difficulties that can arise when the decision to withhold dialysis has been made but a physician with temporary responsibility begins dialysis without consulting the principal physician.

That physician then has to shoulder the responsibility for a decision taken by another physician. Physicians know from experience, that once dialysis is started it is much more difficult to withdraw and a temporary treatment order may become permanent.

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On reflection, physicians may feel their own vulnerability, having to make decisions about life and death without support from their colleagues or superiors and to accept decisions made by someone else. Having to make crucial decisions alone leaves them with feelings of having failed the patient and a troubled conscience. The physicians felt inadequate because of lack of time and conflicts between ideals and reality.

This concerned everyday situations describing a stressful work situation with high demands, an increasing administrative workload and reduced time with the patient. They wished there were enough time for careful discussions with patients and relatives in situations where crucial decisions had to be made. In the narratives, the physicians spoke about feeling squeezed in impossible situations and feeling inadequate when facing prioritizing patient care against necessary administrative tasks. What tasks do we have and how much time do we have? Sometimes it is not very reasonable.

Quality controls are increasing, documentation will increase and paperwork takes more time. There is less time for patients so you really do not manage to do the work you should do. If you do not do everything, then you get a troubled conscience because if you do not manage to do everything then you do not feel quite easy.

When reflecting on their work situation, physicians spoke about a troubled conscience brought on by feelings of inadequacy because of ambiguous goals. They experienced a moral duty to provide patients and their relatives with enough information, yet felt hindered by their administrative workload. The physicians described demands to realise their own high expectations, tacit professional ideals of adequacy and great competence or skill. The narratives talked about feelings of inadequacy when they were unable to live up to their own high expectations and demands for competence, imposed by themselves or others.

In order to achieve the necessary competence and search for medical information, physicians needed to use their personal time, which interfered with their private lives. The narratives spoke of ambitions to engage in unfinished research and of being ashamed to ask already overloaded colleagues for help with unfinished work. The physicians felt a tacit demand not to burden colleagues with their unfinished work and struggled to complete tasks in their spare time.

In this struggle, the physicians tried to find solutions by themselves instead of sharing their burden and asking for help. The narratives spoke about demands and expectations from their family and from work causing feelings of being split between personal and professional demands. The experience of inadequacy emerged when they were involved in a conversation with a patient while being aware that their family was waiting for them or their children had to be collected from kindergarten.

Being unable to give the patient enough time and defaulting on their own family because of lack of time created in these physicians a sense of being devalued. Reflecting on their work, the physicians realized that, although they tried to do their best to master all the situations, their conscience might still condemn them, pointing out that they should work harder and do better in order to live according to the tacit ideals of their profession.

The physicians and RNs met the same patient, but in different situations and from varying perspectives. Often the physicians had seen them in the consulting room, sometimes for some years before the patients became dependent on dialysis. From experience, physicians knew that patients are usually healthier when they first encounter the physician, but that the situation may change.

When dialysis is started patients are sometimes in a deteriorating state of health and often depressed. Physicians also know that during dialysis, the patient will usually entrust the RNs with their troubled life story but, a few days later, may tell the physician that everything is just fine.

One thing is that patients behave strangely. They are here so many hours per week with the dialysis personnel and they meet the same nurse almost every time. The patients seem to be able to complain a lot to the RNs. Then when I, as a doctor, arrive ten minutes later, everything is going quite well for the patient.

We get different information from the patient as well'. RNs' opinions about whether to start or continue dialysis treatment for a very critically ill patient was one area of dissension between RNs and the physicians. When the physicians decided to start or continue dialysis for a critically ill patient, they felt questioned and accused of failing the patient. They experienced a lack of respect or understanding from RNs, even if at times they felt uncertain about whether or not their decision was appropriate.

The narratives also revealed a major conflict between the curative and palliative aspects of dialysis. On the one hand, there is a curative view of dialysis which deems it a failure when a uremic person without transplantation options deteriorates and finally dies, often in a critical condition. On the other hand, dialysis may increase the patient's wellbeing resulting in improved appetite and increased energy, at least for some time. From a palliative perspective, dialysis treatment can be experienced as meaningful; however, there was a lack of consensus among the physicians or between the physicians and the RNs.

The patient and relatives have time to end their life'. Physicians perceived a distance between themselves and RNs and wished they could understand the RNs ' intentions. They wanted to find a way to explain the reality of the patients ' and relatives ' situation. When obliged to defend their decisions, or decisions made by the physicians group with which they themselves may have disagreed, the physicians sometimes felt uncertain or ambivalent. Reflecting on these situations, their conscience was troubled because they had not stood up for their decisions.

The aim of the study was to illuminate the meanings of being in ethically difficult situations that led to the burden of having a troubled conscience, as narrated by physicians working in dialysis care. The findings show that the physicians felt trapped in irresolution when obliged to decide about withdrawing or withholding dialysis in the face of dissonant opinions. They experienced being torn by conflicting demands when ideals and reality clashed. The situations related in their narratives represented true ethical dilemmas in which physicians wanted to do good by avoiding doing wrong.

Trapped: When Acting Ethically Is Against the Law | New Media

In ethical dilemmas, however, there is no one truly good solution [ 3 ]. The physicians' choice was, therefore, not between doing good or bad but rather which would be the lesser of two evils [ 28 ]. When telling their stories physicians realized that by avoiding one evil they unintentionally opened the door to the worse evil by not being sensitive enough to the patient's wishes, failing the relatives by not bringing up the crucial problem for discussion and ultimately failing themselves by not being true to their own values.

Ricoeur [ 28 ] says that in the concrete situation when conflicts between different demands clash and we not only have to choose between good or bad but rather between an evil and a lesser evil to protect life, it is important to validate one ' s standpoint. Silfverberg [ 29 ] believes that an ethical dilemma makes us feel confused and uncertain because we do not know what to do, but we still feel bound to act with no rules to follow [ 29 ]. To find a clue as to what is best for the other in an ethical dilemma, it is essential to be sensitive to one's own attitude and clarify one's inner motives [ 29 , 30 ].

The physicians in this study tried to follow what they believed was a good way of handling the ethical dilemma caused by conflicting opinions. They tried to do good by avoiding conflict between patients and relatives and wanted to open the way for consensus while not influencing the relatives' opinions. In hesitating to make a final decision about withdrawal of treatment they hoped the patient and relative would arrive at the right decision.

Instead of following their own conscience in giving the patient and relative guidance, the physicians said they kept out of the way. They felt they were hemmed in and, in avoiding taking action, assumed a defensive attitude. It is easier to continue considering but to do it continuously robs us of the power to act. Disregarding one ' s conscience means escaping from the true self and is often followed by feelings of guilt. According to Fromm [ 32 ] when you are not sensitive enough to follow the voice of conscience, conscious feelings of guilt about the person being failed will be induced.

Later on a whole complex of unconscious guilt feelings for failing oneself arises. In the midst of unconscious feelings of guilt the experience of being trapped is generated [ 32 ]. The presence of such feelings of unconscious guilt was traced in the interview situation when the physicians' expressed a desire for another way in which to meet an ethical dilemma.

The physicians wished they had been more sensitive to their own conscience and had been brave enough to influence the relatives in order to avoid the patients' suffering. Ricoeur [ 28 ] claims that conscience comes both from outside and inside. Its function is to examine our actions with suspicion, the judgmental function of conscience, but also to give us attestation that we are a sufficiently ethical being, in other words our-power-to-be. According to the authors' interpretation the physicians in this study wanted to be confirmed, by their conscience but also by their colleagues and RNs, when making decisions in ethical dilemmas.

Lacking support from colleagues and understanding and respect from RNs, the physicians felt devalued.

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  7. As mentioned above facing an ethical dilemma means facing conflicting moral demands where no decision is totally good [ 3 ]. It means that we often need to consult not only our conscience but also others to ascertain that the decision is as good as it can be, given the circumstances. We need to feel assured that we have not overlooked better ways to act [ 4 ].

    Trapped: When Acting Ethically Is Against the Law

    Analysing situations involving ethical dilemmas together with others opens the way for sensitivity to others' perspectives and promotes moral development [ 22 ]. Interviewing psychiatric care providers about having troubled a conscience Dahlqvist et al [ 34 ] found that being sensitive but having a realistic approach towards one's conscience enhanced reconciliation and an ability to feel "good enough".

    In this study, physicians spoke about feelings of being burdened by having sole responsibility in situations involving decisions about life or death. When investigating the ways physicians dealt with challenges in their work Andrae [ 35 ] found that they are educated to master all situations, are generally expected to have answers to all questions [ 35 ] and to make medical decisions on their own [ 36 ].

    Hansson [ 37 ] describes the medical profession as not having developed a collaborative culture with support and shared responsibility for patients. The physicians in this study did not only have difficulties in reaching a consensus with colleagues, they also described feelings of being questioned and blamed by RNs. A prerequisite for being able to endure sole responsibility was being able to share the agony of being morally responsible when things go wrong. Silfverberg [ 29 ] emphasizes that an ethical mind with a feeling for concerns and judgements can be developed not only through being sensitive to the voice of conscience but also by observing and being corrected, in a sense of togetherness, by other people.

    In such an ethical climate personal character and virtues may develop. In this study some of the physicians discussed ethical dilemmas with colleagues whom they knew from earlier experience had similar opinions and with whom they would probably be able to reach a consensus. The physicians and RNs had various experiences and perspectives concerning the patient's situation which they seemed to have difficulties communicating about. That these professional perspectives were not shared became an obstacle to reaching a common understanding. Lindseth, et al [ 39 ] showed that physicians and RNs in Norway had differing ethical perspectives in relation to the patient but deeper reflection revealed that they had similar core values.

    When different perspectives can be seen as complementing each other, in-depth dialogue between and among various professionals allowed mutual understanding and ultimately consensus concerning acceptable actions [ 40 ]. Physicians who succeeded in implementing very difficult decisions shared the following characteristics; they dared to remain in difficult situations, acted respectfully towards their opponents, were open to criticism, created a feeling of solidarity and succeeded in discussing the situation in such a way that they could achieve consensus.

    The number of participants in this study is small, only five physicians were asked for interviews. The reason for this is that seven RNs were also interviewed for the study. The extent and richness of the resulting interview text and findings, however, led us to divide the reporting of the study into two manuscripts.

    The results of the RNs' interviews and the comparison between the groups will, therefore, be reported elsewhere. Despite the small sample the findings make an important contribution to developing a way of encountering ethical dilemmas. Such a distance cannot be realized completely [ 27 , 41 ] but becoming more aware of the situation through reflection helps to limit the bias [ 2 ].

    The authors are all RNs working in the following fields: All three authors were involved in the analytical process and focused attention on awareness of their own values in order to increase the credibility of the analysis [ 2 ]. Interviewing another professional may constitute a methodological limitation. However, there may also be a positive effect in that physicians might be more open and willing to explain more explicitly what they mean to another professional.

    Another professional may also be sensitive to aspects of the phenomenon that are taken for granted within one's own profession. A further limitation is that the interviewees were preselected by the chief physician according to the criteria for inclusion. However, the chief physician asked the clinical ethics committee for help and he knew which of the physicians on the ward would meet the inclusion criteria and could provide rich narratives. The interviews were carried out at one of the few hospitals in northern Sweden where dialysis is performed, making it possible to identify the participants.

    In order to preserve their confidentiality, age and gender are excluded from the text. During the analysis process five sub-themes emerged which are linked. The sub-theme "Feeling squeezed between time restraints, professional and personal demands" covers conflicts concerning prioritization of time in everyday situations. It does not concern crucial decisions about life or death but crucial decisions about how to do good or be good. The findings from this study cannot be generalised, but can probably be re-contextualized to other contexts where similar ethical dilemmas occur concerning the withdrawing or withholding of treatment, e.

    In this study the physicians in dialysis care narrated situations where ethical dilemmas occurred and pointed to possible ways in which conscience could be used as a guide instead of being a burden. In facing ethical dilemmas these physicians suffered from a troubled conscience when they were torn by conflicting demands and trapped in irresolution, despite these feelings being a natural response to ethical dilemmas.

    This is because in ethical dilemmas there are no rules governing the actions to be taken, only an ethical demand to act [ 29 ]. In the ethical dilemmas narrated, the physicians were not only burdened by a troubled conscience, but were also challenged by feelings of being left alone, burdened with moral responsibility, not understood and questioned about their way of handling the dilemma. The physicians felt devalued when they were not confirmed by colleagues, RNs and their own conscience. The findings, however, point to another way of encountering ethical dilemmas - being guided by their conscience.

    This means sharing the agony of deciding how to act in ethical dilemmas; being brave enough to bring up the crucial problem among those involved, feeling certain that better ways to act have not been overlooked and being respected and confirmed regarding the decisions made. This study points to the importance of increasing the level of communication within and among varying professional groups when ethical dilemmas occur and no way of solving the problem seems to be acceptable. Further research is needed into how to communicate those overlooked values that the voice of conscience seems to draw our attention to.

    CFG carried out the interviews, participated in the analysis and completed the manuscript VD read the interviews, participated in the analysis, helped to draft and complete the manuscript. AS designed the study, read the interviews, participated in the analysis, helped to draft and complete the manuscript.

    All authors have read and approved the final manuscript. Further thanks to Professor Fredricka Gilje for advice and professional knowledge in the analysis phase and to Pat Shrimpton for revising the English. National Center for Biotechnology Information , U. Published online May

    Trapped: When Acting Ethically is Against the Law Trapped: When Acting Ethically is Against the Law
    Trapped: When Acting Ethically is Against the Law Trapped: When Acting Ethically is Against the Law
    Trapped: When Acting Ethically is Against the Law Trapped: When Acting Ethically is Against the Law
    Trapped: When Acting Ethically is Against the Law Trapped: When Acting Ethically is Against the Law
    Trapped: When Acting Ethically is Against the Law Trapped: When Acting Ethically is Against the Law
    Trapped: When Acting Ethically is Against the Law Trapped: When Acting Ethically is Against the Law
    Trapped: When Acting Ethically is Against the Law Trapped: When Acting Ethically is Against the Law

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