One part of the Senate impeachment trial of Donald Trump disturbed me more for professional reasons than did some of the other absurdities. I watched White House counsel Pat Cipollone publicly violate at least three professional ethical standards required of attorneys with no consequences while standing in front of “potted plant” Chief Justice John Roberts in defense of the President.
I was well into a career as a managing editor publishing business texts and software when I had a conversation about a crisis in professional standards for accountants with a Jesuit professor of ethics. He started me down the path of formally studying the philosophers and theologians who have explored this topic for more than two millennia. In recent years, however, I have come to fear that those of us trained in this piece of human culture are going the way of switchboard operators and lamplighters. And it’s not so much technology doing in public ethical standards as it is one particular President of the United States.
I have used that study in ethics plus my own CPA certificate over the years to train many practicing and prospective accountants in their vocation’s required Code of Professional Conduct. This “continuing professional education” brush-up is required in most states for CPAs who are in auditing practice. Lawyers and many government workers also have these “professional ethics” codes. They prescribe expected behavior when these people are faced with ethical challenges unique to their professions. Of late I have been feeling that a lot of these codes, books and experience can be chucked into the recycling bin. They are routinely and openly violated without consequence by the most powerful people in our society, yet arbitrarily enforced on “Betty’s Accounting Service.”
Professional ethics in government
I have long followed the career of Walter Shaub (Twitter: @waltshaub) and continue to monitor his writings and Twitter activity. Shaub was an appointee during the George W. Bush administration to the non-partisan Office of Governmental Ethics and became its director under President Obama.
From the beginning of the Trump Administration transition in late 2016, Shaub frequently sounded the alarm regarding the shredding of decades-long, bipartisan ethical vetting standards for governmental employees in key positions. The President’s many ongoing conflicts of interest aside, his own daughter and son-in-law failed to comply with basic security clearances and financial conflict rules, and yet they continue in their positions (whatever they are) to this day. The list is long of State Department, Treasury, EPA, and Department of Justice officials who wear their conflicts of interest like badges of honor. Lobbyists with continuing close industry ties just openly moved their clients’ interests right into the controlling agencies.
Walter Shaub’s official voice of protest lasted only about six months into the Trump Administration, but he is still active in pointing out the daily lapses of decency and dangerous ethical conflicts in practice. The Office of Governmental Ethics, much to the dismay of Mr. Shaub, I suspect, has become ineffectual or worse. In my view, this once-independent office now gives the President’s cohorts-in-crime free passes to pass favors onto corporate interests and foreign autocrats.
Pat Cipollone’s three sins
Walt Shaub’s specialty is the legal ethics bubble in this larger professional ethics sphere. I wrote last year about the overlap and inherent conflicts of legal professional ethics with the more classical theories of ethics. Like accountants, lawyers are held to well-defined ethical standards by their licensing and certification organizations.
In many ways, the entire justice system falls apart unless these ethical rules are respected and upheld. For instance, were it not for attorney-client privilege, properly executed, it would be difficult for fair trials to occur at all. Trust is the foundation of much of ethical tradition, and without the cloak of confidentiality between client and attorney, trust in the system disappears. However, if the attorney herself is “in on the crime” in question as a knowing participant, this veil of secrecy is voided, and the attorney becomes part of the injustice system rather than the justice system.
What were the three violations of professional standards violated by White House counsel Pat Cipollone? First of all, he is White House counsel, and not the President’s personal attorney, and yet he has appeared to cross that important ethical line often. The White House counsel represents the government itself and the “Office of the President” rather than Mr. Trump himself. This may seem to be a fine distinction, but recall a former White House counsel named John Dean, who also crossed this line for Richard Nixon. His actions landed him in prison, a time shortened only by his riveting whistleblower testimony. Dean was also disbarred for that basic violation of legal ethics. In short, Cipollone’s ethical duty is to the government and the Constitution, and not to the current holder of the office of President.
Second, Cipollone was apparently a “fact witness” in this case. John Bolton’s upcoming book (not allowed as testimony into the Senate trial) allegedly puts Cipollone “in the room” as President Trump, Mick Mulvaney and others openly conspired to trade military aid to Ukraine for personal political favors. An attorney who is a fact witness is not allowed to serve as counsel in cases that are directly related to his action. Indeed, Cipollone was warned in a letter by House manager Adam Schiff about the inappropriateness of his public role, referring to the American Bar Association code of professional ethics:
“(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.” – ABA Model Rules of Professional Conduct Rule 3.7
Finally, if Cipollone was indeed in the room, then he subsequently made statements in front of the cameras and Chief Justice Roberts about those events that were directly counter to sworn testimony. And since the defense presented no sworn witnesses to refute the House managers’ case, Cipollone appears to have openly lied in his defense presentation to the Senate of “the perfect call.”
“In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client…” – ABA Model Rules of Professional Conduct Rule 4.1
It is possible that the Jesuits at Fordham, where Pat Cipollone studied, teach differently about ethics from the ones who taught me, but I doubt it.
The ongoing failure of accounting ethics
It was the “Savings and Loan Crisis” of the mid-1980s that focused my study of accounting ethics. Many auditors and their firms in that mostly-forgotten debacle lost their licenses to practice or worse. In the 2001 Enron scandal, people went to prison and the venerable auditing firm of Arthur Andersen was basically given the corporate death penalty. However, in the 2008 housing crash, which was loaded with bad accounting, ineffective audits and outright fraud, we have seen very little action of consequence against the most guilty of parties.
Auditors always sit in an unusual ethical hot spot. Their job is to personally attest that all appropriate accounting standards and practices have been met by the firm that hired them. In effect, their job is to blow the whistle on bad financial practice, but their compensation and continued employment is dependent on the very firm that hired them.
The reality is that few of the bad accounting practices that resulted in multi-billion-dollar business losses in 2008 and 2009 have been corrected. Indeed, the stakes, and the questionable accounting, have only gotten bigger. One CPA who had spent his career auditing large agricultural futures and options contracts confided to me that these “financial derivatives” have become so complex and massive that, in his opinion, no one really knows exactly how they really work and how much they are really worth. These practices ruined the economy once, and they will do it again.
In government, business, the legal profession and accountancy, the largest portion of activity daily is really done, not according to enforced laws, but rather by voluntary adherence to ethical standards. We assume that we will not get cheated. Without those voluntary standards, you resort to the law, and at that point the law too often gets arbitrary, tyrannical and applied only to political enemies. There will be a day of reckoning for our financial and governmental ethical “sins” but, to put it in “God language,” Jesus isn’t going to save you from these.
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