Whatever the power and influence of the lawyers prior to the client’s arrival at court, it becomes overwhelming once the parties are on court premises. The powerlessness of clients in the hands of their professional retainers becomes acute. The lawyers control the proceedings because it is they who possess the requisite specialist knowledge. Clients, as employers, have to accept responsibility for the actions of their employees, but their instructions are based on their employees’ own advice. They are caught in the lawyers’ web of power.
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This web is constructed from the triadic interaction of knowledge, culture and discourse. The detailed knowledge of the law, which of course is what people engage lawyers for, is also what sets lawyers apart from other people in the legal setting; and it is the legal setting which allows the lawyer to create an aura of superiority vis-à-vis the legal lay person. It is not just that lawyers possess a certain know-how, but that they are also privy to the values, concepts and understandings which inform that bank of knowledge (DuPlessis, et al. 2011).
The statutes of law do not operate in a vacuum or in a neutral environment, but are the products of, and in their turn help to reproduce, a specific legal context. People who are not versed in this legal context and are therefore not privy to the legal culture encapsulated within it, are doubly disadvantaged in the legal setting. They are alienated from the basic facts of law and from the world-view which provides the background to those legal facts. Thus clients, even when they have been told the legal position in regard to their own case, may find it extremely difficult to see the logic or justice which their lawyers assure them is there. Equally, lawyers may feel frustrated at the apparent inability or unwillingness of their clients to accept what they regard as the even-handedness of the law. Different types of organization present different problems and possibilities for equality activists. In business companies they are up against the often inflexible aims of profit, productivity, and capital accumulation. In the public sector the balance of service versus cost efficiency can (within governmental constraints) be modified by goals imposed by parties with political control. A trade union is different again. It is a membership organization, usually with a constitution reflecting democratic principles and a perceived obligation to represent its members-in internal transaction of its affairs, in external campaigns and in collective bargaining with the employer. A union is also an employer, of paid organizers and administrators, office workers and other employees. When a trade union takes on sex equality it can and must rethink activity in all these spheres.
How should we consider the burden of further speech if we recognize that the legal rule might come as a surprise? As an empirical proposition, one might hazard the guess that building contractors and owners are more likely to be equal in their knowledge of the law than are sellers and buyers of goods. In each case, the suppliers are likely to have some knowledge of the law governing their transactions because that is their business. On the other side of the deal, buildings are usually expensive, and thus justify a substantial investment in the costs of the transaction; moreover, owners are customarily aided, in dealing with contractors, by architects, whose business this also is, and whose trade association supports them with legal information and form documents. By contrast, buyers of goods are often consumers making purchases small in comparison to buildings, and unaided by professionals. In allocating the burden of a rule which is defeasible by contract, there is much to be said for placing the burden of the rule on the party more likely to find out about it, and therefore more likely to make it a matter of express contract–known to both sides–if the rule is ill-suited to the particular case. While there may be no class of parties systematically more knowledgeable in construction cases, in sale-of-goods cases, sellers may well be. Perfect tender is, as already discussed, the seller-burdening doctrine.
Important to an understanding of lawyers and their corporate clients is knowing what attorneys did for corporations. An attorney’s representation of a corporate client or employment as house counsel set out a relationship, but function portrays the lawyer’s role in a clearer brush stroke. Lawyers created new business structures and developed new patterns of commerce. The advice of counsel went far beyond litigation to the essence of business by the close of the century. In the corporate world, lawyers performed many functions. Attorneys were creators of relationships, drafting corporate articles, contracts, and various other legal devices of business. They were facilitators of enterprise, buying and selling land as agents, negotiating contracts, and mediating differences of perspective. Some lawyers, like Jackson A. Graves, were bankers’ lawyers who became bankers. They smoothed the financial transactions that greased the wheels of industry. The law was in books but lawyers on the street put the dynamics of law into action. An important benefit to clients was that lawyers were problem solvers. They sorted out the clutter of enterprise when needed. John D. Bicknell put it well in a letter to E. L. Mayberry of Hemet in 1896: “The affairs of the Bear Valley Company are in such an interminable complication and confusion that no attorney can safely undertake to advise without a thorough examination of the whole history of the transactions of this corporation.” Solving problems sometimes involved an attorney’s immersion in the business of a corporation to bring business and legal sense to the client’s transactions. When an attorney had an ongoing relationship with a company, knowledge of the business made providing legal and business advice easier. Lawyers also sorted out understandings, intent, and meaning in transactions for corporations. Henry W. O’Melveny’s journal entry for Saturday, February 4, 1899, recorded one such session among lawyers. “Knowledge of the law is an essential business asset. Informed owners and managers can protect their businesses by ensuring compliance with legal requirements. They can capitalize on the planning function of law to ensure the future of their business by entering into contracts” (DuPlessis, et al. 2011).
What is the relationship between ethics and the law in business?
What is ethics? How does it compare to economics, the social science wherein commerce is studied? What scope does ethics have and what are its various subdivisions? What are some prominent systems and theories of ethics? What should ethics be understood to involve for ordinary citizens not specializing in moral philosophy; i.e., what is the common sense of ethics? What problems may face us in the relationship between ethics and law, and between ethics and public policy? According to DuPlessis, et al. business ethics are moral principles and values that seek to determine right and wrong in the business world (2011). A final point should be noted about ethics in general. However much one carefully reads articles or listens to lectures about ethics, morality, standards of right conduct, ultimately the matter is in the individual’s own hand, unless he or she is a prisoner or slave or is severely incapacitated. The crucial feature of ethics is, after all, personal responsibility to do well at living a human life. That is not something that can be implanted or programmed into people, but must be a matter of the individual’s own choice and will. Whether a person is indeed making the choice to act rightly and what this means is just what ethics and its various branches, including business ethics, ultimately attempt to clarify.
Ethics deals with the question of how persons should conduct themselves. Managerial ethics, then, is concerned with the question of how a manager (or an entrepreneur as manager) should conduct him or herself so that the organizational goals and objectives are achieved in a manner consistent with the principles of conduct that ethics dictates. There are two areas to which ethical principles can be applied to managerial conduct: first, to the objectives or goals chosen for the organization, and second, to the strategies, tactics, and policies employed for the attainment of these objectives or goals. Therefore, managerial ethics can be divided into two parts; management goals, and management strategies, tactics, and policies.
Business Goals
Within a free market society, it is generally thought that the primary goal of a business organization is the attainment of profit. Though businesses often consider other objectives (service to customers, employee needs and wellbeing, assistance to the needy) it cannot be denied that the attainment of profit is the overall and guiding objective of the business organization (DuPlessis, et al. 2011). Thus, the first question that managerial ethics should consider is whether or not it is ethically proper to make the attainment of profit the objective of a business firm. This is a most important question today, for it is sometimes said that the pursuit of profit ought not be the primary and dominant goal of a business firm but rather must be balanced by concern for customers, employees, or society. In order to see what the standards for proper managerial conduct might be, we need to understand what is meant by “free market society”.
Management Goals
Within a free market society, it is generally thought that the primary goal of a business organization is the attainment of profit. Though businesses often consider other objectives (service to customers, employee needs and wellbeing, assistance to the needy) it cannot be denied that the attainment of profit is the overall and guiding objective of the business organization. Thus, the first question that managerial ethics should consider is whether or not it is ethically proper to make the attainment of profit the objective of a business firm. This is a most important question today, for it is sometimes said that the pursuit of profit ought not be the primary and dominant goal of a business firm but rather must be balanced by concern for customers, employees, or society. In order to see what the standards for proper managerial conduct might be, we need to understand what is meant by “free market society” and “profit,” and what ethics has to say about such a society and goal (DuPlessis, et al. 2011).
The Free Market Society and Profit
The terms “free market society” are not solely descriptive. They signify a set of economic and social arrangements that presupposes a certain ethical perspective. For example, “Murder Incorporated” would not be regarded as a business firm in such a society but would instead be viewed as criminal that ought not and must not be allowed to operate. Similarly, the term “profit” does not mean merely a return on an economic exchange that is over costs; it also involves a certain type of exchange; namely, a free or voluntary exchange. In order to understand the ethical perspective from which the terms “free market society” and “profit” derive their particular meaning, we should consider the notion of “individual rights.” “Business ethics-while sometimes but not always coextensive with legal requirements are also increasingly important to running a successful business” (DuPlessis, et al. 2011).
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A free market society is a society based on the recognition of individual rights. “Individual rights are the means of subordinating society to moral law.” They determine what matters of morality; what ought to be, are to be matters of law; what must be. The view of rights that a free market society is based on is one that holds that every person has the right to life and its corollaries: liberty and property. These rights are rights to actions -that is, the right to take all the actions necessary for the support and furtherance of one’s life, and the right to the action of producing or earning something and keeping, using, and disposing of it according to one’s goals. To have a right in this sense morally obligates others to abstain from physical compulsion, coercion, or interference. Such actions may only be taken in self-defense and only against those who initiate physical compulsion, coercion, or interference. The right to life also morally sanctions the ” and “profit,” and what ethics has to say about such a society and goal. freedom to act by means of one’s voluntary, uncoerced choice for one’s own goals. Thus, the activities of producing and exchanging goods and services in a free market society are both protected and governed by this conception of individual rights.
Ethics, the Free Market Society, and the Pursuit of Profit
Within the legal framework of a free market society, is the managerial decision to make the attainment of profit the overall and guiding objective of the business firm ethically justifiable? Are the principles in terms of which the legal framework of a free market society developed (that is, the foregoing account of individual rights) ethically justifiable? The answers to these questions cannot be discovered by managerial or business ethics alone. These questions require the more fundamental disciplines of ethics and political philosophy. The standard for proper managerial conduct cannot be derived independently of those ethical principles that determine how human beings ought to live their lives and those political principles that determine the ethical principles by which human beings must live their lives, that is, be a matter of law. The standard for proper managerial conduct must be in accord with what the principles of ethics and political philosophy advise; it cannot contradict the overall frame of reference that the more basic disciplines of ethics and political philosophy provide.
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