Not just Giuliani, but I’ve long wondered why all the professions, much more generally, don’t apply sanctions to their members who’ve crossed ethical lines? Without going into the broader question of whether punishment is effective (though maybe that’s where this discussion is heading) why don’t professions not only proclaim a higher ethical standard than they do, but also pursue it in actual practice more rigorously? IOW, a lawyer like Giuliani would be forced to say his clients “Are you insane? The bar association will catch me doing that within a week for sure, and they’ll throw me out of the profession for life shortly thereafter. They did it to five of my friends this month alone. And now I have to report this conversation to the bar, and that means that any lawyer you try to hire for the rest of your life will be put on explicit notice that you have asked a previous attorney to violate ethical practices, and they will have to file regular reports on your behavior, vouching for you under penalty of disbarment…etc”
Yes, it’s cumbersome (and the example I’m providing is ridiculously extreme) but can you imagine if every profession—law, medicine, journalism, even politics—were compelled to obey a much higher ethical standard than they do? In my view, they would benefit, and so would society, if the professions had a regular weeding-out process for their members of more like 10% or even 20%, as opposed to what it is now. When someone loses his license to practice medicine now, it’s a freak occurrence, but I strongly suspect that there is more corner-cutting in medicine than we’re willing to acknowledge. Likewise teaching, accountancy, the military…I think we’re too unwilling to adopt high ethical standards, and enforce them, and the result is that we’ve become accepting of ethical fudging as The Way It Is And Always Has Been. Is it possible for us to ratchet up our ethical standards through more rigorous enforcement?
An industry-run regulating body has to walk a fine line between maintaining a reputation of respectability and trust with the public, and also not pissing off their own members. If dentists start to feel the ADA is sanctioning dentists without good cause the organization will cease to exist or serve any useful purpose. Because dentists run the organization, the scales will tip in favor of dentists who are the ‘in’ group.
Oh, I get why it hasn’t happened. Self-policing is asking a lot of people. But it certainly would have tremendous advantages. I’m seeking to learn how we could achieve this goal, assuming that we could.
So every year, you lose a fifth of the profession?
A few things:
You are assuming that a fifth of all doctors, lawyers, accountants are currently unfit to practise. Got any evidence for that?
How would you replace the lost members, who provide services to the public, if a fifth are disqualified every year? For example, how long would the medical clinic you go to survive if a fifth of its members ceased practice every year? If you have a personal physician, what would you think if you lost him/her every five years on average and have to find another one? And where would the replacements come from? Med schools, law schools, business schools aren’t equipped to replace one fifth of their professions every year.
The length of time to discipline is caused by due process. Professionals are licensed by the state. Pulling a licence can’t be done on a whim, or on a week’s notice (unless there is a clear danger to the public). An allegation of professional misconduct has to be investigated, the individual in question has a right to counsel to assist them, and the state regulatory body has to prove its case to an independent review organisation.
The American Dental Association is not a regulatory body. It is a professional organisation that provides support to dentists. Membership is voluntary. Same with the American Bar Association.
Professional regulation is provided under statutes, with mandatory membership. Discipline bodies exercise those statutory powers. For example, in Guiliani’s case, the discipline is under the auspices of the state courts.
Feels a bit like the Better Business Bureau where businesses are supposed to self-regulate ethical behavior. Except the companies in the BBB are dues paying members and arbitrate for the other dues paying members of the BBB. Guess how often the Better Business Bureau rules against itself when its actual customers are the businesses paying its way? Also they get to strong-arm non-member businesses by giving them low grades since any complaints are not resolved through the BBB and thus can’t be tracked.
There’s numerous articles out there about the BBB’s failings (example) and makes me skeptical about widespread self-regulatory bodies where capitalism and money is concerned.
So you’re saying that the New York Supreme Court, which disciplines lawyers, and which has pulled Guiliiani’s licence, is on par with the Better Business Bureau?
No. Not sure where you got that from. In fact, I would say it’s a good example of why one works (regulation by a government legal body) and the other doesn’t (self-regulation with financial self-interest). Since most professions can’t self-regulate with the authority of the state supreme court, I would suggest that most self-regulatory professional bodies will wind up more like the BBB than the state legal regulatory board.
Then I misundertood you, sorry. The OP is talking about law and medicine as examples, which are two of the most heavily regulated professions there are, on the model of self-regulation under statutory authority.
My understanding of the OP (may be mistaken) was asking why all professions don’t aggressively self-regulate but not necessarily suggesting that every profession be subject to stringent regulation by a legal body. In which case I’d say the answer is “Running a government authorized body to strictly regulate ethical behavior for every profession is probably logistically unworkable”.
Yes, that’s better put than I put it. As to why I think a fifth of all professions is unethical or unqualified, I’m not sure. Maybe, as I say, that’s high. But I do have the sense that self-regulating bodies are unnecessarily conservative in retracting licenses etc, and I think that’s why so few professions are respected. Most people polled say that they hold most professions in low regard (including my own, which I know from personal experience to be very poorly regulated, if at all) and I believe this is a large contributing factor.
Here’s an interesting article that deals with the Guiliani matter, and points out that there may be significant First Amendment issues in disciplining him in relation to his out-of-court statements.
(Daily Beast, so semi-paywalled; I could only read it once before a “subscribe” box came up.)
Except the two regulated professions you mentioned in your OP as problems, the legal and medical professions, are in fact some of the most heavily regulated by statutory bodies, not simply industry self-regulation.
Our differing perspectives may depend on our own personal experiences. You don’t seem to think your profession is well-regulated. I think mine is.
For example:
I have to take a set number of hours of continuing professional development courses each year, or else my licence is suspended;
Except in certain circumstances, I have to carry malpractice insurance in amounts set by the regulator (not all regulated professions have that requirement, but it is uniform across Canada for the legal profession);
i have to contribute to the defalcation fund, to insure that if a client is ripped off by a lawyer, every lawyer in the province contributes to paying that client back, in full;
I have to pay annual fees to support an effective discipline system;
the discipline system recognises that in some cases, problems are caused by personal issues, such as alcohol or drugs, and requires counselling and supervision by another lawyer to resolve the problem, failing which licences can be terminated;
the discipline system allows the regulator full authority to investigate all of my files and review everything I’ve done, if there is an allegation of misconduct;
the discipline system has an investigatory committee that reviews allegations of misconduct, with the assistance of counsel specialising in professional discipline;
if the investigatory committee finds probable cause, it can refer the matter to the discipline committee for a full hearing;
the discipline committee has a broad range of sanctions, if they find professional misconduct, which can be applied depending on the severity of the misconduct, including fines, restitution orders to the client, suspensions, ordering further training, ordering supervision by another lawyer from outside one’s firm, up to termination of the licence.
One of the things that strikes me in discussions of this sort is that people automatically go to termination as the only effective discipline. However, a fair discipline system can’t be a “one remedy only”; the punishment has to fit the misconduct. That’s a basic principle of due process.
I don’t know what profession you’re in - does yours require licensing? Or is it something that anyone can say “I’m a _____. Hire me!” Or something in between where you can get a license for more legitimacy, but you don’t need one in order to do whatever it is you do?
Also - how should this work?
Jane does something unethical.
Do they find out because she’s regularly audited (is this something that can be audited?) or do they wait for someone to report her? After they’re aware of the possibility of the infraction - is there an investigation? Does she get a chance to defend herself? What does that process look like? How long does it take? Who is involved? How public/private is the inquiry (a public accusation could destroy her reputation even if she’s eventually cleared - is that ok?)? What are the possible consequences - is it just that she’s out of the profession forever or is it temporary? Can she appeal?
Basically - how does/should it work?
2 recent incidents strike close to home from the above. The first is the FAA and Boeing. The last 20 years to so, the FAA lost sight of what they were doing and let Boeing “self regulate” themselves. Boeing in turn took advantage of this and soon instead of engineers designing and testing new items, the people in finance took over. Those of us on the factory floor saw this. It seemed like a lot of things were done to save money, not to make the planes better or safer. Along with this was factory management placing undo pressure on those that worked as the manufacturing reps for the FAA and the customers. Thankfully the union for the reps stepped in and Boeing was left with egg on their face. The FAA has also become more visible to those on the factory floor and are not afraid to stop production if they find any problems. Unfortunately, it appears they are finding too many. For years I always stated I would have no issues flying on a new Boeing airplane. My confidence in the company had dropped a bunch the past few years. The above is why I retired when I did.
The second is my dentist. He recently had his license to practice pulled and is suspended from applying for reinstatement for a minimum of 10 years. This happed after the 3 warnings from the state board that oversees dentists for misuse of prescription medicines, failure to complete drug addiction treatment and multiple instances of failure to control his prescription pads. None of his staff knew about this till his practice was shut down by the Washington State Department of Licensing. I found a small snippet on line from the DOL website and submitted a FOI request to the state. I was shocked how much info was supplied. My question for those in charge, why did the state DOL have to shut this guy down, the state board that oversees dentists could have done this themselves. My wife and I are questioning the work he did on us, was he under the effects of these drugs while working on our teeth?
In my opinion, both are examples of letting the fox run things in the chicken house. One cost a bunch of people their lives, the other has delayed the completion of some dental work I wanted done before I retired.