As Honest As We Like to Think We Are

Posted on Categories Legal Ethics

So . . . if no one knew when you lied, would you do it? Would you lie to save money? Would you lie to save your client money? Would the amount of money matter?

I have often taught negotiation ethics using Richard Shell’s division of people: the idealists, the pragmatists, and the poker-players. The poker-players assume that everyone who negotiates views it as a game: we all know that bluffing and puffing are part of the system -– caveat emptor. The pragmatists think that lying is generally unwise -– you’ll be found out, it’s not worth it, etc. The final school is the idealists -– lying is wrong and you shouldn’t do it.

It is wonderful when you can find a real-life example of idealistic telling-the-truth, and so I connect here to a lovely story about J.P. Hayes, a golf player. He played a nonconforming ball for a single hole of the second stage of the PGA Qualifying Tournament. He realized it more than a day after the “violation,” called it on himself, and disqualified himself from the tournament. This has, according to Yahoo, some severe career-altering effects down the line.

Now, the easy move here would be to either do nothing or blame the caddy. Hayes rose above both those temptations, putting all the blame on himself and asserting that everybody else on the PGA in his shoes would have done the exact same thing. We’ll never know, but let’s hope so.

Also, Hayes already has more than $7 million in career earnings, so it’s not like he’d consigned himself to another year working the counter at the Quik Stop. But still, knowing you’re taking yourself out of the running for a year of career stability and wealth takes some serious situational ethics.

But, as J.P. puts it, at least he can sleep at night. What would you have done?

Cross posted at Indisputably.

11 thoughts on “As Honest As We Like to Think We Are”

  1. I have read a lot about this story. Good for J.P. It is amazing how much media attention this story has received. The attention indicates that quite a few people are not so sure they could have done the same. After all, if this wasn’t such a novel story, it wouldn’t have been reported so widely. I’m not sure this reflects well on society.

    As Professor Schneider suggests, this story certainly relates to some of the ethical issues we talked about in ADR at the end of the negotiation section. In that discussion, it became apparent that unethical conduct was often still considered legal. Despite this low bar, my goal throughout my legal career is to be as ethical as possible. Without these principles, I believe, like J.P., that it would be impossible to sleep at night. Beyond my legal career and into my personal life, I make every attempt to carry myself as J.P. has, and I fully expect to do so in the future. And certainly, if ever faced with a situation of a magnitude similar to J.P.’s, I will conduct myself in a similar fashion.

  2. What if the events of the tournament are revisited months or years later? Is the possibility that one could get caught enough to make him or her tell the truth? JP made an ethical decision here and it should be recognized. Yet often times, the simple risk of getting in trouble is enough to keep people honest.

  3. I would have done the same thing as J.P. Hayes. I think honesty is the best evidence of good character and integrity, and I can’t see how anyone would feel good about winning if they have cheated. I definitely would not be able to look at myself and consider myself a winner after cheating, even if no one else knew. I definitely would not be willing to put my reputation or integrity on the line either. I believe that cheating is not only a sacrifice of one’s integrity, but it is a sacrifice of the integrity of the “game.” What is the point of playing a “game” if everyone is not willing to play it fairly?
    I think this translates to the practice of law. The integrity of the justice and legal system is based on the assumption that everyone is acting fairly. As lawyers we are able to accept the outcomes (for the most part) because we believe everything was done fairly, so it was the best that we could do for our clients. But once again I think lying and cheating all comes down to the type of person and lawyer you are striving to be. If you want to be the junkyard dog, then you might not think that J.P. Hayes made the right decision. You might believe that lying and cheating is all a part of the game, and that as a lawyer it is all about getting more for your client. You might straddle the line between ethical and non-ethical behavior, and see nothing wrong with it. But at the end of the day you are the one who has to look in the mirror and ask yourself if it is all worth it. I don’t think it is. I think it is possible to get your clients the most you can without sacrificing your morals in the meantime.

  4. Like Professor Slavin, I would like to think that I am an idealist and would do the same thing – tell the truth because it is the right thing to do. However, I have never found myself in a position to disqualify myself from earning a year’s salary that is in any way comparable to what Mr. Hayes would earn. It is easy to say that I might do the right thing when there all I have to lose is a fantasy of wealth. The closest I have ever been to that is having to tell the cashier at my local grocery store that the mushrooms she has just charged me for are actually portabella and not button – a substantial price difference for a student. (Not to mention the fact that this has happened on more than one occasion.)
    When I think about what I have to lose if I had kept my mouth shut, I realize that I would be ripping off my local grocery store, which I happen to like and hope that it stays in business despite all of the larger chain grocery stores opening up nearby. It is not probable that if I was caught, I would be banned from the grocery store or charged in excess of the true cost of the more expensive mushrooms. It is also not likely that the money they lost on my mushrooms would cause the store to go under. I suppose that I have been honest because I believe it is the right thing to do. However, I cannot say for sure that this desire to do the right thing might not be outweighed by greed if I stood to lose such a substantial amount of money. I would like to believe that I would not; however I have never been blessed with such a tough decision – Tell the truth and live off the several million dollars I have already accumulated for the next year or lie and stand a chance at earning even more.
    However, at the same time, I think that I am also a pragmatist. I do not know much about golf, so I am curious as to what would happen if Mr. Hayes rolled the dice and kept his mouth shut but was caught. Aside from having compromised his ethics and, perhaps his reputation, might there be pecuniary penalties? If this is the case, the potential to win more money might be outweighed by the constant fear that he might get caught, have to pay it back and then suffer some other loss. I think that this might be a considerable factor. Aside from wanting to do the right thing, the fear of having the wrong decision follow me around for the rest of my life would weigh very substantially in favor of telling the truth. Again, if I had ever accepted the cheaper price on mushrooms, I don’t think I would have lost much sleep but it is a very different ballgame with regard to a fortune I can only fantasize about.
    I guess what I am saying is that it is easy to be an idealist when you don’t have much to lose. I believe that if I had more to lose, I might be more influenced by the pragmatist perspective though I might like to think that I am at least partially influenced by the desire to do the right thing.
    There is also the utilitarian argument. What if I was representing a client and I found a misrepresentation that I had made. What if I really believed my client was entitled to win the case – that it was only just that she win – yet the law is not on her side. If I expose my misrepresentation, she will lose, if I do not, she will win. If I am concerned about doing the greatest good, I may decide that the greatest good would be served if she won, despite the misrepresentation. On the other hand, I might decide that the greatest good is the preserving the system and that beating the system through misrepresentation is not as important as working within the system and working to change the system.
    I think that it is hard to classify myself as one type of ethical thinker or another. I think that many of us are likely to be influenced by many or all of the various strategies for weighing ethical issues. I think that we wear different hats depending on the circumstances and often, we wear several different hats at the same time.

  5. Following from Liz’s last paragraph, allow me to play Devil’s Advocate for a moment. As is illustrated in the Prisoner’s Dilemma, honesty only works if the other side is playing by the same rules. So why should I be honest when the odds are high that the other people wouldn’t do the same thing? Sure, there’s a moral benefit to what Hayes did, but life isn’t lived in a vacuum. What if Hayes kept his mouth shut but then donated 20% of his winnings to charity? Would that make him a worse person than the person who legitimately won this event but gave not a penny of it to society? Does it make him a better person? Can he really sleep at night knowing that he could have done good with the money when others would have wasted it? SHOULD he be able to take solace in that if he lies?

    I’ll say this: I imagine most students in the law school would answer that Hayes did the right thing by being honest. What else would we expect them to say? And yet, with all the suggestions of honesty and fair play being king to all, you’d think I’d hear less refrains of “Being a public defender is just a step above chasing ambulances.” Wouldn’t it stand to reason that promoting a fair system includes not only being honest but also protecting everyone’s rights regardless of their race, ethnicity, or personal feelings about whether they “look guilty”? Or is there a difference between those two that I seem to be missing?

    Regardless, I suspect any litigator would tell you that being honest about your case is the surest way to screw your client every time. So what would I do? I’ll tell you: the day that I can walk into a courtroom, come up to any D.A. standing there, and know that the offer they make is their fair and honest belief of what is an appropriate sentence is the day that I will be totally honest and fair in my courtroom dealings. Until that time, I’m inclined to bite my tongue on anything I’m not ethically obligated to disclose and not make the State’s job any easier for them, thank you very much.

  6. Mr. Hayes’ actions reflect his character, and character is not the end result of one major life choice, but is the reflection of a series of daily choices. I would not be surprised to learn that Mr. Hayes has a habit of being an honest man, or that he is honest in his other dealings. I believe that we are all faced with situations that force us to choose between honesty and integrity or dishonesty and deceit on a daily basis. Those choices we make form the person we become. Like Liz’s choice to tell the cashier to charge her for the proper mushrooms, the opportunities greet us more frequently than we may realize, but they help us to form the habit of honesty (or dishonesty).

    As an example, I was at Wal-Mart back when my two kids were toddlers (no small feat with a one- and three-year old). After shopping for a half-hour with crabby children, I checked out my purchases. When I got to the car, and after strapping both kids into their carseats, I noticed that under my daughter’s jacket was a 4-pack of lightbulbs that I hadn’t paid for. Did I unstrap both kids, load them in the cart, and return to the store to pay for my 79-cent oversight? Are you kidding me? Actually, I went later that day after my husband got home from work and paid for the “stolen” bulbs. And my conscience bothered me for waiting the three hours to do so.

    I have been faced with other situations that are similar to the one I just conveyed, as have we all. Based on those choices, I hope I can predict that I would make the same choice as Mr. Hayes, if faced with the same scenario (which would only be possible if a fairy golfmother endowed me with some golfing ability).

    In his post, Andrew poses the question of whether it would have been wrong for Mr. Hayes to keep his mouth shut and then on the back end of winning donate 20% to charity. My answer would be yes, of course it would be wrong. In that situation, willful cheating cannot be negated by a later good deed. The thing that makes Mr. Hayes’ action so compelling is that he made a choice that cost him something. Giving away 20% of something that shouldn’t have been his in the first place hardly seems like a cost to him. Rather, it would have been a rationalization of cheating. It seems so easy to twist the cheating into something noble.

    As an alternative question to the one above, I wonder what I would have advised Mr. Hayes to do if he had come to me seeking legal advice after the violation but before he disqualified himself? Rule 1.6 of the Model Rules of Professional Conduct seems to point toward advising him to disqualify himself, and I think I would do that anyway, without a Model Rule to direct me.

  7. I absolutely would have done the same. Really, how could he have played in subsequent matches knowing that he didn’t belong and that he didn’t really win? How could he have taken the place of a truly deserving competitor?

    While in some ways I am an idealist, in others I am a pragmatist. Cheating and lying always catch up with people – it’s just a matter of time. Look at Marian Jones, stripped of gold medals and world records. Look at the “Fab Five” from the University of Michigan Men’s Basketball’s program, which made it to the NCAA Finals in 1992 and 1993. Ten years later, they were forced to take down their Final Four banners and vacate 114 wins. The NCAA also took the team’s name off the record books for 1992 and 1993. Why? They lied and cheated by accepting over $600,000 from a booster. Really, it all comes back to you in the end…

  8. It’s easy to speak up about our personal honesty and integrity when it’s about a package of mushrooms or a pack of lightbulbs. But what if you found a lottery ticket that someone had dropped on the sidewalk, and it turned out to be the jackpot winner? I think that most people with a pure black-and-white view of honesty might find themselves struggling with whether or not they should collect the winnings.

    I was raised with very strict values and have the type of personality that would worry over the unpaid-for pack of lightbulbs indefinitely if I didn’t take it right back. But I think it’s also important to acknowledge that life will throw you curve-balls….situations where your black-and-white view on particular values may suddenly start blurring into shades of gray. Situations where the difference between right and wrong isn’t so clear, where there are extenuating circumstances, and where perhaps being less than honest is the kindest or least hurtful option.

    Another factor that comes into play is your relationship with people who may be impacted by a moral decision that you must make. Take the scenario of finding a winning lottery ticket. You believe the right thing to do is give it up, and your mother who can’t afford hip replacement surgery that she desperately needs insists that you must keep it and pay for her surgery. Doing the “right” thing in giving up the ticket may badly damage or destroy the relationship with your mom. Not such an easy decision now?

    As humans we are both blessed and cursed with the cognitive ability to step beyond black/white, right/wrong thinking and to struggle with the moral decisions we must make. I think that’s the true mark of integrity…the willingness to weigh the decision from several perspectives and make a choice that honors not only honesty, but fairness, kindness, compassion and all of the other values that make up our moral being.

  9. This story exemplifies the role of integrity in the game of golf. Unlike other competitive sports where a referee, as a presumptively “neutral” party, can be ridiculed and blamed for “costing” one side the game, golf allows players to shoulder responsibility for following the rules. This obvious observation highlights what members of the golf world take great pride in: a unique code of conduct. Sacrificing personal and professional gain to uphold the integrity of the game should be applauded, regardless of whether you are enthusiastic or apathetic about golf.

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