Browse Month: January 2021

Bioethics: Then and Now

By Allan M. Brandt, Ph.D.
Kass Professor of the History of Medicine, Harvard University, and
Director, Division of Medical Ethics, California State University, Hayward

From the viewpoint of a medical historian looking back at the last quarter of the 20th century, the rise of bioethics as a movement and a discipline is nothing short of remarkable. During this period, an intensive medical and public discourse emerged that identified and debated critical moral dilemmas in medical care and research. The signs of this bioethics “revolution” are all around us. Hardly a day goes by when some moral conundrum of medicine is not aired on the front page, or, even more significantly, on television or the Internet. In our clinical institutions, the impact of bioethics is readily apparent: IRBs (Institutional Review Boards) actively assess the ethics of virtually all proposed human subjects research; the Joint Commission on Accreditation of Healthcare Organizations has mandated that hospitals have a mechanism for resolving ethical dilemmas. Most American medical schools teach medical ethics, and national board exams test candidates for their understanding of key ethical principles. And now, interactive sites on the Internet provide immediate instruction and counsel for vexing ethical dilemmas.

This impressive set of activities marks an opportune moment to briefly assess the historical origins of bioethics, as well as its effectiveness in addressing contemporary moral problems in American medicine. As recently as 1970, the world of medicine was sacrosanct; its considerable cultural and political authority made it almost unthinkable that so much in medicine would become open to public debate, and that patients might reclaim authority over medical decisions and practice. In this respect, many observers of the rise of bioethics have declared it a dramatic victory in the name of moral progress.

Bioethics offered a sharp critique of the insular world of medical research and a paternalistic tradition in medical practice. Among the most powerful triggers for the emergence of bioethics were a series of public revelations of gross abuses of human subjects who had been unknowingly coerced into participation in dangerous, nontherapeutic research. The Tuskegee Syphilis Study, the Willowbrook Hepatitis Study, and a long list of studies identified in anesthesiologist Henry Beecher’s heroic 1966 analysis are but the most prominent examples of tragic failures within research medicine to respect basic human rights. These and similar revelations exposed a research culture in which the interests of subjects had been fundamentally disregarded in the name of science. Rising concern about research ethics also pointed to more fundamental questions about the character of medical authority within clinical medicine. Informed consent soon became the most basic premise for both research and clinical care. The rise of bioethics can only be fully understood in the broader context of the rights-based movements for self-determination in the 1950s and 1960s; these include the civil rights movement, the rise of a new women’s rights movement, and the early patient rights activities focused principally on psychiatric issues of civil commitment and the right to refuse treatment. Bioethics led to a new patient-centered ethic, often advocating patients as genuine participants in their care rather than only the objects of diagnosis and treatment.

Assessing the deeper impact of bioethics in medical and research practice is, however, no easy task. A much-needed fuller assessment would require consider-able historical and sociological investigation of a range of variables that are under any circumstances quite difficult to measure. Do patients today really exercise more autonomy over medical decision-making? Are research subjects better protected from the intensive and competitive demands of new scientific knowledge? Just as we might assess equity in access to medical care, we might ask if all patients have had equal access to the advantages of new ethical precepts. Is there a socioeconomic gradient? Do better-educated patients, for example, benefit more significantly from informed consent than less well-educated ones? No doubt much changed over recent decades, but there are still significant problems. And indeed, some critics have argued that bioethics, regardless of its progressive intent, has actually had the effect of enhancing medical power over patients and research subjects by legitimate medical institutions and practices. To cite but one example, the consent form – in both research and therapeutic contexts – is often viewed by subjects and patients as but a legal apparatus to protect researchers and physicians from liability.

In short, bioethics as it evolved in the last decades of the 20th century is historically contingent; it reflected – and responded to – a series of specific con-temporary critiques of biomedical practice and was fundamentally shaped by the social and political conventions of the time in which it emerged. Therefore, the bioethics that emerged in this period may no longer be a particularly good “fit” for the range of moral and ethical dilemmas currently confronting American medicine. Informed consent, the hallmark of bioethics, takes physicians’ authority as a given. The prevailing assumption was that if physicians adequately respected patients’ autonomy, their considerable authority would pass (through knowledge) back to their patients. Patient autonomy, therefore, rested upon a priori physician autonomy. Bioethics in this form rarely considered the broader social and institutional contexts in which this ethical transaction occurred.

But today we see the authority and autonomy of the provider under attack. Importantly, if patient autonomy was at the center of discussion over the past decades, today physician autonomy seems to be the critical issue. A brief and perhaps typical clinical vignette illustrates aspects of this problem:

A patient with moderate back pain of relatively short duration comes to see her primary care physician. Following a careful history and physical examination, the physician recommends ibuprofen and rest. He explains that if there is no improvement in the next week the patient should let him know so that they can follow-up. The patient asks if she needs an MRI. He explains that it currently isn’t indicated, but that if she doesn’t improve they can pursue other diagnostic options, perhaps including an MRI. The patient then asks if he is not ordering the MRI now because of financial incentives. The doctor is troubled by this exchange and what it represents about his relationship with his patient.

This vignette indicates that forces external to the doctor-patient interaction have altered the character of the relation-ship. Even though the doctor may believe that he would never compromise a patient’s care regardless of financial incentives, his patient is concerned. The quality of trust has been altered, perhaps permanently. The patient worries that the doctor has lost his authority to care, and that his autonomous capacity to act in the patient’s interest is eroded by new and often hidden rules and financial incentives. Such issues are, of course, not new to managed care. Physicians have always operated under the influence of considerable external (sometimes hidden) incentives. The point here is that bioethics – as it came to be constituted in the 1970s and 1980s – offered little in the way of analyzing such forces, be they economic, cultural or psychological.

As bioethics evolved over recent decades, the central question for health-care providers confronted with an ethical dilemma was typically “what should I do?” Today, many of the dilemmas of medical care focus on the question: “what can I do?” This question recognizes essential constraints on clinical and moral choices and reflects an important historical shift in assumptions about agency within our healthcare system.

Although the parameters of a new bioethics are far from clear, several broad questions are already clearly apparent. We will need more empirical research on practices associated with ethics both in patient-provider relationships and in our healthcare institutions and systems. Medical ethics is moving beyond the assertion of critical principles to assess concretely the obstacles that may inhibit our ability to realize them. This agenda requires a wide range of disciplines from clinical caregivers to the humanities and social sciences, as well as stronger assessment of the relationship of health policy to medical ethics. Only a complex dialogue that helps to reveal consensual social and moral values in a diverse culture – a dialogue among experts and the many constituencies doing medical work and seeking medical care – is likely to result in a new and effective medical ethics. In this respect it seems likely that as medicine changes, so too must our medical ethics.

Conflict of Interest by Attorneys Appearing To Switch Sides from One Client to Another

Conflicts of Interests cases involving lawyer which laypersons may claim show a lawyer “switching sides” are sometimes difficult because the lawyers do not see a conflict and laypersons do. These cases involve the “delicate and sometimes difficult task of balancing competing interests: the individual right to be represented by counsel of one’s choice, each party’s right to be free from the risk of even inadvertent disclosure of confidential information, and the public’s interest in the scrupulous administration of justice.” Brown v. Eighth Judicial Dist. Court, 14 P.3d 1266, 1269-70 (Nev. 2000).

[¶12] “Loyalty is an essential element in the lawyer’s relationship to a client.” Comment, Model Rule Conduct 1.7. “The duty of confidentiality continues after the client-lawyer relationship has terminated.” Comment, Model Rule Conduct 1.6. “An integral purpose of the rule of confidentiality is to encourage clients to fully and freely disclose to their attorneys all facts pertinent to their cause with absolute assurance that such information will not be used to their disadvantage.” Damron v. Herzog, 67 F.3d 211, 215 (9th Cir. 1995). “‘Clients must feel free to share confidences with their lawyers. This will not occur if we permit lawyers to be today’s confidants and tomorrow’s adversaries.’” Clinard v. Blackwood, 46 S.W.3d 177, 188 (Tenn. 2001) (quoting Penn Mut. Life Ins. Co. v. Cleveland Mall Assocs., 841 F. Supp. 815, 818 (E.D. Tenn. 1993)). As the court said in Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266-67 (7th Cir. 1983) (citations omitted):

“For rather obvious reasons a lawyer is prohibited from using confidential information that he has obtained from a client against that client on behalf of another one. But this prohibition has not seemed enough by itself to make clients feel secure about reposing confidences in lawyers, so a further prohibition has evolved: a lawyer may not represent an adversary of his former client if the subject matter of the two representations is “substantially related,” which means: if the lawyer could have obtained confidential information in the first representation that would have been relevant in the second. It is irrelevant whether he actually obtained such information and used it against his former client, or whether–if the lawyer is a firm rather than an individual practitioner–different people in the firm handled the two matters and scrupulously avoided discussing them.”

Model Rule Prof. Conduct 1.9 provides a lawyer who has formerly represented a client in a matter shall not thereafter:

(a) Represent another person in the same matter in which that person’s interests are materially adverse to the interests of the former client; or

(b) Represent another person in a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

(c) Use information relating to the representation to the disadvantage of the former client in the same or a substantially related matter except as Rule 1.6 would require or permit with respect to a client. Thus, without a former client’s consent, a lawyer may not represent another client in the same or a substantially related matter in which that client’s interests are materially adverse to the interest of the former client.

It is generally said by the courts that in determining whether a law firm is disqualified, “the firm whose disqualification is sought bears the burden of proof.” E.g., see, Heringer v. Haskell, 536 N.W.2d 362, 365 (N.D. 1995) “[A]ny doubt must be resolved in favor of disqualification.” Heringer, at 365.

The substantial relationship test presumes a lawyer acquired confidential information from a former client if the current representation of a client whose interests are adverse to those of the former client is the same as or substantially related to the former representation. ABA/BNA, Lawyers’ Manual on Professional Conduct 51:201 (2002). “[W]hen an attorney engages in a conflict of interest on the same matter, he or she is in a position to act on the confidential information learned from the relationship with the first client, whether or not that information is actually disclosed or acted upon in advising the new client.” Damron v. Herzog, 67 F.3d 211, 215 (9th Cir. 1995). “The test does not require a detailing of the confidences allegedly transmitted, nor must confidences actually have passed between the former client and the lawyer.” Annotated Model Rules of Prof. Conduct Rule 1.9, p. 153 (3d ed. 1996).

Ethics + A Changed World = Neoethics

It will help us understand where we are if we look back at the history of legal ethics in the United States. In 1908 the ABA adopted the original Cannons of Professional Ethics. These were based on the Code of Ethics adopted by the Alabama Bar Association in 1887, which in turn had been adapted largely from the lectures of Judge George Sharswood, published in 1854 as Professional Ethics. These ABA Cannons of Professional Ethics were aspirational in character. They were what lawyers “should do” — not what they “must do”. Lawyers were told that they should “do good”. The Code of Ethics of the ABA was not generally enforced by way of legally enforced sanctions.

Stop. Notice that when lawyers first started talking about legal ethics they were talking about legal ethics in the dictionary, meaning number 1, mentioned above, to wit: the study of the general nature of morals and the specific moral choices to be made by a person. The aspirational effects of such a study were what drove what lawyers should do.

In 1969 the ABA produced the Model Code of Professional Responsibility. Suddenly lawyers had a code framed in the number 2 dictionary meaning of ethics, to with a professional code that had teeth in it. The Model Code was adopted subsequently by the vast majority of state and federal jurisdictions as enforceable rules by the courts supervising lawyers. Thus, for the first time we had ethics rules of what lawyers must do, for fear of losing their license to practice.

Notice that 30 years worth of graduating law school students have left law school not studying morals, but rather studying a code of rules that could not be violated on pain of sanction. Instead of studying Ethics 101 in the Arts college, they were studying “Model Code of Professional Responsibility 101 in the Law college. Because of demographics, the majority of lawyers practicing law today graduated in these last 30 years. Since 1969 we have had a succession of revisions of the Model Code of Professional Responsibility with more and more rules and standards of what a lawyer “must do”. This has been the almost exclusive way in which lawyers and courts have looked at ethics in the last half century. It is now difficult for lawyers steeped in the ABA Model Code to think first of “what is morally right?”— rather than “what is the rule the courts say I must follow?”

Rule 2.1 is a rule that you almost never find mentioned in formal legal ethics opinions by bar associations.

Society now we must turn to neo-ethics, to wit: The combination of ethics as morals and as standards. In today’s society lawyers and courts can no longer indulge in the luxury of keeping their private morals and the public’s morals separate from lawyers professional standards. This is not a new idea, but certainly the idea has been buried. Indeed, Model Rule 2.1 inspires us to aspire. It says:

“Rule 2.1 – Advisor. In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law, but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

Rule 2.1 is a rule that you almost never find mentioned in formal legal ethics opinions by bar associations. Indeed, the entire emphasis in the last half century has not been on “other considerations such as moral, economic, social and political factors”. Society is now telling us lawyers we had better “refer not only to law, but to other considerations such as moral, economic, social and political factors”. The Neoethics rules the courts enforce in this century will respond to those ” other considerations such as moral, economic, social and political factors”

We now must look at all of the people with ethical stakes in our law business. The people with ethical stakes in our law business are: client, opponents, government, employees, your partners, the courts, adverse counsel, and you. Until now lawyers and courts have concentrated only on your client and you as having ethical stakes in what should be done by you in your law business. All of those other stakeholders have been left out of consideration. We must recognize that society and the courts may grade these stakeholders to sometimes have interests that are greater than the interests of your client and you.

That is why in the neo-ethics of today we see a sudden change in the times in which the lawyer is supposed to alert the public or government about bad things that his client is doing. Twenty years ago it was unthinkable that lawyers should inform government about their clients, absent the most clear and convincing threat of death at the hands of the client. Enron and 9-11 have driven morals into legal ethics. The government demands that if lawyers are going to practice with their corporate clients, then the lawyers must start affirmatively bringing their clients to account under rules of public morality and decency. The new and changing rules, in federal rules and in many states, regulating when the attorney must alert the public, and disclose client confidences, is a response to that demand.

We lawyers must, and shall, recognize what is going on. If we recognize that there now is a combined legal/social ethical framework in which lawyers must work, we will recognize the new way in which we have to respond. We will recognize that we must start changing ethics rules and refinements to respond to this new legal-social framework of the 21st century.

Summary: Neoethics arises because there are: a new combined legal/social ethical framework in which lawyers work; a new way in which lawyers must perceive ethics as a subject of study; and new ethics rules and refinements that respond to this framework and perception.

* Neoethics Note: If you notice that this page is like one at edicta, it is because Bucklin is the author of this page and holds the copyright. edicta is authorized by Bucklin to take and use the content from various pages of this site. Neoethics is a trademark of Bliss McKnight Properties, Inc., used with permission. edicta is published as an Internet Zine by the Tort Trial & Insurance Practice Section of the American Bar Association