Ethical conduct is required in all jobs and by all organizations. It also applies to positions at all levels. Anyone can disagree with a substantive business or legal decision, but make an ethical mistake and your company, firm or individual career could be in jeopardy. I explain below some excellent tools to avoid ethical missteps.
This is especially true for patent practitioners practicing before the USPTO. When I was the USPTO General Counsel, the Office of Enrollment and Discipline reported to me. We issued new ethics rules largely tracking the ABA Model Rules.
The Office of Enrollment and Discipline rules of conduct has a “catch all” provision that states that it is “professional misconduct” for a practitioner to “engage in other conduct that adversely reflects on the practitioner’s fitness to practice before the Office.” 37 CFR 11.804(i). This rule is vague and it is difficult for practitioners to know exactly what constitutes a violation.
This article discusses how you can use core values and emotional intelligence skills to avoid ethical mishaps. These skills are easy to gain and can save you from an unintended ethical mishap. For more on the importance of emotional intelligence, see my prior IPWatchdog article.
Ethics Rules Are Often Ambiguous and Difficult to Memorize
In some cases, the multitude of ethical obligations and in others, the lack of any specific ethical guidelines, leaves the area a minefield for the unwary. Patent attorneys are members of at least one state bar as well as the USPTO registered practitioners bar.
We all need some tools to help us develop an internal compass to differentiate appropriate from questionable conduct. There always is more at stake than short-term profits.
A key strategy to avoid an ethics violation is to develop a core set of ethical values and the necessary emotional intelligence skills to help you and your organization make sound ethical decisions.
Core Values and Emotional Intelligence Provide Guidance
Core values are key to avoiding ethical violations. This is because most ethics violations are not intentional. They occur because decisions are being made based on the wrong values (i.e., increased revenues alone) or on emotion (i.e., fear that taking more time to evaluate will be disastrous). Establishing sound core values and strong decision making emotional intelligence skills will help ensure that you do not commit an unintended ethics violation.
Just look at President Nixon and the Watergate scandal or President Clinton and his affair with a White House intern. If President Nixon had a core value to never be deceptive to get ahead, he would have made a different decision about the Watergate break-in and its subsequent cover-up. Similarly, if President Clinton had a core value of not having an intimate relationship with his subordinates, both he and his intern could have avoided an embarrassing ethical scandal. These poor decisions also resulted because of a lack of emotional intelligence when making the decisions, such as a lack of self-awareness, reality testing, or impulse control, which we will discuss in more detail below.
These instances seem like obvious violations of good core values or sound decision making, but in the moment, we all can rationalize behavior that on reflection was inappropriate. This is especially true when you are faced with a dilemma of seemingly major consequences that requires quick action. What may seem justified in a crisis setting and in an emotional moment, could be criticized when the dust settles.
How Core Values and Emotional Intelligence Helped Me
I remember in my own career working on the financial markets crisis at the Treasury Department. There were days when the stock prices of many of our major financial institutions were dropping rapidly calling for a quick response. Anything seemed justified in the moment considering the possible complete destruction of our financial system and a fear of another great depression.
Yet, all our actions would be scrutinized once the crisis was over no matter the positive outcome. Among other responsibilities, I was the chief ethics officer at the Treasury Department at the time and my job was to make certain that no actions resulted in an ethics violation. If there was an ethics violation, the public would lose all trust and confidence in the Treasury Department’s response.
This required me to have strong core values and to have the emotional intelligence to implement them. I needed to use my independence skills to question suggestions by others when appropriate and my impulse control skills to reflect before making a final decision.
I could step back and analyze each transaction according these values, which, in part, allowed me to avoid any ethical problems. I had remembered the investigations that occurred after Hurricane Katrina and the fallout from making what seemed like good decisions under stress.
It seems easy, but you must have the core values engrained in your psyche to make decisions based on them under pressure and when the circumstances require. You also must have a good amount of self-awareness, impulse control and a strong concept of reality to make good decisions. Emotional intelligence plays a big part in ensuring ethical behavior.
Ethical behavior requires a strong internal compass, especially when pitted against the need to generate revenues or to make clients or bosses happy.
6 Strong Ethical Core Values
Establishing strong core values will help you and your organization avoid an ethics violation. Here are some of the possible core values to help you:
- Honesty-be courageous and tell the truth. Do not try to cover up mistakes or color the truth. This is tough for many attorneys who are being paid large fees for perfect work. It is difficult in many organizations to admit a mistake.
- Integrity-do what you think is right under the circumstances. Be willing to suffer another’s disapproval. Revenue generation is one value, but you must look at the entire situation. It is difficult to make everyone happy all the time and still maintain your integrity.
- Caring-be compassionate with yourself and those around you. Care about other people and be empathetic about their situation and position. Try to look at the situation from the other person’s perspective. Think about others and the effect that your actions will have on them.
- Impartiality-don’t decide matters if you have a personal interest in the outcome. Don’t invest in a client’s or supplier’s stock. If you have any concern about a potential conflict of interest, don’t act. Disclose the potential conflict at a minimum and seek guidance.
- Gifts-don’t give a gift to someone to gain an unfair advantage or accept a gift from someone who you supervise unless it’s small in value so that your impartiality cannot be questioned.
- Appearances-don’t forget the smell test. If you feel awkward about doing something, the odds are that you shouldn’t do it. Learn to trust your gut instincts and ask yourself if others could question your behavior. This is difficult to do under stress.
Using Your Core Values
Once core values are established, incorporate them into your personal actions and those of the organization. This is not easy to accomplish and requires commitment.
Write down your personal core values. You should look at them periodically and remind yourself of your guiding principles for action. They must be at the top of your mind for you to have access to them in stressful situations.
For organizations, distribute them to all employees. Also, have periodic training sessions on your core values to remind employees of the importance of these values to your organization.
5 Emotional Intelligence Skills that Support Ethical Decisions
Making decisions under stress is difficult. Strong emotional intelligence skills are closely aligned with sound decision making.
Emotional intelligence is what allows us to step back and review the consequences of a decision using our emotions as a point of reference rather than as a basis for the decision. The great thing about emotional intelligence skills is that they can be evaluated and strengthened at any time. Like IQ, EI (emotional intelligence) can be measured. I am certified to give the EQ-i 2.0 assessment tool. You can measure your EI and improve it.
Here are some great emotional intelligence skills that you might evaluate and strengthen, if needed:
- Emotional Self-Awareness-ability to know what you are feeling and why. It helps you to make sound decisions from a rational as opposed to a merely emotional perspective. People under intense stress may be more inclined to be ruled by emotion because they may be experiencing the situation as a crisis.
- Independence-ability to be self-directed in your thinking and actions. People who are independent can make autonomous decisions even when they go against the crowd. Independence is important when it comes to acting on your core values. One person with strong independence skills can save an organization from an ethics violation. You need one person to speak up and say that a decision may not be right and why.
- Problem Solving-ability to solve problems that involve emotions and to use your emotions as a problem-solving tool. The ability to solve problems without excessive worry or delay is important.
- Reality Testing-ability to see things as they really are. This is the ability to be well-grounded and level headed even under stress.
- Impulse Control-the ability to control a temptation to say something or act. People with good impulse control have a “filter” and do not say the first thing that comes into their heads. Ethical decision making requires thought and analysis before action.
Dealing with Difficult Clients, Customers and Bosses
Customers and clients can be difficult, especially in an atmosphere where many firms or companies can provide the same service or product at comparable prices. The pressure is there to get and keep the client at all costs. Yet, there are lines that we must avoid crossing or our careers could be at risk.
We can call on our core values and emotional intelligence skills to be direct with the client hopefully without offending them. For example, if we have learned information that is contrary to the client’s position, we need to discuss that with the client along with the risks it creates.
For the same reason, it is best to recommend work to another lawyer or law firm when you believe that it would serve the client’s interests. You might laugh at this suggestion, but nothing will develop trust better and you’ll get more work from the client in the long run.
Think about the old movie, the Miracle on 34th Street and Santa Claus sending the parents to a different store. You should be the same Santa Claus for your clients.
Companies cannot sell products that they know are tainted or do not comply with regulatory standards, no matter the cost. Similarly, don’t try to sell products or services to a company or person that they do not need. You may get more revenue in the short-term, but the ethics violation will come to light and you may lose the client or your job.
If a client is asking you to take a position that is not justified, tell them up front that you cannot and why. This is the point where “client service” has its limitations. You must be willing to lose a client rather than commit an ethics violation.
Strong core values and emotional intelligence provides us the strength and foresight to make the right decisions. You might think about strengthening these skills. See my coaching website for more information.