Experts in business ethics can both augment and complement the work of lawyers in many contexts; however the most obvious synergies occur during litigation. The gravamen of civil lawsuits is often some ethical wrong or breach of a standard of behavior. A business ethics expert witness can help define the applicable standards of behavior. They can also evaluate evidence to highlight where any ethical lapses may have occurred.
At the end of the day, juries and judges want to know the answer to a single question: “was a wrong committed here?”. The law is sometimes clear about the answer to this question. However, sometimes analyses of fundamental fairness, ethical obligations, and wrongful action need to be buttressed by an expert analysis of applicable commercial, industry-wide, and professional norms.
Compliance is another area where a business ethics expert witness can offer significant value to a legal team. Whether in the context of Sarbanes-Oxley, or the Federal Sentencing Guideline, or in the context of Deferred Prosecution Agreements, an expert in business ethics expert can help to streamline and tailor compliance programs to fit the issues that lay at the heart of the company’s legal and ethical issues. The involvement of a business ethics expert in this context has two functions. On one hand, it can help legitimize the compliance arrangements in the eyes of courts and regulatory authorities. On the other hand, and more importantly, a business ethics expert can help turn compliance mechanisms into a management tool. This ensures that the legal department and outside lawyers are not viewed as out of the loop. Or that they are indifferent to what executives are trying to accomplish.
Probably the most under-utilized area for business ethics experts is in crisis management. When an ethical crisis starts to brew at a company, lawyers are consulted. If the situation is bad enough a PR firm is brought in as well. It is in this cauldron that companies often make their biggest mistakes. The key perspective that is missing in these situations is the ethical perspective—the long view for company value and sustainability.
This “long view” is a crucial component for effective legal counsel. If counsel are going to help a company’s officers and directors to maximize shareholder value, then an understanding of the underlying facts about the nature of an ethical crisis is a key factor in giving the best advice to clients. Here is where a stitch in time can save nine. Lawyers often lament when clients call them in too late – when the facts of a case are already unfavorable – because of the failure to allow for pre-incident planning. Business ethics expert witnesses feel the same way. The earlier we get called in, and the closer we work with counsel, the better the results will be for the client.
