Professional misconduct – malpractice, or deviation from professional codes, guidance on conduct or regulation; or crossing of professional boundaries, establishment of inappropriate relationships; or deviation from professional integrity; typically, in the context of ethical dilemmas and problems.
A simple definition of professional misconduct is a deviation from professional integrity. Professional integrity is defined, on a high level, as conforming to concepts, principles, and behaviors that enforce morals and values. However, there are several approaches to defining the term. Banks suggests in his paper three distinct definitions:
- “Morally good/right conduct, according to accepted professional guidelines/codes of ethics,” i. e. professionalism. This definition relates to the conduct of activities and work roles;
- “Standing for something”/commitment – when professionals commit to values or morals that often go beyond accepted professional guidelines or codes of ethics (they committee to higher standards). Commitment integrity motivates people to act from internal motivations and beliefs that are rooted in their own character;
- “A capacity/moral competence” – a process of evolving once believes, ideals and principles, to promote “sense making” as situations change. “A capacity to respond to change in one’s values or circumstances, a kind of continual remaking of the self, as well as a capacity to balance responsibility for one’s work and thought”.
Types of professional misconduct
Andreoli and Lefkowitz identifies three types of professional misconduct:
- Organizational misbehavior (OMB), which defines purposeful antisocial or destructive acts against an organization motivated by greed or retaliation for perceived inequalities,
- Unethical behavior (UB) defines the act of violating generally recognized principles,
- Hostile behavior (HB) defines acts that deviate from customs of conventional behavior.
Professional misconduct in the legal profession
The legal profession is often a scapegoat for analyzing the issues relating to professional misconduct. The concept is addressed on two planes in the legal profession: personal risk (professional misconduct by an individual lawyer) and ethical risks at an enterprise level (law firm). Ethical risks in the legal profession arise from various sources, including the following items:
- The object of representation as a source of professional misconduct – lawyers cannot assist clients in crimes or fraud. Lawyers must withdraw from representing individuals or entities that they know engage or plan to engage in criminal activity.
- Confidentiality and professional secrecy standard as a source of professional misconduct – this relates to the attorney–client privilege (protection of communication), product immunity (protection of documentation), and other. There are certain special situations that exempt the legal profession from this fundamental standard, but those are limited.
- The conduct of others as a source of professional misconduct – lawyers are responsible for the actions of others (employees, customers, others) and have an obligation to report misconduct that they become aware of. A failure to report in itself constitutes misconduct. Lawyers are also obligated to self-report own misconduct.
- Nersessian, D. (2011). Ethical and practical challenges for corporate lawyers advising clients on human rights, Proceedings of the Annual Meeting, Vol. 105, p. 295-298. Introduction, p. 295-297.
- Banks, S. (2010). Integrity in Professional Life: Issues of Conduct, Commitment, and Capacity, The British Journal of Social Work, Vol. 40, No. 7, p. 2168-2184. Introduction, What is professional integrity?, 1-4.
- Andreoli, N., Lefkowitz, J. (2009). Individual and Organizational Antecedents of Misconduct in Organizations, Journal of Business Ethics, Vol. 85, No. 3, p. 309-332. Defining organizational misconduct, p. 310.
- Banks, S. (2010)
- Banks, S. (2010).
- Andreoli, N., Lefkowitz, J. (2009)
- Nersessian, D. (2011)
Author: Kamila Wronkowska