Over the past decade a dizzying number of scandals (for lack of a better term) have become public, the most recent the Penn State/Jerry Sandusky child molestation debacle. Before someone's head explodes, I understand the legal process has not played out. The presumption in this country is asserted to be innocent until proved guilty. However, the point of this piece is not guilt or innocence, rather, an issue I want to suggest is more serious. Yes, I said more serious (than guilt or innocence).
There is a problematic myth now pervasive in America, and perhaps around the world which is likely at the root of why these problems continue to occur. Frankly, I'd like to suggest for consideration, such tragic misadventures will increase in number, scope and magnitude if we do not quit confusing the "symptoms" with the "problem." The myth which has become truth (though false) is that the law (American civil and criminal statutes) represents a high bar for personal conduct. NOTHING could be further from the truth. Viewed even slightly objectively, the law presents a very low standard of conduct (unless perhaps one is in the vast majority of attorneys who need the myth to justify the most common manner of practicing law in America).
Consider the following example. While on two different advisory committees to organizations, the issue of background checks was raised. The organizations, supposedly concerned about children as they were kid activity organizations, were investigating their background check procedures. The first, whether it needed them, the second, how to reduce the cost of conducting them.
Frankly, the necessity of the questions is troubling enough. It has not been that long ago when the vast, vast, majority of people were what and who they appeared to be. Regardless, consider how the second discussion proceeded. The organization wondered if such checks could be done for less than the $2.00 per background check they were currently paying. After all, they considered a great many applicants and the cost of such checks was beginning to be quite a sum. Was that sum a good business decision we were being asked to discuss? If so, might there be a less expensive manner for achieving such information. Having worked at point point five years as an HR consultant who had occasion to visit with another consultant (Imperative Information) who focused on and provided effective, accurate background checks, I was aware that cheap web-based background checks, such as those used by the organization on whose advisory committee I served, should barely be allowed to be called background checks. Research by Imperative had shown for example that the data base used by background check companies regarding the Texas Department of Corrections was incorrect almost 50% of the time. In fact, the woman, Darlie Routier (sp) who was accused of taking the life of her two young sons was on Death Row for almost two years before her conviction even appeared in the TDC data base. As such, she could have turned in an employment application, or volunteer application at a child care agency for two years without them knowing she was a convicted murderer.
Here, however, the low bar of the law reared it's unmistakable head. When I provided this information, asking, "If we are only spending $2.00 per check, why are we looking to lower the cost further, rather than asking whether we are wasting $2.00 on information that is quite likely of little value and may even be misleading at best?" Immediately, a highly regarded employment law attorney also on the committee spoke up. "Bart, you do not understand, regardless of potential errors, we do not have increased risk here because we are meeting the industry standard as measured against or peer organizations." Folks, this man is a fine, if professionally deluded fellow. A leader in his church, the community and his profession. And his concern is the industry standard? Are you kidding me? He went on to discuss ad naseum how our "risk" would be determined by whether what we were doing (a $2.00 per check) was consistent with what other organizations who dealt with children were doing, rather than whether a child had been molested or abused by someone who the organization have only determined to have such a past record at great expense. Expense to who? How expensive might it be to a child to be abused, or slain?
So, despite his many generous acts, which remain generous, the defense "I wanted to make sure I did not violate Penn State processes in doing something incorrect. So I reported the matter to my superiors" is supposed to be taken of him doing what was necessary? His superiors are being defended by a number of quarters with the defense they did all the law required? And that's okay with us collectively? If the highest bar in Joe Pa, or his superior's life is Penn State procedures and their violation their standard are LOW - period.
Many business people defended Arthur Anderson in the Enron scandal, which cost countless individuals their retirement savings by saying, "They were in a tough spot, Enron's leaders who their clients." And so, if a client want's one to break the law and abuse others, the fact that it's a "tough spot" or "going to cost money" means we go along. Too many times today the answer is, "Yes."
Wake up America!!!!!! The law is a low bar. it always has been, it always will be. Should it have taken a change in the law to eliminate segregation? Should I only drive responsibly and courteously because it's the law? Should I continuosly haggle with my children's mother without remorse so long as "I don't violate a divorce decree"? Should I only comply with the terms of a contract because it I do not I will get sued? Come on "adult" America. Let's get our heads out of our collective rear-end.
And, again, before someone over reacts, I am not urging rushing to judgment without appropriate due process. However, I am arguing against the insanity of "risk management" that is nothing other than covering our selfish, scared butts masequerading as healthly living because it's been accepted as the standard (a very low standard).
Let's make this even simpler. How is "risk management" working for us? At Penn State? Texas Tech (where the Board, the coach, and a parent - who thinks someone would elect him for public office, demonstrated beyond a shadow of a doubt they possessed very little integrity between them combined)? Enron? Tyco? Adelphia? Arthur Anderson Accounting? The Catholic Church? Bernie Madoff (for years)? Athletes who acknowledge after the fact they broke the rules, "Like everyone else?" And the list could go on and on. Have we forgotten the age old story of the Emporeor's New Clothes. YES. The legal profession has lead us to believe - and we let them - that the Emporeor (known as our behavior) has new clothes. The law will protect us from us! Really? No it won't nor has it ever. The law is, at best, an incredibly low bar, which seldom compels human behavior to any signficant degree (it's a character, spiritual issue, whether we collectively want to face it or not). And to allow oneself to be lead to believe that, especially by individuals who have a vested interest in us believing that something else, is NUTS! And the running scared because we/I might get sued frenzy that is now America is concrete evidence. Further, it is idiotic to think that at some point we will have "enough" risk management. No - more of the same will simply produce more of the same. At some point, we will either be driven out of any semblance of an ability to live in community or we will say, one individual at a time, I will take the risk that I cannot control others, I can control me, and I will do the right thing regardless of the cost.
BTW - Do I hate attorneys? No. No more than I hate other people, which I do not. However, I know too many attorneys not to recognize that each of them, like me, are human. Further, any enterprise where big dollars and humans mix there will potential manipulation for gain (and, though I am absolutely in favor of the free market system, I am not so naive as to be blinded to some of its weak spots). I know a number of fine, fine attorneys. In fact some of the small percentage who are willing to acknowledge the law as a particularly low bar.
What I have the "right" to do and what might be right to do are in my experience NOT the same thing. Have your legal rights replaced what is right for you to do? If so, I hope your son or daughter does not encounter some instituation whose rights exceed those of your child's. If so, my heart will go out to your child, and I would simply say to you, I am sorry but you've/we've just experienced first hand exactly the world we have chosen.
Don't all of us want more than that?
No comments:
Post a Comment