Public Regulation of Professional Ethics: A Comparison Between the Legal and Medical Professions

Community service provides excellent opportunities to see our own profession from a fresh perspective and in a broader context than might otherwise occur in the course of our daily work, as varied as that may be. My community involvement with health care organizations in the Greater Sacramento Area includes participation on an ethics committee, which examines individual patient care issues, and an institutional review board, which reviews proposals for medical research. This participation in the health care community has provided an opportunity for the reflections that follow.

Members of both the legal and medical professions quite appropriately pride themselves on professional independence and adherence to rules of professional conduct that are developed by members of the respective professions. Experience has shown, however, that independence is not guaranteed. If the public perceives (correctly or not) that professional ethical norms work a disservice to the public, legislators and government agencies are likely to impose standards of their own making. The following paragraphs examine particular legislative and regulatory mandates that have been imposed upon the legal and medical professions.

The Sarbanes-Oxley Act and the regulations mandated by the Act impose new standards of professional conduct, providing a current example of how the legal profession's autonomy has been curtailed in some measure. The regulations, effective August 5, 2003, require attorneys practicing before the Securities and Exchange Commission ("SEC") in the representation of a securities issuer to report up the corporate ladder within the issuer any evidence of a material violation of federal or state securities laws, or a material breach of fiduciary law. The SEC has also issued proposed rules that would require an attorney to disaffirm submissions and require outside counsel to withdraw from representing an issuer if the attorney does not receive an appropriate response from the issuer regarding possible material violations. These rules would significantly alter the attorney-client privilege.

It is an open question, however, whether these disclosure requirements would have made any difference in preventing the recklessness and dishonesty that prevailed in the corporate cultures of Enron, WorldCom, and Global Crossings, among others. Nonetheless, the perception underlying the Sarbanes-Oxley Act standards of professional conduct is that attorneys did not adequately fulfill their sometimes-competing responsibilities to the organizations they represent, on the one hand, and the SEC before which they practice and the investing public, on the otherhand.

The laws and regulations governing medical research involving human subjects provide an interesting and possibly illuminating comparison with recent developments under the Sarbanes- Oxley Act. Biomedical research involving human subjects is highly regulated. This was not always so. Historically, the public relied upon practicing physicians to protect human subjects against unnecessary harm or risk of harm while at the same time advancing science. Physicians were left to their own discretion in navigating the potential conflicts of interest inherent in their dual roles as caregivers and researchers. A series of events, some horrific, have produced a substantial shift away from the paradigm of physician autonomy in research.

World War II was a transforming event in research involving human subjects. Formal declarations regarding ethically sound research began to emerge in the late 1940s in response to atrocities committed by Nazi physician investigators. In 1946, the American Medical Association adopted its first code of research ethics, and the judges presiding over the prosecution of Nazi war criminals during 1946-1949 prepared ten principles of human research, known as the Nuremberg Code.

Public regulation of research in the United States gained momentum following the public disclosure of two highly unethical studies. The first of these two studies, detailed in a 1966 article in the New England Journal of Medicine, involved the injection of a mild strain of hepatitis into mentally handicapped children at the time of their admission to Willow Brook State School for the Retarded in New York. A disturbing fact is that the research had been reviewed and approved by the Armed Forces Epidemiological Board, which funded the research, as well as a local review committee.

The second more notorious case, known as the Tuskegee Syphilis Study, was detailed in a 1972 article in the New York Times. The study was sponsored by the Public Health Service and involved tracing the long-term effects of syphilis in poor African males in Macon County, Alabama. To facilitate the purposes of the study, which had been in progress since the early 1930s, the men were told that they were receiving treatment, when in fact they were not. In complete disregard of the men's health, the study continued even after penicillin became widely available as an effective treatment for syphilis.

In response to intensified concern about the conduct of human subjects research, the National Commission for Protection of Human Subjects of Biomedical and Behavioral Research ("National Commission") was formed. The National Commission is best known for publishing in 1979 what is known as the Belmont Report, which details three fundamental principles of human subjects research: (1) informed consent, (2) assessment of risks and potential benefits, and (3) fair selection of research participants. In response to the Belmont Report, the Department of Health and Human Services and the Food and Drug Administration revised their respective regulations, requiring that human subjects research be approved under strict guidelines. The conduct of human subjects research thus moved squarely into the domain of public regulation.

This shift away from the paradigm of physician autonomy is attributable in substantial part to the perception that physicians too often compromised their responsibilities to individual patients in order to advance the public's interest in scientific progress. Similarly, the implementation of standards of professional conduct under the Sarbanes-Oxley Act is attributable to the perception that attorneys too often compromised their responsibilities to the public in order to advance their client's private interest. In both instances, whether public or private interests were thought to be compromised, government regulation followed when it was widely perceived that the respective professions did not appropriately balance their competing responsibilities. This increased regulation is not ideal for professionals who value their independence.

These events, to my thinking, serve as an important reminder that an essential component of professionalism is the capacity and commitment to make ethically sound decisions in the face of very compelling competing interests. This perspective is not necessarily easy to maintain during the press of business. It may be helpful to remember, however, that virtue is in substantial part the product of habit; "we become just by the practice of just actions." The professions and the people we serve deserve no less.