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C O M P A R I N G C O N F L I C T O F

I N T E R E S T A C R O S S T H E

P R O F E S S I O N S

Andrew Stark

Consider the following two situations. In the first, a govern-ment bureaucrat's decision to support a high-tech subsidy program is affected by her part ownership of—or her spouse's employ- ment with—a software venture that would benefit from the program: a set of interests she possesses outside her role as an officeholder. In the other, her decision to support the high-tech subsidy program is affected by her desire to advance through the ranks bureaucratically, shift her career path within the department, and increase her official salary: a set of interests she possesses within her role as an officeholder. Both kinds of interest compromise her professional judgment. And yet, for a long time, scholars of conflict of interest typically have concerned themselves only with the first type, when the encumbering interest arises outside of role. For if the second type—when the impairing interest arises within role—were treated as actionable conflict of interest, all professionals would be in conflict of interest all the time.

It is also the case, however, that if the first kind of situation—when the impairing interest arises out of role—exhausts what we mean by conflict of interest, as it typically seems to have, then every profession faces exactly the same kinds of conflict of interest. There is little to say,

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little grist for the mill, if our purpose is to compare conflicts across professions and our focus remains confined to out-of-role interests. A personal gift from an individual external to the professional-principal relationship—a pharmaceutical manufacturer in the case of the physician-patient relationship, a mutual fund salesman in the case of the broker-client relationship, an art dealer in the case of the critic-reader relationship—impairs the professional's judgment in all three pursuits in exactly identical ways. A judge's decision-making capacity is threatened in precisely the same fashion as a journalist's—or a corporate director's— by her capacity to affect an out-of-role financial holding through her in- role decision making. It is only when we turn to conflict of interests that arise within role, to conflicts not extrinsic but intrinsic to the profes- sional's relationship with her principal, that revealing differences emerge across the professions. Here, as we shall see, the resulting conflicts fall into two main categories: Some arise because the professional occupies more than one role with respect to the same principal, such that the existence of the second role impairs her capacity to exercise the first. Others occur because the professional must exercise the same role with respect to more than one principal, such that the presence of a second principal impairs her capacity to exercise her role on behalf of the first.1

It is not surprising that one gets greater traction for cross-professional comparisons from in-role rather than out-of-role conflict of interest. After all, whereas judges and journalists and directors can all have the same kinds of external interests—stocks, bonds, fees, gifts—the internal struc- tures of their roles each differ. In Tolstoyan fashion, conflicts of interest arising from out-of-role sources are all alike, but every profession expe- riences in-role conflicts in its own way. And, without in any way being orchestrated, the chapters in this volume confirm this fact. Almost every contributor, perhaps led by an innate sense of where the really interesting issues reside in his or her topic profession, spends as much time on in- role or "professional" as on out-of-role or "personal" conflicts of interest; sometimes more. As a result, this volume can be seen as a turning of the page in the exploration of conflict of interest in the professions, a turning from outside to inside. And, as we shall see, some striking pat- terns emerge from the book as a whole.

Many Roles, One Principal

There are, as I noted, two basic kinds of in-role conflict, one that arises when a professional occupies more than one role with respect to any given principal; the other, when the professional occupies the same role with respect to many principals. Consider, to begin with, the first type, which—to judge from the contributors' chapters—is itself amenable to being divided into two classes. On the one hand, there are professions in

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which such multiple-role conflicts emerge because the professional si- multaneously occupies a judging and an advocating role—an impartial and a partial role—in the work he does for the principal. On the other hand, conflicts inhere in a tension between the professional's diagnostic and service-provision roles, his roles as both a buyer of services for and a seller of services to the principal.

Consider first the professions that fuse a judging with an advocacy role. Many officials fall into this class. Think, for example, of legislators whose role it is to advocate aggressively for various interests held by different sections of the public while, in the final analysis, judging leg- islation impartially in the interest of the public as a whole. Or think of agency officials who help prepare cases which they ultimately have to participate in deciding. Primary-market financial services underwriters, too, find themselves riven between judging and advocacy roles when they assess the merits of a client I.P.O. (initial public offering) which they are, at the same time, promoting. Likewise journalists, who often combine reportorial with commentative work, or who wrestle with the need to be "objective"—to judge the hard truth of a story—and yet at the same time display "balance," by rendering "all sides of the story." Literary critics, too, find the distinction between judging and advocacy, between being an arbiter and a tribune of public taste, extremely fuzzy. The same with university teachers, who, as Jane Gallop shows, must confront a conflict posed by their having to judge their graduate students—grade and assess them—while at the same time advocating for them in the professional marketplace. Show-business agents, too, can fall into an advocacy/judg- ing form of conflict. On the one hand, the agent is obliged to represent his client—say the star of a TV show—by energetically advocating for her interests. On the other, he might also produce the show, and in that role his obligation is to judge what is best for the program and its inves- tors, whose interests could easily diverge from the star's.2

Even with judges themselves, whose roles are more obviously "judg- mental," if they ever find themselves in a multiple-role sort of conflict, it is because they are tugged by a competing obligation to advocate. They might, for example, find themselves torn between an obligation to assess a case "on the merits" and an obligation to advance a broader legal doctrine or "legal agenda," as David Luban puts it. Or judges might find themselves sundered by a role requirement to rule exclusively on the "legal issues" in a case and a competing imperative to show "compassion" for particular parties before them: to pursue "impartiality and universal- ity" at the same time, as Robin West says.

True, some of these professionals—in particular, journalists, financial underwriters, show-business agents, and officials—work in organizations which, if they are suitably structured, can largely segregate those occu- pying judging from those occupying advocacy roles. Commentators need not be reporters, financial analysts need not also be salespeople, show-

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business agents need not double as producers, and decision-making of- ficials—administrative judges, for example—need not at the same time fill the roles of preliminary investigators. But in the remaining three pro- fessions—judging, criticism, and university teaching—the professional operates with far greater independence from whatever organizational structure surrounds her. In these three venues, whatever fusion of judg- ing and advocacy roles arises is thus more likely to be inveterately inter- nal to the individual and less amenable to resolution through organiza- tional manipulation.

It is true that Jane Gallop describes a situation, at her university, where the "freshman composition course is organized to isolate evaluation from all other aspects of the student-teacher relation"; where, specifically, "[a]t the end of the semester, the student's writing is evaluated by other [fresh- man composition] instructors," and the "actual teacher functions only as a coach"—and "possibly as an advocate"—"preparing [her students] for evaluation by someone else." The very exceptionalism of this arrange- ment, however, proves the rule that judging and advocacy combine in- extricably within most university teachers. More to the point, Gallop her- self uses the very incorrigibility of the professor's impartiality-partiality role conflict in the area of academic judging (evaluation) and advocacy (coaching, recommending, instructing) to say, in effect, that if we are going to allow such conflicts there, we should allow them anywhere, including situations in which the professor is both evaluator and lover. But whether or not judging and a professional advocacy roles are ulti- mately segregable, these are the professionals—journalists, financial un- derwriters, show-business agents, officials, judges, critics, and professors— who are peculiarly prey to it.

The second kind of intraprincipal role conflict arises when the profes- sional occupies both a diagnostic and a service-providing role with re- spect to the same principal. Consider the accountant who provides an audit and then offers comptrolling or forensic services to deal with any shortcomings she discovers. Or the consulting engineer who recommends structural work which his firm can then supply as a contractor. Or the lawyer who reviews a client's estate and then suggests a complex series of trust arrangements. Or the corporate director whose engagement in a proxy fight involves, essentially, a conflict between her fiduciary obligation to ascertain a course of action that will best cure the company's ills and her position as someone who might be able to offer such a course of action. Or the broker who "churns," recommending "frequent trading of (possibly) unsuitable securities" on the secondary stock market in a sit- uation where he is "compensated only for executing trades." Or, too, the official who identifies a social problem and then seeks the budget and staff to deal with it: the kind of conflict of interest public-choice scholars study. Or the physician who diagnoses a particular ailment and then

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prescribes a battery of tests to confirm, or who refers the patient to a specialist facility she co-owns for treatment.

In each of these cases, the professional is conflicted between a diag- nostic and a service-provision role. As Stephen Latham puts it in dis- cussing the physician in particular, in all such situations, the professional occupies the role of both buyer—the principal's agent for the purchase of services—and seller, the supplier of those services. What Latham says about the doctor is the case for each of these other professionals: "His conflict of interest is this: as [the principal's] purchasing agent, he has a duty to assist her in making prudent choices among [relevant profes- sional] services; but as a purveyor of those services, he has a pecuniary interest in advising her to make rather more extravagant purchases than a disinterested person would counsel."

For some of these professionals—in particular, accountants, doctors, secondary-market financial brokers, and lawyers, who operate according to traditional fee-for-service principles—the fusion of diagnostic and service-providing roles will, at some level, become inveterate and incor- rigible, unamenable to any kind of organizational remedy. Latham, for example, notes the impracticality of a world in which a "patient visits one physician for diagnosis, paying her a simple hourly rate, and is given a sheet of paper [which she takes] to another physician of her choice, who implements that treatment for a fee." Indeed, some physicians cite the very irremediability of the fee-for-service conflict to say, in effect, that if we are going to allow diagnostic/service-provision conflicts there, we should allow them anywhere, including situations in which "a physician refers a patient for testing to a lab that he or she owns." As Bradford H. Gray puts it:

Because [such] conflicts of interest are so similar to the conflicts of interest that inhere in fee-for-service, criticisms of the new arrange- ments [such as a physician referring a patient who needs tests to a laboratory she co-owns] can be seen as criticisms of arrangements to which organized medicine is wedded. If the physician who invests in facilities to which he refers cannot be trusted to resist economic temp- tation and to put the patient's interest first, then why should fee-for- service physicians—who are faced with analogous decisions daily—be trusted? This logic makes the profession reluctant to condemn any eco- nomic arrangement on the basis of the temptation to which it exposes physicians.3

Of course, the same could be said of accounting, law, and secondary- market financial services which, like medicine, are traditionally fee-for- service professions.

By contrast, engineering, corporate directorships, and government— while they, too, risk diagnostic/service provision conflicts—are not fee-

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for-service professions in the same way, and hence any such conflicts are less inveterate, more amenable to organizational remediation through the segregation of those occupying diagnostic from those occupying service- provision roles. It is frequent practice, for example, for engineering clients to use separate firms, one firm as a consultant to study needs, design specifications, review proposals, and monitor performance and another as the actual contractor. Indeed, only a handful over the past thirty years of National Society of Professional Engineers Board of Ethical Review (NSPE BER) conflict-of-interest cases deal with "diagnostic-service provi- sion" conflicts, and all find them relatively amenable to remediation through a combination of recusal, where the diagnosing firm takes itself out of the running for service-provider, and pluralism, where the diag- nosing firm recommends a number of competing alternatives as service providers. As for corporate directors, there also exists the possibility of considerable daylight between diagnosis and service provision: If a direc- tor is in a position to provide services to the company, then disinterested directors, shareholders, or potential buyers of the company are available to verify the diagnosis that those services are indeed needed.4 Govern- ment, too, has available an innumerable number of arrangements whereby it can segregate officials charged with diagnosing the need for a program or monitoring it from those developing and executing it. Fi- nally, although primary-market financial brokers can also fall into a di- agnostic/service-provision conflict, such conflict—by comparison with fee-for-service secondary brokers—is amenable to organizational resolution, to a structural segregation of those occupying diagnostic roles, determining the best stocks for a client's portfolio, from those filling service-provision roles, trying to sell a particular stock or bond that the company underwrites.s

In sum, when it comes to conflicts of interest that arise when the professional occupies more than one role with respect to a particular principal, the professions fall neatly into two categories: those that feature a conflict between judging and advocacy roles and those that exhibit a conflict between diagnostic and service-provision roles. And, within each category, the conflict can be more or less inveterate and incorrigible. Thus, when the conflict conflates a judging with an advocacy role, the two roles may in some situations be amenable to organizational segre- gation, as with journalists, primary-market financial underwriters, show- business agents, and officials. But in other circumstances—when the pro- fessional operates with some quasi-independence from the surrounding organizational structure, and hence remains beyond the reach of orga- nizational manipulation—the judging-advocacy conflict, where it arises, may be more entrenched within the individual practitioner, as it is with judges, critics, and university teachers. Likewise, when the conflict in question fuses a diagnostic with a service-provision role, it may lend itself to resolution through organizational ecology or maneuvering—as with

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engineers, corporate directors, and primary-market financial underwrit- ers—or there may come a point where such conflicts are ingrained and irremediable, as with the traditional fee-for-service professions of law, accounting, medicine, and secondary-market brokerage.

Many Principals, One Role

"Internal" conflicts of interest—those intrinsic to the professional-prin- cipal relationship—can also arise not when the professional occupies more than one role with respect to any given principal but when he or she must deal with more than one principal within the ambit of any given professional role. If, for example, the central problem with fee-for- service medicine is that it creates conflicts between the various roles (di- agnostic vs. service-provision) that the physician occupies with respect to a particular patient, the central problem with its alternative—capita- tion—is that it fosters conflicts between the various patients whom the doctor services in any given medical role. Capitation forces doctors to choose between allocating their limited time and resources to different principals, some of whose needs pose a far greater threat to that time and those resources than do others.

But medicine is not the only profession that features conflicts between various principals on matters that come under the rubric of the profes- sional's role. Corporate directors must deal with competing majorities and minorities among shareholders. Lawyers often face the problem of either concurrent or serial representation of adversarial clients. As Eric Hayot and Jeff King note, graduate students such as themselves fall into com- petition for the university teacher's attention and assistance in much the same way as patients do for their doctor's under capitation. In financial services, as Boatright says, a "broker who manages accounts for multiple clients may be forced to choose among the interests of these different parties when he or she decides how to allocate a security in short supply"; also, interprincipal conflicts arise because the broker represents both the buyer and the seller in many transactions. In fact, as far as interprincipal conflicts go, brokerage is unique. Whereas the interests of various prin- cipals might possibly come into conflict in medicine, law, corporate direc- torship, and university professorship, in brokerage, they necessarily fall into conflict, because they involve buyers and sellers, principals on either side of a market exchange.

But there is another set of professions which do not seem quite so afflicted by interprincipal conflicts of this sort. Perhaps that is because in their case—journalism, literary criticism, government, judging, account- ing, and engineering—the public as a whole is either the principal whom the professional is obligated to serve or else is coequal to other principals. Engineers and accountants, as Neil Luebke and Len Brooks show, fall into

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this latter category. One analyst, Paul L. Busch, even explicitly couples the two professions by noting that in both, the professional bears an obligation to the "public interest" and not just the "client's interest." 'Axiomatically," Busch writes, "engineers are expected to design for earth- quake protection whether or not it is requested by the client, [while] public accountants' audits are expected to disclose what the public needs to know about their clients, whether or not the client is happy about it."6

As for the accountant's or engineer's private clients, certainly they might fall into competition in the broader marketplace: A single engineering firm can construct stadiums for both the Chicago Bears and the San Diego Chargers; a single accounting firm can keep books for both Christie's and Sotheby's. But engineering and accounting clients are rarely adversaries— as can be doctors' patients under capitation, lawyers' clients, professors' students, and directors' shareholders—on any matter in which the en- gineer or accountant is responsible for serving them as a professional. 7

When it comes to the remaining four professions for which the public is a principal—government, journalism, judging, and criticism—the pub- lic is in fact the only principal. Unlike with accounting or engineering, these four professions do not embrace private-party principals as well. That is not to say that, for example, journalists, in serving the public, owe no obligations to various private parties, such as their sources or subjects, or that those obligations will never trump the one owed to the public to report the news. But the obligations a journalist bears to those she interviews or covers are not ones of professional to principal; they are not, as Alan Goldman puts it, role-moral obligations—heightened fiduciary duties of singular commitment and devotion—but rather "ordinary-moral" obligations—minimalist or baseline duties to be fair and decent of the kind we bear toward anyone, including those with whom we have no special relationship.8 Likewise, critics write for their public, not for the artists they analyze, which is not to say that they bear those artists no obligations of baseline fairness. As for officials, they, too, direct their professional or role-moral obligations to the public; toward partic- ular agency clients or groups, they hold only ordinary moral obligations.9

In the same vein, judges bear a primary obligation to the public for whom they work to do justice; to faithfully interpret, clarify, improve, and rationalize the law. And yet, as Luban notes, they certainly have other kinds of obligations to the private litigants before them, obligations that might compete with their duties to the public, such as settling a case quickly without addressing the broader public values it implicates, pre- serving secrecy, or delving into the complexities of the case at the cost of omitting to create simple legal rules of broad application. Of course, those litigants themselves—though they do not constitute the judge's principal—not only might be, they necessarily are, in competition on mat- ters that fall squarely within the judge's role responsibility. Judges share

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this quality with brokers, which is perhaps why David Luban even de- scribes litigant-centered judges as "brokers."

As with the multiple-role/one-principal variety of conflict, then, so with the one-role/multiple-principal type: The professions divide them- selves into two basic categories. On the one hand are those—medicine, corporate directorships, financial services, law, and university teaching— in which the private-party principals may well come into competition or conflict within the domain in which the professional is responsible. On the other hand are professions in which many individual private-party principals are replaced either wholly or partially by the public. Thus, journalists, critics, judges, and officials owe their professional responsi- bilities only to the public—which is not to deny that the public might sometimes fall into internal conflict on matters for which the official or judge, say, is responsible in role. And although engineers and accountants bear professional obligations to individual clients, those interests are un- likely to fall into conflict on any matter for which engineers or account- ants are professionally responsible; moreover, accountants and engineers bear a coequal fiduciary obligation to the public as a whole. There is, of course, some argument to be made that physicians, especially those work- ing in public settings or being paid through public funds, and corporate directors, laboring as they do under corporate constituency statutes, are moving toward a point at which the public will assume coequal status as a principal, along with the patient or the shareholder. Conversely, Lu- ban suggests, judges may be moving toward a point at which litigants assume coequal status as principals along with the public. But we have not yet actually reached any of these points.10

Cross-Professional Patterns

There is, then, a pattern—depicted in table 17.1—to the kinds of conflicts that arise from sources internal if not external to the professional- principal relationship. It is a pattern, or more exactly a four-quadrant matrix, born of the different structures each profession displays. In the first quadrant are professions in which the professional occupies the dual roles of judge and advocate (some more integrally and others less) and the principal is the public itself: journalism, criticism, government, and the judiciary. Second come professions—accounting, engineering, govern- ment—where this time the professional occupies the dual roles of diag- nostician and service provider (again, the one more integrally than the others), while the principal continues to include the public. Third, there are professions—medicine, law, corporate directorships, and financial services—in which the professional continues to occupy the dual roles of diagnostician and service provider, but in which it is only private par-

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Table 17.1 Conflicts, Roles, and Principals

ROLES

Judging/Advocacy

PRINCIPALS

Public Only or Included

Private Only

ROLES

Diagnosis/Service-Provision

Conflicts Less Integral

Conflicts More Integral

Conflicts Less Integral

Journalism Criticism

Government Judging

Financial Services

University Teaching

Show Business

Government Accounting

Engineering

Medicine Corporate Boards

Law Financial Services

ties, and no longer the public itself, who number among the principals.11

Finally, there come the professions—university teaching, financial serv- ices again, and show business—in which the professional's dual roles are once again those of judge and advocate but the principals continue to include only private parties, not the public. This last category, I note, seems to contain a bit of an odd triumvirate: What has university teach- ing got to do with financial services got to do with show business? The answer is that in these professions, unique among the ones considered here, the principal is actually the product being sold by the professional. University teachers judge and advocate for their students as they propel them into the academic job market. Brokers judge and advocate for their client company as they propel its IPO into the primary stock market. Show-business agents judge and advocate for their stable of stars as they propel them into the casting market. No other profession markets its principals in the same way, which is why the three belong together.

Ex Post Decisions and Ex Ante Impairment

Overlaying this pattern is one other set of distinctions that emerges from the book's various chapters. The question which any conflict-of-interest situation raises, of course, is whether a professional's judgment has been impaired or compromised. In exactly half of the professions under dis-

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cussion, we have available (at least in principle) a way of answering this question by looking at the decision the impaired principal actually makes and comparing it with an independent standard of correctness. So, for example, for both journalists and judges—at least in respect of part of what they do—there is an empirical reality, a fact of the matter, against which their reporting or judging can be measured to see whether it moved off course.12 For both doctors, concerned as they are with health, and engineers, focused as they must be on safety, certain physical realities can be used to check a particular medical or engineering decision; peers can ascertain, in many cases, whether it was faulty or not. Finally, in both accounting—with its Generally Accepted Accounting Principles— and corporate directorships—where in a transaction involving a self- interested director, "unfairness of price . . . after the fact" can "be evi- dence of unfairness of process"—certain numerical realities exist against which any putatively impaired decision can be measured.13

None of this is to say that empirical reality for journalists and judges, or physical reality for doctors and engineers, or numerical reality for accountants and corporate directors, is always knowable, accessible, or beyond contestation. But because it exists in principle, and in some cases it provides an added means of assessing the existence of impaired judg- ment: by looking at the actual judgment ex post instead of examining only the extent of the impairment ex ante. And this is so whether the impairment originates in external interests such as stockholdings or fees or in internal interests such as a conflicting role or principal. The avail- ability of such a supplementary measure distinguishes these professions in a key way. After all, just because her judgment was impaired ex ante, it does not follow that any professional—no matter what his or her field— was unable to rise above the impairment and produce a good judgment anyway ex post. In these six professions, there may be means of assessing whether this in fact happened.

Such extrinsic standards are, however, unavailable for the remaining professions. In the political world of the official, the partisan world of the lawyer, the academic world of university teaching (as distinct from uni- versity research, especially in the physical sciences), in the aesthetic (or what Tyler Cowen calls the "ambiguous") world of the critic, in the spec- ulative world of the broker bringing a stock to market for the very first time—and in the political, partisan, aesthetic, and speculative world of the show-business agent—there are generally no independent empirical, physical or numerical standards against which to assess a professional's decision. Instead, these are realms of great and inveterate contestation. Absent such standards for assessing or second-guessing the professional's judgment ex post, it is not surprising that these professions (or, at least, those among them that have conflict-of-interest strictures) rely not just partially but wholly on prophylactic conflict-of-interest standards, stan- dards which control impairments ex ante.

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Loose Ends:

Teaching—Counseling and Anthropology

I have thus far omitted discussion of two of the chapters in the book, those on teaching-counseling and anthropology. The reason is that they are literally off the charts—or, more exactly, off Table 17.1—but in an intriguing and mutually inverse way. One breaks the mold in its treatment of roles, the other in its orientation to principals.

Teacher–counselors take the kind of intrarole conflict that inheres within other professions—between various kinds of judging-advocacy roles, say, or between diagnostic-service provision functions—and makes it an interrole conflict, a conflict better understood as one between two distinct professions, teaching and counseling. Indeed, in Elliott Cohen's example, the conflicted professional is not just any teacher, he is "a pro- fessor of counselor education"; hence, he is compromised in his teaching role when, in the presence of a student he also counsels, he instructs on the topic of professors who also counsel. Likewise, he is not just any psychological counselor; he is a counselor who is helping the student deal with her educational experiences, including experiences she has had in his class. His role as a teacher is thus one that leads him to pass judgment on what he does as a counselor; as a counselor, he must com- ment on his behavior as a teacher. Clearly, he is uniquely compromised in both roles. If, however, as a teacher he taught the student computer science, while as a counselor he was treating her for the psychological effects of a motorcycle accident, the same sorts of conflicts would not arise. Yes, he might be tempted to favor her in class in order to keep her business as a counselor. But that would be a conflict external not internal to the teaching role, one identical to the situation of an official who favors a businessperson who pays her a consulting fee.

If teaching—counseling externalizes a kind of conflict other professions experience intrarole, then anthropology internalizes a kind of obligation other professions leave out of role—obligations to nonprincipals—by making it an in-role obligation. As Merrilee Salmon notes, the anthro- pologist (as does any other professional) bears a fiduciary or role-moral duty to her principal, in this case the public for whom she writes, to positively promote its interest in gaining knowledge. And, as do all other professionals, she has the negative "duty not to harm" others—in par- ticular, the group about whom she writes. But, unlike other professionals, for whom this duty to nonprincipals is a common moral or nonfiduciary one, for the anthropologist, the duty "not to harm the people he or she studies or works with is a fiduciary duty." Thus, anthropology varies the theme of multiple principal conflict—by internalizing, as well, competing obligations to nonprincipals—just as teaching–counseling varies the

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themes of multiple role conflict by externalizing conflicting obligations between roles.

But the possibilities for deepening cross-professional comparisons and contrasts—for going further and further "off the chart"—does not end with teaching-counseling or anthropology. Consider, just as one illustra- tive example, corporate directors and public officials. Both share certain off-chart characteristics that add texture to their respective conflict situ- ations and distinguish them from other professions. First, within certain closely guarded limits, directors and officials are both able to draw on resources of the principal to combat any attempt to replace them with competing professionals: Think of the use of corporate resources by in- cumbent directors in proxy fights and the use of public resources by incumbent officials in political campaigns. Second, both are elected. Third, both are the only professions whose principals divide themselves into majorities and minorities: After all, whereas all of the director's or official's principals might find themselves interested in the same partic- ular matter—a stock split, a budget resolution—this never happens with medical patients or engineering clients. Fourth, both are professions in which the professionals themselves might number among the principals whom they are obligated to fiduciarily serve: Officials are also citizens of the jurisdiction; directors can also be shareholders in the company.

Fifth, and finally, in directorship and officialdom the diagnostic/ service-provision conflict uniquely spills out of the professional role. Con- sider that in other professions—accounting, engineering, medicine, or financial services—professionals, in their role as diagnosticians, might recommend services that they themselves can provide in their profes- sional capacity. True, the official, too, might diagnose a social ill for which he then develops a service as an official, thus expanding his department. The director, likewise, might diagnose a corporate malfunction which she believes she and her incumbent colleagues are uniquely equipped—by contrast with members of a competing slate of candidates—to cure as directors. But in government and corporate directorship, alone among the professions, the professional is also regularly in a position to diagnose needs that themselves would not necessarily be served in-role—whether by herself or a fellow professional—but rather by out-of-role service pro- viders of almost any shape, among whom she might also number. Thus, an official might use his role to diagnose a social need which nonofficial entities, among them a private company he owns, might meet, as when an agriculture department supervisor diagnoses a departmental need for warehouse space and, in his out-of-role position as a warehouse owner, supplies it.14 Similarly, the director might use her role to diagnose a cor- porate need for a new office building and, happening to own one out of her directorial role—as a real estate investor—supplies it.15 Hence, among directors and officials alone, the in-role diagnostician/service-provision

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conflict can spill over into a kind of out-of-role self-dealing.16 For all these reasons, government and directorship offer but one illustration of the ways in which the structure of conflict of interest can reveal deep, and perhaps hidden, structural affinities (and, presumably, also distinctions) between professions.

Conclusion

Does a professional occupy multiple roles with respect to the same prin- cipal? Are these judging and advocacy roles? Diagnostic and service- provision roles? Are such role fusions integral to the individual profes- sional, or are they amenable to organizational remediation? Does the professional exercise his or her role with respect to more than one com- peting principal? Are such interprincipal conflicts necessary or simply possible? Do her principals include the public or not? And are there ex- ternal empirical, physical, or numerical standards available against which to assess the ex post results of any ex ante impaired judgment? These are the questions that separate the professions, that array them in a rich diversity—indeed, a patterned diversity—insofar as conflicts arising from within the professional-principal relationship are concerned. Conflicts arising from without that relationship, by contrast, show no such rich or patterned set of distinctions at all.

It is our hope, as editors and authors, that scholars and practitioners will build on the research reported in this volume and on the opportunities for cross-professional comparisons it affords; that they will find its analyses fruitful and informative. And plausible. In witness whereof, let me just pluck out one observation from the preceding discussion. Of all the pro- fessions, two in particular emerge from the volume as being polar opposites if we judge them by their conflict-of-interest structures. In the one—lit- erary criticism—conflicts arise from a fusion of judging and advocacy roles, they are integral and inveterate, they involve the public as principal, and they are bereft of any established external means of assessing the out- come of a judgment ex post. In the other—corporate directorships—con- flicts emerge from a combination of diagnostic and service-provision roles, they are frequently remediable and corrigible, they involve only private parties as principals, and external standards are often available for assess- ing the ex post quality of any decision made under some form of ex ante impairment. Literary critics and corporate board members, according to this analysis, could not be more dissimilar. If that does not conform to our "pretheoretical intuitions," it is hard to say what would.

Notes

1. There is, perhaps, a third kind of nonexternal conflict of interest that hovers above the other two, not so much internal as "meta." Consider Michael

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Pritchard's example of 'Adams," a professional of undesignated profession, who "is invited to play golf with some friends on a particularly beautiful day" at a time when he has "an appointment with a client." Pritchard believes that Adams's circumstance does not even rise to a "potential conflict of in- terest." But perhaps another way of understanding it is this: Adams's situa- tion may not impair any decision he takes in role, but it does encumber his decision as to whether to enter his role in the first place—a meta-conflict of interest. See Michael Pritchard, Conflict of Interest: Conceptual and Normative Issues, 71 Acad. Med. 1308 (1996).

2. Eben Shapiro, Hollywood abuzz over Shandling lawsuit, San Diego Trib- une, March 13, 1998, at E10. The core of the Garry Shandling lawsuit— perhaps the most famous to emerge in the arena of show-business agency— had to do with the internal conflicts of interest that allegedly arose because Shandling's agent, Brad Grey, "serv[ed] as both Shandling's manager and the executive producer of his show." As well, Shandling alleged several other purely "external" conflicts of interest on Grey's part, claiming that Grey had traded on Shandling's name in order to advance his own extra-professional commercial interests. See also Lynn Elber, Shandling's suit puts managers in spotlight, Tulsa World, July 1, 1999, at 5.

3. Bradford H. Gray, The Profit Motive and Patient Care 198 (Cambridge, MA: Harvard University Press, 1991).

4. See Norwood P. Beveridge, Jr., The Corporate Director's Fiduciary Duty of Loyalty: Understanding the Self-interested Director Transaction, 41 De Paul L. Rev. 677 (1992).

5. I had earlier described this same financial-services role fusion as one of judging and advocacy, not of diagnostics and service provision. And so it is, from a different perspective. For what is of note here is the existence of two vantage points from which one can view the primary-market broker's role—that of the company whose stock the broker underwrites and that of the client whose portfolio the broker manages, both of whom number among the broker's principals. From the point of view of the company whose shares are being underwritten for an IPO, the broker may be conflicted as both an advocate for the stock and a judge who must execute due diligence—who must pass on it objectively in the same way a university professor must with respect to the students for whom he or she also advocates subjectively in the job market. But from the perspective of the individual client whose account the broker manages, the conflict is one between diagnostician—someone who must determine what financial services the client needs—and potential sup- plier of those services ("have I got an IPO for you!"), in much the same way as a physician—someone who must ascertain the medical needs of a client— might also be a potential supplier of those services ("I know of a nice MRI facility . .."). Primary-market financial services thus fall into both classes of multiple-role conflict, judging/advocacy and diagnostic/service provision, pre- cisely because it is the only professional activity in which the principals rou- tinely fall on both sides of a market transaction, and who thus bear the two perspectives. I say this notwithstanding that government, too, can experience both judging/advocacy and diagnostic/service-provision conflicts, because in its case, it is usually different officials—or, at least, different official activities— that fall into one or the other kind of multiple-role conflict, not (as with primary-market financial brokerage) the same official undertaking the same official activity. Finally, although it is true that an accountant, too, can act

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as a judge—in her public auditing capacity—and also advocate before the tax authorities on behalf of a client whose affairs she has audited, the ac- countant rarely executes both roles with respect to the same particular mat- ter; (i.e., she rarely advocates with respect to the audit itself). Role conflicts for accountants are typically those of diagnosis and service provision.

6. Paul L. Busch, Time for Another Look at Conflict of Interest, http:// www.nspe.org/ ethics/eh1-tim.asp.

7. I must qualify this comment. Sometimes, as NSPE ethics cases reveal, engineers do appear to fall into conflicts because they must serve different principals with competing interests on matters that fall within their profes- sional role. But closer scrutiny shows this to happen only when they have, in essence, left the engineering and entered the legal sphere: when they find themselves acting as expert witnesses for both the plaintiff and the defendant in a particular case (see, e.g., Case 95-7). It is equally noteworthy that the only time engineers seem to fall into conflicts because of the competing (di- agnostic/service provision) roles they occupy with respect to the same prin- cipal is when, in essence, they have left the engineering and entered the governmental profession. Almost all such cases involve consulting engineers brought in by government to design specifications for a project which they are then in a position to build; they involve engineers occupying, as one case (92-5) put it, a "quasi-governmental" role with whatever added obligations to the public trust such a role represents. It seems, then, that engineers fall into either type of conflict only when they assume the mantles of other professions, specifically law (more than one principal, but one role) and gov- ernment (more than one role, but one principal); when they shuck those mantles, few engineering conflicts of interest seem to arise. (These National Society of Professional Engineers ethics cases can be found at http:// www.niee.org/cases.)

8. Alan H. Goldman, The Moral Foundations of Professional Ethics (Totowa, NJ: Rowman & Littlefield, 1980); see also Everette E. Dennis, The Press and the Public Interest: A Definitional Dilemma, 23 De Paul L. Rev. 945 (1974).

9. See Andrew Stark, Beyond Quid Pro Quo: What's Wrong with Private Gain from Public Office? 91 Am. Pol. Sci. Rev. 115-116 (1997).

10. Prison medicine, as Kenneth Kipnis describes it, seems to differ from general medical practice in this way: The principals involved, the patients, are not individual private parties who come to the doctor willy-nilly from the gen- eral population; rather, they themselves constitute a population within a con- fined space. Hence, the interprincipal conflicts the prison doctor faces are heightened. Indeed, three of Kipnis's four examples place prison doctors in the kind of conflict that arises when their obligations as a physician to one of their principals—one prisoner patient—conflict with their obligations to oth- ers. If, for example, the physician tests an inmate who is potentially infected with hepatitis B against his will, she violates her obligation to him. If she does not, she violates her obligations to other inmate patients who might get in- fected as a result. If a diabetic inmate continues to ingest candy bars at the prison canteen, making himself ill and "draw[ing] staff and resources away from the needs of other inmate/patients," the physician could continue to as- sist him each time he harms himself—thus hurting other patients. Or she could initiate disciplinary procedures that would result in the inmate's loss of canteen privileges, thus partly transgressing her role obligation to the diabetic patient himself. If the prison physician is faced with the question whether she

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should violate prison policy and distribute condoms in order to combat HIV, "it could be argued that in failing to assist in the inexpensive prevention of HIV infection where the ensuing disease can result in costly drains to scarce medical resources, [she is] allocating scarce resources unwisely and therefore failing to honor [her] public-health obligations to respect the claims of other non-HIV positive inmates with health problems of their own." All are conflicts not between the professional's roles but between her principals. And, Kipnis notes pointedly in concluding, as individual patients outside prison coalesce into "populations" in the way inmates do—as fee for service, in other words, is replaced by capitation—the heightened interprincipal problems of prison medicine will come to beset more and more physicians.

11. It would seem, from Donald Gabard and Mike Martin's thorough treat- ment, that the physical therapist is in much the same position as the physi- cian. Physical therapists find themselves afflicted with diagnostic/service- provision role conflict with respect to any individual patient, as well as—at the level of resource allocation and devotion of attention—conflicts between the obligations they bear to many patients within any individual therapeutic role. Thus, for medicine, read, "medicine and physical therapy."

12. John Rawls distinguishes the archetypal judging situation—the "crim- inal trial," in which there exists an "independent criterion of a correct result" even if our means of reaching it are imperfect—from political debates over "distributive shares," in which "there is no independent criterion for the right result." For judges, in other words, there exists in principle an extrinsic stan- dard against which to test the fruits of impaired judgment, whereas for offi- cials, say, there often is not. See A Theory of Justice 85, 86 (Cambridge, MA: Harvard University Press, 1971).

13. Melvin Aron Eisenberg, Self-Interested Transactions in Corporate Law, 13 J. Corp. L. 1005 (1988).

14. I base this example on Smith v. United States, 305 F.2d 197 (9th Cir. 1962).

15. Supra note 13 at 999. 16. Of course, there are some gray areas here. As we have seen, physi-

cians can under certain circumstances diagnose a need, and then refer the patient concerned to a testing lab they co-own. Here, the services provided remain medical ones—that is, they are offered as professional in-role services by medical personnel, and certainly doctors—but they are rendered outside of the doctor's own office, by another entity she owns, and hence begin provoking a debate as to whether they constitute self-dealing. By contrast, lawyers who get into "ancillary businesses"—referring clients to insurance, lobbying, mediation, financial planning, trust, real-estate development or in- vestment banking services they provide—often find themselves in the reverse situation. Here, the services provided are not legal ones—they exist outside the profession of law—but they often are offered inside the lawyer's own firm; indeed, this is the idea of such "one-stop" shopping or "multi-disciplinary law firms." And, again, unease arises as lawyers debate whether or not such ancillary businesses fall into the class of normal, in-role professional con- flicts—conflicts between a diagnostic and service-provision role of a sort in- herent in fee-for-service business—or whether they cross a line into self- dealing. For some good discussion, see James Fitzpatrick, Legal Future Shock: The Role of Large Law Firms by the End of the Century, 64 Indiana Law Journal 467 (1989).

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