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Conflict of Interest M Davis, Illinois Institute of Technology, Chicago, IL, USA

Glossary Adverse interest A private interest giving one a reason

to act contrary to one’s duty as agent or trustee; not

necessary for a conflict of interest, although a common

cause.

Agent A person authorized by another, the principal, to

act on the principal’s behalf, and continuously subject to

the principal’s control.

Apparent conflict of interest A situation in which one

does not have the conflict of interest in question but

someone else would be justified in concluding that one

does.

Bias A deflection of judgment in a determinate

direction; not necessary for conflict of interest.

Conflict of commitments (duties or obligations) A

situation in which one has at least two commitments

(duties or obligations) and fulfilling one will make fulfilling

the rest impractical; not necessarily a conflict of interest.

r, P. (Eds.). (2011). Encyclopedia of applied ethics. Retrieved from http://ebookcentral.pr 2020-01-06 21:42:15.

Conflict of interests A situation in which two or more

interests conflict, whether within one person or between

persons; not necessarily a conflict of interest.

Conflict of roles A situation in which satisfying the

demands of one role precludes satisfying the demands

of another role one also occupies; not necessarily a

conflict of interest.

Conflicting interests Same as conflict of interests; not

necessarily a conflict of interest.

Disloyalty Acting contrary to one’s duty as agent or

trustee.

Fiduciary A person having a duty to act in another’s

behalf. Both agents and trustees are fiduciaries;

fiduciaries can have a conflict of interest only if their

duties involve exercising judgment.

Trustee A person having a duty to act on another’s

behalf, especially with respect to property, but not

subject to that other’s control. Trustees are fiduciaries

but not agents.

oqu

What is Conflict of Interest?

A conflict of interest is a situation in which some person P (whether an individual or corporate body) is (1) in a relationship with another requiring P to exercise judg- ment on the other’s behalf and (2) P has a (special) interest tending to interfere with the proper exercise of judgment in that relationship. The crucial terms in this definition are ‘relationship,’ ‘judgment,’ ‘interest,’ and ‘proper exercise.’

Relationship

The term relationship (as used here) is quite general, including any connection between P and another person justifying that other’s reliance on P for a certain purpose. A relationship may be quite formal (e.g., that between an attorney and her client) or quite informal (e.g., that between friends). A relationship can last a long time (as familial relationships generally do) or only a minute (as when one directs a stranger to a distant address). The relationship required must, however, be fiduciary; that is, it must involve one person trusting (or, at least, being entitled to trust) another to do something for her – exercise judgment in her service.

The legal distinction between agents and trustees is not important here. An agent is a fiduciary who is under the continual control of the principal (i.e., the principal may, at any time, issue new instructions). A trustee is not under similar control. For a time at least, the trustee does not have to do what the principal says. Thus, for example, the trustee of an estate, although bound by the instruc tions of the will she administers, is a trustee precisely because she is not subject to further instruction, either from those who established the trust or from its beneficiaries.

Judgment

Judgment (as used here) is the ability to make certain kinds of decision correctly more often than would a simple clerk with a book of rules and all, and only, the same information. Insofar as decisions do not require judgment, they are ‘routine,’ ‘mechanical,’ or ‘ministerial’; they have (something like) an algorithm. The decision maker contributes nothing special. Any difference between his or her decision and that of someone equally well trained would mean that (at least) one of them had erred (something easily shown by examining what they did). Ordinary math problems are routine in this way.

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Where judgment is required, the decision is no longer routine. Judgment brings knowledge, skill, and insight to bear in unpredictable ways. Where judgment is necessary, different decision makers, however skilled, may disagree without either being clearly wrong. Over time, we should be able to tell that some decision makers are better than others (indeed, that some are incompetent), but we will not, decision by decision, be able to explain differences in outcome merely by error – or even be able to establish decisively that the judgment of one decision maker is better than another’s.

The social sciences have recently begun to study influences on judgment in a systematic and controlled way. They have discovered that good judgment is quite fragile. Even seemingly insignificant gifts or incentives can have significant effects.

Anyone sufficiently adept in the exercise of judgment of a certain kind is competent in the corresponding field. Each profession is defined in part by a distinct kind of judgment. Accountants are especially adept at evaluating procedures for reporting finances, civil engineers are especially adept at predicting the likely serviceability of physical structures, teachers are especially adept at jud ging academic progress, and so on.

Judgment is not only an attribute of professions. Any agent, trustee, or other fiduciary may exercise judgment. One may even exercise judgment in a relationship as mundane as watching a neighbor’s children while he answers the phone. However, not every relationship, not even every relationship of trust or responsibility, requires judgment. I may, for example, be asked to hold a great sum of money in my safe until the owner returns. I have a great trust. I am a fiduciary upon whom the owner may be relying for her future happiness. However, I need not exercise judgment to do what I should. My duties are entirely routine (however much the money tempts me). I need only put the money in the safe and leave it there until the owner returns and asks for it. I cannot have a conflict of interest in that role.

Interest

An interest is any influence, loyalty, concern, emotion, or other feature of a situation tending to make P’s judgment (in that situation) less reliable than it would normally be (without rendering P incompetent). Financial interests and family connections are the most common interests discussed in this context, but love, prior statements, gra titude, and other ‘subjective’ tugs on judgment can also be interests (in this sense). Thus, for example, a judge has an interest in a case if one of the parties is a friend or enemy, just as he would if the party were his spouse or a company in which he owned a large share. Friendship or enmity can threaten judgment as easily as can financial or family entanglements.

er, P. (Eds.). (2011). Encyclopedia of applied ethics. Retrieved from http://ebookcentral.proq n 2020-01-06 21:42:15.

Training or experience can sometimes protect mem bers of an occupation from the effect of certain tugs on judgment. For example, would-be physicians quickly learn to view the body as a site of disease rather than sexuality. However, there do seem to be limits to what training and experience can accomplish. Thus, for exam ple, physicians have long preferred to send members of their own family to another physician rather than care for them themselves. They do that, in part at least, because they do not think medical training has prepared them to keep adequate professional distance between themselves and someone emotionally close to them. Previous gen erations of physicians saw the bad consequences of supposing that family ties have no tendency to affect professional judgment. Family ties seem to damage med ical judgment even though they tug in the right direction.

What in fact constitutes a conflict of interest is an empirical question, always open to revision as new evi dence comes in. It is therefore a mistake to make a final list of what constitutes the relevant interests. We should not, for example, say that, by definition, a conflict of interest must involve a financial or family interest. Definitions cannot settle empirical questions.

There are, of course, facts about a situation, such as loud noise or poor lighting, and even facts about a person, such as exhaustion or extreme anger, that, although ren dering otherwise competent judgment unreliable, do not seem to be conflicts of interest. How are we to distinguish such facts from ‘interests’? This is neither a morally important question nor one difficult to answer. The ques tion is not morally important because threats to judgment arising from loud noise, exhaustion, or the like should be treated much as conflict of interest should (i.e., avoided, escaped, or disclosed and managed). The question is not difficult because we can easily identify the conceptual boundary between, for example, loud noise or exhaustion, on the one hand, and the influences, loyalties, and the like that, on the other hand, create conflicts of interest. Conditions such as loud noise or exhaustion do not threa ten judgment in the way conflict of interest does. They make judgment unreliable by rendering it (temporarily) incompetent; we are ‘unable to think.’ We might then actually fail a test of competence we would otherwise pass easily. Conflict of interest does not work like that. We remain able to pass any test of competence we could otherwise pass. What conflict of interest affects are the ends in view, the evaluation of this or that means, and other matters of judgment within the bounds of competence.

Proper Exercise

What constitutes proper exercise of judgment is generally a question of social fact, including what people ordinarily expect; what P or the group P belongs to invites others to

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expect; and what various laws, professional codes, or other regulations require. Because what constitutes proper exercise of judgment is a social fact, it may change over time and, at any time, may have a disputed boundary. For example, architects today are supposed to consider sus tainability when designing a building; they had no such professional obligation as recently as 1990.

What comprises proper exercise of judgment also var ies from one profession to another. For example, a lawyer who resolves every reasonable doubt in favor of an employer when presenting the employer’s case in court exercises her professional judgment properly; an indus trial chemist who does the same when presenting research at a conference does not. Chemists are supposed to serve their employer by serving the truth (not, like lawyers, to serve the truth by serving their employer).

What comprises proper exercise of judgment may also vary from one employer to another. For example, one company may leave its employees free to choose their flight even though the company is paying for it; another may require employees to choose the least expensive flight consistent with arriving on time. Because employ ees are agents having a general duty not to waste their employer’s resources, and because choosing among flights generally involves judgment, the employees of the second company will have less room for conflict of interest than employees of the first. They will have less room for conflict of interest because their employer has restricted the domain of proper judgment more than the first did.

What is Wrong with Conflict of Interest?

A conflict of interest is like dirt in a sensitive (mechanical) gauge. All such gauges contain some dirt, the omnipresent particles that float in the air. Such dirt, being omnipresent, will be taken into account in the gauge’s design. Such dirt does not affect the gauge’s reliability. However, dirt that is not omnipresent, the unusual bit of grease or sand, can affect reliability, the ability of this gauge to do what gauges of its kind should (and generally do) do. Such ‘special’ dirt might, for example, cause the gauge to stick unpredictably. Insofar as dirt affects a gauge’s reliability, it corresponds to the interests that create conflicts of inter est. Thus, a conflict of interest can be objectionable for at least one of three reasons.

First, P may be negligent in not responding to the conflict of interest. We expect those who undertake to act on another’s behalf to know the limits of their judg ment when the limits are obvious. Conflicts of interest are obvious; one cannot have an interest without knowing it, although one can easily misjudge how much it might affect one’s judgment. Indeed, people with a conflict of interest often esteem too highly their own reliability. Insofar as P is unaware of her conflict of interest, she

inger, P. (Eds.). (2011). Encyclopedia of applied ethics. Retrieved from http://ebookcentral.pr on 2020-01-06 21:42:15.

has failed to exercise reasonable care in acting on another’s behalf. Insofar as she has failed to exercise reasonable care, she is negligent. Insofar as she is negli gent, her conduct is morally objectionable.

Second, if those justifiably relying on P for a certain judgment do not know of P’s conflict of interest but P knows (or should know) that they do not, P is allowing them to believe that she is more reliable than she is. She is, in effect, deceiving them. Insofar as she is deceiving them, she is betraying their (properly placed) trust. Insofar as she betrays their trust, her conduct is morally objectionable.

Third, even if P informs those justifiably relying on her of the conflict of interest, her judgment will be less trust worthy than it ordinarily is. She will still be less reliably competent than usual – and perhaps appear less compe tent than members of her profession, occupation, or avocation should be. Conflict of interest can remain a technical problem even after it has ceased to be a moral problem. Even as a technical problem, conflict of interest can harm the reputation of the profession, occupation, avocation, or individual in question.

Not Bias

Conflict of interest is not mere bias. Bias (in a person) is a deflection of judgment in a definite direction. Bias, whether conscious or unconscious, is relatively easy to correct for. For example, we can discount for the bias (e.g., ‘take his opinion with a grain of salt’).

Conflict of interest is not bias but a tendency toward bias. Correcting for a tendency is much more difficult than correcting for a bias. Consider our gauge again: Because of the special dirt in it, it has a tendency to stick. How do we correct for that tendency? Do we accept its first reading, strike the gauge once and then accept the new reading, strike it several times before accepting a reading, average all the readings, or what? How are we to know when we have what we would have had were the gauge as reliable as it should be?

Not Conflict of Commitments or Conflict of Roles

A conflict of interest is not a conflict within one’s commit ments, obligations, or duties or between one’s roles but between some (special) interest and the proper exercise of competent judgment in accordance with some commit ment, obligation, duty, or role. Thus, for example, I do not have a conflict of interest just because (in a fit of absent mindedness) I promised to give a talk today after promis ing to attend my son’s soccer game scheduled for the same time. That conflict of commitments does not threaten my judgment (although I must decide between them).

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I would, however, have a conflict of interest if I had to referee at my son’s soccer game. I would find it more difficult than a stranger to judge accurately when my son had committed a foul. (After all, part of being a good father is having a tendency to favor one’s own child.) I honestly do not know whether I would be harder on him than an impartial referee would be, easier, or just the same. What I do know is that, like the dirty gauge, I could not be as reliable as a ‘clean gauge’ would be.

The same would be true even if I refereed for a game in which my son did not play but I had a strong dislike for several players on one team. Would I call more fouls against that team, fewer (because I was ‘bending over backwards to be fair’), or the same as a similarly qualified referee who did not share my dislike? Again, I do not know. What I do know is that an interest, my dislike of those players, is sufficient to make me less reliable in the role of referee than I would otherwise be. Conflict of interest does not require a clash of roles; one role (referee) and one interest (a dislike of some players) is enough for a conflict of interest.

Impartiality, Independence, and So On

We often describe an inability to judge as someone less involved would as a loss of impartiality, independence, objectivity, or professional distance. Such descriptions often pick out a conflict of interest, but just as often they do not. One can, for example, fail to be impartial, inde pendent, or objective because one is biased or under another’s control.

What Can Be Done About Conflict of Interest?

Virtually all professional codes, and many corporate or governmental codes of ethics as well, provide some gui dance on how to deal with conflicts of interest. Unfortunately, many say no more than ‘avoid all conflicts of interest.’ Such a flat prohibition probably rests on at least one of two mistakes.

One mistake is assuming that conflicts of interest can always be avoided. Some certainly can. For example, a public prosecutor might, upon taking office, put his assets in a blind trust. He would then not know what special effect his official decisions would have on his finances. His ‘objective interest’ could not affect his judgment. He would have avoided all conflicts of interest arising from his investments. He cannot, however, avoid all conflicts of interest in that way. He cannot put all his interests, including family and friendships, into a blind trust. The prosecutor may not, for example, be able to avoid his office having a case in which a member of his family is the defendant’s attorney, a witness, or even the defendant.

er, P. (Eds.). (2011). Encyclopedia of applied ethics. Retrieved from http://ebookcentral.proq n 2020-01-06 21:42:15.

The other mistake on which a flat prohibition of con flicts of interest may rest is the assumption that having a conflict of interest is always wrong. Having a conflict of interest is not like stealing money or taking a bribe. One can have a conflict of interest without doing anything wrong (e.g., the prosecutor does nothing wrong just because the defense has called the prosecutor’s mother as a witness). To have a conflict of interest is to have a moral problem. What will be morally right or wrong, or at least morally good or bad, is how one resolves that pro blem. There are at least three approaches to the problem (apart from trying to avoid those conflicts that should be avoided).

Escape

One approach to the problem posed by a conflict of interest is escape. One way to escape a conflict of interest is to redefine the underlying relationship. Thus, for exam ple, a prosecutor foreseeing certain conflicts of interest might ‘recuse’ himself – that is, establish procedures so that all litigation involving his assets, family, or the like that pass through his office bypass him. Another way to escape a conflict of interest is to divest oneself of the interest creating the conflict. If, for example, the conflict is created by ownership of stock in a certain corporation, one can sell the stock before making any official decision affecting it (and have nothing to do with the stock for a decent interval thereafter).

Escape can be costly. Thus, to continue our example, recusing gives up the public advantage of having the prosecutor contribute to certain official decisions. The prosecutor will not even hear of matters he would ordi narily decide. Divesting avoids that cost, but perhaps only by imposing a substantial personal loss (because, for example, the prosecutor would have to sell a stock when its price was depressed). If the prosecutor cannot afford divestment, and recusal is impractical, he may have to choose a third way of escape – withdrawal from the underlying relationship: He may have to resign his office.

Disclosure

Another approach to resolving the moral problem posed by a conflict of interest is to disclose the conflict to those relying on one’s judgment. Disclosure, if sufficiently com plete (and understood), prevents deception. Often, disclosure also allows those relying on one to adjust their reliance accordingly (e.g., by seeking a ‘second opi nion’) or to change the relationship (e.g., by requiring recusal for a certain range of decisions). However, unlike escape, disclosure as such does not end the conflict of interest; at best it avoids negligence and betrayal of trust. Disclosure does not even do that unless (1) the person disclosed to is in a position to respond effectively to the

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conflict of interest disclosed, (2) he is competent to under stand the threat to judgment the conflict poses, and (3) the disclosure is in a form likely to alert him to the serious ness of the conflict. An inadequate disclosure may be no better than none. For example, a physician who discloses her interest in a treatment she is recommending with the words, ‘‘This is so good that I have invested my own money in the company,’’ has not properly disclosed the conflict of interest.

Procedures for disclosure can be quite elaborate. For example, the City of Chicago requires every employee of the executive branch with significant responsibilities to fill out annually a 2-page form disclosing close relatives, business partners, and sources of outside income. The forms are open to public inspection.

Disclosure may itself generate problems of privacy and confidentiality. For example, if a condition of holding a certain public office is that the official list everyone with whom she has a business relation, she may have to provide significant information about people who, having nothing to do with government, thought they could avoid having their business relations put into a public record.

Managing

Managing is a third approach to conflict of interest. Although managing is often the resolution reached after disclosure, it need not be. Where disclosure is improper (because it would violate some rule of confidentiality) or impossible (because the person to whom disclosure should be made is absent, incompetent, or unable to respond in time), managing may still be a legitimate option. Suppose, for example, that the only surgeon in a hospital is called to the emergency room to operate on (what turns out to be) his former wife who, unconscious and near death, stands little chance of surviving unless he works quickly. Withdrawing would mean her death – and the end of large alimony payments. Disclosing the conflict of interest to her is impossible (because she is uncon scious) and would, in any case, be unnecessary (because if she were conscious, she would already know what he would disclose). Disclosing to the surgical team her rela tionship to him (including the alimony) would invade her privacy while making absolutely no contribution to get ting her informed consent. Perhaps the best the surgeon can do is to ask his team to watch him carefully, to keep an especially good record, and to call his attention immedi ately to anything that seems amiss, hoping his awareness of their watchfulness will curb any tendency in him to be careless with her. The best he can do is manage the conflict of interest. Managing is a partial realigning of interests, not enough to eliminate the conflict of interest but enough to make it seem likely that benefits will exceed the costs.

inger, P. (Eds.). (2011). Encyclopedia of applied ethics. Retrieved from http://ebookcentral.pr on 2020-01-06 21:42:15.

Disclosure is often the prelude to management – that is, the attempt to contain or channel the conflict of inter est so that allowing it is, all things considered, better than escaping it. Management has its costs – for example, the cost of a second opinion. Management also has its advan tages, especially where an expert, although admittedly less reliable than usual, would be difficult to replace (or actually irreplaceable), as in the case of the surgeon dis cussed previously. These costs and benefits will vary with circumstances. One cost does not. Tolerating a certain sort of conflict of interest tends to make it seem normal. What was an obvious conflict of interest today may soon come to seem a mere technical conflict and then nothing to worry about. The border between tolerable and intol erable conflicts of interest slowly moves until almost any conflict of interest seems manageable. Unique conflicts of interest may be managed, but reoccurring conflict should be avoided.

The Best Approach

What should be done about a conflict of interest depends on all the circumstances, including the relative impor tance of the decision in question; the alternatives available; the wishes of the principal, client, employer, or the like; the law; and any relevant code of ethics, professional or institutional. Some conflicts should be avoided, some should be escaped, others should be dis closed, and a few should be managed.

Generally, conflicts of interest are easier to tolerate when they are ‘potential’ rather than ‘actual.’ A conflict of interest is potential if and only if P has a conflict of interest with respect to a certain judgment but is not yet in a situation in which he must make that judgment. Potential conflicts of interest, like time bombs, may or may not go off. A conflict of interest is actual if and only if P has a conflict of interest with respect to a certain judgment and is in a situation in which he must make that judgment.

In a friendly divorce, for example, the parties may prefer a less expensive proceeding, in which they share a lawyer, to a more expensive one in which each party has its own. The lawyer who undertakes to represent both parties in such a divorce can, of course, foresee that a dispute about the house, car, savings account, or dog may become difficult. From the beginning, the lawyer would be risking a moment when trying to put her professional judgment at the disposal of one party while trying to do the same for the other would affect the judgment in ways difficult to predict. That is, she would have a potential conflict of interest as soon as she agreed to represent both parties. However, while the divorce remained friendly, she would have no actual conflict of interest.

The lawyer should, of course, be sure that the parties understand the risks, as well as the benefits, of sharing a

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lawyer before she agrees to such an arrangement. Among the risks is her precipitous withdrawal from the proceed ing should the divorce become difficult. She would have to withdraw if the divorce became difficult because an actual conflict of interest would make it impossible for her to serve her clients as her profession wants lawyers to serve clients. Professional standards take precedence over the clients’ wishes.

Appearances, Loyalties, Gifts, and Bribes

The Appearance of Conflict of Interest

Many potential or actual conflicts of interests are, out of a politeness or timidity, misdescribed as ‘apparent conflicts of interest’ or ‘merely apparent conflicts of interest.’ The term ‘apparent conflict of interest’ should not be wasted in this way. A conflict of interest is (merely) apparent if and only if P does not have the conflict of interest (actual or potential), but someone other than P, not knowing what P knows, would be justified in concluding (however tenta tively) that P does have the conflict. Apparent conflicts of interest (strictly so-called) are no more conflicts of inter est than counterfeit money is money.

An apparent conflict of interest is nonetheless objec tionable – for the same reason that any merely apparent wrongdoing is objectionable. It misleads people about their security, inviting unnecessary anxiety and precau tion. Apparent conflicts should be resolved as soon as possible. An apparent conflict of interest is resolved by making available enough information to show that there is no actual or potential conflict. One might, for example, answer a charge of financial interest by showing that one does not own the property in question. Where one cannot make such a showing, the conflict of interest is actual or potential, not (merely) apparent.

Disloyalty

Disloyalty is neither necessary nor sufficient for conflict of interest. Disloyalty and conflict of interest are only loosely connected.

One can be loyal and have a conflict of interest. A loyal agent who cannot reasonably avoid or escape a conflict of interest respecting some affair on which her judgment is to be deployed would disclose the conflict to her princi pal. Having fully disclosed it and received the principal’s informed consent to continue as before, she may continue, even though her judgment remains less reliable than it would otherwise be. There is no disloyalty in that; how ever, the conflict of interest remains.

One can also be disloyal without having a conflict of interest. For example, if, being too greedy, you embezzled money from your employer, you are disloyal. You con sciously failed to act as a faithful agent of your employer.

er, P. (Eds.). (2011). Encyclopedia of applied ethics. Retrieved from http://ebookcentral.proq n 2020-01-06 21:42:15.

Although your greed is certainly an interest conflicting with your employer’s interests, conflict of interest does not explain why you took the money or what was wrong with taking it. You did not need to exercise judgment on your employer’s behalf to know that you should not embezzle your employer’s money. There is a conflict of interests here – that is, a conflict between one of your interests and one of your employer’s – but no conflict of interest.

Gifts and Bribes

Gifts are an important subject in any discussion of conflict of interest. Gifts are a way of recognizing and reinforcing friendship. Because gifts have this function, they can also establish bonds of interest where none should exist – for example, between a judge and a litigant, or between a company’s head of purchasing and the company’s most ambitious supplier. For that reason, many governments, businesses, and other institutions have policies limiting business gifts to mere tokens. Some forbid such gifts altogether (because even tokens can affect judgment).

A ‘gift’ unlawfully demanded is a bribe (or ‘grease payment’), not a gift (strictly speaking). Bribes as such do not create a conflict of interest in the taker. A bribe is a payment (or promise of payment) in return for doing (or promising to do) something one should not do (or, at least, should not do for that reason). Where bribes affect judg ment (as they often do), they affect it in a definite way – that is, in the direction promised. Affecting judgment in a definite direction creates a bias, not a conflict of interest.

Bribe offers, however, often do create a conflict of interest. I may, for example, be so enraged by your offer of a bribe that I can no longer reliably judge your skill.

History of Conflict of Interest

Discussions of conflict of interest too frequently begin with the biblical quotation, ‘Can a man have two masters? Can a man serve both God and Mammon?’ This is the wrong way to begin. The reason one cannot have two masters is that a master is someone to whom one owes complete loyalty, and complete loyalty to one excludes any loyalty to another. Having only one master is a strategy for avoiding all conflict of interest, but it is a strategy making the concept of conflict of interest unin teresting (i.e., a term another might conveniently replace). We must worry about conflict of interest as such only when having two or more masters – or, to say it without paradox, having none – is normal. Conflict of interest is an interesting concept only where loyalties are regularly and legitimately divided – for example, where individuals typically have a family, relatives, partners in business, many clients, and the like independent relationships.

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Beginning a discussion of conflict of interest with that biblical quotation makes conflict of interest seem a con cept at least two millennia old. In fact, the term and, apparently, the concept are barely half a century old. The first court case to use the term in something like our sense was decided in 1949 (In re Equitable Office Bldg. Corp., D.C.N.Y., 83 F. Supp. 531). The Index of Legal Periodicals had no heading for ‘conflict of interest’ until 1967; Black’s Law Dictionary had none until 1979. No ordinary dictionary of English seems to have had an entry for ‘conflict of interest’ before 1971. The first philosophical discussions of the term also date from approximately that time.

‘Conflict of interest’ seems to have begun as a mere synonym for ‘conflicting interests.’ This older term desig nated a clash between a public interest (e.g., impartiality in a receiver or trustee) and some private ‘beneficial’ or ‘pecuniary’ interest (e.g., a receiver’s hope of buying property at a bankruptcy sale he administers). The private interest was often said to be ‘adverse’ (i.e., opposed) to the public interest. Only in the late 1960s did lawyers begin explicitly to connect the term conflict of interest with judgment. This adverse-interest way of understanding conflict of interest can still be found, especially in medical ethics. Its disadvantage is that it tends to obscure conflict of interest arising from loss of professional distance – for example, where a physician is overly attached to a patient because the physician is the patient’s parent.

The term conflict of interest began to appear in codes of ethics in the 1970s. Today, the term is so common that we would find doing without it difficult. However, if both the term and the concept of conflict of interest are as new as they seem to be, we are bound to ask, ‘Why now?’ So far, we have no authoritative answer. The history of ‘conflict of interest’ has yet to be written.

See also: Confidentiality, General issues of; Confidentiality of Sources in Social Research; Homicide, Criminal; Loyalty; Trust.