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Conflicts of Interest and Self-Dealing in the Professions: A Review Essay - Conflict of Interest in the ProfessionsMichael Davis and Andrew Stark New York: Oxford University Press, 2001; ISBN 0-19-512863-X

Published online by Cambridge University Press:  23 January 2015

Thomas L. Carson
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Review Article
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Business Ethics Quarterly , Volume 14 , Issue 1 , January 2004 , pp. 161 - 182
Copyright
Copyright © Society for Business Ethics 2004

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References

Notes

Thanks to John Boatright, Ian Maitland, Joe Mendola, Jean Tan and Moshe Adler for many helpful criticisms and suggestions.

1 Davis and Stark, eds., Conflict of Interest in the Professions, p. 8.

2 Conflict of Interest in the Professions, p. 8.

3 Conflict of Interest in the Professions, p. 9.

4 Michael Davis, “Conflict of Interest,” Business and Professional Ethics Journal 1 (1982): 17–27 and “Conflict of Interest Revisited,” Business and Professional Ethics Journal 12 (1993): 21–41.

5 In his paper, “Conflicts of Interest: An Agency Analysis,” in Norman E. Bowie and R. Edward Freeman, eds., (New York: Oxford University Press, 1992), pp. 187–203, John Boatright also presents counterexamples to Davis’s definition. If I understand them correctly, Boatright’s examples are different from the ones I have offered here. They are presented as examples of conflicts of interest that don’t interfere with any actions (requiring judgment) that P takes on behalf of the other party. Based on his reply to Boatright, I suspect that Davis might reply that my example is a case of a “breach of loyalty” rather than a conflict of interest (“Conflict of Interest Revisited,” pp. 21–41). To this, I would reply that my case is a breach of loyalty and that, in this case, I am disloyal because of a conflict of interest which consists in my being tempted by conflicting financial interests to violate my official duties.

6 Conflict of Interest in the Professions, p. 69.

7 Conflict of Interest in the Professions, p. 283.

8 Conflict of Interest in the Professions, p. 219.

9 Conflict of Interest in the Professions, p. 219.

10 Conflict of Interest in the Professions, pp. 219–220.

11 This is a revised and simplified version of the following definition which I defended in my paper, “Conflicts of Interest,” Journal of Business Ethics, 13 (1994): 387–404.

A conflict of interest exists in any situation in which an individual (I) has difficulty discharging the official (conventional/fiduciary) duties attaching to a position or office she holds because either: i) there is (or I believes that there is) an actual or potential conflict between her own personal interests and the interests of the party (P) to whom she owes those duties, or ii) I has a desire to promote (or thwart) the interests of (X) (where X is an entity which has interests) and there is (or I believes that there is) an actual or potential conflict between promoting (or thwarting) X’s interests and the interests of P.

The section immediately below, “Some Features of My Proposed Definition,” closely follows pp. 388–389 of my “Conflicts of Interest.”

12 In order for the conflict between the interests of one’s employer or organization (etc.) and the interests of one’s friends or family (etc.) to make it difficult for one to fulfill one’s official duties, one must have some desire or preference to the effect that the interests of one’s family or associates be advanced. Consider the following case: a person has no special interest in or attachment to her cousin. Her official duties conflict with the interests of the cousin. The conflict between the interests of her cousin and her official duties will not create any difficulty for her in fulfilling her official duties. On my view, such a case would not constitute a genuine conflict of interest. Less probably, suppose that I is completely indifferent to the welfare of his own daughter. Cases in which his daughter’s best interests conflict with those of P would not constitute conflicts of interest, because they would not make it difficult for him to discharge his duties to P. I would describe such cases as apparent, but not actual, conflicts of interest.

13 Cf. Joseph Margolis, “Conflicts of Interest and Conflicting Interests,” in Ethical Theory and Business, ed. Tom Beauchamp and Norman Bowie, first edition, (Englewood Cliffs, N.J.: Prentice Hall, 1979), p. 364; Neil Luebke, “Conflicts of Interest as a Moral Category,” Business and Professional Ethics Journal 6 (1987): 70; and John Boatright, “Conflict of Interest: An Agency Analysis,” p. 189. Davis claims that:

Bribes as such do not create conflicts of interest; generally, what they create is something more serious: disloyalty at least; at worst, a crime.… Bribe offers, however, can create a conflict of interest” (Conflict of Interest in The Professions, p. 18).

14 I defend this analysis in “Bribery, Extortion, and ‘The Foreign Corrupt Practices Act,’” Philosophy & Public Affairs 14 (1985): 66–90.

15 It is permissible for my uncle to engage in nepotistic hiring. However, if he does, he should not advertise the position or interview other people for the job, since that would give others the false impression that they are competing with others and that they will be judged on their merits.

16 One might object that, inasmuch as I desire to harm someone (or promote someone’s welfare), it is in my own self-interest to harm (benefit) her. But the ill-fare (or welfare of others) does not by itself (apart from its consequences such as giving me pleasure) contribute to my own welfare. It is not analytic that (other things equal) my welfare is enhanced whenever a state of affairs that I desire obtains. Among other things, this would make it logically impossible for one to desire or prefer actions which are contrary to one’s self-interest and thus logically impossible for there to be genuine acts of self-sacrifice. (See Mark Overvold, “Self-Interest and the Concept of Self-Sacrifice,” Canadian Journal of Philosophy 10 (1980): 105–118.) The satisfaction of other-regarding desires does not necessarily contribute to one’s own personal welfare.

17 See my papers “Bribery, Extortion, and ‘The Foreign Corrupt Practices Act,’” Philosophy & Public Affairs 14 (1985): 66–90 and “Bribery and Implicit Agreements: A Reply to Philips,” Journal of Business Ethics, 6 (1987): 123–125 for a defense of this.

18 This point is crucial for my objection to Boatright’s definition. Boatright and I disagree about whether Bob’s agreement with the Klan generates a prima facie moral duty for him to fulfill his official duties. For a very good discussion of this issue (one that doesn’t clearly side either with me or with Boatright) see Shelly Kagan, Normative Ethics, (Boulder, Colorado: Westview, 1998), pp. 124–125.

19 See Andrew Stark, Conflict of Interest in American Public Life, (Cambridge, Mass.: Harvard University Press, 20000), Chapter 3, for discussion of self-dealing that I cannot begin to summarize here.

20 Conflict of Interest in the Professions, p. 95.

21 Conflict of Interest in the Professions, p. 93.

22 Conflict of Interest in the Professions, p. 97.

23 Conflict of Interest in the Professions, p. 98.

24 Conflict of Interest in the Professions, p. 99.

25 Conflict of Interest in the Professions, p. 99.

26 “Ethical Issues in Accounting” in The Blackwell Guide to Business Ethics, Norman Bowie, editor, (Oxford: Blackwell’s, 2002), pp. 145–164.

27 “Ethical Issues in Accounting,” p. 155.

28 “Ethical Issues in Accounting,” p. 156.

29 Conflict of Interest in the Professions, pp. 228–229.

30 Conflict of Interest in the Professions, p. 229.

31 Conflict of Interest in the Professions, p. 217.

32 Conflict of Interest in the Professions, p. 232.

33 Conflict of Interest in the Professions, p. 234.

34 Conflict of Interest in the Professions, p. 234.

35 Conflict of Interest in the Professions, p. 234.

36 Conflict of Interest in the Professions, p. 235.

37 Conflict of Interest in the Professions, p. 138.

38 New York Times, January 10, 2003.

39 Conflict of Interest in the Professions, p. 140.

40 Christopher Stone, Where the Law Ends (New York: Harper and Row, 1976), p. 128.

41 Where the Law Ends, p. 128.

42 Where the Law Ends, p. 128.

43 Where the Law Ends, pp. 144–147,

44 Where the Law Ends, pp. 139–150.

45 Conflict of Interest in the Professions, p. 285.

46 Cf. E. Haavi Morreim, Balancing Act: The New Medical Ethics of Medicine’s New Economics, (Washington, D.C.: Georgetown University Press, 1995), p 106.

47 Many of the same issues about conflicts of interest in the payment of physicians and other professionals are considered in “Conflict of Interest in Physical Therapy” by Mike Martin and Donald Gabard (Conflict of Interest in the Professions, pp. 314–332.) Martin and Gabard claim that all professions are involved systemic conflicts of interest in that members of all professionals are subject to the temptation “to provide unnecessary services to clients in order to increase profits” (p. 318). This conflict is created by their dual roles as advisors and provider of services.

48 (Oxford: Oxford University Press, 1993), pp. 139–140.

49 Conflict of Interest in the Professions, p. 292.

50 Conflict of Interest in the Professions, p. 290.

51 Conflict of Interest in the Professions, p. 290.

52 Michael Bayles argues that there exists a “fundamental conflict of interest” in any relationship between a client and a professional person. This conflict of interest is created by the professional person’s interest in income and leisure. When professionals are paid on a fee for service basis they have an interest in providing more services than are either necessary or desirable for their clients. For example, when physicians are paid according to how much work they do for their patients, many physicians succumb to the temptation to provide their patients with unnecessary, even dangerous treatments. Bayles continues:

Alternative systems of paying professionals do not remove this conflict but merely reverse the effect on the client. In a capitation payment system, professionals have an interest in having as many clients as possible to maximize their income and in performing as few services as possible to minimize their costs. On a salary system or flat fee for a case, professionals receive the same income no matter the number of clients or services performed, so they have an interest in minimizing clients or services. These payment systems thus encourage professionals not to perform useful services.… This fundamental conflict of interest between professional and client cannot be removed. It is inherent in the professional-client relationship. Michael Bayles, Professional Ethics, second edition, (Belmont, Calif.: Wadsworth, 1989), p. 89.

Another noteworthy feature of Bayles’s discussion of conflicts of interest that is not addressed in the Davis and Stark anthology is his claim that the self-regulation of profession involves systematic conflicts of interest. On conflicts of interests in self-regulation also see my paper “Conflicts of Interest,” p. 394. Haavi Morreim also argues the conflicts of interest arising out the payment of physicians are “inescapable,” Balancing Act: The New Medical Ethics of Medicine’s New Economics, pp. 61–62.

53 Conflict of Interest in the Professions, p. 295.

54 Conflict of Interest in the Professions, p. 295.

55 Conflict of Interest in the Professions, p. 296.

56 Conflict of Interest in the Professions, p. 297.

57 Conflict of Interest in the Professions, p. 297.

58 Marc Rodwin, Medicine and Moral: Physicians’ Conflicts of Interest, (New York: Oxford, 1993), pp. 19–52.

59 Medicine and Moral: Physicians’ Conflicts of Interest, p. 72.

60 Medicine and Moral: Physicians’ Conflicts of Interest, p. 42.

61 Conflict of Interest in the Professions, p. 336.

62 Conflict of Interest in the Professions, p. 341.