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The first set of rules required in-house lawyers to report frauds to the organization's highest authorities. The second set provided exceptions to the general rule on legal confidentiality. Both sets were heatedly discussed for decades. Similar scandals since the 70s, which gave rise to similar heated debates, included the National Student Marketing securities fraud, the OPM commercial fraud, the Lincoln Savings & Loan and Allied Savings and Loans scandal of the 80s, and the BCCI fraud in financial institutions in the 90s. And then Enron came (Lawry).
These debates centered on lawyers who tried to do their jobs right even if their clients did wrong (Lawry 2003). The debates necessarily veered into the very nature of the legal profession. Rule 1.13 of the 1983 Model Rules provides lawyers a number of options in cases of corporate irregularities or violations, which could bring harm to the organization. One of these was to relay the information to a higher or the highest authority, who could act on the matter in behalf of the organization. If the highest authority refused to act or acted illegally, the lawyer could resign. The option was an uncomfortable one for most lawyers who dealt directly with middle management. Furthermore, they were aware that their client was the organization itself, not individual officer or other employee. Just the same, they were expected to bypass even powerful CEOs and approach the Board when they were aware of some fraud or mismanagement. But the newly set SEC rules changed all that. A lawyer who becomes aware of evidence of material violation of the securities laws, he is expected to report it to the organization's chief legal officer or to the CEO, or both. If no appropriate action is taken by either of them, the lawyer must report the matter to the audit committee, another independent committee of the Board or to the full board itself. However, if the organization already has a qualified legal compliance committee established according to SEC rules, the lawyer has performed his duty by reporting the violation to this committee. The rules will compel him to bring the matter to the highest authority and will likely change the culture of lawyers doing securities work. Lawyers in general now are aware that they have to reach out to top management when they see evidence of serious violation or misconduct. This gate-keeping has positive implications on the increased demand for greater accountability as a result of recent financial scandals (Lawry).
Confidentiality is a basic value in the legal profession, even the most important value (Lawry 2003). Clients are disinclined to divulge essential information unless it is treated with the strictest confidentiality. And unless clients yield all possible information, they cannot be helped. All helping professions are characterized by this assurance of confidentiality of information divulged or needed. Despite these needs, however, there are three standard exceptions to the rule of confidentiality in the legal and similar professions. One is when the client is incompetent, such as a child or a mentally ill person. Another is when the client's actions will redound to his own harm, such as when he wants to commit suicide. And when his actions are detrimental to others, such as when he intends to physically hurt or destroy someone. A special American Bar Association Ethics Commission recommended exceptions, to which the majority of States is agreeable. The first is to prevent death or essential bodily harm. The second is to prevent a crime or fraud, which can cause considerable financial harm to an entity where the lawyer serves. The third is to prevent or mitigate considerable financial injury from a client's commission of a fraud or crime and where the lawyer serves. The fourth is to secure legal advice on how to comply with the Rules. And the fifth is to establish a claim or defense for a lawyer in a controversy with the client. The debate, however, continues between those who set confidentiality above disclosure and those who demands exceptions to confidentiality (Lawry).
Assessing Integrity of Records Content consequence of the Enron scandal was the deep re-emphasis on the importance of records-keeping and its integrity (Dietel 2003). Records and information managers realized that they should improve and more proactively manage information content of corporate records. They shifted emphasis from the form to the substance or content. Content rather than form was the emerging and most critical concern among them. The content must be investigated according to the quality of information it contained. It was not an easy task to perform. Effective records and information management or RIM programs listed 19 criteria in determining quality of corporate records. These were accuracy, completeness, precision, timeliness, appropriateness for retention, relevancy, understandability, adequacy, credibility, reliability, shareability, ability to engage, accessibility and retrievability, value and fitness, reusability, affordability, persuadability, communicability and potential for future use (Dietel).
In the past and traditionally, corporate information technology and RIM were separate functions. Records managers were simple clerks who were not trained to handle or unwilling to handle modern technology. But these functions have to merge in the face of the strong demand to provide corporate users with the most valuable information and knowledge (Dietel 2006). In this light, the methods of turning out information should not be separated from the securing and production of information. Chief information officers, chief knowledge officers and those who work with them are required by current demands to be as sharp as everyone else in the organization. They have to know and be skilled as well as comfortable with sophisticated technology. They have to possess a comprehensive grasp of the value and importance of corporate information and knowledge in whatever form. It can be explicit or tacit only, existing in paper records, in corporate databases or warehouses, or existing only in the minds of employees. These officers must know and appreciate the factors, which contribute to the quality of gathered information and knowledge, and then improve on it. Corporate leadership involves making each employee contribute as much as he or she is capable, particularly in the form of corporate information and knowledge. Because approximately 70% of a company's knowledge exists in the mind of employees, it has to be captured, reproduced and shared. The best corporate leaders now realize they have to find ways of capturing as much of tacit knowledge as possible. Assuring maximum quality of corporate information will not only parry frauds but also encourage a culture of innovation and creativity. Employees will feel trusted by the company for making them participate as a source for its competitiveness. They will value that trust and their contribution to company success (Dietel).
Predation in Our Times
Predation has been the dominant feature of modern American capitalism (Galbraith 2006). It is a system wherein the rich feast on failing systems intended for the middle class. The predatory class is the force that leads. Its agents control the government. It is hard reality and common knowledge that public decisions are made to benefit private entities. A predatory regime does not have public reasons or purposes. Within are cycles of prosperity and depression. It breeds growth among its victims. Predation is the foe of honest business. Predatory regimes resemble protection rackets. They are powerful and feared but neither loved nor respected. They do not have, much less enjoy, a broad political base. Law and economics do not work or apply in a predatory economy. There is no market discipline within. Predators compete by breaking the rules rather than following them. A predatory economy breeds criminals and rewards criminal behavior. In the classic case of Enron, clean audits from high-profile accounts protected control fraud. Almost all large frauds were committed in institutions operated for that purpose by criminal networks. But predatory institutions fail because they are meant to fail. Predators take out the life from the businesses they set up and command (Galbraith).
If the government itself is a predator, it will then eventually fail (Galbraith 2006). It stands to reason. But that government will eventually fail in every real way. It will not be able to cope with big and small goals not out of incompetence but out of indifference towards competence. At the highest levels of government, the justice system itself is undependable. In a world of predators, all the parties participating are already at least partly corrupt. This is a huge lesson learned from mega-scandals like Enron (Galbraith).
Ethics for America After Enron
In the case of Enron and other large corporate scandals, top executives and their advisers failed to fulfill their basic fiduciary duties to serve the interests of shareholders and the public (Boatright 2003). A fiduciary duty obliges one in a position of trust to serve the interest of others. Executives are fiduciaries sworn to serve the interests of shareholders. But instead of fulfilling the duty, they manipulate earnings, hide debts and falsify accounting records in order to exercise grandiose stock options at the shareholders' expense. Both fiduciary duties and market-based regulation aim at reducing…[continue]
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