The Reinvention of Lying: Looking at Lies, Silence and the Impact On the Legal Profession

There was a point in time when parents taught their children that sticks and stones may break one's bones but names could never hurt. Unfortunately, most children learn the sad truth that words can actually hurt when they encounter their first bully or experience their first heartbreak. These days, I believe that this once wise saying has all but been retired as the cruel words of people push their victims past the point of pain and towards a point of desperation. It is easy to see how such words can hurt on an emotional level, so we are all aware of the damage some words can wreck on the hearts of those around us. But what other kind of harm can words cause? Should we only be concerned with those words that hurt our emotions or the emotions of others, or should we turn our eyes to a more pervasive and abstract sort of damage?

Some things don't really need to be taught to people; we learn them, somehow, while still in our youth without any instruction. Lying is one such skill that so many of us seem to acquire along with the rest of speech. Bill Cosby, in his stand-up special Bill Cosby, Himself, relates a story about his little girl to illustrate just how young a child learns to be dishonest¹. She made her way into the cabinets to get into the box of her favorite cookies, which forced him to put the box on top of the refrigerator. The story goes on to relate how he returned to what he was doing, only to walk back into the kitchen and find that is three-year old daughter had managed to construct a ladder to retrieve the box of cookies. When caught, she responded with “I was trying to get the cookie for you.” He told her that he didn't want the cookie, so she asked if she could have it instead. The audience laughs, but like most of this particular stand-up, there is a large portion of truth and familiarity within each joke. I recall my own lies as early as five or so, and through much discipline and developing my own sense of morality, the less than savory habit was confronted.

If this was a psychology paper, perhaps I would spend more time looking into just how a child learns to lie. The reasons (and excuses) for lying are usually pretty self-explanatory. The child wants to stay out of trouble, keep the toy, get someone else into trouble...the list goes on. It is only when we each start to develop our higher thinking faculties that lying becomes a means to a much greater end, should we choose to still employ the technique. Instead of purely personal agendas, the lies and reasons become that much more sophisticated. The lie was to boost her self-esteem because you're tired of seeing her being so negative about herself. The truth w5ould hurt him too much, so I told as much of it as I could. We can develop principles that will allows us to lie for the sake of others. However, can we make a valid argument that lying is of any good or contributes anything positive to the human experience?

In her book Lying, Sissela Bok defines the topic action as “any intentionally deceptive message which is stated.²” This paper will start with Bok's definition of lying and look into the implications of lying within the legal field, including why those within the profession should even care about lying. Then I will move the conversation on to how to deal with various liars and lies based on the ethical standard of the person doing the lying. Finally, I will look at lies of omission and the implications that such lies have within various aspects of the legal profession.

My Brother's Keeper: What does lying have to do with me?

The lawyer has to juggle several obligations, and it is a matter of what order of priority she wants to place them in. What is at the top of her list when it comes to her professional obligations. Undoubtedly, every lawyer as certain obligations to her client, but there is always a question of what (if anything) stands above the obligation. A close question that may help the lawyer that's never thought about just what priority is where could be “what role do/will I play as lawyer?” Even if the only concern and ultimate goal is obtaining the best possible outcome for your client, part of that concern must be based on a concern for the truth, even if it is just a concern that the truth doesn't actually emerge.

Bok explains that a key aspect of lying is the intent to mislead³. In a system which we refer to as the “justice system,” is there a place for misleading and outright lies within it? When people speak of justice, the idea of upholding truth is not far off, along with any other number of ideas. The teachers of our professional ethics courses remind us that while we owe a certain duty to our clients, prospective or otherwise, we also owe a duty to the profession as a whole. Undoubtedly, various teachers will place one over the other or (worse) leave the ultimate call to each prospective lawyer. At the end of the day, because the legal field is one of the few professions allowed to self-regulate to such a great degree, every lawyer is charged with the duty to uphold a certain standard. Within that standard is a certain respect for the truth, regardless of whether or not it plays in your favor.

The Model Rules of Professional conduct state that a lawyer shall not knowingly make a false statement of material fact or law to a third party⁴. While this rule limits lying to matters that are material, the rule still demonstrates the principle that lying is not looked kindly upon, regardless of for whom the lie is being told. There are limits to zealous advocacy when it comes to dealing in or with truth. Another idea of the importance of honesty within the legal arena is embodied within the crime of perjury. Merriam-Webster defines perjury as “the voluntary violation of an oath or vow either by swearing to what is untrue or by omission to do what has been promised under oath.⁵” Under federal statute, a charge of perjury can result of up to 5 years of jail time or a simple fine.⁶ Once again, this crime must be about a material matter, but the concern with preserving truth as it pertains to justice is still evident.

So what do rules such as these mean for us lawyers, other than more rules to follow and more laws to be aware of? How much it means to you ultimately comes down to the role you claim for yourself. If your primary concern is being a means to an end for your client and doing what you can within the boundaries of the law for him/her, then whether or not lies show up may not be a primary concern of yours. However, if your own personal ethics or your concern with justice or the system as a whole are one of your top priorities, then you may care a little more about what you can do about lies when they rear their ugly heads.

The Way You Lie: Ethical standards and the lies they produce

It seems that the older people get, the more complicated they have the potential to become. Part of this complicated nature of man is inherently the moral code by which one chooses to live by. Very few of them are so pure that they adhere completely to whatever set of morals they subscribe to. No person alive can keep all Ten Commandments or function solely on the basis of reason. However, most of us would be able to articulate if not the specific name and precepts by which we live, at least a general maxim that guides our moral decisions.

Whether or not to lie is one such decision, and the rationale that we give for lying can point a clear finger at one's primary (or momentary) ethical standard. The value that we place on truth and honesty are inherently tied into our own sense of morals. Does truth have inherent value or is it a means to an end to be used as we see fit? Such questions as these are meant for each person to answer on his or her own. However, knowing where someone else stands from a moral perspective can be of great benefit.

Since a person typically makes decisions as they conform to his set of moral and ethical beliefs, how a person acts and the rationale behind such actions can give clues to the attentive observer about the underlying ethical standard that guides a given individuals thoughts and actions. So, should you in your professional life encounter a client or fellow professional who seems intent (or suggests) lying, perhaps knowing where the person is coming from will be the best way to know how to steer them away from the lie⁷.

Ethical Egoism

Ethical egoism, the belief that a person ought to act in her own self-interest, would seem to look kindly on lying since we tend to see lying itself as a primarily self-serving act. However, it could still be hard to know exactly what to expect from her in the realm of falsehoods when you factor in the underlying philosophical beliefs of a person who may claim such an ethical standard. Within this ethical standard are those that apply their beliefs to everyone (all people should act in his or her own self-interest) and those that believe everyone's beliefs should apply to them (all people should act in my self-interest). The former may believe that you are entitled to lie to advance yourself while the latter may expect you to lie for her. On the other hand, some may be just as opposed to lying as anyone from another ethical standard. If we can assume that Ayn Rand's fictional works are platforms for her philosophical and ethical beliefs, she articulates this concept through her fictional character John Galt: “Honesty is the recognition of the fact that the unreal is unreal and can have no value […] [H]onesty is not a social duty, not a sacrifice for the sake of others, but the most profoundly selfish virtue man can practice: the refusal to sacrifice the reality of his own existence to the deluded consciousness of others.⁸”

Rand essentially argues that lying is embracing that which has no value, which inherently cannot be in one's self-interest. What sense would it make to value that which has no value? Rand's brand of ethics is that “man is an end to himself, not the means to the ends of others. He must exist for his own sake, neither sacrificing himself to others not sacrificing others to himself⁹.” Coupled with reason as man's primary instrument to understand the world around him, it would be unethical to give value to something that is without value, such as a falsehood. Furthermore, Galt speaks for her when he states that “deceiving the mind of others is an act of raising your victims to a position higher than reality, where you become a pawn of their blindness, a slave of their non-thinking and their evasions, while their intelligence, their rationality, their perceptiveness become the enemies you have to dread and flee.¹⁰” In short, something else has taken a higher priority in your life than your own reality. Since ethical egoism all turns back on the self as the ultimate focus, valuing anything other than you, and therefore, your reality, is wrong.

You also have those who combine the concept of egoism with other philosophies, inherently coming up with a different spin on lying. LaVeyan Satanism, a movement that believes in self-indulgence (even at the expense of others), raises “self” to the level of a deity and advocates any behavior so long as the person can justify the action and accept the consequences¹¹. Under this doctrine, advancement of self-interests is paramount, limited only by very general rules that set some semblance of boundaries, and those limited primarily to respecting the physical boundaries of others. If someone comes into your own physical boundaries...well, that is an entirely different manner.

The principal text for LaVeyan Satanism, The Satanic Bible, is a book primarily comprised of essays which lay out LaVey's ideology, and while not speaking directly on the subject of lies, LaVey does show a distinct disdain for them. In section two of the Book of Satan, LaVey states that the “lie that is known to be a lie is half-eradicated, but the lie that even the intelligent persons accept as fact […] is more dangerous to contend against than a creeping pestilence¹².” However, another text claiming to follow the Satanic philosophy states that truth is better than lies unless the lie would reveal the truth¹³. While a rather odd statement, it can be demonstrated by a simple scenario.

Sister is pretty sure that older Brother has been reading her diary but isn't completely certain. All attempts by her to find out, from straight out asking to careful attention, have resulted in nothing. To draw him out, she starts writing outrageous entries about sneaking out at night from dusk until dawn, culminating in a “decision” to run away with some older man. When older Brother reacts, either by telling the parents or confronting her himself, Sister calls him on the fact that he has been reading her diary after all. Of course, Sister has to then untangle the mess she's created for herself, but if the end result was to get Brother to stop reading her diary or bring the truth out, then mission accomplished. As long as she can accept the consequences of her lie, then self-interest prevails.

So, how does one deal with an egoist when it comes to lies? While only two aspects of egoism were dealt with here, it would appear that the best way to convince an egoist not to lie is by convincing her that it simply is not in her best interest to do so. An egoist who happens to also subscribe to Rand's philosophy of Objectivism could be aptly reasoned with by pointing out the same argument laid forth by Galt above. Falsehoods are inherently valueless, and should not be used to advance one's personal interests. They have nothing to add to one's existence and only detract from the reality that one has come to know. This argument could work equally well for the client or fellow attorney. Now, convincing a self-indulgent egoist that lying is not the choice to take may take a little more thought and a little deeper digging. The stereotypical “I didn't do it” in the face of overwhelming evidence may not be dissuaded, particularly depending on the severity of the consequences. Such an egoist would rather escape the condemnation of society than be truthful. The real question, more so here than in other ethical standards, is how the particular person views lying – as something to be hated or something one can use if the occasion so fits. However, the former would probably not lie in the first place and the latter would justify the lie as necessary. At the end of the day, dealing with an egoist all boils down to the self and what the self wants and/or is entitled to receive. Isolate that interest, and you'll at least be able to understand where the client or lawyer is coming from ethically.

Utilitarianism

Utilitarianism, as defined by John Stuart Mill, is that which “recognize[s] in human beings the power of sacrificing their own greatest good for the good of others.¹⁴” Mill went on to cite Jesus' words of doing to others as you would have done to you¹⁵. Does that include lying for the sake of others? Mill's opinion on lying starts off thus:

“[A]ny, even unintentional, deviation from truth, does that much towards weakening the trustworthiness of human assertion, which is not only the principal support of all present social well-being, but the insufficiency of which does more than any one thing that can be named to keep back civilisation, virtue, everything on which human happiness on the largest scale depends.¹⁶”

Bok digs deep into this concept, pointing out that deception's “potential for coercion and for destruction is such that society could scarcely function without some degree of truthfulness in speech and action.¹⁷” However, Mills then goes on to say that there are exceptions to this principal, such as when the lie “would save an individual (especially an individual other than oneself) from great and unmerited evil.¹⁸” Bok echoes the sentiment, saying that if “to use force in self-defense or in defending those at risk of murder is right, why then should a lie in such cases be ruled out?¹⁹” Simply put, utilitarianism does not simply write off all lies, but rather creates a narrow area where lies would not only be condoned, but perhaps even expected. With utilitarianism, we are concerned with the ultimate outcome of the action rather than the action itself, so we have to look at the overall effect of the lie being told. We must weigh the harm done by the lie with the harm that would be done if the lie were not told and ask which would be greater in view of its impact on others. In such cases as those described above by Mills and Bok, the answer is rather simple. The harm of misleading someone else who intends to deal serious harm to another is worth the benefit of saving the life in peril.

History is full of these kinds of lies, such as those told by the people who harbored Jews during the Holocaust or those that harbored runaway slaves during that era in American history. History also paints a clear picture of how we are to view these people, and it is typically in shades of bravery and selflessness. Utilitarianism, while not quite selflessness, is close enough in that it prefers the other to the self if a choice is to be made, and so Mills would probably say that the lies told in those situations were for the greater good. The balance in favor of lying does decrease as the seriousness of the harm does as well. Eventually, we must run into gray area. To save lives? Sure, lie away. To keep people from serious physical harm? Lie if you must. To protect people on an emotional or physical level? To save a bunch of jobs? Where is the line to be drawn?

In the film Watchmen (spoiler alert!), the character painted as a villain, Azmodeous, constructed a weapon to mimic the powers of Dr. Manhattan, orchestrating an attack on several key cities to make it look as though this former superhero had done the deed. Azmodeous' explanation was that he did so in order to prevent the world from falling into nuclear warfare. The few lives that were taken in his attacks were worth preventing a global war as the US and Soviet Union were poised to set off the nuclear arms they both had in possession. He argued that the “attacks” by Dr. Manhattan would give the whole world a common enemy, creating unity in a time of potential war. Dr. Manhattan agreed to take the blame for the attacks and not reveal the truth. Utilitarian?

One of the problems with dealing with the utilitarian approach to lying is attempting to decide what “the greatest good” truly is in this situation. How do we define “great and unmerited evil?” Must we only speak in terms of what we can see or can we lie to prevent future events or the unseen aspects of mankind?

Truth be told, there is a personal ethical dilemma that may occur here in addition to the desire to talk the liar out of the lie, especially if you subscribe to the utilitarian ethical standard as well. Do you allow the lie based on your ethical principles and decide not to try and talk the liar out of it? At this point, you as a lawyer have to decide to whom who your greater duty – legal or personal ethical principles. Like most other rules in the Model Code, there are loopholes in allowing a client to take the stand and testify, giving the client a chance to lie while not being personally culpable for the act. If, in your mind, the harm of the lie is outweighed by the potential harm to society, then it may well be worth the risk.

As for dealing with the liar herself, it is a matter of using the great destructive potential of lies in this situation to dissuade. Justice can only be administered if the truth is told, and to tell a lie would be to corrupt the system and try to manipulate it. An example would be if a client or lawyer wants to introduce false evidence to solidify a case against a criminal in order to ensure that she is put away; or, on the other hand, if a client or lawyer wants to introduce a false alibi in order to ensure that an innocent accused is found not guilty. It would undoubtedly be the first time such a lie was told. The question to be posed to the liar should be “Is putting one person away/ ensuring one person's freedom worth corrupting the system as a whole? If the system is corrupt and you are trying to 'fix' it, aren't there other ways that would achieve it without lying?” Convincing the liar that not lying would be in the best interest of society as a whole would be the best way to destroy the desire to lie, whether it is you or another.

Virtue, or Aristotelian, Ethics

Virtue ethics is something of a way station between ethical standards based on obligations and those based on results. The Internet Encyclopedia of Philosophy describes virtue ethics as “a broad term for theories that emphasize the role of character and virtue in moral philosophy rather than either doing one’s duty or acting in order to bring about good consequences.²⁰” In Nicomachean Ethics, a work often attributed to Aristotle, the text does speak on truth and falsehood, saying the “man who loves truth, and is truthful where nothing is at stake, will still more be truthful where something is at stake; he will avoid falsehood as something base, seeing that he avoided it even for its own sake; and such a man is worthy of praise.²¹” However, the text goes on to discuss the use of truth, and how it should be understated to avoid appearing boastful. While stating that the quality of honesty is praiseworthy, the text primarily focuses on the use of both truth and lies in the form of boasting and self-deception. Still, there is no confusion about how lies are to be seen here, as “falsehood is in itself mean and culpable.²²” The key difference that this standard seems to take is that the act of lying itself is a reflection of the character of the individual.

Because of the unique viewpoint of this standard, it is hard to say that anyone who would claim to primarily adhere to it would be prone to lying or willing to do so outside of extreme circumstances. Even in those circumstances, the would-be fibber would probably defer to another standard for justification of the lie, since there is no justification within virtue ethics itself. So, the only choice we have is to focus on the rationale for the lie rather than the underlying standard of the person should someone cite virtue ethics as a source.

Natural Law

Now, we move on to Natural Law. Aquinas, the key voice in this standard, has quite a bit to say on the topic of truth, so I've gleaned what I could and tried to select what I deemed to be keys of his work Summa Theologica to lay out how a follower of natural law would see lying. He says:

Since man is a social animal, one man naturally owes another whatever is necessary for the preservation of human society. Now it would be impossible for men to live together, unless they believed one another, as declaring the truth one to another. Hence the virtue of truth does, in a manner, regard something as being due.²³

Simply put, the truth is something that we owe one another in order to make society function. Bok says as much as well in her book:

Imagine a society, no matter how ideal in other respects, where word and gesture could never be counted upon. Questions asked, answers given, information exchanged – all would be worthless. Were all statements randomly truthful or deceptive, action and choice would be undermined from the outset. There must be a minimal degree of trust in communication for language and action to be more than stabs in the dark. This is why some level of truthfulness has always been seen as essential to human society, no matter how deficient the observance of other moral principles.²⁴

While utilitarian ethics would allow a law in certain situations as a means to the desired end, natural law is as concerned with the means as it is the end. Aquinas argues that all lies are sinful, although some are less sinful than others. He cites both Aristotle and Augustine in his discussion on lies, eventually stating that “it is not lawful to tell a lie in order to deliver another from any danger whatever.²⁵” The argument is that laws are unlawful (in terms of natural law) because “words are naturally signs of intellectual acts,” and “it is unnatural and undue for anyone to signify by words something that is not in his mind.²⁶” With that being said, all lies are against natural law, without exception.

Here you run into a problem not too different from that which was discussed above with the virtue ethical standard. The person who follows natural law should be opposed to lying regardless of what the lie is intended to accomplish. Therefore, any excuse you get from a person who may otherwise adhere to the ethical principles laid forth through natural law should be dealt with under whichever standard it most closely aligns to. However, since natural law is more concerned with what is owed to others as a part of the natural order of things, the lie will most likely fall under the utilitarian approach or the next one I will discuss.

Categorical Imperative

A standard based on reason, the fundamental law which leads one to the categorical imperative is that you should “act so that the maxim of thy will can always at the same time hold good as a principle of universal legislation²⁷. Immanuel Kant wrote The Critique of Practical Reason, which gave articulates this ethical standard, and stated that it is pure reason which gives birth to that which man considers moral law²⁸. The principal of this standard echoes the golden rule in some respects: do unto others as you would have them do unto you. We are right back to those words from a parent or grandmother and the old adage about a person treating others the way s/he wants to be treated.

Those who follow this standard are put in the position of critically thinking through each action and asking himself if everyone else did this, would that really be ok? For example, it's one thing for me to sneak a grape or two while walking through the produce section, but if every person who ever walked through the produce section did the same, there would likely not be any grapes to sell at that point. Therefore, I should not sneak any grapes since I wouldn't want everyone else doing the same thing. Where the utilitarian standard looks to the end result of the action and natural law claims that it is the order of things to behave a certain way, the categorical imperative is similar to Rand's Objectivism in that one can attain moral law through sheer logic.

In regards to lying, Kant stands with most of our previous standards. Lying is inherently against moral law “for it cannot hold as a universal law of nature that statements should be allowed to have the force of proof and yet to be purposely untrue.²⁹” A little later, he goes on to say that what “we call good must be an object of desire in the judgement [sic] of every rational man, and evil an object of aversion in the eyes of everyone; therefore, in addition to sense, this judgement [sic] requires reason. So it is with truthfulness, as opposed to lying.³⁰” The way that Kant sees it, truth is something that everyone desires, and because everyone wants it, it must be good and sought after.

The best way to deal with a liar in this category, for better or for worse, is to take them back to grade school. Your task is to remind them that they would not appreciate being lied to under these circumstances, and if we're still talking legal matters, there should be more weight behind that reminder. It is one thing to talk about hurt feelings or broken promises; it is quite another to talk about court judgments, jail time and the financial implications that lie may trigger. The big challenge in doing this is trying not to sound like the other person's mother or older sibling. Your client came to you for legal advice, not to be treated like a child and your fellow professional will probably not appreciate being talked at as though she was being scolded. The key is to remember respect and...well, treat them the way you'd want to be treated.

Religious Ethics

The specific tenants of religion guide those who look to higher power (or powers) as a source of moral and ethical law. By nature of the definition, the particulars of any one person's ethics can be as varied as the types of religion that exist. However, the great many of them do seem to be on one accord when it comes to the topic of truth and lies. Christianity is filled with passages of condemnation pointed towards those that lie and uphold those who tell the truth as examples to be followed³¹. Jesus, the cornerstone figure of the religion, refers to himself as Truth³². Both Judaism and Christianity share several common texts, but even outside of these, Judaism speaks of the importance of being honest. In the Talmud, it says that “[w]hen man appears before the Throne of Judgment, the first question he is asked is not, 'Have you believed in God,' or 'Have you prayed and performed ritual acts,' but 'Have you dealt honorably, faithfully in all your dealings with your fellowman?'³³” The last of the Abrahamic religions is no different. The Qu'ran says that "truly Allah guides not one who transgresses and lies," and the importance of that guidance is not worth risking for a lie here and there³⁴.

Even those spiritual beliefs that do not focus on one god, or instead focus on many, stress the importance of honesty when dealing with others. Hinduism teaches that “[i]t is always proper to speak the truth.³⁵” Shinto, another pantheistic religion, takes what is proper and elevates it to what is in one's best interest. One saying is that

“[i]f you plot and connive to deceive men, you may fool them for a while, and profit thereby, but you will without fail be visited by divine punishment. To be utterly honest may have the appearance of inflexibility and self- righteousness, but in the end, such a person will receive the blessings of sun and moon. Follow honesty without fail.³⁶”

The consequences of lying within the context of religious ethics can be seen as a bit more serious than that in most of the previous standards explored. Lying is typically in direct violation of the will of one's god or the divine order of things, which can lead to eternal consequences. Not only do those who follow religious ethics have to worry about whatever harm may be done to the other person, but they also have to be concerned about the spiritual implications of such an action, whether it is seen as an outright sin or as a notch on the wrong side of the stick.

Because of the perception of greater consequences to lying by many of those who follow religious ethics, any client or professional who may be leaning towards that path should be easily talked out of that decision. Even if lying would result in less suffering for the person, such as a defendant trying to lower liability, they should be reminded that this world is only temporary and that doing the right thing will ultimately result in riches of their own. It is more a matter of reminding the person of the path they claim to follow than to try and reason or rationalize the pros and cons of the particular lie.

What Did I (Not) Say? - Lies of omission and their role in the legal field

At the beginning of this paper, I established Bok's definition of lying as something that must be stated with intention to deceive. However, she agrees that silence can be deceptive.

When we undertake to deceive others intentionally, we communicate messages meant to mislead them, meant to make them believe what we ourselves do not believe. We can do so through gesture, through disguise, by means of action or inaction, even through silence³⁷. (emphasis mine)

So let's say that lies of omission aren't technically “lies.” Common misconception that can be easily corrected with proper education. Still, the fact that they are not lies does not make them any more deceptive or any less harmful. Lying would be an active form of the violence while omission would be a passive. Harm is still done, it just a matter of how the harm is done at this point.

The problem with bringing up this concept within the legal frame is that many cases are about what information you can keep hidden and, ultimately, affect the outcome of the case. Now, I am certain that there are some practicing lawyers that carry out their dealings with the utmost candor, laying everything on the table and seeking justice in the midst of the mess. Well, as much as possible within the professional rules governing them. Several of the Model Rules of Professional Conduct carve out situations for lawyers where they must keep silent, even if she feels morally obligated to reveal such information³⁸. Rule 1.6 states that a “lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted.³⁹” Disclosing client information is only allowed:

to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.⁴⁰

While the rule may seem to cover all the important bases, that illusion only lasts until you encounter your first wrongful imprisonment story. If you haven't had the joy of encountering one yet, let me introduce (or reintroduce) you to Alton Logan⁴¹. He was charged and convicted of first degree murder of a man he did not kill. The two lawyers who knew that he was innocent refused to come forward with information regarding who did commit the murder because that man was their client. They felt they were bound to silence. One of the attorneys explained it this way:

[I]f you check with attorneys or ethics committees or you know anybody who knows the rules of conduct for attorneys, it’s very, very clear-it's not morally clear-but we're in a position to where we have to maintain client confidentiality, just as a priest would or a doctor would. It's just a requirement of the law. The system wouldn't work without it.⁴²

The rules governing lawyers regarding what they can and cannot disclose has nothing to do with morality, but everything to do with making the system work. Even, apparently, if refusing to disclose ends up causing the system to fail. Recommendations have been made to amend both the ABA's and individual state's ethical codes to allow for disclosure in cases where someone may be or has been wrongfully convicted. At the very least, proposals have come before both ABA and New York's bar association, and both declined to include such an amendment. Logan served twenty-six years in prison for a crime he did not do because of a mandated requirement of silence.

Unfortunately, since it seems that the law is not going to change anytime soon in this area, practicing lawyers are faced with the very real question of what they would do in this situation. On one hand, you have your own personal ethical standards; on the other, you have those of the profession. While I will not pass any judgments or offer my own personal opinions on the route to take, this “what if” is one that every lawyer must consider. Lawyers are almost expected to withhold important information that may turn the tide for their client, so long as such action would not violate any evidentiary or professional rules. It is considered zealous advocacy to do everything in one's power to achieve your client's desired outcome. If that outcome is dishonest, then you are put in the difficult position of juggling personal and professional ethics. No one else can really make that decision for you.

These issues are not unique to the lawyer who is representing a client in the criminal arena. Since every lawyer is bound by the rules of ethics, they apply to all areas of the legal profession. Representing the wife in a divorce, you may receive information from her that could heavily tip the scales in the favor of the husband. If the bit of information is something simple, like she had sweets while they were supposed to be dieting, while that was dishonest on her part, it is hardly of material importance to the marriage as a whole (although it may undoubtedly be a sign of a deeper issue). However, if the information was about financial investments she'd had a brother make on her behalf or of an addiction that she intended to fund with the alimony, the area becomes much more grey. True, the wife is your client, and true, you should not professionally be concerned with what happens to the husband. However, if you are the sort who has trouble separating the personal and the professional when it comes to standards of conduct, the desire to reveal such information may be particularly strong.

Another key area where omissions run rampant is when dealing with negotiation and mediation. While the goal is to settle the case without having to go through the hassle (and cost) of court, the method used in either process is to be only as honest as necessary. Each side, regardless of the preexisting relationship, is interested in benefiting financially as much as possible, whether that means receiving a lot of money or paying out less. As such, there is no need for a lawyer to reveal information that could harm her client's interest. At least not from a professional perspective.

Reconciling Personal and Professional Ethics

When I started law school, as I learned about the various rights and case law that existed, I started to wonder just where my limits rested. What could I absolutely not do? Would I be willing to defend a person who confessed to doing the crime, yet refused to do the time? Could I bring myself to help my plaintiff receive an award at the expense of another person's livelihood?

The struggle to balance personal beliefs with professional obligations takes place within the minds and hearts of every person who enters the legal profession to one degree or another. While lying is a more obvious evil that one should avoid, no matter what the profession, it is a little harder to say the same about withholding vital information when it could mean that another person may suffer. This statement is not meant to say that in order for justice to be administered in any situation, the entire truth must come to light. In some cases, the entire truth is simply unattainable. The key questions about the connection between truth and the legal profession for the purposes of this paper is to what extent should a lawyer work to reveal what she knows to be truth.

How one deals with the connection between personal and professional will help each to answer that question in terms that she can live with. For some people, professional life stays at the office, and what happens there has no bearing on the personal beliefs one holds. Others strive to have all aspects of their lives to live in harmony. The former set of people will likely have fewer issues when dealing with the subject of lies and deceit. They aren't allowing their personal ethics to influence or guide them, so the rationale is that what they do at work is purely work. On the other end of the spectrum, however, you have those who may struggle some days with doing what they believe is right and what they know is an ethical obligation.

For better or for worse, this paper cannot give any clear idea or opinion on how a lawyer should conduct himself in these areas. Recognizing that we are all individuals also means recognizing the fact that what one believes is correct and proper could be in direct violation of another person's belief system. All it can do is all most pieces of literature can do, and that is to give each person something to think about in order to better himself as an individual and a professional.

Conclusion

Even if you know how to deal with the lies of another person, it is another matter entirely to employ those methods. Sometimes, the hardest medicine to take is from yourself. After reading selections from Lying and delving into the various rationales behind lying, it is hard to claim to be any more opposed to doing so than I was prior to this paper or even this semester. I do not think that the great problem with dealing with lying is admitting that it is wrong. Most of us are taught as much when we were children and the general disdain people demonstrate upon learning that some figure in authority has lied shows that the public could agree as well.

The truth of the matter is that lawyers have the potential to deal with various forms of deceit from any number of sources, including themselves. We may not be so naïve as to believe that the world is a completely honest place and that liars are a dying breed. We still may have to mentally and morally prepare ourselves for dealing with it within the context of our work environment. In an ideal world, our coworkers, clients and comrades would all be as dedicated to the pursuit of truth and justice as we may be. Until such an ideal becomes a reality, each of us who enters the legal profession must work out our own answers regarding how we are going to deal with the area of deceit and professional obligations should they ever be found at odds with our own personal belief systems. If nothing else, that choice will always be within our own hands.

1Bill Cosby, Himself. (20^th Century Fox 1983)

2 Sissela Bok, Lying 13 Vintage 1999 (1978).

3Id. at 6

4Model Rules of Prof'l Conduct R 4.1(a) (1983).

5“perjury." Merriam-Webster's Dictionary of Law. Merriam-Webster, Inc. 17 Dec. 2010. http://dictionary.reference.com/browse/perjury>

618 U.S.C. § 1621

7I preface this section with the fact that I am using great generalizations with each ethical standard discussed here. As mentioned above, very few people adhere to any standard completely or only adhere to one standard. The following section simply looks at some of the more prevalent standards, what they believe and how truth plays a role within them. Every person and situation must be dealt with on an individual level and allowances must be made for the personal flare that people like to put on their own systems of beliefs. This section, at its best, may serve as a crash course and primer with some ways to help the truth-conscious lawyer in dealing with lies and the liar.

8Ayn Rand Lexicon, Honesty, http://aynrandlexicon.com/lexicon/honesty.html (last visited December 17, 2010).

9Ayn Rand Lexicon, Introducing Objectivism, http://aynrandlexicon.com/ayn-rand-ideas/introducing-objectivism.html (last visited December 17, 2010).

10Ayn Rand Lexicon, Honesty, http://aynrandlexicon.com/lexicon/honesty.html (last visited December 17, 2010).

11I bring up this branch of Satanism here simply because, although labeled as a religion, they do not follow the tenants of any deity other than the self and those established by the Church of Satan, which primarily chose its name to represent the antithesis of Christianity and other mainstream religions.

12LaVey, Anton The Satanic Bible, http://www.spiritualsatanist.com/books/satanicbible.pdf (last visited December 17, 2010).

13Id.

14Mill, John Stuart, Utilitarianism, http://www.utilitarianism.com/mill1.htm (last visited December 17, 2010).

15Id.

16Id.

17Bok, supra Note 2 at 18.

18Mill, supra Note 14.

19Bok, supra Note 2 at 41.

20Internet Encyclopedia of Philosophy, Virtue Ethics, http://www.iep.utm.edu/virtue/ (last visited December 17, 2010)

21Internet Classics Archive, Nicomachean Ethics by Aristotle, http://classics.mit.edu/Aristotle/nicomachaen.4.iv.html (last visited December 17, 2010).

22Id.

23Christian Classics Etheral Library, Summa Theologica, http://www.ccel.org/ccel/aquinas/summa.SS_Q109_A3.html (last visited December 17, 2010).

24Bok, supra Note 2 at 18.

25Christian Classics Etheral Library, Summa Theologica, http://www.ccel.org/ccel/aquinas/summa.SS_Q110_A3.html (last visited December 17, 2010).

26Id.

27Immanuel Kant, The Critique of Practical Reason, http://philosophy.eserver.org/kant/critique-of-practical-reaso.txt (laws visited December 17, 2010).

28Id.

29Id.

30Id.

31A couple of verses demonstrating this include Proverbs 12:19 (The truthful lip shall be established forever,
But a lying tongue is but for a moment) and Revelations 21:8 (But the cowardly, unbelieving,abominable, murderers, sexually immoral, sorcerers, idolaters, and all liars shall have their part in the lake which burns with fire and brimstone, which is the second death)

32John 14:16

33Talmud, Shabbat 31a

34Surah 40:28

35Mahabaratah, Shanti Parva 329.13

36World Scripture, Honesty and Expediency, http://www.unification.net/ws/theme148.htm (last visited December 17, 2010).

37Bok, supra Note 2 at 13.

38While not every state has adopted these exact rules to govern lawyers in its state, most have adopted a set of rules that closely mirrors the MRPC. For the sake of simplicity, the MRPC will be used for the paper since they are the rules recommended by the American Bar Association and under which all practicing lawyers are required to test.

39Model Rules of Prof'l Conduct R 1.6(a) (1983).

40Model Rules of Prof'l Conduct R 1.6(b) (1983).

41“26-Year Secret Kept Innocent Man in Prison.” 60 Minutes .http://www.cbsnews.com/stories/2008/03/06/60minutes/main3914719.shtml

42Id.

"What's Mine is Yours, and... What's Yours is Mine?": An Examination of Moore, Greenberg and Balancing the Interests of Donors and Researchers

More often than not, when a person decides to donate something of hers, there are no strings attached. The recipient of the gift is able to use it for whatever purpose or goal he desires. The concept of donation becomes more problematic when we begin to add in details such as intent, both of the donor and of the recipient. Has he promised or implied that the gift would be used for a specific purpose? Did she give the gift with limitations on how the gift was to be used?

While such a scenario may trigger certain implications in terms of common law property or contract cases (does anyone want to remember fee simple defeasible estates?), when we take familiar concepts and apply them to the developing landscape of biotechnology, the case law manages to say plenty while leaving much unanswered. Few cases have managed to make their way into print regarding what rights a donor has in what happens to his genetic or biological material once it leaves his body. Those few cases paint a fairly bleak picture for those donors that may feel strongly about what happens to their gifts should they have a specific outcome planned. Just like Aunt Meryl who may want to leave a diamond ring to her niece, so long as little Suzy doesn't sell or give it away, shouldn't the donors of biological material be given more flexibility in what they decide to do with their gifts?

In the movie X-Men: The Last Stand, the viewers are introduced to the character of Jimmy, a mutant who has the power to negate the abilities of other mutants[1]. It is his DNA that forms the basis of both a therapeutic treatment to cancel out the manifestation of the X-gene in other humans as well as an anti-mutant weapon. While most of us who watched the movie undoubtedly were not doing so for the legal viewpoint, the character of Jimmy and his situation brings us right back to principle question that this paper will seek to address. What are his rights as a donor, and what can and could be done to enhance those rights? Was he paid for his time and effort or does he even have a clue why he is really being kept secluded from the rest of society[2]? How much was he told beforehand, and if he now objects to the way his DNA is being used, can he do anything about it? Although these questions are never raised, let alone dealt with in the context of the movie, they are more than mere science-fiction potential problems. These concerns have been pressing for at least the past decade, if not longer, with no clear conclusion in sight.

This paper will look into the current landscape of donor rights regarding their genetic material, using the Moore and Greenberg cases as the key decisions in the legal field in this area. These cases lay out both holdings and dicta that have much to say regarding the status quo of donor rights. I will then move on to current state and federal law and regulation regarding informed consent, property rights and what these laws currently mean for donors. In the next section, there will be an examination of the interests of both the donors and the researchers that are at stake in these matters. Finally, a look into possible solutions, including maintaining the status quo, creating a new property interest in one's biological material and enhanced informed consent laws.

Legal Framework: Moore, its legacy and current laws

One can only assume what John Moore was thinking when he was diagnosed with hairy-cell leukemia. Obviously, treatment must have been one of the top things on his to-do list, and he ended up seeking treatment for his condition at the Medical Center of the University of California at Los Angeles (UCLA)[3]. They drew blood samples, marrow samples, other samples in order to confirm and work with Moore's condition[4]. Golde, one of his attending physicians and several others at the University “were aware that 'certain blood products and blood components were of great value in a number of commercial and scientific efforts',” but never brought up this observation with Moore during his time at the facility[5].

During his treatment at UCLA, Golde recommended that Moore have his spleen removed in order to slow down the progression of the disease[6]. Before performing the procedure, Golde and another physician, Quan, decided to keep portions of the spleen after it was removed from Moore and made preparations to do so[7]. After the surgery, Moore returned several times to UCLA at Golde's request, believing that these visits were to ensure that his health and well-being continued to improve[8]. These visits, from which Moore traveled from his home in Seattle, resulted in the production of additional samples of blood, bone marrow aspirate and other fluids[9]. During this period, Golde and others took efforts to make sure that their efforts were hidden from Moore, using the newly gathered materials for research that was unrelated to his condition[10]. Three years after he'd originally gone to UCLA for treatment, Golde established a cell line from Moore's T-lymphocytes, and in 1984, a patent was granted with Golde and Quan listed as the inventors of the cell line[11]. Based on these facts, Moore filed suit.

Although Moore filed thirteen causes of action against Golde, Quan, and the regents of the University of California, only two causes made their way to the California Supreme Court: conversion and breach of fiduciary duty/ lack of informed consent[12]. Of those two causes of action, only one was decided in Moore's favor, and that decision was regarding the breach of fiduciary duty[13]. The majority opinion said that due to the right of a person to decide whether or not to submit to medical treatment led to the following conclusions: “(1) a physician must disclose personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment; and (2) a physician's failure to disclose such interests may give rise to a cause of action for performing medical procedures without informed consent or breach of fiduciary duty.[14]” The court was concerned about the conflicting loyalties that a physician may have when placed in a position such as Golde's in seeking the patient's best interest or his own in such matters, and

[t]he possibility that an interest extraneous to the patient's health has affected the physician's judgment is something that a reasonable patient would want to know in deciding whether to consent to a proposed course of treatment. It is material to the patient's decisions and thus, a prerequisite to informed consent[15].

While in favor of Moore's first claim, the majority refused to recognize a property interest in the tissue taken from him for various reasons. The court started their examination of this claim with a quote from another case, saying that to “establish a conversion, plaintiff must establish an actual interference with his ownership or right of possession,” and when “plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion.[16]” Reasoning that Moore did not intend to keep any of the cells used for research after they left his body, the only way he could maintain a claim for conversion would be if he retained any sort of property interest in the biological material. The court gave three reasons they did not believe he did: (1) no judicial decision supported such a claim, (2) California statutes limited any interest he may have and (3) that “the subject matters of the Regent's patent – the patented cell line and the products derived from it – cannot be Moore's property.[17]” Furthermore, the court went on to say that even if a Moore had a property interest in his biological material after it left his body, it would decline to extend liability in a situation such as this[18]. Again, three reasons were given for why they ruled in this manner, those reasons being that a balancing of policy considerations counseled against, such matters should be resolved through legislation and that conversion was not necessary to protect patients' rights[19]. With these holdings, the court sent Moore home to claim what injury he could that resulted from the lack of informed consent regarding his splenectomy.

While Moore was only a state case, it was a decision by the supreme court of that case, and in a state as prominent as California in an area of law so unfamiliar, it would make sense that other cases would follow and look to Moore for guidance in how to deal with legal matters regarding the ownership or lack thereof of tissue and other biological materials that ultimately ended up in the hands of researchers.

In the case of Greenberg v. Miami Children's Hospital, the facts were a little different, but some similar claims popped up. The case revolved around research into the genes responsible for Canavan disease. Greenberg, other individuals and organizations were working with Dr. Matalon to identify the genes that were responsible for this disease[20]. Tissue, blood samples, urine and financial support was given by the parties in order to work towards solving this medical mystery[21].

The research started in the late 1980s until a breakthrough in 1993 when Matalon and his research team finally discovered and isolated the gene responsible for Canavan disease[22]. In 1994, without informing the other parties involved, Matalon submitted a patent for the genetic sequence the team identified, which was issued in 1997[23]. Greenberg and the others did not discover the patent until 1998 when Miami Children's hospital let it be known that it intended to limit testing for Canavan disease through a restrictive licensing campaign[24]. Greenberg and the other plaintiffs alleged that at no time were they ever informed of the defendants intent to either patent or commercialize the results of the research[25].

Five claims were filed in federal district court against Matalon and Miami Children's Hospital, all to which they demurred[26]. The first claim the court dealt with was the claim for lack of informed consent. Trying to use the same argument that prevailed in Moore, Greenberg attempted to claim that since the commercial interests were not disclosed, there had not been informed consent[27]. The court first looked at the claim in general, saying that the state law was unclear regarding any duty of informed consent in this specific case[28]. The state law dealt with physicians treating patients and human subjects of experimentation, but did not cover a situation quite like the one the Greenbergs had found themselves in. Defendants conceded the point, saying that even if there was a duty to inform in this situation, it should not extent to require the revealing of economic interests[29]. The court agreed, saying that “a possible informed consent duty to disclosing economic interests has no support in established law, and more ominously, this requirement would have pernicious effects over medical research, as it would give each donor complete control over how medical research is used and who benefits from that research.[30]”

The next claim was for breach of fiduciary duty, which the court dealt with almost as quickly as they did the last. They found no such duty had been formed in the relationship between the plaintiffs and the defendants based on the exchanging of materials, stating that there was no acceptance of trust in order to satisfy the claim[31]. The other big claim that was made, and the only one that survived demurrer was the claim of unjust enrichment[32]. The one defense that the defendants put up was the fact that they held a patent over the material now, but the court held that such a defense “does not preclude the Defendants from being unjustly enriched.[33]” The fact that the plaintiffs had invested so much time and effort into what had begun as collaborative research and the additional fact that the defendants now benefited exclusively from that research was enough for the courts to deny the demurer.

The court kicked the complaint claiming unjust enrichment back to the defendants, instructing them to answer, but they never did. Miami Children's Hospital settled out of court with the plaintiffs and the case never went to trial. However, with the facts alleged and the Florida law regarding unjust enrichment, it is very probable that the court would ultimately have ruled in favor of the plaintiffs. With the rulings of cases based on the specific facts alleged, one can only imagine how many other situations might exist where an unjust enrichment claim would hold muster in court. It would undoubtedly have to be in another collaborative scenario where the plaintiff knew that s/he was conveying a benefit of some sort to the defendant. If this is true, a patient could never claim unjust enrichment against his/her physician in a situation like Moore's. While Moore has his own defense in the form of an additional informed consent requirement, we must remember that his case was decided in a state supreme court, so it is only binding in California. A federal case such as Greenberg's holds a little more weight, but only within the district or state which the law emerged from.

The other two cases that may have something to contribute to this conversation are the 2005 Tilousi v. Arizona State University case and the 2006 Washington University v. Catalona case. In Tilousi, members of the Havasupai Native Americans donated blood samples and hand prints for what they believed would be a study of diabetes within the tribe[34]. The allegation is that the samples given by the tribe to Arizona State for research were being used for other research, including schizophrenia and ancient human population migrations[35]. Tilousi and the other plaintiffs tried to allege breach of fiduciary duty and lack of informed consent; fraud and misrepresentation; negligent infliction of emotional distress against all the defendants; and intentional infliction of emotional distress against the specific researches with which the plaintiffs worked[36]. With the lack of informed consent count, Tilousi tried to claim the defendants falsely represented they would only research diabetes within the tribe with the samples given. The federal district court in this case attacked the core of Tilousi's argument, saying the “consent is not made ineffective even if defendants did make fraudulent representations to induce that consent.” The court drew this conclusion from a comment to the Restatement (Second) of Torts, § 18 cmt f[37]. To completely dismiss the breach of fiduciary duty count, the court went on to say there were no facts alleged to establish such a relationship between the plaintiffs and the defendants, citing Greenberg in its opinion[38]. The fraud count was dismissed as no statements were alleged which would establish a foundation for such a count, and the court quickly moved on to the IIED and NIED counts[39]. Interestingly enough, these two counts were the ones to survive the defendants' motion to dismiss. The court stated that the plaintiffs' complain may have alleged facts sufficient enough to constitute a claim for NIED “if plaintiffs can present evidence to establish long continued mental disturbance of the sort contemplated by the Restatement.[40]” Regarding the IIED claim, the court held that sufficient facts had been alleged, considering that the plaintiffs alleged to suffer “severe mental and emotional harm, suffering, fright, anguish, rage, shock, nervousness, anxiety, sleeplessness, unrest, depression, humiliation, loss of self esteem, and loss of dignity.[41]” The court denied the motion to dismiss only for these two counts[42].

Washington University v. Catalona is another federal district court case regarding the use of tissue and other biological research materials once they have left the body of the donor, but with a slightly different set of facts. Catalona was a urologist and researcher who was employed by Washington University when undertook the prostate cancer studies that are the subject of this dispute[43]. The other defendants of the case still were or had been patients of Catalona and had volunteered in one of these studies, signing informed consent documents and donating materials for the research[44]. In 2003, Catalona left Washington University and had intended to continue his research at his new university. However, Washington University ended up filing this declaratory judgment action before to court to determine that the biological materials were not property of the university, presumably in order to prevent Catalona from continuing his research elsewhere and retaining the benefit of his labor while he was still an employee.

In a rather lengthy opinion, the court ultimately decided that the biological materials donated by the other defendants were the property of Washington University, primarily on the basis of the informed consent documents that were signed prior to the beginning of research. Truthfully speaking, looking at the details of the case, it can all be resolved with the various contracts that were signed by either the participants in the studies or Catalona himself. The court pointed out that

[I]n all MTAs (Material Transfer Agreements) concerning these materials, including those wherein Dr. Caralona was the 'Provider's Scientist', WU (Washington University) clearly exerted its ownership interest without objection by Dr. Catalona. Even in the instance wherein Dr. Catalona attempted to change the language of a MTA to reflect 'co-ownership with WU, and WU refused to modify the language in the MTA, Dr. Catalona still signed.[45]

Citing Greenberg and Moore, the court affirmed that “research participants retain no ownership of biological materials they contribute for medical research” in order to put the final legal nail in the coffin regarding the defendants' claims for ownership regarding the biological materials.

So where do these four cases leave the landscape regarding the rights that a donor has after giving material, knowingly or otherwise? There are a few legal conclusions we can come to definitively, and I will try to sum them up succinctly. A physician must disclose his economic or research-based interests to his patient. A donor has no property interest in his biological material once it has left his body since he does not intend to retain ownership. A conversion action will fail due to inability to prove ownership on part of the plaintiff(s)[46]. An unjust enrichment action may be sustainable when dealing with a person patenting or otherwise benefiting from the research materials provided by another. A claim for infliction of emotional distress, negligent or intentional, may be sustainable provided that the proper facts are alleged. Last, but by no means list, contracts law plays a large portion in deciding who has ownership or who retains what rights, if any.

Stepping away from the case law that has been established in this underdeveloped area, laws and regulations do not contribute much more to the discussion. Starting at the top, there is 42 USC § 289 discusses the creation of Institutional Review Boards and how to manage ethics within “each entity which applies for a grant, contract, or cooperative agreement under this chapter for any project or program which involves the conduct of biomedical or behavioral research involving human subjects.[47]” These Institutional Review Boards (IRBs) are to be established within the entities to review research and ensure that subject rights aren't being violated[48]. Of course, in typical manner of regulatory statutes and laws, there is no real explanation of how the IRBs are supposed to go about that process. The one tidbit of help that is given is within (b)(1), and that states that “The Secretary shall establish a program within the Department of Health and Human Services under which requests for clarification and guidance with respect to ethical issues raised in connection with biomedical or behavioral research involving human subjects are responded to promptly and appropriately.”

Thankfully, the Code of Federal Regulations does give a bit of an idea of what these IRBs are supposed to do, but the critical flaw in the CFRs is that they are not technically binding as law. However, Courts tend to consider them with as much weight since they are the clarifications of various areas of the law by the lawmakers themselves. CFR §46.116 covers the general requirements for informed consent, which most of the cases examined above seem to revolved around. This code lays out what the basic elements of informed consent are supposed to include. This list includes any reasonably foreseeable risk or discomfort; a statement of the purpose of the research; a statement that participation is voluntary and other details[49]. What is not included within this list is the requirement to notify the participant that there may be commercial interests at stake, nor that the biological material donated may be used for research purposes other than those stated within the informed consent form.

Furthermore, there are express conditions under which the aforementioned requirements can be waived, given that the IRB finds and documents certain things. One of the options is designed to cover research designed to examine public benefit of service programs and possible changes to those programs[50]. The other option allows for a consent procedure that can leave out or alter all of the requirements provided that the IRB determines that “(1) The research involves no more than minimal risk to the subjects; (2) The waiver or alteration will not adversely affect the rights and welfare of the subjects; (3) The research could not practically be carried out without the waiver or alteration; and (4) Whenever appropriate, the subjects will be provided with additional pertinent information after participation.[51]” Considering the fact that those who donate biological material are almost never at any risk themselves, the only substantial hurdle an entity would have to overcome for to meet this standard is to establish that the research could not be “practicably carried out” if the patients knew what it was for. Immediately, the Tilousi case comes to mind, considering the claims that the Native Americans made in reaction to the use of their samples for other research studies. With the holding in that case establishing that misrepresentation was not enough to destroy informed consent, one must wonder what kind of things can be slipped under the rug at the expense of the research participant because of this generous exception established by the CFR.

Now, on a state level, the informed consent requirements can vary and either be more generous or more apathetic towards the rights of the subjects (or patients or participants as the law dictates). I will take an example from New York, which I will return to later on in the paper for discussion regarding possible resolutions to this legal situation. The New York Civil Rights Law §79-1 governs the requirements for informed consent regarding genetic testing. There is an initial set of informed consent requirements for the testing, and then a second set of requirements should the researcher which to conduct tests outside the original scope. The first set notably includes those whom the results of the genetic testing may be disclosed and a statement that “no other tests shall be conducted, and sample will be destroyed after testing is complete, or at the end of 60 days unless longer has been expressly authorized.[52]” As pro-donor as that first informed consent statement is, the second is much more in favor of the researcher. That statement need only say that the sample is being kept for future genetic tests, and will be held for “as long as deemed useful for research purposes.” The participant is given the right to withdraw, as well as the option to be contacted in the future regarding the research, findings and other matters[53].

Looking at New York's attempt to deal with how to balance the interest of the donor with the interests of the researcher, we see that it is possible to create an informed consent requirement that more narrowly tailors the interest of the donor. However, we also see from both New York and federal regulation that informed consent can be so broad that it need not say much at all, or can even be misleading. So, returning to the original framework of the paper, how are we to balance the interests of these parties which seem to be at such odds with each other?

Juggling the Interests: Identifying and discussing the interests of researchers and donors

While this paper has mostly taken an antagonistic approach towards the interests of the researches and the donors, that by no means is always the case. Using the cases discussed, we'll look at the interests brought up within them so we are working from a real context. In Moore, the donor interest was a little hard to identify other than a general concept of control, which could be said to be the key issue that any donor is concerned with: control of the destination of his/her biological materials. There is no real telling what Moore wanted done with his various samples, but even the option of sheer destruction is still an option and falls under the idea of control. The University of California obviously had a commercial interest in the research, which was demonstrated by the quick patenting of the cell line which came from Moore's biological material.

The truth of the matter is that it is only natural for researchers to be interested in the commercial aspects of any invention or discovery because research must be funded. While there are donations, grants and private investments, there are also those that want to know just one thing: “what is in it for me?” For better or worse, money does push the world quite a bit in this area, and while some researchers are undoubtedly doing what they do out of the goodness of their hearts, not everyone has that luxury.

The issue of control is probably more clearly defined by the two other cases examined, starting with the Havasupai tribe. There were specific purposes towards which they were willing to give biological materials towards (i.e., the research of diabetes within the tribe). Control in this case would include the decision for what purpose one is donating biological material. Similarly, they were unwilling to give such materials for any purpose which the tribe considered to be harmful towards the tribe's dignity. A slightly lesser question of control could be to whom a donor is giving one's biological material, as was part of the issue within the Washington University case. The patients of Catalona wanted the material they had donated to remain with him, which is understandable since he was the physician and researcher with whom they were acquainted with. On a one level, it makes sense, since most people would feel more comfortable with a physician or a specialist with whom they had been working with for some time.

Within the same cases, we can see the researchers' interests at work. Arizona State University undoubtedly had a broad range of studies and research it was conducting, and the more samples that one can get one's hands on, the better. If there were enough samples for the university to conduct both studies of the Havasupai tribe and other matters, then why not make the best of the left over materials? And looking at the situation at Washington University, it would make sense for a university to protect what it undoubtedly considered an investment. Most universities receive donations and additional funding dependent upon previously successful and noteworthy research, so to ensure ownership of the material that made up that research would only be natural so that it would continue to perform work which may be unfinished, need improving or be lacking.

One common interest, which can be found in all of these cases, is the desire to reveal more about various diseases, whether it be the gene responsible for it or the treatment of it. The original collaboration within Greenberg is a perfect example of the shared goal between both donors and researchers. All parties involved were working towards identifying the gene which was the cause for Canavan disease. The fact that one party sought to patent it does not take away from the original shared intent and collaborative effort. It is this shared goal that seems to be the foundation for research in this area, be it genetic diseases, cancer or simply discovering how the human body and mind work.

Natalie Ram explores this issue in her paper Assigning Rights and Protecting Interests: Constructing Ethical and Efficient Legal Rights in Human Tissue Research, and outlines some additional interests at play in this dynamic, where she points out confidentiality concerns as an issue that tissue providers may have[54]. She points out some concerns we discussed in class, such as genetic information getting into the hands of insurance companies or employers, which could have dire consequences for the person with the wrong condition[55]. While she acknowledges that the Genetic Information Nondiscrimination Act is supposed to protect against these fears, Ram also points out that it is unclear exactly how this Act is supposed to function in a legal context[56]. Another concern she demonstrates is the fact that the genetic material not only identifies the individual donor, but to a certain extent it identifies close family members as well since immediately family shares a large portion of the same genetic information[57].

One interest of researchers and society which she points out that caught me off guard that I felt was certainly worth mentioning was that of cost of research as a whole[58]. If researchers had to pay for all the materials, or even a large portion of the materials that were necessary to do the research into various diseases and conditions, then society as a whole would ultimate pay the price for the increased cost for the consumers of whatever product resulted. Furthemore, Ram points out that when there are “fewer permissions to obtain, research can proceed more quickly and with less cost,” which would result in genes being identified sooner rather than later[59]. The sooner research can start, the sooner the researchers are on their way to reaching the goal they have established, which generally benefits society and humanity as a whole.

With so many interests at stake, and it impossible to say that any one outweighs that of another, is it possible to find a solution that will take all of these interests into consideration? Considering that there is no perfect law because there is no perfect lawmaker, the answer is obviously no, but such an observation should not stop us from seeking a more just and well-rounded approach that balances the interests of donors and researchers.

Balancing Act: Possible Solutions to Reconciling Donor and Researcher Interests

The first solution may be said to not be one at all, but that is to leave the legal field as it is and let things develop naturally, if they develop at all. In the Moore decision, the opinion stated that this issue was one yet unreviewed by the courts and that, “Moore's novel claim to own the biological materials at issue in this case is problematic, at best.[60]” While it was easy to deal with the rather well-established concepts of fiduciary duty and informed consent, the concept of owning one's biological material AFTER it was no longer attached was another matter. Arabian, in his concurrence, pointed out that there were “conflicting moral, philosophical and even religious values at stake.[61]” He preferred to leave such a decision to the Legislature to determine the questions of whether a man owned his genetic material after it left his body.

This decision had two dissents, both of which would have recognized a conversion claim in favor of Moore. The first, by Broussard, stated that if the allegations were true, “plaintiff's doctor improperly interfered with plaintiff's right to control the use of a body party by wrongfully withholding material information from him before its removal,” which under common law may have established a conversion action for Moore[62]. Rephrasing the inquiry, Broussand shaped the question as to “whether a patient has a right to determine, before a body part is removed, the use to which the part will be put after removal.[63]” The other dissenting opinion was by Mosk, who spoke eloquently of the court's role in shaping law.

My point is that if the cause of action for conversion is otherwise an appropriate remedy on these facts, we should not refrain from fashioning it simply because another court has not yet so held or because the Legislature has not yet addressed the question. We need not wait on either even, because neither is a precondition to an exercise of our long-standing “power to insure the just and rational development of the common law in our state.[64]”

It is quite probably that some state court at some point may take it upon itself to start shaping state law into a position to favor a property interest in one's tissue or other body parts, much along the lines of which Broussand spoke. The only thing keeping a court from doing so is a desire to stay out of the law-making arena as a whole. However, it would have to be state law where such laws were shaped as federal laws can only reflect what state law already establishes. As property interest is a state law issue, federal laws will likely never decide on the issue unless it is being particularly activist.

One problem with waiting to see whether a common law property interest will form through court cases is obviously the lack of court cases. Whether due to sheer ignorance of what became of one's biological material or to the fact that the case was settle out of court, many questions in this area are still unanswered, such as those covering unjust enrichment and infliction of emotional distress which were brought up above.

Another problem with leaving things at the status quo is that the clearest way to negotiate around such interests seems to be contract law, and the bargaining power very much rests in the hands of the researchers and entities which create the informed consent documents. In his note, Kevin Overdorfer supported this observation and that “[b]ecause research institutions have greater bargaining power than individual tissue sources, an individual tissue source has limited ability to control the terms under which biomedical research is conducted.[65]” His suggestion is that individuals work through organizations in order to amass bargaining power and be able to play on the same proverbial field as the researchers. While he cites Greenberg as an example of a successful collaborative effort, there are still some concerns with this suggestion, as practical as it may seem.

Let's take Jane Doe. She discovers she has a condition that may be related to her genes. In the process of being treated, she is given the typical slew of paperwork to fill out, and the physician or nurse kindly highlighted the areas she needed to sign or initial before they could draw the first blood samples and proceed with discovering the source of this pesky problem. As a one-time average Joe, I can say that I rarely read most documents handed to me anywhere near as thoroughly as I do now that I am in law school. How likely is it that the average Doe bothers reading the fine print, let alone understands the true legal implications of any of the legal jargon. Worst of all, the informed consent form may be innocently attached to a waiver of property interest in any samples that may be taken for research purposes. If you can recall the wording used to describe a document you needed to sign before you knew any better, it usually put the legal text into the most general and benign statement possible. “Oh, this just says that it is ok if we use your samples/blood/etc. for research.” Most of the time, the thought that goes through the head of a person is “Why not?” or “Whatever, just let me get through the paperwork.”

Now, considering the fact that the sophistication of people in the area of technology and legal rights has undoubtedly grown over the years, perhaps there is a person who knows exactly what they want to do with that paperwork when presented with it. However, neither physician nor nurse will give our dear Jane an option. It's either sign the paper and let them do whatever research they desire and whatever they desire with the results or decline and begin treatment. When confronted with that moment in time, few are in the position to leave, go do research into finding an organization or even similarly situated individuals that may be willing to form together for the sake of bargaining, and then return to discuss this matter with the would-be researcher. As I stated, seems to be good in practice, or if there is already an organization in existence for your particular condition, but otherwise, you may well be on your own, with no bargaining power to speak of.

Considering the status quo leaves you with questionable results at best, the situation may warrant looking into changing the landscape in order to balance the interest a little more in favor of the donors. The two options I will discuss here are recognizing a property interest in favor of the donors and enhancing current informed consent requirements.

Creating a Property Interest

While a perfectly feasible idea, there would be some critical questions that one would have to ask in order to make sure that such an interest did not end up starting a slippery slope that ends up too much in favor of donors. As stated above, no interest is more important than the others, and the idea is to balance, not overthrow, the current state of affairs in this area. The most simplistic of such solutions would be to create federal law that would recognize such an interest. The first problem with doing so would be that the area of property rights has historically rested with the states, so those of a federalist mindset may rebel against such a notion. Furthermore, how the law was worded could be a cause for contention as well. It would not be the first time federal law had been too narrow or too broad or too vague for the taste of those who had to implement it. Such a solution could create as many problems as it solved.

The one suggested by Ram is worth discussing at some length, and that solution is the recognition of an informational property interest. She explains the concept of informational property as a recognition of “a limited right to control how the information contained within one's cells is used. […] Personal genetic information protected by a copyright-like informational property right would thus be unavailable for unauthorized use no matter how or from where it was obtained.[66]” With this property right, researchers would have to go through the source of the material that they wished to use. She suggests using a sort of licensing system in order to facilitate the negotiations between the researcher and the would-be donor and the theoretical availability of a fair use standard as well in terms of those areas of DNA that were common to all people[67]. Some of the obvious problems, even without going into further detail, are the fact that it would require more work, time and perhaps money on the part of the researchers. Another concern brought up by Ram herself would be the application of the fair use standard. Exactly how would one determine what sections of DNA were applicable, or would such a standard automatically make most tissue samples fair use[68]?

An ideal solution would not be followed by a slew of litigation attempting to make heads or tails of the various definitions within whatever right was newly vested. Aaron Carbone suggested another solution within the context of the unique informed consent law of New York. He examined the various issues and the legacy left by Moore and recommended amending the informed consent law to recognize “a property interest in his or her tissues and genetic information.[69]” Looking at past cases within New York legal history, he reasoned that “tissue fulfills the prima facie elements of property under New York common law, and New York courts have favorably supported providing such a property interest in other contexts.[70]” Although he only looks at this issue within the context of state law, would one have to stretch that far to get something similar within the Code of Federal Regulations? The critical factor is what could and what would the lawmakers consider in amending the CFR regarding informed consent to recognize such an interest.

The option I believe to be the least problematic overall would be establishing an enhanced form of informed consent, perhaps similar to what New York has created, but extending the coverage to research in general, rather than limiting it to just genetic testing. Oberdorfer mentioned a form of enhanced consent that would require greater levels of disclosure, which would take relatively little work on part of the legislatures, federal and state. Using the New York law as a model, instructing the potential donor about the potential uses of the material and a blanket notice of the possibility of commercial usage would allow a person to make a better formed decision regarding what decision to make regarding the future of his donation. Also, similarly to the New York law, should a research want to conduct further tests on the material in question, a second informed consent notice should be issued with similar standards. With the understanding that the interests must be balanced with the second notice, a time frame should be established in which the donor has to respond to the second informed consent. Giving the researcher the benefit of the doubt, silence would be presumed to be consent with the option to withdraw consent at any time. Such a shaping of informed consent law would better protect donors by providing them with a greater degree of information than previously established, but still allow researchers some leeway in pursuing additional research as well as their commercial interests.

While Greenberg expressed a concern about allowing the donors to dictate the direction of research, I do not honestly believe that it would amount to such a large concern as that. If people were given a property interest, then perhaps people would be more concerned with how much money they could make from their biological material. Simply enhancing informed consent would not give donors quite so large a leash on the researchers. If she disagrees with the potential commercialization of her biological material in some shape, then she need not consent to the research at all. To presume that everyone would be so concerned is to put everyone into the shoes of Moore, which is a large jump to make from a handful of cases. I believe that many people simply want to know in good faith what is happening with their donations more than want to cash in on whatever profit may be available. An enhanced form of informed consent could also be tailored to curb any latent interests, stating that a minimal compensation (if any at all) may be available at some point. In my opinion, the informed consent framework is more flexible and can more easily be tailored to meet the needs of the nation as a whole as it approaches a society that grows increasingly more legally complex in the areas of biotechnology.

Conclusion

As science expands to encompass more and more aspects of our lives, it will inherently intertwine with the law now and again, and the courts will have to decide what to do with each unique case as such come before its court. However, when the courts leave unsatisfactory or unbalanced answers, there may still be a sense of injustice with the way the legal field is shaping in that area. While not every injustice can be readily dealt with, I believe that when it is a simple matter of balancing interests, a greater sense of fairness can be established.

Researchers and society have a very valid interest in pursuing effective, low-cost research in order to deal with any myriad of issues that the human race has developed. The average donor does not necessarily want to impede in that research, but only wants to be able to have the chance to play the role that he elects for himself and not one that is forced upon him without his knowledge. To provide a more balanced method of informing donors of their rights and the final destination of their biological material may only matter to a few at the end of the day, but if such a change can make a greater sense of justice, then perhaps it is worth pursuing.

As examined above, the cases acknowledge stepping on new ground here, so there is a chance that there may be shifts as the courts wrestle with the various issues again and again. At the moment, there is little or no recourse for the person who gave for one purpose and discovered the gift was being used for another, or that a gift was being made at all. Courts have claimed to rule in favor of research and society, but there must be a way to better balance the rights of the donor, knowing or otherwise. This paper has merely given a brief look at the issue and made some humble suggestions for what is undoubtedly a legal landscape awaiting some form of change.

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[1]

[2] Of course, his parents would be the people making the legal decisions in this matter, but for the sake of brevity and at the risk of getting too caught up with legalism this early on in the page, I acknowledge the discrepancy and move on.

[3] Moore v. Regents, 51 Cal. 3D 120, 125.

[4] Id.

[5] Id. at 126.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 127.

[12] Id. at 128.

[13] Id. at 129.

[14] Id.

[15] Id. at 130.

[16] Id. at 136,

[17] Id. at 137.

[18] Id. at 142.

[19] Id.

[20] Greenberg v. Miami Children's Hospital, 264 F. Supp 2d 1064, 1066.

[21] Id. at 1067.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id. at 1066.

[27] Id. at 1068.

[28] Id. at 1069

[29] Id. at 1070.

[30] Id.

[31] Id. at 1072.

[32] The other two claims were for fraudulent concealment and conversion. The former claim has little to do with the context of the paper, and so I will skip discussing it within the text of the paper. The conversion claim went much as the one in Moore, so I will also skip that for the sake of conserving text and needlessly summarizing matters that are irrelevant to the substance of the paper.

[33] Id.

[34] Tilousi v. Arizona State University, 2005 WL 6199562 (D.Ariz), 1.

[35] Id.

[36] Id. at 2-3.

[37] Id. at 2.

[38] Id.

[39] Id. at 3. Additional counts included conversion (4), civil rights violations (5), unreasonable disclosure of private facts and intrusion on seclusion (6). None of these claims survived, and the only one worth discussion in terms of this paper (conversion) adds nothing new to the conversation, and thus will be skipped over for the purposes of this paper.

[40] Id. at 4.

[41] Id.

[42] Considering the fact that this case was unpublished, I did some additional research on the internet to try to discover what had become of this case and whether the tribe won their claim against the university. What I was able to find through an online blog was that the case settled out of court April 2010, and Arizona State University agreed to pay the tribe $700,000 for their pain and suffering.

[43] Washington University v. Catlona, 437 F.Supp.2d 985, 989.

[44] Id.

[45] Id. at 995.

[46] At least in terms of dealing with the donor as the plaintiffs. If we were to take the facts of Washington v. Catalona, and Catalona decided to take the biological materials from WU anyway, then WU would have a conversion action against Catalona since WU can claim a property interest in those biological materials.

[47] 42 USC § 289(a). http://vlex.com/vid/institutional-boards-ethics-guidance-19246426

[48] Id.

[49] CFR § 46.116(a)(1)-(8). One thing worth mentioning is that the introductory text to the section specifically only discusses human subjects of research. For the sake of argument, we can include donor of biological materials to those due informed consent since it seems that the court do already. See Washington, 437 F.Supp.2d at 998.

[50] CFR §46.116(c)(1)

[51] CFR §46.116(d)(1)-(4)

[52] N.Y. Civ. Rights §79-1(2)(6), (8).

[53] N.Y. Civ. Rights §79-1(7)(1)-(5)(ii).

[54] Natalie Ram. Assigning Rights and Protecting Interests: Constructing Ethical and Efficient Legal Rights in Human Tissue Research. 23 Harv. J.L. & Tech. 119, 129-30.

[55] Id. at 130.

[56] Id.

[57] Id. at 132.

[58] Id. at 137.

[59] Id. at 138.

[60] Moore, 51 Cal.3d at 142.

[61] Id at 149.

[62] Id. at 151.

[63] Id. at 154.

[64] Id. at 163, quoting Rodriguez v. Bethlehem Steel Corp, 12 Cal.3d 382, 394.

[65] Kevin L.J. Oberdorfer. The Lessons of Greenberg: Informed Consent and the Protection of Tissue Sources' Research Interests. Note. 93 Geo. L.J. 365, 389.

[66] Assigning Rights, 23 Harv. J.L. & Tech. at 141-42.

[67] Id. at 146-54.

[68] Id. at 153-54.

[69] Aaron F. Carbone. What Do I Own, If Not Myself. Comments. 18 Alb. L.J. Sci. & Tech. 569, 581.

[70] Id at 591.