Some years ago I was asked to referee at a soccer game in which my son, then ten years old, was a player. I was not asked because I was a good choice: most of the little I knew about soccer I had only recently learned from my son. I was asked because a referee called in sick at the last minute and I was there, the only alternative to cancelling the game.

It turned out that I knew enough to be a decent referee. Still, my memories of refereeing are not happy. I wanted to be fair, but I could not just "bend over backward" to be fair to the others; that would not have been fair to my son or his team. If I could not bend over backward to be fair, what was I to do? How could I look over that field of boys running, kicking, and yelling without seeing my son in the blur of bright uniforms? Did I therefore see fouls a stranger would have overlooked? Did I resolve doubts in a way a stranger would not have? Was I harder on my son than the regular referee would have been, easier, or just the same? To this day, I don't know. What I do know is that I could not call a foul in that game with the same assurance any ordinary referee could have-or as I could have had both teams been strangers to me.

Professions have long described this inability to judge as someone less involved would as a loss of "independence", "detachment," "impartiality", or "objectivity" (depending on profession). Today, they are more likely to describe it as a conflict of interest.

Risk or Harm?
What is a conflict of interest? Kevin McMunigal, a lawyer, argues that we can avoid a good deal of confusion by beginning to answer that question with a distinction between "harm rules" and "risk rules". Conflict of interest is a situation risking a certain harm (in my case, erroneous calls of foul). What creates this risk are "perverse incentives". What makes an incentive, that is, a tug on judgment, "perverse"? Though perhaps proper in other situations (as the special concern of a father for his own child certainly is), in the situation in question the incentive has an untoward effect: it threatens to distort judgment in undesirable ways.

McMunigal argues that even lawyers often make the mistake of thinking of rules concerning conflict of interest as concerned with harm rather than risk. For example: To charges of conflict of interest, defenders of former Secretary of Agriculture Michael Espy responded that he had done nothing in return for favors received (an expensive dinner, flight to a resort, or the like). That response is no defense against a charge of conflict of interest (properly understood). Had Espy done something in return for the favor, the charge should have been bribery, not conflict of interest.

Conflict of interest is primarily a problem for honest people. The dishonest just cheat, lie, sell their judgment, or otherwise knowingly betray the trust put in them. When I refereed my son's soccer game, I had a conflict of interest only as long as I tried to be fair. Had I chosen to betray the trust put in me, consciously undertaking to favor my son (or consciously undertaking to favor the other team), I would no longer have had a problem of conflict of interest (in any interesting sense). My calls would have been lies. In this respect, conflict of interest is at least one step removed from "harm". While the point of federal rules against conflict of interest is to prevent harm (that is, biased or corrupt decisions about public policy), the means is not prohibition of that harm. Instead, the federal rules try to keep federal officials out of any situation where even they cannot know whether their judgment in some matter affecting one of those who has done them a favor is what it would have been had there been no favor.

Importance of Conflict of Interest
Conflict of interest is an important concept for the professions because most of what makes professions useful is their (specialized) judgment. So, for example, our second contributor, Jeffrey Kovac, is not a chemist simply because he knows what chemists know. He is a chemist because we (or, at least, his fellow chemists) can be reasonably sure that thanks to education, commitment, and practice he will generally engage in chemistry as a chemist should. Conflict of interest makes that assurance less reasonable. To exercise one's judgment when one has a conflict of interest is to take an unusual risk of error. So, for a member of a profession, conflict of interest can be objectionable for at least one of three reasons:

First, insofar as the professional is unaware of the conflict of interest, she is incompetent. Professionals are supposed to know the limits of their judgment, especially when these limits are obvious. Conflicts of interest are obvious. So, for example, Kovac's Professor Aston will know when financial interest tempts him to judge a paper more harshly than he otherwise might (though he may not know what effect that temptation actually has on his final judgment).

Second, if those justifiably relying on the professional for a certain judgment do not know of the conflict of interest and the professional does (or should) know that they do not, she is allowing them to believe that she is something she is not but should be; she is, in effect, deceiving them. Their reliance on her is justified by her professional status until she reveals that she has a special interest, that is, one not standard among members of her profession. That, for example, is why Kovac's Professor Aston should tell a journal's editor of his financial interest in a paper (should he not decline to review it). Revealing the conflict of interest avoids deception.

Third, even if the professional informs those justifiably depending on her judgment that she has a conflict of interest, her judgment will still be less reliable than it ordinarily is. She will still risk appearing less competent than usual (and perhaps less competent than members of her profession should be). Conflict of interest can remain a technical problem even after it has ceased to be a moral problem (and, even as a technical problem, can harm the reputation of the profession or individual in question). This, I think, is the objection to many of the conflicts of interest with which Kovac concludes his piece.

That, however, is not the only objection to the conflicts of interest that concern Elliot Cohen. For Cohen, avoiding the conflicts of interest that arise when a psychological counselor who is also a teacher has a student as a client, or a client as a student, is important not only for preserving the reliability of "technical" judgment but also for avoiding that mere appearance of betrayal or indifference capable of destroying the therapeutic relationship (for example, the rejection a client might feel when receiving a low grade from his counselor-teacher). Even when we can manage the conflict of interest itself, we may not be able to manage appearances.

Business
Both Cohen and Kovac focus on professionals who are also educators. Their pieces might seem parochial were it not so rare for academics to write about their own conflicts of interest. McMunigal's piece on legal ethics might seem parochial for another reason. Conflict of interest seems the natural denizen of a lawyer's office. With Neil Luebke's piece on conflict of interest in engineering, however, we enter the wide world. Here we meet not only the codes of ethics of several major engineering societies but also those of several major corporations. These documents make clear that, for better or worse, conflict of interest is a practical problem for many people in business.

Like McMunigal, Luebke notes that the term "conflict of interest" has been used for circumstances better categorized in other ways. For example, use of company equipment for private gain is not conflict of interest but theft of service. Luebke's piece concludes with a useful list of five ways to deal with conflict of interest. The choice among them is to be made so as to preserve the trust of those properly relying on the engineer's judgment-good advice, and yet, as my own experience with refereeing suggests, not always good enough. We must sometimes live with a conflict of interest because all the alternatives are worse; but just because we must live with a conflict of interest does not make living with it easy.

-MD