John's fourth conjecture in this post is that a lawyer might violate California's restrictive confidentiality rules because the violation would leave the lawyer better off financially than if he or she followed the rule. In other words, maybe the lawyer acted in an economically rational manner by choosing to break a rule in a context where the violation had a positive net present value (NPV). (We would have to know the expected cost of discipline, of course, and the reputational hit the lawyer would take (see my thoughts on that issue here), but John takes care of those by positing that the lawyer is near the end of his career, so that the expected value of his license is low.)
I think this conjecture is quite plausible. It raises two issues. The first is purely normative. If both the private and social value of a rule violation are positive, why in the world would we expect or want lawyers to follow rules? (I'll stipulate for purposes of the question that whistle-blowing generates net positive social returns). It seems that only rule-worship would favor compliance in such a case.
The second is harder. What do we tell students about their own self-interest and rules? More precisely, do we tell them that there are times when the expected private returns to rule-breaking are positive? In my view, at least, that is the truth. And having insisted on probabilistic thinking as an element of judgment, I am ill-suited to tell them to turn off their probability calculators when faced with such a choice. One could scare them by alluding to public disgrace and the expected cost of suspension or disbarment, but that is fighting the hypo.
The best answers I have found are two-fold. The first is that people generally should not engage in conduct that generates net social losses, as some rule violations will. The second is that they have to decide what they can live with, and that is up to them. Notice, of course, that neither argument has any unique relationship to lawyers. They are just arguments about what people should do.
One argument I hear often but which I think does not work is this: if everyone violated the rules, then society would be worse off, including the lawyer; the lawyer has a moral obligation to follow the rules because he or she benefits from others doing so. To me that dodges the consequentialst nature of the question by back-dooring deontology dresseed up as defuse consequentialism. In particular, (i) lots of others do violate rules, sometimes against you, and yet the world plugs along without collapsing into chaos; so that (ii) the consequentialist feint of the argument is falsified by reality: one can violate a rule for self-interested reasons with a high degree of assurance that the sky will not fall. This argument also fails to deal with the case (and, I think, cannot deal with it) in which violating a rule generates positive social returns as well as private returns.
Any other insights on approaching the positive NPV violation?