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Masters Ethics Paper

ETHICS IN BANKING AND FINANCIAL MARKETS

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Contents

Definition of Terms and Themes. 3

History of Ethics in relation to Criminal Justice System.. 5

Ethics Concerns Regarding Monetary Settlements of Criminal and Corporate Cases: The Case of JP Morgan Chase  9

Was JP Morgan’s $13 billion Settlement Ethical?. 10

Approaches to Settling the Case. 13

Ethical Issues Matters Arising from the Monetary settlement 14

Recommendations and Suggested Remedies. 17

Executive Summary. 18

Reference List 20

Declaration. 23

Ethics in Banking and Financial Markets

Definition of Terms and Themes

There is a general understanding of ethics as a set of principles that governs behavior and participation. On a deeper level of understanding, ethics is in fact a branch of philosophy that facilitates the design, defending and recommending right and wrong. The branch of ethics is guided by paradoxes of good and evil, right or wrong and virtue or vice (Bichard and Epsein,2000). Ethics may be divided into areas of meta-ethics, normative ethics and applied ethics. The choice of one approach over the other may depend on aspects of practicability and the nature of the issue being addressed.

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In order to understand ethics in the context of the financial and law sectors, it is important to understand these three areas of ethical analysis and operation. Since the exact definition of ethics is extremely subjective, a look at these major areas outlines the creation of separation in ethics (Greenawalt,1989). Meta ethics is essentially a very abstract and unlimited form of ethics. It core questions are built on expansiveness and aspects of less precise knowledge. In this category, ethics is divided into cognitive and non-cognitive factors. The former divide right and wrong based on facts or collected information that should be verifiable while the latteraddresses the issue of whether judging something as right or wrong regardless of the position held in terms of truth and falsity. Thus, this dichotomy enables philosophers to questions the realm of human reality versus perception while also drawing the line between what is morally right and wrong (Gilbert,1996).

In contrast,normativeethics does not focus on morality issues but rather, pays attention to ethical action. It is fundamentally an empirical approach that consciously investigates morality and standards ofright and wrong whilemeasuring the practicality ofsituationsmanifested. Themain view ofnormative ethics is that whilepeoplemay have high levels of morality or extremestandards of separating right and wrong, the manifestation of orlives and settings is completely different. In addition, differences in character, religion,age,gender also affect how individuals react with each other in every situation (Gilbert,1996). It is the widest area of ethics that has recorded the most contribution from philosophers and scientists.

Applied ethics entails the application of ethical theories to real situationsthat share common characteristics. The result is specialized fields that identify with their own set of ethicalguidelines such as bioethics,geo-ethics,legalethics and business ethics. This approach has seen the emergence of many ethical questions that revolve around moral values prevailing in society. These issues are ever-changing, meaning that this ethics tend to be very dynamic and quite adaptive. Even so, it attempts to remain regulatory in nature and constant to set a clear extent of limits of right or wrong within its jurisdiction.

This paper will analyze the issue of ethics in the field of banking. It will serve as a combination between business and legal ethics and how the two operate both independently and co-dependently. Business ethics encompasses a combination of normative and applied ethics and places great emphasis on empirical verification of its ethical standards. Primarily, the point of business is centered on the profit motivate and maximization of the use of resources. This tends to create many ethical issues in social and economic levels (Peterson,2010). Thus, business ethics ideally attempts to balance between the profit imperative and non-economic, ethics-related values.

The need for business ethics gained prominence in the 1970s because of the widespread compromise of social values for economic and business gratification. Today, all corporate entities are expected to adhere to business ethics and participate in social projects in addition to their profit driven projects (Milyo,2014). Furthermore, with the emergence of larger industries, companies and conglomerates, there is more need to supervise the extent of these participants and their interaction with their employees and community (Geiss, 2011; Milyo,2014). It is for this reason that non-profit organization have emerged with a core concentration on social benefit with economic prosperity taking second priority.

The second theme of definition and analysis is criminal justice, which is a system of legal government that upholds and enforces social control while preventing or dealing with crime. It deals with those who violate the set law through penalties and rehabilitation mechanisms. It is interesting to observe how different areas or even countries will have completely different approaches to criminal justice (Calabresi,1985). As an example, England’s criminal justice system focuses on bringing more offenders to justice and thus raises public confidence in their services and strength (Birchard and Epsein,2000). In Canada and USA, criminal justice focuses on achieving balance between crime regulation, social prosperity and equal rights to everyone. These countries analyze the social contributors that affect the rate of crime and rehabilitation and attempt to solve these key issues as a way of reducing the crime rate (Kalbresi,1985).

History of Ethics in relation to Criminal Justice System

The criminal justice system consists of three main areas: the legislative body, the courts and the rehabilitative or penal body. The legislative body is in charge of coming up with laws and regulations to guide the community. The court system deals directly with offenders’ while applying the jurisdiction’s legislation to determine right and wrong (Croall,2001). Finally, the penal system enforces any punishment or rehabilitation passed to the offenders with a goal of ensuring the public remains safe and the offenders are rehabilitated and eventually given a second chance after they have served their time.

In the topic of banking and financial ethics, the criminal justice system regulates these stakeholders following the business ethics and business law drawn out. In these sectors, common offences that arise through ethical avenues includeinsidertrading, fraud and sophisticated white collar corruption that has gone ahead to establish a stable network that transcends one industry (Rhode,2000). Research and evidence now reveals the complex nature of corporate corruption that is strongly rootedin the banking and financialfunctions of business operations (Ruggiero,2007). Despite the automation and transparency required in these sectors, individuals andnetworks continue to infiltrate these legalbarriers and rake huge profits for themselves. Even within business and corporate ethics, the criminal justice system is bound by criminal justice or police ethics that also govern their power as law enforcement partners (Rhode,2000). This is achieved through clearly set laws and training that is provided to law enforcers before and during their work.

Historically, the criminal justice system has been neglected and under supervised following the false notion that is was all knowing and self-supporting. Over the years, the rise in corporate and social crime has increased the level of activity for criminal justice. Currently in history, crime is at the highest it has been despite the fact that local and national governments are doing their best to mitigate crime rate (Winston and Noonan,1993).

Meanwhile, for the longest time, the criminal justice has enjoyed immunity and superiority in society. Since this is a combination oflegislation, enforcement and penalsystems, it has been difficult to separate the networks that were developed in the three departments. The legislative department is mostly controlled by politics and political counterparts who sway legislation to their advantage. It is the story of legislation throughout the world, that of power hungry politicians’ who fully control the legislation process even in the most elite of democracies (Waters and Levenid, 2009). This negative manifestation was the first indicator of the need to fully enforce ethics in the legal system.

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Nevertheless, at the level of legislation, legal ethics seem to have little impact on the positive outcome of this function thus more attention is paid towards the legislation department as a separate entity. The US has particularly endeavored to strengthen its legislative process and streamline the process of constitution amendments. Notably, while this has led to the strengthening and superiority of the constitution, the entire process remains riddled with challenges such as complex jargon, complex procedure and an exclusion of the public in the direct process. To a greater extent, this process still places most of the power to those in power (Shminke,1998).

Arguably, the courts and rehabilitative departments are more open to ethical preservation and supervision today than they were in the past. Interestingly, before the global move towards legal and business ethics, these two departments had served as the biggest facilitators ofcrimethrough corruption andpoorethics. In developing countries, it is common to observe a division and distrust of the law enforcers by the very people it should be protecting. Coupled with fear, most criminal justice systems in developing countries have assumed a harsh and discriminatory persona towards the general population.

Unfortunately, the penal system is also riddled by corruption and aggression and for the longest time, has been questioned for serving its correction purpose. In many countries, there are sophisticated prisoncartelsthatwork in combination with the law enforcers and thus proceed with their business,most ofwhich areillegalandthe reason oftheir sentence. This shows that thepenalsystem has only been increasing the numberof apprehended offendersbut has failed in lowering crime rate. Thisstate has made prisons extremely expensive with the US spending billions per year to support the inmates who willnotbeofsocialoreconomicvalueeven aftertheir release. On a positive note, though, in the last decade, the criminal justice system has made positive steps in the training of law enforcers so as to promote ethics and develop a strong responsibility towards their code of ethics.

Meanwhile, the pervasive challenges within the prison system have led to the debate on other alternatives such as community punishment which would be less expensive and more beneficial. Another point of debate is that of privatizing the prison system (Sparkes,2002). Whether this would reducethe negative networkin all criminaljustice departments or otherwise strengthen it is still a strong debate,with each side holding strong points. Failure to act ethically in accordance to these codes of conduct could lead to investigations and termination of service. As an improvement, the criminal justice system now evaluates personal ethics of individuals during recruitment. This has followed recent research which reveals that individuals with strong personal ethics are least likely to be influenced by group thinking of make unethical decisions.

It is of importance that criminal justice ethics are also aligned with other ethics such as business ethics. In this respect, monetary settlement of criminal and corporate cases has raised great issues in its procedure (Sims,2003). Financial and banking giants have to take monetary settlements in cases of unethical operation. However, there is concern on the punitive impact of monetary settlements from such giants which make even more profits than they will be fined for the unethical venture.

Ethics Concerns Regarding Monetary Settlements of Criminal and Corporate Cases: The Case of JP Morgan Chase

JP Morgan Chase entered into $13 billion monetary settlement with the U.S. Justice Department following the 2008 crisis. As most banks and financial stakeholders, JP Morgan was involved in the business of mortgage securitization. This meant that they would take home loans by retail banks and mortgage providers and sellthemtoother. These were also repackaged and sold to the government and investors in large proportions.   Since most of these were bad loans, the default rate was extremely high, meaning that investors and the governments made huge losses. In addition, the government had to cover their own losses as well as the defaulter’s losses (Stromenger,2010). It was this unethical operation by such banks that offset the biggest financial crisis whose impact is felt even today.

This business was self-supporting by other investment banks and retail banks such as Bear Sterns which were directly involved in repackaging the loans as investment securities (Sims, 2003). Even though this serves as a simplified explanation of the financial crisis and the direct involvement of financial partners, the nature of this operation is extremely complex and still prevails. This reveals the high level of unethical operation among financial and investment banks and their sole concern on profit creation even at the expense of economic compromise. It further shows the part that legal and criminal justice system played in supporting this operation. Without a doubt, the criminal justice system was made aware of this but failed to take immediate action until the financial crash occurred.

Was JP Morgan’s $13 billion Settlement Ethical?

The settlement between JP Morgan Chase bank and the US Department of Justice that totaled to thirteen billion dollars may be said to be founded on valid ethical justifications in some quarters. This settlement constituted of $4 billion towards a consumer relied package, a similar amount for the Federal Housing Finance Agency, the body that is responsible for running government mortgage financing companies Freddie Mac and Fannie Mae and the remaining $5 billion to serve as a civil penalty payable to the U.S. Justice Department to cover claims from the law suits. One such justification is that this settlement was in line with the US Banking rules and regulations on monetary settlements and is recorded as being the largest settlement ever for such kind of a case. Moreover, settlement was in line with banking policy as it definitely made and impact on the bank’s financial position; amounting to about five months revenue while also not completely putting it the bank out of business (Milyo 2014.).

            Besides, the settlement seems to have been made correctly undertaken considering that the claim filed and the negotiation carried out thereafter all took place within the constitutional timeline as per the statute of limitations. During and after the 2008 financial crisis it took some time for the justice department to narrow down on the exact complaints and occurrences during the mortgage securitization and whether the bank was at fault or not. The Justice department had to investigate thousands of financial transactions worth trillions of dollars carried out by dozens of large banks and other financial intermediaries. This resulted in them delaying in initiating complaints against the bank and filing suits against the bad debts sold to financial institutions and even to the government. For securities and commodities fraud, the general category in which this case would fall under, the statute of limitation is only six years, so prosecution of cases could not continue after 2011 (Megone 2002). However, the more specific category that the JP Morgan Chase mortgage securitization case falls under is a 1989 law enacted to help deal with the current savings and loan crisis at the time. This law stipulates a ten-year period for investigation and prosecution of cases involving banks being defrauded (Megone 2002). The case court finalized in 2013 is therefore perfectly within this time frame and therefore legal. This consequently means that also the settlement made was within legal boundaries and therefore an ethical move by JP Morgan Chase bank.

            Normative ethics can be applied in this matter in a profound way. A detailed investigation would reveal that the settlement and actions of the bank were perfectly in line with this ethical approach. Normative ethics focuses on ethical/unethical nature of the actual action as opposed to focusing on morality and a society’s value systems (Rhode 2000). This type of ethics takes into account a society’s actual reaction to perceived notions of right and wrong as opposed to set theories and principles on what people should or should not do (Greenawalt 1989). In terms of practicality, JP Morgan and Chase’s actions were perfectly legal as the bank was only out to keep itself afloat in the tough economic times and also to ensure returns to its shareholders. Financial and legal rules and regulations were not necessarily broken in the transfer of loans and mortgages to other entities but people’s inherent variations in culture, background and socialization caused some to think that it was. Moreover, in the resolution of such a matter, normative ethics stipulates that the actual actions of the company in light of the environment and current times be considered and favored as opposed to set rules, laws and regulations (Rhode 2000).

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            Applied ethics on the other hand would result in a wrongful conviction of JP Morgan Chase bank for the alleged financial misinformation and sale of bad loans. This ethical approach works through the application of ethical theories to situations that portray similar characteristics (Megone, 2002). When a situation arises, reference is made both to ethical theories and to a past situation of a similar kind in terms of how it was resolved. This knowledge used to resolve the current situation. Since both current banking and financial laws blatantly oppose transfer of perceived ‘unsafe’ mortgages, loans and other securities, application of applied ethics would make the bank automatically guilty of the alleged offences. The practicality of this ethical approach, however, may be questioned in efforts to solve 21st-century issues because of the rapidity of change in the world of banking (Calabresi 1985). Reference cannot also be properly made to past cases as it is very difficult to find those that are exactly alike in terms of complainants, issues tackled and the conditions in which the alleged defrauds occurred. Moreover, a rigid adherence to ethical codes more often than not results in unproductivity and inhibition of creativity in problem-solving (Benn 2002).

            JP Morgan Chase’s settlement also served to assure members of the public that the bank had not broken any laws. By agreeing to continue with court proceedings and face the possibility of a conviction, the bank would be risking losing its trust and standing as one of the best banks in America. The decision to settle was the best step in light of ethics as it would ensure that any affected parties, just in case they had been wronged, would be compensated and that it would give the bank an opportunity to absolve itself of any wrong. The bank’s lawyers argued that the bank had not essentially broken any laws in its financial dealings but that the discrepancy in its operations arose due to a misinterpretation of actions.

            During the 2007-2008 financial crisis in America, many banks subsided and could barely keep themselves afloat amidst the tough economic times. The government therefore went ahead to persuade and encourage stronger, more stable financial institutions to buy the failing banks. This encouragement escalated to compulsion as in the case of JP Morgan Chase and Bear Stearns. The secretary of the treasury Hank Paulson and the New York Federal Bureau of Investigation head Tim Geithner as well as other federal agents lauded on the acquisitions of these banks by facilitating communication between the relevant parties and even in an extreme case by actually providing the money to facilitate the JP Morgan’s and Stearns’ buy-ins. These actions by state agents and representatives of the government of the United States of America are what pushed the bank to sell off some of its loans and mortgages to other financial institutions and even to the government itself. Therefore, to a greater extent, the case seems like nothing more than just an act of self-defense and protection of further financial loss as opposed to an effort to break or flaunt any rules and regulations.

Approaches to Settling the Case

The Criminal Justice system employs a sequential structure during trial and settlement. After the crime is identified and reported, an investigation is opened. If sufficient evidence is obtained, an arrest or booking is made that dictates the first appearance. The preliminary hearing determines the bailing amount or detention (Fletcher, 1996). While criminal cases will often go through the entire legal process, civil cases are often settled through monetary agreements. A dispute can be settled at any level of the suit. At the initial stage, it may be settled between the two parties even before the suit is filed. At the very initial stages, it can be settled through dialogue and agreement between the two parties. This is often the best alternative in civil cases that involves businesses and corporations (Gross, 2000). Since most of these companies rely on their brand and image, they opt to settle even before the case is made public. In the case that settlement is not achieved before the case is files, it may be carried out before the trial, during the trial, during deliberation and in some cases even after a verdict has been made.

A civil case settlement is distinctively different from a criminal case. Furthermore, it can be settled either partially or fully to cover all the areas of disagreement. Interestingly, a settlement does not determine or settle who was guilty or wrong in the situation but instead, the parties meet halfway to come up with a final decision that is beneficial to all the parties (Bradley,1993). In other cases, the government the government may intervene and decide to dismiss the case either on their analysis or with the advice of the courts. These settlements may be of monetary value or may even involve plea bargains.

In criminal cases, many resolutions are reached out of the court through party negotiations, normally as part of a plea bargaining process, a process that is widely preferred as a means of solving cases due to its impact in reducing time spent and costs incurred in a case (Fried,2012). Defendants can avoid the lengthy process and high cost of defending themselves through each hearing and completely eliminate the risk of harsh punishment or long-term sentencing. Since court cases are susceptible to the technicalities of argument and legal framework, a minor case may be propagated into huge cases especially with the involvement of the public and the media (Gupp,1999). While the defendant incurs costs of defense, the prosecutors and court also incur high costs for cases that may proceed or remain unsolved for a long time. Finally, the court does not have to separately deal with all the charges filed for a single case (Mcinnis,2001). In many cases, the multiple charges combined into one case often make the case complex and may lead to a mistrial.

Ethical Issues Matters Arising from the Monetary settlement

Since settlements and plea bargaining processes are conducted privately at every stage, there is little that is revealed about the whole process until the verdict or agreement has been reached. Even through this secrecy has been changing with the emergence of rights groups and growing calls for transparency, it still remains a widely private process. This lack of transparency of the process has greatly heightened ethical concern, thus lowering its credibility especially with the public. In addition, it raises questions on the combined operation of the corporate and judicial system to the detriment of public interest (Rotchet,2008). It is for this reason that a wide section of the public the public has lost confidence in the functions of the criminal justice system and believes that it supports unethical practices in many sectors.

This problem is further complicated by the fact that defendants are protected by confidentiality clauses. They claim this right since they prefer to avoid reputation damage and exposure (Rotchet,2008). Since the plaintiffs are rarely concentrated on public exposure, many huge cases are settled without raising any awareness. In these negotiations, lawyers are also bound by ethical considerations and their duty to their clients (O’brien,2003). Ethical considerations by the lawyers may not necessarily correspond to ethical considerations in business or particularly banking and the finance sector. Even though courts have the power to reject confidentiality clauses if it hinders public policy, it is often dismissed if it affects the settlement in its monetary capacity.

The resulting impression is that money and financial gain has been prioritized by the U.S. criminal justice system at the expense of justice and business ethics. In the case of JP Morgan, even though a settlement was reached, this does not equal the extent of damage that the stakeholders and other investment banks played in the financial crisis. In addition, the returns and profits made do not measure up to the settlement. The secrecy of these negotiations further reduces the credibility of the settlement especially when the power of these stakeholders is put into considerations. While these financial institutions will undergo localized negative publicity, the extent of their crimes and operation is not revealed.

While settlement of criminal and civil cases may be well established in developed countries, it is not particularly laid out and beneficial in developing countries which are often enveloped by complex bureaucracies. In most cases, the very defendants are the stakeholders and influencers in the legal system. This penetration of the criminal justice system has reduced its effectiveness and completely obliterated any forms of ethical prosecution and justice. In recent developments, these stakeholders will settle and then go ahead to file other lawsuits against the plaintiffs in a later period (Stuntz, 1995). With the increased power in legal protection, defendants are often prioritized at the expense of the justice system due to the focus on basic human rights.

Popularly advanced as litigation finance, research evidence continues to point out the potential and present challenges that this system poses (Weir, 1997). A particularly important research development describes litigation funding as a form of sophisticated gambling (Worshman, 1997). Without a doubt, there have been cases of people or parties who seek to gain financial grounds on this avenue even through the fabrication of evidence (Weir,1997). It is also a new form of challenge and exploitation that companies have to deal with and pay high settlement charges to consumers of their goods and services. It has proved to be extremely difficult to reduce the growth of this form of exploitation. In the same way, this raises questions on whether this will become a gamble between the stakeholders that have more money and power and the ability to benefit the most (Worshman,1997). Lastly, ethical issues arise from the fact that litigation funders seem to hold great influence over the backed cases while taking advantage by charging high rates for access to capital. An even more complex issue that tends to arise from such challenges is the merging of litigation funding with class actions. This constitutes a breach of legal ethics particularly in terms of high rates and splitting costs with other parties.

Recommendations and Suggested Remedies

The growth of litigation funding as a new branch of law and business should be closely monitored and evaluated while at this formative stage. This process has the potential of streamlining the legal process in a business context or completely blurring the lines of ethical issues in business and finance. On the positive side, monetary settlements provide a sophisticated method of solving cases as opposed to messy and scandalous trials that tend to have a greater negative influence on all the parties involved. A major drawback, though, is that the approach has the potential to bring collusion among unscrupulous networks that exist in financial institutions, business corporations and the criminal justice system in the pursuit of shared interests to the detriment of public good.

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The legislative component is essentially the most powerful and a defining process in the legal system, Furthermore, it is a branch of the government and serves to represent the goals and objectives of the government towards national prosperity. To avoid collusion, the legislative process must be completely automated and streamlined to reflect on the wellness and progress of society. Once the legislative aspect of criminal justice is improved, strengthened and made more transparent, then it will have the capacity and power to transform the judicial and penal system (Rotchet, 2008). Legal and business researchers must now more than ever before work in consultation and collaboration to develop a framework for multidisciplinary ethics that transcend theses functional and occupational barriers. This means that the new ethical model should be designed in such a way that ethical violations in one department do not cross over to ethical boundaries of another connected department (Rotchet,2008).

Executive Summary

This analysis shares the responsibility towards ethics between the legal frameworks and the financial or business sectors. The main reason behind the monetary settlement approach is due to the fact that often, blame is placed on one of the parties while both contribute to ethical concerns. The JP Morgan Chase financial settlement with the U.S. Justice Department is one that is widely recognized and understood for its link to the financial crisis of 2008. Within the context of what has been termed as one of the worst financial crisis since the Great Depression, the settlement reveals the extent of damage that a lack of ethical considerations can have especially in regards to the financial and banking sectors which form the backbone of the national and global economy (Grossman,2010).

It is now clear that the actions of banking and financial stakeholders have a direct effect on the progress of the economy. Their complex interactions with all other sectors of industry and the government ties all these components into one unit within the economic sector. As litigation practices and settlements continue to gain ground in the field of law and business ethics, it is important that best practices are developed in an environment of transparency to prevent another crash in an economy that is still struggling to recover from the 2008 crisis. As economists continue to predict of an even worse looming crash, the ethical issues arising within the framework of legal provisions and profit-driven business practices must not be neglected. Despite the lessons learned from the recent economic crisis, banks and financial corporation still appear to carry on with these same mistakes albeit masked in even more sophisticated methods. This shows that the government also needs to directly intervene in terms of regulation and control of corporate activities especially in massive investments in the real estate. Finally, personal ethics, though often undervalued, should be incorporated into training, recruitment and decision making at all levels of society, government bureaucracy, and corporate world in order to contribute to a unified and positive growth in the negotiation of monetary settlements.

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