Q. You recently stated that selling and providing advice should be strictly separated. How does this apply to professionals?
A. In a recent column, I explained that a salesperson doesn’t have to be objective. On the contrary, his or her job is to be an honest but partial advocate for the benefits of the product being sold. The consumer in turn is the judge, who makes an informed judgment after hearing the arguments from all sides, that is, all the businesses competing for the purchaser’s spending.

Conversely, an advisor must be completely objective. His or her job is to advance the interests of the client, not to manipulate them. For this reason I condemned “in-house” financial advisors whose real job is not to advise the client but rather to sell to him.

One reader pointed out that this advice is not easily applied to professionals. The nature of the professions is that the expert provides both advice and service. A dentist diagnoses a cavity and also fills the tooth; an auto mechanic diagnoses the source of problems and repairs it, and so on.

While it is true that a professional both advises and sells, I think that his or her primary responsibility is providing impartial advice. During the advice stage, the professional is required to give counsel based solely on the best interest of the client. The average person is simply not in a position to play judge on whether or not he has a cavity, or a faulty carburetor, etc. Thus, he is totally reliant on the judgment of the professional.

Just as the average person is unable to judge whether or not he needs an operation, he is unable to evaluate the expertise of the professional he consults. This is one reason that professions almost always have professional societies which impose standards of conduct and of expertise among members. Jewish law encourages the formation of societies of this nature, and gives members of a trade the power to make binding restrictions on who is qualified to practice their trade and to regulate practice. In order to prevent these regulations from being anti-competitive, they are subject to the oversight of a local authority. (1) Membership in such a society or guild gives the client confidence that the professional is truly qualified to dispense impartial advice and is subject to some disciplinary process which can penalize him for acting in an unprofessional way.

Another way in which Jewish law gives special recognition of the expertise of trained professionals is giving them a partial exemption for advice which turns out to be ill-advised. An untrained individual is liable for giving bad advice, but Jewish law considers that a person with recognized professional credentials has the ability to exercise professional judgment, and that his or her “mistakes” are probably merely a regrettable case where problems could not have been foreseen. (2)

In many cases, sticking to giving impartial advice will keep a professional from any kind of conflict of interest. The client is provided with all the information needed to make an informed decision, based on the expert judgment of the professional. There is no scope left for advocacy. We would not expect a heart surgeon to explain to a patient that he has a choice between bypass surgery and a stent, and then add that there is a special sale on stents for one week only.

But we must admit that sometimes professional practices do include many discretionary items which the professional may want to market. For example, dentists routinely carry out purely cosmetic procedures such as whitening. This is acceptable as long as the professional clearly explains to the patient where the line is drawn. It’s best if any “marketing” aspect of the interaction is left to a completely different part of the visit. For example, a dentist will first examine a patient and explain any dental work called for based on accepted professional standards. After the consultation is completed, the dentist can say, “By the way, you may also be interested in cosmetic dentistry treatments my practice can offer.” A garage mechanic can finish explaining any necessary repairs, and add “By the way, we have a sale on tires.” It should be made clear to the client that at this stage the professional/consultation stage is over, and that the professional is now putting on a new hat, that of salesperson.

The underlying principle, that it is forbidden to mix advice and salesmanship, applies equally to a salesperson, a consultant, and a professional. A salesperson and a consultant can easily avoid the problem by limiting their repertoire to one of these roles. Professionals inherently have a conflict of interest, because they advise their clients on services that they provide. But the presence of a conflict of interest doesn’t mean that the professional will give self-serving advice. Adequate training, a commitment to impartiality and a clear distinction between advice and selling will enable a professional to fulfill all aspects of his job with ethical excellence.

SOURCES: (1) Shulchan Arukh Choshen Mishpat 331:28 (2) Shulchan Arukh Choshen Mishpat 306

Q. My son is pretty quick, and his little league coach has been encouraging him to steal bases. I’m worried that this is improper behavior. A player deserves to advance if he earns it through a hit, or if the defense forfeits a base through an error. But is it really ethical to steal a base? We always try to discourage our children from stealing. TC

Rabbi Dr. Asher Meir, The Jewish Ethicist responds.
A. Your query is most appropriate, for Jewish law definitely differs from secular law in its approach to ownership, particularly in the area of real estate. While every legal system has to balance strict justice with a degree of expediency, Jewish law tends more to the strict protection of property rights.

For example, in secular law we have the doctrine of “adverse possession,” whereby someone obtains valid title to real estate merely by virtue of extended and unchallenged possession. But in Jewish law, such possession confers title against a previous owner only if accompanied by a credible claim to legitimate purchase. A known squatter can never wrest ownership from a true title owner. So it sounds as though stealing bases could be a serious problem.

However, when we examine this issue more carefully we see that this distinction is valid only if the previous owner himself possesses clear evidence of ownership. Otherwise, Jewish law affirms that mere possession may in fact create certain rights. Indeed, in some cases where neither side has convincing evidence of title, then Jewish law explicitly recognizes that “might makes right” (kol de’alim gevar).

This is obviously the case regarding the bases in a baseball match. While the defending team carefully tries to prevent the offense from obtaining possession of the bases, they certainly have no valid title to these coveted lots. After all, the ostensible control of the bases changes at least twice each inning.

An additional lenient consideration is that since stealing bases is accepted in custom and in the rulebook, and the defending team wants the ability to steal bases when they are at bat, they presumably waive any legal right they might have to prevent stealing. Jewish law contains many instances where a fundamental legal right may be considered waived if it is clearly in the interest of all sides to suspend it.

So in this case Jewish tradition affirms the practice accepted in secular jurisprudence, and it is perfectly ethical and appropriate to steal bases in accordance with the rules of the game. Your boy’s coach is to be praised for encouraging his ability. Just make sure that your youngster shows good sportsmanship and doesn’t spike or otherwise rough the infielders. SOURCES: Babylonian Talmud, Bava Batra, third chapter.

Q. Is it ethical for pro athletes to use performance-enhancing drugs and treatments? Rabbi Dr. Asher Meir, The Jewish Ethicist responds.
A. Before we relate specifically to hormones and the like, we need to clarify the Jewish attitude towards sports in general. At first glance, the various Jewish sources on competitive sports seem like a confusing mix of attitudes. However, a more thoughtful look will enable us to see that there is actually a remarkably consistent point of view.

Some sources make sports sound very positive. For example, the Shulchan Arukh (the authoritative Code of Jewish Law) states that even though running and haste are usually forbidden on Shabbat, which is a day of rest, “youngsters who delight in jumping and running” may do so, as this is a fulfillment of the commandment to make the Sabbath a delight. Likewise it is permissible to play ball. (1)

Yet the Jerusalem Talmud tells us that at the time of the rebellion against the Romans, a particular town was judged for destruction partially because the residents used to play ball! (2) And in another place the Talmud identifies the Roman athletic games as the “seat of the scoffers” mentioned in the Psalms (1:1). (3)

The resolution of this paradox is very simple. Sports and games are a positive thing, sometimes even a mitzvah when they are an occasional recreation for enjoyment and health. Note that the Shulchan Arukh refers to youngsters who delight in their activity. A healthy mind and spirit thrive in a healthy and happy body.

But when a mere game becomes an obsession or a way of life, it becomes an obstacle to the life of the spirit. The commentators explain that ball-players were condemned because they came to neglect Torah study. And the games of the Romans were not merely a pastime; they were elevated to a social ideal, and bloodshed of animals and even of people was permitted in the name of “sport”.

The clear conclusion is that participating in sports is preferable to viewing them, and that professional sports leagues are especially problematic. But I don’t deny that even professional sports can remain fun games, if they are clean and sportsmanlike and the athletes keep in mind that after all it is only a game.

However, when participants begin to experiment with potentially dangerous substances in order to improve their performance, it’s clear that the attitude towards sport has moved beyond fun and games. Baseball is no more fun and absorbing today than it was two generations ago, before steroids were widespread. The enjoyment of sport is in a fair and sportsmanlike competition among athletes who are trying above all to get the most out of their individual God-given ability. By the same token, women’s sports are no less interesting (and no less profitable) than men’s sports, even though women are not generally able to compete against men.

I can’t condemn an individual athlete who uses treatments in a legal way to improve performance; professional athletes, like everybody else, need to make a living. But I do condemn a system which often distorts the meaning of sport, turning it from a healthy and enjoyable pastime into a potentially damaging and competitive obsession.

Strict anti-doping rules, strictly enforced, will make athletics more fun and healthful for body and soul, and for participants and spectators alike.

SOURCE: (1) Shulchan Arukh Orach Chaim 301:2, 308:45. (2) Yerushalmi Taanit 4:5; see also Eikhah Rabba on Eikhah 2:2. (3) Babylonian Talmud Avodah Zarah 18b.

New Year: Time for Spiritual Accounting
What the world of business can teach us about our annual process of repentance and renewal.
Usually this column is devoted to taking messages from the world of Jewish tradition and applying them to the world of economic life. This New Year I want to go in the opposite direction, and see what the world of business can teach us about our annual process of repentance and renewal.

I can point to ancient precedents for this application. For example, the Zohar exhorts us to be accountants, mari dechushbana, and make a periodic accounting of our acts. Like accountants, we should make an ongoing accounting of our “credits and debits”, our good and bad deeds. But accountants go beyond making ongoing ledger entries; once a year they “close the books”, making a final accounting and summary of the year’s activity.

Likewise, as Rosh Hashanah approaches we should all make a careful evaluation of our deeds during the year 5765, and at what spiritual level they leave us. We should be careful to do our work carefully, as on Rosh Hashanah our books will undergo a thorough audit!

Another business practice universal among serious firms is the formulation of an annual budget. A person, like a business, has limited resources; our energy and attention may be great but they are not inexhaustible. Each of us can benefit from a clear definition of our “business objectives”, what we are trying to achieve personally in the coming year, and from translating these objectives into a more detailed plan of how we could use our energies more productively.

Although virtually every firm makes an annual budget, there are two different approaches. Many firms build each year’s budget on the basis of the previous year’s; the old budget is the benchmark, but modifications are made for changing circumstances. But every so often there is a need to build the budget from the ground up, to re-evaluate each expenditure item and completely reorient the business.

This too is a useful metaphor for our annual process of taking stock of the past and applying its lessons to the future during the High Holy Days. It’s only natural that we can’t reinvent ourselves each year, and so typically our resolutions involve token adjustments to the autopilot: perhaps to do more to control our anger, perhaps to devote a bit more time to helping others, and so on.

But every so often it’s desirable to rebuild our future from the ground up, to reflect on what we really want to achieve with our lives and how we should go about pursuing our goals. This doesn’t necessarily imply a revolution in our way of life; businesses and government which re-budget seldom completely transform their practices. Most of us have good reasons for our habits and way of life, and a thorough examination wouldn’t cause any disruptive changes.

But such an examination is still of immense value. A few people will decide that they have reached a critical juncture and need a thorough renewal of their way of life. Most of us will conclude that on the whole our conduct conforms to our values, but that there are still significant aspects of our lives which need reevaluation and change. We may discover that much of our conduct is never really subject to careful scrutiny, and plenty of our precious resources are squandered in activities of questionable value.

Even if we decide to continue just as we were, we will do so with renewed energy and motivation, armed with the awareness that our daily routine is not imposed on us by others or by habit, but rather is the outcome of a process of conscious choice.

Let’s make this the year we get ourselves off of ethical autopilot and take control of our lives, trying to make sure that every expenditure really conforms with our goals and values.

Shanah tovah.