A question of ethics

Question

Between 1970 and 1981, Sanford Weill served as the chief executive officer (CEO) of Shearson Loeb Rhodes and several of its predecessor entities (collectively "Shearson"). In 1981, Weill sold his controlling interest in Shearson to the American Express Co, and between 1981 and 1985, he served as president of that firm. In 1985, Weill developed an interest in becoming CEO for BankAmerica and secured a commitment from Shearson to invest $1 billion in BankAmerica if he was successful in his negotiations with that firm. In early 1986, Weill met with BankAmerica directors several times, but these contacts were not disclosed publicly until February 20, 1986, when BankAmerica announced that Weill had sought to become its CEO but that BankAmerica was not interested in his offer. The day after the announcement, BankAmerica stock traded at prices higher than the prices at which it had traded during the five weeks preceding the announcement. Weill had discussed his efforts to become CEO of BankAmerica with his wife, who had discussed the information with her psychiatrist, Dr. Willis, prior to BankAmerica's public announcement of February 20. She had also told Dr. Willis about Shearson's decision to invest in BankAmerica if Weill succeeded in becoming its CEO. Willis disclosed to his broker this material, confidential information and purchased BankAmerica common stock. After BankAmerica's public announcement and the subsequent increase in the price of its stock, Willis sold his shares and realized a profit of approximately $27,500. The court held that Willis was liable for insider trading under the misappropriation theory.

Answer 1

A QUESTION OF ETHICS
1. One cannot escape the suspicion that Willis realized that his use of the inside in-formation was, at a minimum, unethical. More than perhaps any other members of the medical profession, psychiatrists, due to the nature of their profession, have a duty to hold information communicated to them by clients in the strictest confidence. Furthermore, one in Willis's posi-tion could not help but know that the information imported by Weill was sensitive, even though Mrs. Weill did not label the information "confidential" when she discussed it with him. In short, given both the nature of the relationship between Weill and Willis and the nature of the infor-mation being imparted by Weill, most people would likely conclude that Willis had an ethical duty to his client, Weill, to keep the information confidential.
The second part of this question involves whether Willis breached that duty by acting on the information to gain a personal advantage. The court concluded that he had. From a purely ethical point of view, even though Willis had not "noised abroad" the information, he did reveal it to a third party—his stockbroker. That act alone constituted a breach of his ethical duty to keep the information confidential.
2. It would seem unlikely that Willis's individual investment, in itself, would be harmful to Weill's interests. It is conceivable, however, that even by telling just one other person—the stockbroker—Willis might have caused Weill's husband and/or BankAmerica to eventually learn (because the stockbroker could have informed others) that Weill had "leaked" the information, which would be harmful to Weill's reputation and her husband's stature. Certainly, if Weill ever learned that the inside information reached a third party, her relationship with Willis would be strained and possibly terminated, and this could cause her to lose the benefits of that relationship. The key question here is whether harm to a client's interests is required for a professional's disclosure of confidential information to be deemed unethical behavior. In addressing this question, you need to consider the reason why certain professionals are charged with a duty to keep client communications confidential. That reason is, of course, to protect the client's interests. The minute confidential information is disclosed to a third party, its confidentiality is jeopardized because further disclosure is beyond the control of the professional.
3. One could simply argue that it would be basically unfair to allow other persons—simply because they have no direct duty to the shareholders of the company whose stock is being traded—to derive a personal benefit by trading on information that was wrongfully obtained ("misappropriated") in the first place.