Document Type
Article
Publication Date
Fall 2016
ISSN
0028-4823
Publisher
New England School of Law
Language
en-US
Abstract
In this essay, I take a different perspective, one that focuses on why people are able to act ethically despite pressures to do otherwise. Social science has convincingly demonstrated that the power of the situation can exert significant influence over individual behavior, thus undermining the claim that only “bad” people engage in unethical conduct.4 Yet, we know that there are individual differences to how people respond to ethical dilemmas, which raises a core question: why do some individuals act more ethically than others, even in similar situations?
To explore this question, I focus on a familiar domain from my past work—the well-known ethical challenges faced by defense lawyers who represent indigent clients in criminal cases.5 On the one hand, these defenders often work under extremely trying conditions, including persistent underfunding, excessive caseloads, and heavy pressure from judges who want to move cases quickly.6 On the other hand, none of these factors absolve lawyers from their ethical duty to provide competent, diligent, and conflict-free representation to each client.7 Much of the scholarship on indigent defense, including my own, has focused on mediating these competing forces, which often turns into a discussion on why professional obligations are honored so often only in the breach.
...That said, the purpose here is to look beyond anecdotes of individual cases to see whether a more systematic answer can be gleaned from the available social science on why people, such as Brian Jones, tend to act ethically in the face of pressure to the contrary. The phenomenon, which is often called “moral courage,” has been the subject of growing academic study.15 And while the research conclusions in this area are still preliminary, the early findings can be useful when considering why some lawyers resist the temptations against subpar performance, and what can be done to encourage greater acts of moral courage by others.
To engage this inquiry, this essay proceeds in three parts. Part I briefly reviews the types of risks that defense lawyers often face when they seek to meet their ethical duties, focusing on how the duty to maintain manageable caseloads conflicts with the realities facing most defense lawyers who represent the poor. Part II turns to the current state of the research on moral courage. Part III considers the research implications that might be the most useful in considering how lawyers can meet their ethical duties to their clients.
Recommended Citation
Tigran W. Eldred,
Moral Courage in Indigent Defense
,
51
New England Law Review
97
(2016).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4149
Included in
Law and Psychology Commons, Legal Ethics and Professional Responsibility Commons, Legal Profession Commons
