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Published online by Cambridge University Press: 23 January 2015
“Moral Commitment and the Ethical Attorney” by Thomas M. Jones provides an interesting approach to discourse on ethical issues. By combining the studies of psychologists with those of an economist, the author has made a valuable contribution to the developing field of business ethics. The theories of cognitive moral development advanced by Piaget, Kohlberg, Gilligan, and others blend well and are illuminated by the behavioral options suggested by Hirschman from the field of economics. The options of “exit, voice, and loyalty” appear to be useful as tools for an attorney when determining appropriate moral behavior in difficult situations. The author makes a well-reasoned, strong argument that voice ought to be the preferred option or at least the encouraged option for attorneys faced with moral tension between the legal rules whether found in the legal profession itself or outlined in the Rules of Professional Conduct. The author's approach has emphasized the importance of drawing upon a variety of disciplines to shed light upon the processes of ethical decision making.
1 Rena, A. Gorlin, ed., Codes of Professional Responsibility, 2nd ed., Bureau of National Affairs, Inc., 1990.Google Scholar
2 The American Bar Association Model Rules of Professional Conduct, the American College of Trial Lawyers Code of Trial Conduct, the Federal Bar Association of Professional Ethics, and the National District Attorneys Association National Prosecution Standards. Other codes are applicable to many attorneys depending upon their area of specialization. These would include, for example, the standards set forth by the American Arbitration Association as well as the American League of Lobbyists Guidelines for Professional Conduct. Ibid.
3 Indeed, the statistics quoted by the author from Rest would suggest as much.
4 Anne, Colby and Lawrence, Kohlberg, The Measurement of Moral Judgment, vol 1, 1987, Table 1.1, p. 17–18.Google Scholar
5 In Professor Jones's footnote 4, he distinguishes moral tension from moral ambiguity. His distinction is not clear because the examples offered suggest that moral tension is caused by the need to decide whether or not to break the rules in a given case. I would argue that this is not moral tension but moral ambiguity. The problem is caused not because the moral agent has a clear sense of moral correctness which is impeded by circustances but because of the conflict between competing principles. Professor Jones describes competing beliefs of moral correctness as moral ambiguity. It can be argued that dilemma posed in a decision to break the rules brings competing principles into conflict. The need to support codes of professional responsibility is based upon a universal principle of justice which requires that there not be differing results in similar situations. This principle may be in conflit with other universal principles, such as the equality of human rights or respect for human dignity. The actor struggling with whether or not to break the rules is in fact struggling with these competing principles.
Moral tension is perhaps more correctly understood by reading “Women Lawyers: Archetype and Alternatives,” by Dana, Jack and Rand, Jack, in Carol, Gilligan, et. al., Mapping the Moral Domain: A Contribution of Women's Thinking to Psychological Theory and Education, Harvard University Press, 1988.Google Scholar The article deals with the tension created for women entering the legal profession who “bring with them a moral orientation which is in tension with the presuppositions of that system.” p. 263. The moral tension experienced by women is not just a matter of whether to break the rules to serve another fundamental moral principle but whether an individual's approach to life in general is in conflict with a system which has been created out of a different set of approaches.
6 A. Colby, op. cit. note 4.
7 Ibid.
8 Ibid. at p. 22.
9 R. Gorlin, op. cit., note 1, p. 336.