LESSONS FROM THOMAS MORE'S DILEMMA OF CONSCIENCE: RECONCILING THE CLASH BETWEEN A LAWYER'S BELIEFS AND PROFESSIONAL EXPECTATIONS

St. John's Law Review, Fall 2004 by Morant, Blake D

Military exercises, which usually included artillery fire and the sizeable movement of personnel and materiel in wooded areas of the installation, disturbed the red-cockaded woodpecker's habitat. This development became my first, and perhaps most polemic, assignment as a licensed attorney: Determine whether commanders, pursuant to military141 and federal regulations,142 had a legal duty to modify training procedures in order to secure the habitat of the red-cockaded woodpecker.

While my assignment lacked the dramatic urgency of Thomas More's consideration of King Henry VIII's proclamations,143 it did pose strikingly similar ethical issues. I was acutely aware that post commanders, who also were my superior officers, would have been chagrined by a suggestion to interrupt or modify training operations, irrespective of reasons related to environmental concerns. Like Thomas More, who perhaps knew that refusal to endorse Henry VIII's proclamations might lead to reprisal,144 I perceived that command displeasure with a legal opinion that insisted upon a change in operations could have adversely impacted my military career. Also similar to More, my personal beliefs influenced, to some degree, my approach to decision-making. Aside from the belief that rare living species must be preserved,145 I firmly respected the rule of law.146 Although that cognition might not have matched More's depth of fervently held personal beliefs,147 it nonetheless, remained an indelible and dominant factor in my review of subsequent legal matters. I was, thus, confronted with a dilemma similar in character-if not in scope or import-to that of Thomas More: Should I review this matter with the intent to fulfill the expectations of post commanders, or render an objective legal opinion without regard to these expectations and the possible consequences?

Unlike Thomas More's dilemma of conscience, however, the conflict of values I confronted did not carry life-threatening consequences. Yet the eventual legal opinion's potential impact on my career factored heavily in my decision-making.

Applicable federal and military regulations, which can be characterized as positive law,148 compelled an objective evaluation of the legal controversy.149 The expectations of post commanders, however, loomed as a powerful constraint on objectivity.150 The language of regulations, both military and federal, appeared to limit actions that adversely impacted endangered species.151 Operations that directly impinged on the habitat of threatened species such as the red-cockaded woodpecker required modification, if not termination.152 These legal rules and my belief in the rule of law initially dominated my decision-making. The resultant draft opinion advised commanders to find alternative sites for various military operations. Knowledge of the post commanders' expectations, and the possible repercussions from a legal opinion that frustrated those expectations, prompted my closer scrutiny of the opinion's first draft.