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

II. THE RELE v ANCE OF THOMAS MORE's DILEMMA τ? THE CONTEMPORARY PRACTICE OF LAW

Perhaps a seminal issue in this discussion remains the contemporary relevance of More's dilemma of conscience. I posit that the conflict More confronted more than 450 years ago resonates with many present-day practitioners. Like Thomas More, today's lawyers bring to the practice of law personally held beliefs.134 While they may not be as theologically oriented as those of More, these beliefs nonetheless constitute strong cognitive influences on all forms of decision-making,135 including the prioritization of cases or controversies and the legal reasoning required to resolve them. The following specific examples highlight the potential impact of beliefs on decision-making: Would the lawyer who believes that abortion is morally unjust represent physicians who routinely perform abortions?136 Can the prosecutor who believes that the death penalty violates personally held beliefs associated with terminating human life, zealously prosecute someone accused of capital murder?137 Would an attorney whose beliefs are strongly rooted in religion and who regularly represents those whose civil liberties have been abridged accept as a client and zealously represent an atheist who challenges school prayer?

Dilemmas of conscience also surface in less sensational, more mundane legal situations. For example, what advice would an attorney give a major corporate client whose business practices routinely violate state and federal environmental regulations? How would an associate in a law firm respond when the partner demands she cease work on a project due to the client's failure to pay, notwithstanding the merit of the client's claim?

There are no universal answers for these rather prevalent ethical questions. The differing strengths of belief systems, together with the individualized perceptions of professional expectations, ensure differing responses from the attorneys who face these problems. Perhaps more important than answers is an appreciation of the impact of conflicting values on decision-making focused on the search for possible solutions.

A. Adherence to Conviction Versus Accommodation of the Sovereign-A Contemporary Narrative

Centemporary lawyers, at certain times during their careers confront dilemmas of conscience.138 The following narrative from and to some extent, my early years of practice not only proves the prevalence of this dilemma, but also underscores the complexity of decision-making required to resolve it.

As a lawyer in the United States Army Judge Advocate General's Corps (J.A.G. Corps.), I was assigned to the Office of the Staff Judge Advocate of the 18th Airborne Division at Fort Bragg, North Carolina. In addition to the 18th Airborne Corps, Fort Bragg also served as the host installation for the 82nd Airborne Division and the Special Forces Operation more commonly known as the Green Berets.'39 These highly specialized, combat-ready units routinely conducted exercises in wooded areas located on the installation. Dominated by pine trees and scrub growth, these wooded areas were populated by various fauna, including the endangered red-cockaded woodpecker.140