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Article Preview: Moral Courage in Indigent Defense

Why do some individuals act more ethically than others, even in similar situations? This is the question Professor Tigran Eldred explores in his article, Moral Courage in Indigent Defense. Professor Eldred narrows this question to a familiar domain from his past work, the many ethical challenges that defense lawyers are confronted with while representing indigent clients.

Professor Eldred’s article—a response to Associate Dean Catherine Gage O’Grady’s article, A Behavioral Approach to Lawyer Mistake and Apologyfocuses around the phenomenon of “moral courage,” the ability of some lawyers to act ethically in the face of pressure to the contrary. He seeks to answer why some lawyers resist the temptations against subpar performance and also offers knowledge on what can be done to encourage greater acts of moral courage by others. While Associate Dean O’Grady’s article focuses on mistake recognition and acknowledgement, Professor Eldred focuses on why people are able to act ethically despite pressures to do otherwise.

Professor Eldred begins the analysis of his article by reviewing the risks that defense lawyers face when they seek to meet their ethical duty. Defense lawyers often have excessive caseloads and few resources, which leaves them with the decision to either quickly obtain a plea agreement or ask for relief from the workload in order to provide adequate and ethical representation. Professor Eldred explains that very few lawyers request relief and he provides examples to gain a better understanding of why. A lawyer may refuse to ask for relief because of economic disincentives, fear of appearing incapable, fear of social consequences of reassignment to other lawyers, or possible retribution from the judge and court personnel. But, among these risks, some individuals choose to exhibit moral courage.

Moral courage requires that, in the face of personal risk, an individual willingly acts in defense of principle when others choose not to. Professor Eldred introduces research that has shown when an individual exhibits moral awareness, moral ownership, and moral efficacy, they are more likely to provide effective and ethical representation. Professor Eldred explores these factors that tend to increase the possibility of a display of moral courage, and discusses why in the presence of all these factors individuals still choose not to engage in moral conduct.

In the final section of his paper, Professor Eldred discusses the research implications that might be useful in considering how lawyers can meet their ethical duties to their clients. Professor Eldred states that in light of defense attorneys’ reluctance to seek caseload reductions, it is necessary to find ways to train defenders on how to develop the necessary fortitude to counteract the demands that produce unethical behavior. Professor Eldred suggests the development of the training programs that focus on the factors necessary for effective representation: moral awareness, moral ownership, moral efficacy, and moral courage. Professor Eldred explains that training is a necessary component in order to nurture moral courage and ultimately provide effective ethical representation.

Professor Eldred’s Article will appear in Volume 51, Issue 1 of the New England Law Review.

Contributing Editor: Ashley Peel

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