Lawyers in the Moral Maze

Mark Sargent
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Mark Sargent: Villanova University School of Law

Villanova University Legal Working Paper Series from Villanova University School of Law

Abstract: This article overviews the various forms of lawyer complicity in illegal or immoral behavior by corporate managers in the corporate scandals of the last three years, but focuses primarily on the question of why lawyers so often seemed willing to engage in or ignore behavior that presumably violated their own personal moral codes (whether religious or secular) as well as their professional role morality. The article draws on Robert Jackall's Moral Mazes (1988) for an answer derived from the sociology of corporate bureaucracies. Jackall's case studies of corporate managers found that managers adhered to the moral "rules-in-use" developed in their social setting to facilitate their own survival and success. These rules emphasized an ethos of unrelenting pragmatism, flexibility and cynicism that placed great weight on group loyalty. By adopting their social setting's actual moral rules-in-use, managers tended to bracket other moral considerations, removing such considerations as a potential obstacle to illegal or immoral behavior. Applying Jackall's concept of socially-defined moral rules-in-use to corporate in-house counsel and lawyers in large firms, the article concludes that the social settings in which lawyers operate can produce a similar bracketing of moral concerns and, even more important, the type of professional role morality that should check managerial wrongdoing. The potential impact of the SEC's new professional standards for lawyers is assessed pessimistically in light of this phenomenon.

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