Eric D. Raile
Montana State University
Building Ethical Capital: Perceptions of Ethical Climate
in the Public Sector
This article examines influences on public servant perceptions of ethical climate in the public sector. The array of
beneficial outcomes produced by perceptions of a positive
ethical climate, the existence of government programs
aimed at improving ethical climate, and implications
for government accountability and trustworthiness all
argue for a better understanding of the sources of these
perceptions. Empirical analyses of survey responses from
employees of the U.S. federal executive branch show that
individuals in leadership positions perceive the ethical
climate more positively. Conversely, work tenure tends to
worsen perceived ethical climate, although supervisory
status attenuates this negative effect. Ethics training,
interaction with ethics officials, and perceived knowledge
about ethics topics consistently influence perceptions of
ethical climate and advice-seeking behavior in a positive
way. A set of results related to advice-seeking behavior
serves to reinforce the important role of ethics officials.
ethical climate in the public sector. The more specific
task is to advance the “fragmented” and “underresearched” literature (Martin and Cullen 2006, 179)
on the origins of perceptions of ethical climate. Doing
so helps answer one of Cooper’s four big questions for
public administration ethics: “How can organizations
be designed to be supportive of ethical conduct?”
(2004, 404). This project also tests assumptions that
undergird international anticorruption agreements
and government ethics programs.
Eric D. Raile is assistant visiting professor
in the Department of Political Science at
Montana State University–Bozeman. His
research agenda on government accountability includes examination of topics such
as public ethics, mechanisms for preventing
corruption, institutional sources of corruption, and public perceptions of corruption.
His work has been presented to multilateral
organizations such as the Asia-Pacific
Economic Cooperation, the Organisation for
Economic Co-operation and Development,
and the World Bank.
E-mail: eric.raile@montana.edu
The next section provides a review and theoretical discussion of the ethical climate concept. A brief discussion of international anticorruption agreements and
government ethics programs follows. After specifying
hypotheses and discussing the data and methods, the
article presents the results of empirical analyses and
discusses implications for governance.
T
Overall, the results of the analyses show that percephe extent to which a democratic government
tions of ethical climate in the public sector are a
meets the goals of serving the citizenry and
function of an employee’s place within and history
improving the general welfare depends in
with the organization, perceived knowledge about
part on the attitudes and behaviors of public employethics, perceptions and characteristics of ethics trainees. Considerable research in the business literature
ing, and perceptions and behavior related to seeking
and more limited research in public administration
formal advice about ethics matters. Importantly, these
has detailed how perceptions of a positive “ethical
results suggest that public servant perceptions of ethiclimate” influence other attitudes and behaviors in a
cal climate have predictable sources and, as a consepositive way. Perceptions of a positive ethical climate
quence, public administrators can help shape those
create an intangible reservoir that facilitates a variety
perceptions.
of productive interactions and outcomes. In this way,
these perceptions function similarly to “social capital”
(Portes 1998; Putnam 2000), which is a nonmonetary Ethical Climate
The distinction between organizational “culture”
form of capital that stems from the way “involveand “climate” remains subject to some ambiguity,
ment and participation in groups can have positive
but certain fundamental differences emerge in the
consequences for the individual and the community”
literature (see Denison 1996). Researchers tend to
(Portes 1998, 2). In this case “ethical capital” accrues,
discuss organizational cultures
at least in part, from more
as fairly stable, values-based,
positive perceptions of ethical
This project aims to address
organization-specific outcomes
climate on the part of public
the general paucity of research
of symbolic interaction between
servants.
individuals and environments,
on ethical climate in the public
This project aims to address the
while organizational or “work”
sector.
general paucity of research on
climates are more temporary,
Public Administration Review,
Vol. 73, Iss. 2, pp. 253–262. © 2012 by
The American Society for Public Administration.
DOI: 10.111/j.1540-6210.2012.02649.x.
Building Ethical Capital: Perceptions of Ethical Climate in the Public Sector 253
better defined, easier to measure, and more controllable (Denison
1996; Eisenberg and Riley 2001; Reichers and Schneider 1990).
According to some theorists, climate is a feature of individual–
organization dyads that is rather generalizable across organizations
(see discussion in Denison 1996). Further, climate must relate to
particular content, thereby improving precision and enhancing
predictability, and must involve collective or global perceptions
about the organizational environment (Kozlowski and Klein 2000;
Poole 1985; Schneider and Reichers 1983; Vashdi, Vigoda-Gadot,
and Shlomi 2012). Each climate, then, might represent a specific
“dimension” of the organizational culture (Denison 1996). Because
climate is inherently a group-level phenomenon, individual-level
measures are more properly termed “psychological climate” or
“perceptions” of climate (James and Jones 1974; Parker et al. 2003).
These perceptions may deviate from the formal policies of an
organization meant to address a particular workplace dimension,
but the perceptions remain important, as they influence many other
individual and organizational phenomena.
Ethical climate is one specific type of work climate. The construct
of “ethical climate” or “ethical work climate” has taken a few related
forms in the literature. The common threads running through these
definitions are the notions (1) that ethical climate involves shared
perceptions of group norms related to organizational policies, procedures, and practices and (2) that these norms deal with distinctions
between right and wrong behavior (i.e., ethics) within the organization (see Martin and Cullen 2006; Victor and Cullen 1988).
Considerable research on the private sector has detailed how ethical climate and perceived ethical climate contribute to a variety of
important organizational and individual outcomes (see summaries in Martin and Cullen 2006; O’Fallon and Butterfield 2005).
Such outcomes include ethical decision making and behavior (e.g.,
Martin and Cullen 2006; Peterson 2002; Treviño, Butterfield, and
McCabe 1998; Vardi 2001; Weber, Kurke, and Pentico 2003) and
organizational success in responding to ethical issues (Bartels et al.
1998). Yet other work has linked perceptions of ethical climate to
attitudes such as organizational commitment and job satisfaction
(see Martin and Cullen 2006), to psychological contracts (Barnett
and Schubert 2002), and to moral awareness (VanSandt, Shepard,
and Zappe 2006).
The results of more limited research on public organizations largely
fit with these private sector findings. For example, employee behavior that reflects the use of an organization’s ethics code is based on a
perception that others use the code (Ashkanasy, Falkus, and Callan
2000); this perception would be an element of perceived ethical
climate. A stronger ethical climate can also lessen managers’ perceptions of wrongdoing in the organization (e.g., Menzel 1995), while
ethics “stress” (i.e., the mismatch between individual ethics beliefs
and perceptions of prevailing ethical norms) is associated with lower
job satisfaction and greater perceptions that employee turnover is a
problem (Menzel 1996). Recent work also suggests that the influence of climate perceptions on the performance of public organizations may be mediated by perceptions of organizational politics
(Vashdi, Vigoda-Gadot, and Shlomi 2012).
The findings of the few studies that directly compare the public and
private sectors suggest that public managers tend to be less positive
254
Public Administration Review • March | April 2013
about the ethical climates of their organizations (Wittmer and
Coursey 1996) and tend to see their organizations as more “political” (Vigoda-Gadot and Kapun 2005) when researchers do the comparing. However, one also must entertain the possibility that ethical
sensitivity is greater in the public sector. Public managers almost
unanimously reject the direct claim that government morality is
lower than business morality in the United States (Bowman 1990;
Bowman and Knox 2008).
Some researchers have examined factors that contribute to differing types or individual perceptions of ethical climate. Among the
relevant factors observed for the private sector are external organization context, organizational form, and managerial orientations (see
Martin and Cullen 2006). The latter includes features such as the
moral development of leaders (Schminke, Ambrose, and Neubaum
2005) and supervisor encouragement of ethical behavior (Miller
et al. 2005). Based on public sector survey responses, a recent study
makes some mention of ethics training and counseling and the
existence and use of an ethics code as contributing to a more positive ethical climate (Bowman and Knox 2008).
Though more must be done to establish linkages directly, research
also suggests that improved perceptions of ethical climate among
public sector employees might improve mass views of governance.
Improved mass views might result from better government performance and/or more positive discussions of government ethics in social
networks. Consequently, if public servant perceptions of ethical
climate have predictable sources, administrators might also have the
means to indirectly improve mass views of governance.
Though evidence of a direct link between broader government
performance and mass trust is weak (see Dalton 2005; Norris
2011; Van de Walle and Bouckaert 2003; Van Ryzin 2011; Yang
and Holzer 2006), some authors have pointed toward citizen use
of less burdensome heuristics in evaluating government (e.g., James
2011; Thomas 1998). For example, citizens might more easily assess
certain elements of the government process (Van Ryzin 2011),
including procedural justice (Yang and Holzer 2006) and fairness
and honesty in administration (Kim 2005; Van Ryzin 2011). In
sum, specific elements of government performance such as ethical
behavior (itself affected by perceptions of ethical climate) may influence mass trust in government.
A second potential route fits with the recommendation that
researchers examine the role of government employees in shaping
public attitudes (Kim 2005). Public servants have lives and social
networks outside the workplace, and these external connections or
“citizen–citizen interactions” (Van de Walle and Bouckaert 2003)
should affect how members of the general public evaluate the
bureaucracy. Public servants are likely viewed as highly credible
sources when discussing their perceptions of public administration,
and source credibility is central to message persuasiveness (Lupia
and McCubbins 1998).
Government Programs
The previously cited research supports the common wisdom that
ethical climate affects a range of attitudes and behaviors critical for
effective governance, including ethical decision making. The outward manifestations of a positive ethical climate may also enhance
Employee Characteristics
the reputation and credibility of government,
The outward manifestations of
Previous research has shown that an employa significant asset in itself. Consequently, govee’s place in the organizational structure or
ernments have adopted programs geared, at
a positive ethical climate may
least in part, toward producing more positive
also enhance the reputation and hierarchy matters for ethics perceptions. One
potential explanation is that self-perception
ethical climates, including ethics training and
credibility of government, a
biases combine with the climate-establishing
counseling programs. Many state and local
significant asset in itself.
role of leaders to produce these differing
government ethics organizations in the United
perceptions. Individuals tend to assume that
States have strengthened and expanded their
they are more ethical than others (Bazerman and Tenbrunsel 2011;
programs for ethics training (see Bowman and Knox 2008) and
Bowman and Knox 2008), especially compared to individuals or
counseling in recent years. Such expansions have been part of a
broader push to help employees avoid problems and to prevent mis- suborganizations perceived as more “distant” (Fredrickson and
Fredrickson 1995; Menzel 1995). Additionally, individuals in leadconduct. Yet governments have made assumptions about program
ership positions play a greater role in influencing the ethical climate
effectiveness, as very little systematic empirical evidence exists.
in that they set the ethical “tone,” serve as visible models for behavior, and establish formal ethics program elements for the organizaInternational anticorruption agreements also have encouraged such
tion (Beeri et al., 2012; Treviño 1990; Treviño, Weaver, and Brown
training and counseling programs. Appendix A lists relevant provi2008). Consequently, individuals in higher positions may believe
sions of international anticorruption agreements and other multithat their self-assessed superior ethics permeate to the rest of the
lateral documents. Peer review mechanisms to promote fulfillment
organization. More positive views of ethical climate may also result
of agreement obligations have provided further impetus for training
from managers’ need to protect the organization’s image and their
programs. For example, the mechanism for the Inter-American
own identity (Treviño, Weaver, and Brown 2008) or from managConvention against Corruption has made standard training recommendations in each review round and has emphasized the usefulness ers better noticing relevant information based on higher discretion
and beliefs about efficacy (see Sutcliffe 2001). Conversely, percepof counseling in preventing corruption.
tions of the rank and file may be more negative because they view
higher-ups as less ethical than themselves, though particular disdain
The U.S. Office of Government Ethics (OGE) is responsible for
is reserved for elected officials and political appointees (Bowman
helping executive branch employees of the national-level governand Knox 2008; Menzel 1995). Studies looking directly at the issue
ment avoid conflicts of interest. Although individual agencies may
develop certain supplemental standards, OGE provides branch-wide of managerial status and perceptions of ethical climate in the private
direction with a detailed set of regulations (5 C.F.R. Part 2635) that sector find more positive perceptions among managers (Treviño,
establishes the standards of ethical conduct. OGE also provides edu- Weaver, and Brown 2008; Vardi 2001).
cation and training and counseling resources to ethics officials, who
Also relevant here are concepts such as “alienation” and “anomie,”
are then primarily responsible for disseminating such information
which deal with powerlessness, meaninglessness, and perceived
within their particular agencies. For example, OGE requires that all
normlessness (Seeman 1983). Substantial literatures have linked
new employees in the executive branch receive an ethics orientation
“locus of control” (Spector et al. 2002) or “self-efficacy” (Bandura
and that certain categories of employees receive annual ethics training (see 5 C.F.R. Part 2638, Subpart G). As such, OGE is one of the 1982) to an array of attitudes in the workplace. The basic idea is
that an individual who believes that he or she has some control over
main organizations in the United States fulfilling the provisions of
what happens is likely to have a more positive set of attitudes and a
the international agreements just discussed.
more effective set of coping strategies. Additionally, the normlessness of anomie (Cohen 1993) can be the result of an individual’s
Why would ethics training and counseling not improve perceptions
inability to see norms or a lack of attention to information about
of ethical climate? One might ask the same about ethical codes of
norms. Lower-level employees have reason to believe that they have
conduct. However, research on the helpfulness of codes has suplesser control over the workplace; they may
plied mixed results (see Ashkanasy, Falkus,
also perceive greater normlessness because of
and Callan 2000; James 2000), although
Emphasis on ethical rules can
communication and information patterns.
public employees have increasingly seen
be viewed as condescension
codes as effective (Bowman and Knox 2008).
or hypocrisy, particularly if
Hypothesis 1: Public servants in leaderEmphasis on ethical rules can be viewed as
ship positions will have more positive
condescension or hypocrisy, particularly if
employees believe that superviperceptions of ethical climate than those in
employees believe that supervisors act unethisors act unethically.
nonleadership positions.
cally. Given the assumed importance of such
programs and the public funds being spent on
The length of time one has worked in government may also influthem, subjecting the claims to systematic empirical analysis seems
ence perceptions of ethical climate. Previous research has produced
prudent.
mixed results. While perceptions of a “caring” ethical climate
improve with an individual’s work tenure (Victor and Cullen
Influences on Perceptions of Ethical Climate
1988), another study finds a linkage between age and cynicism
The following hypotheses address perceptions of ethical climate in
about ethical climate among college students (Luthar, DiBattista,
executive branch organizations. The individual-level hypotheses fall
and Gautschi 1997). Longer-tenured employees may be able to cite
under two headings: (1) employee characteristics and (2) informaa greater number of perceived ethical lapses in the organization.
tion transfer, communication, and knowledge.
Building Ethical Capital: Perceptions of Ethical Climate in the Public Sector 255
Self-perception biases may also lead the longer-tenured individual to
believe that he or she has run across a greater number of less ethical
people in the organization.
Hypothesis 2: Longer-tenured public servants will have more
negative perceptions of ethical climate than shorter-tenured
public servants.
Further analysis will help differentiate among the potential explanations for the leadership and work tenure relationships with perceived ethical climate. In particular, supervisory status and work
tenure taken separately do not fully capture the potential effects of
alienation and resentment on employee perceptions. The employees
most likely to experience these effects are longer-term employees
who have not risen to supervisory status.
Hypothesis 3: Nonsupervisory status of a public servant will
increase any negative impact of work tenure on perception of
ethical climate.
Information Transfer, Communication, and Knowledge
Researchers often hold up ethics training programs as means of
improving ethical conduct in an organization, sometimes indirectly
by improving perceptions of ethical climate (LeClair and Ferrell
2000; Valentine and Fleischman 2004). Training offers opportunities to reinforce a positive climate and to provide evidence of
leadership commitment. Also important for climate outcomes is the
general belief that training works; more than 80 percent of public
employees surveyed believe that formal ethics training improves
compliance with ethical standards (Bowman and Knox 2008).
Studies that have directly examined the relationship between formal
training programs and perceptions of ethical climate have found
positive linkages in the private sector (Frisque and Kolb 2008;
Valentine and Fleischman 2004) and in municipal governments
(West and Berman 2004). Training should also contribute to actual
and perceived knowledge about ethics issues. This knowledge, in
turn, should enable an individual to better understand ethical issues
and to see positive markers of the climate.
Hypothesis 4: (a) Greater training frequency, (b) greater
breadth of training topics, and (c) use of more training methods will improve perceptions of ethical climate among public
servants.
Hypothesis 5: Greater perceived training effectiveness will
improve perceptions of ethical climate among public servants.
Hypothesis 6: Public servants with greater self-assessed
familiarity with ethics training topics will have more positive
perceptions of ethical climate.
One-on-one counseling with ethics officials provides yet another route
for the positive reinforcement of climate, for supplying evidence of
ethical leadership, and for transmitting knowledge. Being aware that
ethics officials exist is an important indicator of general cognizance
of the ethics program. For those public servants who then seek advice
from ethics officials, the perceived quality of the interaction should
further influence perceptions of ethical climate. These interactions
serve as examples of the ethical climate for the public servant.
256
Public Administration Review • March | April 2013
Hypothesis 7: Public servants (a) who are aware of the existence of ethics officials and (b) who have sought advice from
an ethics official will have more positive perceptions of ethical
climate.
Hypothesis 8: Public servants who (a) perceive ethics officials
as more helpful and (b) perceive advice from ethics officials
as more useful will have more positive perceptions of ethical
climate.
One empirical specification also includes an equation in which
having sought the advice of an agency ethics official serves as a
dependent variable. This specification is the result of an anticipated reciprocal relationship with perception of ethical climate, as
individuals should feel compelled to ask (or at least feel comfortable
asking) for formal advice about ethical dilemmas if they see a strong
ethical climate. Given space limitations and the secondary nature of
this analysis, what follows are brief, informal hypotheses with causal
reasoning similar to that already presented. Employees in more complex or visible positions should be more likely to seek advice, partly
as a result of having greater need for it. Greater perceived knowledge
about ethics topics and greater exposure to training should also have
positive impacts on advice-seeking behavior; the U.S. executive
branch has designed its ethics training program to prompt employees to seek advice, and individuals with greater perceived knowledge
should be more alert to potential ethics problems.
Organizational Factors
Data on other organizational characteristics are not available,
but a group indicator variable allows for limited exploration of
organization-level effects, a deficient area of the literature (Martin
and Cullen 2006). The data do not permit controlling for actual
organizational ethics practices, but the extensive standardization of
the executive branch ethics program provides something of a natural
control. The grouping variable allows examination of whether
group-level perceptions and behaviors from the foregoing hypotheses affect individual perceptions of ethical climate. Individuals
might observe these aggregate patterns and use them in evaluating
the overall ethical climate in the organization.
Hypothesis 9: More positive group perceptions and behaviors
related to (a) training, (b) knowledge, and (c) advice-seeking
will make individual-level perceptions of ethical climate more
positive.
Data and Methods
The data come from surveys completed by 17,248 employees at 16
different organizations in the executive branch of the U.S. federal
government.1 Survey administrators distributed surveys to all unique
individual e-mail addresses at the chosen organizations and followed
up with two reminder e-mails to individuals who had not responded
by particular dates. Respondents completed the surveys between
November 2003 and July 2005, with an aggregate response rate of
33 percent of all public servants across the 16 organizations. This
response rate appears to be low for a survey gathering individuallevel data in the United States (see Baruch and Holtom 2008). The
primary concern with a low response rate here is possible nonresponse bias (i.e., systematic reasons for nonresponse related to the
variables of interest) because it can lead to biased point estimates
(e.g., sample means) and inflated standard errors. Statistics reported
by the U.S. Office of Personnel Management (2004) suggest that
the sample is slightly heavier on supervisors but is otherwise similar
to the executive branch population. Inclusion of the supervisor variable on the right-hand side of equations will prevent any potential
problem with biased coefficients. Additionally, the analyses in the
current study utilize inferential rather than descriptive statistics, and
the sample size is large enough to overcome concerns about inflated
standard errors.
The primary dependent variable used in these analyses is perception
of ethical climate. The measure is a summated rating scale (see Jacoby
1991; Spector 1992) of positive/negative evaluations of various
elements of an organization’s ethical climate.2 The 10 items here are
very similar to standard items used in business ethics research (see
esp. Treviño, Butterfield, and McCabe 1998; Treviño and Weaver
2001; Treviño, Weaver, and Brown 2008; Treviño et al. 1999), but
tweaking of some items improved fit with public organizations. The
slight changes in item wording here relate primarily to elimination
or replacement of terms such as “company,” “management,” and
“firm” that are more closely associated with the private sector. The
items have been in use for well over a decade (Treviño, Butterfield,
and McCabe 1998) and have been subjected to extensive validity
and reliability analyses.3 The particular scale items used in this study
appear in table 1.
The narrower set of items employed here seems useful for a population of respondents who find themselves situated within a dominant
type of ethical climate, as compared to measurement with a categorization tool such as the Ethical Climate Questionnaire (Victor and
Cullen 1988). The highly detailed and regimented nature of the
executive branch ethics programs seems to place it relatively cleanly
into the “Law & Code” and “Rules” types of ethical climates identified in the Ethical Climate Questionnaire typology.
Descriptions of the other variables used in operationalizing hypotheses appear in appendix B. The supervisory and pay plan variables
are operationalizations of whether the respondent is in a leadership
position, while the work tenure variable operationalizes time in government. A number of variables capture different characteristics of
the training program, including training frequency, training breadth,
training effectiveness, training methods, and training needs. The headquarters variable controls for the distance from the information and
communication center for the ethical climate, and familiarity operationalizes perceived knowledge. The last set of variables addresses
Table 1 Items Used in Constructing Perception of Ethical Climate
Ethics rules and agency practices are consistent.
Leadership of this agency regularly shows that it cares about ethics.
Employees at all levels in this agency are held accountable for adhering to the
ethical standards.
If ethics concerns are reported to the agency, action is taken to resolve them.
Supervisors at my work location usually pay attention to ethics.
Employees who are caught violating ethics rules are disciplined.
Employees in this agency recognize ethics issues when they arise.
Supervisors at my agency include discussions of ethics when talking with their
employees.
Employees seek advice within the agency when ethics issues arise.
I would feel comfortable reporting ethics violations.
Note: Five-point response options for each item ranged from “strongly
disagree” (1) to “strongly agree” (5).
aspects of counseling. This set includes aware of officials, sought
advice, official helpful, and advice useful. The filing status variable
serves as both a control and as an input for advice-seeking behavior.
The primary method of analysis will be ordinary least squares regression. However, previous discussion made clear that climates are both
causes and consequences of many other features in an organization.
Therefore, reciprocal causation is a concern. The most likely candidate
for a reciprocal relationship in these data is the dichotomous variable
of advice-seeking behavior. Consequently, the analysis employs twostage probit least squares regression (see Alvarez and Glasgow 1999;
Keshk 2003), which is designed to deal with situations in which one
endogenous variable is continuous and the other is dichotomous.
Previous researchers have also identified organizational-level factors as
important, and the arrangement of data allows for limited application
of multilevel models (see Gelman and Hill 2007).
Results
Table 2 shows consistent results across four separate specifications.
The results support the hypothesis that individuals higher in the
organizational hierarchy (hypothesis 1) have more positive perceptions of the ethical climate (via supervisory and pay plan).4 The
analyses also take on the alienation hypothesis directly via the work
tenure and supervisory variables and their interactive term. Taken
jointly, the three coefficients show that longer work tenure worsens perception of ethical climate, but the effect is less pronounced
among supervisors (hypotheses 2 and 3).
The findings support hypotheses about training, perceived knowledge, and advice seeking as well. Greater breadth of training topics
(hypothesis 4b via training breadth), greater perceived effectiveness
of training methods (hypothesis 5 via training effectiveness), and a
lesser assessment of training needs (hypothesis 5 via training needs) all
serve to improve perceptions of ethical climate. However, the mere
frequency of ethics training (hypothesis 4a via training frequency) and
the number of different educational methods used (hypothesis 4c via
training methods, aside from the reduced-sample equation) do not
have a direct effect on perception of ethical climate. Topical coverage
and perceived effectiveness are more direct influences here. Greater
perceived familiarity with ethics topics (hypothesis 6 via familiarity)
similarly improves perception of ethical climate. However, working
at the headquarters location, as a measure of proximity to the source
of information, has no effect. As anticipated, being aware of the
existence of ethics officials (hypothesis 7a via aware of officials) and
seeking advice from these officials (hypothesis 7b via sought advice)
both improve perceptions of ethical climate.
Specification 2 looks at a more limited sample of individuals who
sought ethics advice from a designated ethics official in their organization. The core findings here are substantively the same as those
for the fuller-sample specifications. However, this specification adds
variables for the perceived helpfulness of the ethics official (hypothesis 8a via official helpful) and the usefulness of the advice provided
(hypothesis 8b via advice useful). These findings conform with prior
expectations, as greater perceived helpfulness and usefulness lead to
more positive perceptions of ethical climate.
Specification 3 deals with the issue of reciprocal causation.
Again, the core substantive findings remain unchanged. The
Building Ethical Capital: Perceptions of Ethical Climate in the Public Sector 257
Table 2 Regressions on Individual Perception of Ethical Climate
Specification 1 (OLS)
Variable
Supervisory
Pay plan
Headquarters
Filing status
Work tenure
Tenure*supervisory
Familiarity
Training frequency
Training breadth
Training effectiveness
Training methods
Training needs
Aware of officials
Sought advice
Official helpful
Advice useful
Constant
Specification 2 (OLS subsample)
Specification 3 (two-stage)
Specification 4 (multilevel)
Coeff.
S.E.
Coeff.
S.E.
Coeff.
S.E.
Coeff.
S.E.
0.167***
0.015
0.157***
0.024
0.153***
0.020
0.219***
0.014
0.166***
0.001
0.012
–0.105***
0.071***
0.142***
0.005
0.010***
0.168***
0.002
–0.026***
0.204***
0.070***
0.016
0.011
0.013
0.005
0.012
0.010
0.006
0.003
0.007
0.002
0.003
0.023
0.014
0.182***
0.001
0.076**
–0.143***
0.111***
0.078***
0.014
0.014*
0.152***
0.010**
–0.040***
0.025
0.021
0.025
0.011
0.019
0.020
0.013
0.006
0.015
0.004
0.007
0.155***
–0.009
0.020
0.013
–0.101***
0.070***
0.135***
0.005
0.012
0.010
0.010***
0.168***
0.003
0.006
–0.028***
0.147***
0.056*
0.004
0.037
0.023
0.050**
–0.013
–0.034*
–0.102***
0.059***
0.149***
0.007
0.012***
0.165***
0.003
–0.023***
0.190***
0.051**
0.018
0.012
0.015
0.004
0.012
0.010
0.006
0.003
0.006
0.002
0.004
0.023
0.016
0.148***
0.114***
1.582***
0.020
0.018
0.093
2.435***
0.087
2.239***
0.035
0.525***
0.072
0.330***
0.204***
0.285***
0.450***
–0.039**
0.104***
0.020***
0.072***
0.070***
–3.949***
0.032
0.037
0.024
0.026
0.012
0.025
0.004
0.008
0.013
0.191
2.247***
0.039
Dependent variable: Sought advice
Perception of
ethical climate
Supervisory
Pay plan
Headquarters
Filing status
Work tenure
Familiarity
Training methods
Training needs
Training frequency
Constant
Notes: The sample size for specifications 1, 3, and 4 is 16,311, and for specification 2 is 4,104. Robust standard errors are used for specifications 1, 2, and 3 because
of a problem with heteroskedastic errors. Specification 4 uses bootstrapped standard errors. R2 values (for 1–3) are 0.250, 0.319, and 0.249. Pseudo R2 for the probit
portion of specification 3 is 0.124. Log likelihood for the multilevel model is –16874.794. The sought advice and perception of ethical climate independent variables
reported for specification 3 are the “cleaned” versions produced by first-stage regressions. All equations use the mean-centered work tenure variable (and its interactive term, where applicable). *** p ≤ .001; ** p ≤ .01; * p ≤ .05.
two-stage probit least squares regression used in this analysis recognizes the potential for reciprocal causation between perception
of ethical climate and advice-seeking behavior. The “cleaned”
version of the sought advice variable now has an associated
p-value of .017, but this level may be reasonable for a cleaned
variable in a two-stage model, even with a large number of cases.
The variables dealing with helpfulness of the ethics official and
usefulness of the advice would perhaps provide better results
than the sought advice variable but are not usable here because of
identification issues.
The probit analysis for the equation with sought advice as the
dependent variable produces findings that fit well with the proposed
relationships. Importantly, more positive perception of ethical
climate increases the likelihood of seeking advice from an ethics
official in the organization. Most of the other independent variables relate to the likelihood that a given employee will need ethics
advice. Findings show greater advice-seeking behavior among those
employees who are supervisors, are on executive/other pay plans,
work at headquarters, file financial disclosure reports, perceive
greater training needs, and have worked in the federal government
for a shorter period of time. The training goal of increasing sensitivity to ethics topics also seems to be working in that training
frequency and the use of additional training methods contribute to
greater advice-seeking behavior.
258
Public Administration Review • March | April 2013
The findings under specification 4 are for a multilevel linear regression analysis. None of the organization-level variables related to
training, knowledge, or advice climates (hypotheses 9a–c) proved
statistically significant. Consequently, the specification reported here
simply controls for the different organizational groupings. Though
diagnostic procedures suggest only 7 percent of the variance in perceptions of ethical climate is attributable to organization-level factors, a likelihood ratio test shows statistically significant differences
between the single-level and multilevel models (χ-bar2 = 423.73,
p ≤ 001).5 The findings for the multilevel model are rather consistent with the previous findings. The only differences are that the
effects for pay plan and sought advice are smaller and the coefficient
for filing status here is negative and significant (at p = .021).
Figure 1 provides estimates of standardized effects based on the
coefficients from the multilevel modeling. The standardized effect
sizes are equal to the coefficient for dichotomous variables and equal
to a two-standard-deviation change multiplied by the estimated
coefficient for continuous independent variables (see Gelman and
Hill 2007, 57). For ease of comparability, the figure uses absolute
values rather than directional ones and excludes variables with
statistically insignificant coefficients. Figure 1 shows that supervisory
status diminishes the negative impact of work tenure on perception
of ethical climate and that supervisory status has a large positive
effect in its own right. The impacts of the perceived effectiveness of
Work tenure (non-supervisor)
Work tenure (supervisor)
0.257
0.109
Supervisory (at mean tenure)
Aware of officials
Sought advice
Pay plan
Filing status
0.051
0.050
0.034
Training effectiveness
Familiarity
Training needs
Training breadth
0.219
0.190
Interaction
Dichotomous
0.413
0.243
0.091
0.068
0.0
0.1
Continuous
0.2
0.3
0.4
0.5
Absolute Change in Perception of Ethical Climate
Notes: Effect sizes are for a 0–1 change for the dichotomous variables and a
2-standard-deviation change for continuous variables (including work tenure in
the 0–1 interaction with supervisory). Effects are negative for work tenure, filing
status, and training needs.
Figure 1 Standardized Impact on Perception of Ethical Climate
training methods and of perceived familiarity with ethics rules also
clearly stand out here.
The empirical findings do not produce significant surprises, but this
lack of surprise usefully suggests two things: (1) that public servant perceptions of ethical climate have certain logical, manageable
sources and (2) that researchers might be able to import pieces of a
well-developed literature on ethical climate from the business and
organizational management literatures. Many of the individual-level
findings mirror previous private sector findings; this correspondence makes sense when one considers the psychological nature of
many of the causal mechanisms. However, the data also suggest that
processes influencing ethical climate do not change much across
organizations of the executive branch, which would stand in contrast to differences across private sector organizations. The centralized direction provided by OGE and the existence of branch-wide
standards likely contribute to this uniformity.
The article provides some suggestions about how to improve views
of ethics in government among public servants. Specifically, the
findings suggest that ethics programs aimed at leadership may be
having the desired effect but that special emphasis should be placed
on communicating the importance of ethics to longer-tenured
employees (especially of the nonsupervisory variety). The more
positive views of ethical climate among organizational leaders
further suggest that ethical capital accrues at the leadership level
and might be mobilized to improve views throughout the organization. Additionally, it is important for public servants to evaluate
ethics training as effective and for training to cover a wider range of
topics and to leave public servants feeling familiar with those topics.
Similarly, public servants should be made aware of ethics officials,
encouraged to seek advice from them, and come away feeling that
the officials were helpful and the advice was useful.
Summary and Discussion
This article has examined sources of public servant perceptions
of ethical climate in the bureaucracy and, in so doing, has added
to the relatively sparse information about ethical climate in the
public sector and about influences on such perceptions generally.
Assessing these influences is important given the range of beneficial
outcomes produced by more positive perceptions of ethical climate.
The concept of ethical capital captures the idea that these positive perceptions accrue in such a way that they contribute to other
positive attitudes, behaviors, and performance
outcomes. Further, this article tests underlying
assumptions and provides empirical support
The findings suggest that public
for aspects of government ethics programs
administrators can take spebeing encouraged in international anticorcific actions to improve public
ruption agreements and receiving public
servant perceptions of ethical
revenues. The findings suggest that public
climate, perhaps influencing
administrators can take specific actions to
mass perceptions of government
improve public servant perceptions of ethical
climate, perhaps influencing mass perceptions
accountability and trustworthiof government accountability and trustworness, as well.
thiness, as well.
Empirical analyses show that public servants in leadership positions in the executive branch of the U.S. government tend to think
more highly of the ethical climate; the results also show that work
tenure tends to diminish perceptions of ethical climate, although
this effect is more pronounced for nonsupervisors. Ethics training, interaction with ethics officials, and the perceived knowledge
produced by these information transfers have consistently positive
influences on perceptions of ethical climate and on advice-seeking
behavior throughout the empirical analyses. However, the mere
frequency of training and diversity of educational methods are not
causally important when one also considers the topical breadth and
perceived effectiveness of training. The latter seems particularly
forceful. Findings related to advice-seeking behavior reinforce the
importance of ethics officials, as views concerning the helpfulness
of these officials and the usefulness of their advice affect perceptions of ethical climate.
A potential limitation of this study is that
the nonrandom sample of organizations
may restrict the ability to generalize across
all executive branch organizations. However,
the relatively small variance in the data at
the organizational level, the match of these
findings with others from the literature, and
uniformity in the implementation of the
executive branch ethics program all serve
to reduce concerns about organizational
representativeness. Similarly, the response
rate for the electronically distributed survey
is perhaps low, but further analysis suggests that nonresponse bias
is not problematic. An additional limitation is that the data do not
include measures of related climates within the organizations; such
data would be useful in understanding relationships and relative
impacts of climates (see Vashdi, Vigoda-Gadot, and Shlomi 2012).
Finally, the use of a single survey instrument to collect all of the analyzed data from a single sample raises the issue of common method
variance. The concern is that relationships between variables in the
data might be inflated or attenuated due to their derivation from a
common source (individual respondents in this case) and method
(a particular survey instrument). Again, the fit of the findings here
with previous research that used different sources and methods
reduces such concerns.
This article points toward avenues of continued or new inquiry.
One such avenue is exploring how to best utilize that ethical capital
Building Ethical Capital: Perceptions of Ethical Climate in the Public Sector 259
Appendix A Recommendations Concerning Ethics Training and Counseling in International Documents
International Agreement/Guidance
Relevant Provision(s)
Inter-American Convention against Corruption (1996)
Article 3.3. “Instruction to government personnel to ensure proper understanding of their
responsibilities and ethical rules governing their activities”
No. 2, “Effective practices include . . . training and counseling of officials to ensure proper
understanding of their responsibilities and the ethical rules governing their activities as
well as their own professionalism and competence”
Article 25.2, “The supervisor who supervises or manages other public officials should take
reasonable steps to prevent corruption by his or her staff in relation to his or her office.
These steps may include … providing appropriate education or training”
Pillar 1, “Regular education, training and supervision of officials to ensure proper understanding of their responsibilities”
Global Forum I Guiding Principles for Fighting Corruption and Safeguarding Integrity among Justice and Security Officials (1999)
Council of Europe Recommendation No. R (2000) 10 Appendix, Model
Code of Conduct for Public Officials (2000)
Asian Development Bank/Organisation for Economic Co-operation and
Development Anti-Corruption Action Plan for Asia and the Pacific
(2000)
African Union Convention on Preventing and Combating Corruption
(2003)
United Nations Convention against Corruption (2003)
Asia-Pacific Economic Cooperation, Course of Action on Fighting
Corruption and Ensuring Transparency (2004)
Article 7.2, “Create an internal committee or a similar body mandated to establish a code
of conduct and to monitor its implementation, and sensitize and train public officials on
matters of ethics”
Chapter 1, Article 6, Subparagraph 1.b, “Increasing and disseminating knowledge about the
prevention of corruption”
Chapter 1, Article 7, Subparagraph 1.b, “[A]dequate procedures for the selection and training of individuals for public positions considered especially vulnerable to corruption”
Chapter 1, Article 7, Subparagraph 1.d, “[P]romote education and training programs to
enable [civil servants] to meet the requirements for the correct, honorable and proper
performance of public functions . . . provide them with specialized and appropriate training to enhance their awareness of the risks of corruption inherent in the performance of
their functions”
I. “Develop training and capacity building efforts to help on the effective implementation of
the [United Nations Convention against Corruption]’s provisions for fighting corruption”
Note: Agreements or guidance documents appear in chronological order of adoption.
Appendix B Summary of Variables Used in Analyses
Variable
Description
Mean
S.D.
Range
Perception of ethical climate
Supervisory
Pay plan
Headquarters
Filing status
Work tenure
Familiarity
Training frequency
Training breadth
Training effectiveness
Training methods
Training needs
Aware of officials
Sought advice
Official helpful
10-item summated (average) rating scale of perceived ethical climate (see table 1 for items)
Holds a supervisory position
Executive or non-GS, nonwage pay status
Works at agency headquarters
Financial disclosure filer last year
Categories of length of time worked for federal government
8-item unweighted measure (α = .906) of level of familiarity with different ethics topics
Categorical frequency of ethics training
Number of different ethics topics covered in training
Average perceived effectiveness of training methods used
Number of different ethics training methods to which employee exposed
Number of ethics topic areas in which employee perceived further training needs
Aware that organization has formal ethics officials
Sought advice from organization ethics official in last two years
3-item summated rating scale (α = .916) of helpfulness of ethics official (i.e., in resolving questions, in
responding in a timely manner, in explaining rationale)
2-item summated rating scale (α = .889) of usefulness of advice from ethics official (i.e., in making you
more aware, in guiding your decisions and conduct)
3.559
0.199
0.114
0.447
0.450
4.768
3.371
4.259
4.978
3.188
5.471
1.948
0.915
0.254
4.240
0.797
0.399
0.318
0.497
0.498
1.262
0.814
1.313
2.838
1.253
3.441
1.979
0.279
0.435
0.881
1–5
0–1
0–1
0–1
0–1
1–6
1–5
1–6
0–8
0–5
0–11
0–8
0–1
0–1
1–5
4.027
0.961
1–5
Advice useful
Notes: Means and standard deviations are calculated based on cases included in the analyses, which is 16,311 for most variables but 4,104 for the final two variables
listed.
that accrues at the leadership level. Are the traditional routes (e.g.,
codes of conduct and ethics education) effective enough, or should
they be supplemented with other mechanisms? Some researchers
of “behavioral ethics” in the business literature (e.g., Bazerman and
Tenbrunsel 2011) suggest that traditional ethics programs frequently
fail because of basic characteristics of human decision making. Their
approach seemingly stands at odds with some of the research cited
here. What are the reasons for the discrepancies? Could perceptions
of ethical climate be used to identify incongruence between policies
and behavior that could lead to trouble based on characteristics
of decision making? In other words, could perceptions of ethical
climate function as an early-warning tool?
Another potential avenue is further examining how government
ethics generally—as administrative process or as part of performance
260
Public Administration Review • March | April 2013
broadly construed—influences mass perceptions of government
accountability and trustworthiness. A related line of inquiry would
be examining how public servant perceptions influence mass evaluations of procedural democracy through social networks. These
potential influences on mass perceptions are consequential, as more
positive mass perceptions of ethical behavior in the public administration can lead to greater political participation, satisfaction with
public services, trust in governance, and political efficacy (Vigoda
2000; Vigoda-Gadot 2007).
Disclaimer
Eric D. Raile is a special government employee of the U.S. Office
of Government Ethics (OGE). However, the views expressed in
this article are his own and do not necessarily represent the views of
OGE or of the U.S. government.
Notes
1.
2.
3.
4.
5.
The data, previously collected by the federal government, do not provide
the identities of the executive branch agencies. Officials have confirmed that
organizations were not chosen based on particular ethics performance issues and
that the sample includes a variety of organizations in terms of size, type, and
autonomy.
Summated rating scales are most appropriate for a unidimensional trait when
the individual measurement items are ordinal (see Jacoby 1991). The underlying
trait here is best thought of as a positive/negative or good/bad evaluation of the
climate. A proper method for assessing the appropriateness of a summated rating
scale is comparison of each item individually against the other items combined
(i.e., the “restscores”) with lowess curves to ascertain whether all relationships are
monotonic. All items here meet this criterion.
The measure stands up well to assessments of its reliability and validity. In
terms of reliability, Cronbach’s alpha for the 10 items is .935. The item wording
included in table 1 allows for assessment of face validity, while the diversity of
ethical climate elements included in the measure argues for its content validity.
Factor analyses to establish construct validity (and to test the assumption of
unidimensionality) show a strong unidimensional solution for this particular
combination of 10 items. Use of a principal factors solution method provides an
eigenvalue of 5.969 for the single dimension, with factor loadings ranging from
0.64 to 0.85. Factor loadings produced by a confirmatory factor analysis are
virtually identical, with fit indices above generally accepted levels (comparative
fit index = 0.97; normed fit index = 0.97). Factor analysis was also used in establishing divergent validity of the summated rating scales. Not surprisingly, the
official helpful and advice useful scales shared substantial variance. However, the
two measures produced separable impacts throughout the analyses, and variance
inflation factor (VIF) values were well within tolerable limits for all variables
throughout all analyses.
Employing the centered version of the work tenure variable and its interactive
term, the supervisory coefficient here represents the impact of supervisory status
when work tenure is at its mean value.
The 7 percent figure is the result of estimating a multilevel model with only the
organizational grouping of data specified and then dividing the variance of the
constant by the total variance (in this case, 0.044 / [0.044 + 0.592]) and then
multiplying by 100 to produce a percentage.
References
Alvarez, R. Michael, and Garrett Glasgow. 1999. Two Stage Estimation of
Nonrecursive Choice Models. Political Analysis 8(2): 147–65.
Ashkanasy, Neal M., Sarah Falkus, and Victor J. Callan. 2000. Predictors of Ethical
Code Use and Ethical Tolerance in the Public Sector. Journal of Business Ethics
25(3): 237–53.
Bandura, Albert. 1982. Self-Efficacy Mechanism in Human Agency. American
Psychologist 37(2): 122–47.
Barnett, Tim, and Elizabeth Schubert. 2002. Perceptions of the Ethical Work
Climate and Covenantal Relationships. Journal of Business Ethics 36(3): 279–90.
Bartels, Lynn K., Edward Harrick, Kathryn Martell, and Donald Strickland. 1998.
The Relationship between Ethical Climate and Ethical Problems within Human
Resource Management. Journal of Business Ethics 17(7): 799–804.
Baruch, Yehuda, and Brooks C. Holtom. 2008. Survey Response Rate Levels and
Trends in Organizational Research. Human Relations 61(8): 1139–60.
Bazerman, Max H., and Ann E. Tenbrunsel. 2011. Blind Spots: Why We Fail to Do
What’s Right and What to Do about It. Princeton, NJ: Princeton University
Press.
Beeri, Itai, Rachel Dayan, Eran Vigoda-Gadot, and Simcha B. Werner. 2012.
Advancing Ethics in Public Organizations: The Impact of an Ethics Program on
Employees’ Perceptions and Behaviors in a Regional Council. Journal of Business
Ethics. Published electronically on February 4. doi: 10.1007/s10551-012-1232-7
Bowman, James S. 1990. Ethics in Government: A National Survey of Public
Administrators. Public Administration Review 50(3): 345–53.
Bowman, James S., and Claire Connolly Knox. 2008. Ethics in Government: No
Matter How Long and Dark the Night. Public Administration Review 68(4):
627–39.
Cohen, Deborah Vidaver. 1993. Creating and Maintaining Ethical Work Climates:
Anomie in the Workplace and Implications for Managing Change. Business
Ethics Quarterly 3(4): 343–58.
Cooper, Terry L. 2004. Big Questions in Administrative Ethics: A Need for Focused,
Collaborative Effort. Public Administration Review 64(4): 395–407.
Dalton, Russell J. 2005. The Social Transformation of Trust in Government.
International Review of Sociology 15(1): 133–54.
Denison, Daniel R. 1996. What Is the Difference between Organizational Culture
and Organizational Climate? A Native’s Point of View on a Decade of Paradigm
Wars. Academy of Management Review 21(3): 619–54.
Eisenberg, Eric M., and Patricia Riley. 2001. Organizational Culture. In The New
Handbook of Organizational Communication: Advances in Theory, Research, and
Methods, edited by Fredric M. Jablin and Linda L. Putnam, 291–322. Thousand
Oaks, CA: Sage Publications.
Frederickson, H. George, and David G. Frederickson. 1995. Public Perceptions of
Ethics in Government: The Problems of Distance and Role Differentiation.
Annals of the American Academy of Political and Social Sciences 537: 163–72.
Frisque, Deloise A., and Judith A. Kolb. 2008. The Effects of an Ethics Training
Program on Attitude, Knowledge, and Transfer of Training of Office
Professionals: A Treatment- and Control-Group Design. Human Resource
Development Quarterly 19(1): 35–53.
Gelman, Andrew, and Jennifer Hill. 2007. Data Analysis Using Regression and
Multilevel/Hierarchical Models. New York: Cambridge University Press.
Jacoby, William G. 1991. Data Theory and Dimensional Analysis. Newbury Park, CA:
Sage Publications.
James, Harvey S., Jr. 2000. Reinforcing Ethical Decision Making through
Organizational Structure. Journal of Business Ethics 28(1): 43–58.
James, Lawrence R., and Allan P. Jones. 1974. Organizational Climate: A Review of
Theory and Research. Psychological Bulletin 81(12): 1096–1112.
James, Oliver. 2011. Performance Measures and Democracy: Information Effects on
Citizens in Field and Laboratory Experiments. Journal of Public Administration
Research and Theory 21(3): 399–418.
Keshk, Omar M. G. 2003. CDSIMEQ: A Program to Implement Two-Stage Probit
Least Squares. Stata Journal 3(2): 1–11.
Kim, Seok-Eun. 2005. The Role of Trust in the Modern Administrative State: An
Integrative Model. Administration & Society 37(5): 611–35.
Kozlowski, Steve W. J., and Katherine J. Klein. 2000. A Multilevel Approach to
Theory and Research in Organizations: Contextual, Temporal, and Emergent
Processes. In Multilevel Theory, Research, and Methods in Organizations,
edited by Katherine J. Klein and Steve W. J. Kozlowski, 3–90. San Francisco:
Jossey-Bass.
LeClair, Debbie Thorne, and Linda Ferrell. 2000. Innovation in Experiential Business
Ethics Training. Journal of Business Ethics 23(3): 313–22.
Lupia, Arthur, and Mathew D. McCubbins. 1998. The Democratic Dilemma: Can
Citizens Learn What They Need to Know? New York: Cambridge University Press.
Luthar, Harsh K., Ron A. DiBattista, and Theodore Gautschi. 1997. Perception
of What the Ethical Climate Is and What It Should Be: The Role of Gender,
Academic Status, and Ethical Education. Journal of Business Ethics 16(2):
205–17.
Martin, Kelly D., and John B. Cullen. 2006. Continuities and Extensions of Ethical
Climate Theory: A Meta-Analytic Review. Journal of Business Ethics 69(2):
175–94.
Menzel, Donald C. 1995. The Ethical Environment of Local Government Managers.
American Review of Public Administration 25(3): 247–61.
Building Ethical Capital: Perceptions of Ethical Climate in the Public Sector 261
———. 1996. Ethics Stress in Public Organizations. Public Productivity and
Management Review 20(1): 70–83.
Miller, Gerald J., Samuel J. Yeager, W. Bartley Hildreth, and Jack Rabin. 2005. How
Financial Managers Deal with Ethical Stress. Public Administration Review 65(3):
301–12.
Norris, Pippa. 2011. Democratic Deficit: Critical Citizens Revisited. New York:
Cambridge University Press.
O’Fallon, Michael J., and Kenneth D. Butterfield. 2005. A Review of the Empirical
Ethical Decision-Making Literature: 1996–2003. Journal of Business Ethics 59(4):
375–413.
Parker, Christopher P., Boris B. Baltes, Scott A. Young, Joseph W. Huff, Robert
A. Altmann, Heather A. LaCost, and Joanne E. Roberts. 2003. Relationships
between Psychological Climate Perceptions and Work Outcomes: A MetaAnalytic Review. Journal of Organizational Behavior 24(4): 389–416.
Peterson, Dane K. 2002. Deviant Workplace Behavior and the Organization’s Ethical
Climate. Journal of Business and Psychology 17(1): 47–61.
Poole, Marshall Scott. 1985. Communication and Organizational Climates: Review,
Critiques, and a New Perspective. In Organizational Communication: Traditional
Themes and New Directions, edited by Robert McPhee and Phillip K. Tompkins,
79–108. Beverly Hills, CA: Sage Publications.
Portes, Alejandro. 1998. Social Capital: Its Origins and Applications in Modern
Sociology. Annual Review of Sociology 24: 1–24.
Putnam, Robert D. 2000. Bowling Alone: The Collapse and Revival of American
Community. New York: Simon & Schuster.
Reichers, Arnon E., and Benjamin Schneider. 1990. Climate and Culture: An
Evolution of Constructs. In Organizational Climate and Culture, edited by
Benjamin Schneider, 5–39. San Francisco: Jossey-Bass.
Schminke, Marshall, Maureen L. Ambrose, and Donald O. Neubaum. 2005.
The Effect of Leader Moral Development on Ethical Climate and Employee
Attitudes. Organizational Behavior and Human Decision Processes 97(2): 135–51.
Schneider, Benjamin, and Arnon E. Reichers. 1983. On the Etiology of Climates.
Personnel Psychology 36(1): 19–39.
Seeman, Melvin. 1983. Alienation Motifs in Contemporary Theorizing: The Hidden
Continuity of the Classic Themes. Social Psychology Quarterly 46(3): 171–84.
Spector, Paul E. 1992. Summated Rating Scale Construction: An Introduction.
Newbury Park, CA: Sage Publications.
Spector, Paul E., Cary L. Cooper, Juan I. Sanchez, Michael O’Driscoll, Kate Sparks,
et al. 2002. Locus of Control and Well-Being at Work: How Generalizable Are
Western Findings? Academy of Management Journal 45(2): 453–66.
Sutcliffe, Kathleen M. 2001. Organizational Environments and Organizational
Information Processing. In The New Handbook of Organizational
Communication: Advances in Theory, Research, and Methods, edited by Fredric M.
Jablin and Linda L. Putnam, 197–230. Thousand Oaks, CA: Sage Publications.
Thomas, Craig W. 1998. Maintaining and Restoring Public Trust in Government
Agencies and Their Employees. Administration & Society 30(2): 166–93.
Treviño, Linda Klebe. 1990. A Cultural Perspective on Changing and Developing
Organizational Ethics. In Research in Organizational Change and Development,
vol. 4, edited by William A. Pasmore and Richard W. Woodman, 195–230.
Greenwich, CT: JAI Press.
Treviño, Linda Klebe, Kenneth D. Butterfield, and Donald L. McCabe. 1998.
The Ethical Context in Organizations: Influences on Employee Attitudes and
Behaviors. Business Ethics Quarterly 8(3): 447–76.
262
Public Administration Review • March | April 2013
Treviño, Linda Klebe, and Gary R. Weaver. 2001. Organizational Justice and Ethics
Program “Follow-Through”: Influences on Employees’ Harmful and Helpful
Behavior. Business Ethics Quarterly 11(4): 651–71.
Treviño, Linda Klebe, Gary R. Weaver, and Michael E. Brown. 2008. It’s Lovely
at the Top: Hierarchical Levels, Identities, and Perceptions of Organizational
Ethics. Business Ethics Quarterly 18(2): 233–52.
Treviño, Linda Klebe, Gary R. Weaver, David G. Gibson, and Barbara Ley Toffler.
1999. Managing Ethics and Compliance: What Works and What Hurts.
California Management Review 41(2): 131–51.
U.S. Office of Personnel Management (OPM). 2004. Federal Civilian Workforce
Statistics: The Fact Book, 2004 Edition. http://www.opm.gov/feddata/
factbook/2004/factbook.pdf [accessed November 16, 2012].
Valentine, Sean, and Gary Fleischman. 2004. Ethics Training and
Businesspersons’ Perceptions of Organizational Ethics. Journal of Business
Ethics 52(4): 381–90.
Van de Walle, Steven, and Geert Bouckaert. 2003. Public Service Performance and
Trust in Government: The Problem of Causality. International Journal of Public
Administration 26(8–9): 891–913.
Van Ryzin, Gregg G. 2011. Outcomes, Process, and Trust of Civil Servants. Journal
of Public Administration Research and Theory 21(4): 745–60.
VanSandt, Craig V., Jon M. Shepard, and Stephen M. Zappe. 2006. An Examination
of the Relationship between Ethical Work Climate and Moral Awareness. Journal
of Business Ethics 68(4): 409–32.
Vardi, Yoav. 2001. The Effects of Organizational and Ethical Climates on Misconduct
at Work. Journal of Business Ethics 29(4): 325–37.
Vashdi, Dana R., Eran Vigoda-Gadot, and Dvir Shlomi. 2012. Assessing
Performance: The Impact of Organizational Climates and Politics on Public
Schools’ Performance. Public Administration. Published electronically on January
31. doi: 10.1111/j.1467-9299.2011.01968.x
Victor, Bart, and John B. Cullen. 1988. The Organizational Bases of Ethical Work
Climates. Administrative Science Quarterly 33(1): 101–25.
Vigoda, Eran. 2000. Are You Being Served? The Responsiveness of Public
Administration to Citizens’ Demands: An Empirical Examination in Israel.
Public Administration 78(1): 165–91.
Vigoda-Gadot, Eran. 2007. Citizens’ Perceptions of Politics and Ethics in Public
Administration: A Five-Year National Study of Their Relationship to Satisfaction
with Services, Trust in Governance, and Voice Orientations. Journal of Public
Administration Research and Theory 17(2): 285–305.
Vigoda-Gadot, Eran, and Danit Kapun. 2005. Perceptions of Politics and
Performance in Public and Private Organizations: A Test of One Model across
Two Sectors. Policy and Politics 33(2): 251–76.
Weber, James, Lance B. Kurke, and David W. Pentico. 2003. Why Do Employees
Steal? Assessing Differences in Ethical and Unethical Employee Behavior Using
Ethical Work Climates. Business and Society 42(3): 359–80.
West, Jonathan P., and Evan M. Berman. 2004. Ethics Training in U.S. Cities:
Content, Pedagogy, and Impact. Public Integrity 6(3): 189–206.
Wittmer, Dennis, and David Coursey. 1996. Ethical Work Climates: Comparing Top
Managers in Public and Private Organizations. Journal of Public Administration
Research and Theory 6(4): 559–72.
Yang, Kaifeng, and Marc Holzer. 2006. The Performance–Trust Link:
Implications for Performance Measurement. Public Administration Review
66(1): 114–26.
Copyright of Public Administration Review is the property of Wiley-Blackwell and its content may not be
copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written
permission. However, users may print, download, or email articles for individual use.
political theology, Vol. 16 No. 3, May, 2015, 267 –272
BOOK DISCUSSION
Criminal Justice and Christian
Community
Elizabeth Bounds
Emory University, Atlanta, GA, USA
The Collapse of American Criminal Justice is a wonderful book for a serious
response by Christian ethicists, particularly those who are citizens or residents of
the United State.1 It focuses our attention on a public question still not very visible
in our field. Yet when, in 2013, roughly one in every 35 adults, disproportionately
black and Latino, were under some kind of correctional supervision, how can it
NOT be vital to the work of Christian ethics?2 We have not yet fully reckoned with
the sheer misery and stunning inequality of our criminal justice system, which is a
way of life for some sectors of the American people.
The need to grapple with our criminal justice system in the US has been
underlined in 2014 by the contentious responses to the deaths of two black men,
Michael Brown and Eric Garner, during their encounters with police. The powerful
and justified anger about vast racial inequities in our criminal justice system are
evident. And it is exactly in the midst of this anger that it is even more important to
understand what has brought us to the wretched place in which US policing,
prosecution, and incarceration exist. As with any important public issue, there is no
one easy answer to this “what.” Stuntz’s book helps us better understand some
strands, which is a step toward imagining and enacting responses.
However, what has raised Collapse to some visibility among Christian ethicists is
the knowledge that Stuntz wrote not only as a prominent scholar of constitutional
law but also as a committed Christian who wrote elsewhere about the relation
of Christianity and law.3 Collapse is by no means a standard text in Christian
1
Stuntz W. The collapse of American criminal justice (Cambridge, MA: Harvard University Press; 2011).
Correctional supervision means “under the jurisdiction or legal authority of state and federal correctional officials”
and thus includes: (1) incarceration in federal or state prisons or jails and (2) federal or state parole or probation. Glaze
LE, Kaeble D. Correctional populations in the United States, 2013 [Internet]. Bureau of Justice Statistics [cited Jan 24,
2014]. Available from: http://www.bjs.gov/content/pub/pdf/cpus13.pdf. This statistic has improved slightly in the last
years from a high of 1 in 31 in 2006 and 2007.
3
Stuntz W. Christian legal theory. Book review. Harvard Law Review. 2003;116:1707 – 49. From 2008 until his death
in 2011, Stuntz shared a blog, Less Than the Least, with his fellow evangelical Protestant and law professor, David Skeel
(Stuntz W, Skeel D. Less than the least blog [Internet]. David Skeel and William Stuntz; 2008. Available from:
https://www.law.upenn.edu/blogs/dskeel/).
2
ß W. S. Maney & Son Ltd 2015
DOI 10.1179/1462317X15Z.000000000137
268
ELIZABETH BOUNDS
theology; indeed, it contains no explicit references to Stuntz’s faith. Yet, it is fair to
consider the ways in which his underlying framework is infused by Christian theomoral commitments. Within his carefully constructed arguments, occasionally
appears an underlying theological world view with a deep Protestant/Augustinian
sense of sin and evangelical conviction of the radical possibility of Christianity.
I respond to Stuntz’s work as a Christian ethicist who has researched and
reflected upon the history and present conditions of incarceration in the US and as a
white person who has spent time with incarcerated persons, primarily women,
many, but not all, of whom are African-American. So from that perspective, I first
want to highlight the distinctive contribution the book makes to questions of
incarceration. After doing this, I will mention some concerns, which will lead to
engagement with this work in dialog with Christian ethics.
The complex historical understanding and sense of contingency Stuntz brings to
the story of our criminal justice system is a welcome counter to ways that
criminology can flatten the story into certain trends or what Stuntz calls “the
standard account” or “academic conventional wisdom” (255). While he is
sometimes overly generalizing and dismissive of this account, especially since he too
can slip into an oversimplified and unidirectional storyline, he is right in pointing to
the challenges inherent in telling well the story of US mass incarceration. Much of
the current focus has been on more recent changes such as the War on Drugs and its
accompanying laws or the sentencing restrictions that permits no attention to
mitigating circumstances. There are many valuable works in this category.4
However, the story tends to cover a few decades and is often shaped to suggest only
one key cause for the rise of mass incarceration, such as racism or economic
exploitation. Stuntz’s historical sensibility widens the time frame back to
Reconstruction. And because he sees that there are historical coincidences (rather
than simply the unrolling of a theory or a single systemic injustice), he reads
together multiple relevant factors such as business cycles, crime cycles, shifts in law
enforcement, migrations, riots, political shifts, shifts in political rhetoric, along
with underlying inegalitarian and oppressive economic, and racial structures.5 He
attends to these factors in the histories of the North and the South, extremely
important as the history of prisons and criminal justice in US is very much a
regional history. But amidst all of these factors, Stuntz maintains a strong
awareness of how race has so thoroughly shaped (but not determined) the history
he tells, with continuous references to the ways in which African-Americans have
been on a damning short end of legal, economic, and social policies.
Of course, the most obvious and most critical additional insight Stuntz brings to a
discussion of the roots of mass incarceration is his understanding of the history and
operation of criminal and, especially, constitutional law. He crafts an account of
what he considers the collapse of rule of law that is deeply critical of the heritage of
more liberal frameworks of law. There are two major areas of loss highlighted. One
is the loss of substantive law in favor of procedural law, which makes law “a menu
4
Excellent examples include: Alexander M. The new Jim Crow: mass incarceration in the age of colorblindness. NY:
New Press; 2012. Wacquant L. Punishing the poor: the neoliberal government of social insecurity. Durham, NC: Duke;
2009. Western B. Punishment and inequality in America. NY: Russell Sage Foundation; 2007.
5
See for example, his discussion of the rise of mass incarceration. p. 251 –67).
CRIMINAL JUSTICE AND CHRISTIAN COMMUNITY
269
of options” manipulated by “official discretion” (2, 4). The other is an excessive
centralization, favoring federal over state jurisdiction, and both federal and state
over local jurisdiction. Stuntz highlights the roots of these legal shifts in two key
legal eras: Reconstruction and the Civil Rights era. Under Reconstruction, the
guarantees of equal protection for African-Americans under the Fourteenth
Amendment were gutted. Under the Warren Court, these guarantees were set aside
in favor of an emphasis on due process. For Stuntz, “freezing procedures in place,”
which is what he believes has occurred in the past few decades, is necessarily bad
law since procedure, in contrast to substance, is contextual and thus must be able to
respond to differing needs and contingencies (79). This fundamental legal misorientation, he argues, was deepened by an ongoing loss of local control in favor of
professionalization and specialization embodied in a turn away from jury trials to
plea bargaining (194).
What was personally the most helpful to me was Stuntz’s account of the shifts in
the nature of the role of the prosecutor. Over the years, I have encountered multiple
versions of the following story: a young man or woman, often African-American and
almost certainly from a family without resources, is told by a DA that if they just
plead out, they will get a reduced sentence that cannot be guaranteed by a trial. While
sometimes this is indeed a better deal, it often is not, especially if the person has
actually not committed the crime. Another common story is a return to incarceration
because of parole or probation violations.6 I know of a young African-American man
on probation who ended up sitting for 15 months in the county jail awaiting trial for
child cruelty charges based on a situation where his child had taken off his seatbelt in
the car in a minor car accident. This story hinged on the probation status, along with
the refusal of this young man to plead guilty. Stuntz’s explanation of prosecutorial
powers enabled me to understand both of these stories. The District Attorney, elected
often by persons not from the community of most offenders (192), has the power to
determine charges. S/he knows that guilty pleas are easy to extract and cheaper in
terms of both time and money, than jury trials (259, 270–9). Stuntz’s account
explains how our criminal justice system has become an impossible tangle, replete
with moments that could come from Kafka’s the Trial.
Stuntz lays out brilliantly how the liberal proceduralism instituted by those who
intended to equalize has done quite the reverse. What worries me, however, are
some moments where I find Stuntz’s commitments to over-determine his reading of
this detailed history.7 I found myself at moments thinking fondly of John Rawls
whose liberal account of justice, with all of its many flaws, did grasp how forms of
procedural neutrality can and do promote greater equality and fairness. Stuntz’s
critiques of its failures are apt but I think a truly historical sensibility needs to be
alert to its strengths.
6
In 2013, 1 in 51 US adults were on probation or parole. In 2012, 34% of those on probation were considered to have
committed some sort of violation resulting in 5.1% being re-incarcerated. Fifty-two percent on parole were considered
to have committed some sort of violation resulting in 9% re-incarceration. See Glaze and Kaeble, Correctional
populations in the United States, 2013; and Maruschak LM, Bonczar TP. Probation and parole in the United States,
2012 [Internet]. Bureau of Justice Statistics [cited Jan 24, 2014]. Available from: http://www.bjs.gov/content/pub/pdf/
ppus12.pdf.
7
I am not going to comment on the substance versus procedure debate in relation to the trajectory of the 14th
Amendment as I simply do not know enough about the processes of substantive law.
270
ELIZABETH BOUNDS
This tendency to a blanket critique, along with some romanticization of the past,
is more evident in Stuntz’s case for increased local control. Working for greater local
control in aspects of criminal justice is indeed critical and is part of such current
efforts as community policing, valued by many of those living in inner-city crimefilled communities, and alternative sentencing (55, 280). More funding for the
training and manpower required for basic sidewalk policing, carried out in dialog
with local communities, is one response to the current anger over the treatment of
young black men in the United States. Nevertheless, it is important to not see
localism as a sweeping solution, especially when making comparative historical
judgments. Stuntz gives what I find to be a rosy summary of criminal justice in the
nineteenth century US North and Midwest, saying that their forms of criminal
punishment “appear to have been both less discriminatory and vastly more lenient
than today” (131). While this is certainly true in contrast to the truly horrific history
of the South and may even be a somewhat justified comparison, I still find that it
minimizes the brutality of northern and mid-western prisons in both the nineteenth
and early twentieth centuries.8 The rehabilitation and reform emphases of the
“new” penologists of the early twentieth century were hardly ever very effective
and were actually never meant to be extended to African-American prisoners. A
succinct example of the problem comes in Stuntz’s remark that in the nineteenth
century “voteless, abused woman actually fared better than their counterparts in
our own time” since they were often not punished for killing abusive husbands
(136). While this is indeed factually the case, it is a comparison on only a strictly
legal level, ignoring the efforts of many women and some men to bring greater
awareness and legal/police support for women caught in domestic violence, not to
mention the changes in the status of women in politics, economics, and society over
the decades. In these moments, I believe the politics of law drives Stuntz’s account
so that, in spite of the extraordinary complexity he outlines, he lets law trump issues
of social relations and economics. The law may have been better in the nineteenth
century north and there surely was greater local control, but I imagine that few
African-Americans or women of all races would be interested in living under that
legal framework. Further, public debate over the deaths of Brown and Garner, and
the legal aftermath, has revealed again wide gaps in experience and understanding
that are fueled by cheap symbolic politics, supported by television and website
rhetoric. How would these by addressed by localism?
So what does all of this have to do with Christian ethics? Stuntz’s criticisms of
liberalism and concern for locality align him with the anti-liberal trends in recent
Christian ethics and theology.9 They share for example an attack on a liberal
optimistic narrative of progress, as Stuntz, at the end of his book, puts aside
optimism for hope (311). In several places, I thought Stuntz outdid some of his
possible counterparts in Christian ethics and theology with his real engagement
with deep historicism and the role of coincidence, along with a strong emphasis on
8
See for example, Gottschalk M. The prison and the gallows: the politics of mass incarceration in America
(Cambridge: Cambridge University Press; 2006); and McLennan RM. The crisis of imprisonment: protest, politics, and
the making of the American penal state, 1776-1941 (Cambridge: Cambridge University Press; 2008).
9
I am referring here loosely to a wide variety of works, mostly drawing on strands of the Radical Reformation and/or
pre-modern Augustinianism.
CRIMINAL JUSTICE AND CHRISTIAN COMMUNITY
271
limits and humility (not, in my experience, part of the equipment of many antiliberal ethicists and theologians).
One underlying question in the ongoing critique of liberalism is the nature of the
shared understandings of the community, which certainly requires consideration of
law as a shared moral resource. Stuntz himself is very circumspect about these
connections. In his 2003 review of Christian Perspectives on Legal Thought,10 he
criticizes sharply any simple moralistic reading of law, remarking “Law may
sometimes be an effective moral teacher, although I confess to having some doubts”
(1740). Yet on occasion, he suggests something more as in Collapse he begins his
withering critique of the Warren Court with naming their basic mistake of
grounding the law of criminal procedure in the Bill of Rights, “instead of using that
body of law to advance some coherent vision of fair and equal criminal justice”
(227 – 8). This loss of vision is a loss of moral dimensions of law since, for example,
his concern about the impact of the overemphasis on due process is that juries are
no longer asked “to decide whether individual defendants deserved criminal
punishment,” surely a morally infused question, and not simply determine witness
credibility (140 –1).
Part of Stuntz’s concern for a telos is connected to an understanding of the
complexity and fluidity of social consensus. We have experienced a remarkable
turnaround in US in the last few decades from an implicit consensus on the
rehabilitative purposes of incarceration (whether or not realized in actual prison
practices) to a consensus on retribution/deterrence as driving punishment. And
there are signs that the social consensus may be shifting again. While this
description could suggest a “bad” moral consensus, Stuntz prefers the idea of a lost
moral consensus, where the lack of a shared morality is evident in a lack of shared
community, which enables poor blacks to be seen more easily as “the Other” (312).
In the end, Stuntz may believe that the best chance we have for a better consensus
(aligned with an underlying Christian vision, along presumably with other
compatible visions) are persons who have deeper moral formation. In his review
essay, he suggests that the intersection of Christianity and law rests on a reality that
“Christianity’s bite may be (in my view, is) mostly relational and attitudinal.”11
Stuntz’s own “coherent vision” (theology?) of the reality of sin is present in his
insistence on approaching the law with humility and a sense of limits, which
requires “a justice system whose rulers remember that they too are tempted to do
wrong, and often yield to the temptation” (311). In his review essay, he frequently
points to the radical nature of Christianity whose power he contrasts with the
inability of law to “put a stop to the selfishness and exploitation to which we are so
obviously prone.”12 He emphasizes the importance of family attachments, “the one
place in life where we seem most prone to advance others’ interests ahead of our
own.” And he goes on to suggest the importance of a different family “because we
need to become different people [ . . . ]. Only a new birth into a new household can
do this,” [imagery that is evident reference to the Christian community].13
10
11
12
13
Stuntz, Christian legal theory.
Stuntz, Christian legal theory, p. 1727.
Ibid., p. 1748.
Ibid.
272
ELIZABETH BOUNDS
It would be easy to move from there to simply champion local control, or, in the
realm of Christian ethics, church-based approaches, etc. But I come back here to the
problem of the kind of community and the kind of localism that may be
constructed. Just because something is communal and local does not necessarily
make it morally worthy. In the complex and intersecting world we live in, we
cannot have only local control but need, I think, to attend to a variety of levels. For
example, the legal framework Stuntz engages relies upon state-based rule of law
that at its best, presses localisms into a broader common arena. Imagining work at a
variety of levels might be a good way of thinking about the challenges Stuntz’s work
offers for Christian ethics. One of my favorite pieces by Jim Gustafson is Varieties
of Moral Discourse where he describes how Christian ethics works differently at
different discursive levels, which for him are prophetic, narrative, ethical, and
policy. While we can argue about whether we need to add to these categories, the
point to be made here is that Christian ethics does different work in all of these
differing forms. This is an important reality for further ethical/theological
reflection. While Stuntz is concerned with what Gustafson would term narrative
ethics that shapes personal morality, this necessarily local and particular discourse
has to be conducted in relation to much broader structures of law and politics,
which require work at the policy level. This is Gustafson’s own favorite level, and
one which, for a variety of historical/social factors has been largely ignored in the
recent history of the Society of Christian Ethics. Currently, many states are engaged
in serious criminal justice reform; albeit for economic, not moral reasons! One
focus of these reform efforts has been reentry policy and programing since over
40% of persons released from prison return within 3 years (Pew Center on the
States). Christian organizations are viewed, for better or for worse, as key partners
in these reform efforts. Can Stuntz help us imagine ways that Christian ethics
can be of use?
Notes on contributor
Elizabeth Bounds is associate professor of Christian ethics at Emory University
and administrator of a theology program at a women’s prison in Georgia, USA.
Correspondence to: Elizabeth Bounds, email: ebounds@emory.edu
Copyright of Political Theology is the property of Maney Publishing and its content may not
be copied or emailed to multiple sites or posted to a listserv without the copyright holder's
express written permission. However, users may print, download, or email articles for
individual use.
2015]
The Ethical Boundaries
229
another’s insurance policy coverage (the attorney was also seeking to
represent the person with the insurance policy), the U.S. Supreme Court
determined that the state had an interest in regulating solicitation of
business by a lawyer because “direct, in-person communication with the
prospective client has long been viewed as inconsistent with the
profession’s ideal of the attorney-client relationship and as posing a
significant potential for harm to the prospective client.” 185
The boundaries of attorney disclosure of confidential information
belonging to the client are not always clear. What is clear is that the
attorney should always seek informed consent from the client before any
disclosure is made. Once the informed consent in writing is received by the
attorney, the attorney is protected from future legal ramifications from the
disclosure as long as the disclosure is made within the perimeters of the
informed consent. It is the attorney’s ethical responsibility to assert the
attorney-client evidentiary privilege on behalf of the client when it is
applicable to do so.
Obtaining informed consent is not always possible. When informed
consent cannot be obtained from a client, the attorney should consult with
others (superiors, judges, courts, or bar associations) prior to making the
disclosure to prevent any disciplinary repercussions should the disclosure
later be determined to be an ethical violation. Attorneys have historically
been “officers of the courts” and are essential to administering justice for
all. 186 Justice for the client is served when the confidentiality of the
attorney-client privilege is maintained.
185.
186.
Ohralik v. Ohio State Bar Ass’n., 436 U.S. 447, 454 (1978).
Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975).
L a w y e r s o f A l l F a i t h s : C o n s t r u c t in g P r o f e s s io n a l
I d e n t it y a n d F in d in g C o m m o n G r o u n d
By Isabelle R. Gunning*
A bstract
Can one be a faithful lawyer? This article, based on a qualitative,
empirical study, argues that lawyers from all religious and spiritual
traditions constitute a singular community with shared values across their
different religious perspectives. The article posits that the community of
lawyers of all faiths constitutes a model for the American Bar in defining
and refining a legal professional identity that encompasses the range of
views and values present in our pluralistic bar.
The dominant view of a lawyer’s professional legal identity is that a
lawyer should be concerned solely with her professional or organizational
identity and should “bleach out” any other personal or group identities.
This article builds upon the previous work of the Religious Lawyering
Movement (RLM), which has challenged the view that religion or
spirituality has no place in a lawyer’s professional life. While past RLM
scholarship studied religious lawyers segregated within particular religious
traditions, this article, relying on the results of a study of a diverse group of
lawyers, assumes a different perspective: that lawyers from different
religious backgrounds share a number of commonalities and values that
support excellence in their lawyering. The ability of lawyers from diverse
religious backgrounds to find common ground in their work provides a
positive example for a professional legal identity that is inclusive of diverse
perspectives.
Professor of Law, Southwestern Law School, Los Angeles; J.D., Yale Law School; B.S., Yale
College. I presented this paper in 2014 at the sixth International Legal Ethics Conference hosted by the
City University London. 1 would like to thank the conference organizers for selecting my co-panelists
and myself to participate, my co-panelists Rakesh K. Anand and Azizah al-Hibri, and our moderator
Russell Pearce. Also, thanks to Ronald Aronovsky, A1 Calnan, Catherine Carpenter, Danni Hart, Austen
Parrish, Gowri Ramachandran, and Kelly Strader for their enormously helpful comments and
encouragement on earlier drafts of this paper. Thanks to Mackenzie Brown, Jessica Nadler, Tania
Ochoa, Karine Panosian, Nadia Sokolova, and Bryan Weiser for their excellent research assistance.
Thanks to Antonio Brown for his help and insights from a social scientist’s research perspective. And
finally, heartfelt thanks to the lawyers of faith who agreed to participate in this research project.
231
Introduction
Can one be a faithful lawyer? Can the legal profession embrace
lawyers of faith without it leading to the balkanization of the profession in
ways that mirror the religious strife seen within and between countries
around the world? The dominant view of a lawyer’s professional legal
identity is that a lawyer should be solely concerned with his professional or
organizational identity and should “bleach out” any other personal or group
identities. 12 There are contemporary minority voices within the profession
that differ with this dominant view,” with some defining the “authentic
lawyer” as one with “the ability to hold on to personal values and goals
while integrating them with a newly-acquired identity as a lawyer.” 3
However, the legal profession has been especially hesitant to legitimize the
inclusion of a lawyer’s personal religious or spiritual values into her
professional legal identity.
This article extends the tradition of the Religious Lawyering
Movement (RLM), an intellectual movement of legal scholars and lawyers
who contend that there is a role for lawyers’ religious or spiritual beliefs in
their lawyering and a role for faith in the construction of lawyers’ legal
professional identity. Historically, RLM scholars and lawyers gathered at
interfaith conferences to develop ideas around the religious lawyer and
religious lawyering. Findings at such conferences indicated some
expectation that lawyers of different faiths could converse and promote the
idea that religion or spirituality is professionally important to lawyers of
faith.4
1.
See Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction o f
Professional Identity, 14 CARDOZO L. R ev . 1577, 1578 (1993); see also David A. Thomas & Clayton P.
Alderfer, The Influence o f Race on Career Dynamics: Theory and Research on Minority Career
Experiences, in HANDBOOK OF CAREER THEORY 133, 145 (Michael B. Arthur et al. eds., 1989)
(providing a brief explanation of the terms “organizational identity” and “group identity” from
intergroup theory in psychology).
2.
Standing C omm , on P rofessionalism , A.B.A., Essential Qualities of the
Professional Lawyer (Paul A. Haskins ed., 2014) [hereinafter Essential Q ualities of the
Professional Lawyer ].
3.
Essential Q ualities of the P rofessional Lawyer , supra note 2, at 20.
4.
Symposium, The Religious Lawyering Movement: An Emerging Force in Legal Ethics and
Professionalism, 66 FORDHAM L. R ev . 1075 (1998).
232
2015]
Lawyers of All Faiths
233
Despite these findings, the approach of RLM scholars has been to study
lawyers of faith only within their separate silos of specific religious
traditions. While this tactic was appropriate to begin the RLM
conversation, continuing to study lawyers of faith only within individual
faith traditions sends the message that the RLM conversation is primarily
for the most conservative of religious lawyers, i.e., those who rarely find
community with lawyers outside of their own particular faith’s traditions.
This tactic risks turning RLM into a divisive approach within the legal
profession.
In this article, the author contends that the next step in the RLM needs
to be the study of lawyers of all faiths. The article fits in the RLM scholarly
conversation, but extends the RLM scholarship. It argues that all lawyers
of faith— even those from more exclusive religious traditions—have so
many commonalities as religious/spiritual lawyers that they can and should
be considered a single assessable community. Recognizing that all religious
or spiritual lawyers constitute a singular community is important because if
lawyers from diverse religions and spiritual traditions can find a significant
number of shared moral and professional values, such lawyers become a
model for the American Bar in defining (or refining) a professional legal
identity that encompasses the range of views and values present in our
pluralistic bar."
The RLM challenges the dominant view of the professional role for
lawyers. Other intellectual approaches, such as critical feminism and
critical race theory, have raised similar criticisms in scholarly legal circles.56
Both critical feminist and race theories challenge the idea that a lawyer’s
5.
See Robert F. Cochran, Professionalism in the Postmodern Age: Its Death, Attempts at
Resuscitation, and Alternate Sources o f Virtue, 14 NOTRE Dame J.L. ETHICS & Pub . Po l ’Y 305 (2000)
(tracing the history of legal professionalism, explaining its “death” once the bar became more diverse in
terms of race, class, and gender, and expressing both hope and concern with attempts to identify
common ideals, given the diversity o f the bar).
6.
Feminist legal theory combatted the essentialism of ostensibly neutral legal categories by
documenting the identity and consciousness of women as a social category by exploring the actual lived
experience of women; critical race feminism combatted the essentialism of feminist legal theory by
documenting the multi-faceted identities and multiple consciousnesses of women of color by exploring
their real-life experiences. See, for example, Adrien Katherine Wing, Introduction to CRITICAL R ace
FEMINISM: a Reader , 1, 2-5 (Adrien Katherine Wing ed., 2003), which collects not only theoretical
works challenging the essentialism of feminist legal theory, but also collects the narratives of women of
color. In a similar vein, RLM is challenging the essentialism of the dominant view o f the legal
profession by focusing on the idea that religion is as much an identity category as a belief system. See
also Joan W. Howarth, Teaching Freedom: Exclusionary Rights o f Student Groups, 42 U.C. Davis L.
Rev . 889, 914 (2009) (building on this theory as well as compiling empirical evidence of the narratives
of lawyers of faith). For similar approaches among feminist biblical scholars, see, for example, Ute E.
Eisen, Women O fficeholders in Early C hristianity : Epigraphical and Literary Studies 3
(2000);
Women
in
Church
Leadership:
Jesus
and
Women,
FUTURECHURCH,
http://futurechurch.org/wicl/jesuswomen.htm (last visited Sept. 29, 2013) (“In evaluating historical
data, feminist biblical scholars and Church historians now recognize the importance of differentiating
between ‘gender ideology’ and ‘the reality of women’s lives.’”).
234
The Journal of the Legal Profession
[Vol. 39:2
identity and legal categories can be defined by neutral classifications that
do not privilege one class or group experience over others.
Indeed, it is through critical feminist, race, and queer legal theories that
the criticism is fully developed to reveal as false that all claims with
facially neutral legal standards are neutral in effect. Standards and tests will
always have “group identification content.”7 If the standards and tests have
been created out of a process that includes neither an examination of
unconscious assumptions nor the inclusion of multiple group identification
perspectives, then the perspective that will be embedded in the standards
will likely be the dominant identity group—white, wealthy, heterosexual,
able-bodied male with American citizenship “status.” These compelling
arguments lead to the conclusion articulated by Professor Russell Pearce, a
leader in the RLM, that the legal professional ideal of “bleaching out” is
not just (arguably) undesirable, it is actually “unrealizable.”89
Two questions arise from this observation: what should replace the
“bleaching out” dominant view, and how can other personal or group
identities be included in a shared professional identity? Scholars and
lawyers from a variety of faith traditions have argued persuasively for the
inclusion of one particular set of personal or group identities in one’s
lawyering—religious or spiritual values. But if there is to be a shared
professional identity, we must grapple with the issue of whether
professional values are able to coincide with, and can be mediated by,
personal or group identity values.
Typically, religion or faith is expected to impact lawyering by
anchoring lawyers moral values and thereby impacting their sense of what
is ethical.4 This raise...
Purchase answer to see full
attachment