The religious lawyer in a pluralist society

Fordham Law Review

Volumn 66, Issue 4, 1998, Pages 1469-1503

  Lesnick, Howard ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 0032371667     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (156)

1. See Board of Professional Responsibility of the Supreme Court of Tennessee, Formal Op. 96-F-140 (1996) [hereinafter Formal Op. 96-F-140]. The Tennessee law in question provides: "If . . . the minor elects not to seek consent of the parent or legal guardian whose consent is required, then the minor may petition, on the minor's own behalf, or by next friend, the juvenile court of any county of this state for a waiver of the consent requirement . . . ." Tenn. Code Ann. § 37-10-303(b) (Supp. 1997).
2. Formal Op. 96-F-140, supra note 1.
3. Id. The omitted language referred to "malpractice insurance" concerns as an additional reason.
4. Id. Tennessee is a "Code" State, that is, one in which the Model Code of Professional Responsibility (1969) [hereinafter Model Code], rather than the Model Rules of Professional Conduct (1983) [hereinafter Model Rules], is in force. However, the language quoted did not appear in the Model Code, supra, promulgated by the American Bar Association in 1969, but was nevertheless adopted into the Tennessee Code from the Model Rules, supra, Rule 1.4(b). The Board preliminarily observed that, under local law, an appointed attorney "represents only the minor," that is, acts as an advocate rather than a guardian. See Formal Op. 96-F-140, supra note 1.
5. Formal Op. 96-F-140, supra note 1. It may be that the Board's language reflected the substantive criterion by which a judge is to decide whether to grant the waiver. The statute provides that the consent requirement "shall be waived if the court finds either that: (1) The minor is mature and well-informed enough to make the abortion decision on the minor's own; or (2) the performance of the abortion would be in the minor's best interests." Tenn. Code. Ann. § 37-10-304(e) (1996).
6. Formal Op. 96-F-140, supra note 1.
7. Id. The Board quoted the second sentence of the Model Code, supra note 4, EC 2-29, which in its entirety reads: When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case. Id. (citations omitted). The cases relied on dealt with attorneys held in contempt for refusing judicial appointment in criminal cases. According to the Board, they stand substantively for the proposition that distaste for the offense charged, like unpopularity of the defendant, would not excuse failure to accept appointment. See Formal Op. 96-F-140, supra note 1.
8. Formal Op. 96-F-140, supra note 1.
9. Id. (quoting Board of Professional Responsibility of the Supreme Court of Tennessee, Formal Op. 84-F-73 (1984)).
10. In personal correspondence, Professor Jack Sammons has questioned my willingness to accept the Board's Opinion as an accurate expression of the prevailing norms of the profession. Rather than taking issue with the Board on grounds that I present as largely external to those norms, he would have preferred that I explore the resources for criticism that exist "within the practice." His article, Rank Strangers to Me: Shaffer and Cochran's Friendship Model of Moral Counseling in the Law Office, 18 U. Ark. Little Rock L.J. 1 (1995), is a challenging articulation of a broader conception of "the practice." See especially the concluding sections, id. at 34-67.
11. See Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577 (1993).
12. See Russell G. Pearce, Jewish Lawyering in a Multicultural Society: A Midrash on Levinson, 14 Cardozo L. Rev 1613, 1616 (1993).
13. See Joseph G. Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice 7-24 (1996) [hereinafter Allegretti, The Lawyer's Calling]; Joseph Allegretti, Christ and the Code: The Dilemma of the Christian Lawyer, 34 Cath. Law. 131 (1988).
14. See Joseph G. Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice 7-24 (1996) [hereinafter Allegretti, The Lawyer's Calling]; Joseph Allegretti, Christ and the Code: The Dilemma of the Christian Lawyer, 34 Cath. Law. 131 (1988).
15. See Joseph G. Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice 7-24 (1996) [hereinafter Allegretti, The Lawyer's Calling]; Joseph Allegretti, Christ and the Code: The Dilemma of the Christian Lawyer, 34 Cath. Law. 131 (1988).
16. See Michael J. Perry, The Idea of a Catholic University, 78 Marq. L. Rev. 325 (1995); see also Lynn R. Buzzard, Vocation, Work and Calling: A Discipleship Study 35 (1985) (describing three "rationales or bases . . . for Christians serving in politics or law").
17. See Michael J. Perry, The Idea of a Catholic University, 78 Marq. L. Rev. 325 (1995); see also Lynn R. Buzzard, Vocation, Work and Calling: A Discipleship Study 35 (1985) (describing three "rationales or bases . . . for Christians serving in politics or law").
18. I tend to share Kent Greenawalt's belief that "[n]o specification of essential conditions will capture all and only the beliefs, practices, and organizations that are regarded as religious in modern culture and should be treated as such under the Constitution." Kent Greenawalt, Religion as a Concept in Constitutional Law, 72 Cal. L. Rev. 753, 763 (1984). But even if one could establish that Greenawalt has overstated the matter, the effort to make an "if and only if" specification of the qualities that make one "religious" is, for reasons given in the text immediately following, simply not a useful one for present purposes. An "essential conditions" approach seeks to define religion in terms of "either a single feature necessary and sufficient, or else a conjunction of simple features (A and B and C and . . .) that is necessary and sufficient for the application of [the] term." Id. at 763 n.46. For Greenawalt's argument against such an approach, see id. at 763-67. The anthropologist Clifford Geertz, referring specifically to religion, writes of his preference for a "definitional procedure of a more inductive sort." Clifford Geertz, Islam Observed: Religious Development in Morocco and Indonesia 96 (1968). His effort is to describe not a "universal property" that has "Cartesian sharpness, but . . . a system of concepts that can sum up a set of inexact . . . yet genuine similarities." Id. at 96-97.
19. Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 J.L. & Religion 65, 66 (1987). The quoted sentence ends, "obligation or mitzvah." Id. The latter word "literally means commandment but has a general meaning closer to 'incumbent obligation.'" Id. at 65.
20. Fyodor Dostoyevsky, The Brothers Karamozov 789 (Constance Garnett trans., Random House 1950) (1880).
21. Sophocles, Antigone, in Anthology of Greek Drama 101, 115 (Charles Alexander Robinson, Jr. ed., 1963) (442 B.C.E.).
22. Antigone's response goes on to describe this conception in graphic terms: Nor did deem thine edicts of such force That they, a mortal's bidding, should o'erride Unwritten laws, eternal in the heavens. Not of to-day or yesterday are these, But live from everlasting . . . ." Id.
23. Nancy Fuchs-Kreimer, God as "Fuehrer," Reconstructionism Today, Autumn 1993, at 13.
24. Id.
25. Mahzor for Rosh Hashanah and Yom Kippur: A Prayer Book for the Days of Awe 258 (Rabbi Jules Harlow ed., 1978).
26. Geertz, supra note 15, at 110.
27. Richard Stith, Images, Spirituality, and Law, 10 J.L. & Religion 33, 43 (1993-94) (attributing the thought to Saint Thomas Aquinas).
28. Matthew Berke, A Jewish Appreciation of Catholic Social Teaching, in Catholicism, Liberalism, and Communitarianism: The Catholic Intellectual Tradition and the Moral Foundations of Democracy 235, 239 (Kenneth L. Grasso et al. eds., 1995) ("[T]he commandments are not regarded here as arbitrary, life-denying impositions that are alien to man's real impulses . . . . 'In fact, human freedom finds its authentic and complete fulfillment precisely in the acceptance of that law.'" (quoting Pope John Paul II)).
29. C.S. Lewis, Surprised By Joy: The Shape of My Early Life 231-32 (1955).
30. Id. at 231.
31. Joseph Boyle, Duties to Others in Roman Catholic Thought, in Duties to Others 73, 84 (Courtney S. Campbell & B. Andrew Lustig eds., 1994) (citations omitted).
32. Jeremiah 31:33-34: But this is the covenant that I will make with the house of Israel after those days, says the Lord: I will put my law within them, and I will write it on their hearts; and I will be their God, and they shall be my people. No longer shall they teach one another, or say to each other, "Know the Lord," for they shall all know me, from the least of them to the greatest . . . . Id.
33. Jeremiah 31:30 n.32 (Soncino Books of the Bible 1959).
34. Deuteronomy 30:12-14.
35. Emily Fowler Hartigan, The Power of Language Beyond Words: Law as Invitation, 26 Harv. C.R.-C.L. L. Rev. 67, 89 (1991).
36. Matthew 26:39.
37. Robert Bolt, A Man for All Seasons: A Play in Two Acts 141 (1960).
38. Douglas V. Steere, Traveling In 23-24 (E. Glenn Hinson ed., 1995).
39. Matthew 26:38.
40. 50 U.S.C. app. § 456(j) (1958).
41. 380 U.S. 163 (1965).
42. Id. at 184.
43. 398 U.S. 333 (1970).
44. Id. at 340.
45. Id. The prevailing Justices divided over the question whether the language of the statute involved in Seeger and Welsh could be read so broadly. Justice Harlan would have characterized the moral beliefs at bar as secularly rather than religiously grounded, but concurred in the result on the ground that the Establishment Clause forbade Congress from honoring the latter without also accommodating the former. Welsh, 398 U.S. at 344-54. See also the brief discussion in Greenawalt, supra note 15, at 760. The dissenting Justices shared Harlan's view of the meaning of the statute, but would have upheld the constitutionality of it so viewed. Welsh, 398 U.S. at 367-74.
46. 450 U.S. 707 (1981).
47. Id. at 710-11.
48. Id. at 713, 715 (quoting Thomas v. Review Bd. of the Ind. Employment Sec. Div., 391 N.E.2d 1127, 1131 (Ind. 1979)).
49. Id. at 716.
50. 489 U.S. 829 (1989).
51. Id. at 829-30.
52. Id. at 833.
53. Cf. State v. Hodges, 695 S.W.2d 171 (Tenn. 1985). Hodges deals with a defendant who claimed religious grounds for appearing in court dressed in fur tied at several points along his body but leaving his chest and back naked to the waist, his face and chest painted pale green, wearing goggles, and carrying or holding a stuffed snake and a human skull. Id. at 171 n.1. The Court held that he was entitled to a hearing on the sincerity issue, on which the fact (if it proved to be so) that defendant was "the sole adherent" to his claimed religion "may be decisive." Id. at 173. See the discussion of the problem of "the radically variant view of a single individual" in Samuel J. Levine, Rethinking the Supreme Court's Hands-Off Approach to Questions of Religious Practice and Belief, 25 Fordham Urb. L.J. 85, 96 & n.53 (1988).
54. 42 U.S.C. §§ 2000bb-1(a)-(b) (1994).
55. The story is told in Doug Laycock's article, co-authored with Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 230-34 (1994).
56. Mack v. O'Leary, 80 F.3d 1175, 1179 (7th Cir. 1996). He went on: Many religious practices that clearly are not mandatory, such as praying the rosary, in the case of Roman Catholics, or wearing yarmulkes, in the case of Orthodox Jews (optional because while Jewish men are required to cover their heads, the form of the head covering is not prescribed), are important to their practitioners, who would consider the denial of them a grave curtailment of their religious liberty. Id.
57. City of Boerne v. Flores, 117 S. Ct. 2157 (1997).
58. 668 N.E.2d 1298 (Mass. 1996).
59. Mass. Gen. Laws ch. 151B, § 4(1A) (1997).
60. Pielech, 668 N.E.2d at 1300.
61. Id.
62. Id. at 1301. Moreover, the court reasoned, to require the judiciary "to ascertain the requirements of the religion at issue" violates the prohibition of excessive entanglement of courts in religious disputes. Id. at 1303.
63. The statute before the Supreme Judicial Court protected "the practice of his creed or religion as required by that creed or religion . . . ." Id. (quoting Mass. Gen. Laws ch. 151B, § 4(1A) (1997)). The court either believed that "that creed or religion" could not be that of the individual claimant, but only that of the institution, or it believed that, if the reference were to the individual's creed or religion, it was anomalous to deem the practice in question "required;" the statute did not, after all, refer to practices "motivated by" or "grounded in" religion. Both grounds seem curiously unnecessary, given that the court saw the constitutionality of the statute at stake, but the second - which for our purposes is the more significant - was not given voice in any judicial language. The ultimate curiosity is that the court, having held the statute unconstitutional because it failed to protect plaintiffs, ruled that they therefore could not rely on it at all, and dismissed the complaint. There was no discussion of the alternatives following a judgment of invalidity because of underinclusiveness. On such an approach, the claimants in Seeger and Walsh also would have lost their suits.
64. The sequel to the Pielech decision, interestingly enough, lends support to a broader view of obligation. The Massachusetts legislature, seeking to "restore the right of individuals to be free from discrimination in the workplace based on their sincerely held religious beliefs," amended the statute to overrule the construction given it by the Supreme Judicial Court. The words, "creed or religion," are now defined to include "any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religious institution or organization." S. 105, 181st Gen. Ct., Reg. Sess. (Mass. 1997), available in WL, 1997 MA S.B. 105. The Supreme Judicial Court had held that enactment of the Bill would not violate the Establishment Clause. See Opinion of the Justices to the House of Representatives, 673 N.E.2d 36 (Mass. 1996).
65. 1 The Journal of George Fox 113 (Norman Penney ed., 1911).
66. See also the extremely powerful account by another German, Emil Fuchs, Christ in Catastrophe (1949), of the way in which his direct experience of the presence of Christ in his prison cell enabled him to resist, at great cost, Nazi oppression.
67. Amos 5:21-24.
68. Ronald M. Green, Religious Reason: The Rational and Moral Basis of Religious Belief 136 (1978). Green goes on: "If the moral life has, as one of its vital preconditions, an integrated, disciplined and attentive self, then one important effect of Jewish law, both in its moral and religious dimensions, was to create this kind of ordered and sensitive personality." Id.
69. C.G. Montefiore & H. Loewe, A Rabbinic Anthology 349 (1974).
70. Id. at 347.
71. Seyyed Hossein Nasr, Ideals and Realities of Islam 98 (1966).
72. Thich Nhat Hanh, Interbeing: Commentaries on the Tiep Hien Precepts 51 (1987).
73. Seth Kreimer, The Responsibilities of the Jewish Lawyer 2 (unpublished article on file with the author). See also Sam Levine's discussion of his search among the writings of the Sages for guidance in finding and carrying on "a career related to more internal matters of religion, affecting my moral character and spirituality." Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1203 (1996).
74. Kreimer, supra note 70, at 2-3.
75. Allegretti, The Lawyer's Calling, supra note 13, at 126.
76. Levinson, supra note 11, at 1586.
77. The subject would be of interest with respect to a society that was both secular and anti-semitic. Twentieth-century history does not lack examples.
78. Levinson, supra note 11, at 1578-79.
79. See supra notes 6-9 and accompanying text.
80. Thomas L. Shaffer, The Tension Between Law in America and the Religious Tradition, in Law and the Ordering of Our Life Together 28, 45 (Richard John Neuhaus ed., 1989).
81. Thomas L. Shaffer & Mary M. Shaffer, American Lawyers and Their Communities: Ethics in the Legal Profession 198 (1991). For a further discussion, see id. at 213-17.
82. Shaffer, supra note 77, at 49.
83. See Shaffer & Shaffer, supra note 78, at 199.
84. Id.
85. Thomas L. Shaffer, Maybe a Lawyer Can Be a Servant; If Not . . ., 27 Tex. Tech L. Rev. 1345, 1350 (1996).
86. For an understanding discussion of such a reaction, see Merold Westphal, Suspicion and Faith: The Religious Uses of Modern Atheism (1993).
87. Abraham Joshua Heschel, The Sabbath 75 (1966) (published with Abraham Joshua Heschel, The Earth is the Lord's).
88. The word, holy, is associated in current usage with a judgmental or self-righteous piety. The word, sacred, better fits the sense, which I will develop here, of openness to awe.
89. Rudolf Otto, The Idea of the Holy: An Inquiry into the Non-Rational Factor in the Idea of the Divine and its Relation to the Rational 2-30 (1958).
90. Mircea Eliade, The Sacred and the Profane: The Nature of Religion 10 (Willard R. Trask trans., 1959).
91. Daniel C. Maguire, The Moral Core of Judaism and Christianity: Reclaiming the Revolution 33 (1993).
92. Samuel H. Weintraub, The Spiritual Ecology of Kashrut, Reconstructionist, Winter 1991/1992, at 132, 133. Compare Vanessa Ochs' eloquent personal testimony: I knew what the sanctified life was not. Not a life filled with more rituals, more scrupulously observed. Not more praying. Not becoming a better person, being more charitable, more concerned with everyone else's pains. Sanctifying had something to do with a sense of constant wonder - feeling gratitude and finding significance everywhere, in every action, relationship, and object. Vanessa L. Ochs, Words on Fire: One Woman's Journey into the Sacred 5 (1990).
93. Abraham Joshua Heschel, Man Is Not Alone: A Philosophy of Religion ch. 2 (1951).
94. Nachman of Breslov, The Empty Chair: Finding Hope and Joy 59 (Moshe Mykoff ed., 1994).
95. Joseph B. Soloveitchik, Halakhic Man 46 (Lawrence Kaplan trans., 1983).
96. Harold M. Schulweis, For Those Who Can't Believe: Overcoming the Obstacles to Faith 56 (1994).
97. Id. at 61.
98. Stith, supra note 24, at 42 n.34.
99. William Blake, Auguries of Innocence, in II The Oxford Anthology of English Poetry 10, 10 (John Wain ed., 1990).
100. Abraham Joshua Heschel, God in Search of Man: A Philosophy of Judaism 49 (1955).
101. Genesis 28:16.
102. Recall Justice Black's memorable plea that we not, by overriding individual perhaps idiosyncratic moral scruples, move closer to becoming an "orthodox, time-serving, government-fearing" people. See In re Anastaplo, 366 U.S. 82, 116 (1961) (Black, J., dissenting). Recall too that I am not making a constitutional argument. For a skeptical analysis of some asserted bases of constitutional protection for religiously (and secularly) motivated claims of "privilege," see Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. Chi. L. Rev. 1245, 1254-70 (1994). For their alternative approach, see id. at 1282-1311.
103. Laura Underkuffler-Freund, The Separation of the Religious and the Secular: A Foundational Challenge to First Amendment Theory, 36 Wm. & Mary L. Rev. 837, 965-66 (1995). Underkuffler-Freund adduces substantial historical sources designed to support this conclusion. See id. at 874-960.
104. For a clear and persuasive philosophical statement grounding this belief in the incapacity of a "transcendent Moral Law (or the like)" to foreclose debate about its content, see Jeffrey Stout, Ethics After Babel: The Languages of Morals and Their Discontents 21-35 (1988).
105. 1 Corinthians 13:12.
106. See supra note 2 and accompanying text.
107. Model Rules, supra note 4, Rule 1.2(b).
108. The literature is vast. For justificatory exemplars, see Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976); Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 1986 Am. B. Found. Res. J. 613. For skeptical analyses, see, for example, David Luban, Lawyers and Justice: An Ethical Study 50-103 (1988); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1 (1975). Professor Pepper's approach, to one who found it persuasive, would supply an answer to the question posed rhetorically in the text.
109. The literature is vast. For justificatory exemplars, see Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976); Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 1986 Am. B. Found. Res. J. 613. For skeptical analyses, see, for example, David Luban, Lawyers and Justice: An Ethical Study 50-103 (1988); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1 (1975). Professor Pepper's approach, to one who found it persuasive, would supply an answer to the question posed rhetorically in the text.
110. The literature is vast. For justificatory exemplars, see Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976); Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 1986 Am. B. Found. Res. J. 613. For skeptical analyses, see, for example, David Luban, Lawyers and Justice: An Ethical Study 50-103 (1988); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1 (1975). Professor Pepper's approach, to one who found it persuasive, would supply an answer to the question posed rhetorically in the text.
111. Model Code, supra note 4, EC 2-29.
112. Id. (citations omitted).
113. Formal Op. 96-F-140, supra note 1.
114. Indeed, given that the attorney practices "routinely" in the Juvenile Court, and had been appointed to represent minors seeking an abortion more than once before, I am led to wonder about the motivation of the judge, who presumably knew the lawyer's religion, for making the appointments. It is possible, but hardly likely, that he was doing it out of hostility to the lawyer, or - as we too often boast of doing in law school - to teach him the skill (and the joys) of arguing "the other side." Rather, my fear - although based on no evidence at all - is that the appointments reflected the judge's antipathy toward the availability of abortion and that he had been appointing a similarly inclined lawyer in the hope of discouraging young women from going ahead with the petition. Such a course of conduct would not only be a seriously lawless act of oppression of the petitioner, it would also be an imposition on a conscientious attorney who wished neither to assist a minor to obtain an abortion nor, by intruding himself or herself into the minor's life, to misuse an attorney's power over her to discourage her from it. Indeed, it is not beyond the bounds of plausible speculation that the inquiry was a means of affording a truly conscientious attorney a way out of a moral Hobson's choice.
115. The literature has many excellent expositions of the idea that a rejection of complete role-differentiation does not entail a complete effacing of a role-based distinction between a lawyer's and a client's moral position. For one example, see Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63, 73-81 (1980).
116. The ill-fated Religious Freedom Restoration Act sought to prohibit "govern-ment" from "substantially burden[ing] a person's exercise of religion" unless it meets the burden of showing that "application of the burden to the person . . . is in furtherance of a compelling governmental interest." 42 U.S.C. § 2000bb-1(b) (1995). (For the significance of the italicized phrase to the permissibility of denying exemptions from legitimate general obligations, see Laycock & Thomas, supra note 52, at 222). "Government" was defined to include any "department, agency, [or] instrumentality" of a State or state subdivision, 42 U.S.C. § 2000bb-2(1), and presumably would have applied to the professional codes promulgated and enforced by or under the authority of a State's highest court.
117. Formal Op. 96-F-140, supra note 1.
118. The most pertinent proof-text, for me, is Leviticus 19:16: "You shall not stand idly by the blood of your neighbor." Id. For a discussion of the significance of this passage, see Ben Zion Eliash, To Leave or Not to Leave: The Good Samaritan in Jewish Law, 38 St. Louis U. L.J. 619 (1994). The classic application is, of course, Jesus' Parable of the Good Samaritan, Luke 10:25-37.
119. For a careful discussion, see David B. Wilkins, Legal Realism for Lawyers, 104 Harv. L. Rev. 468, 484-96 (1990).
120. Formal Op. 96-F-140, supra note 1.
121. See supra note 5.
122. Warren Lehman, The Pursuit of a Client's Interest, 77 Mich. L. Rev. 1078, 1080-81 (1979).
123. Note, though, that it supports the premise of the lawyer's effort to avoid the representation altogether.
124. Allegretti, The Lawyer's Calling, supra note 13, at 41, 45.
125. Model Code, supra note 4, EC 7-8 n.18.
126. Aided (as so often I have been) by my daughter's "wise counsel," I acknowledge that the limiting words, "often" and "might be," must be borne in mind. There will be cases in which the minor's life is "entangled" and out of "workable order" only because she needs judicial approval and counsel's help in obtaining it. Her parents may be neglectful or abusive in any of innumerable ways, and it may be a wholly mature and fully considered decision to keep them at bay with respect to her sexuality and her pregnancy. In such cases, the admonitions in the next paragraph of the text about the manner and limits of the lawyer's counseling role are certainly applicable.
127. Recall the language of Ethical Consideration 7-8: A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so. Advice of a lawyer to his client need not be confined to purely legal considerations. . . . A lawyer should bring to bear upon this decision-making process the fullness of his experience as well as his objective viewpoint. In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible. . . . In the final analysis, however, the lawyer should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client and not for himself. Model Code, supra note 4, EC 7-8.
128. Thomas L. Shaffer, Legal Ethics and the Good Client, 36 Cath. U. L. Rev. 319, 319 (1987) [hereinafter Shaffer, Legal Ethics]. Elsewhere, Shaffer acknowledges the risks of "moral imperialism and self-deception," which - even for a lawyer recognizing their presence and force - reinforce the risk of "imposition." He recognizes the danger of overwhelming the integrity of the client, but believes that the risks are "worth it." See Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers as Strangers and Friends: A Reply to Professor Sammons, U. Ark. Little Rock L.J. 69, 83-84 (1995). Shaffer's fullest elaboration of the idea of moral discourse - in advocacy as well as counseling - is in his book, On Being a Christian and a Lawyer (1981).
129. Thomas L. Shaffer, Legal Ethics and the Good Client, 36 Cath. U. L. Rev. 319, 319 (1987) [hereinafter Shaffer, Legal Ethics]. Elsewhere, Shaffer acknowledges the risks of "moral imperialism and self-deception," which - even for a lawyer recognizing their presence and force - reinforce the risk of "imposition." He recognizes the danger of overwhelming the integrity of the client, but believes that the risks are "worth it." See Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers as Strangers and Friends: A Reply to Professor Sammons, U. Ark. Little Rock L.J. 69, 83-84 (1995). Shaffer's fullest elaboration of the idea of moral discourse - in advocacy as well as counseling - is in his book, On Being a Christian and a Lawyer (1981).
130. Thomas L. Shaffer, Legal Ethics and the Good Client, 36 Cath. U. L. Rev. 319, 319 (1987) [hereinafter Shaffer, Legal Ethics]. Elsewhere, Shaffer acknowledges the risks of "moral imperialism and self-deception," which - even for a lawyer recognizing their presence and force - reinforce the risk of "imposition." He recognizes the danger of overwhelming the integrity of the client, but believes that the risks are "worth it." See Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers as Strangers and Friends: A Reply to Professor Sammons, U. Ark. Little Rock L.J. 69, 83-84 (1995). Shaffer's fullest elaboration of the idea of moral discourse - in advocacy as well as counseling - is in his book, On Being a Christian and a Lawyer (1981).
131. It is important to recognize that we are not dealing here merely with the representation of a person who has committed what, in the lawyer's eyes, is a serious wrong, but with one who seeks the lawyer's aid in committing such a wrong. As Shaffer notes with respect to counseling commercial clients, "the moral issue that is raised here has less to do with frustrating retributive justice than with complicity. The question is whether a lawyer should lend his assistance to wrong that has yet to occur." Thomas L. Shaffer, Should a Christian Lawyer Serve the Guilty?, 23 Ga. L. Rev. 1021, 1030 (1989).
132. Jeffrey Stout describes Martin Luther King's mastery in "modulating his use of biblical categories when addressing audiences outside of the black church," so as to "invoke religious language, when appropriate, without presupposing a full-fledged system of religious belief." Stout, supra note 101, at 331. Professor Lynn Buzzard of the Christian Legal Society describes three outlooks for "Christians serving in politics or law." Buzzard, supra note 14, at 35. The first, which he terms "evangelistic," is "using the profession as beachhead for evangelism." Id. While perhaps harmless when practiced with a strong client, I believe that this mode is inappropriate in any case and no more legitimate than energetically soliciting clients to contribute to the lawyer's favorite charity. "Using" is the right word; it is using the client for the attorney's own purposes, and unless there is specific ground for perceiving an invitation, it is a misuse of the relationship. Practiced with a vulnerable client, it is a gross abuse of power and the moral equivalent of an assault and battery.
133. It is a serious failing for a lawyer to regard a true (non-impositional) sharing with the client of his or her moral insights as simply an option, to be picked up or not at the lawyer's unguided fancy. If honest reflection would prompt the belief that the task can be undertaken and carried out properly, I regard it as an abdication of responsibility for a lawyer not to make the attempt. On the source of the failing, see infra notes 129-30, 132 and accompanying text.
134. Allegretti, The Lawyer's Calling, supra note 13, at 46, See also Allegretti's comments in Lawyers, Clients and Covenant: A Religious Perspective on Legal Practice and Ethics, 66 Fordham L. Rev. 1101 (1998), and, to like effect, Thomas L. Shaffer, Legal Ethics, supra note 123, at 329 ("[M]oral advice is not good unless it is open to influence from the client; he who counsels his sister must be prepared to be counseled in turn. . . . This theology of the client argues against the legal ethics of rectitude, which has so often seemed to think of him as no damned good.").
135. Allegretti, The Lawyer's Calling, supra note 13, at 46, See also Allegretti's comments in Lawyers, Clients and Covenant: A Religious Perspective on Legal Practice and Ethics, 66 Fordham L. Rev. 1101 (1998), and, to like effect, Thomas L. Shaffer, Legal Ethics, supra note 123, at 329 ("[M]oral advice is not good unless it is open to influence from the client; he who counsels his sister must be prepared to be counseled in turn. . . . This theology of the client argues against the legal ethics of rectitude, which has so often seemed to think of him as no damned good.").
136. Shaffer, Legal Ethics, supra note 123, quotes Martin Buber, who famously originated the "I-Thou" imagery, for the insight that the objective reality of an interaction between a professional and a person seeking his or her aid "tragically" traps both parties in an unequal relationship. Id. at 319-20. He refers to a remarkable dialogue between Buber and the great therapist Carl Rogers, in which Buber insists that, no matter how much the doctor (lawyer?) attempts to work "on the same plane" as the patient (client?), the former seeks to look at the relationship from both sides, while the latter can do so only from his or her own. See Martin Buber, The Knowledge of Man 171-72 (Maurice Friedman & Ronald Gregor Smith trans., 1965). Therein lies the "tragic" condition: "Humanity, human will, human understanding, are not everything. There is some reality confronting us." Id. at 172.
137. Jack Sammons has been developing an immensely thought-provoking attempt to articulate a very different conception, most fully (so far as I am aware) in his article cited above. See Sammons, supra note 10.
138. Abraham Joshua Heschel, No Religion Is an Island, in No Religion is an Island: Abraham Joshua Heschel and Interreligious Dialogue 7-8 (Harold Kasimow & Byron L. Sherwin eds., 1991). Rodger Kamenetz recounts a beautiful Hasidic account to like effect: [B]efore every human being comes a retinue of angels, announcing, "Make way for an image of the Holy One, Blessed be He." How rarely do we listen for those angels when we encounter another human being. How rarely do we see in another human being's eyes an image of everything we hold most dear. Roger Kamenetz, The Jew in the Lotus: A Poet's Rediscovery of Jewish Identity in Buddhist India 233 (1994).
139. Abraham Joshua Heschel, No Religion Is an Island, in No Religion is an Island: Abraham Joshua Heschel and Interreligious Dialogue 7-8 (Harold Kasimow & Byron L. Sherwin eds., 1991). Rodger Kamenetz recounts a beautiful Hasidic account to like effect: [B]efore every human being comes a retinue of angels, announcing, "Make way for an image of the Holy One, Blessed be He." How rarely do we listen for those angels when we encounter another human being. How rarely do we see in another human being's eyes an image of everything we hold most dear. Roger Kamenetz, The Jew in the Lotus: A Poet's Rediscovery of Jewish Identity in Buddhist India 233 (1994).
140. Allegretti, The Lawyer's Calling, supra note 13, at 45.
141. The potential for a genuinely relational counseling process (including its moral dimension) is impaired, in my judgment, by the culture of both law schools and law practice, in particular their obsessive focus on rights, obligations, and hierarchy of decisional authority, which leads to an insufficient attention to the process of interaction between lawyer and client. For a useful discussion of the need for "structures that create dialogue," see Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 Am. B. Found. Res. J. 1003, 1013. In my view, even clinical education, although emphasizing the counseling function, excessively tends to think of it as an exchange of information. Warren Lehman's essay, supra note 117, is a useful corrective.
142. See supra note 15 and accompanying text. For some additional attempts to give content to the term, see Judge Arlin Adams' influential concurring opinion in Malnak v. Yogi, 592 F.2d 197, 200-15 (3d Cir. 1979) (per curiam); Eisgruber & Sager, supra note 99, at 1291-97; and the brief summary of several others in Michael S. Ariens & Robert A. Destro, Religious Liberty in a Pluralistic Society 984 (1996).
143. Rodney K. Smith, Converting the Religious Equality Amendment into a Statute with a Little "Conscience,'" 1996 BYU L. Rev. 645, 678. Eisgruber & Sager, supra note 99, at 1268-69, articulate the meaning of "conscience" as a pull "toward doing the right thing."
144. The Christian theologian Sandra Schneiders describes the world view she terms "rationalism" in these terms: the boundless confidence in the capacity of the human mind to know everything by means of the . . . scientific method, . . . the repudiation of mystery as a meaningful category, the justification of whatever destruction is necessary to extract the secrets of nature, . . . and the reduction of reality to what can be scientifically investigated . . . . Sandra M. Schneiders, Contemporary Religious Life: Death or Transformation?, 46 Cross Currents 510, 522 (1996-97). The African-American Christian philosopher Cornel West writes critically of ethical traditions whose "preoccupation" with "improving the social circumstances under which people pursue love, revel in friendship, and confront death" has led them to be "silent about the existential meaning of death, suffering, love, and friendship." Cornel West, The Ethical Dimensions of Marxist Thought xxvii-xxviii (1991). "Social theory is not the same as existential wisdom," he maintains, and it is the existential issue that to West is critical. Id. As Richard Rubenstein observes, a "purely secular society": lacks a sense of the tragic. It has yet to know what even the most archaic religions comprehended: that all human projects are destined to falter and fail. For technical society, failure is an incident to be overcome by further effort facilitated by the replacement of older units of manpower with newer units. For the human person, failure is of the very essence. Richard L. Rubenstein, After Auschwitz: History, Theology, and Contemporary Judaism 27 (2d ed. 1992).
145. The Christian theologian Sandra Schneiders describes the world view she terms "rationalism" in these terms: the boundless confidence in the capacity of the human mind to know everything by means of the . . . scientific method, . . . the repudiation of mystery as a meaningful category, the justification of whatever destruction is necessary to extract the secrets of nature, . . . and the reduction of reality to what can be scientifically investigated . . . . Sandra M. Schneiders, Contemporary Religious Life: Death or Transformation?, 46 Cross Currents 510, 522 (1996-97). The African-American Christian philosopher Cornel West writes critically of ethical traditions whose "preoccupation" with "improving the social circumstances under which people pursue love, revel in friendship, and confront death" has led them to be "silent about the existential meaning of death, suffering, love, and friendship." Cornel West, The Ethical Dimensions of Marxist Thought xxvii-xxviii (1991). "Social theory is not the same as existential wisdom," he maintains, and it is the existential issue that to West is critical. Id. As Richard Rubenstein observes, a "purely secular society": lacks a sense of the tragic. It has yet to know what even the most archaic religions comprehended: that all human projects are destined to falter and fail. For technical society, failure is an incident to be overcome by further effort facilitated by the replacement of older units of manpower with newer units. For the human person, failure is of the very essence. Richard L. Rubenstein, After Auschwitz: History, Theology, and Contemporary Judaism 27 (2d ed. 1992).
146. I owe my recognition here of this variety of transcendence to Alice Lesnick.
147. Martha C. Nussbaum, Valuing Values: A Case for Reasoned Commitment, 6 Yale J.L. & Human. 197, 212 (1994) (emphasis added).
148. Id.
149. Compare this with the justly famous essay by philosopher-mathematician Bertrand Russell, A Free Man's Worship, in Selected Papers of Bertrand Russell 1 (1927). Although its richness defies selective quotation, even a brief portion suggests its integration of deep religious skepticism and a pervading sense of awe. Our "true freedom," to Russell, lies in our "determination to worship only the God created by our own love of the good, to respect only the heaven which inspires the insight of our best moments." Id. at 6. He continues: "[F]or Man, condemned to-day to lose his dearest, to-morrow himself to pass through the gate of darkness, it remains only to cherish, ere yet the blow falls, the lofty thoughts that ennoble his little day; . . . to worship at the shrine that his own hands have built." Id. at 14.
150. Eisgruber & Sager, supra note 99, at 1292. It is worth noting that this view has substantial constitutional support. See, for example, Justice Harlan's concurring opinion in Welsh v. United States, 398 U.S. 333, 344 (1970). As Kent Greenawalt observes: "It can be asserted both that the Free Exercise Clause demands an exemption for one class of persons and that the Establishment Clause then requires its extension to another class . . . ." Kent Greenawalt, All or Nothing at All: The Defeat of Selective Conscientious Objection, 1971 Sup. Ct. Rev. 31, 43.
151. Acknowledging that "[e]fforts to create a definition of 'conscience' that is sufficiently restrictive to be viable and, at the same time, capable of protecting actual matters of conscience are challenging," Smith, supra note 134, at 681, Professor Smith takes up the challenge, presenting a case for protecting non-religious scruples that seeks to give the concept discernible contours, id. at 669-86. His discussion describes and responds to some skeptical academic analyses of the question by Michael McConnell and Jesse Choper among others.
152. Shaffer, supra note 124, at 1030. Shaffer also uses the example of a corporate executive rather than a lawyer: The law directs the corporate manager to an immoral course of action. She is called ["out of the church"] to be a trustee for those whose labor has produced the wealth she manages. Some of these are employees, some customers; some live in the communities where the business operates, and some have invested their money in the business. A trustee is faithful to all of her beneficiaries. To prefer one and neglect the others is to betray her trust. Shaffer, supra note 77, at 46-47.
153. See supra note 124.
154. Kreimer, supra note 70, at 11. The quoted passage is Esther 4:14, by which Mordecai persuades Esther to seek, at great personal risk, the King's ear, "to make supplication to him and entreat him for her people," Esther 4:8, threatened by Haman's genocidal intentions.
155. See Underkuffler-Freund, supra note 100, at 895 (quoting Mayhew).
156. See Julian H. Wright, Jr., Beware of the Adversarial Shield: Possible Roles for Christian Ethics in Legal Ethics, 23 Memphis S. L. Rev. 573, 574-78 (1993).