Legal ethics: The relevance of religion to a lawyer's work: Legal ethics

Fordham Law Review

Volumn 66, Issue 4, 1998, Pages 1253-1281

  Griffin, Leslie ^a,b  

^a SANTA CLARA UNIVERSITY   (United States)

^b STANFORD LAW SCHOOL   (United States)

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EID: 1842735162     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (119)

1. I borrow the metaphor of traffic and intersections of disciplines from James M. Gustafson, Intersections: Science, Theology, and Ethics 136 (1996).
2. David Luban, Lawyers and Justice: An Ethical Study 393-403 (1988) [hereinafter Luban, Lawyers and Justice]. Luban devotes Appendix 1 of his book to the question of "How Standard Is the Standard Conception?"
3. The Harper Collins Dictionary of Religion 729 (Jonathan Z. Smith ed., 1995) (defining "morality and religion"); see also Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion x (1993) ("There are, to be sure, some people in the academic world, and many in what may be called the real world, who connect law with religion by emphasizing the link which both have with morality.").
4. For a collection of articles in which individual attorneys reflect on how to "reconcile" their faith with the demands of the law, see Symposium, Executing the Wrong Person: The Professionals' Ethical Dilemmas, 29 Loy. L.A. L. Rev. 1543 (1996), and Symposium, Faith and the Law, 27 Tex. Tech L. Rev. 911 (1996).
5. For a collection of articles in which individual attorneys reflect on how to "reconcile" their faith with the demands of the law, see Symposium, Executing the Wrong Person: The Professionals' Ethical Dilemmas, 29 Loy. L.A. L. Rev. 1543 (1996), and Symposium, Faith and the Law, 27 Tex. Tech L. Rev. 911 (1996).
6. See generally Thomas L. Shaffer, On Religious Legal Ethics, 35 Cath. Law. 393 (1994) (suggesting that lawyers should "practice law as a ministry"). I distinguish theological from religious ethics in a way that Shaffer does not.
7. Alan Donagan, The Theory of Morality 180-89 (1977).
8. This paragraph reflects the standard options in Christian ethics, the classic formulation of which is found in H. Richard Niebuhr, Christ and Culture (1951). identify my own models for Christian participation in politics in Leslie Griffin, The Problem of Dirty Hands, 17 J. Religious Ethics 31 (1989). Joseph G. Allegretti applies Niebuhr's models to legal practice in Joseph G. Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice (1996) [hereinafter Allegretti, The Lawyer's Calling], and in Joseph Allegretti, Christ and the Code: The Dilemma of the Christian Attorney, 34 Cath. Law. 131 (1988) [hereinafter Allegretti, Christ and the Code]. Sanford Levinson offers a different set of models for Jewish lawyers. See Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577 (1993).
9. This paragraph reflects the standard options in Christian ethics, the classic formulation of which is found in H. Richard Niebuhr, Christ and Culture (1951). identify my own models for Christian participation in politics in Leslie Griffin, The Problem of Dirty Hands, 17 J. Religious Ethics 31 (1989). Joseph G. Allegretti applies Niebuhr's models to legal practice in Joseph G. Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice (1996) [hereinafter Allegretti, The Lawyer's Calling], and in Joseph Allegretti, Christ and the Code: The Dilemma of the Christian Attorney, 34 Cath. Law. 131 (1988) [hereinafter Allegretti, Christ and the Code]. Sanford Levinson offers a different set of models for Jewish lawyers. See Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577 (1993).
10. This paragraph reflects the standard options in Christian ethics, the classic formulation of which is found in H. Richard Niebuhr, Christ and Culture (1951). identify my own models for Christian participation in politics in Leslie Griffin, The Problem of Dirty Hands, 17 J. Religious Ethics 31 (1989). Joseph G. Allegretti applies Niebuhr's models to legal practice in Joseph G. Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice (1996) [hereinafter Allegretti, The Lawyer's Calling], and in Joseph Allegretti, Christ and the Code: The Dilemma of the Christian Attorney, 34 Cath. Law. 131 (1988) [hereinafter Allegretti, Christ and the Code]. Sanford Levinson offers a different set of models for Jewish lawyers. See Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577 (1993).
11. This paragraph reflects the standard options in Christian ethics, the classic formulation of which is found in H. Richard Niebuhr, Christ and Culture (1951). identify my own models for Christian participation in politics in Leslie Griffin, The Problem of Dirty Hands, 17 J. Religious Ethics 31 (1989). Joseph G. Allegretti applies Niebuhr's models to legal practice in Joseph G. Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice (1996) [hereinafter Allegretti, The Lawyer's Calling], and in Joseph Allegretti, Christ and the Code: The Dilemma of the Christian Attorney, 34 Cath. Law. 131 (1988) [hereinafter Allegretti, Christ and the Code]. Sanford Levinson offers a different set of models for Jewish lawyers. See Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577 (1993).
12. This paragraph reflects the standard options in Christian ethics, the classic formulation of which is found in H. Richard Niebuhr, Christ and Culture (1951). identify my own models for Christian participation in politics in Leslie Griffin, The Problem of Dirty Hands, 17 J. Religious Ethics 31 (1989). Joseph G. Allegretti applies Niebuhr's models to legal practice in Joseph G. Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice (1996) [hereinafter Allegretti, The Lawyer's Calling], and in Joseph Allegretti, Christ and the Code: The Dilemma of the Christian Attorney, 34 Cath. Law. 131 (1988) [hereinafter Allegretti, Christ and the Code]. Sanford Levinson offers a different set of models for Jewish lawyers. See Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577 (1993).
13. Allegretti offers an interesting variant on the decision not to become a lawyer; he points out that some people might leave the legal profession because it violates their Christian belief. Allegretti, The Lawyer's Calling, supra note 7, at 11.
14. Russell G. Pearce, The Jewish Lawyer's Question, 27 Tex. Tech L. Rev. 1259, 1265 (1996); see also Levinson, supra note 7, at 1607 ("[I]f one takes this seriously, then it would appear that no Orthodox Jew could be a criminal defense lawyer. It would certainly be interesting to find out how many Orthodox lawyers in fact practice in this branch of the law.").
15. Some writers emphasize the importance of stories in religious legal ethics; the use of stories is an effective reminder that the moral life is more than a series of moral dilemmas. See, e.g., Milner S. Ball, The Word and the Law (1993); Thomas L. Shaffer, On Being a Christian and a Lawyer: Law for the Innocent (1981).
16. Some writers emphasize the importance of stories in religious legal ethics; the use of stories is an effective reminder that the moral life is more than a series of moral dilemmas. See, e.g., Milner S. Ball, The Word and the Law (1993); Thomas L. Shaffer, On Being a Christian and a Lawyer: Law for the Innocent (1981).
17. Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199 (1996).
18. See, e.g., Shaffer, supra note 10; Azizah al-Hibri, On Being a Muslim Corporate Lawyer, 27 Tex. Tech L. Rev. 947 (1996); Allegretti, Christ and the Code, supra note 7; Jerome Hornblass, The Jewish Lawyer, 14 Cardozo L. Rev. 1639, 1649 (1993); Levinson, supra note 7; Russell G. Pearce, Jewish Lawyering in a Multicultural Society: A Midrash on Levinson, 14 Cardozo L. Rev. 1613 (1993); Symposium, Faith and the Law, 27 Tex. Tech L. Rev. 911 (1996).
19. See, e.g., Shaffer, supra note 10; Azizah al-Hibri, On Being a Muslim Corporate Lawyer, 27 Tex. Tech L. Rev. 947 (1996); Allegretti, Christ and the Code, supra note 7; Jerome Hornblass, The Jewish Lawyer, 14 Cardozo L. Rev. 1639, 1649 (1993); Levinson, supra note 7; Russell G. Pearce, Jewish Lawyering in a Multicultural Society: A Midrash on Levinson, 14 Cardozo L. Rev. 1613 (1993); Symposium, Faith and the Law, 27 Tex. Tech L. Rev. 911 (1996).
20. See, e.g., Shaffer, supra note 10; Azizah al-Hibri, On Being a Muslim Corporate Lawyer, 27 Tex. Tech L. Rev. 947 (1996); Allegretti, Christ and the Code, supra note 7; Jerome Hornblass, The Jewish Lawyer, 14 Cardozo L. Rev. 1639, 1649 (1993); Levinson, supra note 7; Russell G. Pearce, Jewish Lawyering in a Multicultural Society: A Midrash on Levinson, 14 Cardozo L. Rev. 1613 (1993); Symposium, Faith and the Law, 27 Tex. Tech L. Rev. 911 (1996).
21. See, e.g., Shaffer, supra note 10; Azizah al-Hibri, On Being a Muslim Corporate Lawyer, 27 Tex. Tech L. Rev. 947 (1996); Allegretti, Christ and the Code, supra note 7; Jerome Hornblass, The Jewish Lawyer, 14 Cardozo L. Rev. 1639, 1649 (1993); Levinson, supra note 7; Russell G. Pearce, Jewish Lawyering in a Multicultural Society: A Midrash on Levinson, 14 Cardozo L. Rev. 1613 (1993); Symposium, Faith and the Law, 27 Tex. Tech L. Rev. 911 (1996).
22. See, e.g., Shaffer, supra note 10; Azizah al-Hibri, On Being a Muslim Corporate Lawyer, 27 Tex. Tech L. Rev. 947 (1996); Allegretti, Christ and the Code, supra note 7; Jerome Hornblass, The Jewish Lawyer, 14 Cardozo L. Rev. 1639, 1649 (1993); Levinson, supra note 7; Russell G. Pearce, Jewish Lawyering in a Multicultural Society: A Midrash on Levinson, 14 Cardozo L. Rev. 1613 (1993); Symposium, Faith and the Law, 27 Tex. Tech L. Rev. 911 (1996).
23. But see Allegretti, The Lawyer's Calling, supra note 7, at 16 (noting that some Christians may follow the Codes too faithfully, with a resulting "collapse of the lawyer's moral universe, a dilution of his Christian values").
24. See, e.g., Hornblass, supra note 12, at 1649 ("In categorizing a 'Jewish Lawyer,' Professor Levinson would be better advised to stay with the following definition: a Jewish lawyer is one who by virtue of his knowledge of Jewish law, heritage, history, and ethics, is better able to be an excellent lawyer and moral person.").
25. We might also characterize this action as conscientious refusal or objection. "[T]here is, of course, in actual situations no sharp distinction between civil disobedience and conscientious refusal. Moreover the same action (or sequence of actions) may have strong elements of both." John Rawls, A Theory of Justice 371 (1971). I think that the distinction is especially hard to use in cases of religious lawyers, if, as Rawls explains, civil disobedience "is an act guided and justified by political principles," id. at 365, while "[c]onscientious refusal is not necessarily based on political principles; it may be founded on religious or other principles . . . ." Id. at 369. Hazard & Hodes provide the helpful expression "conscientious civil disobedience" for these situations. Geoffrey C. Hazard & William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct §1.6:304, at 175 (2d ed. Supp. 1993). In this essay, I refer to the lawyer who commits civil disobedience as the objector.
26. We might also characterize this action as conscientious refusal or objection. "[T]here is, of course, in actual situations no sharp distinction between civil disobedience and conscientious refusal. Moreover the same action (or sequence of actions) may have strong elements of both." John Rawls, A Theory of Justice 371 (1971). I think that the distinction is especially hard to use in cases of religious lawyers, if, as Rawls explains, civil disobedience "is an act guided and justified by political principles," id. at 365, while "[c]onscientious refusal is not necessarily based on political principles; it may be founded on religious or other principles . . . ." Id. at 369. Hazard & Hodes provide the helpful expression "conscientious civil disobedience" for these situations. Geoffrey C. Hazard & William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct §1.6:304, at 175 (2d ed. Supp. 1993). In this essay, I refer to the lawyer who commits civil disobedience as the objector.
27. The exemption is considered by Sanford Levinson in the context of a Jewish lawyer who "felt obliged to breach the secular legal duty of confidentiality." Levinson, supra note 7, at 1610. Levinson asked (pre-Religious Freedom Restoration Act): [C]ould one plausibly cite the First Amendment on behalf of a "free exercise" permission to reject the otherwise binding law of the state? The answer is almost certainly negative, especially given the present Supreme Court's hostility to recognizing the exemption of religious minorities from state regulation even in matters that go to the heart of a minority's religious ceremonies. Id. at 1610-11 (footnotes omitted).
28. I do not know how often civil disobedience has been invoked in disciplinary settings. See Mary C. Daly, To Betray Once? To Betray Twice?: Reflections on Confidentiality, a Guilty Client, an Innocent Condemned Man, and an Ethics-Seeking Defense Counsel, 29 Loy. L.A. L. Rev. 1611, 1628-29 (1996). In the context of a symposium on breaking confidentiality when someone confesses to a crime for which an innocent person is about to be executed, Daly states: As for the doctrine of civil disobedience, its invocation is somewhat unusual. Civil disobedience is traditionally associated with acts that are "public, nonviolent, conscientious yet political. . . done with the aim of bringing about a change in the law or policies of government." Dissenters generally engage in civil disobedience to protest the acts of the executive or legislative branch. Although civil disobedience directed to the judicial branch is not unheard of, for example, anti-slavery, anti-segregation and anti-abortion demonstrations, I, however, have located no instances of civil disobedience directed to the judicial branch in its capacity as the regulator of the legal profession. I see no reason why the absence of precedent should be fateful to my claim. My protest is "public" in that I will reveal the protected confidences to the prosecutor's office, the court, and in all likelihood, the media. It is "political" in that it challenges a government decision - the adoption of a code of ethics prohibiting disclosure of past crimes in all circumstances. It is "conscientious" in that it springs from my moral conviction that the application of the ethical obligation of confidentiality will result in an irreparable injury to an innocent third party. Finally, it is being undertaken not merely to save Mr. Smith, but also to show the horrific lengths to which a sound principle can be stretched. If this undertaking is successful, it will act as a catalyst triggering a policy change in the conception of the ethical obligation. Id. (emphasis added) (alteration in original) (footnotes omitted) (quoting John Rawls, A Theory of Justice 364 (1971)). I am not sure if Professor Freedman's challenge to the advertising and solicitation rules is such an example. See Monroe H. Freedman, Legal Ethics from a Jewish Perspective, 27 Tex. Tech L. Rev. 1131, 1137 (1996) ("Because of personal ethical values, therefore, I deliberately violated professional rules. As expected, the District of Columbia Bar Association brought disciplinary charges against me. The result was the first opinion anywhere approving advertising and solicitation of clients.").
29. I do not know how often civil disobedience has been invoked in disciplinary settings. See Mary C. Daly, To Betray Once? To Betray Twice?: Reflections on Confidentiality, a Guilty Client, an Innocent Condemned Man, and an Ethics-Seeking Defense Counsel, 29 Loy. L.A. L. Rev. 1611, 1628-29 (1996). In the context of a symposium on breaking confidentiality when someone confesses to a crime for which an innocent person is about to be executed, Daly states: As for the doctrine of civil disobedience, its invocation is somewhat unusual. Civil disobedience is traditionally associated with acts that are "public, nonviolent, conscientious yet political. . . done with the aim of bringing about a change in the law or policies of government." Dissenters generally engage in civil disobedience to protest the acts of the executive or legislative branch. Although civil disobedience directed to the judicial branch is not unheard of, for example, anti-slavery, anti-segregation and anti-abortion demonstrations, I, however, have located no instances of civil disobedience directed to the judicial branch in its capacity as the regulator of the legal profession. I see no reason why the absence of precedent should be fateful to my claim. My protest is "public" in that I will reveal the protected confidences to the prosecutor's office, the court, and in all likelihood, the media. It is "political" in that it challenges a government decision - the adoption of a code of ethics prohibiting disclosure of past crimes in all circumstances. It is "conscientious" in that it springs from my moral conviction that the application of the ethical obligation of confidentiality will result in an irreparable injury to an innocent third party. Finally, it is being undertaken not merely to save Mr. Smith, but also to show the horrific lengths to which a sound principle can be stretched. If this undertaking is successful, it will act as a catalyst triggering a policy change in the conception of the ethical obligation. Id. (emphasis added) (alteration in original) (footnotes omitted) (quoting John Rawls, A Theory of Justice 364 (1971)). I am not sure if Professor Freedman's challenge to the advertising and solicitation rules is such an example. See Monroe H. Freedman, Legal Ethics from a Jewish Perspective, 27 Tex. Tech L. Rev. 1131, 1137 (1996) ("Because of personal ethical values, therefore, I deliberately violated professional rules. As expected, the District of Columbia Bar Association brought disciplinary charges against me. The result was the first opinion anywhere approving advertising and solicitation of clients.").
30. I do not know how often civil disobedience has been invoked in disciplinary settings. See Mary C. Daly, To Betray Once? To Betray Twice?: Reflections on Confidentiality, a Guilty Client, an Innocent Condemned Man, and an Ethics-Seeking Defense Counsel, 29 Loy. L.A. L. Rev. 1611, 1628-29 (1996). In the context of a symposium on breaking confidentiality when someone confesses to a crime for which an innocent person is about to be executed, Daly states: As for the doctrine of civil disobedience, its invocation is somewhat unusual. Civil disobedience is traditionally associated with acts that are "public, nonviolent, conscientious yet political. . . done with the aim of bringing about a change in the law or policies of government." Dissenters generally engage in civil disobedience to protest the acts of the executive or legislative branch. Although civil disobedience directed to the judicial branch is not unheard of, for example, anti-slavery, anti-segregation and anti-abortion demonstrations, I, however, have located no instances of civil disobedience directed to the judicial branch in its capacity as the regulator of the legal profession. I see no reason why the absence of precedent should be fateful to my claim. My protest is "public" in that I will reveal the protected confidences to the prosecutor's office, the court, and in all likelihood, the media. It is "political" in that it challenges a government decision - the adoption of a code of ethics prohibiting disclosure of past crimes in all circumstances. It is "conscientious" in that it springs from my moral conviction that the application of the ethical obligation of confidentiality will result in an irreparable injury to an innocent third party. Finally, it is being undertaken not merely to save Mr. Smith, but also to show the horrific lengths to which a sound principle can be stretched. If this undertaking is successful, it will act as a catalyst triggering a policy change in the conception of the ethical obligation. Id. (emphasis added) (alteration in original) (footnotes omitted) (quoting John Rawls, A Theory of Justice 364 (1971)). I am not sure if Professor Freedman's challenge to the advertising and solicitation rules is such an example. See Monroe H. Freedman, Legal Ethics from a Jewish Perspective, 27 Tex. Tech L. Rev. 1131, 1137 (1996) ("Because of personal ethical values, therefore, I deliberately violated professional rules. As expected, the District of Columbia Bar Association brought disciplinary charges against me. The result was the first opinion anywhere approving advertising and solicitation of clients.").
31. See Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-4 (1994) [hereinafter RFRA]; Employment Div. Dep't of Human Resources of Or. v. Smith, 494 U.S. 872 (1990). But see, e.g., Flores v. City of Boerne, 117 S. Ct. 2157 (1997) (holding that, as applied to state establishments, the RFRA exceeded Congress's enforcement powers under section five of the Fourteenth Amendment); Marti A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994) (criticizing RFRA).
32. For a discussion of the priest's obligation, see Anthony Cardinal Bevilacqua, Confidentiality Obligation of Clergy from the Perspective of Roman Catholic Priests, 29 Loy. L.A. L. Rev. 1733 (1996), and Teresa Stanton Collett, Sacred Secrets or Sanctimonious Silence, 29 Loy. L.A. L. Rev. 1747 (1996).
33. For a discussion of the priest's obligation, see Anthony Cardinal Bevilacqua, Confidentiality Obligation of Clergy from the Perspective of Roman Catholic Priests, 29 Loy. L.A. L. Rev. 1733 (1996), and Teresa Stanton Collett, Sacred Secrets or Sanctimonious Silence, 29 Loy. L.A. L. Rev. 1747 (1996).
34. The expression is John Courtney Murray's: (1) [W]e can reach an important measure of agreement on the ethical plane; (2) we must agree to disagree on the theological plane; (3) but we can reach harmony of action and mutual confidence on the political plane, in virtue of the agreement previously established on the ethical plane, as well as in virtue of a shared concern for the common good of the political community, international and national. John Courtney Murray, S.J., Freedom of Religion: I. The Ethical Problem, 6 Theological Stud. 229, 239-40 (1945) (emphasis added).
35. I use this expression from The reasons we can share: An attack on the distinction between agent-relative and agent-neutral values, in Christine M. Korsgaard, Creating the Kingdom of Ends 275 (1996).
36. See generally Carl H. Esbeck, Tort Claims Against Churches and Ecclesiastical Officers: The First Amendment Considerations, 89 W. Va. L. Rev. 1, 91-104 (1986) (citing recent cases holding that religious officers and members are regulated by their religious institutions).
37. I rely here and throughout on Rawlsian public reason. See, e.g., John Rawls, Political Liberalism 1 (1996). This ideal is that citizens are to conduct their public political discussions of constitutional essentials and matters of basic justice within the framework of what each sincerely regards as a reasonable political conception of justice, a conception that expresses political values that others as free and equal also might reasonably be expected reasonably [sic] to endorse. Id.
38. Id.
39. Michael Perry has been a proponent of the bracketing criticism. See generally Michael J. Perry, Love and Power: The Role of Religion and Morality in American Politics 5 (1991) (introducing the debate over religion's role in politics and suggesting "several principles . . . to guide religious participation in the politics of a religiously/ morally pluralistic society like our own"); Michael J. Perry, Morality, Politics, and Law: A Bicentennial Essay 180 (1988) ("One's participation in politics and law is and must be based on one's most basic convictions about human good, including one's religious convictions . . . .").
40. Michael Perry has been a proponent of the bracketing criticism. See generally Michael J. Perry, Love and Power: The Role of Religion and Morality in American Politics 5 (1991) (introducing the debate over religion's role in politics and suggesting "several principles . . . to guide religious participation in the politics of a religiously/ morally pluralistic society like our own"); Michael J. Perry, Morality, Politics, and Law: A Bicentennial Essay 180 (1988) ("One's participation in politics and law is and must be based on one's most basic convictions about human good, including one's religious convictions . . . .").
41. See generally Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993) (suggesting that public discussion of religious belief often trivializes religion).
42. See, e.g., Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society 5 (1994) (citing how conduct once not tolerated is now widely practiced); Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 1 (1993) (arguing that "the profession now stands in danger of losing its soul"); Sol M. Linowitz, The Betrayed Profession: Lawyering at the End of the Twentieth Century (1994) (blaming the profession's decline, in part, on a desire to seek high salaries); Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229 (1995) (recommending a business paradigm to replace the professionalism paradigm in legal ethics).
43. See, e.g., Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society 5 (1994) (citing how conduct once not tolerated is now widely practiced); Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 1 (1993) (arguing that "the profession now stands in danger of losing its soul"); Sol M. Linowitz, The Betrayed Profession: Lawyering at the End of the Twentieth Century (1994) (blaming the profession's decline, in part, on a desire to seek high salaries); Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229 (1995) (recommending a business paradigm to replace the professionalism paradigm in legal ethics).
44. See, e.g., Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society 5 (1994) (citing how conduct once not tolerated is now widely practiced); Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 1 (1993) (arguing that "the profession now stands in danger of losing its soul"); Sol M. Linowitz, The Betrayed Profession: Lawyering at the End of the Twentieth Century (1994) (blaming the profession's decline, in part, on a desire to seek high salaries); Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229 (1995) (recommending a business paradigm to replace the professionalism paradigm in legal ethics).
45. See, e.g., Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society 5 (1994) (citing how conduct once not tolerated is now widely practiced); Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 1 (1993) (arguing that "the profession now stands in danger of losing its soul"); Sol M. Linowitz, The Betrayed Profession: Lawyering at the End of the Twentieth Century (1994) (blaming the profession's decline, in part, on a desire to seek high salaries); Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229 (1995) (recommending a business paradigm to replace the professionalism paradigm in legal ethics).
46. Rawls uses the term "open" in contrast to his own view of public reason. Rawls rejects the "open view: anything goes and all constraints are removed." See John Rawls, The Idea of Public Reason: Further Considerations 16 (1994) (unpublished manuscript on file with author).
47. Rawls, supra note 23, at 224.
48. Shaffer, supra note 5, at 397. My purpose here is to claim legitimacy for religious legal ethics by arguing that most American attorneys should ignore most of what my colleagues in the mansion say about legal ethics, and should regard official "ethics" rules for attorneys the way they regard the motor vehicle code - as an administrative regulation having very little to do with being righteous and an attorney simultaneously. This entails, as I have tried to demonstrate elsewhere, turning to fellow believers in church, temple, and synagogue for moral guidance, and turning to the Bible and our traditions for the professional moral heritage of Jews and Christians. Id.
49. Paul F. Campos, Secular Fundamentalism, 94 Colum. L. Rev. 1814, 1825 (1994). Despite its highly abstract endorsement of moral and religious pluralism, Political Liberalism is ultimately a paean to a secular creed that has within it the potential to become every bit as monistic, compulsory, and intolerant of any significant deviation from social verities as the traditional modes of belief it derided and displaced. Id. See generally Gary C. Leedes, Rawls's Excessively Secular Political Conception, 27 U. Rich. L. Rev. 1083, 1126 (1993) (book review) (criticizing Rawls's excessively secular "regime" where the religiously devout cannot be truthful to themselves).
50. Paul F. Campos, Secular Fundamentalism, 94 Colum. L. Rev. 1814, 1825 (1994). Despite its highly abstract endorsement of moral and religious pluralism, Political Liberalism is ultimately a paean to a secular creed that has within it the potential to become every bit as monistic, compulsory, and intolerant of any significant deviation from social verities as the traditional modes of belief it derided and displaced. Id. See generally Gary C. Leedes, Rawls's Excessively Secular Political Conception, 27 U. Rich. L. Rev. 1083, 1126 (1993) (book review) (criticizing Rawls's excessively secular "regime" where the religiously devout cannot be truthful to themselves).
51. John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997).
52. Rawls, supra note 23, at 247.
53. Id. at 247-48.
54. Id. (emphasis added).
55. Id. at 249.
56. Id. at li-lii (emphasis added).
57. John Rawls, The Idea of Public Reason: Further Considerations 16 (1994) (unpublished manuscript on file with author).
58. See, e.g., sources cited supra note 27.
59. Kronman, supra note 27, at 3.
60. Jacob Neusner, The Theological Enemies of Religious Studies, 18 Religion 21, 24 (1988); see also Berman, supra note 3, at ix. [I]n general religion has come increasingly to be treated, during the past two generations, as solely a private matter, "what the individual does with his own solitariness" (in Alfred North Whitehead's definition), while law has come increasingly to be treated as solely a public matter, a matter of social policy. Id.; see also id. at 232 ("This, indeed, is what the courts have done when they have said that religion is the private affair of each individual, a matter of his or her personal choice, rather than a matter of the collective identity of a nation made up of religiously diverse communities.").
61. Jonathan Z. Smith, Imagining Religion: From Babylon to Jonestown 103 (1982); see also Morris Jastrow, Jr., The Study of Religion 47 (1901). To Holland belongs the distinction of having been the first country to make adequate provision for the study of the subject in her higher schools. A decree was passed in 1876, by which the theological faculties of the four Dutch universities - Leiden, Amsterdam, Utrecht, and Groningen - were changed from mere training schools for ministers of a certain denomination into purely scientific bodies of the same order as the philosophical, law, and medical faculties. All the subjects represented - Old and New Testament, Church History, Dogmatics - were henceforth to be taught as purely historical disciplines and from a purely scientific point of view, the specific training for the service of the Church being left to supplemental courses provided for by each denomination, or relegated to non-official separate seminaries. At the same time the important step was taken of adding to each of the four faculties a chair for the general and comparative History of Religions. Id.
62. Jonathan Z. Smith, Imagining Religion: From Babylon to Jonestown 103 (1982); see also Morris Jastrow, Jr., The Study of Religion 47 (1901). To Holland belongs the distinction of having been the first country to make adequate provision for the study of the subject in her higher schools. A decree was passed in 1876, by which the theological faculties of the four Dutch universities - Leiden, Amsterdam, Utrecht, and Groningen - were changed from mere training schools for ministers of a certain denomination into purely scientific bodies of the same order as the philosophical, law, and medical faculties. All the subjects represented - Old and New Testament, Church History, Dogmatics - were henceforth to be taught as purely historical disciplines and from a purely scientific point of view, the specific training for the service of the Church being left to supplemental courses provided for by each denomination, or relegated to non-official separate seminaries. At the same time the important step was taken of adding to each of the four faculties a chair for the general and comparative History of Religions. Id.
63. See Jonathan Z. Smith, No Need to Travel to the Indies: Judaism and the Study of Religion, in Take Judaism, For Example: Studies Toward the Comparison of Religions 215, 217 (Jacob Neusner ed., 1983).
64. Jacob Neusner, Judaism Within the Disciplines of Religious Studies: Perspectives on Graduate Education, in New Humanities and Academic Disciplines 46, 49 (Jacob Neusner ed., 1984). See generally Walter H. Capps, Religious Studies: The Making of a Discipline (1995) (providing a thematic history of religious studies).
65. Jacob Neusner, Judaism Within the Disciplines of Religious Studies: Perspectives on Graduate Education, in New Humanities and Academic Disciplines 46, 49 (Jacob Neusner ed., 1984). See generally Walter H. Capps, Religious Studies: The Making of a Discipline (1995) (providing a thematic history of religious studies).
66. Neusner, supra note 41, at 49.
67. See generally Abington Sch. Dist. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring) ("And it seems clear to me from the opinions in the present and past cases that the Court would recognize the propriety of providing military chaplains and of the teaching about religion, as distinguished from the teaching of religion, in the public schools."); Conrad Cherry, Hurrying Toward Zion: Universities, Divinity Schools, and American Protestantism 90 (1995) (arguing that "teaching about religion, as distinct from instruction in religion, is an acceptable undertaking of public institutions").
68. See generally Study of Religion(s), in A New Dictionary of Religions 498 (John R. Hinnells, ed., 2d ed. 1995). One of the problems in discussing the study of religions, especially as it applies to academic study, is that it involves a number of different disciplines or methods. The overall study has been described as polymethodic[]. There is some question as to whether the study of religion(s) can be referred to as a discipline at all. Id. at 500; see also Michel Meslin, From the History of Religions to Religious Anthropology: A Necessary Reappraisal, in The History of Religions 31, 32 (Joseph M. Kitagawa ed., 1985).
69. See generally Study of Religion(s), in A New Dictionary of Religions 498 (John R. Hinnells, ed., 2d ed. 1995). One of the problems in discussing the study of religions, especially as it applies to academic study, is that it involves a number of different disciplines or methods. The overall study has been described as polymethodic[]. There is some question as to whether the study of religion(s) can be referred to as a discipline at all. Id. at 500; see also Michel Meslin, From the History of Religions to Religious Anthropology: A Necessary Reappraisal, in The History of Religions 31, 32 (Joseph M. Kitagawa ed., 1985).
70. See Mircea Eliade, Patterns in Comparative Religion xiii (Rosemary Sheed trans., Meridian Books 1984). [A] religious phenomenon will only be recognized as such if it is grasped at its own level, that is to say, if it is studied as something religious. To try to grasp the essence of such a phenomenon by means of physiology, psychology, sociology, economics, linguistics, art or any other study is false; it misses the one unique and irreducible element in it - the element of the sacred. Obviously there are no purely religious phenomena; no phenomenon can be solely and exclusively religious. . . . I do not mean to deny the usefulness of approaching the religious phenomenon from various different angles; but it must be looked at first of all in itself, in that which belongs to it alone and can be explained in no other terms. Id.
71. Joseph M. Kitagawa, The History of Religions in America, in The History of Religions: Essays in Methodology 1, 15 (Mircea Eliade & Joseph M. Kitagawa eds., 1959) (emphasis added).
72. Ray L. Hart, Religious and Theological Studies in American Higher Education: A Pilot Study, 59 J. Am. Acad. Religion 715 (1991).
73. See, e.g., Robert S. Michaelsen, Reflections on the Tie That Binds, 71 Soundings 349, 350 (1988). The study of religion should be distinguished from the practice of it. In the context of the state university that assumption was understood institutionally in terms of the separation of church from state and theoretically in terms of the distinction between theology and the academic study of religion. A conscious effort was made to develop or take a descriptive, analytical, non-normative, and even (following the Supreme Court in Schempp [374 U.S. 203 (1963)]) an "objective" approach to the subject. However, as we are reminded more than once on these pages, the shapers of this developing discipline or enterprise were almost all trained in theology and ordained as clergymen. How to move from the theological seminary to the secular university, from the church to the state, from theology to the academic study of the subject, from the teaching of religion to the teaching about religion? Id.
74. See Levinson, supra note 7, at 1604 (noting that, in most law schools, students with moral questions are directed to moral philosophy, not religion). "Rarely, if ever, does one hear suggestions that privileged guidance might be found in religious traditions and their notions of ethical duties." Id. at 1604-05.
75. John Kelsay, Islam and the Comparative Study of Religious Ethics: Review of Selected Materials, 1985-1995, 23 Religious Stud. Rev. 3, 3 (1997) (citing Sumner B. Twiss & Bruce Grelle, Human Rights and Comparative Religious Ethics: A New Venue, in The Annual of the Society of Christian Ethics 21 (1995)).
76. John Kelsay, Islam and the Comparative Study of Religious Ethics: Review of Selected Materials, 1985-1995, 23 Religious Stud. Rev. 3, 3 (1997) (citing Sumner B. Twiss & Bruce Grelle, Human Rights and Comparative Religious Ethics: A New Venue, in The Annual of the Society of Christian Ethics 21 (1995)).
77. Id.
78. Kronman, supra note 27, at 370-72.
79. Ronald M. Green, Religion and Moral Reason: A New Method for Comparative Study 3 (1988).
80. Id.
81. Id. at 17.
82. Amy Gutmann & Dennis Thompson, Democracy and Disagreement 165 (1996).
83. Id. at 169-73.
84. Id. at 172.
85. Id. at 196.
86. Id.
87. Id.
88. See David Wasserman, Should a Good Lawyer Do the Right Thing?: David Luban on the Morality of Adversary Representation, 49 Md. L. Rev. 392, 395 (1990) (essay review) ("Despite his claim to steer a middle course, Luban's approach ultimately favors acts over policies. It is really a form of 'sophisticated' act consequentialism, taking account of roles, policies, and acts only to the extent that they bear on the consequences of specific acts."); id. at 397 ("[T]he four-fold root is intended to provide a consequentialist justification for morally dissonant role-acts . . . ."); id. at 402 n.61 ("[T]he four-fold root provides a strictly consequentialist justification."). But see David Luban, Freedom and Constraint in Legal Ethics: Some Mid-Course Corrections to Lawyers and Justice, 49 Md. L. Rev. 424, 431-32 (1990) ("The fourfold root, however, can be sung in a deontological rather than a consequentialist key. . . . The point of the fourfold root on this deontological reading is [to help] determine how strong the duty of confidentiality really is."); id. at 433 ("[The book] equivocates between two understandings of institutional excuses, which I have characterized as 'consequentialist' and 'deontological.'").
89. See David Wasserman, Should a Good Lawyer Do the Right Thing?: David Luban on the Morality of Adversary Representation, 49 Md. L. Rev. 392, 395 (1990) (essay review) ("Despite his claim to steer a middle course, Luban's approach ultimately favors acts over policies. It is really a form of 'sophisticated' act consequentialism, taking account of roles, policies, and acts only to the extent that they bear on the consequences of specific acts."); id. at 397 ("[T]he four-fold root is intended to provide a consequentialist justification for morally dissonant role-acts . . . ."); id. at 402 n.61 ("[T]he four-fold root provides a strictly consequentialist justification."). But see David Luban, Freedom and Constraint in Legal Ethics: Some Mid-Course Corrections to Lawyers and Justice, 49 Md. L. Rev. 424, 431-32 (1990) ("The fourfold root, however, can be sung in a deontological rather than a consequentialist key. . . . The point of the fourfold root on this deontological reading is [to help] determine how strong the duty of confidentiality really is."); id. at 433 ("[The book] equivocates between two understandings of institutional excuses, which I have characterized as 'consequentialist' and 'deontological.'").
90. See Ball, supra note 10, at 96. I must begin by noting a radical variance between my understanding of ethics and that of the State Bar of Georgia, to which I belong. In order to remain an active member of the bar, I am required to take twelve hours of continuing legal education every year. One (formerly two) of those hours must be in ethics. What is taught under the rubric of ethics seems to me a gross distortion. At my first session years ago, the lecturer began by stating that his assignment was to teach us "how to keep the money you earn in your own pocket" - that is, how to avoid being successfully sued for malpractice. Every session since has been devoted to the same subject, malpractice avoidance. I do not recall the word ethics being used during that first session or during any other since. When I use the word ethics I do not adopt the bar's definition. I do not mean hints about staying out of trouble with the bar and clients: "How can I avoid malpractice?" Like Thomas Shaffer, when I use the word ethics I mean ethics, reflection on the question "what am I to do?" For me, this is a question about response to the Word. Id.; see also Thomas L. Shaffer & Mary M. Shaffer, American Lawyers and Their Communities: Ethics in the Legal Profession 5 (1991) ("It seems to have become necessary, after Watergate, to separate the law on lawyers from legal ethics as ethics. I will use this distinction and these two phrases as if they are thus separated: (i) the law on lawyers, and (ii) legal ethics as ethics.").
91. For an example of one of the questionable features of legal ethics, see, for example, Monroe H. Freedman, Understanding Lawyers' Ethics 107-08 (1990). On the basis of the ABA's ethical choices in its exceptions to lawyer-client confidentiality in the Model Rules, the ABA's ethical profile is a grotesque caricature. The ABA's most important value is preventing perjury (lawyer required to disclose client confidences). Next in order of rank are defending the lawyer against charges of wrongdoing, and collecting the lawyer's fee (lawyer permitted to disclose, with no caveat). Next is saving human life (lawyer permitted to disclose, but a caveat against doing it). Entirely off the list of protected values are protecting third parties from fraud, and obeying the law or court orders (no exception - disclosure forbidden). In addition, we have seen at least one example of a disingenuous comment created for the purpose of changing the meaning of a rule that had been adopted by a substantial majority vote. We have also seen what is, at best, some extremely poor drafting of important rules and comments, and, at worst, additional efforts at disingenuous manipulation. It is not a flattering portrait. Id.
92. For the self-interest argument, see, for example, Stephen Gillers, What We Talked About when We Talked About Ethics: A Critical View of the Model Rules, 46 Ohio St. L.J. 243 (1985).
93. David J. Rothman, What Doctors Don't Tell Us, N.Y. Rev. Books, Feb. 29, 1996, at 30, 31 (emphasis added). The reforms include medical experimentation on human subjects, decision-making surrounding death, providing more information to patients, and allowing patients more alternatives.
94. Green, supra note 56, at 3.
95. Id. at 4.
96. See Allegretti, The Lawyer's Calling, supra note 7, at 33 ("Charles Kammer has suggested that the concept of vocation can serve as a check upon the tendency of professionals to prefer their own self-interest to the larger good. Too often lawyers and other professionals are dominated by a small-minded concern for their own well-being."); Berman, supra note 3, at 219. The original puposes of the constitutional guarantee of freedom from government control was to help create a society in which political and legal values, on the one hand, and religious values, on the other hand, freely interact, so that law will not degenerate into legalism but will serve its fundamental goals of justice, mercy, and good faith, and religion will not degenerate into a private religiosity or pietism but will maintain its social responsibility. Id. I would define the Christian vocation of the lawyer - very briefly - as having three aspects. First, it has a pastoral aspect: Christian lawyers are called to be genuine counselors to their clients, that is, to devote themselves not only to the protection of their clients' financial interests but also to their total well-being, including their integrity and dignity as persons. . . . The Christian lawyer has not only a pastoral but also a prophetic vocation. Lawyers as prophets devote themselves to the cause of social justice and humanity . . . legal services for the poor, for racial equality, for protection of the environment, and for law reform generally. In addition to a pastoral and a prophetic vocation, Christian lawyers have what I would call a priestly vocation, that is, a calling to play a part as responsible leaders in their communities. . . . The claim upon a lawyer to think and act responsibly as a lawyer in helping to maintain unity within the society, resolve conflict, and allocate power - this, too, is a religious claim. Id. at 350-51.
97. Tom Shaffer, who has tried for years to bring religious ethics to law, writes that: The keepers of the mansion of academic religion do not keep out attorneys, but they do not pay much attention to them either. Those who earn their bread with religious ethics seem to admit that law might have something to do with religious ethics, and vice versa, but they prefer entertaining such a possibility outside the mansion. I find that many people in that mansion are very generous in helping me learn from them. However, they distrust the law itself somewhat, and distrust those who practice and teach law even more. When the keepers of the mansion take up a legal-ethics question among themselves, as they occasionally do, they are usually cynical about whether being righteous, in a religious sense, has anything to do with being an attorney. It may be fair to say that people in the mansion of academic religion are not very interested in the law. However, I suspect they are afraid of the law, rather than disinterested in it. Perhaps they are afraid that the worlds of power in which lawyers work will not be interested in them. Shaffer, supra note 5, at 395.
98. Sumner B. Twiss & Bruce Grelle, Human Rights and Comparative Religious Ethics: A New Venue, in The Annual of the Society of Christian Ethics 21, 22 (1995); see also David Little & Sumner B. Twiss, Comparative Religious Ethics: A New Method (1978).
99. Sumner B. Twiss & Bruce Grelle, Human Rights and Comparative Religious Ethics: A New Venue, in The Annual of the Society of Christian Ethics 21, 22 (1995); see also David Little & Sumner B. Twiss, Comparative Religious Ethics: A New Method (1978).
100. On the comparative philosophy of religion, see Lee H. Yearley, Mencius and Aquinas: Theories of Virtue and Conceptions of Courage 1 (1990) ("Nevertheless, when we consider issues in the comparative philosophy of religions, most now agree about the truth of a deceptively simple idea: the religious expressions of human beings are neither all the same nor are they all different.").
101. For example, from a philosopher we have an interesting account of the ethics of organized religion. See Margaret P. Battin, Ethics in the Sanctuary: Examining the Practices of Organized Religion (1990) (noting that philosophers who do applied ethics had, to that point, ignored the religious professionals); see also Karen Lebacqz, Professional Ethics: Power and Paradox (1985) (exploring professional ethics for religious professionals).
102. For example, from a philosopher we have an interesting account of the ethics of organized religion. See Margaret P. Battin, Ethics in the Sanctuary: Examining the Practices of Organized Religion (1990) (noting that philosophers who do applied ethics had, to that point, ignored the religious professionals); see also Karen Lebacqz, Professional Ethics: Power and Paradox (1985) (exploring professional ethics for religious professionals).
103. Twiss & Grelle, supra note 74, at 22.
104. Id. at 23.
105. Id. at 47.
106. This standard remains the law in California. Cal. Bus. & Prof. Code § 6068(e) (West 1990); see Fred C. Zacharias, Privilege and Confidentiality in California, 28 U.C. Davis L. Rev. 367 (1995). But see Nancy McCarthy, Proposed Rule May Permit Breach of Confidentiality, Cal. St. B.J., July, 1997, at 1.
107. This standard remains the law in California. Cal. Bus. & Prof. Code § 6068(e) (West 1990); see Fred C. Zacharias, Privilege and Confidentiality in California, 28 U.C. Davis L. Rev. 367 (1995). But see Nancy McCarthy, Proposed Rule May Permit Breach of Confidentiality, Cal. St. B.J., July, 1997, at 1.
108. The lawyer might not be disciplined for such conduct. See Monroe H. Freedman, The Life-Saving Exception to Confidentiality: Restating Law Without the Was, the Will Be, or the Ought to Be, 29 Loy. L.A. L. Rev. 1631 (1996). Professors Geoffrey C. Hazard, Jr. and W. William Hodes argue that the lawyer in a life-or-death case could, under "moral compulsion," engage in "conscientious civil disobedience" against a rule imposing silence on the lawyer. Moreover, they, along with Professor Auerbach, recognize that "most bar authorities would probably share [the lawyer's] moral revulsion [against a rule forbidding disclosure to save life], and would elect not to press forward with a disciplinary charge, should one be filed by the client." Id. at 1634 (citing Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.6:304 (2d ed. supp. 1993)). Hazard and Hodes continue: Still, to reveal would violate the literal language of Rule 1.6, and [the Lawyer] should be prepared to accept the consequences of doing what is morally right, if a charge is filed and if he cannot convince the disciplinary authority to read in a "moral compulsion" exception to the letter of Rule 1.6. The publicity arising from such a case might well lead to salutary changes in the law - a hallmark of conscientious civil disobedience. Id.
109. The lawyer might not be disciplined for such conduct. See Monroe H. Freedman, The Life-Saving Exception to Confidentiality: Restating Law Without the Was, the Will Be, or the Ought to Be, 29 Loy. L.A. L. Rev. 1631 (1996). Professors Geoffrey C. Hazard, Jr. and W. William Hodes argue that the lawyer in a life-or-death case could, under "moral compulsion," engage in "conscientious civil disobedience" against a rule imposing silence on the lawyer. Moreover, they, along with Professor Auerbach, recognize that "most bar authorities would probably share [the lawyer's] moral revulsion [against a rule forbidding disclosure to save life], and would elect not to press forward with a disciplinary charge, should one be filed by the client." Id. at 1634 (citing Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.6:304 (2d ed. supp. 1993)). Hazard and Hodes continue: Still, to reveal would violate the literal language of Rule 1.6, and [the Lawyer] should be prepared to accept the consequences of doing what is morally right, if a charge is filed and if he cannot convince the disciplinary authority to read in a "moral compulsion" exception to the letter of Rule 1.6. The publicity arising from such a case might well lead to salutary changes in the law - a hallmark of conscientious civil disobedience. Id.
110. See Levinson, supra note 7; Pearce, supra note 12. In response to Levinson's five models of Jewish lawyering, Pearce suggested that Levinson include a sixth model, the lawyer committed to Jewish values in the practice of law. Pearce, supra note 12, at 1614. This model would include, for example, special attention to the practice of civil rights law. Id. at 1617 & n.30. Levinson is uncomfortable with such a model because it involves one in "a delineation of what count as specifically Jewish values." Levinson, supra note 7, at 1584.
111. See Green, supra note 56, at 11. Comparative religion teaches us that: Whatever their specific teachings, religions agree on the basic rules of morality. All prohibit wanton killing or injury of other persons (although many permit legitimate self-defense); all condemn deception and the breaking of solemn promises. On the positive side, all require giving some minimum of aid to those in need; all require reparation for wrongs committed; and all ask some expression of gratitude for assistance received. So prevalent are these rules across a variety of religious and cultural traditions that C. S. Lewis once called them "platitudes" of practical reason. Id.
112. See, e.g., Russell G. Pearce, To Save a Life: Why a Rabbi and a Jewish Lawyer Must Disclose a Client Confidence, 29 Loy. L.A. L. Rev. 1771 (1996); Arthur Gross Schaefer & Peter S. Levi, Resolving the Conflict Between the Ethical Values of Confidentiality and Saving a Life: A Jewish View, 29 Loy. L.A. L. Rev. 1761, 1767 (1996) ("Hence, saving a life takes precedence over preserving a confidential communication. The absolute spiritual value of life ranks higher in the hierarchy, thus precluding any possible need for a calculation weighing disparate values.").
113. See, e.g., Russell G. Pearce, To Save a Life: Why a Rabbi and a Jewish Lawyer Must Disclose a Client Confidence, 29 Loy. L.A. L. Rev. 1771 (1996); Arthur Gross Schaefer & Peter S. Levi, Resolving the Conflict Between the Ethical Values of Confidentiality and Saving a Life: A Jewish View, 29 Loy. L.A. L. Rev. 1761, 1767 (1996) ("Hence, saving a life takes precedence over preserving a confidential communication. The absolute spiritual value of life ranks higher in the hierarchy, thus precluding any possible need for a calculation weighing disparate values.").
114. Alan Donagan, Justifying Legal Practice in the Adversary System, in The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 123, 140-43 (David Luban ed., 1983).
115. Levinson, supra note 7, at 1610 ("[S]hould this situation ever arise, it might well be analyzed as a true conflict of legal obligations, rather than as a more conventional conflict between law and morals."). On Jewish law and confidentiality, see generally Rabbi Alfred S. Cohen, On Maintaining a Professional Confidence, 7 J. Halacha & Contemp. Soc'y 73, 76 (1984) (noting that the Bar amendment requiring lawyers to keep client secrets about financial fraud "is going to pose a great dilemma for an observant Jewish attorney who, for example, would be legally precluded from warning a friend not to buy a share in his client's business [yet believes that] one must try to prevent harm from coming upon another Jew"), and Gordon Tucker, The Confidentiality Rule: A Philosophical Perspective with Reference to Jewish Law and Ethics, 13 Fordham Urb. L.J. 99, 100 (1985) (stating that, for a Jewish lawyer, "[a]n obligation to protect a dependent cannot override the general moral obligation to protect innocent human life").
116. Levinson, supra note 7, at 1610 ("[S]hould this situation ever arise, it might well be analyzed as a true conflict of legal obligations, rather than as a more conventional conflict between law and morals."). On Jewish law and confidentiality, see generally Rabbi Alfred S. Cohen, On Maintaining a Professional Confidence, 7 J. Halacha & Contemp. Soc'y 73, 76 (1984) (noting that the Bar amendment requiring lawyers to keep client secrets about financial fraud "is going to pose a great dilemma for an observant Jewish attorney who, for example, would be legally precluded from warning a friend not to buy a share in his client's business [yet believes that] one must try to prevent harm from coming upon another Jew"), and Gordon Tucker, The Confidentiality Rule: A Philosophical Perspective with Reference to Jewish Law and Ethics, 13 Fordham Urb. L.J. 99, 100 (1985) (stating that, for a Jewish lawyer, "[a]n obligation to protect a dependent cannot override the general moral obligation to protect innocent human life").
117. See Luban, Lawyers and Justice, supra note 2, at 179; David J. Luban, Freedom and Constraint in Legal Ethics: Some Mid-Course Corrections to Lawyers and Justice, 49 Md. L. Rev. 424, 433 (1990).
118. See Luban, Lawyers and Justice, supra note 2, at 179; David J. Luban, Freedom and Constraint in Legal Ethics: Some Mid-Course Corrections to Lawyers and Justice, 49 Md. L. Rev. 424, 433 (1990).
119. Twiss & Grelle, supra note 74, at 23.