On lying for clients

Notre Dame Law Review

Volumn 71, Issue 2, 1996, Pages 195-213

  Shaffer, Thomas L ^a,b  

^a UNIVERSITY OF NOTRE DAME   (United States)

^b Notre Dame Legal Aid Clinic   (United States)

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EID: 21344434283     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (116)

1. WILLIAM FAULKNER, THE MANSION 363 (Vintage Books 1959).
2. WILLIAM FAULKNER, An Error in Chemistry, in KNIGHT'S GAMBIT 111 (Random House 1949). Not all of Gavin's preference was vicarious and professional. His recurrent client in THE TOWN and THE MANSION, Linda Snopes Cole, once said to him: "I love you . . . because every time you lie to me I can always know you will stick to it." FAULKNER, supra note 1, at 175.
3. FAULKNER, KNIGHT'S GAMBIT, supra note 2, at 131.
4. CLEANTH BROOKS, William Faulkner: Vision of Good and Evil, in THE HIDDEN GOD 41 (1963).
5. Lisa G. Lerman, Lying to Clients, 138 U. PA. L. REV. 659 (1990).
6. Lisa G. Lerman, Lying to Clients, 138 U. PA. L. REV. 659 ( 1990). Id.
7. Carrie Menkel-Meadow, Lying to Clients for Economic Gain or Paternalistic Judgment: A Proposal for a Golden Rule of Candor, 138 U. PA. L. REV. 761, 764 (1990).
8. Frederick Miller, Commentary: "If You Can't Trust Your Lawyer . . . . ?," 138 U. PA. L. REV. 785, 785 (1990) (as to both points).
9. See generally Paul G. Haskell, Teaching Moral Analysis in Law School, 66 NOTRE DAME L. REV. 1025 (1991).
10. KARL LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY 101 (1951).
11. See generally ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993).
12. LAWRENCE KOHLBERG, THE PHILOSOPHY OF MORAL DEVELOPMENT: MORAL STAGES AND THE IDEA OF JUSTICE 18 (1981).
13. Geoffrey M. Peters, The Use of Lies in Negotiation, 48 OHIO ST. L.J. 1 (1987). I am purposely not preserving a distinction between deceit and lying, although I will occasionally mention the distinction, which has a lofty provenance. See my discussion of negotiation, SHAFFER, infra note 17, at 350-61.
14. Immanuel Kant, On a Supposed Right to Lie from Altruistic Motives,
15. reprinted in SISSELA BOK, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE 285-90 (First Vintage Books 1979) (1978).
16. SHIRLEY ROBIN LETWIN, THE GENTLEMAN IN TROLLOPE: INDIVIDUALITY AND MORAL CONDUCT 72 (1982).
17. My daughter Mary and I explored the notion at great length in our book: THOMAS L. SHAFFER & MARY M. SHAFFER, AMERICAN LAWYERS AND THEIR COMMUNITIES: ETHICS IN THE LEGAL PROFESSION (1991).
18. Aristotle, Nicomachean Ethics, Book Eight, excerpted in part in THOMAS L. SHAFFER, AMERICAN LEGAL ETHICS: TEXT, READINGS, AND DISCUSSION TOPICS 149-51 (1985);
19. John M. Cooper, Aristotle on the Forms of Friendship, 30 REV. METAPHYSICS 619 (1977);
20. John M. Cooper, Friendship and the Good in Aristotle, 86 PHIL. REV. 290 (1977);
21. see also GILBERT MEILAENDER, FRIENDSHIP: A STUDY IN THEOLOGICAL ETHICS 69-84 (1981).
22. The method is Aristotelian, in what I hope is a commonsensical, lawyer's use of the tradition. Aristotle contemplated the good person. He then reflected on the dispositions, habits, and virtues that combine to make the good person a good person. What good stories do is to present for ethical reflection, through the extraordinary talent and insight of a storyteller, a good person. And then lesser folk (legal scholars even) contemplate what is presented to them by the storytellers, and, among other things, do what Aristotle did: describe the good habits the storyteller shows them in her good person - particularly, in the present instance, the virtues of friendship and truthfulness. I attempted to justify the method, and to illustrate it, in THOMAS L. SHAFFER, FAITH AND THE PROFESSIONS (1987),
23. there depending heavily on JAMES W. MCCLENDON, BIOGRAPHY AS THEOLOGY (1974),
24. STANLEY HAUERWAS, TRUTHFULNESS AND TRAGEDY (1977)
25. and STANLEY HAUERWAS, VISION AND VIRTUE: ESSAYS IN CHRISTIAN ETHICAL REFLECTION (1974). The method is dependent on the insight of storytellers. I point to stories (as in this essay). In that way, I use stories; I lack the ability to tell stories.
26. Charles P. Curtis, The Ethics of Advocacy, 4 STAN. L. REV. 3, 8 (1951), reprinted in SHAFFER, supra note 17, at app. § 13.1.
27. The test, as I learned it from an old English case in a first-year agency course, was between the liability of the "master" for what the "servant" does in the master's behalf, and acts for which the "servant" only is liable. Joel v. Morison, 172 Eng. Rep. 1338 (Ex. 1834) (Parke, B.).
28. Curtis, supra note 19, at 6. When the captain and crew were with lawyers, preparing for trial: Captain: "You, of course were up in the eyes on the forecastle keeping a sharp lookout." Sailor: "The truth is, Captain, I was in the head having a smoke." Captain (to the lawyers): "That's all right, gentlemen, he'll testify that he was keeping a sharp lookout. Won't you, Sam?" Sailor: "No. . . . I guess I can't do that." Id. And then (Curtis): [S]uch a storm of indignation burst over Sam as he had never seen. The Captain and the rest of the crew cursed him for betraying his ship. Let him go to the head if he had to. Let him even have his smoke if he must. But when he did let him also take the consequences. The collision was not his fault, they agreed. The fog was too thick for him to have seen the other vessel in time, but was he now going to let his own ship down? If he left his post on his own affairs, he had no right to make the ship pay the penalty. What if it was perjury? He'd taken that risk. Not the ship, but he had taken the risk of perjury. Id. at 6-7.
29. Curtis, supra note 19, at 7. I was secretary of the Grievance Committee of the Bar Association at the time, and I was trying to find out whether this man [the client who was being protected] had been blackmailed by some other lawyers. I went to this lawyer and asked him. If he had even admitted to me that he had represented this man, I should have been pretty sure that the man had indeed been blackmailed . . . . The lawyer told me he did not even know the man. Id.
30. Id. at 8. The lawyer goes to where his client is, hears the whole story, and advises him to surrender. . . . [T]hey make an appointment to go to police headquarters. Meanwhile the client is to have two days to wind up his affairs and make his farewells. When the lawyer gets back to his office, a police inspector is waiting for him, and asks him whether his client is in town and where he is. . . . Of course he lies. And why not? Id.
31. LETWIN, supra note 15, at 71-72. The quality of honesty Letwin admired had three dimensions: (i) clarity about one's own knowledge, (ii) congruence (i.e., objectivity about one's integrity), and (iii) awareness of the character of those with whom one is dealing. Karl Rahner was more strident: [A]s to what one must actually do, what the real content of life is, the moralizers leave us none the wiser. They seem intent on restricting our lives; they point out the ditches on the right-and on the left-hand side of the road; but what our life and work really are, what contents our hearts, they do not say. All these rules, these prescriptions, all this scolding, these warnings always being volunteered by unenlightened, petty-minded pedagogues and educators do not tell us what is to be done, where our heart and mind are to find fulfillment in this life on earth. KARL RAHNER, THE GREAT CHURCH YEAR 273 (Albert Raffelt ed. & Harvey D. Egan trans., Crossroad 1993) (1987).
32. 2 Kings 6:18-20.
33. THOMAS L. SHAFFER & ROBERT F. COCHRAN, JR., LAWYERS, CLIENTS, AND MORAL RESPONSIBILITY 86-87 (1994)
34. (quoting to this effect JOHN MURRAY, PRINCIPLES OF CONDUCT: ASPECTS OF BIBLICAL ETHICS 142-43 (2d prtg. 1964)).
35. 4 MIDRASH RABBAH, Leviticus 347 (Judah J. Slotki trans., 3d ed. 1983).
36. He was a miracle worker who prayed for (and apparently received) a double share of the spirit of Elijah. 2 Kings 2:9.
37. He made foul water wholesome, bitter soup palatable, an axe-head float on water. He multiplied drops of oil and loaves of bread to feed the hungry, cured leprosy, and brought the dead to life. 2 Kings 4, 5.
38. 2 Kings 6:21-22.
39. Genesis 27.
40. Genesis 25:31-34.
41. NAHUM M. SARNA, THE JPS TORAH COMMENTARY: GENESIS 189 (1989).
42. THE BABYLONIAN TALMUD, 3 SEDER NEZIKIN, Sanhedrin 688 (H. Freedman, trans., Quin. ed. 1978) [hereinafter SONCINO TALMUD];
43. DAVID WERNER AMRAM, LEADING CASES IN THE BIBLE 74 (1905);
44. CALUM M. CARMICHAEL, LAW AND NARRATIVE IN THE BIBLE 146-50 (1935).
45. AMRAM, supra note 31, at 74, is an example.
46. Id. at 67; SARNA, supra note 30, at 191, 397-98; SONCINO TALMUD, supra note 31, 4 SEDER NEZIKIN, Makoth, at 170 (H.M. Lazarus, trans.).
47. Alvan Kaunfer, Who Knows Four? The Imahot in Rabbinic Judaism, 44 JUDAISM 94, 99 (1995);
48. see also Joan Comay, Who's Who in the Old Testament, in WHO'S WHO IN THE BIBLE 320-21 (1980).
49. But see EDWARD J. WHITE, THE LAW IN THE SCRIPTURES 38 (1935), which is to the contrary as to Rebekah, but does not reason from the Jewish tradition.
50. Kaunfer, supra note 34, at 100.
51. WILLIAM NEIL, HARPER'S BIBLE COMMENTARY 57 (paperback ed. 1975); SARNA, supra note 30, at 189.
52. Genesis 20:1-7; 26:6-11.
53. Genesis 25:23; 6 MIDRASH RABBAH, supra note 27, Numbers, at 809; SONCINO TALMUD, supra note 31,
54. SEDER NEZIKIN, Abodah Zarah, at 56 (A. Cohen, trans.).
55. SONCINO TALMUD, supra note 31, 2 SEDER NEZIKIN, Baba Bathra, at 85 (Maurice Simon, trans.).
56. Genesis 28:1; 7 MIDRASH RABBAH, supra note 27,
57. Deuteronomy, at 20-21 (J. Rabbinowitz, trans.); SARNA, supra note 30; AMRAM, supra note 31, at 74.
58. It is important, too, with regard to these stories from Jewish Scripture, to notice how strong the tradition is against falsehood, without much respect for the distinction between false statements and deceptive statements. See SONCINO TALMUD, Sanhedrin, supra note 31, at 617; see generally BASIL F. HERRING, JEWISH ETHICS AND HALAKHAH FOR OUR TIME (1984).
59. HARPER LEE, TO KILL A MOCKINGBIRD 278-79 (Popular Library ed. 1960).
60. Some instances of my use of the story are in my AMERICAN LEGAL ETHICS 3-57;
61. FAITH AND THE PROFESSIONS 5-25;
62. and Growing Up Good in Maycomb, 45 ALA. L. REV. 531 (1994).
63. SHAFFER, supra note 17, at 16-17 (discussing Richard N. Ostling et al., A Scrupulous Monitor Closes Shop, TIME, Oct. 6, 1980, at 70).
64. HORTON FOOTE, THE SCREENPLAY OF TO KILL A MOCKINGBIRD (1964).
65. HERBERT FINGARETTE, SELF-DECEPTION (1969).
66. SHAFFER, supra note 17, at 17 (quoting Professor Herbert Fingarette).
67. Id.
68. LETWIN, supra note 15, at 69 ("When faced with transgressors, he will consider whether he is dealing with an eccentric, a ruffian, or a villain.").
69. SHAFFER, supra note 17, at 17 (quoting Professor Herbert Fingarette).
70. Id.
71. There is an art and a discipline for deciding what stories are good - that is, truthful in their description of the good person. See supra note 18. The perception is, no doubt, in large part intuitive and aesthetic. It is like standing before a painting and admiring the truth in what the painter has done. It is not an analytical art (although, to be sure, there are those who analyze paintings, as there are those who analyze stories). Part of the art and part of the discipline are aspects of faith. That is, the truthfulness of a story is related to its conformity with the "master story" revealed in Scripture. The religious dimension is developed theologically in MICHAEL GOLDBERG, JEWS AND CHRISTIANS: GETTING OUR STORIES STRAIGHT (1985), and HAUERWAS, TRUTHFULNESS AND TRAGEDY, supra note 18, at 35. Hauerwas puts a set of tests that turn less on analytical prowess than on perception. He asks whether the story (1) has power to release its readers from destructive alternatives; (2) provides ways of seeing through distortions; (3) provides room to keep its readers from having to resort to violence; and (4) observes a sense of the tragic - that is, the conviction that, ultimately, meaning transcends power. Id. at 35. Anne Tyler's novels almost always meet these criteria; crime stories rarely do, mostly because they fail to account for human evil.
72. LEE, supra note 42, at 276.
73. Atticus may have been wrong about that. From an analysis that considers the overarching modern ethical value of equality, it might have been better for Boo Radley, a mentally retarded adult, to be exposed to the community (and better for the community to deal with him face to face). The reason Jem was treated differently was because he was in training to become the sort of gentleman his father was. My reflections along these lines are what provoked Fingarette's rabbinical commentary. See supra note 43.
74. C.P. SNOW, TROLLOPE: HIS LIFE AND ART 9-18 (1975).
75. "Intimate" relationships within communities are not as clear in the other two Curtis stories, but imagining such relationships (midrashim) is consistent with the stories and with Curtis's understanding of them.
76. Alasdair MacIntyre and Stanley Hauerwas, writing in medical ethics, speak of modern American society as a "society of strangers" in which vocational focus is problematic because the society in which a vocation is practiced does not envision or nurture a coherent notion of common good. That is (as I understand it), those who function in the society no longer divide up the territory, so that a professional person can with confidence attend to the matters in which she is recognized as competent - can no longer trust that other vocations, with other competences, will see to needs for which she is not competent. STANLEY HAUERWAS, SUFFERING PRESENCE 42-62 (1986);
77. Alasdair MacIntyre, Patients as Agents, in PHILOSOPHICAL MEDICAL ETHICS: ITS NATURE AND SIGNIFICANCE 197 (Stuart F. Spicker & H. Tristram Engelhardt, Jr. eds., 1977).
78. Reflecting, as this paper sometimes does, on the situation of those for whom "strangers" are Hobbesian forces, claiming the "right" to exploit and consume those who find them both strange and vulnerable, is an even more ominous prospect See James H. Hutson, The Emergence of the Modern Concept of a Right in America: The Contribution of Michael Villey, 39 AM. J. JURIS. 185 (1994);
79. see also ARTHUR J. DYCK, RETHINKING RIGHTS AND RESPONSIBILITIES: THE MORAL BONDS OF COMMUNITY (1994);
80. J. Brian Benestad, Rethinking Rights and Responsibilities: The Moral Bonds of Community, AMERICA, June 3, 1995, at 27 (book review). It may be possible, for those who are oppressed by the exercise of Hobbesian freedom by hostile strangers, and for their advocates, to invoke political and legal notions of rights that respect limits. However, it is always the case that moral claims of right are more pervasive and less protective than legal claims of right - so that there is an area for law practice, in which guile rather than law is the substance of practice. Benign Christian and Jewish ethics might, with a different focus, speak of this as an area in which charity, rather than justice, is the substance of ethical practice: Friends, Aristotle said, have no need of justice.
81. See KAI T. ERIKSON, WAYWARD PURITANS: A STUDY IN THE SOCIOLOGY OF DEVIANCE 1-29 (1966)
82. (discussing EMILE DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD (1895)).
83. BOK, supra note 14, at 141-53.
84. This story and Professor Freedman's conversation with me about it are what led me to think about this subject for use at the Hofstra conference. Acceptable Lies, LEGAL TIMES, Feb. 20, 1995, at 24.
85. Robert E. Rodes, Jr., Law, History, and the Option for the Poor, 6 LOGOS 61 (1985),
86. and ROBERT E. RODES, JR., LAW AND LIBERATION (1986),
87. use such an analysis from Marx by way of Latin American liberation theology, especially, as to the first, the "new class" theory in MILOVAN DJILAS, THE NEW CLASS (1957),
88. and, as to the second, GUSTAVO GUTIERREZ, A THEOLOGY OF LIBERATION (1973).
89. BOK, supra note 14, at 143-44. Nonetheless, there are degrees of keeping faith. There is, for example, a point of view in our warlike culture that says it is better to kill a person than to lie to him. See 3 THE COLLECTED ESSAYS, JOURNALISM AND LETTERS OF GEORGE ORWELL 232-35 (No. 58) (Sonia Orwell & Ian Angus eds., Penguin Books 1970) (1968). The argument seems fatuous to me, as it did to my friend Professor Stephen L. Pepper: [T]he analogy to World War II was powerful, but I thought too much so: it seemed to be overkill, to go too far. War justifies far more and far worse than lying. And distinguishing the justifiable from the unjustifiable war, or the acceptable from the unacceptable in the conduct of war, are formidable tasks - to say the least Letter from Professor Stephen L. Pepper, University of Denver College of Law, to Thomas Shaffer, Professor of Law, University of Notre Dame (Aug. 23, 1995) (on file with author).
90. BOK, supra note 14, at 174-75 (quoting JEAN-PAUL SARTRE, DIRTY HANDS).
91. The stories show how a good person does sometimes lie to a friend, but a lie to a friend, assuming self-deception is under control, does not exclude or abuse the friend. I am not talking in this paper about the interesting subject of benign lies. See generally Menkel-Meadow, supra note 7.
92. My present concern for self-deception in identifying enemies is perhaps related to deciding, as Jesus did, what to do about enemies; Jesus's teaching assumes that one has enemies. I want to notice that and also to notice that the perception that someone is my client's enemy may be the result of clear-sighted realism. I am influenced here by Stanley Hauewas, No Enemy, No Christianity: Preaching Between 'Worlds' (unpublished essay on file with author).
93. Monroe H. Freedman, Atticus Finch - Right and Wrong, 45 ALA. L. REV. 473 (1994).
94. See SHAFFER, supra note 17, at 146-60, 427-33 (discussing the point, from Aristotle, David Hoffman, and others).
95. Curtis, supra note 19, at 7.
96. Id.
97. See SHAFFER, supra note 19, at app. § 13.12 n.4.
98. Jesus spoke about that, if one can assume that what he said about enemies applies to vicarious enemies.
99. I borrow the phrase from a litigation story - what I think is the first tax case in the federal supreme court, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 462-63 (1793). In that case, Justice James Wilson made the point that the taxpayer is more important, ultimately, than the tax gatherer. His comparison was one made about relationships and within community lines.
100. See supra note 13.
101. See supra note 59. The story also involved a second lie, in which Professor Freedman told the lawyer for the other side that his clients had not been able to mitigate damages - which, in fact, they had. I suggested evasion there as well, an example of which would be to say something like, "We are working on it." I find, in discussing this part of this paper with students and colleagues, that they tend to go along with me on the evasion described in the text, but not on this second evasion. The reason that comes out of discussion with them is that the fact of mitigation of damages is a discoverable fact. I don't find that reason persuasive, in view of the fact that the negotiations Professor Freedman describes were aimed, by both sides, at preventing the litigation from which discovery might eventuate. But, out of respect for my friends, I limit the point to a footnote. Kenneth Kipnis discusses lies to judges in the context of questions asked, in court, by judges, of lawyers, which impinge on confidentiality. He wonders whether the relevant principle on confidentiality would permit a truthful answer that is helpful to the client, but would forbid lying to judges when the answer would not be helpful. He announces the principle that "if it is improper for attorneys truthfully to answer questions when the truth will hurt a client, it is equally improper to answer when the truth will help." KENNETH KIPNIS, LEGAL ETHICS 94-95 (1986). Machiavelli and Sartre would not be persuaded; neither am I. We have Rule 1.6(a) of the Model Rules of Professional Conduct (concerning confidentiality of information) on our side, I think. More usefully, Kipnis suggests several possibilities for evasion; some of these are at least as harmful as a truthful answer would be, but others fall within the etiquette I suggest in the text Because evasion is available, Kipnis is able to conclude that "the case for deception cannot be made." Id. at 95.
102. Lest there be confusion: This is distinguishable from a lawyer's making and keeping promises to another lawyer, although careful lawyers know that it is important to attend to the exact terms of the promises made, precisely because we are committed to keep our promises to one another. I suppose that, when Professor Freedman and the lawyer from the hotel arrived at a settlement, it was effectively sealed by oral promises the two lawyers made to one another.
103. See my discussion in SHAFFER, supra note 17, at 350-61; see also Christopher J. Shine, Note, Deception and Lawyers: Away from a Dogmatic Principle and Toward a Moral Understanding of Deception, 64 NOTRE DAME L. REV. 722 (1989) (discussing deception by police officers and other pursuers of criminality.) In that situation, Shine says, "a person operating in an official law enforcement capacity or under equally compelling circumstances needs to be treated differently than the general population." Id. at 738. He proposes amendments to the Model Rules: "[L]ying is sometimes not only ethical but preferred . . . ." Id. at 752.
104. It becomes plausible, in a tyrannical regime, for the oppressed to regard the tyrant who oppresses them as an enemy. See Bruce Frohnen, Tocqueville's Law: Integrative Jurisprudence in the American Context, 39 AM. J. JURIS. 241, 258, 264 (1994).
105. BOK, supra note 14, at 148-51. Bok's recourse for weighing such judgments is the opinion of "impartial onlookers." I doubt that there are any. She appeals also to the common good, which is not the same thing and which is within the ken of onlookers who are not impartial. Common-good thinking among us does, of course, depend on whether there is at least a vital remnant of a moral tradition in the Christian West. This is in one sense an empirical question. One can, in treating it that way, for example, make inferences for ethics from what people say about their beliefs and practices. Thus, something more than 80 percent of Americans describe themselves as God-fearing churchgoers. See George Gallup, Jr. & Jim Castelli, Nine of Ten Share a Belief in God, WASHINGTON POST, Nov. 28, 1987, at B-6;
106. The Gallup Report, Religion in America, No. 259 (April 1987);
107. Peter A. Brown, Americans Tend to be Different, SOUTH BEND TRIBUNE, Apr. 9, 1995, at A-16 (reporting on a survey by the Roper Center for Public Opinion Research). The question can be treated another way, as part intuition, part a sense of history, part a sort of philosophical anthropology, that says people in our culture are the sort of people who necessarily, by implication from what sort of creatures they are seen to be, hold a common moral tradition. For an example that builds a certain triumphalist mood, and no doubt covers too much: It is . . . idle to imagine that relations between North America and Western Europe can be wholly invigorated by a round of trade talks. To believe that is certainly to do less than justice to the full range of values and interests that they have in common. These values and interests reflect what is broadly a common outlook, arising from broadly the same cultural tradition and directed at broadly the same set of aims and ideals. They have been responsible for much of the world's present shape. They are not all noble or immune to criticism. But in the second part of this century they have seen off fascism and communism, laid the foundations for democracy in countries that had known little but despotism, and helped to spread prosperity on a scale unsurpassed in human history. If North America and Europe can maintain the dynamism of this shared identity, they can continue to shape the world for the better.
108. In Need of Fastening, THE ECONOMIST, May 27, 1995, at 16.
109. As my students always do; I have never been able to get them to disapprove of Atticus.
110. The substance and meaning of the notion is in his opinion in In re Gault, 387 U.S. 1 (1967). I remember the phrase "constitutional non-persons" from a talk he gave at Ohio State University, in (I think) 1969.
111. H. RICHARD NIEBUHR, THE RESPONSIBLE SELF: AN ESSAY IN CHRISTIAN MORAL PHILOSOPHY 68 (1963).
112. Curtis, supra note 19, at 8.
113. Letters from Herbert Fingarette, Professor of Philosophy, University of California, Santa Barbara, to Thomas Shaffer, Professor of Law, University of Notre Dame (Aug. 5, 1995 [hereinafter Fingarette Letter, Aug. 5, 1995] & Aug. 17, 1995) (on file with author).
114. Fingarette Letter, Aug. 5, 1995, supra note 82.
115. For my explication of this notion, see SHAFFER, supra note 18, ch. 1.
116. Fingarette Letter, Aug. 5, 1995, supra note 82.