The religious lawyering critique

Journal of Law and Religion

Volumn 21, Issue 2, 2006, Pages 283-297

  Green, Bruce A ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 85023104656     PISSN: 07480814     EISSN: 21633088     Source Type: Journal    
DOI: 10.1017/S0748081400005610     Document Type: Article

References (125)

1. Henry A. Boardman, The Importance of Religion to the Legal Profession: With Some Remarks on the Character of the Late Charles Chauncey, Esq. (Philadelphia, Wm. S. Martien 1849).
2. See M.H. Hoeflich, Legal Ethics in the Nineteenth Century: The “Other Tradition,” 47 Kan. L. Rev. 793, 802–803 (1993) (discussing Boardman's oration in the context of other nineteenth-century writings on the legal profession).
3. See Boardman, Kan. L. Rev, at 8
4. Id. at 10
5. see also id. at 16.
6. Id. at 9 (“A very little consideration will suffice to show that an intelligent, scriptural faith, must be of great assistance in forming a just estimate of the nature and objects of the legal profession.”).
7. Id. at 12.
8. Id. at 11–12 (“It would not be easy to exaggerate the value of personal religion in the actual practice of your profession. Whether regard be had to its temptations, its trials, or its duties, to the dangers to be shunned or the difficulties to be met.”).
9. Boardman described the lawyer's need to defend unpopular clients or causes—for example, to prosecute an eminent individual or to defend one “who has made himself obnoxious both to the government and the people”—even at the threat of one's own professional prospects. Id. at 19.
10. Whatever the personal consequences, he observed, the lawyer acting rightly “will not betray his client.” Id. at 20.
11. See generally Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics, 74 Geo. Wash. L. Rev. 1 (2005).
12. Boardman, Geo. Wash. L. Rev, at 15–16.
13. Id. at 17.
14. Id. at 18.
15. See id. at 11 (acknowledging that “right views … may undoubtedly be entertained and acted upon by individuals who are not under the control of religious principle,” but maintaining that “it is no less obvious that they are the views which a Christian lawyer must take of his profession.” (emphasis in original))
16. id. at 20 (acknowledging that “[i]t would be claiming too much for religion to affirm that this high moral courage can exist only in conne[ct]ion with personal piety”)
17. but see id. at 23 (asserting “that religion offers the only effectual shield against these dangers; that a firm faith is the best of all equipments to protect the members of the profession from those enticements to dissipation, and the more subtle enticements to dishonesty, which have proved fatal to so many brethren”).
18. Id. at 23
19. See e.g. Sadiq Reza, Religion and the Public Defender, 26 Fordham Urb. L.J. 1051, 1065–1066 (1999)
20. But see Stephen Wizner, Conference: Religious Values, Legal Ethics, and Poverty Law: A Response to Thomas Shaffer, 31 Fordham Urb. L.J. 37, 41 (2003) (expressing “skeptic[cism] about religion as a source of authority and inspiration for legal ethics and the practice of law” even for lawyers who see religion “as relevant to their professional lives”).
21. See generally Bruce A. Green, The Role of Personal Values in Professional Decisionmaking, 11 Geo. J. Leg. Ethics 19 (1997) [hereinafter Green, Personal Values].
22. See e.g. Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement (Yale U. Press 1993)
23. Anthony V. Alfieri, Teaching Ethics/Doing Justice, 73 Fordham L. Rev. 851 (2004)
24. Carrie Menkel-Meadow, The Causes of Cause Lawyering: Toward an Understanding of the Motivation and Commitment of Social Justice Lawyers, in Cause Lawyering (Austin Sarat & Stuart Scheingold eds., Oxford U. Press 1998)
25. Deborah L. Rhode, Cultures of Commitment: Pro Bono for Lawyers and Law Students, 67 Fordham L. Rev. 2415, 2416–2417 (1999)
26. William H. Simon, The Dark Secret of Progressive Lawyering: A Comment on Poverty Law Scholarship in the Post-Modern, Post-Reagan Era, 48 U. Miami L. Rev. 1099 (1994)
27. Stephen Wizner & Jane Aiken, Teaching and Doing: The Role of Law School Clinics in Enhancing Access to Justice, 73 Fordham L. Rev. 997 (2004).
28. See e.g. Green, Personal Values, Fordham L. Rev.
29. See e.g. Reza, Fordham L. Rev, at 1056–1063
30. Thomas L. Shaffer, Legal Ethics and the Good Client, 36 Cath. U. L. Rev. 319 (1987)
31. Leslie Griffin, Legal Ethics: The Relevance of Religion to a Lawyer's Work: Legal Ethics, 66 Fordham L. Rev. 1253, 1259–1261, 1277–1280 (1998).
32. See generally Bruce A. Green, Foreword, Professional Challenges in Large Firm Practices, 33 Fordham Urb. L.J. 7 (2005)
33. Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871 (1999)
34. Deborah L. Rhode, Balanced Lives for Lawyers, 70 Fordham L. Rev. 2207 (2002)
35. Deborah L. Rhode, The Profession and Its Discontents, 61 Ohio St. L.J. 1335 (2000).
36. See e.g. Bill Ong Hing, Raising Personal Identification Issues of Class, Race, Ethnicity, Gender, Sexual Orientation, Physical Disability, and Age in Lawyering Courses, 45 Stan. L. Rev. 1807, 1810 (1993).
37. On the significance of race see e.g. Roland Acevedo et al., Race and Representation: A Study of Legal Aid Attorneys and Their Perception of the Significance of Race, 18 Buff. Pub. Int. L.J. 1 (1999–2000)
38. Russell G. Pearce, White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 Fordham L. Rev. 2081 (2005)
39. David B. Wilkins, Identities and Roles: Race, Recognition, and Professional Responsibility, 57 Md. L. Rev. 1502 (1998)
40. Symposium, Critical Race Lawyering, 73 Fordham L. Rev. 2027 (2005).
41. On the relevance of gender see e.g. Carrie Menkel-Meadow, Portia in a Different Voice: Speculations on a Woman's Lawyering Process, 1 Berkeley Women's L.J. 39 (1985).
42. On the significance of sexual orientation see e.g. William B. Rubenstein, In Communities Begin Responsibilities: Obligations at the Gay Bar, 48 Hastings L.J. 1101 (1997).
43. See e.g. Russell G. Pearce & Amelia J. Uelmen, Religious Lawyering in a Liberal Democracy: A Challenge and an Invitation, 55 Case W. Res. L. Rev. 127, 141–142 (2004)
44. Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577 (1993).
45. See e.g. Daniel O. Conkle, Professing Professionals: Christian Pilots on the River of Law, 38 Cath. Law. 151, 164 (1998) (“Christianity may affect lawyers not only in how they generally understand or structure their professional life, but also in their day-to-day manner of practice.”)
46. Samuel J. Levine, Introductory Note: Symposium on Lawyering and Personal Values —Responding to the Problems of Ethical Schizophrenia, 38 Cath. Law. 145, 148 (1998) (“Religious values … present a comprehensive system of ethics for lawyers seeking to integrate their personal and professional lives.”).
47. See e.g. Timothy W. Floyd, The Practice of Law as a Vocation or Calling, 66 Fordham L. Rev. 1405, 1415 (1998)
48. Nancy B. Rapoport, Living “Top-Down” in a “Bottom-Up” World: Musings on the Relationship Between Jewish Ethics and Legal Ethics, 78 Neb. L. Rev. 18, 36 (1999)
49. See e.g. Steven H. Resnicoff, Lying and Lawyering: Contrasting American and Jewish Law, 11 Notre Dame L. Rev. 937, 937 (2002) (“Jewish law rules provide useful guidance for the possible amendment of America's secular legal ethics prescriptions.”)
50. Reza, Notre Dame L. Rev, at 1063–1065.
51. See Martha Minow, On Being a Religious Professional, 150 U. Pa. L. Rev. 661, 663 (2001) observing that
52. See generally Hermann Chroust, The Rise of the Legal Profession in America (U. Okla Press 1965)
53. Roscoe Pound, The Lawyer From Antiquity to Modern Times (West 1953)
54. but see Russell G. Pearce, Lawyers as America's Governing Class: The Formulation and Dissolution of the Original Understanding of the American Lawyer's Role, 8 U. Chi. Roundtable 381 (2001).
55. Levinson, U. Chi. Roundtable.
56. Id. at 1578.
57. See e.g. Howard Lesnick, The Religious Lawyer in a Pluralist Society, 66 Fordham L. Rev. 1469, 1489 (1998) [hereinafter Lesnick, Religious Lawyer]
58. Pearce & Uelmen, Fordham L. Rev, at 142–145
59. Russell G. Pearce, The Jewish Lawyer's Question, 27 Tex. Tech. L. Rev. 1259, 1269–1270 (1996)
60. Amy Porter, Representing the Reprehensible and Identity Conflicts in Legal Representation, 14 Temp. Pol. & Civ. Rights. L. Rev. 143, 152 (2004)
61. Amelia J. Uelmen, An Explicit Connection Between Faith and Justice in Catholic Legal Education: Why Rock the Boat?, 81 U. Det. Mercy L. Rev. 921, 924–925 (2004) [hereinafter Uelmen, Faith and Justice].
62. Russell G. Pearce, Jewish Lawyering in a Multicultural Society: A Midrash on Levinson, 14 Cardozo L. Rev. 1613, 1627 (1993) [hereinafter Pearce, Jewish Lawyering].
63. Robert K. Vischer, Heretics in the Temple of Law: The Promise and Peril of the Religious Lawyering Movement, 19 J. L. & Relig. 427 (2004).
64. Id. at 433
65. (quoting Levinson, Id, at 1578
66. Wilkins, Id, at 1504).
67. Id. at 431.
68. Id. at 435
69. (quoting Norman W. Spaulding, Reinterpreting Professional Identity, 74 U. Colo. L. Rev. 1, 7 (2003))
70. see also Conkle, U. Colo. L. Rev, at 152.
71. Vischer, U. Colo. L. Rev, at 443
72. (quoting Richard Wasserstrom, Roles and Morality, in The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 25, 28
73. (David Luban, ed., Rowman & Allanheld 1983)).
74. See e.g. Joseph G. Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice (Paulist Press 1996)
75. Pearce & Uelmen, The Lawyer's Calling: Christian Faith and Legal Practice, at 148–151
76. Vischer, The Lawyer's Calling: Christian Faith and Legal Practice at 441
77. (citing Geoffrey C. Hazard, The Future of Legal Ethics, 100 Yale L.J. 1239, 1278–1279 (1991)) (identifying Brougham with “the legal profession's narrative”).
78. See Russell G. Pearce, Persons of Faith and the Practice of Law: Faith and the Lawyer's Practice, 75 St. John's L. Rev. 277, 279 (2001) (observing that the religious lawyering movement is divided between those who “believe[] that religious lawyering can exist with professionalism, and indeed can be mutually supportive” and those who “believe[] that religious lawyering and professionalism are inevitably in conflict and that professionalism should be rejected”)
79. Vischer, St. John's L. Rev, at 429 (observing that religious lawyers' “primary loyalty is not to the profession's stated vision of the good lawyer, but to their faith tradition's stated vision of the good person”).
80. See e.g. Lesnick, Religious Lawyer, St. John's L. Rev
81. Vischer, St. John's L. Rev, at 429
82. see also Jennifer Tetenbaum Miller, Note, Free Exercise v. Legal Ethics: Can a Religious Lawyer Discriminate in Choosing Clients?, 13 Geo. J. Leg. Ethics 161 (1999).
83. But see Vischer, Geo. J. Leg. Ethics, at 429 (referring to “the frequent overlap between the compulsions of faith and the compulsions of the profession”).
84. For example, a recent article by Katherine Kruse explores the clash between the moral beliefs of a lawyer and client in the context of a scenario in which a lesbian couple seeking advice on how to use the law to best structure their family relationship to benefit their future child seeks assistance from a family lawyer who is morally and religiously opposed to homosexuality. Kamerine R. Kruse, Lawyers, Justice, and the Challenge of Moral Pluralism, 90 Minn. L. Rev. 389, 409 (2005).
85. Kruse argues compellingly for a “moral conflict of interest standard” which “would prohibit lawyers from representing clients with whom they fundamentally disagree on moral grounds.” Id. at 458.
86. Earlier, I explored the moral disagreement between a lawyer and client in the context of a scenario in which a woman seeking exclusive custody of her child retains a lawyer whose religious conviction (like that of a New Jersey judge on whom the scenario is based) is that children should be accessible to both parents. I suggested that family law might not be the appropriate area of practice for one holding such beliefs. Green, Personal Values, Id, at 36–38.
87. See also Israel M. Greisman, The Jewish Criminal Lawyer's Dilemma, 29 Fordham Urb. L.J. 2413 (2002) (arguing that Jewish doctrine would make it virtually impossible to serve as a criminal defense lawyer).
88. Amelia J. Uelmen, Can a Religious Person Be a Big Firm Litigator?, 26 Fordham Urb. L.J. 1069, 1088–1089 (1999) [hereinafter Uelmen, Religious Person]
89. see also Larry O. Natt Gantt, Ethical Guideposts for the Christian Attorney: Integration as Integrity: Postmodernism, Psychology, and Religion on the Role of Moral Counseling in the Attorney-Client Relationship, 16 Regent U. L. Rev. 233, 256 (2003–2004)
90. Leslie E. Gerber, Can Lawyers Be Saved? The Theological Legal Ethics of Thomas Shaffer, 10 J. L. & Relig. 347, 352 (1993–1994), discussing Thomas Shaffer's insight that the “[e]xcessive concentration on such dilemmas diverts ethicists (and jurists) from what the ancients took to be our foremost concern: character, virtue, and formation in the virtues”).
91. Uelmen, Religious Person, J. L. & Relig, at 1094.
92. Conkle, J. L. & Relig, at 165.
93. Pearce, Jewish Lawyering, J. L. & Relig, at 1269.
94. Uelmen, Faith and Justice, J. L. & Relig, at 929
95. Vischer, J. L. & Relig, at 447 (“A morally agnostic approach to clients is untenable when moral beliefs are not viewed simply as a matter of personal preference, but as having undeniable truth value.”).
96. Ted Schneyer, Moral Philosophy's Standard Misconception of Legal Ethics, 1984 Wis. L. Rev. 1529, 1567 (“attack[ing] the claim that lawyers generally adhere to a Standard Conception of legal ethics which motivates them to act for their clients up to the limits of the law and without regard for the interests of anyone but their clients”)
97. see also Ted Schneyer, Some Sympathy for the Hired Gun, 41 J. Leg. Educ. 11 (1991)
98. Zacharias & Green, J. Leg. Educ, at 15–16 & n. 95.
99. See Green, Personal Values, J. Leg. Educ.
100. Simon, J. Leg. Educ, at 1102 (“[Effective lawyers cannot avoid making judgments in terms of their own values and influencing their clients to adopt those judgments.”).
101. Norman W. Spaulding, Reinterpreting Professional Identity, 74 U. Colo. L. Rev. 1, 6–7 (2003).
102. See Wilkins, U. Colo. L. Rev, at 1590–1591
103. Daniel Markovits, Adversary Advocacy and the Authority of Adjudication, 75 Fordham L. Rev. (forthcoming 2006).
104. Russell G. Pearce, The Religious Lawyering Movement: An Emerging Force in Legal Ethics and Professionalism, 66 Fordham L. Rev. 1075 (1998).
105. See Rapoport, Fordham L. Rev, at 26–28 (questioning how extensively “bleaching out” occurs).
106. See Fordham L. Rev and accompanying text.
107. See e.g. Amelia J. Uelmen, The Evils of “Elasticity”: Reflections on the Rhetoric of Professionalism and the Part-Time Paradox in Large Firm Practice, 33 Fordham Urb. L.J. 81 (2005)
108. Uelmen, Faith and Justice, Fordham Urb. L.J.
109. See generally Robert John Araujo, S.J., International Tribunals and Rules of Evidence: The Case for Respecting and Preserving the “Priest-Penitent” Privilege Under International Law, 15 Am. U. Intl. L. Rev. 639 (2000).
110. But see Russell G. Pearce, To Save a Life: Why A Rabbi and a Jewish Lawyer Must Disclose a Client Confidence, 29 Loyola L.A. L. Rev. 1771 (1996) (describing Jewish understanding, which does not recognize confidentiality).
111. See Loyola L.A. L. Rev.
112. See e.g. Lesnick, Religious Lawyer, Loyola L.A. L. Rev, at 1496–1497
113. Thomas L. Shaffer, The Practice of Law as Moral Discourse, 55 Notre Dame L. Rev. 231 (1979)
114. Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers, Clients, and Moral Responsibility 94–134 (West 1994).
115. Robert Dinerstein et al., Connection, Capacity and Morality in Lawyer-Client Relationships: Dialogues and Commentary, 10 Clin. L. Rev. 755 (2004).
116. See e.g. Robert F. Cochran, Jr., Introduction: Can the Ordinary Practice of Law Be a Religious Calling?, 32 Pepp. L. Rev. 373, 374 (noting “that most religious traditions accept the notion that all productive work can be a religious calling”).
117. For a response to this point, see Pearce & Uelmen, Pepp. L. Rev, at 152–153.
118. See Thomas L. Shaffer, Lawyer Professionalism as a Moral Argument, 26 Gonz. L. Rev. 393 (1990).
119. See e.g. Symposium, The Relevance of Religion to a Lawyer's Work: An Interfaith Conference, 66 Fordham L. Rev. 1075 (1998)
120. Robert Reber et al., Rediscovering the Role of Religion in the Lives of Lawyers and Those They Represent, Panel Discussion: Can We Find Common Ground as Religiously Committed Lawyers, 26 Fordham Urb. L.J. 961 (1999).
121. See e.g. Bruce A. Green, Foreword, Rationing Lawyers: Ethical and Professional Issues in the Delivery of Legal Services to Low-Income Clients, 67 Fordham L. Rev. 1713, 1735 (1999).
122. Carrie Menkel-Meadow, And Now a Word About Secular Humanism, Spirituality, and the Practice of Justice and Conflict Resolution, 28 Fordham Urb. L.J. 1073, 1079 (2001).
123. On the communal effort to explore the religious and moral significance of a lawyer's work see e.g. Howard Lesnick, No Other Gods: Answering the Call of Faith in the Practice of Law, 18 J. L. & Relig. 459, 465 (2002–2003)
124. Thomas L. Shaffer, Legal Ethics and Jurisprudence from Within Religious Congregations, 76 Notre Dame L. Rev. 961 (2001)
125. Vischer, Notre Dame L. Rev.