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The Religious Lawyering Critique

Published online by Cambridge University Press:  24 April 2015

Bruce A. Green
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Extract

One might think about the relationship between law practice and religion in different ways, depending on how one views either the professional norms or religious belief and observance. Some of the most recent academic literature on “religious lawyering” is premised on a highly critical view of the profession's norms and a claim that religious convictions that bear on the practice of law are incompatible with, and preferable to, aspects of the professional norms. My purpose here is to identify, and raise some questions about, both this critique and this suggestion, and to show how they are in tension with other insights of the religious lawyering literature.

A conception of the relevance of religion to lawyers' work need not begin with a critical view of professional norms and professionalism. On the contrary, one might start with the premise that the legal profession's expectations for law practice are socially and morally laudable, and perceive lawyers' religious convictions as providing support for good lawyering. This was the understanding expressed by Henry A. Boardman, a Presbyterian Minister, in an 1849 oration that was surely among the earliest recorded reflections on the relevance of religion to the work of U.S. lawyers.

Type
AALS Presentations
Information
Journal of Law and Religion , Volume 21 , Issue 2 , 2006 , pp. 283 - 297
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2005

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References

1. Boardman, Henry A., 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)Google Scholar. See Hoeflich, M.H., Legal Ethics in the Nineteenth Century: The “Other Tradition,” 47 Kan. L. Rev. 793, 802–803 (1993)Google Scholar (discussing Boardman's oration in the context of other nineteenth-century writings on the legal profession).

2. See Boardman, supra n. 1, at 8:

The Bar must always, in a country like ours, be the chief avenue of civil distinction—the main road to posts of emolument and power…. [A] profession clothed with so lofty a mission, needs, both for its own sake and the sake of the country, to be pervaded with a wholesome religious sentiment. Piety alone will not, it is true, fit men to become jurists, diplomatists, or legislators. But piety is the basis of good morals. It makes men conscientious.

3. Boardman maintained that some lawyers, “reckless pettifoggers of the profession,” grossly misconceive their role, viewing law not as a science or even a trade, but as a “system of trickery”:

They come to the Bar as a gambler to his club, to be honest where it is politic to be honest, and to practice fraud and chicanery where chicanery and fraud promise larger gains. They see nothing in a law-suit but a private dispute or quarrel, a sort of pugilistic encounter, in which it is all one to the community who beats and who is beaten.

Id. at 10; see also id. at 16.

4. 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.”).

5. Id. at 12.

6. 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.”).

7. 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. Whatever the personal consequences, he observed, the lawyer acting rightly “will not betray his client.” Id. at 20.

8. See generally Zacharias, Fred C. & Green, Bruce A., Reconceptualizing Advocacy Ethics, 74 Geo. Wash. L. Rev. 1 (2005)Google Scholar.

9. Boardman, supra n. 1, at 15-16.

10. Id. at 17.

11. Id. at 18.

12. Id.

13. Id.

14. 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)); 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”); 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”).

15. Id. at 23:

My object has been to show the great value of personal religion, its professional value, so to speak, in the practice of law. It is not denied that examples may be found at the Bar, of eminent moral worth and distinguished success, dissociated from real piety. But it is contended that even in cases of this sort, religion would impart an additional lustre to the character; while its influence, if diffused throughout the body, would be most advantageously felt in removing the prevalent vices and defects of the profession, and augmenting all those virtues which make it one of the chief supports and ornaments of a refined civilisation.

16. See e.g. Reza, Sadiq, Religion and the Public Defender, 26 Fordham Urb. L.J. 1051, 1065–1066 (1999)Google Scholar:

That religious considerations should not alter a public defender's representation of a client to the legal detriment of the client does not mean that religion has no role in the public defender's work. Religious imperatives and exhortations may well sustain and inspire a public defender in his work, and help him to treat clients with the compassion and dignity many feel is necessary to representing indigent criminal defendants.

But see Wizner, Stephen, Conference: Religious Values, Legal Ethics, and Poverty Law: A Response to Thomas Shaffer, 31 Fordham Urb. L.J. 37, 41 (2003)Google Scholar (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”).

17. See generally Green, Bruce A., The Role of Personal Values in Professional Decisionmaking, 11 Geo. J. Leg. Ethics 19 (1997)Google Scholar [hereinafter Green, Personal Values].

18. See e.g. Davis, Martha F., Brutal Need: Lawyers and the Welfare Rights Movement (Yale U. Press 1993)Google Scholar; Alfieri, Anthony V., Teaching Ethics/Doing Justice, 73 Fordham L. Rev. 851 (2004)Google Scholar; Menkel-Meadow, Carrie, The Causes of Cause Lawyering: Toward an Understanding of the Motivation and Commitment of Social Justice Lawyers, in Cause Lawyering (Sarat, Austin & Scheingold, Stuart eds., Oxford U. Press 1998)Google Scholar; Rhode, Deborah L., Cultures of Commitment: Pro Bono for Lawyers and Law Students, 67 Fordham L. Rev. 2415, 2416–2417 (1999)Google Scholar; Simon, William H., 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)Google Scholar; Wizner, Stephen & Aiken, Jane, Teaching and Doing: The Role of Law School Clinics in Enhancing Access to Justice, 73 Fordham L. Rev. 997 (2004)Google Scholar.

19. See e.g. Green, Personal Values, supra n. 17.

20. See e.g. Reza, supra n. 16, at 1056-1063; Shaffer, Thomas L., Legal Ethics and the Good Client, 36 Cath. U. L. Rev. 319 (1987)Google Scholar; Griffin, Leslie, Legal Ethics: The Relevance of Religion to a Lawyer's Work: Legal Ethics, 66 Fordham L. Rev. 1253, 1259-1261, 1277–1280 (1998)Google Scholar.

21. See generally Green, Bruce A., Foreword, Professional Challenges in Large Firm Practices, 33 Fordham Urb. L.J. 7 (2005)Google Scholar; Schiltz, Patrick J., On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871 (1999)Google Scholar; Rhode, Deborah L., Balanced Lives for Lawyers, 70 Fordham L. Rev. 2207 (2002)Google Scholar; Rhode, Deborah L., The Profession and Its Discontents, 61 Ohio St. L.J. 1335 (2000)Google Scholar.

22. See e.g. Hing, Bill Ong, 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)CrossRefGoogle Scholar. On the significance of race see e.g. Acevedo, Rolandet 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)Google Scholar; Pearce, Russell G., White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 Fordham L. Rev. 2081 (2005)Google Scholar; Wilkins, David B., Identities and Roles: Race, Recognition, and Professional Responsibility, 57 Md. L. Rev. 1502 (1998)Google Scholar; Symposium, Critical Race Lawyering, 73 Fordham L. Rev. 2027 (2005)Google Scholar. On the relevance of gender see e.g. Menkel-Meadow, Carrie, Portia in a Different Voice: Speculations on a Woman's Lawyering Process, 1 Berkeley Women's L.J. 39 (1985)Google Scholar. On the significance of sexual orientation see e.g. Rubenstein, William B., In Communities Begin Responsibilities: Obligations at the Gay Bar, 48 Hastings L.J. 1101 (1997)Google Scholar.

23. See e.g. Pearce, Russell G. & Uelmen, Amelia J., Religious Lawyering in a Liberal Democracy: A Challenge and an Invitation, 55 Case W. Res. L. Rev. 127, 141–142 (2004)Google Scholar; Levinson, Sanford, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577 (1993)Google Scholar.

24. See e.g. Conkle, Daniel O., Professing Professionals: Christian Pilots on the River of Law, 38 Cath. Law. 151, 164 (1998)Google Scholar (“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.”); Levine, Samuel J., Introductory Note: Symposium on Lawyering and Personal Values—Responding to the Problems of Ethical Schizophrenia, 38 Cath. Law. 145, 148 (1998)Google Scholar (“Religious values… present a comprehensive system of ethics for lawyers seeking to integrate their personal and professional lives.”).

25. See e.g. Floyd, Timothy W., The Practice of Law as a Vocation or Calling, 66 Fordham L. Rev. 1405, 1415 (1998)Google Scholar; Rapoport, Nancy B., 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)Google Scholar:

How do I avoid having to choose between my two worlds? For one thing, I can say “no” to representations that I can't stomach—a luxury that, as a law professor, I can certainly afford. But I want to go beyond avoiding the conflict. I actually want to interweave both worlds, and I can do that. For one thing, as a lawyer and as a Jew, I can recognize that I'm an example in the community (both when I'm actually lawyering and when I'm doing non-lawyering things, like shopping for groceries), and I can behave accordingly. As a lawyer and as a Jew, I can treat people with kindness and with respect. I can enjoy both traditions' enthusiasm for debate and interpretation—even when it comes to the hardest question of all: who am I?

26. See e.g. Resnicoff, Steven H., Lying and Lawyering: Contrasting American and Jewish Law, 11 Notre Dame L. Rev. 937, 937 (2002)Google Scholar (“Jewish law rules provide useful guidance for the possible amendment of America's secular legal ethics prescriptions.”); Reza, supra n. 16, at 1063-1065.

27. See Minow, Martha, On Being a Religious Professional, 150 U. Pa. L. Rev. 661, 663 (2001)CrossRefGoogle Scholar observing that:

[t]he more typical legal scholarly treatment [of religion and law practice]… begins by noting an apparent crisis in the legal profession or a decline in ethics among lawyers [and] then advises a search for virtue and goodness that religious teachings, beliefs, and institutions can assist.

28. See generally Chroust, Hermann, The Rise of the Legal Profession in America (U. Okla Press 1965)Google Scholar; Pound, Roscoe, The Lawyer From Antiquity to Modern Times (West 1953)Google Scholar; but see Pearce, Russell G., 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)Google Scholar.

29. Levinson, supra n. 23.

30. Id. at 1578.

31. See e.g. Lesnick, Howard, The Religious Lawyer in a Pluralist Society, 66 Fordham L. Rev. 1469, 1489 (1998)Google Scholar [hereinafter Lesnick, Religious Lawyer]; Pearce & Uelmen, supra n. 23, at 142-145; Pearce, Russell G., The Jewish Lawyer's Question, 27 Tex. Tech. L. Rev. 1259, 1269–1270 (1996)Google Scholar; Porter, Amy, Representing the Reprehensible and Identity Conflicts in Legal Representation, 14 Temp. Pol. & Civ. Rights. L. Rev. 143, 152 (2004)Google Scholar; Uelmen, Amelia J., 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)Google Scholar [hereinafter Uelmen, Faith and Justice].

32. Pearce, Russell G., Jewish Lawyering in a Multicultural Society: A Midrash on Levinson, 14 Cardozo L. Rev. 1613, 1627 (1993)Google Scholar [hereinafter Pearce, Jewish Lawyering].

33. Vischer, Robert K., Heretics in the Temple of Law: The Promise and Peril of the Religious Lawyering Movement, 19 J. L. & Relig. 427 (2004)CrossRefGoogle Scholar.

34. Id. at 433 (quoting Levinson, supra n. 23, at 1578, and Wilkins, supra n. 22, at 1504).

35. Id. at 431.

36. Id. at 435 (quoting Spaulding, Norman W., Reinterpreting Professional Identity, 74 U. Colo. L. Rev. 1, 7 (2003)Google Scholar); see also Conkle, supra n. 24, at 152.

37. Vischer, supra n. 34, at 443 (quoting Wasserstrom, Richard, Roles and Morality, in The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 25, 28 (Luban, David, ed., Rowman & Allanheld 1983)Google Scholar).

38. See e.g. Allegretti, Joseph G., The Lawyer's Calling: Christian Faith and Legal Practice (Paulist Press 1996)Google Scholar; Pearce & Uelmen, supra n. 23, at 148-151; Vischer, supra n. 33 at 441 (citing Hazard, Geoffrey C., The Future of Legal Ethics, 100 Yale L.J. 1239, 1278–1279 (1991)CrossRefGoogle Scholar) (identifying Brougham with “the legal profession's narrative”).

39. See Pearce, Russell G., Persons of Faith and the Practice of Law: Faith and the Lawyer's Practice, 75 St. John's L. Rev. 277, 279 (2001)Google Scholar (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”); Vischer, supra n. 33, 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”).

40. See e.g. Lesnick, Religious Lawyer, supra n. 31; Vischer, supra n. 33, at 429; see also Miller, Jennifer Tetenbaum, Note, Free Exercise v. Legal Ethics: Can a Religious Lawyer Discriminate in Choosing Clients?, 13 Geo. J. Leg. Ethics 161 (1999)Google Scholar.

41. But see Vischer, supra n. 33, at 429 (referring to “the frequent overlap between the compulsions of faith and the compulsions of the profession”).

42. 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. Kruse, Katherine R., Lawyers, Justice, and the Challenge of Moral Pluralism, 90 Minn. L. Rev. 389, 409 (2005)Google Scholar. 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. 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, supra n. 17, at 36-38. See also Greisman, Israel M., The Jewish Criminal Lawyer's Dilemma, 29 Fordham Urb. L.J. 2413 (2002)Google Scholar (arguing that Jewish doctrine would make it virtually impossible to serve as a criminal defense lawyer).

43. Uelmen, Amelia J., Can a Religious Person Be a Big Firm Litigator?, 26 Fordham Urb. L.J. 1069, 1088–1089 (1999)Google Scholar [hereinafter Uelmen, Religious Person]; see also Gantt, Larry O. Natt, 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)Google Scholar; Gerber, Leslie E., Can Lawyers Be Saved? The Theological Legal Ethics of Thomas Shaffer, 10 J. L. & Relig. 347, 352 (1993-1994)Google Scholar, 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”).

44. Uelmen, Religious Person, supra n. 43, at 1094.

45. Conkle, supra n. 24, at 165.

46. Id.

47. Pearce, Jewish Lawyering, supra n. 32, at 1269.

48. Uelmen, Faith and Justice, supra n. 31, at 929:

When it comes to analyzing the implications of ordinary day-to-day work, many lawyers lack a robust intellectual framework which would help to challenge, or at least think about, how their work impacts the common good and the poor. For a few sensitive and inquiring souls, direct contact with poverty and injustice may be sufficient to provoke the kind of intellectual inquiry and moral reflection that will equip them for a probing structural critique.

49. Vischer, supra n. 33, 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.”).

50. Schneyer, Ted, Moral Philosophy's Standard Misconception of Legal Ethics, 1984 Wis. L. Rev. 1529, 1567Google Scholar (“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”); see also Schneyer, Ted, Some Sympathy for the Hired Gun, 41 J. Leg. Educ. 11 (1991)Google Scholar; Zacharias & Green, supra n. 8, at 15-16 & n. 95.

51. See Green, Personal Values, supra n. 17.

52. Simon, supra n. 18, at 1102 (“[E]ffective lawyers cannot avoid making judgments in terms of their own values and influencing their clients to adopt those judgments.”).

53. Spaulding, Norman W., Reinterpreting Professional Identity, 74 U. Colo. L. Rev. 1, 6–7 (2003)Google Scholar.

54. Id.

55. See Wilkins, supra n. 22, at 1590-1591:

First, the model insists that professional obligations carry independent moral weight. Black lawyers, like all lawyers, must take these obligations seriously. Second, all legitimate racial obligations must be derived from, and ultimately be subservient to, common morality. Racial obligations are therefore no excuse for race-based oppression. Third, in cases where there is an unavoidable conflict between a black lawyer's racial obligations and her professional commitments, it is the legitimate social purposes underlying her professional obligations that must eventually carry the day. Racial solidarity, in other words, can never undermine the legitimate (as opposed to the self-interested) demands of professionalism. Fourth, to the extent that a black lawyer finds it impossible to conform to these demands, she must… express her disagreement in ways that ultimately support the moral force of die professional norm.

56. Markovits, Daniel, Adversary Advocacy and the Authority of Adjudication, 75 Fordham L. Rev. (forthcoming 2006)Google Scholar.

57. Pearce, Russell G., The Religious Lawyering Movement: An Emerging Force in Legal Ethics and Professionalism, 66 Fordham L. Rev. 1075 (1998)Google Scholar.

58. See Rapoport, supra n. 25, at 26-28 (questioning how extensively “bleaching out” occurs).

59. See supra nn. 24-25 and accompanying text.

60. See e.g. Uelmen, Amelia J., 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)Google Scholar; Uelmen, Faith and Justice, supra n. 31.

61. See generally Araujo, Robert John 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)Google Scholar. But see Pearce, Russell G., To Save a Life: Why A Rabbi and a Jewish Lawyer Must Disclose a Client Confidence, 29 Loyola L.A. L. Rev. 1771 (1996)Google Scholar (describing Jewish understanding, which does not recognize confidentiality).

62. See supra n. 42.

63. See e.g. Lesnick, Religious Lawyer, supra n. 31, at 1496-1497; Shaffer, Thomas L., The Practice of Law as Moral Discourse, 55 Notre Dame L. Rev. 231 (1979)Google Scholar; Shaffer, Thomas L. & Cochran, Robert F. Jr., Lawyers, Clients, and Moral Responsibility 94–134 (West 1994)Google Scholar.

64. Dinerstein, Robertet al., Connection, Capacity and Morality in Lawyer-Client Relationships: Dialogues and Commentary, 10 Clin. L. Rev. 755 (2004)Google Scholar.

65. See e.g. Cochran, Robert F., Jr., Introduction: Can the Ordinary Practice of Law Be a Religious Calling?, 32 Pepp. L. Rev. 373, 374Google Scholar (noting “that most religious traditions accept the notion that all productive work can be a religious calling”).

66. For a response to this point, see Pearce & Uelmen, supra n. 23, at 152-153.

67. See Shaffer, Thomas L., Lawyer Professionalism as a Moral Argument, 26 Gonz. L. Rev. 393 (1990)Google Scholar.

68. See e.g. Symposium, , The Relevance of Religion to a Lawyer's Work: An Interfaith Conference, 66 Fordham L. Rev. 1075 (1998)Google Scholar; Reber, Robertet 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)Google Scholar.

69. See e.g. Green, Bruce A., Foreword, Rationing Lawyers: Ethical and Professional Issues in the Delivery of Legal Services to Low-Income Clients, 67 Fordham L. Rev. 1713, 1735 (1999)Google Scholar.

70. Menkel-Meadow, Carrie, And Now a Word About Secular Humanism, Spirituality, and the Practice of Justice and Conflict Resolution, 28 Fordham Urb. L.J. 1073, 1079 (2001)Google Scholar.

71. On the communal effort to explore the religious and moral significance of a lawyer's work see e.g. Lesnick, Howard, No Other Gods: Answering the Call of Faith in the Practice of Law, 18 J. L. & Relig. 459, 465 (2002-2003)Google Scholar; Shaffer, Thomas L., Legal Ethics and Jurisprudence from Within Religious Congregations, 76 Notre Dame L. Rev. 961 (2001)Google Scholar; Vischer, supra n. 34.