Christianity and the Legal Profession Terry Fleming '78 January 10, 1999 Is it possible to be both a Christian and a lawyer? How does a Christian participate in a workplace with ever-increasing billable hour requirements, rainmaking demands and the unwavering focus on the bottom line of profitability? Is a prayerful, reflective life practicable in a profession where in-your-face aggression is encouraged and rewarded? Can a lawyer maintain fidelity to the Christian faith in a rights-oriented adversary system, while representing clients whose actions and goals may be decidedly unchristian, and adhering to professional rules of ethics that are indifferent to Christian principles? These are the questions that Marguerite Spencer and I addressed in a new class at the University of St. Thomas in spring 1998, "Christianity and the Legal Profession." Marguerite, a lawyer and member of St. Thomas’ Theology Department, developed a curriculum with materials from St. Augustine, Pope John Paul II, St. Thomas Aquinas, Mary Ann Glendon, Joseph Allegretti and others. As a private firm lawyer, I provided a practical perspective. Articulating the reasons why I have acted as I have as a lawyer for the last 16 years was a challenging and humbling experience, especially with the group of 20 bright young students who were quite willing to say when they did not find my responses particularly illuminating or satisfying. Although St. Thomas has long been a leader in teaching ethics and religious faith as integral elements of its courses, the very idea of a course on Christianity and the legal profession was not immediately self-evident. Initial reactions in the community to the concept of the class were mixed. Friends inquired whether the course would be a short one. Many, upon hearing the course name, assumed it was the beginning of another lawyer joke. Why does the juxtaposition of "Christian" with "lawyer" seem jarring? In a recent article, Thomas Shaffer, a Notre Dame law professor, questions whether the phrase "Christian lawyer" is an oxymoron. It is not the same for other professions. Saying "Christian doctor" or "Christian teacher" or "Christian plumber" does not evoke the same raised eyebrows or incredulous expressions. That is not to say that difficult issues about the conflict between work and the Christian faith are not present in other professions. But that conflict seems more pervasive for lawyers. The very routine practice of law raises the issues on a regular basis. In class, we considered examples like this: A stockbroker meets with his lawyer. Several customers have accused him of financial fraud and are threatening to sue. The broker admits he engaged in questionable practices, discloses possibly illegal activities of which the customers are not yet aware and says his customers have lost millions of dollars. After hearing the entire story, the lawyer determines the broker has meritorious legal defenses to the customers’ claims, and various strategies may result in the broker avoiding responsibility for the losses. How should a Christian lawyer advise the broker? Tell him to confess his wrongs, seek forgiveness from his customers, open his checkbook … and sin no more? Assume the same circumstances exist but that the broker’s customers (not the broker) are meeting with their counsel. How should a Christian lawyer advise the customers? Tell them that they should not be so quick to judge the broker … that they should not be so obsessed with material goods … that they should "turn the other cheek?" Of course, the advice suggested in these examples hardly would be the staple legal advice provided by most lawyers. Why not? Quite simply, that is not what lawyers do. Lawyers are advocates for their clients, rather than the community at large. Lawyers represent clients in an adversary system, where the advocates’ primary concern is to protect the clients’ legal interests. Clients hire lawyers and pay for their services because they do it well. Just as they hire plumbers to fix leaks or see doctors to cure illnesses, they go to lawyers to solve legal problems. Generally, clients do not consult with lawyers for guidance on their spiritual lives, and lawyers as a group are not particularly equipped by training or experience to provide such guidance. The above response is a fairly typical lawyer’s response. The class did find the response entirely satisfactory. An examination of the limitations of this response leads to harder questions. Is it appropriate for a lawyer to question or counsel a client concerning the morality of the client’s goals? The client’s motives? The means utilized to accomplish those goals? Whether others will be adversely affected by the requested legal services? Whether the public good will be furthered? Should the lawyer’s Christian faith influence the legal advice to be provided or the legal services to be undertaken? How so? There are extreme cases where the typical or even broadly accepted lawyer’s response is even less satisfactory. In class, we also considered Spaulding v. Zimmerman, a 1962 Minnesota Supreme Court decision. In that case, a minor passenger was injured in a car accident. The minor’s father later commenced a personal injury lawsuit against the driver. The driver’s attorneys retained a doctor to conduct an adverse medical examination of the minor. During that examination, the doctor found that the minor suffered from an aorta aneurysm, possibly caused by the accident. The doctor reported to the driver’s attorneys that if the aneurysm dilated further, it might rupture and cause the minor’s death. The minor’s doctors did not discover the aneurysm in their examinations, and the minor’s attorney never requested the adverse medical report. The driver’s attorneys did not reveal this medical condition to the minor’s attorney. The case was settled at a time when the minor and his parent were not aware the minor suffered from an aorta aneurysm. Two years later, during a routine physical checkup, the aneurysm was discovered. Surgery was performed and was successful. An attempt then was made to reopen the lawsuit. The Minnesota Supreme Court subsequently considered the esoteric question whether a minor’s settlement could be vacated under these circumstances. Bill Wernz, former director of the Minnesota Lawyers Professional Respon-sibility Board, appeared as a guest lecturer at class and presented these background facts of the Spaulding case. He then asked the class to consider a different question — the propriety of the defense lawyers’ failure to disclose the minor’s life-threatening condition to their adversaries. The traditional lawyer’s response is that the rules of professional conduct require a lawyer to maintain the confidentiality of this information. But can a Christian lawyer simply pledge fidelity to these rules and have no further concerns? The fundamental difficulty with this approach is that these rules are not based on Christian principles and of course have no connection with Christian beliefs. Certainly, there are circumstances where a lawyer rigidly following these rules will act in the same manner as a lawyer acting pursuant to Christian beliefs. But that is not necessarily the case. And these facts, perhaps, squarely present that issue. (Just to muddy the waters, I should note Wernz’ comment at the end of our class discussion — that under these extreme circumstances, the board probably would not seek disciplinary sanctions against a lawyer who violated the professional conduct rules by revealing this information.) At the conclusion of the course, some students concluded that a person cannot be a Christian and a lawyer. Most concluded, as I have, that it is possible. Classes like this are helpful — to students and their teachers — in identifying fundamental issues, examining and questioning traditional responses, and beginning the process of articulating a response grounded in your religious faith. Required readings for the course included:Allegretti, Joseph. "The Lawyer’s Calling: Christian Faith and Legal Practice"Bolt, Robert. "A Man for All Seasons"Glendon, Mary Ann. "Rights Talk: The Impoverishment of Political Discourse"John Paul II. "Laborem Exercens""Model Rules of Professional Conduct""New Oxford Annotated Bible with Apocrypha"Simmonds, N.E. "Central Issues in Jurisprudence: Justice Law and Rights"Selections from: • Thomas Aquinas, "Summa Theologiae, I-II" • Augustine, "The City of God," Book XIX• Stephen Carter, "The Culture of Disbelief" Terry Fleming ’78 is a graduate of Harvard University Law School and is a partner at Lindquist & Vennum in Minneapolis. RelatedThe Pioneer BishopsYoung Scholar Researches Hate on the InternetCatholic StudiesBy the Book: Faculty and Staff Publish in Areas of Expertise.