Lawyers as Problem Solvers

A couple of years ago, before I started law school, I worked at my dad’s firm. He does a lot of contract drafting for commercial developments, and his partner does construction litigation. As I spoke to my dad’s partner one afternoon, he clarified the difference between those two fields of law in a way that stuck with me. He said, “your dad prevents problems, and I clean up problems.” My dad, who happened to be in the vicinity, responded by saying, “many attorneys forget that we are not here to create problems, but to resolve them.” As a clerk at a family law firm this summer, I realized that those words are not only applicable to any field of law, but they are also important to remember as we work with clients that are passing through very difficult experiences.

Today I received an email with a link to a talk by James E. Faust, which was posted on YouTube by the J. Reuben Clark Law Society. The video, entitled “Lawyers as Healers,” discusses the duties we, as attorneys (or future attorneys), have to society, and how we can best fulfills those duties. President Faust counsels, “you need to be more than skilled advocates, you need to be decent human beings trying to solve problems.” Of course, this is counsel that is applicable to all attorneys, and not just those of the LDS faith.

As I watched the video I was reminded of a talk by Boyd K. Packer that I read during my 1L year. In that talk President Packer declares, “The Lord needs you who are trained in the law. You can do for this people what others cannot do . . . You have, or should have, the spirit of discernment. It was given you when you had conferred upon you the gift of the Holy Ghost.” This counsel is both humbling and ennobling. Although President Faust’s words are applicable to all attorneys, President Packer notes that there is an added responsibility for lawyers within the church. If we live up to that responsibility by trying our best to resolve problems, we can bring peace to the lives of our clients and fulfillment to our own lives.

Truth in Advocacy

This summer I had the opportunity to work as a law clerk at a small firm in Scottsdale, Arizona. It was my 1L summer, as well as my first real experience with litigation. I gained much invaluable experience and learned many things they just don’t teach in law school. I shared an office with a young associate that recently passed the bar and with whom I had many conversations regarding Christianity and the LDS church.

One afternoon, as I was drafting a motion to file with the court, I began to realize just how easy it might be to “stretch the truth” a little. I certainly wasn’t doing anything unethical, nor was I being encouraged to do so by anyone at the firm. However, I started to understand that there is often a thin line we walk when we represent our client’s best interests. I voiced this concern to the associate with whom I shared an office, only to discover that she had likewise encountered the same problem. We discussed Luke 11:46 – one of the various places that Christ voices his (not-so-gentle) feelings regarding many lawyers. I realized that being an attorney is a noble calling if it is done correctly, but that is something that can only be learned by experience. As we advocate our client’s interests, we need to strive to follow the example of Our Advocate.

On behalf of all law students and young attorneys, I welcome any advice on how to best achieve this goal.

What is the Mormon view of capital punishment?

Twice in the last week the death penalty has come up in conversation, and it got me thinking about it. The first was actually in a job interview: I recently applied to a government position that required occasional work on habeus actions, including some capital cases. The interviewer said the office had used conscience waivers in the past, but they were difficult to coordinate. I honestly hadn’t given the death penalty much thought prior to that moment. In fact, I have been pretty agnostic on the subject. I don’t really oppose it, but the death penalty isn’t something I cheer about.

The topic came up again over the weekend as various news media outlets around the Southeast began to report on the jury selection process in a high-profile kidnapping-rape-murder trial of a Knoxville couple. Prosecutors are seeking the death penalty for all four defendants. Prosecutors are seeking the death penalty for all four defendants, and the cases are generating a enough controversy in Knoxville that the jury had to be picked from another city

My own ambivalence as to the death penalty doesn’t mean other Mormons don’t have strong feelings on the matter. Many Mormons feel that that capital punishment is inconsistent with Christian doctrines of forgiveness and mercy. Others oppose it because they feel that we should not judge in matters of life and death.

On the other hand, there are apparently some Mormons who believe in a theory of “blood atonement,” where forgiveness of some sins can only be obtained by execution. There is some disagreement about what “blood atonement” means, but that’s the gist of it. Clint wrote a post last February about a murder trial in Ogden, Utah, in which the defense attorney sought to exclude all Mormons from the jury who might believe in a “blood atonement.” I’ve never known anyone who espoused this theory, but it apparently comes from a few statements made by Brigham Young and other Mormon leaders in the 19th Century. The theory definitely hasn’t been taught in Mormon congregations in my lifetime, but it may have had some support as recently as fifty years ago. Take, for example, this excerpt from Joseph Fielding Smith’s Doctrines of Salvation:

“Man may commit certain grievous sins… that will place him beyond the reach of the atoning blood of Christ…. If these offenses are committed, then the blood of Christ will not cleanse them from their sins even though they repent. Therefore their only hope is to have their own blood shed to atone…” (Doctrines of Salvation, Vol. 1, pp. 133-138)

I should note that this statement doesn’t necessarily advocate capital punishment. It could just as well be interpreted as saying that forgiveness will have to wait until after an individual’s death. Such an interpretation might not even be contrary to current Mormon teachings. But at least some people take it to mean that the death penalty should be administered in certain cases. Bruce R. McConkie also references the “blood atonement” theory by name in his oft-quoted Mormon Doctrine.

I notice that both Doctrines of Salvation and Mormon Doctrine aren’t official publications of the Mormon Church, and both are known to include teachings that are disavowed by Mormon leaders. But both works are still used with some regularity by some Mormons, so perhaps it isn’t surprising that some people would still believe in the blood atonement theory.

After my interview I thought about my opinion on capital punishment, and out of curiosity, I looked up the LDS Church’s official statement on the subject. The official position is almost as ambivalent as my own:

The Church of Jesus Christ of Latter-day Saints regards the question of whether and in what circumstances the state should impose capital punishment as a matter to be decided solely by the prescribed processes of civil law. We neither promote nor oppose capital punishment.

That official statement seems to expressly disavow any dogma that advocates the death penalty for certain offenders. I can’t find any good information as to whether the “blood atonement” theory was ever an official doctrine of the LDS Church, but it seems safe to say that it isn’t now. I also think it’s safe to say that this belief is a rarity within Mormonism. If it was ever more prevalent among American Mormons, that has changed as Mormonism has evolved into a world religion. The majority of the membership of the Mormon Church lives outside the United States, and most countries do not even allow capital punishment.

Bybee, Mormons and Torture, the debate continues

It has been weeks since we first began discussing Judge Bybee’s role in the Bush administration’s rough interrogation tactics but the debate still rages on. Ann Wright recently wrote an article for the Huffington Post; Two Mormons, Two Different Ethics on Torture. Wright says in part;

“In September 2003, another Mormon, a woman soldier U.S. Army Specialist Alyssa Peterson, said she refused to use the interrogation techniques Bybee had authorized on Iraqi prisoners. An Arabic linguist with the U.S. Army’s 101st Airborne Division at Tal Afar base, Iraq, 27-year-old Peterson refused to take part in interrogations in the “cage” where Iraqis were stripped naked in front of female soldiers, mocked and their manhood degraded and burned with cigarettes, among other things. Three days later, on September 15, 2003, Peterson was found dead of a gunshot wound at Tal Afar base. The Army has classified her death as suicide.”

“Jay Bybee, in thanks for his being the loyal soldier to the Bush administration’s policies of torture, was nominated and confirmed by the U.S. Senate as a judge on the Ninth Circuit Court of Appeals, where he sits to this day in his lifetime appointment. Jay Bybee, an author of torture, reportedly has a placard in his home for his children “We don’t hurt each other.”

“Alyssa Peterson, for saying no to torture, is dead, perhaps by her own hand.”

“To help Alyssa Peterson rest in peace, I say we should demand accountability from our officials and impeach the torture judge, Jay Bybee.”

Should the fact that Bybee is Mormon be such a focal point? Are all Christians held to the same standard or is more expected from Mormons?

Of clients and conscience

This morning I was in court and watched a guy ask the court to allow him to sell off part of a structured settlement. He had been in a bad car accident several years before, and as part of the settlement he received monthly payments and several significant lump-sum payments. It turns out that the guy had sold off parts of this settlement nearly a dozen times before, all to pay off debts or to start up new ill-conceived businesses ventures. Ever time he sold off part of the structured settlement, this guy got about 30-40% of the current value of the payments — a terrible deal by any definition.

I am somewhat familiar with the attorney for the company that buys up these settlements. And with the economy in the tank, I’ve seen him in court pretty frequently with people selling off lots of money in order to pay their bills. The attorney is fairly pleasant, but I don’t like him much because of what he does. To my mind, his entire legal practice revolves around taking advantage of ill-informed and short-sighted people. And lamentably, the laws governing these financial institutions in my state don’t provide much protection for the consumers.

I got to thinking about how conscience can conflict with clients. One of the dilemmas an attorney occasionally faces is whether to accept a client with a reputation, history, or interests that run counter to the attorney’s personal morality. This is often a morality based in religious beliefs, but non-religious attorneys also face moral dilemmas. As I watched the proceeding this morning, I realized that I wouldn’t want to represent a company like the structured settlement buyer. I don’t think my conscience would let me facilitate what I believe to be predatory transactions.

A friend of mine is very interested in First Amendment law, but after much thought he turned down a chance to work on an interesting Free Speech case because the client was a strip club. He believed that the operators of the club were entitled to the same Free Speech rights as you or I, but he ultimately decided he couldn’t work on the case. This sort of dilemma is experienced by many Christian or religious legal practitioners. There may even be a few Mormon-specific moral dilemmas. For example, given the LDS Church’s position on tobacco and alcohol, an LDS attorney might not feel capable of representing a cigarette or liquor company.

Similar moral dilemmas may arise in certain types of law. I’ve heard a lot of people say that their conscience wouldn’t let them work in criminal defense. It may be surprising, but I don’t think my conscience would prevent me from representing a criminal defendant. I’ve actually worked on criminal cases on both the prosecution and the defense side, and even guilty defendants deserve effective counsel. In a way, I would have a larger crisis of conscience doing structured settlement deals like the one I saw today than representing an accused child molester, because at least representing the accused molester serves the broader justice system.

I’m interested to hear from other people on this subject. Are there certain areas of law or clients that would conflict with your personal morality? Have you ever turned down a client or a transaction as a matter of conscience?