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.

God in the courtroom

I recently was present for oral arguments where a pastor was representing himself pro se. The judge mentioned that a party associated with the case was absent due to family health reasons, and the pastor requested that the court observe a moment of silence for the family. Not knowing how to respond, the judge and the rest of the court awkwardly complied and bowed their heads until the pastor declared the moment over, while I looked on incredulously.

This episode with a pro se litigant was unusual, but Deity is regularly invoked in many courtrooms. Where I currently practice, it is common for a court to open with with an announcement such as “May God save the United States and this Honorable Court.” Many judges and members of the bar bow their heads as this invocation is proclaimed. In many jurisdictions the swearing of an oath ends in “so help me God,” a phrase that was recently challenged again with respect to the swearing-in of President Barack Obama. Religious references are also common in the legislative branch. Sessions of Congress and state legislatures are traditionally opened with a prayer.

The bizarre courtroom incident with the pastor made me consider my own position on religion in the courtoom and other government functions. Despite being a personally religious person, I have always felt somewhat uncomfortable with the institutionalization of religion. Perhaps this is due in part to having grown up in a region of the United States where Mormonism was a very small minority religion. I had a sense that whenever God was invoked in public, it was done in such a way and with language that was different from my own religious beliefs. I also identified at an early age that there was a certain amount of hostility or rejection associated with my denomination. I was a Mormon kid, and being Mormon was a little weird. I only encountered invocations or public religious observations occasionally, but whenever they occurred I was keenly aware that they represented a difference between everyone else and me.

But even though I’m not always comfortable with religious references in government, I don’t think that they should be done away with entirely. I think it’s important that the democratic process be a free marketplace of all ideas, religious or otherwise. Consequently, I generally think that the exclusion of all religious references in any branch of government is inappropriate, and contrary to the purpose and language of the First Amendment. My general rule of thumb is that personal statements of conviction should always be allowed.

Prayers before legislative sessions or “so help me God” oaths are usually called “de minimis” religious references by the Supreme Court, and the Court seems to take a fairly tolerant approach to these references, since they were common practices long before the United States was even formed. But this isn’t an opinion that is universally shared. In January, MichaelNewdow (the same litigant who challenged the phrase “under God” in the Pledge of Allegiance) sought to exclude a clergy invocation and benediction from the presidential inauguration and enjoin Chief Justice John Roberts from using the phrase “so help me God” in the presidential oath. Mr.Newdow had filed a similar lawsuit before at the second inauguration of President George W. Bush, and this most recent wasn’t likely to prevail because he made all the same arguments.

I noticed that U.C. Berkley Law professor Eugene Volokh had an interesting thought about the prayers at the inauguration. He suggested that “a President’s inviting a particular clergyman to say things at the President’s inauguration might well be treated as an extension of the President’s own right to express whatever views — including denominationally specific views — he wants to express as part of his own speech.” This seems like it touches on my rule of thumb regarding personal expression of speech, although it may not be applicable to courtroom oaths or legislative prayers because the courts and the legislatures are not embodied in one person.

As you likely know, Mr. Newdow’s lawsuit was again rejected and both the oath and the prayers went forward as planned. And thanks to a slip of the tongue by the Chief Justice and racial rhymes in the inaugural benediction, the references to Deity became the least controversial parts of the day.

Commentary: One Path to Becoming an LDS Lawyer

Early this past week, in response to information I received from my local chapter of the J. Reuben Clark Legal Society, I made inquiry to Brother Dunaway regarding this blog. Not long thereafter, I was welcomed as a contributor, making this my very first post. Later the same week, I was introduced before the bar of the Federal Court for the Middle District of Tennessee, and officially was admitted there.

So it’s been a week of beginnings.

But in introducing myself and the posts I anticipate I will publish here, I wanted to take a moment (–all right, perhaps a few moments–) to talk about two other beginnings: The one which led me to the restored gospel, and the one which led me to the law.

For it came to pass that for much of my life, I had experiences with neither. In the first place, I was brought up in a secular family, with my Dad’s side of the tree being Jewish, and my mother’s side having Christian–or at least Gentile–origins. And in the second place, my undergraduate degree was in computer science–not law–and among my first jobs following graduation was to design and code changes to mainframe computer programs.

As important as the first beginning is, I will only touch upon it by way of reference. For in my earliest experiences with EDS, I was introduced to a colleague and mentor who had introduced the Gospel to me, beginning with, of all things, a family blessing over a bowl of french onion soup. Many missionary discussions and over a year later, I came to a testimony of my own, and in 1993, was baptized. At my family’s website, I provide a more detailed account, which is referenced further in the October 2008 Ensign (“Online Outreach,” Comments section).

Thus, on towards my second beginning. For me, the road to law began rather quietly. The seeds may have been planted during my undergraduate years when I was assigned to write a term paper regarding censorship in the public schools, and in the process needed to reference a number of appellate and Supreme Court opinions. In reading through the reporter volumes, in ways I am unable to describe or express, an interest was kindled, even to the point where I found myself reading opinions that were entirely off topic. At the conclusion of my project, I filed these things in the back of my mind. After all, my professional goal was to work with computers, not to practice law, and anyway, it’s difficult to change academic goals mid-stream.

Even so, I was interested enough to later request information from BYU regarding its law school, which I promptly filed away as well.

A number of years passed. I was in a seemingly stable career, had married Melinda in the Nashville Temple, and had one child on the way. At work, though, I could sense a number of changes happen around me, and I began to question whether my skills and talents that I had then could sustain me over the long term. Melinda and I talked about these concerns. Then, as I was cleaning out my file cabinet, I happened upon the BYU literature that I had requested some years before. Melinda looked through the documents and asked, “Why don’t you again consider a law degree?” It was a question I took seriously, and when we prayed over the question, I felt a clear and unmistakable prompting that it’s what I should do.

But how? I wasn’t in a position to become a full-time student, I could not quit my job, and I was in even less of a position to move. So I initially dismissed the prompting. Even so, Melinda suggested that I register for the LSAT anyway, just to see how I would do. I agreed, and I registered to take the test the following February. Surely there would be no conflict with the test schedule, I thought to myself — after all, our baby wasn’t expected to be born until near the middle of April, and the pregnancy seemed to be uneventful.

As it turned out, due to a medical emergency, our daughter Andrea had to be born ten weeks early, during the same week as the LSAT. I had my test preparation manuals, but I was mentally in no shape to use them. I was then spending much time at Vanderbilt University Medical Center checking on Melinda, who was then recovering from an unplanned C-section, and Andrea, who was beginning her life at the neonatal intensive care unit. Her future in particular appeared very uncertain at that point. I asked Melinda, as she was yet in bed recovering, is there any way I could go forward with the LSAT? Her inspired reply was: Take it anyway.

I might still not have taken the test but for the fact that the NICU was located literally within walking distance of the university’s law school, where it was to be administered. So only four days after Andrea was born, I left the NICU, walked over to the law school, somehow was blessed with enough presence of mind to work through the test calmly, then returned to the hospital. I later learned I had scored just slightly above average — not a stellar performance by any means, but it was a miracle under the circumstances. Not long after that, Melinda happened upon a local law school that was structured around nighttime study, and there’s where I ultimately went.

There were repeated promptings during law school itself, usually during times of significant stress or trial. I may touch on these experiences in later articles. But for now, I hope it is sufficient when I saw that I was not left comfortless during these times. There were repeated assurances through the Holy Ghost that somehow, some way, I would have the requisite capacity to complete my studies and to pass the bar exam. And now it has come to pass. In fact, I did pass the bar exam on the first attempt, and prior to that, had managed to graduate with honors, finishing in the top 5% of my class.

And in yet another sign from above that the transition to law was needful, my former position with EDS ultimately collapsed, and I was terminated literally in the same month that I graduated from the law school. Today, I have a private practice in a small town south of Nashville, Tennessee. And in my office, I have pictures on my wall to make it very clear at the outset that I’m a Latter-day Saint, beginning with pictures of Jesus Christ and the Salt Lake Temple in my reception area.

Every path to the legal profession is unique. But I would submit that some experiences are more unique than others, and this is perhaps one of them. Still, the common thread is this: If, in the year of my college graduation, someone were to tell me that I would become a Christian and later become an attorney, I would have responded that he would be crazy for saying that even one of these things would happen. What made the difference in both cases was in following the promptings of Holy Ghost. And this is how it is possible to embark upon such an unconventional path as mine.

Just very quickly in closing: I presently serve as the second assistant in the High Priests group, and Melinda serves as a second counselor in the Young Women’s presidency. And from all indications, Andrea recovered fully from her rough start in life. Bright in both personality and intelligence, she does very well in school these days. She even reads at the fourth grade level, even though she is only part way into first grade, and insists often on watching the NASA satellite channel.

As with all blogs, more to follow. I leave these things in the name of Jesus Christ, Amen.

–Sander J. “Sandy” Rabinowitz is an attorney whose solo practice is located in Columbia, Tennessee.