Brigham Young University Law School BYU Law Digital Commons

The lC ark Memorandum Law School Archives

Spring 2006 Clark Memorandum: Spring 2006 J. Reuben Clark Law Society

BYU Law School Alumni Association

J. Reuben Clark Law School

Follow this and additional works at: https://digitalcommons.law.byu.edu/clarkmemorandum Part of the Family, Life Course, and Society Commons, Legal Profession Commons, and the Practical Theology Commons

Recommended Citation J. Reuben Clark Law Society, BYU Law School Alumni Association, and J. Reuben Clark Law School, "Clark Memorandum: Spring 2006" (2006). The Clark Memorandum. 39. https://digitalcommons.law.byu.edu/clarkmemorandum/39

This Article is brought to you for free and open access by the Law School Archives at BYU Law Digital Commons. It has been accepted for inclusion in The lC ark Memorandum by an authorized administrator of BYU Law Digital Commons. For more information, please contact [email protected]. In Search of Atticus Finch

clark memorandum J. Reuben Clark Law School Brigham Young University Spring >> 2006 cover illustration Goro Sasaki contents

2 In Search of Atticus Finch Elder Lance B. Wickman

12 Kevin J Worthen, publisher Scott W. Cameron, executive editor Jane H. Wise, editor Joyce Janetski, associate editor Reflections on the Lord’s Legal Storehouse David Eliason, art director Bradley Slade, photographer Craig D. Galli

The Clark Memorandum is published by the J.Reuben Clark Law Society, the byu Law School Alumni Association, and the J. Reuben Clark Law School, Brigham Young University. © Copyright 2006 by Brigham Young University. 20 All rights reserved.

The J. Reuben Clark Law Society draws on the philosophy and Lifting Others personal example of the Law School’s namesake, J. Reuben Jon Huntsman Sr. Clark Jr., in fulfilling the following mission: We affirm the strength brought to the law by a lawyer’s 24 memoranda personal religious conviction. We strive through public service Law Society / Alumni News and professional excellence to promote fairness and virtue 2005 byu International Law and Religion Symposium founded upon the rule of law. Being a Lawyer in the Fullest Sense

Robert C. O’Brien / Sue Purdon

Recent Appointments

Class Notes

Life in the Law insearchof tticusfinch

by elder lance b.wickman #45=%43 The following speech was presented to the J. Reuben Clark Law Society at the lds Church conference center on February 10, 2006.

The journey that brought me to the profession of law was more odyssey than freeway. From the time that I was a young boy, my mother wanted me to be a lawyer, which was interesting because we had no other family members on any branch of the family tree who were lawyers.

illustration by goro sasaki

Unlike some others present here, I had no father or uncle who took me to his law office as a child. After preparing these remarks, I learned I don’t recall ever hefting a law book until my first day as a law student. There were no Socratic quite by chance that my selection of title is discussions at the dinner table of my youth. All I can recall is my mother’s counsel: Go into law. not new! In fact, I have discovered that there For one thing, having come of age in the Great Depression, she saw an occupational inde- is an excellent book of the same title on the pendence in the legal profession. “You can always hang out your shingle as a lawyer,” she would say. subject of lawyer ethics by Mike Papantonio.1 But there was much more than that behind her admiration for the profession. She saw law, and So much for originality! However, I can those who follow its profession, as a force for good. In her mind there was a nobility associated assure you that the ideas expressed in these with it. She saw it as a worthy calling and thought she saw in me the “right stuff” for such a calling. remarks are all mine, and I alone am responsi- But I was unpersuaded. As an undergraduate I flirted somewhat with the possibility of ble for them. going to law school after graduation. But in that season of life, I was drawn more to the Tom Robinson was guilty. That was prospect of becoming a soldier. So, when a commission in the regular army was offered upon the popular verdict in Maycomb County, graduation, I accepted it. Thus began a turbulent five years. One tour of duty in Vietnam fol- Alabama, even before he went on trial. There lowed another. And somewhere in the midst of the turbulence the idea of becoming a lawyer wasn’t really any question about it. Miss reemerged in my mind. My mother’s counsel of years before began to resonate. I decided that I Mayella Ewell had been assaulted. Her father, wanted to become a lawyer when the war was over. But swept along as I was by the overpower- Bob Ewell, claimed to have returned home ing currents of the Vietnam War, I felt like just in time to see Tom disappearing out the a man caught in a riptide. The goal seemed door of their cabin with Mayella screaming. far off, unreachable. I felt like events were Perhaps more to the point, Tom Robinson sweeping me farther and farther away. There was black. Mayella Ewell was white. And in were times when I wondered if I would ever Maycomb in 1932 that color scheme added up return, if this newly realized dream would to guilt—an open-and-shut case. Some even ever happen. wondered why it was necessary to have a trial But, at last, it did happen. I still remem- at all. Just string Tom Robinson up from the ber vividly purchasing my casebooks at the water tower and be done with it. #43 Stanford Bookstore before the first day of Enter Atticus Finch. Having descended class. I was so grateful to be there. Really, it felt from the “founding fathers” of Maycomb like Christmas! For many of my classmates, County, Atticus’ birthright made him one of WHEREIN starting law school was just another year of the county’s leading citizens. He had “read school. But for me it was a time of gratitude, of law” in Montgomery, obtained his law license, married, saw two children born—a boy and a LIES THE DEEP answered prayers. I can honestly say that I enjoyed law school. Oh, sure, by my third year girl—and, while they were yet small, lost his I was anxious to move on from school to wife to a heart attack. Atticus Finch hung out SATISFACTION actual law practice, but I thoroughly enjoyed his shingle in a tiny office at the Maycomb the law school experience. I enjoyed my years County courthouse. His first two clients, the of law practice with a fine law firm. For more Haverford boys, were hanged for murdering THAT CAN AND OUGHT than a decade now, I have felt privileged to the local blacksmith in the presence of wit- serve as the general counsel of the Church. nesses in a dispute over a horse. Atticus had TO COME TO THOSE WHO ARE But in all of my years of affiliation with urged them to accept the county’s offer of a the profession of law, I have had many occa- plea to second-degree murder and a prison sen- sions to ponder wherein lies the nobility that tence. But the Haverfords, who were never ASSOCIATED my mother thought she saw in it so many accused of having the sense Providence had years ago. Wherein lies the deep—but often bestowed upon a goose, refused—insisting WITH THE PROFESSION elusive—satisfaction that can and ought to instead on placing their fate in the “he-had-it- come to those who are associated with the coming” defense. So, Atticus’ only meaningful [OF LAW]? profession? With cascading reports of disen- service in that case had turned out to be atten- chantment, or “burn out,” as it is now called, dance at the hanging ceremony. within the ranks of those who have come to The whole experience had left him with #43 the bar, it would seem that finding that nobil- a strong distaste for criminal law. Atticus pre- ity—and the accompanying satisfaction— ferred helping common people resolve the is anything but a unique or simple quest. common problems of life, often taking pay- So, I should like to say something this ment of his fee in kind, such as a bag of hick- evening about that quest. I should like to say ory nuts or some such thing. He was not something tonight about finding the profession in wealthy by any means, but he provided a roof the profession of law. To that end I have enti- and meals and other necessities for his family. tled my remarks “In Search of Atticus Finch.” He was satisfied.

4 clark memorandum So, when the trial judge approached him and asked him to defend Tom Robinson as a public service, Atticus was not enthusiastic. Elder Lance B. Wickman: Soldier, Attorney, and Priesthood Leader But Atticus Finch was above all else a man of by bill atkin principle. He believed that law exists to serve the interests of the people, who created it in the first place. As an officer of the court, he In 1995 Elder Wickman, talion commander gave has forged a strong com- believed that a lawyer’s first duty is to assist in then a member of the permission to him and the mitment to the gospel of the administration of justice. He believed that Second Quorum of the two other lds soldiers in Jesus Christ? in a real sense the rights of the Tom Robinsons Seventy, was called by the battalion to have a 24- Lance Wickman is the of the world are the rights of everyman. If President Gordon B. hour leave to go to Saigon young father and husband Tom could not be assured a vigorous defense, Hinckley to serve as gen- for the meeting. They who, with his eternal com- no one else could either. So, Atticus Finch— eral counsel for The hitchhiked to Saigon on panion, Pat, at his side, lawyer—took the case. Church of Jesus Christ of military flights, and suddenly and unexpectedly By now, many of you will have recog- Latter-day Saints, the first together with about 200 lost a five-year-old son to a nized this recitation as a creature of fic- time in the history of the other lds soldiers and a deadly disease. Lance tion. In one sense Atticus Finch and Tom Church that a General handful of Vietnamese Wickman is the father and Robinson live only in the pages of Harper Authority was asked to members, Elder Wickman husband who, later, and Lee’s Pulitzer Prize–winning masterpiece, serve as the Church’s left his helmet and his rifle together with Pat, wel- To Kill a Mockingbird, and in the classic general counsel. outside the meeting room comed a handicapped motion picture by the same title, starring the uc Berkeley, mission- in the Caravelle Hotel, daughter into his family. late, great Gregory Peck as Atticus Finch. ary in the British Isles, where he was privileged to Elder Lance B. Wickman is But in another, more important, sense Vietnam, Stanford Law, hear an Apostle of the the General Authority who, Atticus Finch lives! He must live! Should the Latham & Watkins, stake Lord dedicate Vietnam for with great empathy and day ever come that he ceases to exist, the pro- president, regional repre- the preaching of the depth of feeling, gave a fession of law also would cease to exist, sentative, chairman of the gospel. Little did he know general conference talk of because Atticus Finch is the embodiment of San Diego Temple commit- then how intimately he hope and understanding to what it means to be a professional in law. tee illustrate his qualifica- would be involved in work- parents who have experi- How so? What is a “professional” any- tions, but do not really ing with the future prophet enced similar heartbreaks. way? In our 21st-century vernacular, the word describe this exceptional of the Church. “I know from poignant is seen as synonymous with competence. In individual. In attempt to Lance Wickman is experience that there is no one dimension it means possessing a particu- give you a glimpse of the the young ranger who night quite so dark as the larized set of skills beyond those commonly character of Elder upon recovery returned to loss of a child. Neither is found in the general populace. Often it means Wickman, I have chosen Vietnam for a second com- there any day quite so long advanced education, qualifying examinations, several moments in his life bat tour, this time as an and exhausting as the and certification. “Know how.” “Board certi- that reveal that character. advisor to the Vietnamese relentlessness of caring fied.” “Admitted to the bar.” “md.” “cpa.” “nfl.” Lance Wickman is army in the central high- for a child crippled in form “nba.” “The National Academy.” These are all the young second lieu- lands of Vietnam. or faculty.” words, initials, and phrases commonly found tenant in the Army Rangers Because of these expe- Lance Wickman is a in the context of any reference to a profes- stationed in Hawaii in riences, Elder Wickman, partner in Latham & sional. 1966 whose brigade was together with Elder Watkins who mentored But in law, especially, there is another ordered to war in Vietnam, Robert C. Oaks, another young attorneys, who was dimension. Being a professional is more, the rifle platoon leader Vietnam veteran, have invited by the local bar much more, than possessing a set of skills, who led his fellow soldiers been assigned by the First association to assist in the a license, or the initials jd. Being a lawyer through the rice paddies Presidency to provide drafting of a “litigation code means more than being a skilled advocate, and jungles of Vietnam for counsel and comfort to lds of conduct,” and who effi- more than a legal technician, or more 10 months before an soldiers involved in the ter- ciently and effectively man- than an architect of business transactions. enemy land mine sent him rible wars in Iraq and aged his time to meet his The lawyer has taken an oath—a solemn home with a Purple Heart. Afghanistan. Who more heavy professional respon- oath, administered by a judicial officer—to During this tour he appropriate to do this than sibilities while leaving time uphold the Constitution and the principles, found out that then Elder one who has experienced to fulfill his responsibilities rights, and privileges enshrined in the laws Gordon B. Hinckley was firsthand the horrors of as a father and as a stake of his state and nation. He is, above all else, going to hold a Church war, but yet like Mormon president and a regional an officer of the court—a servant and preserver meeting in Saigon. His bat- and Moroni before him, representative. of the law. No less than the judge who sits

clark memorandum 5 upon the bench, the lawyer who stands at bar has pledged his talents, his knowledge, his expe- rience, and his very life to advance and defend the cause of “justice for all.” If he is also able to provide a living for his family, all the better. This is the ideal embodied in Atticus Finch. One can only wonder what Atticus would think if, like Rip Van Winkle, he should awaken from a long nap and find himself not in the Maycomb County of 1932, but in the court- rooms, board rooms, and law office suites of the 21st century. “Billed hours,” “bottom lines,” “orig- inations and proliferations,” “partner tracks,” and other law business buzz words and phrases doubtless would be mystifying to a man who was happy to take his modest fee in a sack of hick- ory nuts. More mystifying still would be the go-ahead-make-my-day lawsuit craze and the overzealous and take-no-prisoners litigation strategies that infect and threaten to overwhelm our courthouses. In an age when the phrase “offi- cer of the court” has become quaint and lawyers are too often known more for their extravagant lifestyles than for their service to the people and the cause of justice, Atticus Finch would indeed stand bewildered. Some years ago I served on the Stanford Law School board of visitors. We met annually at the law school for two or three days of meetings with faculty and students. One year the Friday evening event was a dinner of the board with the first-year law school class. The guest of honor was Justice Stephen Breyer of the United States Supreme Court. He was, of course, the featured speaker at the dinner. Justice Breyer gave a marvelous address (seemingly off-the-cuff, although I am quite sure it had been carefully prepared) on the subject of a lawyer’s professional obligation to serve the best interests of the people. His theme was that there must be much more to law prac- tice than billing hours and collecting fees. There must be time to give back to the community in professional service. He asked the rhetorical question as to why public esteem for lawyers is low (and why the public esteem for Congress is even lower!). He noted that, by contrast, public regard for the army is quite high. Justice Breyer said, “I asked Derek Bok (who was the president of Harvard University) why this was the case. He didn’t know either but expressed the view that the army is seen as not being in it for itself.” What he meant was that those who serve in the armed forces are devoted in their service to their country. There is no evident greed or self-promotion as they perform their duties. This is a thought-provoking idea! Certainly it is true that professional soldiers are not in it for themselves, and yet even they may not be highly regarded or even considered much in the public square until the war trumpet sounds. This phenomenon was captured lyrically in Rudyard Kipling’s immortal poem “Tommy,”2 which was a tribute to the selfless service of the British soldier of the 19th century. Here are just two stanzas that capture the flavor of the sentiment:

6 clark memorandum I went into a public-’ouse to get a pint o’ beer, The publican ’e up an’ sez, “We serve no red-coats here.” The girls be’ind the bar they laughed an’ giggled fit to die, I outs into the street again an’ to myself sez I:

O it’s Tommy this, an’ Tommy that, an’ “Tommy, go away”; But it’s “Thank you, Mister Atkins,” when the band begins to play, The band begins to play, my boys, the band begins to play, O it’s “Thank you, Mister Atkins,” when the band begins to play.

Yes, makin’ mock o’ uniforms that guard you while you sleep Is cheaper than them uniforms, an’ they’re starvation cheap; #43 An’ hustlin’ drunken soldiers when they’re goin’ large a bit Is five times better business than paradin’ in full kit.

Then it’s Tommy this, an’ Tommy that, an’ “Tommy, ’ow’s yer soul?” But it’s “Thin red line of ’eroes” when the drums begin to roll, WHERE, The drums begin to roll, my boys, the drums begin to roll, O it’s “Thin red line of ’eroes” when the drums begin to roll. INDEED, IS

We in the United States have witnessed this same phenomenon in recent years, as young ATTICUS FINCH men and women in uniform—professionals as well as “citizen soldiers”—have found themselves IN THE 21ST CENTURY? in places like Iraq and Afghanistan. Often unap- preciated in peacetime, their devotion to a higher duty than themselves in wartime has earned them the overwhelming appreciation of the nation. #43 But even the army struggles to maintain its tradition of selfless professionalism in this ego- centric society of the 21st century. In an insight- ful and thought-provoking essay entitled Army Professionalism, the Military Ethic, and Officership in the 21st Century, published in 2000, two profes- sors at West Point express their views about what they contend is an ascendancy within the army of a so-called “force protection” ethic—an academic euphemism for an inclination on the part of sol- diers to exalt the preservation of their own lives over the army’s traditional “mission first” ethic. A number of factors explaining this alleged phe- nomenon are addressed in the essay. But of some relevance to us in the legal profession is this observation about our contemporary “postmod- ern” society:

What many call “post modernism” is best thought of as a complex collection of beliefs and theories that, in essence, reject the idea that there is any such thing as objective truth, ethical or otherwise. Without an objec- tive standard, “truth” is then left to the individual or group to decide and thus becomes relative to their desires and beliefs. This has undermined the earlier consensus among Americans that any particular belief can actu- ally be wrong.

clark memorandum 7 Of course, not all Americans embrace such rela- of the best! Here is a gathering of men and tivism, but often what arises in its place is an unre- women at law with spouses and friends who, flective egoism, which is best characterized as the as Latter-day Saints, are already committed belief that what is morally good is “what is best for to the principle of service after the manner of me.” Rather than the relative standard that post the Savior. In the priesthood quorums, auxil- modernism offers, egoism is an objective standard iaries, stakes, wards, and branches of the against which to measure conduct. Its basic premise Church, those here assembled represent hun- is everyone should do those things, and only those dreds of thousands of hours of service in the things, that they perceive are good for them. kingdom of God. Do we not also have within us a few hours to give as officers of the court, Whatever pertinence that observation as true professionals in the profession of law? about postmodernism and egoism may have Opportunities abound. For one thing, in the profession of arms, it seems to me that there are genuine pro bono service opportu- it is profoundly applicable in the legal profes- nities just waiting to be filled. I have been sion. Lawyers, too, can empathize with the gratified to learn that a growing number of “Tommy” of Kipling’s poetry. We, too, endure chapters of the J. Reuben Clark Law Society the so-called “lawyer jokes” and snide com- are seeking out such opportunities. To you I ments—sometimes good-natured, sometimes say bravo! Additionally, many law firms have not. But well might we ask how far the parallel developed programs allowing their members to “Tommy” extends. In the public’s mind, and associates to devote professional time in #43 after the humor is there ever an occasion for public service. Bravo, again! gratitude, even redemption, for those follow- But I think there are other opportunities ing the profession of law? Do we ever have our for true professional service that go beyond ATTICUS LIVES! “thin red line of ’eroes”? If not, why not? Could such organized efforts to render legal services there be, if we in the profession devoted our- to the poor and the indigent. I refer to what WE JUST NEED TO selves more to actually being professional? could be called, in the spirit of Atticus Finch, President James E. Faust—himself a very dis- “sack-of-hickory-nuts” service—that is, pro- tinguished lawyer during an earlier season of viding some services for those who can pay his life—once humorously remarked to me in a something, but not the stratospheric fees that COAX private moment: “Lance, you and I can’t laugh are becoming the norm rather than the HIM OUT OF THE SHADOWS. at the lawyer jokes, because we know that most exception in the law business. There is a large of them are true!” segment of our society, neither rich nor poor, True or not, is not this humor based to which often goes unrepresented (or at least #43 some degree on those same postmodern and underrepresented) at bar. These are the egoistic trends within the legal profession proverbial “just plain folk,” who work hard, that may be infecting other social institu- struggle on modest means to raise their chil- tions, like the army? Is there not a justifiable dren and provide for their own old age. These public perception, as Justice Breyer noted, are they who simply do not have a waiting that lawyers are seen as “in it” for themselves? financial reserve when the unexpected Is it not true that too many of our brothers encounter with the legal system occurs, but and sisters in the law—and perhaps even we neither do they stand destitute at the door- ourselves—measure our sworn duty as offi- way of the courthouse and thus eligible for cers of the court against the “what-is-best-for- free services. They also need the services of a me” standard? Where, indeed, is Atticus Finch in professional—a lawyer. What about them? the 21st century? In my experience, at least, the biggest My own view is that Atticus lives! We— challenge to the spirit of public service that each of us—just need to coax him out of the in the Atticus Finch tradition is the very shadows. As Justice Breyer put it to us in his essence of the legal profession is the egoistic remarks at Stanford, “Why not five days of “what’s-in-it-for-me” attitude that often stalks billings and one for service?” I look into the the hallways and conference rooms of profit- faces of those assembled here in the confer- mesmerized law offices and firms. Billing ence center. I try to imagine those of you rates continue to rise to match the sense of gathered at other locations, participating by financial entitlement held by too many satellite. I see some of the finest people ever to lawyers—and their families! And—can I say walk the earth. The crème de la crème!The best this without using an overly broad tar

8 clark memorandum brush?—some law firm pro bono programs may be motivated as much by a desire to be “seen of men” as by a genuine desire to render “alms” in the form of legal services. Those who prac- tice law solely for the money or the acclaim, in the words of the Master, “have their reward.”3 So, without in any way condemning any selfless professional service rendered to anyone in need, may I just point out that there are some real opportunities for sack-of-hickory-nuts service among the ranks of the great middle class of society. I speak to those of you in the great, institutional law firms, as well as those in smaller firms and sole proprietorships. A will expertly drawn for an elderly widow who has not much money, but who can bake the best apple pie on the planet! Accepting a hundred dollars as full payment from an anguished father and mother whose teenage son has gotten on the wrong side of the law in some ado- lescent miscreance. Receiving a modest line of credit as payment from a struggling trades- man or small merchant for helping him solve a commercial dispute. Such charity from a legal professional is in the highest tra- dition of what it means to be an officer of the court. It is service that would resonate with Atticus Finch. But there is yet another, even more fun- damental, dimension to lawyer professional- ism. I have struggled to encapsulate it in a single phrase with only limited success. The best I can do without circumscribing too nar- rowly what I am referring to is simply this: Standing for goodness. Doing the right thing. Not because it is profitable, not because it looks good, not even because the bar association has included it in a code of conduct or set of ethical standards; but doing the right thing simply because it is the right thing! On my office desk is a framed quotation attributable to President Harry S. Truman. It states sim- ply: “When in doubt, do what’s right.” That, I believe, is the spirit of Atticus Finch. “Standing for goodness”—“doing the right thing”—is a personal philosophy that covers a multitude of virtues. It begins at the everyday level with just common courtesy and pleasantness. Recently, I read a number of codes of “professionalism” promulgated by various states. Universally, they include something like this: “Lawyers should exhibit courtesy, candor, and cooperation in dealing with the public and participating in the legal system.” Or, “Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries.” I shook my head sadly—not at these declara- tions, which are commendable in sentiment, but at the notion that a “sandbox” or Sunday School lesson, like treating others decently, needs any mention at all in a professional code of those sworn to serve the public inter- est. For you and me—for men and women at law who weekly covenant to take upon ourselves the name of Jesus Christ, to keep

clark memorandum 9 His commandments, and to always remem- miles into the Russian heartland, seizing lent overthrow of that same Constitution. ber Him—such codes should be unneces- Stalingrad on the Volga River. Except for a Eventually, he succeeded the eminent Judge sary. Standing for goodness is something brilliant naval victory at Midway in June, the Learned Hand as a judge of the Second u.s. that should just be part of who we are. Like United States had hardly gotten into the Circuit Court of Appeals. Atticus Finch. game. And in New York City, Anthony The cover of Time magazine for October This matter of standing for goodness as Cramer, a former German national, was 24, 1949, carried the picture of Judge Harold reflected in one’s civility towards others is not charged with high treason for allegedly aiding Medina. The caption read, “A certain calm mere idealism. It is also practical and, in my a group of Nazi saboteurs. Public sentiment and peace of mind.” Truly, the decided are experience at least, one of the very first evi- cried out for Cramer’s prompt conviction. always gentle. dences of a true professional. A number of Into that grim situation stepped Harold Atticus Finch’s decision to defend Tom years ago while practicing law in San Diego, I R. Medina, one of New York’s best- Robinson was anything but popular. Some was invited to participate in a bar association known trial lawyers. A federal judge asked accused him, in less elegant tones than these, committee that was drafting one of these Medina to represent Cramer. As Medina of being a “lover” of the black race. There was codes of conduct. The association also later recalled, “He told me that Cramer was even an attempt on the lives of his two chil- decided that it wanted to establish an annual wholly without means to hire any lawyer, dren. But Atticus Finch was a true profes- award for the lawyer whose skill and integrity that it was important to demonstrate to the sional. His love of law was more than a mere best exemplified the maxim “His word is his American people and to the world that, flirtation, more than an occasional dalliance, bond.” The first such award was given to a under our system of American justice, the certainly more than a marriage of conven- good friend of mine who I regarded as per- poor man is just as much entitled to the ience. His was a deep and profound devotion haps the finest civil trial lawyer in San Diego. advice of competent counsel as is a man with to the idea of justice and to the bedrock prin- I attended the bar association dinner in plenty of money. He explained that he ciple of charity and the worth of each soul his honor where the award was to be pre- wanted me to defend the accused as a patri- underlying it. Tom Robinson was a man. As sented. Numerous fine tributes were paid to otic duty.”4 Without hesitation, Medina such, in his earnest protestations of inno- this able and good man by lawyers who were accepted the unpaid assignment. cence, he deserved to be taken seriously. As his partners and by those who had been his It was a delicate and courageous endeavor. was the right of any man—rich or poor, opponents. Finally, it was his turn for a Many in the public, even some friends, thought white or black or brown, honored or response. He said this: “When I was a new he was giving aid and comfort to the enemy. despised—Tom Robinson was entitled to lawyer, just starting out, I went to Judge Others thought he was just in it for the money. the full requirement of the law that the gov- Louis Welch [who had been one of the deans But burning deeply in Harold Medina’s heart ernment’s case against him be established of the Superior Court bench] and asked for was the principle embodied in the Sixth beyond a reasonable doubt. his advice. He answered with five words. Amendment that assures every accused the And there was plenty of doubt. Evidence ‘The decided are always gentle.’” What a les- able assistance of legal counsel. So devoted was at the trial revealed that Tom Robinson had son! The decided are always gentle! Gentility. Harold Medina to this, and all other, provisions a withered arm, making it highly unlikely, if Cordiality. Understatement. Honesty. These of the Constitution that he refused to say or do not altogether impossible, that he could have are all evidences of a gentleman or woman. anything to betray doubt in his client’s cause, committed the alleged crime. And Tom’s They are the marks of integrity in one com- even refusing to acknowledge that he was a own compelling testimony was that he had mitted to standing for goodness. And, in my court-appointed attorney. Years later he said: been lured into the Ewell cabin by a seduc- experience at least, they are invariably the tive Mayella on the pretense of performing a marks of an opponent to be reckoned with! I had made up my mind from the beginning that not small chore for her—a seduction, like that of They are the very first signs of a true profes- one word should come from my lips to give the jury Joseph in Egypt, that he had firmly resisted. sional in law. the impression that I was anything other than a Atticus’ closing argument was even more Sometimes, standing for goodness is not lawyer retained by Cramer to defend him. He was compelling—marshaling the facts convinc- easy—as Atticus Finch knew. Sometimes it entitled to the best defense we could give him. He ingly, showing that Mayella was likely under means standing up for justice—for doing the was entitled to the full advantage of everything the abusive influence of Bob Ewell (who right thing—even when it is difficult. which went with the fact that I was standing by his turned out to be the real aggressor), and ulti- The news in July 1942 was bleak on every side as his lawyer. Nor did I want the jury to think mately dragging into the sunlight the racism hand. Only six months earlier, air and naval for even one moment that perhaps I thought Cramer that lurked in the shadows of Maycomb forces of the Empire of Japan had left the u.s. was guilty but was defending him only because I had County. It was magnificent. Pacific Fleet a smoking ruin at Pearl Harbor. been assigned by the court to do it.5 But in Maycomb in 1932, it was not A seemingly invincible Japanese juggernaut enough. Tom Robinson was convicted. had advanced the boundaries of the Japanese On May 15, 1947, President Truman nomi- Unable to face the prospect of a lifetime in empire throughout Asia and the islands of nated Harold R. Medina as a federal district jail, Tom fled while being transported to jail the Pacific and was literally knocking at judge. Four years later he presided at the and was shot dead in the attempt. What pos- Australia’s door. In Europe the invincible marathon trial of 11 top-ranking American sible good was served by Atticus Finch’s tak- Nazi war machine had advanced hundreds of Communists accused of advocating the vio- ing that case? In the end Tom Robinson was

10 clark memorandum dead anyway. Atticus’ own relationship with some in the white community was strained. His children barely escaped the attempt on their lives. And Atticus certainly was not any richer; he had represented Tom Robinson for free—as a public service. For those who measure value according to the egoistic “what’s-in-it-for-me” standard, nothing good came from that ill-fated representation. #43 But there is another standard of valua- tion, a nobler, deeper, richer, infinitely more satisfying standard, a standard that only the “STAND UP, true professional, the genuine officer of the court, can appreciate. It is profoundly por- trayed in the film version of the story about Atticus Finch and Tom Robinson. During CHILDREN. the trial the black community of Maycomb had been present—not on the main floor of the courtroom, but in the steaming balcony and outside at the windows. YOUR FATHER IS Now, picture this: The verdict has been announced, the defendant led away. The judge, the lawyers for the county, and the white audience have all departed. Only PASSING.” Atticus Finch remains in the courtroom proper, slowly putting papers into his brief- case. But in the balcony the black audience #43 remains, silent and still. Atticus’ two children are with them. As Atticus Finch rises and slowly walks from the courtroom, the entire black population, as though on signal from an unseen hand, arises to its feet in quiet rev- erence and gratitude, gratitude to a great and good man—an ordinary man perhaps, but a great one. A professional. Says the black preacher to the two Finch children at his side, “Stand up, children. Your father is passing.” notes

1 Mike Papantonio, In Search of Atticus Finch: A Motivational Book for Lawyers (Pensacola, Florida: Seville Publishing, 1996). 2 Rudyard Kipling, “Tommy,” Ballads and Barrack Room Ballads (1892, 1893), stanzas 1, 2, 5, 6. 3 Matthew 6:2. 4 William M. Kunstler, The Case for Courage (New York: William Morrow & Co., 1962). 5 Id. art credits

Photographs on pages 6, 7, 9, and 11: To Kill A Mockingbird, Universal / The Kobal Collection. Other images by House Industries.

clark memorandum 11 It has always been a cardinal teaching with the Latter-day Saints that a religion which has not the power to save the people temporally and make them prosperous and happy here cannot be depended upon to save them spiritually, and exalt them in the life to come.1 ReflectionsJOSEPH F. SMITH on the

Delos Larson, a patent lawyer at Holland & Hart, consults with Norma and Omar Aye on a family matter.

PHOTOGRAPHY BY ::: BY CRAIG D. GALLI :::

SINCE 1998 I HAVE HAD THE GOOD FORTUNE of participating in the Salt Lake Inner-City Project, first as a Welfare Services missionary with my family and later as a coordinator of pro bono legal services. Last year the Inner-City Project pro bono program expanded and became incorporated into the J. Reuben Clark Law Society pro bono initiative. This article recounts the genesis of these programs and my own experience with them. Lord’s Legal Storehouse

BRADLEY SLADE able to hold a steady job and for keeping the professionals—dentists, doctors, account- pantry full. After witnessing a family living in ants, carpenters, plumbers, auto mechanics, a rundown trailer on a gravel lot, they thanked and lawyers—generously contribute their I my wife for growing a garden. time and talents to assist indigent persons for Experience as Welfare Services We all became less judgmental of oth- free or at a reduced cost. Those who render ers and their challenges, recognizing that such service literally allowed their talents Missionaries many of our brothers and sisters know only to “be cast into the Lord’s storehouse, to broken homes where abuse, poverty, and become the common property of the whole In 1998 I learned that Elder Alexander B. mental-health problems had plagued their church—every man seeking the interest of Morrison, then president of the Utah North families for many generations. To overcome his neighbor, and doing all things with an Area, had embarked on an innovative pilot even the simplest of obstacles required eye single to the glory of God.”3 As Church- program to bring temporal assistance to enormous courage by them and faith and service missionaries identify the specific members of the Church and others living in nonjudgmental help from those who would needs of those with whom they serve, they less affluent areas. Elder Morrison started the love, shepherd, and respect them. We were receive approval from the bishop to access Salt Lake Inner-City Project after observing touched by the examples of the strong the Lord’s storehouse in order “to administer that residents of the Salt Lake Valley suffered members living and tirelessly serving in the to those who have not, from time to time, from the same social problems that plague inner city. Their homes prominently dis- that every man who has need may be amply most large metropolitan areas. played pictures of the Savior, temples, and supplied and receive according to his Retired and older working couples living prophets, something generally not seen in wants.”4 As Elder Morrison explained: in more affluent areas of the Salt Lake Valley our own neighborhood. More important, are called to attend inner-city wards and to our children developed a greater love for Caring for the poor and needy “in the Lord’s way” accept assignments that will assist the needy. others and willingness to extend themselves can come about only if we make others’ conditions These Church-service missionaries do not in the service of others. our own and labor, endure and suffer together. generally receive ward callings nor displace Since we completed our service mission Givers then will be united with receivers, and the the existing ward leadership. Rather, they almost six years ago, we have had many efforts of the givers will be magnified because they are receive assignments from the bishop to assist friends with young children and teenagers united to each other. What a glorious principle is individuals and families on a range of issues, serve in the Inner-City Project. Without unity. It is a hallmark of the Zion people of God.5 including unemployment, mental and physi- exception the experience has been equally cal health, inadequate housing, personal remarkable for them, and all reluctantly After concluding our service mission, I hygiene, addictions, and various forms of returned to their home wards at the end of was asked to work with Kent Linebaugh abuse. In some Salt Lake wards, bishops have their missions. My wife and I could not imag- (Jones, Waldo, Holbrook & McDonough) as many as 70 families on welfare rolls, which ine a better way to strengthen the faith and as a legal coordinator of the “Lord’s legal can quickly overwhelm ward resources. testimonies of our children and to teach them storehouse” in the Inner-City Project. Previous Hoping to participate in the Inner-City compassion and gratitude. Our oldest daugh- to that time a prominent immigration attor- Project with my wife and four daughters ter, who recently returned from a full-time ney, Oscar W. McConkie III (Kirton & (ages 3, 10, 13, and 15), I contacted its direc- mission to Sicily, remarked that her desire McConkie) had performed this function for tor, Jeffrey C. Swinton, then president of the and courage to serve a mission came in large several years. Service missionaries contacted Salt Lake Central Stake, to volunteer my part from her experience as a service mission- me, as a legal coordinator, to determine the family. At our first training meeting, Elder ary in the Inner-City Project. Swinton (now an Area Authority Seventy) described the purpose of the project: “By applying the welfare principles of consecra- tion and cooperation within and beyond our own neighborhoods, we can enhance the 2 spiritual and temporal lives of the people of Pro Bono Legal Services in the Salt Lake City, Utah.”2 Compared to the vastness of the temporal Inner-City Project and spiritual needs we observed, our service was small, but it changed our hearts and per- One of the salient lessons brought home spective. Our four daughters observed a side from our mission was a new understanding of society that gave them a greater apprecia- of the inspired principle of the Lord’s store- tion for their own blessings. They no longer house. Church-service missionaries received took for granted a full refrigerator, shoes with training to tap into significant resources both good soles, and warm coats. Both our teenage in the Church and in the community to help daughters separately thanked me for being people in need achieve self-reliance. Many

14 clark memorandum precise type of legal problem and to identify To date, the jrcls Salt Lake Chapter has an attorney from our list of volunteer attor- recruited almost 50 volunteer attorneys to neys who could handle the matter. The legal offer pro bono legal services through Church- matters referred in this way sometimes 3 service missionaries. Four experienced attor- involved extensive litigation, but more often JRCLS Pro Bono Program neys—Kent Linebaugh, Richard Neslen, than not, a couple of phone calls, letters Tony Bentley, and Steve Boyden—have vol- transmitted, or meetings were all that was In early 2005 Leo Jardine, a retired tax attor- unteered as legal coordinators to handle the required to solve many legal problems. The ney, was called by Elder Russell M. Ballard to intake of referrals from service missionaries. legal specialties most commonly needed by organize a group of volunteer Spanish-speak- Examples of recent legal matters referred attorneys volunteering in the Inner-City ing attorneys to assist in the newly created through the jrcls Salt Lake Chapter pro Project include: divorce and child; immigra- Hispanic Initiative, which now has Welfare bono initiative include the following: tion; landlord/tenant; bankruptcy; employ- Services missionaries serving in over 20 ment, disability, and workers’ compensation; Spanish-speaking wards and branches. In addi- Negotiated a divorce for a pregnant domestic violence; tax and estate planning; tion to immigration law issues, the Latino woman with a small child who was and criminal. community has more than their share of legal abandoned by her husband shortly The Lord’s legal storehouse in the Inner- needs. Regrettably, many have been victim- before the Christmas holidays. City Project was not established to replace ized by employers who don’t pay them for the wonderful work performed by the Legal their work and by unscrupulous landlords who Procured a protective order for an eld- Aid Society and other organizations. Those deprive them of their tenant rights. erly woman who had been physically organizations have skilled and dedicated Berne Broadbent (Kirton & McConkie and emotionally abused by her drug attorneys on staff to represent the indigent. and chair of the service committee of the addict son after he was released from Unfortunately, in the Salt Lake Valley, it jrcls Salt Lake Chapter) agreed to recruit prison. can sometimes take many months for an volunteers from the jrcls to assist in the individual to access these legal services. Hispanic Initiative. Shortly thereafter, the Recovered compensation withheld from Moreover, these organizations and the Utah jrcls Salt Lake Chapter agreed to oversee a skilled Hispanic auto mechanic who Bar Association do not have a robust pro- the combined pool of volunteer attorneys worked six weeks but was then fired gram to recruit attorneys in private practice assisting in the Inner-City Project and the without cause. to take pro bono referrals. Hispanic Initiative. The Salt Lake Chapter also sponsored a well-attended meeting and In early 2005 William F. Atkin (associate panel discussion with representatives from general counsel for the Church and former Salt Lake’s Catholic Community Services Inner-City Project Church-service mission- and Jewish Family Services to share ideas ary) proposed expanding the Lord’s legal LEFT: Sister Sherlyn Lewis helps Anai Ajack, and explore opportunities for collaboration. storehouse to other jrcls chapters around age 10, learn to read. BELOW: Sister Lewis Eventually jrcls volunteer attorneys will the country. The question arose as to how uses a Church program to teach English to offer pro bono assistance through a referral other chapters could implement the pro Nyandang Dok and Ajok Akoi. RIGHT: Brother process from ecclesiastical leaders of other bono initiative without the involvement of Kay M. Lewis reviews seven-year-old Mario faiths in the Salt Lake Valley, although this Church-service missionaries. It soon became Ajack’s math assignment from school. has already happened on a limited basis. evident that the existing Church organiza- tion and programs already provided the needed infrastructure through ward and stake priesthood channels. Specifically, bishops rely on the ward welfare committee to “[c]oordinate efforts to help specific ward members meet their spiri- tual and temporal needs, including long-term needs.”6 Similarly, the stake welfare commit- tee assists the bishop by identifying available “welfare resources within the stake” as well as outside the stake.7 “The Lord’s storehouse, therefore, exists in each ward. The bishop is the agent of the storehouse. Guided by inspi- ration from the Lord, he distributes the Saint’s offerings to the poor and needy.”8 As President Thomas S. Monson reminded us in 1986, “The Lord’s storehouse includes the

clark memorandum 15 time, talents, skills, compassion, consecrated the Priesthood Leader Guidelines for pro material, and financial means of faithful bono legal services.11 Church members. These resources are avail- able to the bishop in assisting those in need.”9 3. Pro bono coordinator(s). The local pro Thus, members of any chapter of the bono committee will identify and train one jrcls outside the Wasatch Front who desire or more volunteer attorneys as pro bono to participate in the Lord’s legal storehouse coordinators. The pro bono coordinators need only offer their services to bishops and will be responsible for the intake of referrals stake presidents. These leaders and members from the participating priesthood leaders. of their ward and stake welfare committees can The principal responsibilities of the coordi- then refer legal matters of indigent members to nators include: (1) screen the referred matters them. In September 2005 the Church’s Office to determine the legal specialty required to of General Counsel issued guidelines entitled assist the member; (2) determine if the nature Pro Bono Legal Services Program, a full copy of of the legal matter involved fits within the which is available on the jrcls Web site.10 The scope of those matters properly handled by guidelines set forth the following three objec- the pro bono program; (3) refer the matter tives of the jrcls pro bono program: and prospective client to a volunteer attor- ney; and (4) track all referred matters. 1. To bless the lives of members of the LDS Church and others by providing 4. Resource attorneys. The local pro bono legal assistance to those who could committee will identify and train volunteer not otherwise afford it; attorneys to serve as resource attorneys to the volunteer attorneys in the pro bono pro- 2. To assist LDS Church leaders by provid- gram. The resource attorneys should be ing an organized program of legal assis- attorneys with a basic expertise in the legal tance to those members who priesthood matters that will be routinely covered by the leaders determine are in need of legal pro bono program. assistance and who do not otherwise have the financial resources to obtain 5. Volunteer attorneys. The local pro bono such assistance; and committee will identify and train members of the local Law Society chapter who agree to 3. To provide opportunities of service serve as volunteer attorneys. to attorneys who are members of the JRCLS, which service will bring them great In addition, the guidelines explain that personal and professional satisfaction. the community service committee of the Law Society’s International Board will serve as a the pro bono coordinator(s). He may also To implement the jrcls pro bono pro- resource for any jrcls local chapter that has assign a member of the ward welfare commit- gram in a particular community, the guide- decided to implement a pro bono program. tee to contract the pro bono coordinator. lines recommend that the chapter leadership Sterling Brennan (Workman Nydeggar) cur- undertake the following: rently serves as chair of that committee. The 2. Pro bono coordinator. The pro bono community service committee will identify coordinator reviews the matter to determine 1. JRCLS local chapter. If a jrcls local chap- and make available to local chapters members whether it is a legal matter properly covered ter wants to initiate the pro bono program, who have agreed to serve as resource attor- by the pro bono program and then refers the the local chapter should organize a pro bono neys at a national level for legal matters matter to a volunteer attorney. committee that will be responsible for the governed by federal law (e.g., immigration, implementation of the program. employment, etc.). 3. Volunteer attorney. The volunteer attor- Once a jrcls chapter has undertaken the ney is engaged by the qualified member 2. Participating LDS stakes. The local pro above, the process for receiving referrals from in writing to establish the attorney-client bono committee should contact the stake local ecclesiastical authorities should nor- relationship, interviews the client, obtains, presidents in their area to determine whether mally follow these five steps: as necessary, the assistance of a resource their stakes would be interested in participat- attorney, and resolves the legal matter in a ing. . . . The pro bono committee will train 1. The priesthood leader. The priesthood competent, timely manner. The written the appropriate lds leaders in that stake (e.g., leader, usually a bishop, determines the need undertaking should contain an express dis- stake presidency, high council, and bish- for legal services based on priesthood welfare claimer that neither the lds Church nor the oprics). This training will include a review of principles and refers the qualified member to jrcls is liable for any errors of omissions of

16 clark memorandum Finally, the guidelines describe several immediate and extended family should also important concepts that should be under- be explored. Any use of fast offering funds by Sister Carol Thomas helps stood and followed by jrcls chapter leaders, a priesthood leader for legal fees and expenses Kathy North with her budget and jrcls attorney volunteers, and local ecclesi- should be done in a manner consistent with to balance her checkbook. astical leaders. the general Church welfare principles, espe- cially in adversarial proceedings involving Priesthood leader approval. A bishop gen- members on both sides of the litigation. erally approves all referrals of legal services to the pro bono program.

Engagement. The needy individual engages the attorney for legal services and is the 4 “client.” The Church and priesthood leader Joining the Lord’s Legal do not engage the attorney. Storehouse Confidences. The priesthood leader exer- cises great caution to ensure that he does not Lawyers frequently find themselves already disclose confidences covered under the priest- busy in Church and civic affairs, not to penitent privilege to the pro bono coordina- mention the pursuit of family and personal tor or to the volunteer attorney. interests. Carving out time for pro bono activities can be difficult. The American Bar Attorney-client privilege. The priesthood Association Model Rules of Professional leader communicates sufficient facts to the Conduct recommends that each lawyer volunteer attorney so that the attorney under- devotes 50 hours per year rendering pro bono assistance to the poor and needy.12 Sadly, a recent study of AmLaw 200 firms, the largest 200 law firms in the country, revealed that only 36 percent of the attor- We need. . . to reach down neys in those firms donated 20 hours or more of pro bono work.13 and extend a helping hand Why Pro Bono? without notice, without thanks, Why should an attorney or law firm devote substantial time to pro bono work? In without expectation of a speech given on March 25, 1993, at the byu Law School, practicing attorney David G. anything in return. Campbell, from the Phoenix firm Osborn Maledon, eloquently explained why pro bono PRESIDENT GORDON B. HINCKLEY work is needed and should be performed:

What little pro bono work I have done has been enormously rewarding—more so than any other the attorney and that neither of them pro- stands the nature of the case. The priesthood aspect of my litigation practice. . . . It is not a coinci- vides any malpractice insurance coverage for leader should not sit in discussions between dence that dissatisfaction with the profession is reach- the volunteer attorney. the attorney and the needy individual in ing its peak at a time when lawyers must, by ethical which the attorney dispenses legal advice. requirement, be forced to spend even one hour per 4. Pro bono coordinator follow-up. The pro week helping those in need. . . . In today’s world of bono coordinator will periodically monitor the Payment of attorneys’ fees. Most attor- legal complexities, even a simple landlord-tenant status of all referred matters. neys in the Lord’s legal storehouse are willing problem can become an insurmountable barrier to to provide legal services at no cost. However, one untrained in the law. Honest people of modest 5. Volunteer attorney. The volunteer attorney the priesthood leader may wish to explore the means often find themselves at tremendous disadvan- will periodically report to the pro bono coor- needy individual’s ability to pay some reason- tage in their personal, family, and business dealings dinator the status of all referred matters and able portion of the legal services, even if the when they lack legal counsel. Those of us who have a will give a final report to the pro bono coordi- amount is small and payment is spread over monopoly on legal services must provide the assis- nator upon completion of a referred matter. time. Financial resources from the person’s tance if it is to be provided at all.14

clark memorandum 17 For Latter-day Saint attorneys, an addi- tional spiritual motivation exists to provide pro bono legal assistance to the poor and needy. In a jrcls devotional on February 28, 2004, President Boyd K. Packer linked undertaking pro bono work with keeping one LEFT: Elder and Sister of our most fundamental covenants: Thomas have dinner with the Juarez family, who were sealed Be willing to give of your time and of your means in the temple. BELOW: Sister and [of] your expertise to the building up of the Brenda Juarez and daughters Church and the kingdom of God and the establish- Caroline, age 11, and Noelia, ment of Zion, which we are under covenant to do— age 9, play a game with the not just to the Church as an institution, but to missionaries. RIGHT: Brother members and ordinary people who need your profes- Ricardo Juarez, who serves as sional protection.15 elders quorum president, enjoys dinner with his family Some of us may worry that if we devote and the missionaries. time and energy to pro bono work, our own practices will suffer. However, the Lord has counseled:

Verily I say, men should be anxiously engaged in a good cause, and do many things of their own free will, and bring to pass much righteousness; For the power is in them, wherein they are agents unto themselves. And inasmuch as men do good they shall in nowise lose their reward.16 bono programs that encourage partners and associates to perform pro bono work. Some How does the loss of a few billable hours firms may actually discourage providing pro compare to the blessings promised for help- bono work, favoring instead making contri- ing the needy? King Benjamin taught: butions (sometimes very generously) to the popular “And Justice for All Campaign,” an For the sake of retaining a remission of your sins from organization supported by the Utah Supreme lds bishop and came through the jrcls. For day to day, that ye may walk guiltless before God— Court to raise and distribute funds to organi- example, one attorney at a major New York I would that ye should impart of your substance to the zations such as the Legal Aid Society of Salt firm indicated that excessive scrutiny and poor, every man according to that which he hath.17 Lake, Utah Legal Services, and the Disability bureaucratic red tape likely would discourage Law Center. While financially supporting attorneys at his firm from accepting a referral Joining the Lord’s Legal Storehouse such organizations is vital, it provides little directly from the jrcls or any type of reli- as Lawyers and Law Firms personal satisfaction compared to directly gious organization. However, he thought it Attorneys living in the Salt Lake area providing pro bono legal services. possible for the local jrcls chapter to partner have abundant opportunities through the Most large regional and national law firms with the local Legal Aid Society to refer mat- jrcls pro bono project (in addition to pro- have highly developed pro bono programs. ters to his firm. Such coordination itself would grams sponsored through the Utah State Bar) Individual attorneys desiring to undertake a have significant benefits, such as enhancing to provide pro bono legal services. While the pro bono matter not directly referred to the the jrcls’s positive image to the local bar and Salt Lake Inner-City Project and Hispanic firm from the local bar association may often community and bringing greater credibility to Initiative provide jrcls members living present the matter to a pro bono committee the jrcls pro bono program. Most law firms along the Wasatch Front with unique pro or pro bono partner for approval. Many law that already have a commitment to pro bono bono opportunities, the jrcls Pro Bono Legal firms, such as Beveridge & Diamond in work likely will respond positively to religion- Services Program guidelines described above Washington, d.c., routinely obtain referrals affiliated organizations designed to provide provide a mechanism for virtually any lds from religious and other charitable organiza- legal services to the indigent. Indeed, the aba attorney to obtain pro bono referrals through tions and, thus, may be receptive to accepting specifically endorses providing legal services priesthood channels. referrals from a local bishop through the local to or through religious organizations.18 Regrettably, not all law firms view pro jrcls chapter pro bono coordinator. Where circumstances do not allow an bono service with the same degree of enthusi- Other firms may not be so eager to accept attorney to participate in the jrcls pro bono asm. In Utah few law firms have formal pro a pro bono referral that originated from an program, a multitude of pro bono opportuni-

18 clark memorandum sentation in an environmental enforcement 6 Gospel Teaching and Leadership, Book 2 of the Church action or with environmental due diligence Handbook of Instructions at 318 (1998). to purchase contaminated property. 7 Id. at 316. This potential obstacle can be overcome 8 Spiritual and Temporal Welfare, Book 2 of the Church in a variety of ways. First, many bar asso- Handbook of Instructions at 256 (1998). ciations and legal-aid organizations have 9 Thomas S. Monson, “Guiding Principles of Personal and lawyers experienced in the specialties most Family Welfare,” Ensign (September 1986), 5. needed to serve the poor who can provide !0 http://www.jrcls.org/ mentoring, supervision, and legal forms for !1 The Priesthood Leader Guidelines are attached to the attorneys willing to learn skills needed for Pro Bono Legal Services Program guidelines. pro bono service. Second, large law firms !2 American Bar Association Rules of Professional Conduct, often have experienced attorneys who can Rule 6.1: “Every lawyer has a professional responsibility to provide in-house mentoring and supervi- provide legal services to those unable to pay. A lawyer sion. Third, each jrcls chapter can assem- should aspire to render at least (50) hours of pro bono pub- ble a list of specialists who can provide lico legal services per year. In fulfilling this responsibility, mentoring to less-experienced attorneys. the lawyer should: (a) provide a substantial majority of the Recently, a young patent lawyer at Holland (50) hours of legal services without fee or expectation of & Hart, Delos Larson, handled a complex fee to: (1) persons of limited means or (2) charitable, reli- divorce involving foreign nationals. He was gious, civic, community, governmental and educational mentored by Bennett Peterson and Rebecca organizations in matters that are designed primarily to Long, both experienced family law practi- address the needs of persons of limited means; and (b) pro- tioners. vide any additional services through: (1) delivery of legal At the time of our retirement, we likely services at no fee or substantially reduced fee to individu- will reflect back with satisfaction on the big als, groups or organizations seeking to secure or protect court victories or landmark transactions and civil rights, civil liberties or public rights, or charitable, the accolades that accompanied our suc- religious, civic, community, governmental and educa- cesses. But at the end of our lives, perhaps tional organizations in matters in furtherance of their ties exists. The aba has posted on its Web site the most cherished memories from our pro- organizational purposes, where the payment of standard a helpful directory of pro bono programs in fessional careers may well be those instances legal fees would significantly deplete the organization’s each state.19 The aba Standing Committee on in which we accomplished what President economic resources or would be otherwise inappropriate; Pro Bono and Public Service also offers Gordon B. Hinckley instructed: “We need (2) delivery of legal services at a substantially reduced fee national and international pro bono opportu- as individuals . . . to reach down and extend to persons of limited means; or (3) participation in activi- nities.20 For example, the aba has recruited a helping hand without notice, without ties for improving the law, the legal system or the legal tax attorneys across the country to help indi- thanks, without expectation of anything in profession. In addition, a lawyer should voluntarily con- viduals and businesses access new tax provi- return, to give of that which the Lord has so tribute financial support to organizations that provide sions designed to assist those affected by generously blessed us.”21 legal services to persons of limited means.” Hurricane Katrina. Many law schools also !3 Aric Press, “Brother, Can You Spare 20 Hours?” American have pro bono clinics in which experienced Craig D. Galli (b.a., m.a., Brigham Young University; Lawyer (September 2005). attorneys can mentor law students interested j.d., Columbia University) practices law in the Salt !4 David G. Campbell, “Satisfaction in the Law,” in in taking pro bono matters. Lake City office of Holland & Hart llp. Craig can Fletcher, Galen L. & Wise, Jane J. eds., Life in the Law: be reached at [email protected]. Answering God’s Interrogatories (Provo: J. Reuben Clark Any Lawyer, Regardless of Specialty, Law Society, byu, 2002) 66. Can Join the Legal Storehouse notes !5 Boyd K. Packer, “On the Shoulders of Giants,” Clark A common concern among some lawyers Memorandum (fall 2004), 11; emphasis added. d&c is that they do not have the skills or experi- 1 Quoted in Leonard J. Arrington, Great Basin Kingdom: !6 58:27–28. ence to handle most common pro bono mat- An Economic History of the Latter-day Saints 1830–1900 !7 Mosiah 4:26. ters. For example, how many antitrust and (Salt Lake City: University of Utah, 1966) 425 n. 16 (quot- !8 Supra note 12. patent lawyers would feel comfortable or ing Joseph F. Smith, “The Truth About Mormonism,” !9 http://www.abanet.org/legalservices/probono/ qualified to handle a divorce or an immigra- Out West, vol. xxiii [1905] 242). directory.html#. tion matter? In my own case I have no expert- 2 Jeffrey C. Swinton, “The Salt Lake Inner-City Project” @0 http://www.abanet.org/legalservices/probono/home.html aba ise handling divorces, landlord-tenant matters, (unpublished paper). (national pro bono opportunities) appealing the denial of a workers’ compensa- 3 d&c 82:18–19. http://www.abanet.org/legalservices/probono/ tion claim, or countless other legal issues 4 d&c 42:33. international.html (international opportunities). often confronting the needy. Nor have I 5 Alexander B. Morrison, Visions of Zion (Salt Lake City: @1 Gordon B. Hinckley, Teachings of Gordon B. Hinckley (Salt observed any indigent person needing repre- Deseret Book, 1993) 114. Lake City: Deseret Book, 1997) 459.

clark memorandum 19

L i

B f Y

J t o O N

I i L t H L U U S N T T n R h A S

T M I

O A g N e N S

B S Y r Karen R.

T and

H I are

E honored s to be H with you E tonight. A You D

S represent a dis- O tinguished F school recognized S through- T

A out the world

T as one

E of the best. It is a privilege to be here on this occasion. they knew the Mormon people

The people who own the Financial Times you, and respect you and Sharon and your Hunter was regarded as having been the most of London Prentice Hall, and a number of family very much. outstanding stake president to serve in those other major publications, were searching to I want you to know that to be the father parts. see if they could find someone in the world of of the governor requires a bit of humility. The I went over and saw President Hunter the business who hadn’t been sued, indicted, or other day a phone call came in for me, and I night I was called and said, “President, could otherwise criminalized in some way. Almost a returned it and said, “This is Jon Huntsman you train me how to be an effective, sensitive, year ago they got in touch with me and asked returning the call,” and the wonderful lady and compassionate stake president?” The me if I would write a book on ethics. The on the other end said, “Just one moment, president paused for some time, and I won- thought had never occurred to me to do such Governor. The party will be right with you.” I dered if he had heard the question correctly. a thing. I told them I would be honored to, said, “No, no, no, I’m not the governor. I’m Finally he said, “Visit the less active and the but it would be a very simple book. It would the governor’s father.” There was a long pause, ill.” I wrote that down in my notebook and be right from my heart. It would be the and she laughed and came back and waited. There was a long pause, and I said, = foundation and underpinning of what I said, “You wouldn’t mind if we called “President, would you care to continue your THIS ADDRESS believe to be essential in honesty and you back in a few days, would you?” training session?” He said, “No, that’s all you WAS GIVEN fairness with respect to commerce and May I speak at the outset of my need to do to carry out your assignment and SEPTEMBER 1, international trade. great affection for President Howard your duties.” I have utilized that advice since 2005, AT THE Well, I sent them the first three W. Hunter. It’s difficult for me to talk then, remembering his compassion, his FOUNDERS DAY chapters all written out in longhand about President Hunter. I remember the sweetness, remembering those who may be DINNER. and never expected to hear from them evening that Rex Lee called me. I was in less fortunate, remembering those who may = again. They phoned back and said this California with Karen and our children, be ill, remembering those who may have is just what they wanted; it was simple, and it and Rex said, “We are going to build a library. been left behind somewhere in life’s way. So was basic. They said, “Do another seven Would you be kind enough to donate a million it is a great honor to have been a part of chapters, and we’ll put out the book in 20 lan- dollars, because it will be named after Howard the construction of the Howard W. Hunter guages and sell it throughout the world.” W. Hunter?” I said, “Rex, whatever the size of Law Library. I only mention this because I list in that it, don’t tell me, but let me pay half of it. I must just tell you one other story about book a very few of the heroes that I have had Perhaps the alumni or the others would care President Hunter, because he had such a dra- in my life, and I am honored to be sitting for the other half.” Whenever President matic impact on my life and was such a dear next to one of them: President Faust. He is a Hunter’s name is attached to part of some- and cherished friend, particularly during the man of great compassion and a man whom I thing, I am very honored to be part of it. time after his wife Claire’s passing until he dearly love and revere. So I acknowledge you. We lived for almost 25 years just a few remarried. I would try to go over to the pres- Thank you very much for being with us. blocks from President Hunter, and for almost ident’s home every night, because he was One of my longtime and treasured and 10 years I had the privilege to be his stake fairly lonely at times. But one night I decided trusted friends of many years is President president. I remember when Elder Marvin to stop by after he had remarried. I knocked Cecil Samuelson. How fortunate you are to Ashton called me to be stake president, I on the door, and Sister Hunter answered the have President Samuelson as your president, thought that I had better go over and receive door and said, “Can you come in? He’s very ill your leader at Brigham Young University. some counsel from President Hunter, because once again.” Remember that President Hunter We have served together at the University of in southern California, where Karen and I had illnesses come and go almost constantly Utah in many capacities. I love you, revere had lived for a number of years, President over a 20-year cycle.

22 clark memorandum would be prepared

he was much brighter and more knowledge- able. But, strangely enough, that started a friendship and a brotherhood between the two of us that lasted until his passing in Provo. We spent some wonderful times together, and it was a great honor to assist in endowing the Rex E. Lee Chair in the Law School. Today has been a day of great compas- sion for America. I’ve been saddened a lot today, as I know each of you have, as we’ve watched the lives of people of New Orleans and Mississippi and parts of Alabama and I went in and visited briefly with him. He beautiful byu campus that you’ll remember the Panhandle of Florida shattered from the was lying on his back, and I kissed him on the him for the graciousness, kindness, and com- devastation of Hurricane Katrina. We have a forehead and said, “President Hunter, it’s such passion that he extended to all of the people number of clients down in that area—people an honor to be with you, dear friend, but you in his life. who are part of the petrochemical indus- look ill.” He said, “I am, Jon. My body is terri- I want to say a word about Rex E. Lee, try—and all of their plants are closed right bly painful, and I feel like I need a blessing. your first dean. Karen and I started out with a now. That doesn’t concern me nearly as Would you be kind enough to offer one?” I very “premiere” type of job. I was an egg sales- much as the lives of the people. said, “Oh, no, President, I don’t know if I am man in Los Angeles, and a man by the name I was deeply touched when Jon Jr. called worthy to do that.” He said, “Of course you of Roland Rich Wooley, who was one of the last night, because the lieutenant governor of are.” I said, “Can you tell me what the ailment founding fathers of your law school, put me Louisiana had reached out to him, along with is? Can you tell me what’s caused this illness?” under his wing. One day in my mid-20s, he several governors: the governor of Texas, He said, “Today I had an ill thought about called me to his home and said, “Jon, I am right next door; the governor of Oklahoma, another man, and it’s made me sick all day.” going to have you meet somebody that I right next door; the governor of one of the I said, “President, you had a negative thought, would like very much for you to meet, other southern states that was right next an ill thought about another person, and that because I have a feeling that someday the two door; and then, strangely enough, to the gov- very thought made your physical body to of you will become very good friends. I went ernor of the state of Utah. become sick?” He said, “Yes. I cannot con- over to his home in great anticipation—he I asked the president of the American tinue my work if I have any thoughts that are lived next door to Bob Hope in North Red Cross, “Why in the world would they negative toward any man or woman.” Hollywood, California. There I met Rex Lee, skip over some of the nearer states and come It was one of the great blessings of my who was a young lawyer from Phoenix. Rex to Utah to ask for help?” He said it was life to lay my hands on his head and give him looked at me, and I looked at him. He looked because they knew the Mormon people a priesthood blessing. I thought then of the at this egg salesman, and I looked at this would be prepared and they knew Utah’s great admonition in the fifth chapter of lawyer from Phoenix, and Roland said, “Now, answer would be yes. Utah is a state where Matthew: “Blessed are the pure in heart, for I wanted to bring you two together. You are they knew people would be prepared, people they shall see God.” I hope as you enter the two sons of destiny.” Well, I didn’t even know would be willing to give, people would have Howard W. Hunter Law Library on the what that meant. Rex obviously would have; compassion, and people would have great

clark memorandum 23 sensitivity toward others. I thank each of tants to the president during those diffi- you, and thank the other people of our state. cult years who were never called before the We’ve been blessed by the Lord to have a Watergate grand jury or who were never moral compass. I recall my days in the Nixon involved in any way with the wrongdoings of Courtesy of Joseph I. Bentley White House. H. R. Haldeman was my boss, that White House. I always felt it was because and some of you may remember the type of I listened to that moral compass. Maybe it’s organization that he attempted to run at the the Holy Ghost, maybe it’s a special spirit that White House. He said, “We run an organiza- dwells within each of us; but we all have it. We tion with zero defects.” Well, it’s impossible all know when we’re doing something wrong, when you’re dealing with human beings to something we shouldn’t be doing. It wasn’t by have a zero-defect system. Because of the fact chance that great companies like Enron top- Joseph I. Bentley that we are human beings, we are fallible, and pled and fell and thousands of people were out we also stumble and fall and have to pick our- of work and lost their pensions and their retire- selves up again and move on and not worry ment through the stock market. about what causes the fall, but learn from it I would like to conclude my thoughts

and learn how to keep on going. In Haldeman’s tonight with a story. Karen and I have had Courtesy of Lew W. Cramer White House it was a little bit different, and many invitations to speak at university gradu- for me it was quite an experience. ation exercises. One of them happened to be I remember on one occasion he asked me at Weber State University. I was on the plat- if I would go in and do something in a meeting form with the president of the university, and with some of the White House senior advi- a lot of time had been taken with speeches sors. I had no business being there, believe me. and introducing different deans and out- I look back to that day and wonder how they standing graduates. I looked at my watch and Lew W. Cramer survived, and then I realize they didn’t survive. saw an hour and a half had passed, and I was But in any event, I was asked to do something rapidly crossing out parts of my graduation J. Reuben Clark Law Society that day, and I went from Haldeman’s office to talk and throwing pages away. Finally I got Changes Leadership my office, picked up the telephone, and called down to one page, because the ceremony one of my former associates in California to kept going on and on and on. Joseph I. Bentley was find out some information on a person, and When I stood up I thought, I’ve got to named international chair of the right in the middle of the conversation, my do something unusual, because this cere- J. Reuben Clark Law Society moral compass kicked in. It was the strangest mony’s gone on long enough. So I said, “Will at the annual leadership meeting feeling in the world. My moral compass said, the graduates please arise?” They all stood. I at Aspen Grove on September “You should not be making this telephone call; said, “Now will you please repeat after me: 29–30, 2005. Bentley, recently you have no business interfering in the life of ‘No exercise is better for the human heart retired partner with Latham & somebody else to get information for Mr. than reaching down and lifting another up.’” Watkins, had previously served Haldeman. This has nothing to do with why They repeated the words. I said, “Will you on the international board and as you came and joined this staff, and the infor- please repeat that one more time?” They chair-elect under outgoing chair mation you are seeking has nothing to do with repeated it again, and I said, “Thank you very Lew W. Cramer, Washington- running the government.” much. I would like to give this university a based lawyer and venture capital- I said to the person on the other end of million dollars worth of scholarships, and I’ll ist. Former chairs Ralph Hardy, the phone, “Will you forget I called you? I’ve be on my way.” My speech took 45 seconds. Gary Anderson, Bud Jones, made a horrible mistake by asking you to do The next morning Bob Schaeffer on cbs Ralph Mabey, Marsh Tanner, something that I’ve just realized is absolutely Sunday morning news said, “I was a gradua- and Bill Atkin joined Cramer wrong, and I don’t want you to do it. I want tion speaker at the University of Utah yester- in welcoming Bentley and his you to forget I called you, and I’m going to day, and I gave the second-best graduation chair-elect, Brent J. Belnap, vice go back in to the gentleman who asked me to speech in the state. Let me quote what I president and senior counsel, make this call and tell him I just can’t do it.” thought was the best speech.” He then gave Citibank, n.a. I went back to Bob Haldeman, and I said, my 45-second speech. Well, after that I was Under Cramer’s leadership “Sorry, Bob, I cannot proceed in making this deluged with speaking invitations by colleges the Law Society added over one phone call. I can’t do what you asked me to and universities. I don’t know if it was for the thousand members and 10 new do. If you’d feel more comfortable with me scholarship fund or for the briefness of my chapters, including four chapters leaving the White House staff, I can under- message, but it serves to point out that there is in Australia; two new chapters stand that, but I can’t make this phone call.” no exercise in life better for the human heart in Canada; one in Hamilton, I was always grateful that I didn’t do it. than reaching down and lifting another up. New Zealand; and chapters in There were only two of us who served as assis- Thank you, and God bless you. Moscow, Sao Paolo, Lima, and

24 clark memorandum Mexico City. Also of note has Ricardo Solis is the current in a number of Latter-day Saint

Bradley Slade been the addition of student chap- chair of the Peru Chapter of church buildings in Peru to pro- ters affiliated with the Society the Law Society. Ricardo and his vide free legal services to mem- during Cramer’s tenure. There wife, Giselle Horna, have both bers of the Church who cannot are now over 40 student chapters completed master of law degrees afford access to quality attor- at law schools nationwide and at the J. Reuben Clark Law neys. Marisol Solano counsels in some foreign locations. School. After completing his with members weekly at her In a project worked on studies at byu, Ricardo worked local church building in Lima by both Cramer and Bentley, for a brief time in Salt Lake City, on issues ranging from family a groundbreaking conference where he met William F. Atkin, law to business formation. for over 250 members of the Mark S. Webber a former international chair of In addition, the Area J. Reuben Clark Law Society the Law Society. Bill encouraged Presidency of The Church of was held at Hotel Monaco in Ricardo to organize Peruvian Jesus Christ of Latter-day Saints d.c.,

Bradley Slade Washington, on February Latter-day Saint attorneys into a recently requested that the Peru 17, 2006. The conference chapter of the Law Society and Chapter of the Law Society assist was held in conjunction with offered to assist them during an in analyzing a resolution pre- the Annual Rex Lee Award upcoming trip to the region. sented to a Peruvian interdenomi- Luncheon, sponsored by In June 2004 Bill Atkin trav- national religious convention the Mid-Atlantic Chapter of eled to Lima, and a Peruvian that could affect governmental the Society. chapter of the J. Reuben Clark restrictions on religious liberty. Law Society was organized with David Torres, a specialist in Law School Alumni Association five founding members. The small religious freedom issues, leads Welcomes New President Wendy C. Archibald chapter immediately commenced the Society in this effort. a membership drive, communi- Members of the Law Society On January 1, 2006, Mark S. Prior to her current work as cating with stake presidents in Peru have taken their motto Webber, ’86, passed the byu a corporate trainer and guardian throughout Peru, inviting all from the great Spanish poet Law School Alumni Association ad litem, Wendy Archibald was Latter-day Saint attorneys to join Antonio Machado, who wrote, presidential torch to Wendy C. in private practice and a staff in fellowship with the Society. “Walker, there is no road. The Archibald, ’93. Webber and his attorney for Congressman Bill Today there are approximately road is made as you walk.” As pio- board put their association under Orton. Mark Webber, a former 40 members of the Law Society neers in the Law Society in South a microscope to refine a vision partner at Parsons Behle & in Lima and an additional 10 or America, they are blazing a trail statement: “Fostering a commu- Latimer, is now president/state so between Huancayo, Cusco, they hope many will follow. nity of leaders dedicated to a life manager for the Utah Division and the rest of Peru. of service.” Archibald will imple- of First American Title, over- Only 18 months old the ment this vision by providing seeing 35 direct operation Peru Chapter of the Law Society experiences to help alumni “con- escrow offices and the Utah is particularly inspiring in its nect with others, give back, and title division. example of professional service. serve together.” She will spend Lead by Gloria Castillo, Society her year communicating to Law Society Chapter News: Peru members in Cusco regularly travel alumni and law students the by Ricardo Solis, David Torres, at personal expense to remote and “Camelot” stories of the Law and Adam Ford distant regions of southern Peru School’s formation. to offer pro bono legal services Under Webber, alumni Peru’s modern legal culture to those without access to attor- donations increased to a record stretches back over a millennium neys. In Lima, members of the high and purchased the Harvard to the arrival of the Spanish Society have been asked by International Human Rights conquistadors. In 1551 an order municipal authorities to provide Microfiche Collection, a 30,000- of Dominican friars founded free biweekly walk-in legal clinics. volume set that became the Law the Greater National University In the municipality of Jesus Maria Library’s 500,000th “volume.” of San Marcos in Lima. This (in central Lima), Jorge Pazos Archibald’s goal to increase Peruvian university boasts the and Miguel Romero likewise alumni participation from 25 oldest law school in the Western meet with citizens needing but percent to 30 percent is critical, Hemisphere. Today members of unable to pay for legal services. because alumni-giving figures the J. Reuben Clark Law Society Besides giving municipal importantly into law school are continuing to advance the pro bono service, Law Society rankings. noble legal heritage of Peru. attorneys staff weekly meetings

clark memorandum 25 byu International Center for Law and Religion Studies

The tireless efforts of byu mitments to the universally Law Professor W. Cole Durham accepted right to freedom of reli- jordan in behalf of religious freedom gion or belief enunciated by the The Symposium topics paved the way for the founding American Constitution and of the byu International Center other constitutional instruments meet the needs of the world for Law and Religion Studies in around the world, and to organ- during this period. 2000. Located at the J. Reuben ize a group of experts who are Clark Law School, the Center assisting with religious freedom serbia and montenegro continues under the direction of law reform on a global basis.” Thank you for the chance to Professor Durham and is a focal The largest international participate in such an interest- point for promoting religious conference dedicated to reli- liberty and studying the relations gious liberty issues, the byu ing and important seminar. between governments and reli- International Law and Religion indonesia The organization, hospitality, gious organizations. Symposium is the most exten- and kindness of all of you The goals of the Center, sive project undertaken by the This is the only international Durham says, are to nurture Center. The conference offers symposium I have ever who organized and realized “relationships with government a forum for the discussion of attended that has given me this event was something that officials and scholars who are religious rights and a broader impressed me very much. shaping long-term church-state array of issues at the intersection knowledge and experience policy, [to help] strengthen com- of law and religion. with people from all nations. I’ll never forget it.

26 clark memorandum From the Student Side: 2005 byu International Law and Religion Symposium

by wendy woodfield, second-year law student

The conference presenter delight for him, since he spoke meaning for her personally. from Mozambique completed no English) and how many peo- When she concluded the brief the final words of his prepared ple were as interested as he was song, the delegate was solemn statement in fluent Portuguese in the legal and religious issues and silent. He thanked the volun- nearly 30 minutes before it was that he had presented. teer and felt determined to share a time to complete the session. This level of interest and song that had influenced his own That realization caused him to insight was anything but rare at life so deeply. Though he began shift uneasily as he returned his this year’s International Law the song from his homeland gaze from the clock on the wall and Religion Symposium at the softly, he finished strongly and to meet the intelligent, expectant byu Law School in Provo, Utah. with confidence. As they reached eyes of the audience seated in Professor Elizabeth Sewell, one the airport, the delegate pre- one of the large classrooms of the of the organizers of the annual sented the driver with a small gift byu Law School. “Questions?” conference, noted that the to express his appreciation, then “tremendous opportunity for turned to enter the airport and those involved in the study of return to his home. The student law and religion internationally remarked, “He helped me to india to interact with practitioners, understand that, regardless of the judges, and government officers language we speak or the beliefs It was a lifetime experience from around the world” helped to we may share or not share, we for me, very educational ensure this insightful discussion. all have a contribution to make. and informative. Some of the This year delegates even went No gulf between us is too wide beyond exchanging ideas in con- that it cannot be bridged.” events I will never forget ference sessions to forging friend- The delegates bridged those all my life. ships with those conducting the gulfs during the course of the conference and with other dele- conference and welded a broad namibia he asked hopefully in his beauti- gates. For example, a delegate network of decision makers and Highly positive impressions. ful Portuguese accent. The relief from the Republic of Georgia was scholars in the field of law and on his face was apparent when surprised to find a compatriot religion. They created opportu- The organizers were friendly several hands emerged above the among the students. They nities for scholars from contrast- and caring, the students heads of the other listeners. The quickly arranged to enjoy a meal ing countries and faiths to byu absolutely committed to presenter called on a young together. Those who did not collaborate on projects and pro- student, and his relief quickly share a homeland or even a com- vide one another with advice on lending a helping hand as a turned to surprise as the young mon language were also able to drafting laws and regulations. sister or a brother. man addressed him in fluent enjoy one another’s friendship. As a delegate from Trinidad and Portuguese and asked a rather One student volunteered to drive Tobago stated, “The conference russia insightful question about the a Brazilian delegate to the airport has far-reaching effects for the I want to thank Cole Durham presentation. Other students and and discovered that, though she direction of faith-based systems international religious scholars and the delegate spoke a total throughout the world.” and the organizers of this soon joined the lively discussion, of four languages, they possessed A delegate from Jordan conference. You have done a and the remainder of the time no common language. After concurred and added, “Be great job in the expansion evaporated. The presenter left repeated attempts to communi- assured that we will remember the room stunned by the number cate and repeated misunderstand- the time we spent with you in of peace and the expansion of people in his audience that ings, the volunteer offered to sing Utah. It will remain in our of religion. spoke Portuguese (a special a childhood song that had great memory all the time to come.”

clark memorandum 27 fffffffffff

Cole Durham, wearing fffffffffffa bulletproof vest, stands in front of sand- bags surrounding fffffffffffthe compound.

n the long run if you truly want approval to go. After consulting to maximize the legal education with university officials, who fffffffffffyou are beginning this day, you in turn consulted with security must do more than learn how experts, I informed Professor I“to do law”; you must “become” Durham that we could not a lawyer. Just as there is a vast approve. There was simply too gap between knowing how to much risk. He was too valuable fffffffffffacquire legal information and to the school and, more impor- knowing how to do law, there is tant, to his family. He seemed a a big difference between doing little relieved at my response. law and being a lawyer in the A few weeks later Professor fullest sense. The latter requires Durham was back in my office. fffffffffffa kind of character and stability The request for his help had been that many who learn how to do renewed he told me. The group law never develop. That kind was smaller still, but the need was of character allows lawyers in even greater. The issue of reli- the full sense to affect people not gious freedom was a critical one. fffffffffffjust by their words but also by If it wasn’t properly resolved, the their very character. Iraqi constitution would likely During the spring of 2005, because of his expertise on consti- tutional law and the intersection fffffffffffof law and religion, one of our Being a Lawyer in the Fullest Sense professors, Cole Durham, was invited to consult with the com- This article is an excerpt from Dean Kevin J Worthen’s remarks to entering law students on August 17, 2005. mittee drafting the Iraqi constitu- tion. The original plan was for fffffffffffProfessor Durham and other con- sultants to meet with members of the committee in Amman, fail. And if the Iraqi constitution themselves as potential targets I renewed my request for permis- Jordan. This was a somewhat didn’t work, all the suffering as they dipped their fingers in ink sion for him to go. Permission risky proposition, but one that on all sides would be for naught. in order to validate their ballots. was granted, and Professor fffffffffffdid not cause much consterna- Professor Durham said he “I know it is extremely danger- Durham, body armor and hel- tion. As time passed and events had been thinking a lot about ous,” Professor Durham said, met in tow, was off to Iraq. unfolded, however, it became what he had been doing all these “and I don’t know if I can make a Thankfully, Professor clear that the consultation needed years, telling people the impor- difference. But after considering Durham returned safely, as you to take place in Baghdad and tance of liberty in general and everything I have been doing can see. I do not know at this point fffffffffffthat the group would need to be religious freedom in particular; for these years and after visiting how much difference his willing- smaller. The request to Professor teaching people what a profound with my wife and family, I really ness to risk his life made. We may Durham was renewed. impact properly framed and exe- feel deeply that I have to try.” never know. What I do know is University approval is cuted laws had on the day-to-day There was something in his that he is a lawyer in the fullest required for travel to countries lives of individuals and societies. voice, something in his counte- sense, one whose mind, heart, fffffffffffon the State Department’s travel He said he had also been think- nance, something deep in his soul, and character have developed advisory list, and, not surpris- ing a lot about the millions of soul that communicated what his to the point at which his impact ingly, Iraq is at the top of that people in Iraq, who at the peril of words had not been able to com- on the law is not limited to the list. Thus, Professor Durham their lives had voted in the elec- municate before, and it caused vast knowledge he possesses; it fffffffffffapproached me to request tion in January, literally marking me to reconsider the decision. includes the kind of person he is. fffffffffff28 clark memorandum Robert C. O’Brien Nominated by President Bush to un General Assembly

Robert C. O’Brien was nominated in November 2005 by President George W. Bush as one of three United States public delegates to the 60th Session of the United Nations General Assembly. The General Assembly meets in regular session during the months of September through December in New York. “We are honored to have Robert’s service and expertise,” said u.s. Ambassador John R. Bolton, head of the American delegation. “His professionalism and advice have been invaluable to me.” Past u.s. public delegates to the un General Assembly include author William F. Buckley, Senator Daniel Patrick Moynihan, actor Paul Newman, A Woman’s Place Honors Australia’s Women Lawyers and singer Pearl Bailey. O’Brien is the managing Sue Purdon, a partner at Hopgood who is herself profiled partner of the Los Angeles Ganim, in Brisbane, Queensland, Australia, in the book, says, “The law firm of O’Brien Zarian llp, has coedited A Woman’s Place: 100 Years book comprises histori- which specializes in complex of Queensland Women Lawyers. The book, cal accounts of women’s business litigation and interna- accompanied by an exhibition at the Supreme involvement in the legal tional arbitration matters. Court of Queensland Library, commemo- profession over the past He is the former chair of the rates the century since the enactment of one hundred years and Los Angeles Chapter of the the Legal Practitioners Act of 1905, which even before that, with a J. Reuben Clark Law Society allows women to practice law in Queensland. look at the role of women in indigenous law in Los Angeles. Supreme Court librarian Aladin Rahemtula before European contact.” From 1996 to 1998, O’Brien coedited the book. One such woman is Agnes McWhinney, served as a legal officer for the A leading family law practitioner in who became the first woman to practice Geneva-based Compensation Australia, Purdon was appointed to the law in Queensland in 1915. A bench of five Commission created by the un Family Law Council of Australia in September judges examined her, led by Chief Justice Security Council, where he han- 2004. The Council, a statutory authority Sir Pope Alexander Cooper, not known as dled government claims against established under the Family Law Act of 1975, a cham-pion of women’s advancement. Iraq arising out of the first Gulf advises and makes recommendations to A colleague described him as becoming War. He has also authored arti- the attorney general on family law matters. “distinctly choleric” at the prospect of cles on international law in a Of their recent publication, editors a female lawyer. Agnes passed her grilling number of leading law journals. Purdon and Rahemtula write: “The center- and went to practice in Townsville. O’Brien received his ba degree piece and original concept behind this book “A Woman’s Place is a living history from ucla and his jd degree is the rich collection of biographical profiles, that sets out to remedy the omissions of from the Boalt Hall School of which are an acknowledgement and celebra- the past by ensuring that women’s voices Law at uc Berkeley. tion of [52] women who have helped shape are heard,” notes La Trobe University law O’Brien returned to his the law in Queensland over the past century, professor Margaret Thornton. “A distinc- law practice in Los Angeles after making a multifaceted and richly textured tive element is the recognition of the role the conclusion of the General contribution to our legal heritage.” Purdon, played by indigenous women.” Assembly session in January 2006.

clark memorandum 29 to the Executive Office for u.s. said Herb Cihak, director of the was an editor on the Law Review. Attorneys as counsel to the direc- University of Arkansas’ Young Following graduation Gedicks tor’s office, where he worked Law Library and a mentor and clerked on the u.s. Court of

in Indian country legal issues on supporter of Staheli. Appeals for the Ninth Circuit Department of the Interior a national scale. Staheli graduated from and then practiced corporate “I appreciate being given the byu’s Law School, and after and securities law in Arizona. Courtesy of u.s. opportunity to lead the Office three years of private practice, He joined the Law School of Law Enforcement Services,” returned to the Law School faculty in 1990. Chaney said. “I look forward to as a reference librarian. He Gedicks has published and working with bia and tribal law obtained his master’s degree in lectured widely on constitu- enforcement personnel and sup- library and information science tional interpretation, postmod- Christopher Chaney Named to porting their efforts to ensure and was promoted to head of ernism, and law and religion. Bureau of Indian Affairs public safety throughout Indian Reference Services and then to He is the author of The Rhetoric country.” associate director of Public of Church and State, among other The director of the u.s. Services. He left byu to become books and articles. He serves Bureau of Indian Affairs, W. associate director of the law as faculty advisor to the Law

Patrick Ragsdale, has appointed library at the new law school at School chapter of the American Mark Philbrick Christopher B. Chaney, ’92, as the University of Las Vegas. Constitution Society for Law deputy bureau director of the He returned to byu last year. and Policy. Bureau of Indian Affair’s Office of Law Enforcement Services, Gedicks and Thomas Named to effective August 7, 2005. Distinguished Law Chairs Bradley Slade Chaney, an enrolled mem- ber of the Seneca-Cayuga Tribe Nominated by fellow of Oklahoma, had previously law faculty, Frederick Mark served as associate solicitor for Gedicks is recipient of the Guy the Division of Indian Affairs Kory Staheli New Director of Anderson Chair and David in the u.s. Department of the Law Library A. Thomas is recipient of the Interior. He graduated with a Rex E. Lee Chair at the bachelor of arts degree from the Kory Staheli, ’87, is the J. Reuben Clark Law School. University of Oklahoma in new director of the Howard The chairs are named after David A. Thomas joined 1984, before receiving his law W. Hunter Law Library at byu. two distinguished lawyers: Guy the law faculty in 1974 after serv- degree at byu. From 1992 to After a nationwide search, he Anderson, a prominent attor- ice as a federal judicial clerk and 1997 he had a private law prac- was chosen from a group of five ney from Arizona; and Rex E. work in private law practice in tice in Farmington, New finalists to replace former library Lee, former dean of the Law Salt Lake City. He received his Mexico, during which time he director Constance Lundberg, School and former president of juris doctorate degree from Duke worked primarily in the field who has continued teaching Brigham Young University. University, where he served on of Indian law and served as the part-time at the Law School. the editorial board of the Duke prosecuting attorney for the “Kory Staheli has a clear Law Journal. He later earned a Jicarilla Apache Tribe and the vision of the role the library plays master’s degree in library science Bradley Slade Southern Ute Tribe and as an in furthering the mission of the from byu. He served as Law administrative law judge for Law School and the university,” School library director from the Navajo Housing Authority. said Dean Kevin J Worthen. “He 1974 to 1990. In 1997 he accepted a posi- also has the experience and the Thomas teaches property tion with the u.s. Department of skills needed to provide leader- law, real estate finance, civil Justice as an assistant u.s. attor- ship in carrying out that role.” procedure, and legal history. He ney in Salt Lake City. As a fed- “In all my interactions with is the editor in chief and prin- eral prosecutor he pursued him, he has demonstrated a com- cipal author of Thompson on Real violent crimes that occurred on mitment to furthering the law Fred Gedicks teaches consti- Property, Thomas Edition, one of the Navajo Nation reservation, library profession, to serving his tutional law and telecommuni- the primary treatises in the field the Ute Tribe’s Uintah and fellow human beings, and, most cations at the Law School. He of real property. He is recognized Ouray reservation and other important, to representing the received his bachelor’s degree in as a leading scholar in property areas of Indian country within faith that he professes in a man- economics from byu and his law law, and his books and articles the state of Utah. In 2000 ner that brings credit to him and degree from the University of are cited frequently in federal Chaney accepted a work detail to the institution that he loves,” Southern California, where he and state courts.

30 clark memorandum class of 1984 billion oil-equivalent barrels. eeal stewards an in commercial litigation. He graduated cum laude Class Notes investment of more than $10 billion in deep- from the J. Reuben Clark Law School, where he Bryan B. Todd joined the law firm of Parson Behle water offshore producing facilities. was lead articles editor of the Law Review and e-mail your professional news to & Latimer. He will concentrate his practice on vice president of the Federalist Society. He also real estate transactions, development, and class of 1996 studied at the University of Oxford. [email protected] financing. He graduated magna cum laude from the University of Utah with a bachelor of arts Charles F. Harlow, previously of Reed Smith llp, class of 2001 degree in psychology in 1980. After receiving his recently opened his own law firm in Alameda, class of 1976 jd from the J. Reuben Clark Law School, he prac- California. His practice focuses on assisting Angela Atkin has joined the law firm of Van ticed in Phoenix and Washington, d.c., before individuals and businesses with litigation, cor- Cott, Bagley, Cornwall & McCarthy. For the past 1992 W. Douglas Campbell authored a chapter on returning to Utah in . He is a member of the porate and transactional matters, and estate three years, she has assisted clients with corpo- privacy in the burgeoning radio-frequency id District of Columbia, Virginia, Arizona, and Utah planning and probate. He can be reached at rate, nonprofit, estate, probate, and trust work (rfid) environment. “rfid and the u.s. Regulatory State Bar Associations. www.harlowlawoffice.com. Chuck is married with the law firm of Jones Waldo Holbrook & Landscape” can be found in the book rfid, to Lisa Pare and enjoys spending time with his McDonough. She will continue her practice as a class of 1986 11 7 Applications, Security, and Privacy, published by daughters, Abbie ( ) and Caroline ( ). member of Van Cott’s tax, estate, and benefit Addison-Wesley in July 2005. planning group. Angela received her associate Larry S. Jenkins was selected by u.s. Senator class of 1997 of arts degree from Dixie State College, summa class of 1977 Orrin G. Hatch to be one of 180 Congressional cum laude/valedictorian, in 1995. She received a Angels in Adoption™ for the year 2005. The event Jay T. Jorgensen has been elected to a partner- bachelor’s of arts degree, magna cum laude, in Rick D. Nydegger is the J. Reuben Clark Law was hosted by the Congressional Coalition on ship in the Washington, d.c., office of Sidley accounting from the University of Utah, after ccai School’s honored alum for 2005. He spoke on Adoption Institute ( ) at a national ceremony Austin Brown & Wood llp. He is one of 28 part- which she worked as a certified public account- d.c 13, 2005. “The Changing Landscape of Intellectual held in Washington, ., on September ners in the firm, which now has 600 attorneys ant with Grant Thornton for two years. She byu Property” at the Law School on October 14, 2005. Larry represents private adoption agencies and in offices in the United States, Europe, and Asia. obtained her juris doctorate from , cum has finalized thousands of adoptions for families “Jay Jorgensen is an outstanding lawyer who laude, in 2001. class of 1979 from Utah and many other states. He has also embodies our collegial culture and client service successfully defended several birth parent chal- orientation,” said Thomas A. Cole, chair of the class of 2002 Annette Jarvis, a shareholder and chair of the lenges and is experienced with placements firm’s executive committee. He represents indi- bankruptcy section at the Salt Lake City firm of Ray involving the Indian Child Welfare Act. He is viduals and corporations in all phases of complex James A. Callister was recently named a Southern Quinney & Nebeker (rqn) was honored with the cochair of the Utah Adoption Council’s legislative civil and criminal litigation. He has counseled California Rising Star by the publication Super Utah State Bar’s Dorathy Merrill Brothers Award for committee and a member of the American pharmaceutical and food production companies Lawyers. James is an associate in O’Melveny & the Advancement of Women in the Legal Profession Academy of Adoption Attorneys. in criminal and qui tam cases at all stages, from Myers’ Newport Beach office and a member of in Utah. Annette and her husband, Dr. Joseph Q. undercover and internal investigations to grand the firm’s project development and real estate class of 1987 Jarvis, live in Salt Lake City and have five children. jury proceedings and trial. practice group. He was named a Rising Star in Jay, who had been an associate, received real estate transactions. ba byu 1994 George Ryskamp received an award from the Rick Rose, a shareholder at the Salt Lake City his from in and graduated from the rqn Utah Genealogical Association while presenting firm of Ray Quinney & Nebeker ( ), has been Law School summa cum laude. He joined Sidley Thayne A. Larson was recently named a Southern lectures at the fgs/uga Conference in Salt Lake appointed president of the Utah Defense Lawyers in 2000, following clerkships with Chief Justice California Rising Star by the publication Super City in September 2005. An associate professor Association. He has been the chair of RQN’s William H. Rehnquist of the u.s. Supreme Court Lawyers. Thayne is an associate in Payne & Fears’ 2000 of history at byu, he is the director of the Center litigation section since and a member of and, earlier, with the Honorable Samuel A. Alito Jr., Las Vegas office, recently moving from their 2003 for Family History and Genealogy and also a board the firm’s executive committee since . Rick of the u.s. Court of Appeals for the Third Circuit. Orange County office. He was named a Rising member of the International Commission of and his wife, Joy, have six children and reside Star in insurance coverage. Accredited Genealogists. The award carries the in West Bountiful, Utah. class of 1998 designation of uga Fellow and is his second nation- Lance Lehnhof focuses on general corporate wide fellowship. His first fellowship was from class of 1992 William C. Duncan received a Distinguished and securities matters with the Stoel Rives’ the American Academy of Genealogy in 2003. Service Award at byu’s Homecoming in October corporate group. Prior to joining the firm, he was Jack Brannelly was quoted in a Daily Universe 2005. For the past year he has consulted with an associate with Sullivan & Cromwell llp in class of 1981 article on August 3, 2005, when eBay reached those working to pass state marriage amend- Washington, d.c. its 10th anniversary. He is featured as a byu law ments around the country. Additionally, William Glade A. Myler spoke graduate who gave up law to become an eBay has written or cowritten more than 30 major law class of 2003 Bradley Slade to byu law students middleman. He began his career as a lawyer review articles in legal periodicals. He has been November 2005 about and switched to eCommerce when he discovered executive director of the Marriage and Family Darrin K. Johns is serving in the United States his work with Homeland he could make more money—in less time— Law Research Grant at the J. Reuben Clark Law Air Force in Iraq in Baghdad, reviewing, preparing, Security in Nevada. than he ever could practicing law. In the first School and is director of the Marriage Law and presenting cases before the central criminal Employed with the Nevada Department of quarter of 2004, Jack was awarded the Platinum Foundation of Provo. court of Iraq. He appears in court in full body Justice as a senior deputy attorney general, PowerSeller distinction from eBay for reaching armor and wearing sidearms. Myler represents the Division of Emergency $30,000 per month in sales. class of 2000 Management, the Nevada Homeland Security Rob Yates practices in the Stoel Rives’ corporate Commission, the State Emergency Response Susan Peterson is the founder of The Women’s Richard Barnes, a Utah attorney, has accom- group, where he focuses on securities offerings Commission, the Nevada Earthquake Safety Group, which was selected as a 2005 Pathfinder plished something no other Utahn has done and general corporate matters. Prior to joining Council, the Nevada Hazard Mitigation Planning to be honored at this year’s American Express/ before. On August 6, 2005, he swam the English the law firm, he worked as an associate with Committee, and the Nevada Communications Athena Women in Business Conference. Channel. The swim from England to France Sullivan & Cromwell llp in Washington, d.c. Steering Committee. He also does some workers’ was completed in 16 hours and 43 minutes. compensation for the Department of Motor class of 1994 In order to be officially recognized by the class of 2005 Vehicles and the Department of Public Safety. Channel Swimming Association, swimmers Glade’s practice is mainly in administrative, per- Su J. Chon was named Pro Bono Lawyer of the are not allowed to wear a wet suit or anything Seth P. Hobby has joined Parsons Behle & sonnel, and contract law as well as workers’ com- Year at the 2005 Fall Forum Awards of the Utah that will aid in buoyancy or thermal protection. Latimer. He is a member of the litigation depart- pensation law. He just completed putting State Bar. Su works with the Salt Lake City law The only exception is that swimmers are allowed ment, where he concentrates his practice on together a bioterrorism legal preparedness table- firm of Taylor Adams Lowe & Hutchinson. to apply “channel grease” (a mixture of Vaseline commercial litigation, real estate litigation, bank- top exercise for the legal community in Nevada. and lanolin) before the swim. Richard has ruptcy, and personal injury. He graduated magna Bryant Siddoway has been named general been practicing law for five years and works as cum laude from the Law School, where he was class of 1983 counsel for Esso Exploration Angola (Block 15) an insurance defense attorney for Paul H. an editor of the Law Review and International Law Limited (eeal), an affiliate of ExxonMobil, located Matthews & Associates pc in Salt Lake City. and Management Review. In 2002 he graduated Joseph Ahuna and his family are featured in the in Luanda, Angola. ExxonMobil holds an equity with an llb degree, with honors, from Brunel October 2005 issue of Scouting magazine. His son interest in offshore projects in Angola with a John B. Fowles has joined Snell and Wilmer’s Salt University in West London. Seth was admitted is on the front cover of the magazine. recoverable resource potential of more than 11.5 Lake City office. He will concentrate his practice to the Utah State Bar in 2005.

clark memorandum 31 life in the law

Dialogue Between a Prosecutor and a Defense Attorney*

paul m. warner: So why am I a prosecutor? First of all, I love the facts. I don’t love the law. Does that make any sense to you? Well, if you’re a criminal lawyer, I hope it makes some sense to you. The law is a necessary evil for those of us who are in criminal law. We have to deal with it, but we are fact driven. We love the facts. I am a professional voyeur by nature and disposition. I am fascinated with the lives of the victims and the witnesses and the defendants involved in our criminal practice. I live vicariously through them. Truth truly is stranger than fic- tion. A new story comes into my office every day, and they are fascinating stories, and I love each one of them. I can’t imagine doing something that is less interesting. I know, and I never forget, that the power to prosecute is the power to destroy. Abraham Lincoln once said, nearly all men can stand adversity, but if you want to test a man’s character, give him power. ronald j. yengich: Sometimes somebody has to stand up to the government, even if they have no power. Because Paul is right—I don’t have power. The only power that I have is as a lawyer to stand up to gov- ernment agents and the people that are running the government, and sometimes say to them very simply or very complicatedly in a case, “Don’t you have any shame?” That is what I do. That is why I am a defense attorney. That is where it starts. warner: I’m a prosecutor because I love the Constitution of the United States. Some at this institution, including myself, believe the Constitution of the United States is divinely inspired. As a prosecutor, the bottom line is about doing the right thing. Now, doing the right thing is easy, but deter- mining the right thing to do is what is really hard. yengich: I believe the most righteous work that is done is to stand up for people who nobody else will. You see, I have a statement in my office: “To prosecute is human, to defend is divine.” I believe in my heart of hearts that I will be accused before the great white throne and Christ will be my advo- cate, and he will certainly be defending a guilty client. I know that about myself. I am a defense attorney because I know all of the errors I have committed in my life and the luck that I have to be standing in front of you honorable people after a life that has been full of mistakes and errors that could have put me in trouble. warner: When my grandchildren ask me, what did you do with your career, I want to tell them that I was on the front lines as a federal prosecutor. That I dealt with terrorism, that I dealt with drugs, that I dealt with gun violence, that I dealt with fraud and a multitude of other ills that hurt our society every day. I’m proud that I’ll be able to say that I was the U.S. attorney during 9-11, when there were many issues that we were dealing with, and that those things were important to me just as they were important to the rest of the country. Strangely and perhaps ironically, my good friend Ron and I have chosen opposite sides of the criminal justice system for precisely the same reason. We like to help people. I like that most of all. yengich: I’ll leave you with this. I believe it is the oath really of what a defense attorney ought to be. Walt Whitman said this. This is what you shall do: Love the earth and the sun and the animals. Despise riches. Give alms to everyone that asks. Stand up for the stupid and the crazy. Devote your income and labor to others. Hate tyrants. Have patience and indulgence toward the people. Take off your hat to nothing known or unknown or to any man or any number of men. Go freely with powerful uneducated persons and the young and mothers of families. Reexamine all that you have been told at school or in church or in any book, and dismiss whatever insults your soul.

* Excerpts from a one-hour discussion between Paul M. Warner, United States Attorney, District of Utah, and prominent defense attorney Ronald J. Yengich during the Orrin G. Hatch Distinguished Trial Lawyer Conference, November 18–19, 2005.

The Clark Memorandum welcomes the submission of short essays and anecdotes from its read- ers. Send your short article (750 words or less) for “Life in the Law” to [email protected]. 05-334 | 4/06 7,250 20210 Clark Memorandum J. Reuben Clark LawSociety J. Reuben Clark LawSchool BrighamYoungUniversity