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Spring 2000 Clark Memorandum: Spring 2000 J. Reuben Clark Law Society

J. Reuben Clark Law School

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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]. CM· Clark Memorandum J.Reuben Clark Law School Brigham Young University Just Lawyers Spring | 2000 · Cover Illustration: Michael Hogue contents 18 10

Paradise Found Morality and Joyce Janetski Professional Ethics 2 Elder Dallin H.Oaks

Just Lawyers Ralph R. Mabey

H. Reese Hansen, Dean Scott W. Cameron, Editor Joyce Janetski, Associate Editor 33 David Eliason, Art Director Robb Hanks, Photographer

The Clark Memorandum is published by the J. Reuben Portraits Clark Law Society and the Robert Payne J. Reuben Clark Law School, Brigham Young University. W. Cole Durham © Copyright 2000 by Winston Wilkinson Brigham Young University. All Rights Reserved. Richard Fitt

The mission of the J. Reuben Clark Law Society is to promote high moral and professional standards in the legal profes- sion and service to society. In fulfilling its mission, the Law Society is guided by the phi- 26 losophy, personal example, and values of its namesake, J. Reuben Clark, Jr. Those values include (1) public service, (2) loyalty to Is It Possible to the rule of law as exemplified Be a Lawyer by the Constitution, and (3) appreciation for the and a Christian? religious dimension in society and in a lawyer’s personal life. Brett Scharffs I’m honored that each of you would come. I am, after all, just a lawyer. Indeed, the title of my comments is “Just Lawyers”! >> I respect you. I respect you because you would come out on a Sunday evening after a long day. I know it’s a sacrifice. I respect you because of your attendance and study of the law at the J. Reuben Clark Law School. I have a vision of great things that will come from you through your studies and your careers. >> The theme of Discovery Week is “So we, being many, are one body in Christ, and every one members one of another” (Romans 12:5). >> Now, how might you say that in Latin? E pluribus unum. LAWTY ERS byU Ralph R. Mabey MICHAEL HOGUE MICHAEL JSILLUSTRATIONS BY

purpose is then to reconcile this unhappy seller with this unhappy buyer. Think about it. There is something profound in the purpose of our laws when seen in this context. Even the criminal laws are there to unify us in obedience to those laws and, in the event of a breach of the criminal law, to reconcile the offender with the rest of society, to reconcile that offender through enforcement of the law. Scripture recognizes that this is the purpose of the civil law. By “civil law,” I mean the secular law. E Pluribus Unum: the motto of the Doctrine and Covenants 134:6 says of Great Seal of the United States of our laws: “We believe that every man America. In other words, I submit to you should be honored in his station, rulers that the purpose of the laws of this land is and magistrates as such, being placed for to make of many one. This is not just the the protection of the innocent and the purpose of the Constitution but the pur- punishment of the guilty; and that to the pose of all of the laws of this land. laws all men show respect and deference, Take the example of two parties who as without them peace and harmony would are entering into a contract. They’ve got dif- be supplanted by anarchy and terror; human ferent interests. One wants to sell high, the laws being instituted for the express purpose other wants to buy low. One wants to sell of regulating our interests as individuals and for cash, the other wants to buy on terms. nations, between man and man; and divine The contract laws of this country laws given of heaven, prescribing rules on allow them to be brought together. Their spiritual concerns, for faith and worship, very different interests are brought both to be answered by man to his together in one agreement. They are uni- Maker” (emphasis added). fied and enabled to work together for What is meant here? Harmonize? Bring their separate interests—unified by the law. peace between human beings? The purpose of Now suppose they have a dispute and the law, according to scripture, is to unify us. one claims breach of the contract by the So now we come to the next question: other. The law is still there to forge a com- If the purpose of the civil law is to unify promise. It gives them something to com- us, what is the purpose of lawyers? Can it promise around, a chance for them to be that the purpose of lawyers is to unify reunify themselves based upon the princi- persons? To harmonize my client’s interests ples of the law. Or, if they’re unable to with your client’s interests so that we can reunify themselves, they can reconcile do a deal, so that you can go about your themselves to each other through the business? To reconcile our clients with enforcement of the law in court—whose their adversaries so that they can get on

4 Clark Memorandum “So we, being many, are one body in Christ, and

every one members one of another.”—ROMANS 12:5

with their lives? Is the purpose of lawyers I submit that it is important even to “And as pertaining to law of man, to unify humankind through adherence to the salvation of Zion, therefore, that we whatsoever is more or less than this, law and/or reconcile humankind through study the law. Indeed, the Lord said in cometh of evil. the operation of law? Doctrine and Covenants 93:53: “And, verily “I, the Lord God, make you free, Perhaps nobody has heard people say I say unto you, that it is my will that you therefore ye are free indeed; and the law that is the duty of lawyers. But it is the should hasten to translate my scriptures, also maketh you free. divine purpose of our laws—to unify us, and to obtain a knowledge of history, and “Nevertheless, when the wicked rule separate and different though we are. Then of countries, and of kingdoms, of laws of the people mourn. is the divine purpose of lawyers to take us, God and man, and all this for the salvation “Wherefore, honest men and wise separate and apart, and unify us under the of Zion. Amen” (emphasis added). men should be sought for diligently, and law or reconcile us with the law? From this I take it the Lord says that good men and wise men ye should I submit, brothers and sisters, that that for the salvation of Zion we should study observe to uphold; otherwise whatso- is the purpose of a lawyer: to unify us the law of man and become lawyers. ever is less than these cometh of evil” under the law or reconcile us with the law. Now I’m likening this scripture to me (Doctrine and Covenants 98:5–10). And only one of you laughed out loud. I and to you. But if Nephi could liken I take out of all of these scriptures would expect more of you to laugh out them, perhaps we all can. Out of that, I that, yes, maybe the Lord recognizes that loud. It seems counterintuitive to the way take a divine call to you and to me to it is our divine obligation to give effect to we picture lawyers. But I want you to study the law. the motto of the United States of America. think about this because I submit to you I believe then, with the purpose of As we—through lawyers, I submit— that it is true. lawyers in mind, that we must befriend gain power to organize our businesses, I believe with this purpose in mind— the law. We must seek for wise lawyers organize our human transactions and rela- that lawyers are to unify—the Lord said: and magistrates and persons who will tions, and organize the Church, we will be “We believe that men should appeal to rule on the law. You can tell that I’m preserved in and able to keep the laws of the civil law for redress of all wrongs referring to scripture. “And that law God. In other words, now I’m ready to take and grievances, where personal abuse is of the land which is constitutional . . . one further step. The step I’m going to take inflicted or the right of property or belongs to all mankind. . . . I . . . justify is to suggest that by lawyers acting in their character infringed, where such laws you . . . in befriending that law.” It is divine calling to unify people under the law, exist as will protect the same [and such lawyers who most befriend the law. they are partially fulfilling the divine law appeals are made by lawyers]; but we “I, the Lord God, make you free, there- stated in Romans, that we should each believe that all men are justified in fore ye are free indeed; and the law also unify ourselves together under Christ. defending themselves, their friends, and maketh you free.” That reference has to You may not want to take that leap property, and the government, from the be to secular law, I believe. with me. But let me read from Doctrine unlawful assaults and encroachments of In their entirety these verses read: and Covenants 44:1–5: all persons in times of exigency, where “And that law of the land which is “Behold, thus saith the Lord unto you immediate appeal cannot be made to the constitutional, supporting that principle my servants, it is expedient in me that the laws, and relief afforded” (Doctrine and of freedom in maintaining rights and priv- elders of my church should be called Covenants 134:11). ileges, belongs to all mankind, and is justi- together, from the east and from the west, To put it another way, no law enforces fiable before me. and from the north and from the south, itself, no law interprets itself. If the “Therefore, I, the Lord, justify you, by letter or some other way. purpose of the law is e pluribus unum, and your brethren of my church, in “And it shall come to pass, that inas- then the purpose of a lawyer is to effect befriending that law which is the constitu- much as they are faithful, and exercise e pluribus unum. tional law of the land; faith in me, I will pour out my Spirit upon

Clark Memorandum 5 the case, that’s all well and good. But I have to make a living practicing law, and some of you may have to, too. Can we practice law as the Lord has outlined that we should practice the law, by unifying one with another, by reconcil- ing our clients with others? I think that is an important question. Could we follow the example of Christ? Isn’t He our lawyer with the Father? Don’t we read in Jacob 3:1 that “He will console you in your afflictions, He will plead your cause, and send down justice”? “But behold, I, Jacob, would speak unto you that are pure in heart. Look unto God with firmness of mind, and pray unto him with exceeding faith, and he will console you in your afflic- tions, and he will plead your cause, and send down justice upon those who seek your destruction.” We can console and plead. We can’t send down justice, but we can try to go get justice. I think that when it comes down to the practice of law, we can be most suc- cessful if we fulfill our calling to unify and reconcile people with each other and the law. We need to seek common ground, to narrow differences. A few years ago I went to a dinner with my legal adversaries. I represented a client that was missing more than a billion dollars and couldn’t find it under any rock or under any bed. The bad guys sat across the table at dinner; we had fought for a couple of years. All of a sudden we reached a com- promise—and it had a spiritual undertone to it. Opposing counsel spoke later of the occasion as a dramatic, unexpected, and them in the day that they assemble them- enabled to keep that divine law that Paul crucial reconciliation and unification. selves together. spoke about in Romans, it will be by I submit to you that settlements under “And it shall come to pass that they organizing yourselves according to the the law are part of our duty, our divine shall go forth into the regions round about, laws of man. duty in unifying and narrowing the and preach repentance unto the people. I believe we can see the fulfillment of ground. If we do that, we reduce the trans- “And many shall be converted, inso- divine purposes by the unifying action of action costs greatly. We reduce the psychic much that ye shall obtain power to organize lawyers under the law. We can see Professor costs, too, and we allow people to go for- yourselves according to the laws of man. Wardle, who is here tonight, and other pro- ward, to move on. “That your enemies may not have fessors at this university and other legal I conducted a mediation in a hard- power over you; that you may be preserved powers at work in the world, attempting to fought lawsuit a few weeks ago. These par- in all things; that you may be enabled to keep unify the world through adherence to just ties settled after a day’s mediation. They my laws; that every bond may be broken law—and thereby opening the world and were apart millions at the beginning of the wherewith the enemy seeketh to destroy her peoples to the gospel. day (several hundreds of percent in magni- my people” (emphasis added). I submit that there is a logical and tude), and both sides expressed mistrust There you have it. I submit that the scriptural basis for the progression that and pessimism. But they settled. One of the Lord is saying that if you are going to be I’ve proposed to you this evening. If that’s parties said to me, “You know, I didn’t real-

6 Clark Memorandum ize that my adversary was a pretty good guy. I could have picked up the phone three years ago and we could have settled this.” There is power in narrowing issues, in finding common ground. There is great lawyering in that effort. A few years ago I was involved in a case where hundreds of millions had been lost, rather publicly, by a rather public family. I ended up mediating a dispute between the family and the party who was suing the family and had gone to the trou- ble of filing rico charges against them. It Another way we can unify is by seek- was a nasty dustup. ing just results, seeking a just reconcilia- We sat together for three or four days. tion by enforcing the law. You know, if One night at about 8 or 9 or 10 o’clock, I you’ve got the power and you’ve got the was thinking, “This is going nowhere. I money and you’ve got the people in your should have broken things off and gone to law firm, you can pulverize the other guy. the baseball game.” But the parties began But J. Reuben Clark, Jr., who served talking together without me and without decades as an international lawyer before if you can reach a fair settlement, that set- lawyers. By 7:00 a.m. the next morning, we his call to the First Presidency, said, “Even tlement is likely to stick. It’s likely to be had a settlement. in war, there should be some things that enforced. Those parties are likely to be able Well, I asked myself, “What are all we human beings would not do to their fel- to do business with each other again in the lawyers doing?” These parties got together lows.” He opposed one-sided settlements future. They’re likely to get on with their and settled it themselves after years and or treaties based upon one party’s over- lives. Justice is more likely to be done. much acrimony. whelming firepower.1 He said, “Guns and If it’s just guns and bayonets, then it’s You know, there is a force, a power, bayonets will in the future as in the past going to be expensive. It’s going to go on in narrowing differences, and there’s bring truces, long or short, but never a long time, and any peace achieved may sometimes a religious component in it. peace that endures. I believe that moral well later fall out of bed. It feels right. force is far more potent than physical So I believe also in this principle: Recently a respected trial judge assisted force in international relations.”2 Fulfilling a lawyer’s divine calling makes the parties in a large and disputatious case Now just a minute here. “I believe that good sense in the practice of law. to reach a global settlement. This judge, a moral force is far more potent than physi- Now what about respecting diversity, devout Catholic, assesses and reassesses his cal force in international relations,” said J. a fundamental precept of Discovery Week? life at the end of each day. In so doing, he Reuben Clark, Jr. The moral force of inter- E pluribus unum. The idea in Romans concluded that participating in this settle- national law and international opinion may is not that we are homogenized—the idea ment was probably his finest day on the unify people better and forge peace and is out of many, one. It is that the arm and bench—ever—exceeding the many years of truces better than guns and bayonets. the ankle and the elbow and the eye can trials and adjudications at which he had There is some truth to this, I submit, be unified in purpose. So it is in the prac- presided and which he had decided. in our practice of law. That truth is that tice of law: We must work together with

Clark Memorandum 7 The arm and the ankle and the elbow and the eye can be unified in purpose. So it is in the practice of law.

diverse peoples in bringing about unity. undersecretary of state, as the chief legal That is our calling. officer for the Department of State, and in You need go no further than the seller many other assignments, as well as ambas- and the buyer. They’ve got very diverse sador to Mexico. He knew the interna- interests. Your job is to allow them to do tional law, and he said the way to forge the business they want to do unified under agreement is peaceably, with good feeling, the umbrella of that law, in their diversity. through questions discussed with candor, Diversity is crucial to entrepreneurial mutual appreciation, and accommodation success. It’s crucial to the energy of this of each other’s point of view, through desire country. As we unify, we must respect to work out fair and equitable justice. diversity. What happened when he left the As President J. Reuben Clark began ambassadorship? This is what the Mexico his assignment as ambassador to Mexico, City Excelsior editorialized: Ambassador he adopted this credo: “There are no ques- Clark had “distinguished himself by a tions arising between nations which may virtue that is not common among diplo- not be adjusted peaceably and in good mats: that of not putting himself forward, feeling, as well as with reciprocal advan- of not calling attention to himself, of tage, if those questions are discussed with observing a prudent reserve that has won kindly candor, with a mutual appreciation him the esteem of all social classes in of and accommodation to the point of Mexico.”4 He practiced what he intended view of each by the other, and with to practice. patience and a desire to work out fair and There is, I think, a great lesson in that: equitable justice.”3 have respect for your adversary. How often When he was ambassador to Mexico, are we or the other side painted as Satan President Clark filled one of the most simply because we play adversarial roles in important ambassadorships in the world. our judicial system? It makes it very diffi- There were momentous disputes between cult to unify our differing interests. the u.s. and Mexico. There were upheavals There has been and is discrimination and internal armed conflicts and boundary in this country. A friend told me of a kid disputes with us. There were calls for who went to work at a great Los Angeles armed u.s. intervention. law firm not too many years ago and real- J. Reuben Clark served seven presidents ized that he was making a thousand dol- of the United States as their lawyer, as lars less than the others in his class. He

8 Clark Memorandum week.” Do you feel the condescension in bucks an hour. What’s the answer?” “I that? We have got to be careful about what don’t know the answer.” Learn not to take we say, even when we have good intentions. credit for every deal. Just get it done even The J. Reuben Clark Law Society though you’re thinking, “I’ve got to be out stands for these principles of J. Reuben there self-promoting myself or I’ll starve Clark, these principles of e pluribus unum, to death.” Your work and your service will of unifying the world under law, whether promote you. as graduates of this law school or any I’ll close with scriptural proof of other law school, whether as members of this paradox, expressed in Helaman 3:35: this faith or of any other faith. “Nevertheless they did fast and pray oft, I was moved when the J. Reuben and did wax stronger and stronger in their Clark Law Society in Salt Lake City pre- humility, and firmer and firmer in the faith sented its annual award to Nick Colessides of Christ, unto the filling their souls with of the Greek community. The Greek joy and consolation, yea, even to the puri- Orthodox clergy appeared at that lun- fying and the sanctification of their hearts, cheon in the Joseph Smith Building, hon- which sanctification cometh because of oring him and honoring us. Lawyering is their yielding their hearts unto God.” Now building these bridges. That is what the J. there’s the paradox, and I think it applies Reuben Clark Law Society is all about. to us temporally as well as spiritually. That is its mission. And in Ether 12:27 we read, “And if I have one other radical suggestion for men come unto me I will show unto them you on the practice of law. This time you their weakness. I give unto men weakness went to the senior partner and com- can all laugh out loud. You will be success- that they may be humble; and my grace is plained. The senior partner said without ful and you will be living the scriptural sufficient for all men that humble them- apology, “We can pay you less. You’re admonitions for lawyers and the law if selves before me; for if they humble them- Jewish. Where else are you going to get a you will practice the paradox of humility. selves before me, and have faith in me, job for more?” You will be smarter, better, and more suc- then will I make weak things become A professor friend of mine who is pre- cessful if you are humble. It makes you strong unto them.” eminent in her field tells of standing up for happier. Someone said, “Too many humble We become strong through the humil- a client in court for the first time. The people are proud of it.” So I can’t speak for ity to pray, through the humility to let the judge looked over his glasses and said to myself. But I speak for you, brothers and Lord know that we’re imperfect, and her client, not realizing that she might sisters. (In general priesthood meeting last through the humility of repentance. We have a woman lawyer, “Don’t you have a October, Bishop Richard C. Edgley spoke become strong in the practice of law lawyer?” Well, that judge was very apolo- of the paradox or irony that strength through the humility to learn from the getic. But it may have been the first time comes from humility.) other person, to listen to others, even to he had seen a woman lawyer—and it was The way you become the best trial adversaries, and to change ourselves for not many years ago. lawyer you can is with the humility to the better. A person of color, a student of mine, learn from what that witness tells you, to In conclusion, I submit this: It isn’t reminded me that a few years ago, to learn how that other attorney does it. that there is a religious life we live and a travel in this great country, his family had You may say, “Michael Jordan, he’s lawyer’s life we live and that we’d better to take their food with them and sleep in not humble. He says, ‘Give me the ball.’” try to reconcile them as best we can. No, the car. Discrimination is unfortunately And that’s what a good lawyer says: “Give I’m proposing something maybe a little still with us. me the ball.” more dramatic: that they are the same There are strong differences among us. How did Michael Jordan come to life, that your calling as a lawyer under Our job is to respect those with whom and want to get the ball and to know what to e pluribus unum is part of your calling as a against whom and for whom we practice do with it? He did it through the humility disciple of Christ under Romans 12:5. I say law and to forge unity. That means no eth- of working harder than others, of learning this in the name of Jesus Christ. Amen. nic or cultural jokes, brothers and sisters. everything about his opponents, of learn- notes That means that even if she tells a joke on ing every move from the other guy and herself, I will not repeat that joke. If I tell a employing it. There is the paradox in 1 Edwin Brown Firmage & Christopher L. Blakesley, J.Reuben joke about Mormons, that’s fine. If you tell humility. Clark, Jr.: Law and International Order, 13 byu Studies 273 a joke about Mormons, that’s not so fine You will be a smarter lawyer, a happier (1973), p. 81. with me. It means not saying things like, lawyer, and a better lawyer if you—if we— 2 Id., at 68. “Yeah, some of my best friends are can learn that paradox. Learn to say to the 3 Frank W. Fox, J. Reuben Clark, The Public Years (1980), at 549. Mormons. I took a Mormon to lunch last client who says, “You’re charging me 500 4 Id, at 583.

Clark Memorandum 9 Morality and

The following speech was presented at the J. Reuben Clark Law School Founders Day dinner on September 2, 1999. Professional Ethics by Elder Dallin H. Oaks

Mydear brothers and sisters, I feel very privileged to have been invited to address this Founders Day observance of byu’s J. Reuben Clark Law School.

Photography by robb hanks We have no diffidence in talking about religious commitment at Brigham Young University, and we will have none in the J.Reuben Clark Law School. Religious com- mitment, religious values, and concern with ethics and morality are part of the reason for this school’s existence, and will be in the atmosphere of its study. As President Marion G. Romney . . . noted in our opening cere- monies, this law school was established to pro- My interest in doing vide an institution in which students could “obtain a knowledge of the laws of man in the light of the laws of God.” If it is true that law students cannot be this is obvious. taught ethics and morality in law school because those value commitments are fixed Less obvious is how I have found time to before they enroll, then that fact, an excuse prepare these remarks. It could not have for other law schools, becomes a unique been done without the valuable research opportunity for this one. Most of the students assistance of Pamela B. Hunsaker and and faculty at this law school are rooted in Marianne M. Jennings, as well as a helpful the same religious tradition, and that tradi- reading by Dean H. Reese Hansen and his tion more than any other fact accounts for associates. I am grateful to each of them their choosing this setting to pursue their pro- and show my gratitude by the obvious dis- fessional goals. The common ideals, princi- claimer: They are not responsible for what ples, and commitments of that tradition I have done with the material and sugges- should make this institution superbly effec- tions they provided me. tive in strengthening the moral, ethical, and In preparing for these remarks, I professional foundations that compose the reread what I said over 20 years ago at the finest heritage of our profession. dedication of the building that houses the Because of our reliance on these com- J. Reuben Clark Law School. I used that mon ideals, principles, and commitments, occasion to add what I called “one addi- the new building being dedicated today tional charge” to the formal charges given should . . . be looked on as . . . a monument to the Law School at the ceremony com- to our determination that the fairness, memorating its opening two years earlier. decency, integrity, virtue, and love of truth This additional charge concerned what I taught at the hearthstones of thousands of called “the J. Reuben Clark Law School’s homes throughout the land shall have a con- special challenges and opportunities for centrated impact on the legal profession and leadership in teaching ethics, morality, the nation’s laws. It is in these homes, by and professional responsibility” (“Ethics, God-fearing parents, that the young men Morality and Professional Responsibility,” and women who will be our graduates have Proceedings at the Convocation and already gained that intangible moral instinct Dedication of the J. Reuben Clark Law that will bear its fruits in the legislative School, Brigham Young University, Sept. 5, halls, the courtrooms, the offices, and other 1975, pp. 27–28). private and public places in the years to I approached this subject from the come. [Id., 35–36] standpoint of what I called “the deeper values from which we obtain our commit- As I look back on that occasion, I ments to law, morality, ethics, and profes- feel to reaffirm the substance of what I sional responsibility” (ibid.). I asserted that said over 20 years ago, but I wish to use “the J. Reuben Clark Law School has the different words to express it. The mean- most promising ideals and circumstances ings of words change with time, and so to be a leader in this important area” (id., does the emphasis we wish to give to var- 34–35). I presented my case for that asser- ious elements of our charge to excel tion in these words: in this vital area.

12 Clark Memorandum My objective in these remarks is not years ago by Professor John J. Flynn, now So what? we might ask. Flynn explains: to discuss the details of the relationship Hugh B. Brown Professor of Law at the between personal morality and profes- University of College of Law. His [I]n failing to make the ethical limita- sional ethics or the application of either commentary, written in the 1970s fol- tions of the Code more explicit, the Code morality or ethics in the multitude of lowing issuance of the aba’s Code of may, in fact, be counterproductive to devel- complex circumstances encountered in the Professional Responsibility, was titled oping and reinforcing an ethical profession of practice of law. The J. Reuben Clark Law “Professional Ethics and the Lawyer’s the highest order. By ignoring the lawyer’s School has ample faculty resources for Duty to Self” (Washington University Law relation to himself and instead of emphasiz- that task, far beyond my experience and Quarterly, 1976:429–436). ing only the lawyer’s relation to others and abilities even to supplement. What I can Flynn’s thesis was that “although the profession, the Code allows lawyers to try to do is to view these forests from afar much attention has been paid to immoral rationalize many forms of conduct which and suggest some general limits or broad conduct and the means to prevent it, the would otherwise transgress their duties to self distinctions to be made, within which our greater hazard to lawyers generally is that and, consequently, widely held moral values. sensitive experts will outline the princi- of amoral conduct” (id., 29). He explains: The emphasis on duty to others leads natu- ples, paint the appropriate patterns, and rally and dangerously to the “hired-gun” fill in the details. The conventional distinction between model for deciding ethical questions. The The morality to which I referred in our amorality and immorality is particularly rules that define immorality may reinforce Law School dedication—morality based on cogent for the lawyer. Amoral conduct implies the dangers of amorality, and allow an attor- religious values, in our case—is the founda- that the actor has no standard of right and ney to justify almost any conduct that pro- tion undergirding all of our conduct, per- wrong by which to judge conduct. . . . Immoral motes the interests of the client. [Id., 436] sonal and professional. Professional ethics conduct, on the other hand, implies that the must be grounded upon our personal actor is aware of moral standards but has con- These words of Professor Flynn chal- moral foundation and, whatever its source, sciously chosen to violate them. [Id., 429–30] lenged me to think about the contrast should not be in conflict with it. between a code that defines professional A moral foundation is, of course, For reasons having to do with the “morality” on the one hand, and the broader than the structure of professional lawyer’s role in the adversary system, lawyer’s moral foundation that provides ethics that should be built upon it. Stated which I will not elaborate here, Flynn con- the basis for his or her personal morality otherwise, laws and rules other than pro- cludes that “the legal profession, while no (or amorality) on the other. Of course, we fessional ethics are also built upon our more or less vulnerable to immorality than who are trained as advocates can defend moral foundations. There are innumerable others, seems to be in considerable danger the Code’s explicit decision to limit its examples of personal conduct that violate of a profound amorality” (id., 434). subject matter to professional responsibili- commandments based on our religious/ That conclusion may or may not be ties. But we could also make a case for the moral foundations that are not prohibited correct. Either way, what stimulated me proposition that a code of professional by the professional codes regulating the most were Professor Flynn’s comments responsibility should not be entirely silent conduct of lawyers. For Latter-day Saints, about the role of the Code of Professional about the existence of other responsibili- these examples include such deviations Responsibility in all of this. He begins: ties. Its failure to put the professional as violating temple covenants, breaking responsibilities it specifies into the larger the Sabbath, and viewing pornography. The [C]ode assumes that universal ethical context of public or personal morality Similarly, we look to commandments and responsibilities for lawyers are to be defined in could be understood as implying that the principles based on our moral founda- terms of the lawyer’s duties to the profession, his professional code is a comprehensive list tion—not to the rules of professional client, the courts, and society at large. [Id., 434] of all of the responsibilities of lawyers and responsibility—to regulate our relation- thus, as Flynn says, “allow an attorney to ships with our spouses, our children, our The “fundamental difficulty of the justify almost any conduct that promotes extended families, and our fellowmen. Our Code,” he maintains, is that while it the interest of the client” (id., 436). personal moral foundation is also the “begins on the correct path by defining the Professor Flynn’s writings on this sub- source that regulates our relationships with roles lawyers must play in a legal system . . . ject are basically a voice from the 1970s. the various organizations—religious, chari- it simply does not go far enough” (id., Other voices have taken up the same cry table, and community—through which we 434–35). I quote: in the two decades since then. Writing in render the service obligations imposed the Catholic Lawyer, 32:337 (1989), Simon Y. upon us by those foundation principles. The Code prescribes duties the lawyer Balian, a member of St. John’s University’s I was sensitized to the importance of owes to others—to society, to his profession, to St. Thomas More Institute for Legal distinguishing between what I have called his client—but says nothing of the lawyer’s duty Research, maintains that the legal profes- the “moral foundation” and the profes- to self. The internal guidelines that must limit sion’s “morally neutral” codified rules have sional ethics “structure” by my recent one’s obedience to orders or external duties are the effect of providing an “ethical code” to reading of something written almost 25 unmentioned and unexamined. [Id., 435–36] govern professional actions, in contrast to

Clark Memorandum 13 the general moral framework that governs defendant’s lawyer thought professional The potential conflict between per- a lawyer’s actions in his or her personal ethics forbade notifying the adversary. sonal morality and professional ethics life. Balian asserts that this dual system of Defense counsel proceeded to settle the continued to be debated in the 1990s. My roles encourages members of the legal pro- case (for a relatively insignificant sum) and first example is from Professor Joseph fession to “leave behind their common neither before nor after the settlement Allegretti of Creighton University Law moral framework and enclose themselves advised David or his father or their lawyer School. His book The Lawyer’s Calling [in their professional activities] in a world of the threat to David’s life. There is your (Mahwa, NJ: Paulist Press, 1996) praises Sir which is at best amoral” (id., 337–38). example of conflict between morality and Thomas More as “an authentic Christian Balian calls this concept “dual moral- professional ethics. Fortunately, a trial hero” (id., 118) and decries lawyers “whose ity” or “role-differentiated behavior” (id., judge later vacated the settlement agree- sense of moral obligation comes not from 3446). He concludes: ment on the basis that the defense lawyer’s themselves and their conscience but from failure to make full disclosure to the court what others tell them—their profession, The concept of dual morality for their client, their codes of conduct” professionals suggests a false dichotomy (id., 119). Allegretti explains: in the life of a person. . . . The idea of [a separate morality for the profes- One of the great temptations for sional] role involves both self-decep- lawyers is to see ourselves in the third tion and abdication from responsibility person, as the mere instrument of our and invites immoral conduct. . . .The Citizens client. If we do so, of course, moral inevitable result of the dominance issues disappear because we compart- which the principle of separate ethics mentalize our lives and relegate our holds over the legal profession is perva- do not like to be told moral and religious values to the pri- sive moral failure. [Id., 353] vate realm of family and friends. that some special group There is never any risk of having to Here I pause to thank the say “no” to a client or the system spouses of lawyers and other non- because only a moral agent, an I, can lawyer guests whose patience must has exclusive rules that stand for something—a lawyer in the have been tried by the past 10 min- third person has nothing to stand up utes of talk about obscure concepts for or against. that can only be of interest to excuse them from the We see in Thomas More someone lawyers and not to all of them. In who was willing to be an I, to see him- appreciation for your patience, I self in the first person. More knew that will now try to clarify the subject of civilized conduct that what he said and did mattered, that his “dual morality” or conflict between soul was implicated in his work. While moral requirements and professional is expected of others. the precise issue—the taking of an ethics by giving an example from a oath—may seem quaint and far-fetched case decided by the Minnesota to us, the larger question of what we Supreme Court. stand for and whom we owe allegiance David Spaulding, a teenager, was when the parties applied for approval of a to is as contemporary as this morning’s deposi- injured in an auto accident. His father settlement in the case of a minor fell short tion or opinion letter. [Id., 119] sued for the damages the defendant caused of the lawyer’s obligation as an officer to his minor son. The injured boy was of the court. The Minnesota Supreme As a second voice from the current examined by his own doctor and also by Court unanimously affirmed. (Spaulding v. decade, I offer the words of our colleague the defendant’s doctor. David’s doctor did Zimmerman, 116 n.w. 2d 704, Minn., 1962.) Marianne M. Jennings, professor of legal not find anything unusual in the boy’s This homely example from a routine and ethical studies at Arizona State chest, but the defendant’s doctor advised damage case illustrates one of the public’s University’s College of Business. Her the defendant’s lawyer that David now grievances against the legal profession. If a recent article in the Wisconsin Law Review, had an aneurysm in his aorta, which could lawyer fails to take an action the public con- 1996:1223, as you would expect, is a lively rupture at any time and cause his death. siders required by common morality and and persuasive criticism of the way profes- The lawyers for the defendant realized then uses legal rules or lawyer ethics to jus- sional ethics can deaden our sense of per- that neither David nor his father nor their tify his failure, this alienates the public from sonal morality. She declares: lawyers were aware of David’s aneurysm lawyers. Citizens in this country do not like and the lethal threat it posed if not cor- to be told that some special group has What has occurred in the legal profession rected. Common morality would seem to exclusive rules that excuse them from the is typical of any organization or society that require notification of this danger, but the civilized conduct that is expected of others. becomes addicted to codes or statements of

Clark Memorandum 15 positive law. Rules are made, interpreted and erned by their religious/moral foundation oped?” (“Bridges,” Clark Memorandum, Fall modified on a regular basis to fit situations in all of their professional activities. 1988, p. 13). Some who are present here this with complex nuances. Once the complexity In 1988 I spoke to a fireside of students evening will remember that I then used the becomes overwhelming, the original purpose and faculty of the Law School. I referred story of The Bridge over the River Kwai to of the rules is lost or ignored. to Cornell Dean Roger Crampton’s article illustrate my concerns “for the fundamental Lawyers are practicing craft ethics. If the “The Ordinary Religion of the Law School integrity of those who study and prac- code, rules, or an opinion sanction an activ- Classroom,” 29 J. Legal Educ. 247 (1978), in tice law” (id., 13). I concluded my summary ity, we separate our own consciences from which he discussed the value assumptions with these words: the behavior, label the behavior ethical, and in the law school classroom. As I look march forward with the full confidence of back on the three value assumptions I I do not know of a better example of the Professor Harold Hill. [Id., 1226] quoted on that occasion, I realize that glories of a technical job well done—crafts- each one of them is illustrative of the the- manship in the face of enormous adversity— I don’t like to quote footnotes, but sis I pursue this evening—that our profes- and the hazards of ignoring whose cause you Jenning’s footnote referenced to the men- sional codes and rules are only a partial are serving by your blind craftsmanship— tion of Professor Harold Hill is irresistible: list of the behavioral requirements that than this homely little adventure play. . . . All must guide men and women in the prac- of this has a lot to do with legal ethics. It has a You may remember that Professor Hill, tice of law. lot to do with morality. It has a lot to do with of The Music Man, was a graduate of the With the benefit of hindsight, I see what I hope is a suitable antidote for the wor- Gary Indiana Conservatory of Music and that Crampton’s questions clearly illustrate thy but distorting concentration on crafts- hornswoggled the entire town of River City, that our professional conduct must be manship that is part of what Dean Crampton Iowa, into supporting a marching band, its based on a moral foundation drawn from called the “ordinary religion of the law school uniforms, and its instruments. . . . Professor values larger than the legal profession but classroom.” [Id., 14] Hill was a flimflam man who couldn’t of profound importance to it. Without play a note. . . . [He] would have been a great reliance on this moral foundation, a lawyer I then quoted Alexander Solzhenitsyn’s lawyer. The man committed fraud in the can be ethical (or moral) in terms of notable commencement address delivered inducement, but still captured a town’s heart adherence to the narrow requirements of at Harvard University in June 1978. As I as well as that of Marian, the librarian. We professional ethics, but amoral in those have reread those words, I think they are still had trouble in River City, but no one relationships and that conduct not regu- also an excellent illustration of the dif- ever realized it. [Ibid.] lated by professional codes or rules. ference between the formal structure of Crampton’s list of the value assump- professional ethics and the important A few pages later Jennings writes: tions of the law school classroom include underlying moral foundation. these three: (1) Under the “instrumental Solzhenitsyn described our Western Slowly but surely, with this fatal combi- approach to law and lawyering,” “the law society as wholly dependent upon laws. nation of the newly defined role of winning is nothing more than an instrument for for the advocate and reliance solely on writ- achieving” the goals of the client, and the Any conflict is solved according to the ten rules to govern conduct and choices, “lawyer need not be concerned with . . . letter of the law and this is considered to be lawyers have shaped a profession governed by the value questions associated with them” the ultimate solution. If one is right from a rules and devoid of morality. If it ain’t writ- because the lawyer is simply “the skilled legal point of view, nothing more is required, ten down, it can and will be done. The motto craftsman who works out the means by nobody may mention that one could still of the trial as a quest for the truth has become which predetermined goals are achieved.” not be entirely right. . . . I have spent my life a quest for a verdict. [Id., 1238] (2) The skepticism encouraged in legal under a communist regime and I will tell you study “inclines the student toward con- that a society without any objective legal scale Enlightened by the insights and advo- cluding that principles are meaningless is a terrible one indeed. But a society with no cacy of Flynn, Balian, Allegretti, and and values are relative.” (3) The steady diet other scale but the legal one is not quite wor- Jennings, I have reexamined some prior of borderline cases served up in the law thy of man either. A society which is based on ethical preachments I have given to the school classroom, with relatively little the letter of the law and never reaches any students and alumni of the J. Reuben attention to routine legal problems of easy higher is taking very scarce advantage of the Clark Law School. In doing so I have real- solution, encourages students “to general- high level of human possibilities (Alexander ized that, whatever I have called it, what I ize that there are no right answers, just Solzhenitsyn, “A World Split Apart,” com- have talked about on almost every occa- winning arguments.” mencement address delivered at Harvard sion I have addressed this audience is the After quoting these questions, I asked: University, June 8, 1978). [Id., 14–15] personal moral foundation of lawyers. In “Does training in the law dull one’s sense of effect, I have said that whatever the con- justice or one’s moral and ethical sensibili- Similarly, some of you may be familiar tent of professional ethics, and even if it is ties? Does it matter what clients and causes with my book The Lord’s Way (1991). In the silent on a subject, lawyers should be gov- we serve with the skills that we have devel- chapter on litigation, I discussed the princi-

16 Clark Memorandum ples that seem to me to govern whether a sonal morality was not a sufficient guide Strassberg treats this question, asking, Latter-day Saint or any other Christian for lawyers to a point where it may not be “How would a bar committee or state should participate in litigation as a client. a permissible one. supreme court respond to a clear, but Those principles are obviously based on the Thus far I have cited only those pro- morally desirable, violation of the ethical foundations of Christian morality, rather fessional voices who deplore so-called dual rules?” (id., 903). Happily, she observes: than on the more technical and more per- morality. I have read that some lawyers try missive provisions on the same subject in to justify one moral standard for profes- An analysis of bar association advisory codifications of professional ethics. sional activities and another for the opinion shows that adjudicators do flex and I wish to share one more voice lawyer’s personal life. I doubt that this bend the [professional] rules in order to from the 1990s, that of Professor Maura idea of dual morality is advocated or accommodate moral concerns. Advisory opin- Strassberg, assistant professor of law at defended as a matter of principle. Rather, ions on the confidentiality of client suicide Drake University, writing in the Iowa Law it seems to me to be a rationalization— threats and on information on child abuse Review (80 Iowa L. Rev. 901 [1995]). In her a seeming justification for behavior con- have avoided formalism. Instead, these opin- criticism of what she calls the “modern trary to common morality by persons who ions reveal an unusually broad reading of articulation of legal ethics as positive law, either lack a moral foundation or choose language or even an unexplained deviation in the form of governmentally approved to ignore their moral foundation when it from the positive language of the rules alto- ethical rules” (id., 901), Strassberg draws interferes with their quest for power, pres- gether. This non-formalistic approach may be freely on philosophical writings and his- tige, or pecuniary gain. better understood as a moderation of the con- torical allusions. As to the latter, she cites In my view, the difficult issue for temporary conversation of legal ethics into three instances where morally repugnant lawyers is not whether professional con- positive law. [Id., 905] but legally required decisions were ren- duct is governed by moral standards as dered by well-meaning judges who well as professional ethics. Clearly it is. I fervently hope that leniency will be “viewed law and morality as analytically The real issue arises when our personal followed wherever morally committed distinct” (id., 901). Her three illustrations religious/moral standards forbid conduct lawyers violate legal ethics in direct oppo- are pre–Civil War u.s. decisions applying that is required by professional rules or sition to clear and compelling moral rules the fugitive slave law, Nazi Germany, and by our employer or where our personal to the contrary. apartheid South Africa. standards require conduct that is forbid- The prophet Micah seems to have Strassberg also discusses the origin den by professional rules or by our been commenting on a similar contrast of legal professional ethics. She says that employer. In other words, the difficult between formal roles and underlying during the 19th century the legal profes- issue arises when there is a clear conflict moral principles when he declared to sion’s view of legal ethics was “inextricably between the foundation moral standard ancient Israel: connected to morality” (id., 906). (That and the professional rule or direction. is the connection I am advocating a cen- (Parenthetically, this is not an issue for Wherewith shall I come before the Lord, tury later.) In 1905 the American Bar those who advocate dual morality. All and bow myself before the high God? shall I Association charged a committee of promi- they ask is whether the conduct is profes- come before him with burnt offerings, with nent attorneys to frame a code of ethics. In sional and therefore governed by the pro- calves of a year old? context it appears that this code of ethics fessional rule, or personal and therefore Will the Lord be pleased with thousands was intended to supplement the moral governed by personal morality. The diffi- of rams, or with ten thousands of rivers of oil? standards that were previously the only cult conflict only occurs for those like shall I give my firstborn for my transgression, restraint on a lawyer’s professional con- us who believe that personal morality the fruit of my body for the sin of my soul? duct. The resulting Canons, adopted by the should trump professional rules.) He hath shewed thee, O man, what is aba in 1908, were not cast in the form of Note also that the difficult issue I have good; and what doth the Lord require of thee, legally enforceable rules. described does not arise unless the conflict but to do justly, and to love mercy, and to walk Looking back from nearly a century between personal morality and profes- humbly with thy God? [Micah 6:6–8] later, we see that the Code of Professional sional ethics is clear. For example, where Responsibility and the successor Model professional ethics require particular con- I pray that such fundamental moral Rules of Professional Conduct, as their duct and moral standards are silent or principles will ever be your ultimate names suggest, have been written like obscure on the subject, we have an easy guide in resolving all of the multitude of statutes to define the lawyer’s role and to case. The same is true when personal moral/ethical questions that confront you specify rules for the lawyer’s behavior. So morality forbids particular behavior, and in your employment and practice of law. viewed, they constitute positive law in the ethical rule is obscure. their own right and have the potential to A clear conflict raises the interesting preempt moral rules to the contrary. From question of how the institutions that dis- Elder Dallin H. Oaks is a member of the this I conclude that in less than a century cipline lawyers will react to a conflict Quorum of the Twelve Apostles of The we have moved from the point where per- between personal moral and legal ethics. Church of Jesus Christ of Latter-day Saints.

Clark Memorandum 17 by Joyce Janetski PARADISE

ˆ At home with sharks, Ryan Tibbitts and other team members relax in the waters of the South Pacific.

START BITTER FEBRUARY WINDS AND INCESSANT PHONE CALLS WERE HALF A WORLD AWAY TWO JRCLS GRADUATES SURVIVE CALDERA V.

FOUND

AS STEVE HILL (’77) AND RYAN TIBBITTS (’84) LOOKED OUT AT THE BRILLIANT HORIZON FROM BORA BORA. Stephen J. Hill

IT WAS NO WONDER THAT A YOUNG NAVAL OFFICER STATIONED THERE IN 1942 HAD CALLED THIS SPECK IN THE SOUTH PACIFIC “THE MOST BEAUTIFUL ISLAND IN THE WORLD,” THEY THOUGHT. JAMES MICHENER’S PARADISE 140 MILES OFF TAHITI WAS THE PERFECT ANTITHESIS TO THE PAST THREE-AND-A- HALF YEARS OF THE ATTORNEYS’ LIVES. THE CALMNESS AND NAT- URAL BEAUTY OF THE POLYNESIAN RETREAT CONTRASTED SHARPLY WITH THE GIGANTIC CANNONS SURROUNDING, AND ONCE GUARDING, THE U.S. AIR BASE BUILT ON THE ISLAND DURING WORLD WAR II. STEVE CONTEMPLATED THE POISED, UNFIRED GUNS AND THE TERRI- BLE BATTLES FOUGHT IN THE PACIFIC. OCCASIONALLY SOLDIERS WERE SENT TO BORA BORA TO REST AND RECUPERATE FROM THE FIGHTING. ALTHOUGH THAT IMMENSE CONFLICT WAS FOUGHT BY AN EARLIER GENERATION AND EXACTED THE HIGHEST PAYMENT, STEVE AND RYAN WERE VETERANS OF A NEW KIND OF COMBAT: TECHO-WAR. THE COMPANY THEY REPRESENTED, CALDERA, INC., HAD JUST SETTLED A MAJOR LAWSUIT AGAINST MICROSOFT, THE BIGGEST OF THE “BIG GUNS” OF THE WORLD, A STRUG- GLE THAT HAD LASTED ALMOST AS LONG AS WORLD WAR II. TO CELE- BRATE ONE OF THE LARGEST PRIVATE ANTITRUST SETTLEMENTS IN HISTORY, THE ENTIRE CALDERA LEGAL TEAM HAD GONE TO TAHITI FOR SOME REST AND RECUPERATION. THEY HAD FINALLY MADE IT TO BALI HAI.

20 Clark Memorandum t the law offices of Snow, Christensen (dri). Though ms-dos traced its roots RECRUITMENT & Martineau, in Salt Lake City, back to cp/m, Gates took the lead, “The statute of limitations set a deadline Utah, a few weeks later, Steve Hill retained licensing rights, and laid the for us,” says Steve, as he leans forward A talks about Bora Bora and the foundation of his fame and fortune: free to emphasize his words. “In 1994 [the remnants of World War II on the island. enterprise in the emerging computer Department of] Justice had filed essentially As he begins an interview with Clark industry. the same case we did and then settled in Memorandum, law partner Ryan Tibbitts The battle against Microsoft began in August of ’95 with Microsoft. So we had enters the conference room. For a few 1988 when released a new until mid-August of 1996 to file our case.” moments the splendors of Tahiti pro- rival to ms-dos called dr dos. Soon dr dos The “we” included litigators hired that vide a pleasant memory for the two J. began to receive praise as a superior alter- summer by and Caldera pres- Reuben Clark Law School graduates who native to Microsoft’s ms-dos software, ident Bryan Sparks: Ralph Palumbo, from are about to relate the battle that got which then dominated the personal com- Seattle, Stephen Susman, a Houston attor- them there. puter market. In 1989 ms-dos still had 90 ney, and the strong legal team they gath- percent of the computer ered around them. They had taken the TROUBLE BREWING market. dr dos got a boost when , Caldera case on a contingency basis. The road leading to the January 10, 2000, the world’s second-largest software com- Reflecting on his early involvement settlement of a lawsuit brought by Caldera pany, bought dri in October 1991 for $125 with the Caldera lawsuit, Steve recalls, “If I against Microsoft ended just short of a million in stock. By 1992 dr dos briefly was really going to pick a date when the jury trial. Steve Hill and Ryan Tibbitts, surpassed ms-dos in retail sales. However, seeds were planted, it was just before my two of the dozen attorneys representing by March dr dos sales began to plummet. 10-year law school reunion in 1987.” He By 1993 they were dead. recounts that one of the former classmates As early as 1989, Federal Trade he was asked to call to donate money to Commission attorneys were investigating the Law School was David Bradford, who Microsoft. By fall 1993 the Department of is general counsel for Novell. Justice got involved and eventually sued “As a result of that contact, I started Microsoft over its dos business practices. doing a little bit of Novell work that grew Ray Noorda had his own plans. over time,” he says. “In early ’93 David For years, Noorda—the man who told me that the ftc was investigating brought Novell back from bankruptcy in Microsoft. They and Novell were seriously 1983—had urged his board to sue Microsoft considering a civil case at that point. I filled for killing competition in the dos market him in on my antitrust background, which using illegal tactics. But not until he started in Seattle. I practiced there for four retired from Novell in 1994 and formed a years, doing mainly antitrust work, and I company named Caldera was Noorda able made friends with a lot of good antitrust to make his move. In July 1996 Caldera lawyers and even knew people that worked bought dr dos from Novell for $400,000 in Microsoft’s Seattle law firm.” and the same day filed suit against Steve expounds: “I studied economics Microsoft. as an undergraduate at byu. I always had Noorda’s small company accused the an interest in antitrust. When I started software giant of leading computer users working with Novell and I learned about to believe that dr dos would not work the industry, this particular issue became with Microsoft’s Windows by writing one of extreme interest to me. It’s just code that caused error messages to appear funny how the threads of your life weave when Windows ran on top of dr dos. The together. It seems like everything that I’ve lawsuit also alleged that Microsoft made done from my undergraduate background Ryan E. Tibbitts illegal licensing deals with computer man- to the Law School association to the ufacturers who installed its software in acquaintances I made in Seattle all came Caldera, lived and breathed the case since the they sold, that it deliber- together to create the opportunity.” it was filed in July 1996. It is a story worth ately announced overly optimistic release “In 1995 we had actually been involved retelling. dates for its products to beat out the com- representing Novell and had some real live, The beginning of the rivalry was fair petition, and that it illegally tied together ongoing antitrust experience in a monopo- enough: In 1981 began licensing two products, ms-dos and Windows, to lization case,” he explains. “Obviously, it his ms-dos computer operating system to create Windows 95. was pretty important.” ibm, beating out a rival operating system, By July 1996 Steve Hill and Ryan Steve continues to tell how in early cp/m 1996 Robb Hanks Robb , created by Digital Research, Inc. Tibbitts had entered the picture. , when he was in Germany, he got a

Clark Memorandum 21 call from Novell wanting an assessment Digressing from the story for a or four associates from each of the three of what he thought of the case, because moment, Ryan talks about how he came main law firms—Susman Godfrey; Summit the company was thinking of selling the to be involved in Caldera v. Microsoft. Law Group; and Snow, Christensen & dr dos business. “A couple of months “Unlike Steve,” he says, “nothing in my Martineau. went by—I thought the case was just life prepared me for the case. . . . Rex Lee going to die. Then later in the spring, I was my stake president at byu. He was a OVERSEAS OPERATIONS got a call from Dave Bradford. . . . I con- big byu football fan, and I was on the team The Caldera v. Microsoft case took its tacted a friend of mine named Ralph down there. I’d occasionally run with him lawyers beyond the valleys of Utah and Palumbo. . . . That led to a meeting at after football practice. He really twisted shores of Seattle chasing evidence in Novell between me, Ralph Palumbo, and my arm to go to law school. The only way Europe and Asia. Two countries that Steve Susman of Susman Godfrey.... I could justify going to law school in played key roles in the lawsuit were areas Bradford was convinced that we had my mind was saying, ‘Okay. I’ll go and where, coincidentally, Steve and Ryan had a good legal team. But Novell was in become a sports agent.’” But after meeting served Church missions: Germany and the process of selling the business to some sports agents, Ryan changed his Korea. The language skills they developed

Caldera, a company chiefly owned by mind. He graduated from the J. Reuben and the contacts they made during those Ray Noorda. At that point, Ryan came Clark Law School in 1984 and ended up at two-year periods put them at a distinct into the picture.” Snow, Christensen & Martineau. “Working advantage as they returned to those lands Ryan jumps into the interview, in a large law firm on antitrust cases is the on a different type of mission. explaining how Steve told him that Novell last thing I thought I would be doing,” he “Steve served a mission in Germany. I was going to sell the dr dos business to says. Although Ryan chose not to become served a mission in South Korea,” Ryan Ray Noorda. “As it turned out,” Ryan a sports agent, photographs on a wall of says. “As it turned out, those two coun- says, “a friend of mine named Ralph Yarro his office suggest that he does represent tries both had big parts of the story [sur- is Ray Noorda’s right-hand man. . . . So I at least one professional athlete—former rounding] our case. There were quite a called Ralph and brought him up to speed teammate Steve Young. few trips abroad. I spent more time going on what Steve had been doing with the Although he entered the case in July to Asia, and Steve went to Germany quite claim with Novell, shepherding it through 1996, Ryan became more involved by the a few times.” the ftc and the doj. . . . [By] July of 1996, spring of 1997. The legal team he joined “dr dos programmers were actually we had the complaint filed.” had grown to 12 main lawyers, plus three based in England,” explains Steve. “At that

22 Clark Memorandum time the biggest pc manufacturer in Europe ceo of Vobis, Theo Lieven. We sent [Lieven] in a deposition of a Korean witness when was Vobis, based in Aachen, Germany. several e-mails and called and called. he learned that I could understand what the Vobis was the biggest account that [dr dos] Finally, he agreed to see us. He owns a witness and the interpreter were saying.” had ever had. In 1989 and 1990 Vobis was a chateau just across the border in Belgium.” 100-percent dr dos shop; they didn’t use Steve and others convinced Lieven to IN THE TRENCHES any Microsoft operating systems. sit for a deposition in Los Angeles, which, Ryan explained that “in a typical large “So it was a huge deal to Microsoft to he says, “turned out to be pretty impor- commercial case, you’re going to win or get the Vobis account,” Steve emphasizes. tant evidence for us.” lose your case on your witnesses and your “More importantly, they were concerned Explaining why Korea was important documents, because you get very little that if other oem’s in Europe had seen in the Caldera case, Ryan says, “When from the other side.” Consequently, as Vobis’ success, they would go to dr dos Digital Research launched their competing lawyers for the underdog, Ryan, Steve, and rather than ms-dos. So it became a big deal operating system—dr dos—part of their their colleagues had to scrutinize seem- to Microsoft to win the Vobis account, strategy was to go places that weren’t very ingly endless leads to come up with some

Robb Hanks Robb which they ultimately did. Digging out important to Microsoft, that were kind ammunition.

that story took a lot of time and was a of off the Microsoft screen. So “Every witness we got was a ‘romance,’” fairly significant piece of the story we they started going to small oem accounts Steve says. “We had to go find them, and would have told at trial.” in Asia, including Korea and Taiwan. They they were scattered all over the world. Then “Well, that’s a whole other unbelievable opened their first office in Taiwan and once we found them, we had to make episode,” Steve continues. “We eventually their second office in Korea. friends with them and convince them that managed to talk to the ceo of Vobis. . . . “Microsoft viewed Korea as a beach- our cause was just, that we had a chance of While in England we made contact with head where dr dos might make some gain succeeding, and we were good guys.” one of the top guys at Vobis through one of into their market,” he continues. “So they “And that it was worth it for them to the salespeople at Novell Duesseldorf. The really unloaded on dr dos in Korea, donate all kinds of time getting ready for Vobis guy wouldn’t talk to us on the phone, and ultimately the Korean government depositions,” Ryan breaks in. but said he would meet us the next day in reviewed some of Microsoft’s activities “Everybody worried what would be Aachen. I felt like I was in a spy novel. . . . there. That was a story we were able to the consequence to them personally if We made good friends with him, and then develop from people I met over there. . . . I they testified, . . . what it would mean pro- he gave us the contact information for the was also able to surprise a Microsoft lawyer fessionally if they went public,” Steve says.

Clark Memorandum 23 Other kinds of evidence were not Sometimes the diversity of expecta- reported it at $275 million (“Microsoft to much easier to discover, but did yield tions within the legal team created chal- Settle Suit by Caldera,” Wall Street Journal, rewards. “The judge ordered Microsoft to lenges. “You can imagine,” Ryan says, 11 January 2000). turn over all of their memos and e-mails,” “with three different law firms and 15 dif- Thus, the trip to Tahiti. Ryan relates. “We spent literally weeks in ferent lawyers involved, there were many Seattle going through boxes of documents. different views as to whether we ought to NOT WITHOUT COST We found some amazing smoking guns in settle or go to trial, or if we do settle, As in any battle, many kinds of sacrifice there. Many of the Microsoft documents what the value of the case is.” were made during the long course of were so good for us it almost made our “But all of that finally turned out fine,” Caldera’s investigation of Microsoft’s prac- client’s documents unimportant.” Steve stresses. “I’d say that working with tices. During the time they were involved Steve says, “We felt like, ‘Wow, our these other two firms, you would have in the lawsuit, Ryan and Steve and their case is every bit as good as we had hoped. thought there would have been prima don- families felt the force of this commitment. In fact, better really than we thought it nas and ego plays. I would say that never “I traveled a lot,” begins Ryan. “I went would turn out to be, once we saw their happened. What tended to happen, believe to Europe two or three times and Asia documents.’” it or not, was there was so much to do and two or three times. . . . There were literally In more ways than one, e-mail turned people had different talents and experi- times when I had to have my wife, Nan, out to be the salvation of the Caldera ences, that the lawyers seemed to self- meet me at the airport just long enough to attorneys. Not only was it their most select the things that they could do the grab a different suitcase of stuff and head effective form of communication as they best. We had very few issues about who off somewhere else. But the way I dealt investigated the case, but, ironically, e-mail should do what. We were really in accord with it, I let other things slip in my life provided them with their best evidence. throughout the whole process.” rather than not spend time with my wife Retrieved Microsoft e-mails verified what or my kids. . . . It was something we talked Caldera was trying to prove: that the COUNTERATTACKS AND SETTLEMENT about, but it didn’t cause major problems.” Microsoft tactics Caldera complained “It was real hardball litigation,” Steve Steve confesses, “For the most part I about were designed to undermine dr dos admits. “I’ll bet Microsoft filed dozens of was having the time of my life. But while I and further monopolize the market. motions on various issues. And of all of was having this experience, my wife, Tauni, those, we could only count a handful that and my kids were at home dealing with my THE DARKEST HOURS they won. But it’s amazing that with all of absence. There were periods where I was The three-and-a-half-year pursuit of that, the relations between counsel were pretty distracted, and they had to deal with Microsoft proved to be a bumpy ride for actually really quite good, very professional my emotional ups and downs as well.” the Caldera attorneys, sometimes with and cordial.” When asked if his children, who range little light at the end of the tunnel. When “They just wanted to keep us dis- between nine and 21 years of age, are inter- asked if they were discouraged during the tracted,” Ryan adds. “They clearly wanted ested in going into law, Steve responds, experience, Steve and Ryan didn’t hesitate to get rid of the case. We were at the right “No, but they’re interested in technology. to respond. place at the right time in a lot of respects, In fact, all of them are involved with it in “The dri people were very self-critical because they were dealing with what was one fashion or another.” because they knew they weren’t getting going on in Washington, d.c., and they Ryan, whose five children are 10 and sales like they should have,” says Ryan. “dr didn’t want to be going through our trial under, comments, “At least my two oldest dos was winning awards, but they couldn’t at the time that Judge [Thomas Penfield] kids were interested in the case. A few make the sales. They didn’t know what Jackson was trying to figure out what to times my name made it into the paper with Microsoft was doing behind the scenes do with them back there.” quotes, and that was cool for the kids to then. So there were all of these bad memos Although the case against Microsoft talk about with their teachers at school.” about dri and its people. And that’s what I did not go to trial, the settlement was a He continues, “Our last two boys were got hit with in depositions. . . . I remember substantial win for Caldera and its attor- born during the course of this case. I the plane ride home from the first one; I neys. (Analysts contend that the evi- remember with the first one, one of the was pretty dejected and thinking, ‘Boy, dence that would have been revealed in things that I did in order to spend more we’ve got some problems here.’ . . . I think court promised to hurt Microsoft even time with the family would be to go home that was my low point. But, because of more than any monetary fine.) The at 6:00 at night and take two or three boxes what we found in Microsoft memos and e- lawyers cannot disclose the settlement of documents that I needed to review to mail, we found a way to deal with it.” figure because of a confidentiality agree- prep for these depositions I was defending. “Just the process of being opposed to ment; however, the Salt Lake Tribune I can remember quite a few nights with somebody so powerful caused us prob- reported the settlement at $250 mil- that baby when he would wake up at 2:00 lems,” says Steve. “Gathering witnesses was lion (“Caldera, Microsoft Settle for in the morning for feedings, sitting out on a much more difficult and unusual process $250m,” Salt Lake Tribune, 11 January the couch holding him and going through than I had ever been through before.” 2000), whereas the Wall Street Journal documents while I was up.”

24 Clark Memorandum Steve takes his turn: “I guess I turned into kind of a cell phone addict. At one THE THREE-AND-A-HALF-YEAR PURSUIT OF MICROSOFT point my family was complaining that when I was home, I was on the ‘dang’ tele- PROVED TO BE A BUMPY RIDE FOR THE CALDERA ATTORNEYS, phone. . . . I came to the realization that once I was home, I had to be home, and I wouldn’t take or make calls.” SOMETIMES WITH LITTLE LIGHT AT THE END OF THE TUNNEL. Calculating that he spent two-thirds to three-fourths of his legal time involved in the case, Steve notes, “The last year, it was most of the time. . . . We [the legal team] spent so much time together, we may have seen more of members of the trial team than we did of our own spouses over the important, because I always saw this case him with this document.’ Or you would past three-and-a-half years.” Ryan puts his as a significant case for the industry. I call people at the various law firms to find commitment at 60 to 70 percent of his time. always felt like we were doing something out what intrigue was going on with them In addition to their time away from that really needed to be done. . . . I decided at the time. That made it exciting.” their families, both attorneys were worried you just couldn’t worry about failure.” When asked the obvious question, about the length of time they were devot- Perhaps the greatest result of the case, Ryan answers, “I met Bill [Gates] at his ing to a contingency case. “It was very Steve says, was the effect it had on the deposition in October of ’97. We spent risky,” Ryan admits. “I know both of us computer industry. “We made some his- two days out at the Microsoft headquar- lost a lot of sleep—many people in our tory. . . . [Caldera] deserves a lot of praise ters in Redmond taking his deposition.” firm were very supportive, but, as you can for having the courage and conviction to imagine, and justifiably so, there were undertake the case. They did what many in THE FABRIC OF LIFE some people that were pretty skeptical the industry have talked about but never One of the aspects of Steve’s and Ryan’s because we were spending up to three- attempted before we filed [the lawsuit].” experience with Caldera v. Microsoft was quarters of our time [on the case], which The adventures they had and the the reality of life outside of the case. Many meant we were not bringing in any money friends they made also made their involve- things happened during the three-and-a- for the firm. They were wondering what ment a rich experience. “A great aspect of half years besides the lawsuit. we were really contributing to the mix. . . . the case,” Ryan says, “is that we worked “It was so all-encompassing that it But the settlement healed all of those with and we went up against some of the seemed like we all lived through these wounds,” Ryan laughs. greatest lawyers in the country. . . . Susman shared experiences that were real life that Steve confides, “There was a lot of Godfrey is known as one of the top com- were going on while we were totally pressure. . . . I was concerned about what mercial litigation firms in the country. The engaged in a lawsuit,” Steve conveys. my partners here were thinking and the main Susman Godfrey lawyers—Susman, “Collectively, we experienced births, fact that they were paying us to be off Parker Folse, and Charles Eskridge—all deaths, illnesses, marriages, divorces, and doing this while they were doing things clerked at the u.s. Supreme Court. The a few lawyers coming and going. In doing that actually brought in money. . . . Those Summit Law Group lawyers were also out- so, we formed deep friendships. . . . We kinds of considerations made [the case for standing. One of them, Matt Harris, knew pretty much saw the entire fabric of life.” us] less exciting.” the technology better than Microsoft.” “One of the things that came of this “A big part of the job is dealing with was . . . I developed a real interest in going GAINS the press all the way through,” says Steve. and trying to do something outside of the Of course the magnitude of Caldera’s “I was on a friendly basis with one of the law firm,” he says. As Steve leaves Snow, claim against Microsoft made the case lead reporters for the Wall Street Journal, Christensen & Martineau to work as vice very exciting. And the fact that Caldera and never in my experience had I had any- president of business development at Alta eventually obtained a large settlement thing like that happen.” Technology Corporation in Sandy, Utah, made the pursuit all the better. But, as As for their experience “being a little Ryan buckles down to his role of president Steve recently expressed in an e-mail to bit like a spy novel,” Ryan says, “I would of Snow, Christensen & Martineau. his case colleagues, “While the money is know there would be a big deposition of a Bora Bora, with its pristine beaches wonderful, this case certainly was not Microsoft witness going on in Seattle at and silent guns, is now only a pleasant entirely about money.” the same time I was in California defend- memory for the Caldera lawyers. Although Reflecting on his personal feelings ing somebody else. . . . It was fun to check they have moved on to other cases or new about the experience, Steve says, “For me the e-mail. Somebody would report, ‘Oh, careers, none of them will soon forget the as a lawyer in private practice, I couldn’t this deposition was awesome. This witness four-year journey that took them to this imagine anything that would be more said, “a, b, c, and d.” And we really nailed paradise in the South Pacific.

Clark Memorandum 25 book review: Joseph G. Allegretti. The Lawyer’s Calling: Christian Faith and Legal Practice. New Jersey: Paulist Press, 1996.

oseph G. Allegretti’s book The Lawyer’s secular culture. In applying Niebuhr’s typology to the legal profession, Allegretti JCalling is an accessible, thoughtful, challeng- begins by identifying the “standard vision” of the lawyer’s role in American culture. ing defense of the view that it is possible to The standard vision, which Allegretti calls the “Code,” is dominated be both a lawyer and a Christian. Picking up by two values, neutrality and partisan- ship. The lawyer “is neutral, in that a theme sounded by Yale Law School Dean he does not let his personal values affect his actions for clients; and he Anthony Kronman in his book The Lost is partisan, in that he does whatever he can to achieve his client’s objec- Lawyer, Allegretti maintains, “At its core tives, whatever they might be, limited only by the law itself” the legal profession faces not so much a crisis (pg. 9). According to the standard vision, “a lawyer’s primary respon- of ethics or commercialization, or public sibility is to represent his client to the best of his ability and relations, but a spiritual crisis. Lawyers and leave questions of ‘truth’ and ‘justice’ to others” (pg. 8). Rather the profession have lost their way” (pg. 3). than letting his own moral scruples intrude on his work, the lawyer Whereas Kronman looked to the his- acts as the “proverbial hired gun,” toric ideals of the legal profession and the constrained only by what is legal Aristotelean concept of practical wisdom (pgs. 8–9). Accordingly, “[a] trial is in search of an anecdote for the “crisis of seen almost as a sporting event, where the morale” in the legal profession, Allegretti two lawyers face off against each other, looks to Christianity as a way of trans- while a neutral umpire or referee (the forming our legal culture inwardly, one judge and jury) enforces the rules to lawyer at a time, by identifying and ensure that neither party obtains an unfair applying “resources in the Christian tradi- advantage” (pg. 9). tion that can help lawyers reconnect their Adapting Niebuhr’s analysis of vari- work with their deepest and most pro- ous attitudes a Christian can adopt THE FIRST MODEL found values” (pg. 5). towards secular culture, Allegretti dis- ALLEGRETTI CALLS “CHRIST It is a formidable project, and it is a cusses four contrasting approaches that a AGAINST CULTURE.” tribute to Allegretti, a professor of legal Christian lawyer might take in response ethics at Creighton University Law School, to the standard vision of the lawyer’s role. that he undertakes it. The author recounts Allegretti explains that each of these an anecdote about a friend who, upon models represents an ideal type, and as deep that it can never be bridged” (pg. 11). hearing that he was writing a book about individuals we may find ourselves exhibit- If this model is correct, a Christian lawyer what it means to be a Christian and a ing different aspects of more than one of is faced with a choice of either abandoning lawyer, replied, “But Joe, what will you do these responses. one’s professional life or abandoning one’s with the rest of the page?” (pg. 1). The The first model Allegretti calls “Christ commitment to living as a Christian. remarkable thing is not that Allegretti did Against Culture.” According to this view it A second approach, a mirror image of find enough to fill an entire page, but that is simply not possible to be a Christian the first, is “Christ in Harmony with the he manages to pack a very wide discussion and a lawyer. An example of this approach Code.” According to Model Two, there is of many facets of legal practice into a brief is a former lawyer Allegretti met at Yale no perceived tension between the gospel and readable 125 pages. Divinity School, who had abandoned the and the Code. Allegretti notes that lawyers law because she found that what she did who adopt this model are often surprised The Basic Typology as a lawyer was incompatible with her and even a bit insulted by the question Allegretti uses as a point of departure Christian faith. Adherents of the Model of whether it is hard to be a Christian and Richard Niebuhr’s effort in his monu- One believe that lawyers “inevitably do a lawyer (pg. 14). Model Two, which mental book Christ and Culture to identify things for clients that no true follower of Allegretti seems to believe is the dominant and evaluate a number of approaches that Christ could countenance. Between Christ attitude of most lawyers, has certain bene- Christians have taken toward the wider and the Code is a chasm so wide and so fits. It frees lawyers from self-doubt and

28 Clark Memorandum introspection, enabling them to focus Three slides slowly and imperceptibly into Ilyich, who is a paradigmatic Model Two entirely upon their duty to their clients. Model Two. “amoral technician,” and Robert Bolt’s But there are significant problems with The fourth model Allegretti calls Thomas Moore, who illustrates the Model this attitude as well. For one thing, it tends “Christ Transforming the Code.” Model Four integrationist ideal. to “blunt the radical message of the gospel Four “asserts that Christ is the Lord of all, Each of these chapters provides rich and domesticate its countercultural thrust” even the legal profession, and that food for thought, and each contains con- (pg. 15). More troubling, it enables the Christians are called to serve Christ in all crete bits of helpful advice for the lawyer lawyer to view himself, in the words of of life, even their life as professionals” (pg. seeking to integrate her professional life Richard Wasserstrom, as an “amoral tech- 21). Model Four asks the lawyer to seek to with her religious commitments. Especially nician” (pg. 16). A lawyer in the grip of this live an integrated life, “to bring his reli- for a lawyer feeling dissatisfied with her approach also fails to see that “God may gious values into the workplace, with the professional life, the book contains a num- call us to something more or different than hope and trust that God will work ber of insights and suggestions that might the Code” (pg. 16). through him to revitalize and transform enable lawyers to better integrate their pro- Allegretti’s third model is “Christ in his life as a lawyer, his profession, and ulti- fessional work with their moral ideals. Tension with the Code.” According to this mately the wider community as well.” For example, Allegretti stresses the dualist vision, “Christians inhabit two Allegretti concedes that while we might importance of lawyers treating their clients worlds, a private realm in which they feel an attraction to Model Four, it is diffi- as whole persons deserving of respect, relate to God as individuals and are bound cult to know what it means for us in every- sympathy, and counsel, rather than just a by the teachings and example of Christ, day life. He remembers a divinity school case to be won or settled, or a transaction and a public sphere where they live and professor who, in response to Niebuhr’s to be completed. I suspect that by follow- work and must make accommodations to typology noted, “Everyone wants to be a the sinfulness of the human condition” transformationist, but nobody is quite sure (pg. 17). According to Model Three, there what it means!” (pg. 21). A SECOND APPROACH, is no way to bring the two realms of A MIRROR IMAGE OF THE Christ and the Code together. Life is com- Living the Transformationist Ideal FIRST, IS “CHRIST IN partmentalized, and the two spheres of life Allegretti spends the rest of the book HARMONY WITH THE CODE.” are separated. At home, the lawyer “tries trying to explain what it to live out his Christian values, but when might mean to try to inte- at work he looks to the Code” (pg. 18). grate one’s life as a Christian In response to questions such as “How with the secular culture’s could you represent such a client?” or vision of the Code. In succes- “How could you do that on behalf of a sive chapters Allegretti focuses client?” the compartmentalizing dualist upon what it means to be part of a will respond, “I was only doing my job” “profession” and to have a religious (pg. 18). This approach is ultimately dis- “vocation” or “calling” (chapter 2), satisfying, Allegretti argues, because the idea of the lawyer-client relation- while honest about moral ambiguities, it ship as one characterized not simply results in a kind of moral schizophrenia. by “contract” but by “covenant” Allegretti recalls the response of a lawyer (chapter 3), and the “prophetic friend he complimented for donating time ministry” of the lawyer who can and talents to church service on Sunday. be a voice calling her clients back “I’ve got to do something on the weekend to their better selves (chapter 4). to make up for what I do the rest of the The book then takes an week,” the friend explained wearily (pg. 1). extended look at the lawyer’s Model Three dualists “forget a simple role in litigation, urging a move yet profound truth of the Christian mes- from the paradigm of the lawyer as sage: God is the God of all of life, and so “hired gun” to that of the lawyer as God’s claim is on us always and every- “healer” (chapter 5), applying where” (pg. 19). Allegretti also notes that Christian teaching regarding “just a schizophrenic life is inherently unstable. war” to litigation (chapter 6), and “Something has to give, and it comes as advocating the adoption of an “ethic of no surprise that if a lawyer takes positions care” to complement law’s dominant focus at odds with his personal values, over on an “ethic of rights” (chapter 7). In the time those values will change to comport final chapter, Allegretti contrasts two with his public behavior” (pg. 19). Model lawyers from literature, Leo Tolstoy’s Ivan

Clark Memorandum 29 ing this simple suggestion, which is surpris- to a broken world, to vindicate the rights our days are a chaotic jumble of constant ingly difficult in the hectic workday of the of the weak and vulnerable, to heal bro- phone calls, impending deadlines, hurried average lawyer, many lawyers could signifi- ken relationships, to ensure equality to all research, endless meetings, and no-time-to- cantly increase the level of satisfaction they persons—these persons have responded to leave-your-desk-lunches” (pg. 35). Having a get from their professional life. a true calling” (pg. 31). sense of calling does not resolve all prob- In the interest of time and space, I will The decision of the church to ordain a lems. Nevertheless, “a sense of calling can focus my attention on Allegretti’s analysis person a minister is what Calvin spoke of help us endure and flourish in our work. It of the lawyer’s “calling” or “vocation” and as the “outward call” (pg. 31). Allegretti can put things in perspective. It can give us the implications of lawyers seeking to cul- suggests that we think of law school “as hope” (pg. 35). tivate an “ethic of care.” the rough equivalent of the minister’s out- ward call.” So viewed, the law school “is The Ethic of Care The Lawyer’s Calling the means to an end—it is the instrument Once a decision has been made to Medieval theologians such as St. by which we develop the competencies to resort to litigation, Allegretti notes, “there Thomas Aquinas taught that the highest implement our inner call to service. It is is a near-irresistible drift toward all-out human activity was contemplation of God. the place where our inner call takes on warfare” (pg. 96). In response to the ques- In contrast, “normal secular work had no flesh” (pg. 32). tion of what a lawyer’s conduct should be real significance, and was thought to be a byu law school professor David during the conduct of a lawsuit, Allegretti hindrance to the religious life, for it dis- Dominguez’s efforts to encourage law stu- endorses Calvin’s “admonition about the tracted one from the leisure that was nec- dents to remember and reclaim the ideals proper disposition that should accompany essary for divine contemplation” (pg. 27). that drew them to the legal profession can a lawsuit” (pg. 96). According to Calvin, “it This view changed with the Reformation. be seen as a way of enabling students to is not out of order for Christians to pursue “Luther and Calvin reacted to the reclaim their sense of “inner call” that drew their rights with moderation, so long as no medieval devaluation of everyday work by them to the law. Professor Dominguez damage is done to love” (pg. 96). While attacking the notion that one could live places before second- and third-year law this may appear to set an impossibly high the Christian life only by abandoning the students the essays they wrote when standard, Allegretti maintains that “[a] law- secular world for the monastery” (pg. 27). applying to law school, essays in which suit can be brought if and only if it can be Charles Kammer summarizes Luther’s they often speak in idealistic terms of the prosecuted without impairing Christian thought as follows: “Any occupation service they hope to provide as lawyers. love. If anger, bitterness, or the lust for becomes a ‘calling’ if its primary motive is He then challenges them to bring their cur- revenge infects a lawsuit, even a just cause serving God, responding to God’s wishes rent attitudes and plans into harmony with becomes unjust” (pgs. 96–97). and intentions for human existence” (pg. this earlier, more idealistic self. Building upon the work of Carol 27). Thus, after the Reformation, while it is Having a sense of calling serves sev- Gilligan and Rand and Dana Crowley no longer necessary to join the monastery eral purposes. Seeing her vocation as a Jack, Allegretti suggests that such an atti- to serve God, “no Christian is exempt calling places a curb on a lawyer’s sense of tude can be cultivated if the lawyer seeks from the duty to follow Christ and to self-interest, which “places limits on cer- to develop an “ethic of care” rather than serve the neighbor in love” (pg. 28). tain behaviors that have contributed just an “ethic of rights.” Any job, including that of a lawyer, mightily to the current dissatisfaction may be a “calling” if our attitude and dis- with the profession, such as the padding In their research, Jack and Jack discovered position make it one. The professions— of bills and the neglect of clients” (pg. 33). that while some lawyers conceive of the moral until recently a concept that included Allegretti maintains that a lawyer “who life primarily as a matter of following the only the ministry, medicine, and the law— regards herself as having a calling cannot rules of the game embodied in the adversary have a “natural propensity” to be a calling help but see her clients differently. A system and the codes of professional responsi- because they exist to serve others (pg. 29). client is not a mere commodity, but a bility, others are more concerned with mini- Having a sense of calling involves human being, a human being in pain and mizing harm and preserving relationships. both an internal and an external dimen- emotional turmoil, who has come to the While an ethic of rights stresses competition, sion. The “internal call” is a “private real- lawyer for help” (pg. 33). the ethic of care emphasizes cooperation; ization that one is chosen by God to serve The concept of vocation or calling instead of rights, responsibilities; instead of the church as an ordained minister” (pg. also has the effect of expanding the formal and abstract thinking, contextual rea- 30). For a lawyer, Allegretti describes the lawyer’s moral universe. “The concept of a soning ; instead of the fair resolution of dis- inner call as a desire to serve others cou- calling gives the lawyer a kind of moral putes, the avoidance of harm. [Pg. 100] pled with “an intuitive sense that one has compass: it constantly reminds her that the right kind of talents, attributes, and her ultimate loyalty is not to a client, or Allegretti cites a hypothetical case life experiences to become a lawyer” (pg. to the Code, but to God” (pg. 33). from the Jacks’ research that illustrates 31). According to Allegretti, “[t]hose who Allegretti acknowledges that it is not the difference between an ethic of rights enter law with the intent to bring justice easy to cultivate a sense of calling “when and an ethic of care. A lawyer is asked to

30 Clark Memorandum ALLEGRETTI’S

THIRD MODEL IS

“CHRIST IN

TENSION WITH

THE CODE.”

imagine that he represents a client seek- a heart-to-heart talk with his client and get client that he will pursue the client’s rights ing custody of children in a divorce the client to acknowledge that the child is with moderation, so long as no damage is action. The lawyer inadvertently learns better off with the other parent. Perhaps done to love. If a lawyer would be reluctant that the client poses a risk of serious the lawyer will support the appointment to give such disclosure to a client, it is diffi- harm to the children. The information of a guardian to represent the best inter- cult to imagine a justification for secretly will remain unknown to the other party ests of the children. adopting such an attitude. unless the lawyer reveals it. If he reveals This hypothetical case brings into focus In fairness, Allegretti does touch upon the information, his client will lose cus- a significant shortcoming of Allegretti’s related questions. We can easily imagine tody of the children, but if he keeps the book. Stated simply, it leaves unanswered, ourselves as a client in need of a devoted information secret, his client will win in fact almost entirely unaddressed, the lawyer’s tough love, telling us to forsake a custody of the children. There is no question of whether, and under what cir- course of conduct that would be wrong or doubt in the lawyer’s mind that the other cumstances, one would want to hire a self-defeating. Allegretti quotes lawyer- party is the superior parent who should lawyer who manifests Allegretti’s transfor- statesman Elihu Root, who said, “About have custody of the children. mationist ideal. If we would not want to half the practice of a decent lawyer con- The ethic of rights focuses exclusively trust such a lawyer with the representation sists in telling would-be clients that they upon the rights and interests of the client, of our most precious interests, it is difficult are damn fools and should stop” (pg. 51). I focusing upon the role of the lawyer as to see how we could justify seeking to suspect he is right, although doing so in advocate and nothing else. In contrast, a become such a lawyer ourselves. The ques- today’s legal market may be much more lawyer motivated by the ethic of care will tion we must ask is whether we would difficult for a lawyer who has been hired place more weight on the best interests of knowingly choose a lawyer whose advocacy for his expertise with a particular area the child. This approach, Allegretti main- is significantly tempered—much more than of the law, than in Root’s day when tains, provides less certainty. Perhaps the the professional norm—by values and com- the lawyer-client relationship was much lawyer will urge his client to get counsel- mitments other than our own best interests. more stable. ing. Perhaps the lawyer will have devel- It is difficult to imagine a client engage- The question I found myself asking oped sufficient trust that he is able to have ment letter in which a lawyer informs a was this: If I am facing the loss of life, lib-

Clark Memorandum 31 erty, or property, is it in my interest to Conclusion want a Christian lawyer who is seeking to Allegretti is not a lone voice calling in live Allegretti’s transformationist ideal? the wilderness. The last few years have seen Especially if I am guilty, or if I am inno- a small deluge of books commenting cent but the available evidence strongly upon the deterioration of our legal implies that I am guilty, perhaps what I culture and lawyers’ many discon- want is a lawyer who will be wholehearted tents. Allegretti’s offering is dis- in his allegiance to my interests. Should I tinctive in two primary ways. First, want a lawyer who is going to “pursue it sounds a tone that is hopeful [my] rights with moderation, so long as no and optimistic. Near the beginning damage is done to love?” of the book, Allegretti notes, “This Allegretti does emphasize the impor- is not a book that expends much tance of the lawyer as a friend who will sound and fury castigating lawyers stand by his client, but my lawyer isn’t and the profession. This is not a going to follow me into prison. Maybe naysaying, doomsaying book about I don’t want a friend who will bid me an all that is wrong with the law and affectionate farewell as I am led away with lawyers.” (pg. 5) Rather it is an in shackles, perhaps I want an advocate optimistic book, based upon the who will do battle on my behalf without author’s observation that there reservation—the prototypical Code-driven are many lawyers who have suc- lawyer. cessfully bridged the gap between At times one feels that while their faith and their work. Allegretti recognizes this problem, he The second distinctive characteris- does not altogether come to terms with it. tic of Allegretti’s book is that its recom- For example, in the hypothetical child mendations focus not primarily upon custody case, Allegretti stipulates that the legal profession as an institution but the lawyer is certain that the other party upon the hearts and minds of individual is the superior parent that should have lawyers. It is not a call for systemic custody of the child. But the more likely change, although there would be wide- reality would be that the lawyer is not ranging effects if the book’s message were certain, although he might have nagging widely embraced and followed. Rather, it questions about what is really in the best is primarily a call to conscience, an interests of the child. entreaty to individual lawyers in their THE FOURTH MODEL Allegretti’s ideal lawyer, we suspect, everyday workaday lives, to recognize and ALLEGRETTI CALLS might work quietly, perhaps even uncon- find ways to minimize the gap between “CHRIST TRANSFORMING sciously, against his client’s own interests, their personal moral ideals and the profes- THE CODE.” while pretending to be a faithful advocate sional imperatives that push them away and friend. Allegretti does not face as from their ideals. squarely as he might the possibility that Indeed, Allegretti’s book may best be the Christian integrationist might inad- read as an example of what he calls the who make the Model Two mistake of vertently thwart justice and the underly- prophetic ministry of the lawyer. “The believing that there is complete harmony ing rationale of the adversary system by prophet calls the people back to their between their professional roles and their acting himself as judge and jury of what covenant obligations, holding up the idea obligations as aspiring disciples of Christ. is best or right. of covenant faithfulness against the reality For the comfortable, Allegretti’s book This is not to say that the integra- of human faithlessness” (pg. 52). Similarly, raises a warning that thoughtless adher- tionist ideal does not deserve our alle- Allegretti asks the lawyer who also aspires ence to the Code may result in a moral giance. There is much about it that is to be a Christian to seek to be their best schizophrenia that will lead to the gradual inspiring and encouraging. For one thing, selves. Allegretti notes that the prophet’s wearing down of the lawyer’s preprofes- it does not let us off the hook by simply role is both to afflict the comfortable and sional ideals and aspirations. For the invoking the lawyerly “role.” Surely there comfort the afflicted (pg. 57). afflicted, Allegretti’s book contains a mes- are things that lawyers should do that Allegretti’s book should be read both sage of hope that it is possible to integrate would be wrong to do in other contexts, by lawyers feeling afflicted by the being a good lawyer with being a good but just as surely Allegretti is right that demands and constraints of their profes- Christian, as well as a number of useful lawyers can use the Code as a rationaliza- sional lives and by those who feel unduly suggestions for ways of going about that tion for turning off their moral lights. comfortable in those roles, those, perhaps, integrationist work.

32 Clark Memorandum gent researcher” because of his excellent contributions as CHANGE IN assistant to the editor-in-chief of the Thomas edition of Thompson on Real Property and as coauthor of two publica- tions on methods of corri- dor preservation. Robert also worked as Thomas’ teaching FLIGHT PLANS assistant for his first-year real A property class. by Lovisa Lyman projects from local attorneys He was not too far into Both his research and and started to polish his résumé. the program, however, when teaching were excellent train- robert payne, newest It was roughly at this juncture his father became disabled. ing for Robert’s qualification as reference librarian at byu’s that a two-year reference librar- To help the family, Robert a reference librarian with the Howard W. Hunter Law ian position opened up at the dropped out of school and got particular assignment to coor- Library, knew exactly what he byu law library (Kristin Gerdy a job at an export/import firm dinate faculty reference ser- wanted to do after he earned had accepted a visiting profes- in Albuquerque. The Spanish vices. As do other reference his jd from byu in 1999: pursue sorship at Temple’s law school, that he had mastered while librarians, he teaches modules an llm in environmental law which vacated the position). serving a mission in Chile of advanced legal research to at the University of San Diego. One of Robert’s newly-minted contributed to his success, as the student body generally, but He chose the San Diego pro- résumés went to Gary Hill with did other skills. His supervisor he also has the specific assign- gram because it was a “focused an unusually sincere cover letter, wrote about him: “Robert’s ment of teaching legal research advanced degree in an area of which began: “I would like to be keen sense of humor surfaces to the llm students. law that [was] difficult and a reference librarian for the Law with excellent timing in ways After several months in his lucrative.” But in a matter of School. Never before, in my to add to the productiveness new position, Robert still feels hours, one month before grad- three years here, have I seen a of the whole effort. He is an he has made the best possible uation, his plans fell apart. job which I was more excited enthusiastic disciple of the tra- decision for his family and for It happened when Robert for, or daydreamed more over, ditional values of honesty, hard those he serves. “I want to help visited the San Diego campus than this position.” work, and loyalty, and I found people find the answers they and saw where he would be able Although Robert’s skills, these values were consistently need. I want to do research and to afford to live with his wife interests, and abilities seemed confirmed in his performance.” gain knowledge as part of my Melissa, three-year-old daughter to fit the job, his journey to law Because of this business job, simply for the sake of Elena, and nearly-two-year-old and librarianship had some experience, Robert entered the gaining knowledge.” son Jordan (they had recently major detours along the way. As mpa program when he returned As for his future plans, discovered they were expecting an undergraduate, he majored in to school. Very quickly he dis- Robert, as well as those he a third child, to be Thomas). English, concentrating, he freely covered this was not the pro- works with, hopes his appoint- Robert, a totally invested father, admits, on what he calls dwems— gram for him, and he switched ment at the Law Library couldn’t countenance the idea dead, white, European men— to law, because “that was where becomes permanent. He would of removing his family from mostly romantic poets, and everyone had been telling me also like to finally complete a their insulated Utah environ- nourishing his love of research. I should go since my junior library degree, perhaps by dis- ment to live in such needy cir- Librarianship was Robert’s high days.” tance learning, and to teach an cumstances. Quickly he changed choice for a master’s degree Not only did he like study- occasional class on campus his flight plans—figuratively and after he graduated, but there ing law, but he had ample about dwems. More than any of literally—and returned to Provo, wasn’t a library program at the opportunities to use his these things, though, he wants as certain as he had ever been University of New Mexico, research skills. For three years to have plenty of time to spend that he was inspired to do so. and he wanted to stay close to he was employed as a research with his family. It is not But because he had been his Albuquerque home. He assistant to Professor David A. unusual for him to literally run planning on the master’s pro- began a graduate program in Thomas, two of which years home during his lunch break gram since the previous August, English with the understand- he was charged with training to read a story to his children Robert had not actively sought ing that he could emphasize Thomas’ other assistants, assis- or to take them for a walk. It’s a legal position. On graduation library services, hoping to tants who now earn $75,000 at those moments that he is day he was jobless and direc- work in a university library and more, Robert is proud most thankful he has the tionless. He covered his back by and teach romantic literature to say. Thomas characterizes opportunity to stay in Utah picking up freelance research on the side when he graduated. Robert as “a ferociously dili- and at byu.

Clark Memorandum 33 AND THE COLE W. DURHAM MUSIC OF THE SPHERES

the Max Planck Institute for faced, Cole’s willingness to with a legislative session each by Scott W. Cameron Criminal Law in Freiburg meet the people in their own year in this country when legis- made him an extremely viable cities and in their own homes lators are meeting to merely candidate. was a valuable first step. patch up or amend legislation, have you ever contemplated Within two months of his This whirlwind networking try to contemplate the quantum the “music of the spheres”—that election, Cole became a mem- was enhanced by a second for- increase in stress on a legislature ethereal harmony the Pythagoreans ber of one of the first teams tuitous event in 1991. George that has an entire code to draft, attributed to the vibration of sent to then Czechoslovakia by Fletcher, one of Cole’s profes- starting from a point where celestial bodies? On soft summer the American Bar Association’s sors at Harvard, who was then nothing exists.” After teaching nights you may hear it as you Central and East European Law at Columbia, involved Cole in for two years in the Raising close your eyes and visualize the Initiative. His expertise in “Raising Rights Consciousness,” Rights Consciousness Program, orderly progression of the earth in German criminal law and the a one-month training program Cole was asked to teach at the its course around the sun, or you associations he made while for talented young people in Central European University may sense it as you think upon researching in Germany assisted law from Eastern Europe. in Budapest. He has taught the poetic movement of the galax- him in forging several teams Others included on the fac- there every spring since 1994, ies in the immensity of space. made up of both European and ulty were Charles Fried, who having earned the designation Amidst the harsh sounds American legal scholars. In this succeeded Rex Lee as solici- of a “recurring visiting professor of the 21st century, we view time of massive legal transfor- tor general, and distinguished of law.” the universe too prosaically mation in the former eastern Europeans such as Andras Sajo, Another important point and are prone to attribute cor- bloc, Cole Durham was in a who later visited at byu. Of the of contact for Professor Durham relating occurrences to coin- position to assist. experience Cole said: “While also had its origin in the 1980s. cidence. However, a review In addition to formal invi- for 15 years I had taught stu- The International Academy for of the academic and ambas- tations, Cole became an itiner- dents whose primary concern Freedom of Religion and Belief sadorial achievement of byu ant ambassador in Central and was, what job am I going to (iafrb) was organized in 1985, Law Professor W. Cole Durham Eastern Europe. With support get, and what will my starting and Cole Durham was one of over the past two decades con- from the Law School, he trav- salary be? all of a sudden, I had the founding members. In 1991 firms the Pythagorean view eled through most of the east- people from all over Eastern he was made a member of that there is ethereal harmony. ern European countries during Europe who were asking, how the board of directors, and in Three weeks before the the months of April and May do we rebuild our world?” This 1996, a member of the executive wall came down in Berlin of 1990, taking overnight trains experience awakened Cole to committee. This organization, in November 1989, Cole and spending the days meeting what a small group of people because of the credibility and Durham was elected secretary with people. He established can do in terms of having an diversity of its board members of the American Society of ties with human rights organi- impact on the world. It also put and fellows, has turned out to Comparative Law (ascl). Cole’s zations, Helsinki committees, him in contact with some peo- be a particularly effective vehi- colleague at the Law School, and those in the legal academy. ple of influence who were cle for carrying out multina- Stephen Wood, who had Cole was willing to talk to any- involved with all kinds of law tional comparative conferences considerable stature within the one with a link to the transfor- reform initiatives and were also and consultations on religious organization, was the chair mation of Eastern European sensitive about ways that those freedom issues. The individuals of the nominating commit- society. He introduced himself efforts could go awry. involved in this organization tee and put forward Cole’s as an officer of the American While Cole’s instincts were are a veritable “Who’s Who” of name. Steve explains that Society of Comparative Law, initially academic, his back- religious freedom experts in the Cole’s six years as secretary and hoped the door-to-door ground in comparative law sen- United States, Europe, and and then chair of the Law skills he learned in Germany sitized him to what was other parts of the world. and Religion Section of the as a missionary 20 years ear- happening in Eastern Europe, a Professor Durham’s efforts American Association of Law lier would lead to other con- change he describes as “being of to sponsor international con- Schools (1981–1987), his receipt tacts. With the tremendous a magnitude seen perhaps once ferences and publish a yearly of a prestigious Max Rheinstein need for advisors in Eastern in a century.” To add perspec- international issue of the BYU award to study in Germany, Europe and people hungry to tive Professor Durham notes, Law Review over the past 15 and his connections with discuss the challenges they “While there is stress associated years have helped pave the

34 Clark Memorandum way for expanded efforts in McKenzie had been hired to draft law in Russia began. By Neuenschwander that the organizing conferences and lobby the Russian parliament, the third day, the Russians memorandum that Cole had promoting scholarly work in which was considering a “draft were saying, “Why do you authored was the “single best the field of freedom of reli- law” on religious liberty. Bill keep talking about draft law? and most helpful submission gion. Since 1990, working indi- suggested to his partner, Dick There is no draft law out received with regard to the vidually and as a member Johnson, that Cole Durham be there.” Cole modestly remem- proposed legislation.” Professor of the International Academy hired to analyze the proposed bers, “We had the feeling that Durham’s measured delineation Board, Professor Durham has legislation. Professor Durham we had sort of killed off a of the legislation, section by organized more than 30 inter- spent the summer of 1992 work- fairly dangerous draft.” section, with thoughtful obser- national conferences. Each ing on a memorandum on the Cole’s work on Russian vations tied to international October he has been able to draft law. His memorandum developments in late 1992 and law had been persuasive. Bill sponsor many of these inter- was a scholarly analysis of each early 1993 prepared him for indicated that for years the national scholars and leaders provision of the draft law and a succession of subsequent only group in the u.s.s.r. with at a conference at Brigham its strengths and weaknesses in efforts to help oppose or ame- significant exposure to Western liorate problematic Russian thought were the lawyers who legislation. Three months after read carefully and seriously the March 1993 conference, a everything on international different and even more restric- law. Indicating that Russia tive draft surfaced. This had takes its responsibility under been percolating in back cham- international law and treaties bers of the Supreme Soviet very seriously, Bill explained, during the spring and emerged “Cole’s analysis was in the unexpectedly in the summer. exact format to be persuasive Cole was involved in u.s. to that group.” efforts to oppose this legisla- New drafts began to tion, which was initially vetoed emerge after the new Russian by Boris Yeltsin, and a threat- Constitution was adopted at ened override vote came to the end of 1993, but progress naught as a result of the disso- was slow. A fairly reasonable lution of the Supreme Soviet in draft was developed by the end the fall of 1993. of 1996, but this was comman- During that time, shortly deered by some hard-liners after the standoff at the houses at the end of May, and of parliament in Moscow when very restrictive legislation was the Supreme Soviet was recon- adopted by July 4, 1997. Cole John Snyder stituted as the Duma, Elder spent much of the summer Young University. This has light of international law. Bill Dallin H. Oaks of the Quorum of 1997 working with another been a great opportunity for said they had the memorandum of the Twelve Apostles, Elder attorney, Lauren Homer, students with foreign language translated into Russian and Dennis B. Neuenschwander, preparing analyses of succes- expertise to meet with leading delivered it to the committee. area president and member of sive drafts and a compromise experts and to use their lan- The memorandum was the First Quorum of the version that was ultimately guage skills in a professional clearly being used by the com- Seventy, and Bill Atkin met passed when Yeltsin’s veto of setting in conjunction with mittee in drafting the legisla- with the newly appointed the legislation was threatened conference activities. tion. It also won Cole and Bill Head of Religious Affairs in with an override vote. Cole’s An important collabora- the confidence of the person Moscow. network of contacts with tive effort between Professor who was acting as staff to the Seated next to the current scholars, government officials, Durham and William F. Atkin, committee. Cole suggested to Head of Religious Affairs was a and other experts both in now assistant legal counsel to this individual that through the bearded gentleman who was Russia, Europe, and the u.s. the lds Church, had its ori- International Academy they introduced as Father Polosin. helped mitigate many of the gin in 1992. At that time Bill could arrange a meeting in Father Polosin had been the potentially harsh measures of was employed in Moscow Moscow with 15 or 20 people Head of Religious Affairs the Russian law. by Baker & McKenzie as man- from the u.s. and Europe. The when the draft law was being Recently, Cole was invited aging partner of the firm’s conference lasted three days. considered. Bill relates that to serve as a co-chair of the Commonwealth of Independent Following a number of formal after the meeting, Father Legislative Working Group of States (cis) office. Baker & presentations, talk about the Polosin told Elders Oaks and the Advisory Panel of Experts

Clark Memorandum 35 on Freedom of Religion and compiling a comprehensive set us.” He also indicated that Cole’s Professor Durham is quick Belief, which has been estab- of the relevant constitutional service was doubly appreciated to point out that there lished under the auspices of and statutory texts. We do not as he served without “wanting are many others involved in the Organization for Security know the laws of different something out of his service.” these same efforts. Professor Cooperation in Europe (osce). countries. No one does. You In recognition of Professor Frederick M. Gedicks, of the This is an important initia- can’t get copies of them. For Durham’s work, Brigham Young byu law faculty, and Steven tive of the osce’s Office of example, even people adminis- University and the J. Reuben Smith, now at Notre Dame, Democratic Institutions and tering religious matters at the Clark Law School have founded have emerged as major thinkers Human Rights and is aimed at federal level in Moscow have the byu International Center on constitutional theory deal- helping to promote better not been able to succeed in for Law and Religious Studies, ing with church-state issues implementation of freedom of keeping track of relevant legisla- with Professor Durham as direc- in the United States. Several religion and belief in osce tion (often unconstitutional by tor. In a recent grant proposal, other members of the faculty countries (the u.s., Canada, Russian standards) that is being Professor Durham described the have published and/or made Western Europe, and all the adopted in the regions. It is work of the Center. other scholarly contributions countries of the former com- vital to be able to get access in the field: e.g., Kif Augustine- munist bloc). The panel of to such materials so that it The Center aims to encourage Adams; Ray Jay Davis; James experts has noted that no one becomes possible to analyze interdisciplinary study that will Gordon; Brett Scharffs; David has a comprehensive oversight them, to work on reform mea- help explore the fundamental Thomas; Kevin J. Worthen, ’82; on religion policies in all of sures, and to improve practices.” values of freedom of religion Jay Bybee, ’77; and Michael K. these countries. Cole has done At the university con- both as these have emerged his- Young, dean of the George a background report on regis- ference in August 1999, Cole was torically in the United States, Washington Law School, byu tration issues for churches. He awarded a prestigious University and as they are evolving in other ’73, Harvard Law School ’76, indicates, “There is a crying Professorship. Due to his parts of the world. It will place who has a presidential appoint- need for more extensive infor- travel schedule, the installation special emphasis on study of the ment as vice chair of the mation so that we will have a banquet honoring Professor legal implications of these funda- International Religious Liberty better understanding of the Durham could not be scheduled mental values and is committed Commission established under legal framework of religious until November 3, 1999. One of to do so taking a broad compara- the International Religious freedom in these countries.” the speakers, Elder Dennis E. tive perspective. The Center will Liberty Commission Act of Cole has been asked to lead an Neuenschwander of the First promote scholarly study through 1998. According to Cole, Dean effort to help gather key legal Quorum of the Seventy, who organizing symposia, colloquia, Young’s appointment gives him materials in this area and make has been personally involved lectures, and workshops that will a significant voice in influenc- them available through a Web with the lds Church’s effort to involve key church-state leaders ing policy in the United States page. The panel of experts obtain legal recognition in both from the United States and and between the United States is also spearheading efforts Eastern Europe and Russian abroad. It will promote dialogue and other countries. in legislative reform, conflict for over a decade, commented between scholars and govern- While there is much to be resolution, and education for on Cole’s unassuming nature: ment officials and will facilitate done for the cause of religious tolerance. “Professor Durham was quietly the development of networks of liberty throughout the world Efforts of this type make going about doing good with- experts working in this area to in the coming decades, in sense, of course, to people from out significant notice.” Elder assure support for those working retrospect, it is clear that many different countries and Neuenschwander went on to in this field around the world. Professor W. Cole Durham has faith traditions. But to Cole, describe the natural tendency [The goals of the Center are been quietly doing good. these take on a special signifi- to look for prominent people to nurture] relationships with There is a grace and symmetry cance in light of scriptural pas- when something important has government officials and schol- that emerges when looking at sages such as d&c 93:53, which happened, “when in actuality ars who are shaping long-term the last 20 years of Cole’s life, instructs that it is God’s will the work is done by those church-state policy, [to help] which evokes the music of that we “obtain a knowledge . . . prepared to do it, and they strengthen commitments to the the spheres. Any assertion of of laws of God and man, and generally do it quietly, and universally accepted right to coincidence or mere good tim- all this for the salvation of occasionally, in the words of freedom of religion or belief ing seems a woefully inade- Zion.” Even in the limited the Doctrine and Covenants, enunciated by the American quate explanation. With the sphere of laws directly relevant even the person himself “know- Constitution and other constitu- establishment of the byu to freedom of religion, Cole est it not” (d&c 35:4). Elder tional instruments around the International Center for Law explains the difficulty of follow- Neuenschwander indicated that world, and to organize a group and Religious Studies, we will ing this injunction. “Even in the “the rest of us could do what we of experts who are assisting with all keep listening, for it relatively developed osce coun- did because of the context that religious freedom law reform appears there is more “music” tries, no one has succeeded in Cole Durham had prepared for on a global basis. forthcoming.

36 Clark Memorandum Cedar Heights, Maryland, an join the elite group. After an all-black, mostly agrarian com- extensive security investigation, munity about a mile outside of he became the first black ser- BLACK d.c. Washington, Separated from viceman to participate in offi- the nearest white community cial White House ceremonial by a eight-foot fence topped functions, such as state dinners. with barbed wire, Winston A year into his assign- attended black schools and a ment with the color guard, MORMON black church and didn’t have a Winston’s unit was called on television to access the outside for riot control when Martin REPUBLICAN world. “Hate was not instilled Luther King, Jr., delivered his WINSTON WILKINSON in us,” he avers. Although he “I have a dream” speech to a realized that his father occa- packed Washington, d.c., Mall. sionally came home frustrated Winston and 10 other black from his job at the Government servicemen hurriedly conferred Printing Office, he never heard about what they would do if any details. In retrospect he they were ordered to turn recalls that on those occasions their bayonets on their own his parents would discuss mat- people. They agreed to lay ters behind closed doors. As an their weapons on the ground adult, Winston learned that his and take the consequences. bright but uneducated father Fortunately, King’s words had was repeatedly passed over for a calming effect, and Winston promotion during the 35 years and his companions never he worked at gpo and regu- took an action that could have larly had to teach new white led to court martial. As much employees their jobs, only to as he was wooed by charis- have them rise to positions of matic King, Winston couldn’t authority over him. He bore forget that his father’s dreams this treatment quietly to protect were never attained through Winston and his three sisters, passive resistance. Later Malcolm but he could not protect them X, whom Winston calls an indefinitely. “eye-for-an-eye guy,” would win In 1962, 18-year-old Winston his allegiance. left home to join the Navy, and An incident in 1964 gave it was then that he first encoun- him a substantial push toward tered racial discrimination. He Malcolm X’s corner. As a joke, and some white servicemen Winston’s chief petty officer companions ordered a restau- assigned him to carry the rant meal after which the wait- Alabama state flag in Lyndon ress markedly informed them Johnson’s inaugural parade. As that they could buy the food Winston held the flag at atten- but wouldn’t be allowed to eat tion in the Sam Rayburn Office by Lovisa Lyman Clark Law School. Winston, it inside. His friends recog- Building, a stranger approached a Howard University law grad- nized the slight before he did him and attempted to wrench uate with years of experience and insisted that they all leave. the staff out of his hands. imagine an african in government service in (Subsequently the restaurant Others subdued the man and American child growing up in Washington, d.c., brings hard- was placed off-limits to military someone told Winston that his the United States in the 1950s won wisdom, a genial nature, personnel.) assailant was Governor George and early 1960s insulated and and a warm, open smile to his While Winston was sta- Wallace, an adamant segrega- protected from racial discrimi- recent appointment. tioned in Washington, d.c., tionist from Alabama. Later nation. The scenario is hard to Named for Winston President Kennedy decided that same day as Winston car- believe but true of Winston Churchill, whom his mother that the White House honor ried the flag on the parade Wilkinson, lds Development admired, Winston Wilkinson guard needed ethnic variety, route, Wallace’s limousine was donor liaison for the J. Reuben was born and grew up in and Winston was chosen to right behind him. Each time

Clark Memorandum 37 Winston slowed to a stop, the he remained until 1981. There issue, his strong testimony sus- ual harassment. In 1999 he driver eased the limo into the he determined to become even tained him. Winston has rele- moved to his current position back of his legs, nudging him more involved in politics and gated the priesthood issue at lds Development where he while revving the engine as joined the Republican Party. along with other questions and is assigned to the Law School. though he would run Winston In 1980 he attended the feelings about racial injustice to His legal background, expert over. No longer was he insu- Maryland Republican State a compartment at the back of knowledge of politics, and lated from Southern hatred and Convention. In the hotel lobby, his mind. He says, “Blacks are wide acquaintanceship on the prejudice. he passed a man he’d never met still fighting battles in their east coast prepared him to After four years in the before and suddenly felt minds that have already been assume the fund-raising efforts honor guard, Winston used the prompted to stop and ask the fought in reality.” The gospel in the eastern United States. gi Bill to attend Morgan State stranger about his religion. The helps him deal with the con- Though new to fund-raising, University in Baltimore, where man was Dallas Merrell, who tents of that compartment. Winston sees his career change he starred in basketball. There, later became a member of the The same year his family as “divinely inspired.” military spit and polish gave Quorum of the Seventy. Merrell joined the Church, Winston Uniquely placed by his way to an Afro halo and a Fu responded that he was a began working for the experience to take on the Manchu mustache that reached Mormon, and when Winston Department of Education interests of the Law School, his chest. Similar changes pressed him for more details, helping to draft national Winston is also eager to be occurred mentally, and before he graciously invited the policy. Later, he served as involved in and contribute to long he joined fellow students Wilkinsons to his home for din- deputy assistant secretary for his local community. A resi- at sit-ins, pitching tear gas can- ner and to meet the missionar- civil rights at the Department dent of Sandy, Utah, he is cur- isters back at the policemen ies. After two lessons, Winston of Health and Human rently running for one of the who threw them. knew the Church was what he Services, dealing for a time new county commissioner His growing anger was wanted, but Gloria took a bit with Title ix and women in slots and has wide-ranging tempered somewhat when he longer to convince. She was sports issues. His supervisor support from the constituency moved on to law school and a particularly concerned about was Clarence Thomas. because of his long govern- fellow student advised him how they and their children While Winston worked ment service, community that to prepare for future crises would be accepted in a white for the government, Gloria planning skills, and compre- he must develop mentally, church. Merrell assured them worked for Church public hension of minority needs and physically, and spiritually. there were black members in affairs in the Washington area, aspirations. Though raised a Christian, he the congregation, and they making many contacts with Winston characterizes him- saw his spirituality as his weak- agreed to attend. None of the Church leaders and hosting self as “three times a minority: est suit and began to search for black Saints were there the ambassadors from around the I’m a Republican, I’m black, a belief he could truly espouse. week the Wilkinsons went to world and visiting dignitaries. and I’m a Mormon.” In fact, After serious introspection, he church, however. Nevertheless, Between the two of them, they Winston’s experiences combine and his wife, Gloria, whom he the members were friendly and became well acquainted with a to produce a complex, caring had met at Morgan and mar- warm. (Winston admits that all wide range of people in and individual who has successfully ried in 1970, embraced Islam entries into new wards haven’t outside the Church. But as compartmentalized the ques- and changed their names. For been quite as warm. “For a sec- Winston’s tenure drew to a tions of racial injustice into a three years he was a believer, ond I wonder if it’s because I’m close, they necessarily began to place he does not visit very but he was still not entirely sat- new or because I’m black, but I look for new arenas. often and which makes him isfied. He recalls praying a prefer to think that it is because When Winston was a more determined to improve number of times for guidance I’m new.”) Once they finished young boy in Cedar Heights, others’ lives. in finding the religion that the lessons, Winston, Gloria, he had dreamed of going West. This background explains would answer all of his needs, and their oldest son were bap- Now that desire rekindled and his attitude toward his position but not receiving a response. tized. (The couple’s daughter in the mid-1990s he had an as donor liaison: “It’s not about He was making progress and other two sons were bap- opportunity to work in Utah fund-raising” but “about saving professionally, however. Upon tized as they came of age.) Governor Leavitt’s administra- people’s lives.” He is particu- graduating from Howard, Some time after their bap- tion. When he came to Utah to larly concerned about the where he concentrated on city tisms in 1981, when the family interview, he also investigated many bright, capable students planning and zoning rather was well established in the an opening in the human who would not be able to than on litigation, he clerked Church, Winston discovered resources division of the attend Law School without in the country attorney’s office that blacks had not held Church offices. He accepted donor support. He assures in Prince Georges County, the priesthood before 1978. the human resources position potential donors that becom- Maryland, then moved to the Although it took him some and became part of in-house ing “part of someone’s life is county executive offices, where time to work through the counsel in such matters as sex- what giving is all about.”

38 Clark Memorandum When people ask Richard FIT FOR THE Fitt what he does, he often illustrates his explanation with such stories. “Fund-raising for the Church is very missionary- like,” he says. “It’s absolutely KINGDOM: clear that we are directed by the Lord if we are doing what we LAW SCHOOL DONOR should be doing.” When asked what they should be doing, he answers, “All we do is build LIAISON relationships and help donors do what they want to do.” Like many involved in fund-raising, Richard came to the field by a circuitous route. RICHARD Both his ba and ma, earned at byu, were in humanities, with emphasis on art history and French literature. The vague FITT notion that he would someday teach gave way to successful forays into sales and market- by Lovisa Lyman ing in the San Francisco Bay area where he was reared. In for the past year 1985, almost by accident, he and cpas; and ecclesiastical ballroom dance. Richard told Richard Fitt has been assigned heard about an opening for a leaders who are often consulted her about the byu Ballroom to byu Development as a donor position with lds Foundation about giving charitable gifts. Dance Program, and she was liaison for the Law School. He in Northern California. He Next Richard made presenta- delighted with the opportunity recalls one of his early experi- learned that lds Foundation tions to lds stake leaders so to contribute a generous mil- ences in fund-raising when he personnel are employed and they would know how to man- lion dollars. Subsequently, she worked for lds Foundation* in staffed through Church head- age their part of the transac- enjoyed the results of her gift Northern California. A local quarters in Salt Lake City and tion. In a bishopric himself at when she attended many ball- cpa who is a member of the deployed to particular areas or the time (in fact, since 1980 he room competitions. Church contacted him about a assigned to specific projects. has served as a counselor or “You try to discover their nonmember couple who would Since Richard lacked the bishop every year but one), he dreams,” Richard explains of his be paying high taxes if they did requisite experience in finance knew how burdened these men approach, “what they want to not give a charitable gift. The and charitable giving for the were, so he requested that they accomplish, their vision of the cpa had outlined the vari- job, he didn’t think his applica- do no more than remember his future, and then try to make as ous educational interests of tion had much of a chance. To name. Richard follows a similar good of a match as you can.” the Church for the potential his surprise, he was called in for approach for the Law School. Large or small, “every donors. When he mentioned personal interviews and offered One substantial gift in penny of any gift goes to the Ricks College, they perked up the job. At the risk of seeming California came as a result of an project itself.” Modest gifts are and wanted to know more ungrateful, he asked why he was ecclesiastical contact. A stake as important to the effort as about the school. Richard had chosen over other applicants. president found out that a less- large ones. “It’s amazing how provided the cpa with a copy of His new employer assured him active widow in his stake helpful $10 can be when the a video on a program for out- that finance and charitable giv- wanted to give a gift, and he whole amount goes to a par- door education of the handi- ing can be learned, but selling referred her to Richard. As they ticular destination,” Richard capped, and the cpa invited the and people skills cannot. visited, Richard discovered says. The important thing is couple to view it. Afterward, Richard’s people skills were something she loved. Before her that the donor feel “good they confided that they had a immediately called into service. husband’s death, the couple had about the gift and that it will handicapped son named Rick. He began by contacting past gone on cruise after cruise—not make a difference.” Their gift of $300,000 substan- donors; professionals involved because they loved cruises but In 1993 an opportunity to tially furthered the Ricks in charitable giving and estate because they found that a cruise learn more about the legalities College program. planning, including attorneys ship is a wonderful place to of charitable giving opened up

Clark Memorandum 39 in Provo. Richard and his wife, directly with donors, though instead. She told Richard about E. Lee Advocacy Program; Patricia (Tricia), had met at his efforts also extend to attor- two causes dear to her heart: Cole Durham’s International byu and welcomed the chance neys who represent donors. byu—Hawaii and teaching sci- Center for Law and Religious to return to Utah with their “The Law School has a natural ence to youngsters. Together Studies, which strives to three children. In the lds constituency—graduates of the they drafted a scholarship fund assure that religious liberty is Foundation’s technical assis- Law School and attorneys, for Polynesian students who built into the language of tance office, he joined three either byu graduates or not,” wanted to become science emerging constitutions in attorneys in counseling donors— explains Richard. teachers. Her final hope was Eastern Europe; and Richard generally through their profes- In approaching these that she would be able to go to Wilkins’ World Family Policy sional representatives—about “extraordinarily gifted, incredi- Hawaii to set up a related tutor- Center, directed at helping ways to make gifts the most bly talented people” Richard ing program. Against all medical families internationally to beneficial to the university first seeks to establish a rela- expectations, she went, lived in stand against policy-making and the donor. Their efforts, tionship. “My job is so much Hawaii for two months, and institutions and people with geared more to the profes- more building genuine rela- returned home to die a month antifamily agendas. In addi- sional than to the giver, served tionships than fund-raising. later. Richard admits he grieved tion, Law School liaisons seek as a resource for attorneys. Naturally people realize when the death of this strong, deter- ongoing funding for scholar- Although Richard lacked a law you contact them that you are mined woman: “You become ships and professorships. degree, he was the only one in interested in their money, but so involved with people that Currently Law School devel- the office who had worked as they can see very clearly if you you are almost treated like opment is setting up a volun- a donor liaison before. Thus, are only interested in their members of the family.” tary organization for the Lee while he gained a healthy money.” Sincere interest cannot Though difficult to heed in Memorial Fund. “We need respect for the legal challenges be feigned and should never be this woman’s case when she participants in time and trea- of charitable giving, including pushy. “Pressure takes away was so ill, Richard realized one sure,” says Richard, who is trusts, estates, and annuities, from the charitable nature of of the truths of giving: “Don’t talking to alumni, law society Richard shared his long experi- the gift, robbing donors of the try to dissuade people from units across the country, and ence in the human side of giv- blessing of giving a totally vol- what they want to do. The gift other attorneys. “All you need ing. “Lawyers want to look at untary contribution.” is the donor’s stewardship. The to qualify is a desire to make all sides,” he says. Publicity can also dilute the liaison’s job is to give options friends.” Though his time at techni- joy of giving. Richard recalls and counsel.” As a footnote to For the past 15 years, cal assistance was mutually pro- another gift he arranged. Even this story, Richard says this Richard has made many friends ductive, Richard missed direct now he is hesitant to tell the donor continues to give. He while helping generous people contact with donors. After five details, since the donor insisted recently learned that with find the projects they can feel years, he was reassigned to on complete anonymity. The the settlement of her estate good about and then assist- the College of Humanities and diminutive woman involved the Foundation has received ing them with the intricacies the Lee Library, areas heavily was a college science professor $50,000 to fund scholarships of actually giving their gifts. involved in fund-raising for who lived on pristine property for Polynesians and Latin “Most donors,” he has discov- new buildings. Then in 1998, abutting a national forest. One Americans at Church colleges. ered, “regard their wealth as a when Development’s Law day an inexperienced logger cut The Law School is still stewardship, and they want to School representatives Bruce down a tree on government reaping the benefits of Bruce use it properly. If they are lds, Snow and Larry Bluth moved land, which fell onto her prop- Snow’s and other Law School they usually view their dona- on—Bruce to become executive erty, hitting her, breaking her donor liaisons’ work. “We tions as helping to build the director of Development for leg and jaw, and inflicting inter- have helped to harvest where kingdom as well.” They sub- byu, and Larry and his wife to nal injuries. After six weeks of they plowed and planted,” scribe to the Savior’s words: preside over the Mexico City hospitalization with her jaw Richard says of much of his “No man, having put his hand Temple Visitors Center—Bruce wired shut and months of and Winston Wilkinson’s ser- to the plough, and looking invited Richard to assume Law recovery, she finally received a vice. “The Lighting the Way back, is fit for the kingdom School fund-raising for the settlement from the govern- Campaign was tremendously of God” (Luke 9:62). So does western United States. ment. About that time, she was successful. But now we are Richard Fitt, whose hand Richard’s past experience diagnosed with bone cancer. plowing and planting for is firmly on the plow of the helped him better understand Since the settlement of $40,000 future harvests.” Richard is Law School. what lawyers face in protecting did not begin to compensate wholly committed to cur- the university, its institutions, her for the money she had rent Law School projects, *lds Foundation is the “umbrella” and their donors and uniquely spent on her accident expenses, including the Rex E. Lee department that oversees all fund- prepared him for the new posi- she determined to give the Endowment, which funds an raising efforts of the Church, includ- tion. Best of all, he still works money to the lds Foundation endowed chair and the Rex ing byu Development.

40 Clark Memorandum Clark Memorandum J. Reuben Clark Law Society J. Reuben Clark Law School Brigham Young University