Paul Paton, University of Alberta
How can lawyers reconcile their religious or spiritual beliefs with what they encounter in the office? That question was front and centre again earlier this year, when a New York Times headline read “The Case Against Gay Marriage: Top Law Firms Won’t Touch It.” While the article tracked a shift in favour of equal marriage rights, an important subtext suggested that lawyers with religious leanings were being “bullied into silence.”
Consider the story of Paul Clement, a former US solicitor general who defended the Defense of Marriage Act (which denied benefits to married same-sex couples). Clement’s firm, King & Spalding, withdrew from the case in 2011 after gay rights groups lobbied clients. Clement then quit and moved to a smaller firm, but continued to carry the file. In 2013, the US Supreme Court struck down the law in a 5-4 vote. A follow-up ruling, in US v. Windsor, was issued this spring, but Clement was no longer taking part.
The issue of whether large firms should represent controversial clients isn’t limited to same-sex rights, and it isn’t new. Will the firm represent management or labour? Governments or those suing them? Tobacco companies? Guantanamo detainees? These questions are both economic and moral ones. But when they become religious or spiritual, an even deeper layer is engaged.
A 1998 Fordham Law Review symposium, “The Relevance of Religion to a Lawyer’s Work,” brought together lawyers, professors and religious leaders to discuss how better to address a key set of questions: Is a lawyer’s religion relevant to his or her work? If so, how? And how does that answer square with the broader societal debates about “the role of religion in the public square?”
These are often uncomfortable conversations, but important ones that are receiving increasing attention. One approach is found in a 2001 book entitled Church on Sunday, Work on Monday, written by Scotty McLennan (lawyer, Unitarian minister and Dean of Religious Life at Stanford) and Laura Nash of the Harvard Business School. They argue for leaving “espoused religion” at the door while bringing forward more generalized statements of religious wisdom, which cross boundaries and traditions. For basketball fans, Phil Jackson’s 2013 book, Eleven Rings, tracks how the former NBA coach brought Zen Buddhist practices to his teams to move them from “being disconnected and ego-driven to being unified and selfless.”
A so-called “second wave” of religious lawyering scholarship in the US is now focused, as Fordham Professor Russell Pearce put it, on moving “beyond the question of whether lawyers should bring religious values to bear on their work, toward the difficult issues of how this should be done.” While religiously affiliated schools and organizations bring a direct focus on these issues, others have argued that many conceptions of religious lawyering fit within the discretion afforded lawyers under ethics rules. The key is respecting client autonomy while figuring out how to preserve your own self and not check your moral convictions at the office door.
Rob Vischer, a legal ethics scholar and Dean of St. Thomas University School of Law put it this way: “The concrete differences religious lawyering will make will tend to involve relational differences — i.e., seeing the client not simply as a source of predetermined legal instructions, but as a fellow human faced with circumstances brimming with moral significance. This is true not just with death row inmates, but with high-powered corporate executives.”
Even speaking this way is not without considerable risk, but engaging in moral conversations, whether religiously oriented or not, never is. The dominant approach and discourse will continue to shape and guide both ethics rules and most lawyers and firms. But as the New York Times story amply demonstrates, this dialogue isn’t going away any time soon. Better to learn and understand it first.
Paul Paton is the Wilbur Fee Bowker Professor and Dean of Law at the University of Alberta. He can be reached at email@example.com.