‘Learned in all the arts and cunning’

June 14, 2004 | 69 comments
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So I’m reading Alma 10 for Sunday School this week and thinking about lawyers:

14 Now it was those men who sought to destroy them [i.e., Alma and Amulek], who were lawyers, who were hired or appointed by the people to administer the law at their times of trials, or at the trials of the crimes of the people before the judges.

15 Now these lawyers were learned in all the arts and cunning of the people; and this was to enable them that they might be skilful in their profession.

16 And it came to pass that they began to question Amulek, that thereby they might make him cross his words, or contradict the words which he should speak.

17 Now they knew not that Amulek could know of their designs. But it came to pass as they began to question him, he perceived their thoughts, and he said unto them: O ye wicked and perverse generation, ye lawyers and hypocrites, for ye are laying the foundations of the devil; for ye are laying traps and snares to catch the holy ones of God.

I think it is safe to say that no other profession gets the bad rap that lawyers do in the Book of Mormon. Why is this? What’s the message for today?

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69 Responses to ‘Learned in all the arts and cunning’

  1. Frank McIntyre on June 14, 2004 at 4:51 pm

    I used to play a lot of tactical/strategy games. There was a popular phrase– “rules lawyers”–most often use din reference to the game CAR WARS. These rule lawyers were despicable for their nit-picking over rules instead of facing up to the fact that your flamethrower had just set their car’s armor on fire and there was nothing they could do about it.

    Although this attitude is rampant among professional lawyers, the Book of Mormon condemnation is more wide-ranging– comdemning all those that “are laying traps and snares to catch the holy ones of God”. One can be a “doctrine lawyer” without a J.D. (but don’t let the Bar association know…)

  2. Kingsley on June 14, 2004 at 5:06 pm

    Joseph Smith, chastising the elders for getting too heated in a debate, told them they had “too much of that enthusiasm that characterizes a lawyer at the bar, who is determined to defend his cause, right or wrong” (my emphasis). I think it sums up his (& Brigham Young’s, & the Book of Mormon’s, etc.) antipathy toward the profession quite nicely. On the other hand, he was known to praise quite highly the ( presumably honest) lawyers that he was called upon to call upon from time to time, so that he obviously recognized the great good that good lawyers do.

  3. Jim F. on June 14, 2004 at 5:14 pm

    I’m not sure what to make of the Book of Mormon antipathy to lawyers, but surely we need lawyers to defend those who are rightly accused as well as those wrongly accused. And surely they should do so with enthusiasm.

  4. Kingsley on June 14, 2004 at 5:22 pm

    I think (in context) Joseph was saying, “Look, you don’t care what the cause is (it could even be morally repugnant to you), you’re just championing it because you get x out of it.” In this case x being pride gratification, in the Unknown Lawyer’s case x being $ etc. I’m sure he wasn’t referring to the fact that even the guilty have a right to representation etc.

  5. Carl Youngblood on June 14, 2004 at 5:36 pm

    As I understand it, lawyers abide by a type of socratic oath, which essentially says that it is the lawyer’s moral obligation to defend a person, guilty or innocent, to the best of his ability. From this point of view, a lawyer who doesn’t do his best to acquit someone, even if they are guilty, is being immoral. I believe this view is at odds with Joseph Smith’s opinion as expressed in another comment, and I side with him rather than the profession of the law, but I think it is important to understand their stance.

  6. Carl Youngblood on June 14, 2004 at 5:37 pm

    As I understand it, lawyers abide by a type of socratic oath, which essentially says that it is the lawyer’s moral obligation to defend a person, guilty or innocent, to the best of his ability. From this point of view, a lawyer who doesn’t do his best to acquit someone, even if they are guilty, is being immoral. I believe this view is at odds with Joseph Smith’s opinion as expressed in another comment, and I side with him rather than the profession of the law, but I think it is important to understand their stance.

  7. Carl Youngblood on June 14, 2004 at 5:38 pm

    As I understand it, lawyers abide by a type of socratic oath, which essentially says that it is the lawyer’s moral obligation to defend a person, guilty or innocent, to the best of his ability. From this point of view, a lawyer who doesn’t do his best to acquit someone, even if they are guilty, is being immoral. I believe this view is at odds with Joseph Smith’s opinion as expressed in another comment, and I side with him rather than the profession of the law, but I think it is important to understand their stance.

  8. Kingsley on June 14, 2004 at 5:44 pm

    If the lawyer is defending someone accused of murder (say, Scott Petersen), & the accused says, “Look, I did it, all right? I killed my wife & baby,” is the lawyer obligated to defend him or can he pass the case on? (You can see that I am absolutely ignorant here, & probably didn’t do Joseph justice by sharing the one anecdote & speculating that it summarized his views on the subject). & even if the lawyer decided to keep the case, it seems like knowingly trying to put a wife & baby killer back on the street would be morally questionable, Socratic oath or no. Does the accused usually tell the lawyer whether he’s guilty or not?

  9. Julie in Austin on June 14, 2004 at 6:04 pm

    So is it unethical for an LDS lawyer to defend someone who is guilty? To prosecute someone who is innocent?

  10. Kingsley on June 14, 2004 at 6:10 pm

    I think the question is more is it unethical for any lawyer to knowingly defend/prosecute etc. My gut instinct is “Of course it is! You’ll have to stand there lying to jury & judge, & meanwhile Mr. Death is free to kill again because you’re so good at lying … ” But the System seems to require it. Thus my question, if you do know they’re guilty can you beg off.

  11. Jim F. on June 14, 2004 at 7:23 pm

    I’m waiting for the lawyers to step in and clear this one up, but my anything-but-expert understanding is that, as officers of the court, it is, indeed, unethical for a lawyer to defend someone he knows to be guilty (with exceptions for insanity defenses, etc.). Thus, the lawyer doesn’t ask whether the person is guilty. If the accused volunteers that he is, then the lawyer’s job is either to give up the case or to plead guilty for his client.

  12. Steve Evans on June 14, 2004 at 8:14 pm

    Jim, you’re a little off, I think.

    Lawyers can’t lie to the Court. That’s about what the rules boil down to — we certainly can represent guilty clients, and have them plead ‘not guilty’. What we can’t do is put our client on the stand and let him perjure himself, or do anything that would be an affirmative deception of the court.

  13. Adam Greenwood on June 14, 2004 at 8:25 pm

    1. Let’s note that this debate is largely theoretical. In practice, criminals never, hardly ever admit to their attorneys that they’re guilty because they realize their attorey can carry on better if the attorney can at least maintain the fiction of innocence to himself.

    2. On the morality of lawyering: Lawyering is a lot like soldiering. It’s not that great of a thing to do, but if unscrupulous and misguided people are going to do it than we have to also.

  14. lyle on June 14, 2004 at 8:46 pm

    Jim: I think what Steve is trying to say is that _legally_ (corporate defense) lawyers [ok, and some plaintiff's too...] can’t allow a client to perjure themselves. However…they do. Worse,

    lawyers burn & shred documents all the time [or tell their clients that they will have to turn over the smokeing guns _if_ they exist, aka "burn them quick & don't tell me about it!] …as long as they are sure that they have all the copies & there isn’t an archived list. The reason there are no smoking guns & it’s hard to prove anything in court these days (hence, longer trials, longer discovery) is because so much evidence is destroyed.

  15. lyle on June 14, 2004 at 8:48 pm

    Frank:

    btw, as a D&D playing “rules lawyer,” … you can’t play the game if you can’t agree on the rules. (oh, and btw, you used a d6 instead of a d8 to determine the damage for that flamethrower roll…so it’s a good thing there are ‘rules lawyers’ around, eh?) ;)

  16. Kaimi on June 14, 2004 at 9:02 pm

    Yes. Everyone is entitled to representation, if the state wants to lock them up.

    Note that guilt and innocence are pretty vague concepts as used in the lexicon, but guilt, when used in a legal sense, carries a much more precise meaning.

    If a layperson says, “Nate is guilty of murder” and is asked to elaborate, he might say, “Well, Nate did it, didn’t he?” or something equally imprecise.

    The state statute, on the other hand, might state that a person is guilty of murder of they kill a third person, with intent, and with malice. The attorney may argue that Nate’s actions do not meet the legal definition of intent, or of malice. Or an affirmative defense may be used. And so forth. It is a much more complicated inquiry than just “did he do it?”

  17. Jim F. on June 14, 2004 at 10:14 pm

    Steve, thanks for clearing that up. You’re right, I was wrong. Let me add to Kaimi’s further explanation that I think too many times those who complain about lawyers defending “guilty” people are implicitly willing to give up the principle of innocent until proven guilty. Bad idea.

  18. Julie in Austin, who is already regretting taking on the lawyers on June 14, 2004 at 10:34 pm

    But, Jim, perhaps the *court* hasn’t yet decided that the person is guilty, but it might be 100% obvious to the *lawyer* that the person is guilty. In that case, how can a lawyer ethically encourage the court to make an incorrect decision?

    I have to say that I find some of the responses given on this thread a little disturbing (you need to know that you are talking with someone who has major ethical freak-outs if I am undercharged by 60 cents at the grocery store). For example, Adam writes of the ability of a lawyer to maintain the fiction of innocence in order to defend the client. But i would imagine that there are many cases where, even without the client confessing, it is evident to the lawyer (who, we are assuming, has carefully reviewed the case) that the client is guilty. Can an LDS lawyer proceed with the defense with a clean conscience, just because the person hasn’t directly confessed? Kaimi’s suggestion, that these things are not black and white, also troubles me: what if the lawyer’s ardent articulation of the fact that the client did not, technically, meet the definition of malice results in someone who had, in fact, ended another life not being punished?

    My husband and I talked about this post and the comments for awhile. He maintains that the legal system creates a fictional world with its own rules (therefore, pleading not guilty when a client *is* guilty is acceptable according to the rules of the game), and while this may be right, it leaves me (when I think about it from a Gospel perspective) with the same nasty feeling that I got when offering a car salesman a ridiculously, unfairly low price for a car: it might have been part of the rules of the game, but it still felt wrong.

    By the way, we’ve gotten a little tangential here; I really do want an answer to my original question about why the BoM beats up on lawyers so much, because if I don’t get it here, I am going to have to ask on Sunday, and then the fur is really gonna fly.

  19. Jim F. on June 14, 2004 at 10:52 pm

    I don’t want to keep the thread from getting to the discussion you are interested in, Julie, but isn’t the “fiction” you speak of the necessary result of the principle that people are–before the law and in the eyes of the state–innocent until the state has proven that they are guilty?

    As for your original question, my only answer is, “I haven’t a clue.” But I wonder what “lawyer” meant in Nephite society. I doubt that it meant what we mean. Perhaps trying to figure out what a lawyer did in their system would help answer your question.

  20. Julie in Austin on June 14, 2004 at 11:33 pm

    Yes the fiction is nec. for the whole system to work, but, again, how can a lawyer *not* be culpable for what would basically amount to lying to a judge and jury?

    As for what it meant to be a Nephite lawyer–no clue. I’m fishing here, but Alma 10:14 seems to suggest that their function was similar to our lawyers, although I would also assume that their legal system would have been so different from ours that maybe the similarities are less than they appear?

  21. Jim F. on June 14, 2004 at 11:44 pm

    Doesn’t the plea of “not guilty” amount to “the state does not have sufficient evidence to convict my client”? If so, then one can take part in the system without lying, which is not to say that no lawyers lie.

    The fact that Alma 10:14 says that Nephite lawyers were “to administer the law” makes me think that the function of Nephite lawyers may have been rather different than the function of our lawyers. After all, our lawyers don’t administer the law. They plead a case, but the jury and judge administer the law.

  22. Michelle on June 14, 2004 at 11:46 pm

    The question is not whether the client did it or not, the question is whether the state can prove that the client did it. That standard must be protected in order to keep the innocent out of prison. Our society would much rather see a guilty man go free than an innocent man incarcerated — and that’s why vigorous defenses are necessary.

    Mormon lawyers have promised to abide by this ethic. Most lawyers don’t ask, and most of the time it’s not “obvious” that the client is guilty. Even if it is obvious, sometimes a judge will not allow a lawyer to drop a case. As Steve said, the lawyer is obligated to ensure that the client will not perjure himself or herself on the stand. Beyond that, the lawyer is obligated to ensure that the prosecution has good, solid evidence. Our liberties depend on it.

  23. Greg Call on June 14, 2004 at 11:49 pm

    The lesson I take from the above verses is don’t engage in litigation against the holy ones of God. Everyone else is fair game. ;)

    As Kaimi points out, cases are rarely black and white. Even if a criminal defendant provably did the deed with the requisite state of mind, society has decided that certain rights (e.g. the 4th and 5th amendments) will be protected. Even at the cost of letting guilty people go free.

    And most lawyers practice in civil, transactional, or administrative contexts anyway, where concerns about the morality of lawyering are even more complicated to tease out.

  24. Karen on June 14, 2004 at 11:53 pm

    Julie,

    I certainly understand your hesitation (I don’t really like lawyers much these days myself…)–but let me–as a recovering lawyer–try to answer from another tack. :) Lawyers, in creating ethical rules to govern their behavior, approach the question from a macro, rather than a micro perspective. So, the more important consideration (rather than having a guilty person vigorously defended) is to preserve the adversarial system, because ultimately, on a macro level, that leads to more information coming before a fact finder, leading to more fairness, and ultimately more protection for the innocent. Yes, sometimes the guilty benefit, but ultimately, the rights of the innocent accused are those that the system is most concerned for. It’s analagous to the principle that individual rights are protected, even if that protection goes against the current democratic majority preference to discriminate.

    As to the book of mormon question, about 4 years ago, our bishop (a lawyer) asked a friend of mine (a lawyer) to talk in sacrament meeting on the topic of: “If the book of mormon criticizes lawyers so much, then why are there so many general authorities who are lawyers.” I was eager to hear her tackle that one. She got up and began: “Today, I’m going to talk about prayer….” :O)

  25. Julie in Austin on June 14, 2004 at 11:58 pm

    Jim wrote, “Doesn’t the plea of “not guilty” amount to “the state does not have sufficient evidence to convict my client”?”

    I have no idea if this is the technical, legal meaning, but let’s say it is and let the lawyers correct us if necessary:

    What if the state doesn’t have sufficient evidence because I subtly advised my client to destroy it (per lyle’s comment above)?

    What if the state doesn’t have sufficient evidence because they neglected to beat the right bush, but I have it in my office under lock and key?

    etc.

    Is it ethical for a lawyer to do these things?

    One idea that my husband had, which may get us out of this dilemma: the games-playing type behavior we might justify in lawyers (such as pleading ‘not guilty’ when the client is technically guilty) *may* be acceptable, but the problem is when lawyers transfer this behavior to the world outside of the game. In other words, you don’t comb over the legalese defining ‘adultery’ in the state law to figure out what exactly you can get away with and still make it through your temple rec. interview, and you don’t negotiate new callings with your bishop before you accept his terms. It is that cross-over of behavior that gets lawyers into trouble in a gospel context. I would note here that I can’t think of (m)any examples in the BoM of lawyers chastized for being lawyers (i.e., in their professional duties) but rather when they take their lawyer-ly techniques out of court and try them out on the missionaries, such as Zeezrom trying to cross-examine Amulek and trap him.

  26. Jim F. on June 15, 2004 at 12:02 am

    Julie, as I understand it (but as we’ve already seen, I get things wrong), the behaviors you describe are unethical, even from a lawyer’s point of view. On the other hand, the Constitution says that no person has an obligation to testify against himself or herself. Some of what you describe as hiding evidence might fall under not testifying against oneself.

  27. Julie in Austin on June 15, 2004 at 12:09 am

    Several people are hitting me with some version of this argument: “Lawyers sometimes have to defend guilty people because our system depends on it.” Karen stated it really well with her point about macro versus micro approaches.

    I want to agree, however, what about that micro, i.e., the individual lawyer put in the position of persuading the court to believe a lie? Let’s take a hypothetical: “Well, let’s see, I know the CFO of Enron is guilty as sin, but since our justice system requires an adversarial process, I will play my part as his (her?) lawyer by winking and nodding and encouraging documents to disappear, by withholding damning evidence from the court, and by otherwise doing everything that I can to ensure that justice is not served in this particular case.” Could I do this and then answer that question in the temple rec. interview about being honest in my dealings with my fellow man [sic]?

  28. Karen on June 15, 2004 at 12:16 am

    Julie, ethically, you can’t withhold damning evidence. If I were doing that–which I wouldn’t–I would not only be in violation of ethical rules, and in danger of sanctions, but would also not be able to honestly get a temple recommend. Any lawyers disagree? I’d be surprised…

  29. Jim F. on June 15, 2004 at 12:19 am

    Some of what you describe is clearly unethical and probably illegal, so, it is not only not possible for someone who wants to hold a temple recommend legitimately, but also not possible for someone who doesn’t want to break the law. Other instances are less clear. If the state has accused me, am I under an obligation to provide them with the evidence required to convict me? I don’t see why. But if I’m not, then neither is my lawyer. I don’t know the law about withholding evidence. I assume that in most cases it is illegal to do so. But it seems there would be cases in which it is neither unethical nor illegal, cases in which the lawyer could answer the recommend questions with a clear conscience as well as avoid disbarment and prosecution.

  30. Jim F. on June 15, 2004 at 12:24 am

    So, why have so few lawyers chimed in on this one? I assume that a couple of words from them would put all of us straight quickly. Then we could see whether we can say something that will answer Julie’s real question.

  31. Julie in Austin on June 15, 2004 at 12:26 am

    because they are all overwhelmed with guilt?

    (just kidding)

  32. Greg Call on June 15, 2004 at 1:05 am

    There are two general schools of thought on the ethics of lawyering. One school says that a lawyer can and should zealously advocate for whatever ends her client desires (within the bounds of the law). On this thinking, a lawyer should not refuse to represent a client whose ends are at odds with the lawyer’s moral principles, and should feel no compunction whatsoever about pursuing the client’s lawful desires by any means necessary.

    The other school says that a lawyer can and should consider the interests of others (including her own) and the interests of society in her professional decisions. On this view, a lawyer must consider herself an “officer of the court” — a representive and protector of the virtue of the legal system.

    Needless to say, it is sometimes impossible to both zealously advocate and be a paragon of virtue. In settlement negotiations, should I be completely honest about what is the highest amount my client will pay? While the “officer of the court” seems preferable in the abstract, the people that hire lawyers tend prefer the “zealous advocate.”

  33. diogenes on June 15, 2004 at 1:14 am

    Recall that the “lawyers” of the Book of Mormon (not to mention those in the New Testament) were primarily experts in the Law of Moses — in the BoM case, apparently with an overlay of whatever rules were created by Mosiah II — a body of “law” sometimes functioning as the social law, but more often as the ecclesiastical law. Joseph made clear on a couple of occasions that his diatribes against “lawyers” were primarily directed at those who wrest the scriptures. The same was true of Jesus’ encounters with “lawyers.”

    As to whether a modern, secular LDS lawyer can defend someone s/he knows to be guilty — this is precisely what the Lord does. We are all, quite literally, as guilty as sin, and the Savior knows it better than anyone, but he promises nonetheless to be our advocate before the Father.

    Law is truly a Christlike profession, no?

  34. Ben Huff on June 15, 2004 at 1:16 am

    “Julie, ethically, you can’t withhold damning evidence.”

    But, if you come across damning evidence in the process of reviewing the situation with your client, how can you bring that evidence forward without, in effect, violating your client’s right to silence? or something like that. How do you go about bringing forward damning evidence, if you’re the defense?

  35. Kaimi on June 15, 2004 at 1:19 am

    Julie,

    A few points:

    1. Even if _I_ think that Nate committed murder, I’m not the arbiter. The law requires that the admissible evidence against Nate be sufficient to convince a jury. (Generally unanimously). It’s not my place as an attorney to say, “I think Nate committed murder, so I shouldn’t defend him and/or he doesn’t deserve a defense.” If I’m defending him, I should make the arguments tht are available to me. Maybe I’m the outlier, and most jury members will not believe that Nate committed murder.

    2. I can’t destroy evidence. Period. That way lies disbarment and jail time. I can’t advise my clients to destroy evidence.

    I can require that the state comply with all procedural requirements; e.g., that it be properly submitted, etc.

    3. Again, your examples seem to imply that you think a lot of cases are black-and-white. You mention the CFO of Enron as being guilty. Well, of what? The financial statutes are quite complex. (For example, what exactly is a “false or misleading statement”? There are treatises written on that one).

    In addition, as part of its role in the games that lawyers play, prosecutors routinely over-charge defendants to put themselves in better position when it comes time to plead.

    And make no mistake, the justice system is not really much of a jury trial system anymore. As I recall, the latest stats show that 98% of criminal convictions in federal court are obtained by guilty plea. (I’m not sure about the state court stats, but I would be very surprised if they differed to any great extent).

    So, if you think your client is guilty, join the club; you probably won’t have to make any argument resembling a claim of innocence; he’s almost certainly going to plead guilty just like everyone else.

  36. Jim F. on June 15, 2004 at 1:37 am

    I’ve seen people plead guilty to charges and agree to plead to lesser charges (of which they weren’t guilty) because between the power of the state behind the prosecution (brought down fully not only on the defendant, but threatened against family and friends) and their inability to out-spend or outwait the prosecution, they felt that they really had no other choice. My experience is very limited, but it makes me think that the problem in our legal system is not that too many people are getting off free when they should be convicted.

  37. Jim F. on June 15, 2004 at 1:40 am

    Seems to me like Diogenes answer to the question about lawyers in the Book of Mormon is on the mark. The parallel is to New Testament rather than to contemporary lawyers.

  38. smalltownlawyer on June 15, 2004 at 2:20 am

    As a prosecutor for over 19 years, let me say that good hard-hitting but honest defense attorneys are essential to the success of our judicial system. People criticize defense attorneys for defending the guilty, and insinuate that such a profession is unbecoming a good Latter-Day Saint; the implication being, I suppose that only slimey dishonest attorneys should engage in criminal defense. Defense attorneys can’t always be Perry Mason, the guy who only defends the innocent. Most of the time, they are just trying to get a fair deal, rather than get their guy off. And yes, it is not only the prosecutors but the structure of the criminal laws themselves that allow for and encourage over-charging.

    There is a long-standing joke in prosecution circles that any prosecutor can convict a guilty person, but you have to be really good to convict someone who is innocent. It is just a joke, but the reality is, as proven by recent DNA post-conviction analysis, that innocent people sometimes do go to prison even with a justice system that is designed to err on the side of the guilty. As a prosecutor, I have always tried to live by the maxim to never be afraid of the truth. Therefore, I welcome the challenge and testing of evidence and the application of the law that a good defense attorney brings.

    Sometimes, this is hard to take. There is a maxim in defense circles that if you can’t challenge the facts, then challenge the officer’s investigation of the facts, and if you can’t challenge the officer’s investigation of the facts, you then challenge the prosecutor’s presentation of them. Another way of putting it is to throw a bunch of mud at the prosecution’s case and see if any of it sticks. Sometimes it does, and sometimes you get an OJ kind of result. But I still think the system is the best one out there.

    In my experience, the system does in most cases result in relatively fair rough justice, given that it is administered by humans with egos and frailites and inexact standards and perceptions.

  39. Bob on June 15, 2004 at 10:32 am

    I think Lyle is wrong about the destruction of evidence by or at the behest of lawyers, at least in the context of civil litigation. Each of my cases has had its share of bad documents, and if I were to have them destroyed, even if I weren’t caught by the other side or the judge (which would cost me my license), if my colleagues found out I’d lose my job. And I don’t think my firm is unique that way. The stakes are far to high to be dishonest.

    Surely there’s a lot not to like about our system, but I think the great majority of lawyers are honest in the context of that system. The image of lawyers up into the night working over a shredder is popular myth, unfortunately just endorsed by Lyle.

  40. A Lawyer on June 15, 2004 at 11:14 am

    A couple of comments:

    (1) Why assume that the Nephites had an American-style adversarial judicial system? After all, many (most?) nations *today* do not have such a system.

    (2) Amulek states his (or God’s) reasons for condemning the lawyers (*and* judges, lest we forget). Those reasons have nothing to do with whether the lawyers knowingly represent malfeasors.

    (3) I often hear that a person can be a good lawyer and a good Mormon. Some GA’s have claimed it’s possible. The J. Reuben Clark Society recently published a book of essays (Life in the Law: Answering God’s Interrogatories), many of which address the issue. I have serious doubts about it.

    In almost any practice, there are many situations in which zealous, competent, and (under the rules of the game) ethical representation of one’s client (i) requires that one act (or refuse to act) in a way that is morally counterintuitive and (ii) leads to results that one *knows* to be unjust.

    There are two ways of avoiding the incongruity between one’s professional activities and one’s moral beliefs. First, one can (i) represent only clients whose causes are just and (ii) risk losing the cause and perhaps facing professional discipline by avoiding morally counterintuitive behavior. Tough way to make a living. Second, one can compartmentalize, seeing law as a sort of “game” for which Gospel meta-ethics are totally irrelevant. As long as you’re playing by the rules of the game, the thinking goes, you’re not compromising your integrity, displeasing God, or whatever. The problem with that thinking is that, in this game, one doesn’t play with (and for) colorful plastic pieces. The stakes are real and often high: rights, property, and sometimes life. God may not care who wins a game of chess, Uno, or basketball. But how could He not care who prevails in a criminal trial? (Does He sees all efforts at earthly justice as equally flawed and futile?)

  41. Jordan Fowles on June 15, 2004 at 11:35 am

    What do you have serious doubts about, A Lawyer? That lawyers can be good mormons or the other way around- I was not sure from your post.

  42. Michelle on June 15, 2004 at 1:33 pm

    To the comment that not many lawyers have chimed in – already 7 so far, that I know of — myself, Karen, Steve, Kaimi, Greg, smalltownlawyer, A Lawyer, and I’m sure I missed some. Julie, you still seem intent on finding lawyering morally suspect. The scenarios you mention, though, like lawyers telling their clients to shred documents or hiding evidence or lying, etc., describe what UNethical lawyers do, not lawyers in general. You’re judging the profession by a few of its members (mostly seen on TV or movies). This isn’t how it happens in real life.

    Your problem seems to be how a lawyer can defend a person the lawyer knows is guilty. First, Kaimi said it great when he said he’s not the arbiter – it’s not his job to decide. The lawyer will also not be lying as he defends his client – the judge or jury will never ask him if his client is guilty, he doesn’t even have to say his client is not guilty, all he has to do is poke holes in the case and ask the jury to find his client not guilty because of those holes. The lawyer is not persuading the court to believe a lie, the lawyer is persuading the court to believe that the case wasn’t made. That’s it. By doing so, he does ensure that “justice is served.”

    As for the Book of Mormon condemnation of lawyers, I think context is the answer. The BOM revolves around a people setting up new lands and communities and living together peaceably, or not, as they try to follow God. The laws that govern these people, therefore, are paramount to each and every story, because they define the cause and effect of every action. Therefore, lawyers, and judges, are main characters, and receive condemnation, though not nearly as much, as the people do in general. I’m sure if the BOM was a history of this land’s financial growth we’d see similar condmenations of stockbrokers and accountants.

    I’m with Jim and Diogenes, lawyering, as do parenting and stewardships, teaches us more about being ethical than being unethical.

  43. Michelle on June 15, 2004 at 1:34 pm

    To the comment that not many lawyers have chimed in – already 7 so far, that I know of — myself, Karen, Steve, Kaimi, Greg, smalltownlawyer, A Lawyer, and I’m sure I missed some. Julie, you still seem intent on finding lawyering morally suspect. The scenarios you mention, though, like lawyers telling their clients to shred documents or hiding evidence or lying, etc., describe what UNethical lawyers do, not lawyers in general. You’re judging the profession by a few of its members (mostly seen on TV or movies). This isn’t how it happens in real life.

    Your problem seems to be how a lawyer can defend a person the lawyer knows is guilty. First, Kaimi said it great when he said he’s not the arbiter – it’s not his job to decide. The lawyer will also not be lying as he defends his client – the judge or jury will never ask him if his client is guilty, he doesn’t even have to say his client is not guilty, all he has to do is poke holes in the case and ask the jury to find his client not guilty because of those holes. The lawyer is not persuading the court to believe a lie, the lawyer is persuading the court to believe that the case wasn’t made. That’s it. By doing so, he does ensure that “justice is served.”

    As for the Book of Mormon condemnation of lawyers, I think context is the answer. The BOM revolves around a people setting up new lands and communities and living together peaceably, or not, as they try to follow God. The laws that govern these people, therefore, are paramount to each and every story, because they define the cause and effect of every action. Therefore, lawyers, and judges, are main characters, and receive condemnation, though not nearly as much, as the people do in general. I’m sure if the BOM was a history of this land’s financial growth we’d see similar condmenations of stockbrokers and accountants.

    I’m with Jim and Diogenes, lawyering, as do parenting and stewardships, teaches us more about being ethical than being unethical.

  44. lyle on June 15, 2004 at 1:55 pm

    Bob: I can’t comment re: ongoing litigation, but…I’ve experienced it from some of the biggest corporate defense firms in the country. also, does anyone need to say _enron_? granted those were CPAs, not attorneys, but…similar rules apply to them, and the same incentives apply for the _system_ to look the other way. I.e. colleagues are unlikely to know what is going on in the case (outside of those working on the immediate case) & for those that do…they know that their Xmas bonus is based on whether they win/lose that case…not to mention whether they make partner, etc. You can hide in the “i’ve never done it” world, but let’s face it…honestly has largely collapsed. And it isn’t that hard to fool a judge or the opposition lawyers.

  45. Julie in Austin on June 15, 2004 at 3:05 pm

    Michelle-

    You’re misreading me. All of the questions that I have posed on this thread are actual questions, not my position masquerading as a question that we already all know the answer to.

    (The problem may be that you lawyers have thought about these things a lot already and see my questions as disingenous, but I haven’t really thought about any of this before, and I am genuinly trying to tease out the ethical dimensions of being an LDS lawyer. Maybe in their original comments people like Kaimi were *assuming* that the lawyer was bound by certain legal and ethical requirements such as not destroying evidence, but the only feedback I was seeing on that was from Lyle, who led me to believe that that was a rule only honored in the breaching of it.)

    Michelle you write, “The lawyer will also not be lying as he defends his client – the judge or jury will never ask him if his client is guilty, he doesn’t even have to say his client is not guilty, all he has to do is poke holes in the case and ask the jury to find his client not guilty because of those holes. The lawyer is not persuading the court to believe a lie, the lawyer is persuading the court to believe that the case wasn’t made. ”

    This sort of thing still bothers me. An example: there is, somewhere recorded in the heavens, an objective account of how I spent my time yesterday. However, if I were on trial for wasting time, one attorney could cherry pick some evidence (five loads of laundry, a really excellent dinner, homeschooling, paying bills) to create one impression on the court and another attorney could cherry pick to create another (watched Seinfeld, went to the swimming pool, posted a zillion times at T & S, sat on couch and stared off into space). In both cases, both lawyers are working to create a distorted impression of what actually happened (which is that I got some things done *and* wasted a some time). My big concern, whether it is wrapped into a time-wasting trial, murder trial, corporate law case, or whatever, is: can an LDS take either side in this debate and *actively work to persuade a court of a half-truth* and have that be considered ethical? If so, why? Promoting a half-truth in any other realm of life would, I think, be a clear violation of our obligation to be honest with others.

  46. Kingsley on June 15, 2004 at 3:08 pm

    A writer for The Weekly Standard who was recently in China was surprised to learn that Chinese conservatives are achingly envious of the sheer numbers of lawyers, villainous & otherwise, running around in the U.S. Their view really is the more the merrier. Not surprising, given their circumstances, but I wonder if lawyer stereotypes have to do (somewhat at least) with taking certain things for granted.

    Michelle: Not sure if I agree with your idea of why BoM lawyers & judges seem to get unusual & negative attention, esp. when considering the idea that the book was compiled & edited with us in mind (I have seen your day etc.). The fact that I read the Standard probably gives you an idea of my political leanings: that being said, do you think the (again, to my mind) unusual & negative influence of activist lawyers & judges when it comes to SSM, prayer in schools, public displays (or mention, even) of Judeo-Christian texts, etc. etc. etc., has anything to do with it?

  47. Kingsley on June 15, 2004 at 3:11 pm

    Julie: Regarding,”(watched Seinfeld, went to the swimming pool, posted a zillion times at T & S, sat on couch and stared off into space),” how did you know??(Checking my apt. for hidden cameras … )

  48. Greg Call on June 15, 2004 at 3:27 pm

    Julie,

    In the movie A Civil Action, John Travolta’s character says something about getting to the truth in the case. The more experienced lawyer, perfectly played by Robert Duvall, says “The truth? I thought we were talking about a court of law!”

    It might sound a bit cynical, but it is actually a virtue that the legal system recognizes that it is not always possible to nail down a definitive and satisfactory version of (a) what happened and (b) who is to blame for what happened and (3) how much blame should be placed. There may be an objective record in heaven somewhere, but we don’t have access to it. In the US, we have decided that an adversarial approach is the best way to do what the legal system does.

    Your time-wasting case is inapposite unless there is a written standard of what level of proof is necessary to establish that, for the purposes of the law, someone is a time-waster. As several commenters have pointed out above, your time wasting trial would be about whether there is sufficient evidence of your time wasting to meet the legal standard as set out in the statute and developed by the courts.

  49. Randy on June 15, 2004 at 3:28 pm

    Julie,

    On your question of promoting half truths, is there any reason to think that the ethical changes that face lawyers are any different than those that face accountants, or investment bankers, or salesmen (and women), or advertising executives, or . . . , well, you get my point.

    What about going to job interviews? Should you try and promote yourself, or do you tell the naked truth? How would you answer the question: “What is your greatest weakness?”

    Having a job that requires one to advocate a particular position is hardly unique. Why singly out lawyers?

    (This should also bring Michelle’s count up to at least 8 lawyers who have chimed in. ;) )

  50. Randy on June 15, 2004 at 3:34 pm

    Yes, why “singly” out lawyers? Shesh. Sorry for my failure to proof. Should be “single out,” of course.

  51. Julie in Austin on June 15, 2004 at 3:35 pm

    Greg–

    You are about the ninth person to counter one of my examples by saying, “It isn’t really about X, is it about meeting the legal definition of X.” I understand the point, but I don’t think it changes anything. I have either met or not met the legal definition of wasting time, but each lawyer will be carefully selecting and presenting evidence to suggest one or the other.

    Randy–I think you make an excellent point. These ethical issues related to persuasion to come up in other fields. It isn’t me that is picking on the lawyers, it is the BoM (grin). Just to say that that is where this conversation started. Based on my limited experience with car dealers, I would wonder how they could sleep at night.

  52. Kingsley on June 15, 2004 at 3:45 pm

    This little absolutely fair & charitable tidbit from Nibley should bring an end to the argument & leave all parties satisfied:

    “With our present limited knowledge we could devise a perfectly practical order of things in which there would be no need for doctors, lawyers, insurance men, dentists, auto mechanics, beauticians, generals, real estate men, prostitutes, garbage men, and used-car salesmen. Their work is justified as an unpleasant necessity, yet there have been successful human societies in which none of those professions existed, any more than dukes, earls, and kings need to exist in our society.”

    Approaching Zion, p. 22

  53. Randy on June 15, 2004 at 3:46 pm

    Julie,

    I’m with ya, I just hope all you non-lawyers out there are likening the scriptures unto yourselves . . . . ;)

  54. Julie in Austin on June 15, 2004 at 3:51 pm

    OK, I’m as big of a Nibley fan as your average over-educated saint, but DENTISTS? Was he out of his mind?

  55. Greg Call on June 15, 2004 at 4:02 pm

    Julie,

    I was mostly challenging your view that the legal system can and should attempt to figure out one definitive and satisfying account for a particular set of events. It can’t always be done. One person’s view or memory of an event is necessarily “distorted” compared to a complete account of what happened. So we do the best we can by having lawyers frame their client’s versions of what happened (subject to many rules of ethics, procedure, evidence, etc), and let the judge or jury make the ultimate determination. To say that “lawyers are distorting what really happened” misunderstands both what lawyers do and what any conflict resolution system can hope to do.

    When Jim and Damon argue about what Heidegger was really doing, they marshall the evidence on their side, and try to tell a compelling story to convince the reader that their account is correct. But I wouldn’t say they are distorting what Heidegger really meant. And factual events and the *legal* meaning that should be derived from them are sometimes no less susceptible to a perfect answer than interpretions of Heidegger.

  56. Julie in Austin on June 15, 2004 at 4:17 pm

    Your description of the legal system in your first paragraph is as well and good, but what I want to explore are the ethical requirements when a lawyer is aware that s/he is being asked to present a version of the story that does not square with what the lawyer believes the case to be.

    Obviously, a perfect recollection isn’t possible, but it seems that you are putting us on a slippery slope to a lawyer saying, “Well, we can’t get at any ultimate truth (or there is no ultimate truth) so I’ll go ahead and present what is most favorable to my client, even if that creates a false impression based on the facts as I know them.”

  57. lyle on June 15, 2004 at 4:29 pm

    “Lyle, who led me to believe that that was a rule only honored in the breaching of it”

    My bad. I don’t mean to say it is _only_ honored in the breach. In fact, it is followed in most cases…or else we would see more litigation on the subject. However, that it is broken shouldn’t surprise anyone…and the system is held in place more by fear that the judge or the other side will catch you than anything else. As it is, there are still large, high-profile cases with document destruction that occur every year.

  58. Greg Call on June 15, 2004 at 4:38 pm

    Julie,

    The slippery slope is prevented (hopefully) by the rules of ethics, procedure, evidence, the appellate process, etc. which I referenced above. For example, here is one of the ABA’s model rules of professional conduct, which squarely addresses the circumstance of a client asking a lawyer to present a version of the story she knows to be false:

    (a) A lawyer shall not knowingly:

    (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

    (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

    (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

    (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

  59. Michelle on June 15, 2004 at 4:39 pm

    We’re all talking in circles here. Julie, you want to explore the ethical (in general, not legal ethics) requirements of a lawyer presenting a version of the story the lawyer doesn’t fully believe is true. Assuming an ethical lawyer (which bars most of the shredding documents and lying scenarios mentioned earlier), I believe that ethics, in general, require the lawyer to defend the client. I believe this because it is the law of the land, and we are instructed to obey the law of the land. I believe that this law (our adversarial system of adjudicating) is good, and in fact is the best we have in the world today. Perhaps if you are ever on trial in the heavens, things will be done differently. But even church councils have someone, or two, appointed to defend. I would have no problem answering any and all temple questions, I don’t think a lawyer bishop would, I don’t think a lawyer stake president would, and I don’t think a lawyer general authority would. Regardless, I don’t think Heavenly Father would want me to answer any differently.

  60. Kaimi on June 15, 2004 at 5:08 pm

    Julie,

    The thing is, there is a huge benefit from having rules that foster attorney-client trust. Attorneys aren’t spies for the judge; they are meant to represent their client’s interest, and society has made that judgment.

    In some other legal systems, attorneys are less a client’s advocate and more a representative of the court. These may be perfectly good systems of law as well, but they aren’t what we have in the United States.

    The value judgment has been made beforehand — society wants accused people to trust their attorneys, to work with them. There is a societal gain in this. And so society says, this is your attorney, who will represent you.

    If the attorney was some kind of one-person truth commission of his own, or a spy for the judge or the prosecution, do you think that the client would confide in him in the first place?

  61. A Lawyer on June 15, 2004 at 5:49 pm

    Greg,

    The rules you mention do keep things from being worse. But they don’t prevent abuses of the type Julie seems to be concerned with. For instance:

    (a)(1) & (3) While a lawyer is not permitted to knowingly make a false statement of fact or introduce false evidence to a tribunal, there’s nothing wrong with giving the finder of fact a false impression. As a common example, even if one knows an adverse witness’s testimony is true, one must impeach the witness in an effort to persuade the finder of fact to disregard the adverse testimony. To say that such behavior–which is not only permitted but is actually required of a zealous and competent advocate–is morally acceptable is counterintuitive.

    (a)(2) The requirement (in some, but not all jurisdictions) that an attorney disclose adverse legal authority is often violated with impunity. And, in any event, lawyers are gifted at distinguishing cases. Thus it is easy to conclude that almost any case is not, in fact, a “directly” adverse authority.

    I’m in the business of “taking advantage of one because of his words” and of “digging a pit for my neighbor.” I do it “ethically” (i.e., playing by the rules of the game). But, as a Mormon, it’s hard to feel comfortable with the unjust fruits of my labor.

  62. Greg Call on June 15, 2004 at 6:54 pm

    A Lawyer,

    I disagree that one *must* impeach a truth-telling witness. If a lawyer knows the witness’s testimony is true, that fact should be part of the calculus in determining whether the witness should be impeached. I don’t think the decision to not attempt to impeach would typically constitute ineffective assistance. Its usually a strategic decision.

    And even if the facts the witness testifies to are true, a cross-examination might be helpful in revealing (for example) that the witness is actually just repeating what she heard someone else say, or that she was paid to testify, or is testifying under duress. Because our society has determined that such testimony should not be admitted even if it is true, impeaching in those cases seems to serve a good function even if the underlying facts are accurate.

    I agree that the requirement to disclose directly adverse authority is easily overcome by lawyers. With modern information services, however, I don’t think this is too much of a problem nowadays. And I also don’t think this obligation creates a serious conflict with zealous representation: clearly the *more* zealous move is to disclose the bad case and argue for why it is not applicable or should be overruled or ignored. As you know, courts do not like finding these things on their own.

  63. Kaimi on June 15, 2004 at 7:24 pm

    Julie,

    Also implied in your questions is that the punishments that the laws provide are just. However, a number of people, including many defense lawyers, believe that legally mandated punishments for mahy crimes are _not_ just.

    I clerked in federal court, where the vast majority of the cases that we saw were drug cases. The drug sentencing laws currently have a number of problamtic provisions. In particular, because of the emphasis on drug weight seized, lower-level functionaries often get the longest sentences.

    (E.g., Nate is a drug lord and Russell is one of his lackeys. The feds bust the ring, and when they do so, the drugs that they seize are in the possession of Russell. So Nate is up for a 5-year sentence and Russell is up for a 30-year sentence.)

    State drug sentences can be even more unjust.

    So, if you’re the defense lawyer, and you _know_ that Russell was the one with the bag of cocaine on him, mandating a thirty-year sentence, but you realize that he is not the truly culpable one, what do you do? Argue that the full penalty of the law should apply? Or do your best to get his case dismissed, because if he’s convicted, he’s going to be in prison until he’s sixty?

  64. Nate Oman on June 15, 2004 at 7:28 pm

    Julie: I work for an appellate court, so there is an obvious bias in my experience, but often much of representing a client — especially in a criminal proceeding — is less about establishing the factual guilt or innocent of the client, and is often much more about seeing to it that a client’s legal rights are properly safe guarded and protected. For example, federal criminal defendants found guilty are sentenced under an insanely complicated set of rules known as the Sentencing Guidelines. (Think the IRS code, but for criminals.) Zealous and competent representation of a client can sometimes make the difference between ten years in prison and fifteen years in prison. These may seem like silly technicalities, especially when we know that the guy is guilty, but the fact of the matter is that there is a big difference between taking away ten years from someone’s life and taking away fifteen years.

    Furthermore, most of the examples of unethical lawyerly conduct that have been bandied about here are clearly outrageous. Lawyers can’t lie. They can’t cheat. They can’t steal.

    It is a mistake to think that the only purpose of a legal trial is to establish the guilt or innocence of a person. Our institutions are set up so that trials serve lots of other purposes, e.g. constraining and policing government misbehavior, maintaining public confidence in the fairness of the proceedings, etc.

    BTW, Jim the Fifth Amendment’s protection against self-incrimination extends only to testimony in court. One can’t “claim the Fifth” as to other forms of evidence, e.g. incriminating documents, etc.

  65. Nate Oman on June 15, 2004 at 7:32 pm

    Kaimi: Your last argument is problematic. If defense lawyers are justified in the zealousness of their defense based on their opinion as to the justness of the laws from which they are defending their clients, then it seems to me that you are vitiating your earlier argument that lawyers in fufilling their institutional role within the system ought not to abrogate to themselves the roles of judge and jury.

  66. Nate Oman on June 15, 2004 at 7:37 pm

    BTW, I think that the earlier Nibley quote is the kind of ignorant and patently silly thing that makes much of Nibley’s social criticism much less valuable and insightful than it might otherwise have been. Nibley loves to rag on lawyers and businessmen, but there is little evidence that he has any idea what most of them spend their days doing. I recall reading an essay once in which he listed accountants as examples of parasitic professionalism. Does anyone think that Nibley actually knows the first thing about accounting?

  67. Kingsley on June 15, 2004 at 8:16 pm

    It is funny to think of him in his beautiful, spacious library on campus, scribbling away against the money-makers while their money pays for his pencils, books, air-conditioning, etc. But genius always comes with its excesses, which can sometimes be very entertaining if not ultimately useful.

  68. lyle on June 15, 2004 at 8:44 pm

    actually, prof. nibley isn’t even working on campus anymore. and unless you are referring to the middle east/ancient library section, then…the personal office library he had was fairly small. and while he may have been instrumental in getting the me/anc. section built…it certainly isn’t his.

    just the facts. he may be a crackpot on social ideas, but he is fairly smart in others & and a very humble & likeable man. chances are that most of the BYU students don’t even know who he is when he walks across campus from his home to the library.

  69. Kingsley on June 16, 2004 at 2:00 am

    Lyle: I wouldn’t go so far as to call him a crackpot! He engaged in a lot of hyperbole, to be sure, but I find his general vision of Zion very beautiful & moving (& dead-on). I don’t think his social stuff was too badly damaged by his sometimes bombastic rhetoric (in fact, I find it part of its charm), & of course his importance to BoM & PoPG studies is inestimable, epoch-making, all the usual superlatives. & he was humble, & likable, & a caring & generous teacher to boot. Lately I’ve had to do some intensive research on him for a project, & the more I read, the more I agree with George MacRae’s famous assessment: It’s obscene, wonderfully obscene, for a man to know (& be) that much!

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