Clark MemorandumJ.Reuben Clark Law SchoolBrigham YoungUniversitySpring | 2000

CM·

Just Lawyers

c o n t e n t s

Cover Illustration:

Michael Hogue

·

H. Reese Hansen, Dean

Scott W. Cameron, Editor

Joyce Janetski, Associate Editor

David Eliason, Art Director

Robb Hanks, Photographer

The Clark Memorandum

is published by the J. Reuben

Clark Law Society and the

J. Reuben Clark Law School,

Brigham Young University.

© Copyright 2000 by

Brigham Young University.

All Rights Reserved.

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-

losophy, personal example, and

values of its namesake, J. Reuben

Clark, Jr. Those values include

(1) public service, (2) loyalty to

the rule of law as exemplified

by the United States Constitution,

and (3) appreciation for the

religious dimension in society

and in a lawyer’s personal life.

18Paradise Found

Joyce Janetski

26Is It Possible to

Be a Lawyer

and a Christian?

Brett Scharffs

33Portraits

Robert Payne

W. Cole Durham

Winston Wilkinson

Richard Fitt

10Morality and

Professional Ethics

Elder Dallin H. Oaks

2Just Lawyers

Ralph R. Mabey

TJ I L L U S T R A T I O N S B Y

U

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.

SM

IC

HA

EL

H

OG

UE

L A W Y E R S

by Ralph R . Mabey

E Pluribus Unum: the motto of theGreat Seal of the United States ofAmerica. In other words, I submit to youthat the purpose of the laws of this land isto make of many one. This is not just thepurpose of the Constitution but the pur-pose of all of the laws of this land.

Take the example of two parties whoare entering into a contract. They’ve got dif-ferent interests. One wants to sell high, theother wants to buy low. One wants to sellfor cash, the other wants to buy on terms.

The contract laws of this countryallow them to be brought together. Theirvery different interests are broughttogether in one agreement. They are uni-fied and enabled to work together fortheir separate interests—unified by the law.

Now suppose they have a dispute andone claims breach of the contract by theother. The law is still there to forge a com-promise. It gives them something to com-promise around, a chance for them toreunify themselves based upon the princi-ples of the law. Or, if they’re unable toreunify themselves, they can reconcilethemselves to each other through theenforcement of the law in court—whose

purpose is then to reconcile this unhappyseller with this unhappy buyer.

Think about it. There is somethingprofound in the purpose of our laws whenseen in this context.

Even the criminal laws are there tounify us in obedience to those laws and, inthe event of a breach of the criminal law,to reconcile the offender with the rest ofsociety, to reconcile that offender throughenforcement of the law.

Scripture recognizes that this is thepurpose of the civil law. By “civil law,” Imean the secular law.

Doctrine and Covenants 134:6 says ofour laws: “We believe that every manshould be honored in his station, rulersand magistrates as such, being placed forthe protection of the innocent and thepunishment of the guilty; and that to thelaws all men show respect and deference,as without them peace and harmony wouldbe supplanted by anarchy and terror; humanlaws being instituted for the express purposeof regulating our interests as individuals andnations, between man and man; and divinelaws given of heaven, prescribing rules onspiritual concerns, for faith and worship,both to be answered by man to hisMaker” (emphasis added).

What is meant here? Harmonize? Bringpeace between human beings? The purpose ofthe law, according to scripture, is to unify us.

So now we come to the next question:If the purpose of the civil law is to unifyus, what is the purpose of lawyers? Can itbe that the purpose of lawyers is to unifypersons? To harmonize my client’s interestswith your client’s interests so that we cando a deal, so that you can go about yourbusiness? To reconcile our clients withtheir adversaries so that they can get on

4 Clark Memorandum

with their lives? Is the purpose of lawyersto unify humankind through adherence tolaw and/or reconcile humankind throughthe operation of law?

Perhaps nobody has heard people saythat is the duty of lawyers. But it is thedivine purpose of our laws—to unify us,separate and different though we are. Thenis the divine purpose of lawyers to take us,separate and apart, and unify us under thelaw or reconcile us with the law?

I submit, brothers and sisters, that thatis the purpose of a lawyer: to unify usunder the law or reconcile us with the law.And only one of you laughed out loud. Iwould expect more of you to laugh outloud. It seems counterintuitive to the waywe picture lawyers. But I want you tothink about this because I submit to youthat it is true.

I believe with this purpose in mind—that lawyers are to unify—the Lord said:“We believe that men should appeal tothe civil law for redress of all wrongsand grievances, where personal abuse isinflicted or the right of property orcharacter infringed, where such lawsexist as will protect the same [and suchappeals are made by lawyers]; but webelieve that all men are justified indefending themselves, their friends, andproperty, and the government, from theunlawful assaults and encroachments ofall persons in times of exigency, whereimmediate appeal cannot be made to thelaws, and relief afforded” (Doctrine andCovenants 134:11).

To put it another way, no law enforcesitself, no law interprets itself. If the purpose of the law is e pluribus unum, then the purpose of a lawyer is to effecte pluribus unum.

I submit that it is important even tothe salvation of Zion, therefore, that westudy the law. Indeed, the Lord said inDoctrine and Covenants 93:53: “And, verilyI say unto you, that it is my will that youshould hasten to translate my scriptures,and to obtain a knowledge of history, andof countries, and of kingdoms, of laws ofGod and man, and all this for the salvationof Zion. Amen” (emphasis added).

From this I take it the Lord says thatfor the salvation of Zion we should studythe law of man and become lawyers.Now I’m likening this scripture to meand to you. But if Nephi could likenthem, perhaps we all can. Out of that, Itake a divine call to you and to me tostudy the law.

I believe then, with the purpose oflawyers in mind, that we must befriendthe law. We must seek for wise lawyersand magistrates and persons who willrule on the law. You can tell that I’mreferring to scripture. “And that law of the land which is constitutional . . .belongs to all mankind. . . . I . . . justifyyou . . . in befriending that law.” It islawyers who most befriend the law. “I, the Lord God, make you free, there-fore ye are free indeed; and the law alsomaketh you free.” That reference has tobe to secular law, I believe.

In their entirety these verses read: “And that law of the land which is

constitutional, supporting that principleof freedom in maintaining rights and priv-ileges, belongs to all mankind, and is justi-fiable before me.

“Therefore, I, the Lord, justify you,and your brethren of my church, inbefriending that law which is the constitu-tional law of the land;

“And as pertaining to law of man,whatsoever is more or less than this,cometh of evil.

“I, the Lord God, make you free,therefore ye are free indeed; and the lawalso maketh you free.

“Nevertheless, when the wicked rulethe people mourn.

“Wherefore, honest men and wisemen should be sought for diligently, andgood men and wise men ye shouldobserve to uphold; otherwise whatso-ever is less than these cometh of evil”(Doctrine and Covenants 98:5–10).

I take out of all of these scripturesthat, yes, maybe the Lord recognizes thatit is our divine obligation to give effect tothe motto of the United States of America.

As we—through lawyers, I submit—gain power to organize our businesses,organize our human transactions and rela-tions, and organize the Church, we will bepreserved in and able to keep the laws ofGod. In other words, now I’m ready to takeone further step. The step I’m going to takeis to suggest that by lawyers acting in theirdivine calling to unify people under the law,they are partially fulfilling the divine lawstated in Romans, that we should eachunify ourselves together under Christ.

You may not want to take that leapwith me. But let me read from Doctrineand Covenants 44:1–5:

“Behold, thus saith the Lord unto youmy servants, it is expedient in me that theelders of my church should be calledtogether, from the east and from the west,and from the north and from the south,by letter or some other way.

“And it shall come to pass, that inas-much as they are faithful, and exercisefaith in me, I will pour out my Spirit upon

5Clark Memorandum

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

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

them in the day that they assemble them-selves together.

“And it shall come to pass that theyshall go forth into the regions round about,and preach repentance unto the people.

“And many shall be converted, inso-much that ye shall obtain power to organizeyourselves according to the laws of man.

“That your enemies may not havepower over you; that you may be preservedin all things; that you may be enabled to keepmy laws; that every bond may be brokenwherewith the enemy seeketh to destroymy people” (emphasis added).

There you have it. I submit that theLord is saying that if you are going to be

enabled to keep that divine law that Paulspoke about in Romans, it will be byorganizing yourselves according to thelaws of man.

I believe we can see the fulfillment ofdivine purposes by the unifying action oflawyers under the law. We can see ProfessorWardle, who is here tonight, and other pro-fessors at this university and other legalpowers at work in the world, attempting tounify the world through adherence to justlaw—and thereby opening the world andher peoples to the gospel.

I submit that there is a logical andscriptural basis for the progression thatI’ve proposed to you this evening. If that’s

the case, that’s all well and good. But Ihave to make a living practicing law, andsome of you may have to, too.

Can we practice law as the Lord hasoutlined that we should practice the law,by unifying one with another, by reconcil-ing our clients with others? I think that isan important question.

Could we follow the example ofChrist? Isn’t He our lawyer with theFather? Don’t we read in Jacob 3:1 that“He will console you in your afflictions,He will plead your cause, and send downjustice”? “But behold, I, Jacob, wouldspeak 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, andsend down justice upon those who seekyour destruction.” We can console andplead. We can’t send down justice, but wecan try to go get justice.

I think that when it comes down tothe practice of law, we can be most suc-cessful if we fulfill our calling to unify andreconcile people with each other and thelaw. We need to seek common ground, tonarrow differences.

A few years ago I went to a dinner withmy legal adversaries. I represented a clientthat was missing more than a billion dollarsand couldn’t find it under any rock orunder any bed. The bad guys sat across thetable at dinner; we had fought for a coupleof years. All of a sudden we reached a com-promise—and it had a spiritual undertoneto it. Opposing counsel spoke later of theoccasion as a dramatic, unexpected, andcrucial reconciliation and unification.

I submit to you that settlements underthe law are part of our duty, our divineduty in unifying and narrowing theground. If we do that, we reduce the trans-action costs greatly. We reduce the psychiccosts, too, and we allow people to go for-ward, to move on.

I conducted a mediation in a hard-fought lawsuit a few weeks ago. These par-ties settled after a day’s mediation. Theywere apart millions at the beginning of theday (several hundreds of percent in magni-tude), and both sides expressed mistrustand pessimism. But they settled. One of theparties said to me, “You know, I didn’t real-

6 Clark Memorandum

ize that my adversary was a pretty goodguy. I could have picked up the phone threeyears ago and we could have settled this.”

There is power in narrowing issues, infinding common ground. There is greatlawyering in that effort.

A few years ago I was involved in acase where hundreds of millions had beenlost, rather publicly, by a rather publicfamily. I ended up mediating a disputebetween the family and the party who wassuing the family and had gone to the trou-ble of filing rico charges against them. Itwas a nasty dustup.

We sat together for three or four days.One night at about 8 or 9 or 10 o’clock, Iwas thinking, “This is going nowhere. Ishould have broken things off and gone tothe baseball game.” But the parties begantalking together without me and withoutlawyers. By 7:00 a.m. the next morning, wehad a settlement.

Well, I asked myself, “What are all welawyers doing?” These parties got togetherand settled it themselves after years andmuch acrimony.

You know, there is a force, a power, in narrowing differences, and there’ssometimes a religious component in it. It feels right.

Recently a respected trial judge assistedthe parties in a large and disputatious caseto reach a global settlement. This judge, adevout Catholic, assesses and reassesses hislife at the end of each day. In so doing, heconcluded that participating in this settle-ment was probably his finest day on thebench—ever—exceeding the many years oftrials and adjudications at which he hadpresided and which he had decided.

Another way we can unify is by seek-ing just results, seeking a just reconcilia-tion by enforcing the law. You know, ifyou’ve got the power and you’ve got themoney and you’ve got the people in yourlaw firm, you can pulverize the other guy.

But J. Reuben Clark, Jr., who serveddecades as an international lawyer beforehis call to the First Presidency, said, “Evenin war, there should be some things thathuman beings would not do to their fel-lows.” He opposed one-sided settlementsor treaties based upon one party’s over-whelming firepower.1 He said, “Guns andbayonets will in the future as in the pastbring truces, long or short, but neverpeace that endures. I believe that moralforce is far more potent than physicalforce in international relations.”2

Now just a minute here. “I believe thatmoral force is far more potent than physi-cal force in international relations,” said J.Reuben Clark, Jr. The moral force of inter-national law and international opinion mayunify people better and forge peace andtruces better than guns and bayonets.

There is some truth to this, I submit, in our practice of law. That truth is that

if you can reach a fair settlement, that set-tlement is likely to stick. It’s likely to beenforced. Those parties are likely to be ableto do business with each other again in thefuture. They’re likely to get on with theirlives. Justice is more likely to be done.

If it’s just guns and bayonets, then it’sgoing to be expensive. It’s going to go on a long time, and any peace achieved maywell later fall out of bed.

So I believe also in this principle:Fulfilling a lawyer’s divine calling makesgood sense in the practice of law.

Now what about respecting diversity,a fundamental precept of Discovery Week?

E pluribus unum. The idea in Romansis not that we are homogenized—the ideais out of many, one. It is that the arm andthe ankle and the elbow and the eye canbe unified in purpose. So it is in the prac-tice of law: We must work together with

7Clark Memorandum

diverse peoples in bringing about unity.That is our calling.

You need go no further than the sellerand the buyer. They’ve got very diverseinterests. Your job is to allow them to dothe business they want to do unified underthe umbrella of that law, in their diversity.

Diversity is crucial to entrepreneurialsuccess. It’s crucial to the energy of thiscountry. As we unify, we must respectdiversity.

As President J. Reuben Clark beganhis assignment as ambassador to Mexico,he adopted this credo: “There are no ques-tions arising between nations which maynot be adjusted peaceably and in goodfeeling, as well as with reciprocal advan-tage, if those questions are discussed withkindly candor, with a mutual appreciationof and accommodation to the point ofview of each by the other, and withpatience and a desire to work out fair andequitable justice.”3

When he was ambassador to Mexico,President Clark filled one of the mostimportant ambassadorships in the world.There were momentous disputes betweenthe u.s. and Mexico. There were upheavalsand internal armed conflicts and boundarydisputes with us. There were calls forarmed u.s. intervention.

J. Reuben Clark served seven presidentsof the United States as their lawyer, as

undersecretary of state, as the chief legalofficer for the Department of State, and inmany other assignments, as well as ambas-sador to Mexico. He knew the interna-tional law, and he said the way to forgeagreement is peaceably, with good feeling,through questions discussed with candor,mutual appreciation, and accommodationof each other’s point of view, through desireto work out fair and equitable justice.

What happened when he left theambassadorship? This is what the MexicoCity Excelsior editorialized: AmbassadorClark had “distinguished himself by avirtue that is not common among diplo-mats: that of not putting himself forward,of not calling attention to himself, ofobserving a prudent reserve that has wonhim the esteem of all social classes inMexico.”4 He practiced what he intendedto practice.

There is, I think, a great lesson in that:have respect for your adversary. How oftenare we or the other side painted as Satansimply because we play adversarial roles inour judicial system? It makes it very diffi-cult to unify our differing interests.

There has been and is discriminationin this country. A friend told me of a kidwho went to work at a great Los Angeleslaw firm not too many years ago and real-ized that he was making a thousand dol-lars less than the others in his class. He

8 Clark Memorandum

The arm and the ankle and the elbow and the eye can

be unified in purpose. So it is in the practice of law.

went to the senior partner and com-plained. The senior partner said withoutapology, “We can pay you less. You’reJewish. Where else are you going to get ajob for more?”

A professor friend of mine who is pre-eminent in her field tells of standing up fora client in court for the first time. Thejudge looked over his glasses and said toher client, not realizing that she mighthave a woman lawyer, “Don’t you have alawyer?” Well, that judge was very apolo-getic. But it may have been the first timehe had seen a woman lawyer—and it wasnot many years ago.

A person of color, a student of mine,reminded me that a few years ago, totravel in this great country, his family hadto take their food with them and sleep inthe car. Discrimination is unfortunatelystill with us.

There are strong differences among us.Our job is to respect those with whom andagainst whom and for whom we practicelaw and to forge unity. That means no eth-nic or cultural jokes, brothers and sisters.That means that even if she tells a joke onherself, I will not repeat that joke. If I tell ajoke about Mormons, that’s fine. If you tella joke about Mormons, that’s not so finewith me. It means not saying things like,“Yeah, some of my best friends areMormons. I took a Mormon to lunch last

week.” Do you feel the condescension inthat? We have got to be careful about whatwe say, even when we have good intentions.

The J. Reuben Clark Law Societystands for these principles of J. ReubenClark, these principles of e pluribus unum,of unifying the world under law, whetheras graduates of this law school or anyother law school, whether as members ofthis faith or of any other faith.

I was moved when the J. ReubenClark Law Society in Salt Lake City pre-sented its annual award to Nick Colessidesof the Greek community. The GreekOrthodox clergy appeared at that lun-cheon in the Joseph Smith Building, hon-oring him and honoring us. Lawyering isbuilding these bridges. That is what the J.Reuben Clark Law Society is all about.That is its mission.

I have one other radical suggestion foryou on the practice of law. This time youcan all laugh out loud. You will be success-ful and you will be living the scripturaladmonitions for lawyers and the law ifyou will practice the paradox of humility.You will be smarter, better, and more suc-cessful if you are humble. It makes youhappier. Someone said, “Too many humblepeople are proud of it.” So I can’t speak formyself. But I speak for you, brothers andsisters. (In general priesthood meeting lastOctober, Bishop Richard C. Edgley spokeof the paradox or irony that strengthcomes from humility.)

The way you become the best triallawyer you can is with the humility tolearn from what that witness tells you, tolearn how that other attorney does it.

You may say, “Michael Jordan, he’snot humble. He says, ‘Give me the ball.’”And that’s what a good lawyer says: “Giveme the ball.”

How did Michael Jordan come towant to get the ball and to know what todo with it? He did it through the humilityof working harder than others, of learningeverything about his opponents, of learn-ing every move from the other guy andemploying it. There is the paradox inhumility.

You will be a smarter lawyer, a happierlawyer, and a better lawyer if you—if we—can learn that paradox. Learn to say to theclient who says, “You’re charging me 500

bucks an hour. What’s the answer?” “Idon’t know the answer.” Learn not to takecredit for every deal. Just get it done eventhough you’re thinking, “I’ve got to be outthere self-promoting myself or I’ll starveto death.” Your work and your service willpromote you.

I’ll close with scriptural proof of this paradox, expressed in Helaman 3:35:“Nevertheless they did fast and pray oft,and did wax stronger and stronger in theirhumility, and firmer and firmer in the faithof Christ, unto the filling their souls withjoy and consolation, yea, even to the puri-fying and the sanctification of their hearts,which sanctification cometh because oftheir yielding their hearts unto God.” Nowthere’s the paradox, and I think it appliesto us temporally as well as spiritually.

And in Ether 12:27 we read, “And ifmen come unto me I will show unto themtheir weakness. I give unto men weaknessthat they may be humble; and my grace issufficient for all men that humble them-selves before me; for if they humble them-selves before me, and have faith in me,then will I make weak things becomestrong unto them.”

We become strong through the humil-ity to pray, through the humility to let theLord know that we’re imperfect, andthrough the humility of repentance. Webecome strong in the practice of lawthrough the humility to learn from theother person, to listen to others, even toadversaries, and to change ourselves forthe better.

In conclusion, I submit this: It isn’tthat there is a religious life we live and alawyer’s life we live and that we’d bettertry to reconcile them as best we can. No,I’m proposing something maybe a littlemore dramatic: that they are the same life, that your calling as a lawyer under e pluribus unum is part of your calling as adisciple of Christ under Romans 12:5. I saythis in the name of Jesus Christ. Amen.

notes

1 Edwin Brown Firmage & Christopher L. Blakesley, J. Reuben

Clark, Jr.: Law and International Order, 13 byu Studies 273

(1973), p. 81.

2 Id., at 68.

3 Frank W. Fox, J. Reuben Clark, The Public Years (1980), at 549.

4 Id, at 583.

9Clark Memorandum

Morality and

The following speech was presented at the J. Reuben Clark Law School Founders Day dinner on September 2, 1999.

Professional Ethicsb y E l d e r D a l l i n H . O a k s

Photography by robb hanks

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

Less obvious is how I have found time toprepare these remarks. It could not havebeen done without the valuable researchassistance of Pamela B. Hunsaker andMarianne M. Jennings, as well as a helpfulreading by Dean H. Reese Hansen and hisassociates. I am grateful to each of themand show my gratitude by the obvious dis-claimer: They are not responsible for whatI have done with the material and sugges-tions they provided me.

In preparing for these remarks, Ireread what I said over 20 years ago at thededication of the building that houses theJ. Reuben Clark Law School. I used thatoccasion to add what I called “one addi-tional charge” to the formal charges givento the Law School at the ceremony com-memorating its opening two years earlier.This additional charge concerned what Icalled “the J. Reuben Clark Law School’sspecial challenges and opportunities forleadership in teaching ethics, morality, and professional responsibility” (“Ethics,Morality and Professional Responsibility,”Proceedings at the Convocation andDedication of the J. Reuben Clark LawSchool, Brigham Young University, Sept. 5,1975, pp. 27–28).

I approached this subject from thestandpoint of what I called “the deepervalues from which we obtain our commit-ments to law, morality, ethics, and profes-sional responsibility” (ibid.). I asserted that“the J. Reuben Clark Law School has themost promising ideals and circumstancesto be a leader in this important area” (id.,34–35). I presented my case for that asser-tion in these words:

We have no diffidence in talking aboutreligious commitment at Brigham YoungUniversity, and we will have none in the J. Reuben Clark Law School. Religious com-mitment, religious values, and concern withethics and morality are part of the reason forthis school’s existence, and will be in theatmosphere of its study. As President MarionG. Romney . . . noted in our opening cere-monies, this law school was established to pro-vide an institution in which students could“obtain a knowledge of the laws of man in thelight of the laws of God.”

If it is true that law students cannot betaught ethics and morality in law schoolbecause those value commitments are fixedbefore they enroll, then that fact, an excusefor other law schools, becomes a uniqueopportunity for this one. Most of the studentsand faculty at this law school are rooted inthe same religious tradition, and that tradi-tion more than any other fact accounts fortheir choosing this setting to pursue their pro-fessional goals. The common ideals, princi-ples, and commitments of that traditionshould make this institution superbly effec-tive in strengthening the moral, ethical, andprofessional foundations that compose thefinest heritage of our profession.

Because of our reliance on these com-mon ideals, principles, and commitments,the new building being dedicated todayshould . . . be looked on as . . . a monumentto our determination that the fairness,decency, integrity, virtue, and love of truthtaught at the hearthstones of thousands ofhomes throughout the land shall have a con-centrated impact on the legal profession andthe nation’s laws. It is in these homes, byGod-fearing parents, that the young menand women who will be our graduates havealready gained that intangible moral instinctthat will bear its fruits in the legislativehalls, the courtrooms, the offices, and otherprivate and public places in the years tocome. [Id., 35–36]

As I look back on that occasion, I feel to reaffirm the substance of what Isaid over 20 years ago, but I wish to usedifferent words to express it. The mean-ings of words change with time, and sodoes the emphasis we wish to give to var-ious elements of our charge to excel in this vital area.

12 Clark Memorandum

My interest in doingthis is obvious.

My objective in these remarks is notto discuss the details of the relationshipbetween personal morality and profes-sional ethics or the application of eithermorality or ethics in the multitude ofcomplex circumstances encountered in thepractice of law. The J. Reuben Clark LawSchool has ample faculty resources forthat task, far beyond my experience andabilities even to supplement. What I cantry to do is to view these forests from afarand suggest some general limits or broaddistinctions to be made, within which oursensitive experts will outline the princi-ples, paint the appropriate patterns, andfill in the details.

The morality to which I referred in ourLaw School dedication—morality based onreligious values, in our case—is the founda-tion undergirding all of our conduct, per-sonal and professional. Professional ethicsmust be grounded upon our personalmoral foundation and, whatever its source,should not be in conflict with it.

A moral foundation is, of course,broader than the structure of professionalethics that should be built upon it. Statedotherwise, laws and rules other than pro-fessional ethics are also built upon ourmoral foundations. There are innumerableexamples of personal conduct that violatecommandments based on our religious/moral foundations that are not prohibitedby the professional codes regulating theconduct of lawyers. For Latter-day Saints,these examples include such deviations as violating temple covenants, breaking the Sabbath, and viewing pornography.Similarly, we look to commandments andprinciples based on our moral founda-tion—not to the rules of professionalresponsibility—to regulate our relation-ships with our spouses, our children, ourextended families, and our fellowmen. Ourpersonal moral foundation is also thesource that regulates our relationships withthe various organizations—religious, chari-table, and community—through which werender the service obligations imposedupon us by those foundation principles.

I was sensitized to the importance ofdistinguishing between what I have calledthe “moral foundation” and the profes-sional ethics “structure” by my recentreading of something written almost 25

years ago by Professor John J. Flynn, nowHugh B. Brown Professor of Law at theUniversity of Utah College of Law. Hiscommentary, written in the 1970s fol-lowing issuance of the aba’s Code ofProfessional Responsibility, was titled“Professional Ethics and the Lawyer’sDuty to Self” (Washington University LawQuarterly, 1976:429–436).

Flynn’s thesis was that “althoughmuch attention has been paid to immoralconduct and the means to prevent it, thegreater hazard to lawyers generally is thatof amoral conduct” (id., 29). He explains:

The conventional distinction betweenamorality and immorality is particularlycogent for the lawyer. Amoral conduct impliesthat the actor has no standard of right andwrong by which to judge conduct. . . . Immoralconduct, on the other hand, implies that theactor is aware of moral standards but has con-sciously chosen to violate them. [Id., 429–30]

For reasons having to do with thelawyer’s role in the adversary system,which I will not elaborate here, Flynn con-cludes that “the legal profession, while nomore or less vulnerable to immorality thanothers, seems to be in considerable dangerof a profound amorality” (id., 434).

That conclusion may or may not becorrect. Either way, what stimulated memost were Professor Flynn’s commentsabout the role of the Code of ProfessionalResponsibility in all of this. He begins:

The [C]ode assumes that universal ethicalresponsibilities for lawyers are to be defined interms of the lawyer’s duties to the profession, hisclient, the courts, and society at large. [Id., 434]

The “fundamental difficulty of theCode,” he maintains, is that while it“begins on the correct path by defining theroles lawyers must play in a legal system . . .it simply does not go far enough” (id.,434–35). I quote:

The Code prescribes duties the lawyerowes to others—to society, to his profession, tohis client—but says nothing of the lawyer’s dutyto self. The internal guidelines that must limitone’s obedience to orders or external duties areunmentioned and unexamined. [Id., 435–36]

So what? we might ask. Flynn explains:

[I]n failing to make the ethical limita-tions of the Code more explicit, the Codemay, in fact, be counterproductive to devel-oping and reinforcing an ethical profession ofthe highest order. By ignoring the lawyer’srelation to himself and instead of emphasiz-ing only the lawyer’s relation to others andthe profession, the Code allows lawyers torationalize many forms of conduct whichwould otherwise transgress their duties to selfand, consequently, widely held moral values.The emphasis on duty to others leads natu-rally and dangerously to the “hired-gun”model for deciding ethical questions. Therules that define immorality may reinforcethe dangers of amorality, and allow an attor-ney to justify almost any conduct that pro-motes the interests of the client. [Id., 436]

These words of Professor Flynn chal-lenged me to think about the contrastbetween a code that defines professional“morality” on the one hand, and thelawyer’s moral foundation that providesthe basis for his or her personal morality(or amorality) on the other. Of course, wewho are trained as advocates can defendthe Code’s explicit decision to limit itssubject matter to professional responsibili-ties. But we could also make a case for theproposition that a code of professionalresponsibility should not be entirely silentabout the existence of other responsibili-ties. Its failure to put the professionalresponsibilities it specifies into the largercontext of public or personal moralitycould be understood as implying that theprofessional code is a comprehensive listof all of the responsibilities of lawyers andthus, as Flynn says, “allow an attorney tojustify almost any conduct that promotesthe interest of the client” (id., 436).

Professor Flynn’s writings on this sub-ject are basically a voice from the 1970s.Other voices have taken up the same cryin the two decades since then. Writing inthe Catholic Lawyer, 32:337 (1989), Simon Y.Balian, a member of St. John’s University’sSt. Thomas More Institute for LegalResearch, maintains that the legal profes-sion’s “morally neutral” codified rules havethe effect of providing an “ethical code” togovern professional actions, in contrast to

13Clark Memorandum

the general moral framework that governsa lawyer’s actions in his or her personallife. Balian asserts that this dual system ofroles encourages members of the legal pro-fession to “leave behind their commonmoral framework and enclose themselves[in their professional activities] in a worldwhich is at best amoral” (id., 337–38).

Balian calls this concept “dual moral-ity” or “role-differentiated behavior” (id.,3446). He concludes:

The concept of dual morality forprofessionals suggests a false dichotomyin the life of a person. . . . The idea of [a separate morality for the profes-sional] role involves both self-decep-tion and abdication from responsibilityand invites immoral conduct. . . .Theinevitable result of the dominancewhich the principle of separate ethicsholds over the legal profession is perva-sive moral failure. [Id., 353]

Here I pause to thank thespouses of lawyers and other non-lawyer guests whose patience musthave been tried by the past 10 min-utes of talk about obscure conceptsthat can only be of interest tolawyers and not to all of them. Inappreciation for your patience, Iwill now try to clarify the subject of“dual morality” or conflict betweenmoral requirements and professionalethics by giving an example from acase decided by the MinnesotaSupreme Court.

David Spaulding, a teenager, wasinjured in an auto accident. His fathersued for the damages the defendant causedto his minor son. The injured boy wasexamined by his own doctor and also bythe defendant’s doctor. David’s doctor didnot find anything unusual in the boy’schest, but the defendant’s doctor advisedthe defendant’s lawyer that David nowhad an aneurysm in his aorta, which couldrupture at any time and cause his death.

The lawyers for the defendant realizedthat neither David nor his father nor theirlawyers were aware of David’s aneurysmand the lethal threat it posed if not cor-rected. Common morality would seem torequire notification of this danger, but the

defendant’s lawyer thought professionalethics forbade notifying the adversary.Defense counsel proceeded to settle thecase (for a relatively insignificant sum) andneither before nor after the settlementadvised David or his father or their lawyerof the threat to David’s life. There is yourexample of conflict between morality andprofessional ethics. Fortunately, a trialjudge later vacated the settlement agree-ment on the basis that the defense lawyer’sfailure to make full disclosure to the court

when the parties applied for approval of asettlement in the case of a minor fell shortof the lawyer’s obligation as an officer of the court. The Minnesota SupremeCourt unanimously affirmed. (Spaulding v.Zimmerman, 116 n.w. 2d 704, Minn., 1962.)

This homely example from a routinedamage case illustrates one of the public’sgrievances against the legal profession. If alawyer fails to take an action the public con-siders required by common morality andthen uses legal rules or lawyer ethics to jus-tify his failure, this alienates the public fromlawyers. Citizens in this country do not liketo be told that some special group hasexclusive rules that excuse them from thecivilized conduct that is expected of others.

The potential conflict between per-sonal morality and professional ethics continued to be debated in the 1990s. Myfirst example is from Professor JosephAllegretti of Creighton University LawSchool. His book The Lawyer’s Calling(Mahwa, NJ: Paulist Press, 1996) praises SirThomas More as “an authentic Christianhero” (id., 118) and decries lawyers “whosesense of moral obligation comes not fromthemselves and their conscience but fromwhat others tell them—their profession,

their client, their codes of conduct”(id., 119). Allegretti explains:

One of the great temptations forlawyers is to see ourselves in the thirdperson, as the mere instrument of ourclient. If we do so, of course, moralissues disappear because we compart-mentalize our lives and relegate ourmoral and religious values to the pri-vate realm of family and friends.There is never any risk of having tosay “no” to a client or the systembecause only a moral agent, an I, canstand for something—a lawyer in thethird person has nothing to stand upfor or against.

We see in Thomas More someonewho was willing to be an I, to see him-self in the first person. More knew thatwhat he said and did mattered, that hissoul was implicated in his work. Whilethe precise issue—the taking of anoath—may seem quaint and far-fetchedto us, the larger question of what westand for and whom we owe allegiance

to is as contemporary as this morning’s deposi-tion or opinion letter. [Id., 119]

As a second voice from the currentdecade, I offer the words of our colleagueMarianne M. Jennings, professor of legaland ethical studies at Arizona StateUniversity’s College of Business. Herrecent article in the Wisconsin Law Review,1996:1223, as you would expect, is a livelyand persuasive criticism of the way profes-sional ethics can deaden our sense of per-sonal morality. She declares:

What has occurred in the legal professionis typical of any organization or society thatbecomes addicted to codes or statements of

15Clark Memorandum

Citizensdo not like to be told

that some special group

has exclusive rules that

excuse them from the

civilized conduct that

is expected of others.

positive law. Rules are made, interpreted andmodified on a regular basis to fit situationswith complex nuances. Once the complexitybecomes overwhelming, the original purposeof the rules is lost or ignored.

Lawyers are practicing craft ethics. If thecode, rules, or an opinion sanction an activ-ity, we separate our own consciences from the behavior, label the behavior ethical, andmarch forward with the full confidence ofProfessor Harold Hill. [Id., 1226]

I don’t like to quote footnotes, butJenning’s footnote referenced to the men-tion of Professor Harold Hill is irresistible:

You may remember that Professor Hill,of The Music Man, was a graduate of theGary Indiana Conservatory of Music andhornswoggled the entire town of River City,Iowa, into supporting a marching band, itsuniforms, and its instruments. . . . ProfessorHill was a flimflam man who couldn’t play a note. . . . [He] would have been a greatlawyer. The man committed fraud in theinducement, but still captured a town’s heartas well as that of Marian, the librarian. Westill had trouble in River City, but no oneever realized it. [Ibid.]

A few pages later Jennings writes:

Slowly but surely, with this fatal combi-nation of the newly defined role of winningfor the advocate and reliance solely on writ-ten rules to govern conduct and choices,lawyers have shaped a profession governed byrules and devoid of morality. If it ain’t writ-ten down, it can and will be done. The mottoof the trial as a quest for the truth has becomea quest for a verdict. [Id., 1238]

Enlightened by the insights and advo-cacy of Flynn, Balian, Allegretti, andJennings, I have reexamined some priorethical preachments I have given to thestudents and alumni of the J. ReubenClark Law School. In doing so I have real-ized that, whatever I have called it, what Ihave talked about on almost every occa-sion I have addressed this audience is thepersonal moral foundation of lawyers. Ineffect, I have said that whatever the con-tent of professional ethics, and even if it issilent on a subject, lawyers should be gov-

erned by their religious/moral foundationin all of their professional activities.

In 1988 I spoke to a fireside of studentsand faculty of the Law School. I referredto Cornell Dean Roger Crampton’s article“The Ordinary Religion of the Law SchoolClassroom,” 29 J. Legal Educ. 247 (1978), inwhich he discussed the value assumptionsin the law school classroom. As I lookback on the three value assumptions Iquoted on that occasion, I realize thateach one of them is illustrative of the the-sis I pursue this evening—that our profes-sional codes and rules are only a partiallist of the behavioral requirements thatmust guide men and women in the prac-tice of law.

With the benefit of hindsight, I seethat Crampton’s questions clearly illustratethat our professional conduct must bebased on a moral foundation drawn fromvalues larger than the legal profession butof profound importance to it. Withoutreliance on this moral foundation, a lawyercan be ethical (or moral) in terms ofadherence to the narrow requirements ofprofessional ethics, but amoral in thoserelationships and that conduct not regu-lated by professional codes or rules.

Crampton’s list of the value assump-tions of the law school classroom includethese three: (1) Under the “instrumentalapproach to law and lawyering,” “the lawis nothing more than an instrument forachieving” the goals of the client, and the“lawyer need not be concerned with . . .the value questions associated with them”because the lawyer is simply “the skilledcraftsman who works out the means bywhich predetermined goals are achieved.”(2) The skepticism encouraged in legalstudy “inclines the student toward con-cluding that principles are meaninglessand values are relative.” (3) The steady dietof borderline cases served up in the lawschool classroom, with relatively littleattention to routine legal problems of easysolution, encourages students “to general-ize that there are no right answers, justwinning arguments.”

After quoting these questions, I asked:“Does training in the law dull one’s sense ofjustice or one’s moral and ethical sensibili-ties? Does it matter what clients and causeswe serve with the skills that we have devel-

oped?” (“Bridges,” Clark Memorandum, Fall1988, p. 13). Some who are present here thisevening will remember that I then used thestory of The Bridge over the River Kwai toillustrate my concerns “for the fundamentalintegrity of those who study and prac-tice law” (id., 13). I concluded my summarywith these words:

I do not know of a better example of theglories of a technical job well done—crafts-manship in the face of enormous adversity—and the hazards of ignoring whose cause youare serving by your blind craftsmanship—than this homely little adventure play. . . . Allof this has a lot to do with legal ethics. It has alot to do with morality. It has a lot to do withwhat I hope is a suitable antidote for the wor-thy but distorting concentration on crafts-manship that is part of what Dean Cramptoncalled the “ordinary religion of the law schoolclassroom.” [Id., 14]

I then quoted Alexander Solzhenitsyn’snotable commencement address deliveredat Harvard University in June 1978. As Ihave reread those words, I think they arealso an excellent illustration of the dif-ference between the formal structure ofprofessional ethics and the importantunderlying moral foundation.

Solzhenitsyn described our Westernsociety as wholly dependent upon laws.

Any conflict is solved according to theletter of the law and this is considered to bethe ultimate solution. If one is right from alegal point of view, nothing more is required,nobody may mention that one could still not be entirely right. . . . I have spent my lifeunder a communist regime and I will tell youthat a society without any objective legal scaleis a terrible one indeed. But a society with noother scale but the legal one is not quite wor-thy of man either. A society which is based onthe letter of the law and never reaches anyhigher is taking very scarce advantage of thehigh level of human possibilities (AlexanderSolzhenitsyn, “A World Split Apart,” com-mencement address delivered at HarvardUniversity, June 8, 1978). [Id., 14–15]

Similarly, some of you may be familiarwith my book The Lord’s Way (1991). In thechapter on litigation, I discussed the princi-

16 Clark Memorandum

ples that seem to me to govern whether aLatter-day Saint or any other Christianshould participate in litigation as a client.Those principles are obviously based on thefoundations of Christian morality, ratherthan on the more technical and more per-missive provisions on the same subject incodifications of professional ethics.

I wish to share one more voice from the 1990s, that of Professor MauraStrassberg, assistant professor of law atDrake University, writing in the Iowa LawReview (80 Iowa L. Rev. 901 [1995]). In hercriticism of what she calls the “modernarticulation of legal ethics as positive law,in the form of governmentally approvedethical rules” (id., 901), Strassberg drawsfreely on philosophical writings and his-torical allusions. As to the latter, she citesthree instances where morally repugnantbut legally required decisions were ren-dered by well-meaning judges who“viewed law and morality as analyticallydistinct” (id., 901). Her three illustrationsare pre–Civil War u.s. decisions applyingthe fugitive slave law, Nazi Germany, andapartheid South Africa.

Strassberg also discusses the origin of legal professional ethics. She says thatduring the 19th century the legal profes-sion’s view of legal ethics was “inextricablyconnected to morality” (id., 906). (That is the connection I am advocating a cen-tury later.) In 1905 the American BarAssociation charged a committee of promi-nent attorneys to frame a code of ethics. Incontext it appears that this code of ethicswas intended to supplement the moralstandards that were previously the onlyrestraint on a lawyer’s professional con-duct. The resulting Canons, adopted by theaba in 1908, were not cast in the form oflegally enforceable rules.

Looking back from nearly a centurylater, we see that the Code of ProfessionalResponsibility and the successor ModelRules of Professional Conduct, as theirnames suggest, have been written likestatutes to define the lawyer’s role and tospecify rules for the lawyer’s behavior. Soviewed, they constitute positive law intheir own right and have the potential topreempt moral rules to the contrary. Fromthis I conclude that in less than a centurywe have moved from the point where per-

sonal morality was not a sufficient guidefor lawyers to a point where it may not bea permissible one.

Thus far I have cited only those pro-fessional voices who deplore so-called dualmorality. I have read that some lawyers tryto justify one moral standard for profes-sional activities and another for thelawyer’s personal life. I doubt that thisidea of dual morality is advocated ordefended as a matter of principle. Rather,it seems to me to be a rationalization—a seeming justification for behavior con-trary to common morality by persons whoeither lack a moral foundation or chooseto ignore their moral foundation when itinterferes with their quest for power, pres-tige, or pecuniary gain.

In my view, the difficult issue forlawyers is not whether professional con-duct is governed by moral standards aswell as professional ethics. Clearly it is.The real issue arises when our personalreligious/moral standards forbid conductthat is required by professional rules orby our employer or where our personalstandards require conduct that is forbid-den by professional rules or by ouremployer. In other words, the difficultissue arises when there is a clear conflictbetween the foundation moral standardand the professional rule or direction.(Parenthetically, this is not an issue forthose who advocate dual morality. Allthey ask is whether the conduct is profes-sional and therefore governed by the pro-fessional rule, or personal and thereforegoverned by personal morality. The diffi-cult conflict only occurs for those like us who believe that personal moralityshould trump professional rules.)

Note also that the difficult issue I havedescribed does not arise unless the conflictbetween personal morality and profes-sional ethics is clear. For example, whereprofessional ethics require particular con-duct and moral standards are silent orobscure on the subject, we have an easycase. The same is true when personalmorality forbids particular behavior, andthe ethical rule is obscure.

A clear conflict raises the interestingquestion of how the institutions that dis-cipline lawyers will react to a conflictbetween personal moral and legal ethics.

Strassberg treats this question, asking,“How would a bar committee or statesupreme court respond to a clear, butmorally desirable, violation of the ethicalrules?” (id., 903). Happily, she observes:

An analysis of bar association advisoryopinion shows that adjudicators do flex andbend the [professional] rules in order toaccommodate moral concerns. Advisory opin-ions on the confidentiality of client suicidethreats and on information on child abusehave avoided formalism. Instead, these opin-ions reveal an unusually broad reading oflanguage or even an unexplained deviationfrom the positive language of the rules alto-gether. This non-formalistic approach may bebetter understood as a moderation of the con-temporary conversation of legal ethics intopositive law. [Id., 905]

I fervently hope that leniency will befollowed wherever morally committedlawyers violate legal ethics in direct oppo-sition to clear and compelling moral rulesto the contrary.

The prophet Micah seems to havebeen commenting on a similar contrastbetween formal roles and underlyingmoral principles when he declared toancient Israel:

Wherewith shall I come before the Lord,and bow myself before the high God? shall Icome before him with burnt offerings, withcalves of a year old?

Will the Lord be pleased with thousandsof rams, or with ten thousands of rivers of oil?shall I give my firstborn for my transgression,the fruit of my body for the sin of my soul?

He hath shewed thee, O man, what isgood; and what doth the Lord require of thee,but to do justly, and to love mercy, and to walkhumbly with thy God? [Micah 6:6–8]

I pray that such fundamental moralprinciples will ever be your ultimateguide in resolving all of the multitude ofmoral/ethical questions that confront youin your employment and practice of law.

Elder Dallin H. Oaks is a member of theQuorum of the Twelve Apostles of TheChurch of Jesus Christ of Latter-day Saints.

17Clark Memorandum

PARADISE

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

BI T T E R FE BR U A R Y W IN D S A N D IN C E S S A N T P HON E C A LLS W E R E H A LF A W O R LD AWAY S T A R T

by Joyce Janetski

FOUND

T W O J R C L S G R A D U A T E S S U R V I V E C A L D E R A V . M I C R O S O F T

A S ST E V E HILL ( ’ 77 ) A N D R YA N TIBBI T TS ( ’ 84 ) LO OK E D O U T AT T H E BRILLI A N T HO RI ZON F R OM BO R A BO R A .

20 Clark Memorandum

I T W A S N O W O N D E R T H A T A Y O U N G N A V A L O F F I C E R S T A T I O N E D T H E R E I N 1 9 4 2 H A D C A L L E D T H I S S P E C K I N T H E

S O U T H P A C I F I C “ T H E M O S T B E A U T I F U L I S L A N D I N T H E W O R L D , ”

T H E Y T H O U G H T . J A M E S M I C H E N E R ’ S P A R A D I S E 1 4 0 M I L E S O F F

T A H I T I W A S T H E P E R F E C T A N T I T H E S I S T O T H E P A S T T H R E E - A N D - A -

H A L F Y E A R S O F T H E A T T O R N E Y S ’ L I V E S . � T H E C A L M N E S S A N D N A T -

U R A L B E A U T Y O F T H E P O LY N E S I A N R E T R E A T C O N T R A S T E D S H A R P LY

W I T H T H E G I G A N T I C C A N N O N S S U R R O U N D I N G , A N D O N C E G U A R D I N G ,

T H E U . S . A I R B A S E B U I LT O N T H E I S L A N D D U R I N G W O R L D W A R I I .

S T E V E C O N T E M P L A T E D T H E P O I S E D , U N F I R E D G U N S A N D T H E T E R R I -

B L E B A T T L E S F O U G H T I N T H E P A C I F I C . O C C A S I O N A L LY S O L D I E R S

W E R E S E N T T O B O R A B O R A T O R E S T A N D R E C U P E R A T E F R O M T H E

F I G H T I N G . � A LT H O U G H T H A T I M M E N S E C O N F L I C T W A S F O U G H T B Y

A N E A R L I E R G E N E R A T I O N A N D E X A C T E D T H E H I G H E S T P A Y M E N T ,

S T E V E A N D R Y A N W E R E V E T E R A N S O F A N E W K I N D O F C O M B A T :

T E C H O - W A R . T H E C O M P A N Y T H E Y R E P R E S E N T E D , C A L D E R A , I N C . ,

H A D J U S T S E T T L E D A M A J O R L A W S U I T A G A I N S T M I C R O S O F T , T H E

B I G G E S T O F T H E “ B I G G U N S ” O F T H E C O M P U T E R W O R L D , A S T R U G -

G L E T H A T H A D L A S T E D A L M O S T A S L O N G A S W O R L D W A R I I . T O C E L E -

B R A T E O N E O F T H E L A R G E S T P R I V A T E A N T I T R U S T S E T T L E M E N T S I N

H I S T O R Y, T H E E N T I R E C A L D E R A LE G A L T E A M H A D G O N E T O TA H I T I F O R

S O M E R E S T A N D R E C U P E R AT I O N . T H E Y H A D F I N A L LY M A D E I T TO B A LI H A I .

Stephen J. Hill

t the law offices of Snow, Christensen& Martineau, in Salt Lake City,Utah, a few weeks later, Steve Hilltalks about Bora Bora and the

remnants of World War II on the island.As he begins an interview with ClarkMemorandum, law partner Ryan Tibbittsenters the conference room. For a fewmoments the splendors of Tahiti pro-vide a pleasant memory for the two J.Reuben Clark Law School graduates whoare about to relate the battle that gotthem there.

T R O U B L E B R E W I N G

The road leading to the January 10, 2000,settlement of a lawsuit brought by Calderaagainst Microsoft ended just short of ajury trial. Steve Hill and Ryan Tibbitts,two of the dozen attorneys representing

Caldera, lived and breathed the case sinceit was filed in July 1996. It is a story worthretelling.

The beginning of the rivalry was fairenough: In 1981 Bill Gates began licensinghis ms-dos computer operating system toibm, beating out a rival operating system,cp/m, created by Digital Research, Inc.

(dri). Though ms-dos traced its rootsback to cp/m, Gates took the lead,retained licensing rights, and laid thefoundation of his fame and fortune: freeenterprise in the emerging computerindustry.

The battle against Microsoft began in1988 when Digital Research released a newrival to ms-dos called dr dos. Soon dr dosbegan to receive praise as a superior alter-native to Microsoft’s ms-dos software,which then dominated the personal com-puter market. In 1989 ms-dos still had 90percent of the computer operating systemmarket. dr dos got a boost when Novell,the world’s second-largest software com-pany, bought dri in October 1991 for $125million in stock. By 1992 dr dos brieflysurpassed ms-dos in retail sales. However,by March dr dos sales began to plummet.By 1993 they were dead.

As early as 1989, Federal TradeCommission attorneys were investigatingMicrosoft. By fall 1993 the Department ofJustice got involved and eventually suedMicrosoft over its dos business practices.Ray Noorda had his own plans.

For years, Noorda—the man whobrought Novell back from bankruptcy in1983—had urged his board to sue Microsoftfor killing competition in the dos marketusing illegal tactics. But not until heretired from Novell in 1994 and formed acompany named Caldera was Noorda ableto make his move. In July 1996 Calderabought dr dos from Novell for $400,000and the same day filed suit againstMicrosoft.

Noorda’s small company accused thesoftware giant of leading computer usersto believe that dr dos would not workwith Microsoft’s Windows by writingcode that caused error messages to appearwhen Windows ran on top of dr dos. Thelawsuit also alleged that Microsoft madeillegal licensing deals with computer man-ufacturers who installed its software inthe computers they sold, that it deliber-ately announced overly optimistic releasedates for its products to beat out the com-petition, and that it illegally tied togethertwo products, ms-dos and Windows, tocreate Windows 95.

By July 1996 Steve Hill and RyanTibbitts had entered the picture.

R E C R U I T M E N T

“The statute of limitations set a deadlinefor us,” says Steve, as he leans forward to emphasize his words. “In 1994 [theDepartment of] Justice had filed essentiallythe same case we did and then settled inAugust of ’95 with Microsoft. So we haduntil mid-August of 1996 to file our case.”

The “we” included litigators hired thatsummer by Ray Noorda and Caldera pres-ident Bryan Sparks: Ralph Palumbo, fromSeattle, Stephen Susman, a Houston attor-ney, and the strong legal team they gath-ered around them. They had taken theCaldera case on a contingency basis.

Reflecting on his early involvementwith the Caldera lawsuit, Steve recalls, “If Iwas really going to pick a date when theseeds were planted, it was just before my10-year law school reunion in 1987.” Herecounts that one of the former classmateshe was asked to call to donate money tothe Law School was David Bradford, whois general counsel for Novell.

“As a result of that contact, I starteddoing a little bit of Novell work that grewover time,” he says. “In early ’93 David told me that the ftc was investigatingMicrosoft. They and Novell were seriouslyconsidering a civil case at that point. I filledhim in on my antitrust background, whichstarted in Seattle. I practiced there for fouryears, doing mainly antitrust work, and Imade friends with a lot of good antitrustlawyers and even knew people that workedin Microsoft’s Seattle law firm.”

Steve expounds: “I studied economicsas an undergraduate at byu. I always hadan interest in antitrust. When I startedworking with Novell and I learned aboutthe industry, this particular issue becameone of extreme interest to me. It’s justfunny how the threads of your life weavetogether. It seems like everything that I’vedone from my undergraduate backgroundto the Law School association to theacquaintances I made in Seattle all cametogether to create the opportunity.”

“In 1995 we had actually been involvedrepresenting Novell and had some real live,ongoing antitrust experience in a monopo-lization case,” he explains. “Obviously, itwas pretty important.”

Steve continues to tell how in early1996, when he was in Germany, he got a

21Clark Memorandum

A

Ryan E. Tibbitts

Rob

b H

anks

call from Novell wanting an assessmentof what he thought of the case, becausethe company was thinking of selling thedr dos business. “A couple of monthswent by—I thought the case was justgoing to die. Then later in the spring, Igot a call from Dave Bradford. . . . I con-tacted a friend of mine named RalphPalumbo. . . . That led to a meeting atNovell between me, Ralph Palumbo, andSteve Susman of Susman Godfrey. . . .Bradford was convinced that we had a good legal team. But Novell was in the process of selling the business to

Caldera, a company chiefly owned byRay Noorda. At that point, Ryan cameinto the picture.”

Ryan jumps into the interview,explaining how Steve told him that Novellwas going to sell the dr dos business toRay Noorda. “As it turned out,” Ryansays, “a friend of mine named Ralph Yarrois Ray Noorda’s right-hand man. . . . So Icalled Ralph and brought him up to speedon what Steve had been doing with theclaim with Novell, shepherding it throughthe ftc and the doj. . . . [By] July of 1996,we had the complaint filed.”

Digressing from the story for amoment, Ryan talks about how he cameto be involved in Caldera v. Microsoft.“Unlike Steve,” he says, “nothing in mylife prepared me for the case. . . . Rex Leewas my stake president at byu. He was abig byu football fan, and I was on the teamdown there. I’d occasionally run with himafter football practice. He really twistedmy arm to go to law school. The only wayI could justify going to law school in my mind was saying, ‘Okay. I’ll go andbecome a sports agent.’” But after meetingsome sports agents, Ryan changed his

mind. He graduated from the J. ReubenClark Law School in 1984 and ended up atSnow, Christensen & Martineau. “Workingin a large law firm on antitrust cases is thelast thing I thought I would be doing,” hesays. Although Ryan chose not to becomea sports agent, photographs on a wall ofhis office suggest that he does represent at least one professional athlete—formerteammate Steve Young.

Although he entered the case in July1996, Ryan became more involved by thespring of 1997. The legal team he joinedhad grown to 12 main lawyers, plus three

or four associates from each of the threemain law firms—Susman Godfrey; SummitLaw Group; and Snow, Christensen &Martineau.

O V E R S E A S O P E R A T I O N S

The Caldera v. Microsoft case took itslawyers beyond the valleys of Utah andshores of Seattle chasing evidence inEurope and Asia. Two countries thatplayed key roles in the lawsuit were areaswhere, coincidentally, Steve and Ryan hadserved Church missions: Germany andKorea. The language skills they developed

and the contacts they made during thosetwo-year periods put them at a distinctadvantage as they returned to those landson a different type of mission.

“Steve served a mission in Germany. Iserved a mission in South Korea,” Ryansays. “As it turned out, those two coun-tries both had big parts of the story [sur-rounding] our case. There were quite afew trips abroad. I spent more time goingto Asia, and Steve went to Germany quitea few times.”

“dr dos programmers were actuallybased in England,” explains Steve. “At that

22 Clark Memorandum

time the biggest pc manufacturer in Europewas Vobis, based in Aachen, Germany.Vobis was the biggest account that [dr dos]had ever had. In 1989 and 1990 Vobis was a100-percent dr dos shop; they didn’t useany Microsoft operating systems.

“So it was a huge deal to Microsoft toget the Vobis account,” Steve emphasizes.“More importantly, they were concernedthat if other oem’s in Europe had seenVobis’ success, they would go to dr dosrather than ms-dos. So it became a big dealto Microsoft to win the Vobis account,which they ultimately did. Digging out

that story took a lot of time and was afairly significant piece of the story wewould have told at trial.”

“Well, that’s a whole other unbelievableepisode,” Steve continues. “We eventuallymanaged to talk to the ceo of Vobis. . . .While in England we made contact withone of the top guys at Vobis through one ofthe salespeople at Novell Duesseldorf. TheVobis guy wouldn’t talk to us on the phone,but said he would meet us the next day inAachen. I felt like I was in a spy novel. . . .We made good friends with him, and thenhe gave us the contact information for the

ceo of Vobis, Theo Lieven. We sent [Lieven]several e-mails and called and called.Finally, he agreed to see us. He owns achateau just across the border in Belgium.”

Steve and others convinced Lieven tosit for a deposition in Los Angeles, which,he says, “turned out to be pretty impor-tant evidence for us.”

Explaining why Korea was importantin the Caldera case, Ryan says, “WhenDigital Research launched their competingoperating system—dr dos—part of theirstrategy was to go places that weren’t veryimportant to Microsoft, that were kind

of off the Microsoft radar screen. So they started going to small oem accountsin Asia, including Korea and Taiwan. Theyopened their first office in Taiwan andtheir second office in Korea.

“Microsoft viewed Korea as a beach-head where dr dos might make some gaininto their market,” he continues. “So theyreally unloaded on dr dos in Korea, and ultimately the Korean governmentreviewed some of Microsoft’s activitiesthere. That was a story we were able todevelop from people I met over there. . . . Iwas also able to surprise a Microsoft lawyer

in a deposition of a Korean witness whenhe learned that I could understand what thewitness and the interpreter were saying.”

I N T H E T R E N C H E S

Ryan explained that “in a typical largecommercial case, you’re going to win orlose your case on your witnesses and yourdocuments, because you get very littlefrom the other side.” Consequently, aslawyers for the underdog, Ryan, Steve, andtheir colleagues had to scrutinize seem-ingly endless leads to come up with someammunition.

“Every witness we got was a ‘romance,’”Steve says. “We had to go find them, andthey were scattered all over the world. Thenonce we found them, we had to makefriends with them and convince them thatour cause was just, that we had a chance ofsucceeding, and we were good guys.”

“And that it was worth it for them todonate all kinds of time getting ready fordepositions,” Ryan breaks in.

“Everybody worried what would bethe consequence to them personally ifthey testified, . . . what it would mean pro-fessionally if they went public,” Steve says.

23Clark Memorandum

Rob

b H

anks

Other kinds of evidence were notmuch easier to discover, but did yieldrewards. “The judge ordered Microsoft toturn over all of their memos and e-mails,”Ryan relates. “We spent literally weeks inSeattle going through boxes of documents.We found some amazing smoking guns inthere. Many of the Microsoft documentswere so good for us it almost made ourclient’s documents unimportant.”

Steve says, “We felt like, ‘Wow, ourcase is every bit as good as we had hoped.In fact, better really than we thought itwould turn out to be, once we saw theirdocuments.’”

In more ways than one, e-mail turnedout to be the salvation of the Calderaattorneys. Not only was it their mosteffective form of communication as theyinvestigated the case, but, ironically, e-mailprovided them with their best evidence.Retrieved Microsoft e-mails verified whatCaldera was trying to prove: that theMicrosoft tactics Caldera complainedabout were designed to undermine dr dosand further monopolize the market.

T H E D A R K E S T H O U R S

The three-and-a-half-year pursuit ofMicrosoft proved to be a bumpy ride forthe Caldera attorneys, sometimes withlittle light at the end of the tunnel. Whenasked if they were discouraged during theexperience, Steve and Ryan didn’t hesitateto respond.

“The dri people were very self-criticalbecause they knew they weren’t gettingsales like they should have,” says Ryan. “drdos was winning awards, but they couldn’tmake the sales. They didn’t know whatMicrosoft was doing behind the scenesthen. So there were all of these bad memosabout dri and its people. And that’s what Igot hit with in depositions. . . . I rememberthe plane ride home from the first one; Iwas pretty dejected and thinking, ‘Boy,we’ve got some problems here.’ . . . I thinkthat was my low point. But, because ofwhat we found in Microsoft memos and e-mail, we found a way to deal with it.”

“Just the process of being opposed tosomebody so powerful caused us prob-lems,” says Steve. “Gathering witnesses wasa much more difficult and unusual processthan I had ever been through before.”

Sometimes the diversity of expecta-tions within the legal team created chal-lenges. “You can imagine,” Ryan says,“with three different law firms and 15 dif-ferent lawyers involved, there were manydifferent views as to whether we ought tosettle or go to trial, or if we do settle,what the value of the case is.”

“But all of that finally turned out fine,”Steve stresses. “I’d say that working withthese other two firms, you would havethought there would have been prima don-nas and ego plays. I would say that neverhappened. What tended to happen, believeit or not, was there was so much to do andpeople had different talents and experi-ences, that the lawyers seemed to self-select the things that they could do thebest. We had very few issues about whoshould do what. We were really in accordthroughout the whole process.”

C O U N T E R A T T A C K S A N D S E T T L E M E N T

“It was real hardball litigation,” Steveadmits. “I’ll bet Microsoft filed dozens ofmotions on various issues. And of all ofthose, we could only count a handful thatthey won. But it’s amazing that with all ofthat, the relations between counsel wereactually really quite good, very professionaland cordial.”

“They just wanted to keep us dis-tracted,” Ryan adds. “They clearly wantedto get rid of the case. We were at the rightplace at the right time in a lot of respects,because they were dealing with what wasgoing on in Washington, d.c., and theydidn’t want to be going through our trialat the time that Judge [Thomas Penfield]Jackson was trying to figure out what todo with them back there.”

Although the case against Microsoftdid not go to trial, the settlement was asubstantial win for Caldera and its attor-neys. (Analysts contend that the evi-dence that would have been revealed incourt promised to hurt Microsoft evenmore than any monetary fine.) Thelawyers cannot disclose the settlement figure because of a confidentiality agree-ment; however, the Salt Lake Tribunereported the settlement at $250 mil-lion (“Caldera, Microsoft Settle for $250m,” Salt Lake Tribune, 11 January2000), whereas the Wall Street Journal

reported it at $275 million (“Microsoft toSettle Suit by Caldera,” Wall Street Journal,11 January 2000).

Thus, the trip to Tahiti.

N O T W I T H O U T C O S T

As in any battle, many kinds of sacrificewere made during the long course ofCaldera’s investigation of Microsoft’s prac-tices. During the time they were involvedin the lawsuit, Ryan and Steve and theirfamilies felt the force of this commitment.

“I traveled a lot,” begins Ryan. “I wentto Europe two or three times and Asiatwo or three times. . . . There were literallytimes when I had to have my wife, Nan,meet me at the airport just long enough tograb a different suitcase of stuff and headoff somewhere else. But the way I dealtwith it, I let other things slip in my liferather than not spend time with my wifeor my kids. . . . It was something we talkedabout, but it didn’t cause major problems.”

Steve confesses, “For the most part Iwas having the time of my life. But while Iwas having this experience, my wife, Tauni,and my kids were at home dealing with myabsence. There were periods where I waspretty distracted, and they had to deal withmy emotional ups and downs as well.”

When asked if his children, who rangebetween nine and 21 years of age, are inter-ested in going into law, Steve responds,“No, but they’re interested in technology.In fact, all of them are involved with it inone fashion or another.”

Ryan, whose five children are 10 andunder, comments, “At least my two oldestkids were interested in the case. A fewtimes my name made it into the paper withquotes, and that was cool for the kids totalk about with their teachers at school.”

He continues, “Our last two boys wereborn during the course of this case. Iremember with the first one, one of thethings that I did in order to spend moretime with the family would be to go homeat 6:00 at night and take two or three boxesof documents that I needed to review toprep for these depositions I was defending.I can remember quite a few nights withthat baby when he would wake up at 2:00in the morning for feedings, sitting out onthe couch holding him and going throughdocuments while I was up.”

24 Clark Memorandum

Steve takes his turn: “I guess I turnedinto kind of a cell phone addict. At onepoint my family was complaining thatwhen I was home, I was on the ‘dang’ tele-phone. . . . I came to the realization thatonce I was home, I had to be home, and Iwouldn’t take or make calls.”

Calculating that he spent two-thirds tothree-fourths of his legal time involved inthe case, Steve notes, “The last year, it wasmost of the time. . . . We [the legal team]spent so much time together, we may haveseen more of members of the trial teamthan we did of our own spouses over thepast three-and-a-half years.” Ryan puts hiscommitment at 60 to 70 percent of his time.

In addition to their time away fromtheir families, both attorneys were worriedabout the length of time they were devot-ing to a contingency case. “It was veryrisky,” Ryan admits. “I know both of uslost a lot of sleep—many people in ourfirm were very supportive, but, as you canimagine, and justifiably so, there weresome people that were pretty skepticalbecause we were spending up to three-quarters of our time [on the case], whichmeant we were not bringing in any moneyfor the firm. They were wondering whatwe were really contributing to the mix. . . .But the settlement healed all of thosewounds,” Ryan laughs.

Steve confides, “There was a lot ofpressure. . . . I was concerned about whatmy partners here were thinking and thefact that they were paying us to be offdoing this while they were doing thingsthat actually brought in money. . . . Thosekinds of considerations made [the case forus] less exciting.”

G A I N S

Of course the magnitude of Caldera’sclaim against Microsoft made the casevery exciting. And the fact that Calderaeventually obtained a large settlementmade the pursuit all the better. But, asSteve recently expressed in an e-mail tohis case colleagues, “While the money iswonderful, this case certainly was notentirely about money.”

Reflecting on his personal feelingsabout the experience, Steve says, “For meas a lawyer in private practice, I couldn’timagine anything that would be more

important, because I always saw this caseas a significant case for the industry. Ialways felt like we were doing somethingthat really needed to be done. . . . I decidedyou just couldn’t worry about failure.”

Perhaps the greatest result of the case,Steve says, was the effect it had on thecomputer industry. “We made some his-tory. . . . [Caldera] deserves a lot of praisefor having the courage and conviction toundertake the case. They did what many inthe industry have talked about but neverattempted before we filed [the lawsuit].”

The adventures they had and thefriends they made also made their involve-ment a rich experience. “A great aspect ofthe case,” Ryan says, “is that we workedwith and we went up against some of thegreatest lawyers in the country. . . . SusmanGodfrey is known as one of the top com-mercial litigation firms in the country. Themain Susman Godfrey lawyers—Susman,Parker Folse, and Charles Eskridge—allclerked at the u.s. Supreme Court. TheSummit Law Group lawyers were also out-standing. One of them, Matt Harris, knewthe technology better than Microsoft.”

“A big part of the job is dealing withthe press all the way through,” says Steve.“I was on a friendly basis with one of thelead reporters for the Wall Street Journal,and never in my experience had I had any-thing like that happen.”

As for their experience “being a littlebit like a spy novel,” Ryan says, “I wouldknow there would be a big deposition of aMicrosoft witness going on in Seattle atthe same time I was in California defend-ing somebody else. . . . It was fun to checkthe e-mail. Somebody would report, ‘Oh,this deposition was awesome. This witnesssaid, “a, b, c, and d.” And we really nailed

him with this document.’ Or you wouldcall people at the various law firms to findout what intrigue was going on with themat the time. That made it exciting.”

When asked the obvious question,Ryan answers, “I met Bill [Gates] at hisdeposition in October of ’97. We spenttwo days out at the Microsoft headquar-ters in Redmond taking his deposition.”

T H E F A B R I C O F L I F E

One of the aspects of Steve’s and Ryan’sexperience with Caldera v. Microsoft wasthe reality of life outside of the case. Manythings happened during the three-and-a-half years besides the lawsuit.

“It was so all-encompassing that itseemed like we all lived through theseshared experiences that were real life thatwere going on while we were totallyengaged in a lawsuit,” Steve conveys.“Collectively, we experienced births,deaths, illnesses, marriages, divorces, anda few lawyers coming and going. In doingso, we formed deep friendships. . . . Wepretty much saw the entire fabric of life.”

“One of the things that came of thiswas . . . I developed a real interest in goingand trying to do something outside of thelaw firm,” he says. As Steve leaves Snow,Christensen & Martineau to work as vicepresident of business development at AltaTechnology Corporation in Sandy, Utah,Ryan buckles down to his role of presidentof Snow, Christensen & Martineau.

Bora Bora, with its pristine beachesand silent guns, is now only a pleasantmemory for the Caldera lawyers. Althoughthey have moved on to other cases or newcareers, none of them will soon forget thefour-year journey that took them to thisparadise in the South Pacific.

25Clark Memorandum

T H E T H R E E - A N D - A - H A L F - Y E A R P U R S U I T O F M I C R O S O F T

P R O V E D T O B E A B U M P Y R I D E F O R T H E C A L D E R A A T T O R N E Y S ,

S O M E T I M E S W I T H L I T T L E L I G H T A T T H E E N D O F T H E T U N N E L .

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

Calling is an accessible, thoughtful, challeng-

ing defense of the view that it is possible to

be both a lawyer and a Christian. Picking up

a theme sounded by Yale Law School Dean

Anthony Kronman in his book The Lost

Lawyer, Allegretti maintains, “At its core

the legal profession faces not so much a crisis

of ethics or commercialization, or public

relations, but a spiritual crisis. Lawyers and

the profession have lost their way” (pg. 3).

Whereas Kronman looked to the his-toric ideals of the legal profession and theAristotelean concept of practical wisdomin search of an anecdote for the “crisis ofmorale” in the legal profession, Allegrettilooks to Christianity as a way of trans-forming our legal culture inwardly, onelawyer at a time, by identifying andapplying “resources in the Christian tradi-tion that can help lawyers reconnect theirwork with their deepest and most pro-found values” (pg. 5).

It is a formidable project, and it is atribute to Allegretti, a professor of legalethics at Creighton University Law School,that he undertakes it. The author recountsan anecdote about a friend who, uponhearing that he was writing a book aboutwhat it means to be a Christian and alawyer, replied, “But Joe, what will you dowith the rest of the page?” (pg. 1). Theremarkable thing is not that Allegretti didfind enough to fill an entire page, but thathe manages to pack a very wide discussionof many facets of legal practice into a briefand readable 125 pages.

The Basic TypologyAllegretti uses as a point of departure

Richard Niebuhr’s effort in his monu-mental book Christ and Culture to identifyand evaluate a number of approaches thatChristians have taken toward the wider

secular culture. In applying Niebuhr’stypology to the legal profession, Allegrettibegins by identifying the “standard vision”of the lawyer’s role in American culture.

The standard vision, whichAllegretti calls the “Code,” is dominatedby two values, neutrality and partisan-ship. The lawyer “is neutral, in thathe does not let his personal valuesaffect his actions for clients; and heis partisan, in that he does whateverhe can to achieve his client’s objec-tives, whatever they might be,limited only by the law itself”(pg. 9). According to the standardvision, “a lawyer’s primary respon-sibility is to represent his clientto the best of his ability andleave questions of ‘truth’ and‘justice’ to others” (pg. 8). Ratherthan letting his own moral scruplesintrude on his work, the lawyeracts as the “proverbial hired gun,”constrained only by what is legal(pgs. 8–9). Accordingly, “[a] trial isseen almost as a sporting event, where thetwo lawyers face off against each other,while a neutral umpire or referee (thejudge and jury) enforces the rules toensure that neither party obtains an unfairadvantage” (pg. 9).

Adapting Niebuhr’s analysis of vari-ous attitudes a Christian can adopttowards secular culture, Allegretti dis-cusses four contrasting approaches that aChristian lawyer might take in responseto the standard vision of the lawyer’s role.Allegretti explains that each of thesemodels represents an ideal type, and asindividuals we may find ourselves exhibit-ing different aspects of more than one ofthese responses.

The first model Allegretti calls “ChristAgainst Culture.” According to this view itis simply not possible to be a Christianand a lawyer. An example of this approachis a former lawyer Allegretti met at YaleDivinity School, who had abandoned thelaw because she found that what she didas a lawyer was incompatible with herChristian faith. Adherents of the ModelOne believe that lawyers “inevitably dothings for clients that no true follower ofChrist could countenance. Between Christand the Code is a chasm so wide and so

deep that it can never be bridged” (pg. 11).If this model is correct, a Christian lawyeris faced with a choice of either abandoningone’s professional life or abandoning one’scommitment to living as a Christian.

A second approach, a mirror image ofthe first, is “Christ in Harmony with theCode.” According to Model Two, there isno perceived tension between the gospeland the Code. Allegretti notes that lawyerswho adopt this model are often surprisedand even a bit insulted by the question of whether it is hard to be a Christian anda lawyer (pg. 14). Model Two, whichAllegretti seems to believe is the dominantattitude of most lawyers, has certain bene-fits. It frees lawyers from self-doubt and

28 Clark Memorandum

J

THE F IRST MODEL

ALLEGRETT I CALLS “CHRIST

AGAINST CULTURE.”

introspection, enabling them to focusentirely upon their duty to their clients.But there are significant problems withthis attitude as well. For one thing, it tendsto “blunt the radical message of the gospeland domesticate its countercultural thrust”(pg. 15). More troubling, it enables thelawyer to view himself, in the words ofRichard Wasserstrom, as an “amoral tech-nician” (pg. 16). A lawyer in the grip of thisapproach also fails to see that “God maycall us to something more or different thanthe Code” (pg. 16).

Allegretti’s third model is “Christ inTension with the Code.” According to thisdualist vision, “Christians inhabit twoworlds, a private realm in which theyrelate to God as individuals and are boundby the teachings and example of Christ,and a public sphere where they live andwork and must make accommodations tothe sinfulness of the human condition”(pg. 17). According to Model Three, thereis no way to bring the two realms ofChrist and the Code together. Life is com-partmentalized, and the two spheres of lifeare separated. At home, the lawyer “triesto live out his Christian values, but whenat work he looks to the Code” (pg. 18).

In response to questions such as “Howcould you represent such a client?” or“How could you do that on behalf of aclient?” the compartmentalizing dualistwill respond, “I was only doing my job”(pg. 18). This approach is ultimately dis-satisfying, Allegretti argues, because while honest about moral ambiguities, itresults in a kind of moral schizophrenia.Allegretti recalls the response of a lawyerfriend he complimented for donating timeand talents to church service on Sunday.“I’ve got to do something on the weekendto make up for what I do the rest of theweek,” the friend explained wearily (pg. 1).

Model Three dualists “forget a simpleyet profound truth of the Christian mes-sage: God is the God of all of life, and soGod’s claim is on us always and every-where” (pg. 19). Allegretti also notes that a schizophrenic life is inherently unstable.“Something has to give, and it comes as no surprise that if a lawyer takes positionsat odds with his personal values, over time those values will change to comportwith his public behavior” (pg. 19). Model

Three slides slowly and imperceptibly intoModel Two.

The fourth model Allegretti calls“Christ Transforming the Code.” ModelFour “asserts that Christ is the Lord of all,even the legal profession, and thatChristians are called to serve Christ in allof life, even their life as professionals” (pg.21). Model Four asks the lawyer to seek tolive an integrated life, “to bring his reli-gious values into the workplace, with thehope and trust that God will workthrough him to revitalize and transformhis life as a lawyer, his profession, and ulti-mately the wider community as well.”

Allegretti concedes that while we mightfeel an attraction to Model Four, it is diffi-cult to know what it means for us in every-day life. He remembers a divinity schoolprofessor who, in response to Niebuhr’stypology noted, “Everyone wants to be atransformationist, but nobody is quite surewhat it means!” (pg. 21).

Living the Transformationist IdealAllegretti spends the rest of the book

trying to explain what itmight mean to try to inte-grate one’s life as a Christianwith the secular culture’svision of the Code. In succes-sive chapters Allegretti focusesupon what it means to be part of a“profession” and to have a religious“vocation” or “calling” (chapter 2),the idea of the lawyer-client relation-ship as one characterized not simplyby “contract” but by “covenant”(chapter 3), and the “propheticministry” of the lawyer who canbe a voice calling her clients backto their better selves (chapter 4).

The book then takes anextended look at the lawyer’srole in litigation, urging a movefrom the paradigm of the lawyer as“hired gun” to that of the lawyer as“healer” (chapter 5), applyingChristian teaching regarding “justwar” to litigation (chapter 6), andadvocating the adoption of an “ethic ofcare” to complement law’s dominant focuson an “ethic of rights” (chapter 7). In thefinal chapter, Allegretti contrasts twolawyers from literature, Leo Tolstoy’s Ivan

Ilyich, who is a paradigmatic Model Two“amoral technician,” and Robert Bolt’sThomas Moore, who illustrates the ModelFour integrationist ideal.

Each of these chapters provides richfood for thought, and each contains con-crete bits of helpful advice for the lawyerseeking to integrate her professional lifewith her religious commitments. Especiallyfor a lawyer feeling dissatisfied with herprofessional life, the book contains a num-ber of insights and suggestions that mightenable lawyers to better integrate their pro-fessional work with their moral ideals.

For example, Allegretti stresses theimportance of lawyers treating their clientsas whole persons deserving of respect,sympathy, and counsel, rather than just acase to be won or settled, or a transactionto be completed. I suspect that by follow-

29Clark Memorandum

A SECOND APPROACH,

A MIRROR IMAGE OF THE

F IRST, IS “CHRIST IN

HARMONY WITH THE CODE.”

ing this simple suggestion, which is surpris-ingly difficult in the hectic workday of theaverage lawyer, many lawyers could signifi-cantly increase the level of satisfaction theyget from their professional life.

In the interest of time and space, I willfocus my attention on Allegretti’s analysisof the lawyer’s “calling” or “vocation” andthe implications of lawyers seeking to cul-tivate an “ethic of care.”

The Lawyer’s CallingMedieval theologians such as St.

Thomas Aquinas taught that the highesthuman activity was contemplation of God.In contrast, “normal secular work had noreal significance, and was thought to be ahindrance to the religious life, for it dis-tracted one from the leisure that was nec-essary for divine contemplation” (pg. 27).This view changed with the Reformation.“Luther and Calvin reacted to themedieval devaluation of everyday work byattacking the notion that one could livethe Christian life only by abandoning thesecular world for the monastery” (pg. 27).Charles Kammer summarizes Luther’sthought as follows: “Any occupationbecomes a ‘calling’ if its primary motive isserving God, responding to God’s wishesand intentions for human existence” (pg.27). Thus, after the Reformation, while it isno longer necessary to join the monasteryto serve God, “no Christian is exemptfrom the duty to follow Christ and toserve the neighbor in love” (pg. 28).

Any job, including that of a lawyer,may be a “calling” if our attitude and dis-position make it one. The professions—until recently a concept that includedonly the ministry, medicine, and the law—have a “natural propensity” to be a callingbecause they exist to serve others (pg. 29).

Having a sense of calling involvesboth an internal and an external dimen-sion. The “internal call” is a “private real-ization that one is chosen by God to servethe church as an ordained minister” (pg.30). For a lawyer, Allegretti describes theinner call as a desire to serve others cou-pled with “an intuitive sense that one hasthe right kind of talents, attributes, andlife experiences to become a lawyer” (pg.31). According to Allegretti, “[t]hose whoenter law with the intent to bring justice

to a broken world, to vindicate the rightsof the weak and vulnerable, to heal bro-ken relationships, to ensure equality to allpersons—these persons have responded toa true calling” (pg. 31).

The decision of the church to ordain aperson a minister is what Calvin spoke ofas the “outward call” (pg. 31). Allegrettisuggests that we think of law school “asthe rough equivalent of the minister’s out-ward call.” So viewed, the law school “isthe means to an end—it is the instrumentby which we develop the competencies toimplement our inner call to service. It isthe place where our inner call takes onflesh” (pg. 32).

byu law school professor DavidDominguez’s efforts to encourage law stu-dents to remember and reclaim the idealsthat drew them to the legal profession canbe seen as a way of enabling students toreclaim their sense of “inner call” that drewthem to the law. Professor Dominguezplaces before second- and third-year lawstudents the essays they wrote whenapplying to law school, essays in whichthey often speak in idealistic terms of theservice they hope to provide as lawyers.He then challenges them to bring their cur-rent attitudes and plans into harmony withthis earlier, more idealistic self.

Having a sense of calling serves sev-eral purposes. Seeing her vocation as acalling places a curb on a lawyer’s sense ofself-interest, which “places limits on cer-tain behaviors that have contributedmightily to the current dissatisfactionwith the profession, such as the paddingof bills and the neglect of clients” (pg. 33).Allegretti maintains that a lawyer “whoregards herself as having a calling cannothelp but see her clients differently. Aclient is not a mere commodity, but ahuman being, a human being in pain andemotional turmoil, who has come to thelawyer for help” (pg. 33).

The concept of vocation or callingalso has the effect of expanding thelawyer’s moral universe. “The concept of acalling gives the lawyer a kind of moralcompass: it constantly reminds her thather ultimate loyalty is not to a client, orto the Code, but to God” (pg. 33).

Allegretti acknowledges that it is noteasy to cultivate a sense of calling “when

our days are a chaotic jumble of constantphone calls, impending deadlines, hurriedresearch, endless meetings, and no-time-to-leave-your-desk-lunches” (pg. 35). Having asense of calling does not resolve all prob-lems. Nevertheless, “a sense of calling canhelp us endure and flourish in our work. Itcan put things in perspective. It can give ushope” (pg. 35).

The Ethic of CareOnce a decision has been made to

resort to litigation, Allegretti notes, “thereis a near-irresistible drift toward all-outwarfare” (pg. 96). In response to the ques-tion of what a lawyer’s conduct should beduring the conduct of a lawsuit, Allegrettiendorses Calvin’s “admonition about theproper disposition that should accompanya lawsuit” (pg. 96). According to Calvin, “itis not out of order for Christians to pursuetheir rights with moderation, so long as nodamage is done to love” (pg. 96). Whilethis may appear to set an impossibly highstandard, Allegretti maintains that “[a] law-suit can be brought if and only if it can beprosecuted without impairing Christianlove. If anger, bitterness, or the lust forrevenge infects a lawsuit, even a just causebecomes unjust” (pgs. 96–97).

Building upon the work of CarolGilligan and Rand and Dana CrowleyJack, Allegretti suggests that such an atti-tude can be cultivated if the lawyer seeksto develop an “ethic of care” rather thanjust an “ethic of rights.”

In their research, Jack and Jack discoveredthat while some lawyers conceive of the morallife primarily as a matter of following therules of the game embodied in the adversarysystem and the codes of professional responsi-bility, others are more concerned with mini-mizing harm and preserving relationships.While an ethic of rights stresses competition,the ethic of care emphasizes cooperation;instead of rights, responsibilities; instead offormal and abstract thinking, contextual rea-soning ; instead of the fair resolution of dis-putes, the avoidance of harm. [Pg. 100]

Allegretti cites a hypothetical casefrom the Jacks’ research that illustratesthe difference between an ethic of rightsand an ethic of care. A lawyer is asked to

30 Clark Memorandum

imagine that he represents a client seek-ing custody of children in a divorceaction. The lawyer inadvertently learnsthat the client poses a risk of seriousharm to the children. The informationwill remain unknown to the other partyunless the lawyer reveals it. If he revealsthe information, his client will lose cus-tody of the children, but if he keeps theinformation secret, his client will wincustody of the children. There is nodoubt in the lawyer’s mind that the otherparty is the superior parent who shouldhave custody of the children.

The ethic of rights focuses exclusivelyupon the rights and interests of the client,focusing upon the role of the lawyer asadvocate and nothing else. In contrast, alawyer motivated by the ethic of care willplace more weight on the best interests ofthe child. This approach, Allegretti main-tains, provides less certainty. Perhaps thelawyer will urge his client to get counsel-ing. Perhaps the lawyer will have devel-oped sufficient trust that he is able to have

a heart-to-heart talk with his client and getthe client to acknowledge that the child isbetter off with the other parent. Perhapsthe lawyer will support the appointmentof a guardian to represent the best inter-ests of the children.

This hypothetical case brings into focusa significant shortcoming of Allegretti’sbook. Stated simply, it leaves unanswered,in fact almost entirely unaddressed, thequestion of whether, and under what cir-cumstances, one would want to hire alawyer who manifests Allegretti’s transfor-mationist ideal. If we would not want totrust such a lawyer with the representationof our most precious interests, it is difficultto see how we could justify seeking tobecome such a lawyer ourselves. The ques-tion we must ask is whether we wouldknowingly choose a lawyer whose advocacyis significantly tempered—much more thanthe professional norm—by values and com-mitments other than our own best interests.

It is difficult to imagine a client engage-ment letter in which a lawyer informs a

client that he will pursue the client’s rightswith moderation, so long as no damage isdone to love. If a lawyer would be reluctantto give such disclosure to a client, it is diffi-cult to imagine a justification for secretlyadopting such an attitude.

In fairness, Allegretti does touch uponrelated questions. We can easily imagineourselves as a client in need of a devotedlawyer’s tough love, telling us to forsake acourse of conduct that would be wrong orself-defeating. Allegretti quotes lawyer-statesman Elihu Root, who said, “Abouthalf the practice of a decent lawyer con-sists in telling would-be clients that theyare damn fools and should stop” (pg. 51). Isuspect he is right, although doing so intoday’s legal market may be much moredifficult for a lawyer who has been hiredfor his expertise with a particular area of the law, than in Root’s day when the lawyer-client relationship was muchmore stable.

The question I found myself askingwas this: If I am facing the loss of life, lib-

31Clark Memorandum

ALLEGRETT I ’S

TH IRD MODEL IS

“CHRIST IN

TENSION WITH

THE CODE.”

erty, or property, is it in my interest towant a Christian lawyer who is seeking tolive Allegretti’s transformationist ideal?Especially if I am guilty, or if I am inno-cent but the available evidence stronglyimplies that I am guilty, perhaps what Iwant is a lawyer who will be wholeheartedin his allegiance to my interests. Should Iwant a lawyer who is going to “pursue[my] rights with moderation, so long as nodamage is done to love?”

Allegretti does emphasize the impor-tance of the lawyer as a friend who willstand by his client, but my lawyer isn’tgoing to follow me into prison. Maybe I don’t want a friend who will bid me anaffectionate farewell as I am led away in shackles, perhaps I want an advocatewho will do battle on my behalf withoutreservation—the prototypical Code-drivenlawyer.

At times one feels that whileAllegretti recognizes this problem, hedoes not altogether come to terms with it.For example, in the hypothetical childcustody case, Allegretti stipulates that the lawyer is certain that the other partyis the superior parent that should havecustody of the child. But the more likelyreality would be that the lawyer is notcertain, although he might have naggingquestions about what is really in the bestinterests of the child.

Allegretti’s ideal lawyer, we suspect,might work quietly, perhaps even uncon-sciously, against his client’s own interests,while pretending to be a faithful advocateand friend. Allegretti does not face assquarely as he might the possibility thatthe Christian integrationist might inad-vertently thwart justice and the underly-ing rationale of the adversary system byacting himself as judge and jury of whatis best or right.

This is not to say that the integra-tionist ideal does not deserve our alle-giance. There is much about it that isinspiring and encouraging. For one thing,it does not let us off the hook by simplyinvoking the lawyerly “role.” Surely thereare things that lawyers should do thatwould be wrong to do in other contexts,but just as surely Allegretti is right thatlawyers can use the Code as a rationaliza-tion for turning off their moral lights.

ConclusionAllegretti is not a lone voice calling in

the wilderness. The last few years have seena small deluge of books commentingupon the deterioration of our legalculture and lawyers’ many discon-tents. Allegretti’s offering is dis-tinctive in two primary ways. First,it sounds a tone that is hopefuland optimistic. Near the beginningof the book, Allegretti notes, “This is not a book that expends muchsound and fury castigating lawyersand the profession. This is not anaysaying, doomsaying book aboutall that is wrong with the law andwith lawyers.” (pg. 5) Rather it is anoptimistic book, based upon theauthor’s observation that thereare many lawyers who have suc-cessfully bridged the gap betweentheir faith and their work.

The second distinctive characteris-tic of Allegretti’s book is that its recom-mendations focus not primarily uponthe legal profession as an institution butupon the hearts and minds of individuallawyers. It is not a call for systemicchange, although there would be wide-ranging effects if the book’s message werewidely embraced and followed. Rather, itis primarily a call to conscience, anentreaty to individual lawyers in theireveryday workaday lives, to recognize andfind ways to minimize the gap betweentheir personal moral ideals and the profes-sional imperatives that push them awayfrom their ideals.

Indeed, Allegretti’s book may best beread as an example of what he calls theprophetic ministry of the lawyer. “Theprophet calls the people back to theircovenant obligations, holding up the ideaof covenant faithfulness against the realityof human faithlessness” (pg. 52). Similarly,Allegretti asks the lawyer who also aspiresto be a Christian to seek to be their bestselves. Allegretti notes that the prophet’srole is both to afflict the comfortable andcomfort the afflicted (pg. 57).

Allegretti’s book should be read bothby lawyers feeling afflicted by thedemands and constraints of their profes-sional lives and by those who feel undulycomfortable in those roles, those, perhaps,

who make the Model Two mistake ofbelieving that there is complete harmonybetween their professional roles and theirobligations as aspiring disciples of Christ.For the comfortable, Allegretti’s bookraises a warning that thoughtless adher-ence to the Code may result in a moralschizophrenia that will lead to the gradualwearing down of the lawyer’s preprofes-sional ideals and aspirations. For theafflicted, Allegretti’s book contains a mes-sage of hope that it is possible to integratebeing a good lawyer with being a goodChristian, as well as a number of usefulsuggestions for ways of going about thatintegrationist work.

32 Clark Memorandum

THE FOURTH MODEL

ALLEGRETT I CALLS

“CHRIST TRANSFORMING

THE CODE.”

33Clark Memorandum

by Lovisa Lyman

ro b e r t pay n e , n e w e s treference librarian at byu’sHoward W. Hunter LawLibrary, knew exactly what hewanted to do after he earnedhis jd from byu in 1999: pursuean llm in environmental lawat the University of San Diego.He chose the San Diego pro-gram because it was a “focusedadvanced degree in an area oflaw that [was] difficult andlucrative.” But in a matter ofhours, one month before grad-uation, his plans fell apart.

It happened when Robertvisited the San Diego campusand saw where he would be ableto afford to live with his wifeMelissa, three-year-old daughterElena, and nearly-two-year-oldson Jordan (they had recentlydiscovered they were expectinga third child, to be Thomas).Robert, a totally invested father,couldn’t countenance the ideaof removing his family fromtheir insulated Utah environ-ment to live in such needy cir-cumstances. Quickly he changedhis flight plans—figuratively andliterally—and returned to Provo,as certain as he had ever beenthat he was inspired to do so.

But because he had beenplanning on the master’s pro-gram since the previous August,Robert had not actively soughta legal position. On graduationday he was jobless and direc-tionless. He covered his back bypicking up freelance research

projects from local attorneysand started to polish his résumé.It was roughly at this juncturethat a two-year reference librar-ian position opened up at thebyu law library (Kristin Gerdyhad accepted a visiting profes-sorship at Temple’s law school,which vacated the position).One of Robert’s newly-mintedrésumés went to Gary Hill withan unusually sincere cover letter,which began: “I would like to bea reference librarian for the LawSchool. Never before, in mythree years here, have I seen ajob which I was more excitedfor, or daydreamed more over,than this position.”

Although Robert’s skills,interests, and abilities seemed to fit the job, his journey to lawand librarianship had somemajor detours along the way. Asan undergraduate, he majored inEnglish, concentrating, he freelyadmits, on what he calls dwems—dead, white, European men—mostly romantic poets, andnourishing his love of research.

Librarianship was Robert’schoice for a master’s degreeafter he graduated, but therewasn’t a library program at theUniversity of New Mexico,and he wanted to stay close tohis Albuquerque home. Hebegan a graduate program inEnglish with the understand-ing that he could emphasizelibrary services, hoping towork in a university libraryand teach romantic literatureon the side when he graduated.

He was not too far intothe program, however, whenhis father became disabled. To help the family, Robertdropped out of school and gota job at an export/import firmin Albuquerque. The Spanishthat he had mastered while serving a mission in Chile contributed to his success, as did other skills. His supervisorwrote about him: “Robert’skeen sense of humor surfaceswith excellent timing in ways to add to the productiveness of the whole effort. He is anenthusiastic disciple of the tra-ditional values of honesty, hardwork, and loyalty, and I foundthese values were consistentlyconfirmed in his performance.”

Because of this businessexperience, Robert entered thempa program when he returnedto school. Very quickly he dis-covered this was not the pro-gram for him, and he switchedto law, because “that was whereeveryone had been telling me I should go since my juniorhigh days.”

Not only did he like study-ing law, but he had ampleopportunities to use hisresearch skills. For three yearshe was employed as a researchassistant to Professor David A.Thomas, two of which yearshe was charged with trainingThomas’ other assistants, assis-tants who now earn $75,000and more, Robert is proud to say. Thomas characterizesRobert as “a ferociously dili-

gent researcher” because of his excellent contributions asassistant to the editor-in-chiefof the Thomas edition ofThompson on Real Property andas coauthor of two publica-tions on methods of corri-dor preservation. Robert alsoworked as Thomas’ teachingassistant for his first-year realproperty class.

Both his research andteaching were excellent train-ing for Robert’s qualification asa reference librarian with theparticular assignment to coor-dinate faculty reference ser-vices. As do other referencelibrarians, he teaches modulesof advanced legal research tothe student body generally, buthe also has the specific assign-ment of teaching legal researchto the llm students.

After several months in hisnew position, Robert still feelshe has made the best possibledecision for his family and forthose he serves. “I want to helppeople find the answers theyneed. I want to do research andgain knowledge as part of myjob, simply for the sake ofgaining knowledge.”

As for his future plans,Robert, as well as those heworks with, hopes his appoint-ment at the Law Librarybecomes permanent. He wouldalso like to finally complete alibrary degree, perhaps by dis-tance learning, and to teach anoccasional class on campusabout dwems. More than any ofthese things, though, he wantsto have plenty of time to spendwith his family. It is notunusual for him to literally runhome during his lunch breakto read a story to his childrenor to take them for a walk. It’sat those moments that he ismost thankful he has theopportunity to stay in Utahand at byu.

A CHANGE IN

FLIGHT PLANS

34 Clark Memorandum

faced, Cole’s willingness tomeet the people in their owncities and in their own homeswas a valuable first step.

This whirlwind networkingwas enhanced by a second for-tuitous event in 1991. GeorgeFletcher, one of Cole’s profes-sors at Harvard, who was thenat Columbia, involved Cole in“Raising Rights Consciousness,”a one-month training programfor talented young people inlaw from Eastern Europe.Others included on the fac-ulty were Charles Fried, who succeeded Rex Lee as solici-tor general, and distinguishedEuropeans such as Andras Sajo,who later visited at byu. Of theexperience Cole said: “Whilefor 15 years I had taught stu-dents whose primary concernwas, what job am I going toget, and what will my startingsalary be? all of a sudden, I hadpeople from all over EasternEurope who were asking, howdo we rebuild our world?” Thisexperience awakened Cole towhat a small group of peoplecan do in terms of having animpact on the world. It also puthim in contact with some peo-ple of influence who wereinvolved with all kinds of lawreform initiatives and were alsosensitive about ways that thoseefforts could go awry.

While Cole’s instincts wereinitially academic, his back-ground in comparative law sen-sitized him to what washappening in Eastern Europe, achange he describes as “being ofa magnitude seen perhaps oncein a century.” To add perspec-tive Professor Durham notes,“While there is stress associated

with a legislative session eachyear in this country when legis-lators are meeting to merelypatch up or amend legislation,try to contemplate the quantumincrease in stress on a legislaturethat has an entire code to draft,starting from a point wherenothing exists.” After teachingfor two years in the RaisingRights Consciousness Program,Cole was asked to teach at theCentral European University in Budapest. He has taughtthere every spring since 1994,having earned the designationof a “recurring visiting professorof law.”

Another important pointof contact for Professor Durhamalso had its origin in the 1980s.The International Academy forFreedom of Religion and Belief(iafrb) was organized in 1985,and Cole Durham was one ofthe founding members. In 1991he was made a member of the board of directors, and in 1996, a member of the executivecommittee. This organization,because of the credibility anddiversity of its board membersand fellows, has turned out tobe a particularly effective vehi-cle for carrying out multina-tional comparative conferencesand consultations on religiousfreedom issues. The individualsinvolved in this organizationare a veritable “Who’s Who” ofreligious freedom experts in theUnited States, Europe, andother parts of the world.

Professor Durham’s effortsto sponsor international con-ferences and publish a yearlyinternational issue of the BYULaw Review over the past 15years have helped pave the

the Max Planck Institute forCriminal Law in Freiburg made him an extremely viablecandidate.

Within two months of hiselection, Cole became a mem-ber of one of the first teamssent to then Czechoslovakia bythe American Bar Association’sCentral and East European LawInitiative. His expertise inGerman criminal law and theassociations he made whileresearching in Germany assistedhim in forging several teamsmade up of both European andAmerican legal scholars. In thistime of massive legal transfor-mation in the former easternbloc, Cole Durham was in aposition to assist.

In addition to formal invi-tations, Cole became an itiner-ant ambassador in Central andEastern Europe. With supportfrom the Law School, he trav-eled through most of the east-ern European countries duringthe months of April and Mayof 1990, taking overnight trains and spending the days meetingwith people. He establishedties with human rights organi-zations, Helsinki committees,and those in the legal academy.Cole was willing to talk to any-one with a link to the transfor-mation of Eastern Europeansociety. He introduced himselfas an officer of the AmericanSociety of Comparative Law,and hoped the door-to-doorskills he learned in Germany as a missionary 20 years ear-lier would lead to other con-tacts. With the tremendousneed for advisors in EasternEurope and people hungry todiscuss the challenges they

by Scott W. Cameron

have you ever contemplatedthe “music of the spheres”—thatethereal harmony the Pythagoreansattributed to the vibration of celestial bodies? On soft summernights you may hear it as youclose your eyes and visualize theorderly progression of the earth inits course around the sun, or youmay sense it as you think uponthe poetic movement of the galax-ies in the immensity of space.

Amidst the harsh soundsof the 21st century, we viewthe universe too prosaicallyand are prone to attribute cor-relating occurrences to coin-cidence. However, a review of the academic and ambas-sadorial achievement of byuLaw Professor W. Cole Durhamover the past two decades con-firms the Pythagorean viewthat there is ethereal harmony.

Three weeks before the wall came down in Berlin in November 1989, ColeDurham was elected secretaryof the American Society ofComparative Law (ascl). Cole’scolleague at the Law School,Stephen Wood, who had considerable stature within theorganization, was the chair of the nominating commit-tee and put forward Cole’sname. Steve explains that Cole’s six years as secretary and then chair of the Law and Religion Section of theAmerican Association of LawSchools (1981–1987), his receiptof a prestigious Max Rheinsteinaward to study in Germany,and his connections with

W. CO

LE DURHAM A

ND

TH

E

MUSIC OF

T

HE

SPHERES

35Clark Memorandum

way for expanded efforts inorganizing conferences andpromoting scholarly work inthe field of freedom of reli-gion. Since 1990, working indi-vidually and as a member of the International AcademyBoard, Professor Durham hasorganized more than 30 inter-national conferences. EachOctober he has been able tosponsor many of these inter-national scholars and leadersat a conference at Brigham

Young University. This hasbeen a great opportunity forstudents with foreign languageexpertise to meet with leadingexperts and to use their lan-guage skills in a professionalsetting in conjunction withconference activities.

An important collabora-tive effort between ProfessorDurham and William F. Atkin,now assistant legal counsel tothe lds Church, had its ori-gin in 1992. At that time Bill was employed in Moscow by Baker & McKenzie as man-aging partner of the firm’sCommonwealth of IndependentStates (cis) office. Baker &

McKenzie had been hired tolobby the Russian parliament,which was considering a “draftlaw” on religious liberty. Billsuggested to his partner, DickJohnson, that Cole Durham behired to analyze the proposedlegislation. Professor Durhamspent the summer of 1992 work-ing on a memorandum on thedraft law. His memorandumwas a scholarly analysis of eachprovision of the draft law andits strengths and weaknesses in

light of international law. Billsaid they had the memorandumtranslated into Russian anddelivered it to the committee.

The memorandum wasclearly being used by the com-mittee in drafting the legisla-tion. It also won Cole and Billthe confidence of the personwho was acting as staff to thecommittee. Cole suggested tothis individual that through theInternational Academy theycould arrange a meeting inMoscow with 15 or 20 peoplefrom the u.s. and Europe. Theconference lasted three days.Following a number of formalpresentations, talk about the

draft law in Russia began. Bythe third day, the Russianswere saying, “Why do youkeep talking about draft law?There is no draft law outthere.” Cole modestly remem-bers, “We had the feeling thatwe had sort of killed off afairly dangerous draft.”

Cole’s work on Russiandevelopments in late 1992 andearly 1993 prepared him for a succession of subsequentefforts to help oppose or ame-liorate problematic Russianlegislation. Three months afterthe March 1993 conference, adifferent and even more restric-tive draft surfaced. This hadbeen percolating in back cham-bers of the Supreme Sovietduring the spring and emergedunexpectedly in the summer.Cole was involved in u.s.efforts to oppose this legisla-tion, which was initially vetoedby Boris Yeltsin, and a threat-ened override vote came tonaught as a result of the disso-lution of the Supreme Soviet inthe fall of 1993.

During that time, shortlyafter the standoff at the housesof parliament in Moscow whenthe Supreme Soviet was recon-stituted as the Duma, ElderDallin H. Oaks of the Quorumof the Twelve Apostles, ElderDennis B. Neuenschwander,area president and member ofthe First Quorum of theSeventy, and Bill Atkin metwith the newly appointedHead of Religious Affairs inMoscow.

Seated next to the currentHead of Religious Affairs was abearded gentleman who wasintroduced as Father Polosin.Father Polosin had been theHead of Religious Affairswhen the draft law was beingconsidered. Bill relates thatafter the meeting, FatherPolosin told Elders Oaks and

Neuenschwander that thememorandum that Cole hadauthored was the “single bestand most helpful submissionreceived with regard to theproposed legislation.” ProfessorDurham’s measured delineationof the legislation, section bysection, with thoughtful obser-vations tied to internationallaw had been persuasive. Billindicated that for years theonly group in the u.s.s.r. withsignificant exposure to Westernthought were the lawyers whoread carefully and seriouslyeverything on internationallaw. Indicating that Russiatakes its responsibility underinternational law and treatiesvery seriously, Bill explained,“Cole’s analysis was in theexact format to be persuasiveto that group.”

New drafts began toemerge after the new RussianConstitution was adopted atthe end of 1993, but progresswas slow. A fairly reasonabledraft was developed by the endof 1996, but this was comman-deered by some hard-liners at the end of May, and very restrictive legislation wasadopted by July 4, 1997. Colespent much of the summer of 1997 working with anotherattorney, Lauren Homer,preparing analyses of succes-sive drafts and a compromiseversion that was ultimatelypassed when Yeltsin’s veto ofthe legislation was threatenedwith an override vote. Cole’snetwork of contacts withscholars, government officials,and other experts both inRussia, Europe, and the u.s.helped mitigate many of thepotentially harsh measures ofthe Russian law.

Recently, Cole was invitedto serve as a co-chair of theLegislative Working Group ofthe Advisory Panel of Experts

John

Sny

der

36 Clark Memorandum

us.” He also indicated that Cole’sservice was doubly appreciatedas he served without “wantingsomething out of his service.”

In recognition of ProfessorDurham’s work, Brigham YoungUniversity and the J. ReubenClark Law School have foundedthe byu International Centerfor Law and Religious Studies,with Professor Durham as direc-tor. In a recent grant proposal,Professor Durham described thework of the Center.

The Center aims to encourageinterdisciplinary study that willhelp explore the fundamentalvalues of freedom of religionboth as these have emerged his-torically in the United States,and as they are evolving in otherparts of the world. It will placespecial emphasis on study of thelegal implications of these funda-mental values and is committedto do so taking a broad compara-tive perspective. The Center willpromote scholarly study throughorganizing symposia, colloquia,lectures, and workshops that willinvolve key church-state leadersboth from the United States andabroad. It will promote dialoguebetween scholars and govern-ment officials and will facilitatethe development of networks ofexperts working in this area toassure support for those workingin this field around the world.

[The goals of the Center areto nurture] relationships withgovernment officials and schol-ars who are shaping long-termchurch-state policy, [to help]strengthen commitments to theuniversally accepted right to freedom of religion or beliefenunciated by the AmericanConstitution and other constitu-tional instruments around theworld, and to organize a groupof experts who are assisting withreligious freedom law reform on a global basis.

Professor Durham is quickto point out that there are many others involved in these same efforts. ProfessorFrederick M. Gedicks, of thebyu law faculty, and StevenSmith, now at Notre Dame,have emerged as major thinkerson constitutional theory deal-ing with church-state issues in the United States. Severalother members of the facultyhave published and/or madeother scholarly contributionsin the field: e.g., Kif Augustine-Adams; Ray Jay Davis; JamesGordon; Brett Scharffs; DavidThomas; Kevin J. Worthen, ’82;Jay Bybee, ’77; and Michael K.Young, dean of the GeorgeWashington Law School, byu’73, Harvard Law School ’76,who has a presidential appoint-ment as vice chair of theInternational Religious LibertyCommission established underthe International ReligiousLiberty Commission Act of1998. According to Cole, DeanYoung’s appointment gives hima significant voice in influenc-ing policy in the United Statesand between the United Statesand other countries.

While there is much to bedone for the cause of religiousliberty throughout the worldin the coming decades, in retrospect, it is clear thatProfessor W. Cole Durham hasbeen quietly doing good.There is a grace and symmetrythat emerges when looking atthe last 20 years of Cole’s life,which evokes the music of the spheres. Any assertion ofcoincidence or mere good tim-ing seems a woefully inade-quate explanation. With theestablishment of the byuInternational Center for Lawand Religious Studies, we willall keep listening, for itappears there is more “music”forthcoming.

compiling a comprehensive setof the relevant constitutionaland statutory texts. We do notknow the laws of differentcountries. No one does. Youcan’t get copies of them. Forexample, even people adminis-tering religious matters at thefederal level in Moscow havenot been able to succeed inkeeping track of relevant legisla-tion (often unconstitutional byRussian standards) that is beingadopted in the regions. It isvital to be able to get access to such materials so that itbecomes possible to analyzethem, to work on reform mea-sures, and to improve practices.”

At the university con-ference in August 1999, Cole wasawarded a prestigious UniversityProfessorship. Due to his travel schedule, the installation banquet honoring ProfessorDurham could not be scheduleduntil November 3, 1999. One ofthe speakers, Elder Dennis E.Neuenschwander of the FirstQuorum of the Seventy, whohas been personally involvedwith the lds Church’s effort toobtain legal recognition inEastern Europe and Russian for over a decade, commentedon Cole’s unassuming nature:“Professor Durham was quietlygoing about doing good with-out significant notice.” ElderNeuenschwander went on todescribe the natural tendency to look for prominent peoplewhen something important hashappened, “when in actualitythe work is done by those prepared to do it, and they generally do it quietly, and occasionally, in the words of the Doctrine and Covenants,even the person himself “know-est it not” (d&c 35:4). ElderNeuenschwander indicated that“the rest of us could do what wedid because of the context thatCole Durham had prepared for

on Freedom of Religion andBelief, which has been estab-lished under the auspices ofthe Organization for SecurityCooperation in Europe (osce).This is an important initia-tive of the osce’s Office ofDemocratic Institutions andHuman Rights and is aimed athelping to promote betterimplementation of freedom ofreligion and belief in oscecountries (the u.s., Canada,Western Europe, and all thecountries of the former com-munist bloc). The panel ofexperts has noted that no onehas a comprehensive oversighton religion policies in all ofthese countries. Cole has donea background report on regis-tration issues for churches. Heindicates, “There is a cryingneed for more extensive infor-mation so that we will have abetter understanding of thelegal framework of religiousfreedom in these countries.”Cole has been asked to lead aneffort to help gather key legalmaterials in this area and makethem available through a Webpage. The panel of experts is also spearheading efforts in legislative reform, conflictresolution, and education fortolerance.

Efforts of this type makesense, of course, to people frommany different countries andfaith traditions. But to Cole,these take on a special signifi-cance in light of scriptural pas-sages such as d&c 93:53, whichinstructs that it is God’s willthat we “obtain a knowledge . . .of laws of God and man, and all this for the salvation ofZion.” Even in the limitedsphere of laws directly relevantto freedom of religion, Coleexplains the difficulty of follow-ing this injunction. “Even in therelatively developed osce coun-tries, no one has succeeded in

Cedar Heights, Maryland, anall-black, mostly agrarian com-munity about a mile outside ofWashington, d.c. Separated fromthe nearest white communityby a eight-foot fence toppedwith barbed wire, Winstonattended black schools and ablack church and didn’t have atelevision to access the outsideworld. “Hate was not instilledin us,” he avers. Although herealized that his father occa-sionally came home frustratedfrom his job at the GovernmentPrinting Office, he never heardany details. In retrospect herecalls that on those occasionshis parents would discuss mat-ters behind closed doors. As anadult, Winston learned that hisbright but uneducated fatherwas repeatedly passed over forpromotion during the 35 yearshe worked at gpo and regu-larly had to teach new whiteemployees their jobs, only tohave them rise to positions ofauthority over him. He borethis treatment quietly to protectWinston and his three sisters,but he could not protect themindefinitely.

In 1962, 18-year-old Winstonleft home to join the Navy, andit was then that he first encoun-tered racial discrimination. Heand some white servicemencompanions ordered a restau-rant meal after which the wait-ress markedly informed themthat they could buy the foodbut wouldn’t be allowed to eatit inside. His friends recog-nized the slight before he didand insisted that they all leave.(Subsequently the restaurantwas placed off-limits to militarypersonnel.)

While Winston was sta-tioned in Washington, d.c.,President Kennedy decidedthat the White House honorguard needed ethnic variety,and Winston was chosen to

join the elite group. After anextensive security investigation,he became the first black ser-viceman to participate in offi-cial White House ceremonialfunctions, such as state dinners.

A year into his assign-ment with the color guard,Winston’s unit was called onfor riot control when MartinLuther King, Jr., delivered his “I have a dream” speech to apacked Washington, d.c., Mall.Winston and 10 other blackservicemen hurriedly conferredabout what they would do ifthey were ordered to turntheir bayonets on their ownpeople. They agreed to laytheir weapons on the groundand take the consequences.Fortunately, King’s words hada calming effect, and Winstonand his companions nevertook an action that could haveled to court martial. As muchas he was wooed by charis-matic King, Winston couldn’tforget that his father’s dreamswere never attained throughpassive resistance. Later MalcolmX, whom Winston calls an“eye-for-an-eye guy,” would winhis allegiance.

An incident in 1964 gavehim a substantial push towardMalcolm X’s corner. As a joke,Winston’s chief petty officerassigned him to carry theAlabama state flag in LyndonJohnson’s inaugural parade. AsWinston held the flag at atten-tion in the Sam Rayburn OfficeBuilding, a stranger approachedhim and attempted to wrenchthe staff out of his hands.Others subdued the man andsomeone told Winston that hisassailant was Governor GeorgeWallace, an adamant segrega-tionist from Alabama. Laterthat same day as Winston car-ried the flag on the paraderoute, Wallace’s limousine wasright behind him. Each time

Clark Law School. Winston, a Howard University law grad-uate with years of experience in government service inWashington, d.c., brings hard-won wisdom, a genial nature,and a warm, open smile to hisrecent appointment.

Named for WinstonChurchill, whom his motheradmired, Winston Wilkinsonwas born and grew up in

i m a g i n e a n a f r i c a nAmerican child growing up inthe United States in the 1950sand early 1960s insulated andprotected from racial discrimi-nation. The scenario is hard tobelieve but true of WinstonWilkinson, lds Developmentdonor liaison for the J. Reuben

37Clark Memorandum

WIL

KIN

SO

N

WINSTO

N BLACK

MORMONREPUBLICAN

by Lovisa Lyman

38 Clark Memorandum

issue, his strong testimony sus-tained him. Winston has rele-gated the priesthood issuealong with other questions andfeelings about racial injustice toa compartment at the back ofhis mind. He says, “Blacks arestill fighting battles in theirminds that have already beenfought in reality.” The gospelhelps him deal with the con-tents of that compartment.

The same year his familyjoined the Church, Winstonbegan working for theDepartment of Educationhelping to draft national policy. Later, he served asdeputy assistant secretary forcivil rights at the Departmentof Health and HumanServices, dealing for a timewith Title ix and women insports issues. His supervisorwas Clarence Thomas.

While Winston worked for the government, Gloriaworked for Church publicaffairs in the Washington area,making many contacts withChurch leaders and hostingambassadors from around theworld and visiting dignitaries.Between the two of them, theybecame well acquainted with awide range of people in andoutside the Church. But asWinston’s tenure drew to aclose, they necessarily began tolook for new arenas.

When Winston was ayoung boy in Cedar Heights,he had dreamed of going West.Now that desire rekindled andin the mid-1990s he had anopportunity to work in UtahGovernor Leavitt’s administra-tion. When he came to Utah tointerview, he also investigatedan opening in the humanresources division of theChurch offices. He acceptedthe human resources positionand became part of in-housecounsel in such matters as sex-

ual harassment. In 1999 hemoved to his current positionat lds Development where heis assigned to the Law School.His legal background, expertknowledge of politics, andwide acquaintanceship on theeast coast prepared him toassume the fund-raising effortsin the eastern United States.Though new to fund-raising,Winston sees his career changeas “divinely inspired.”

Uniquely placed by hisexperience to take on the interests of the Law School,Winston is also eager to beinvolved in and contribute tohis local community. A resi-dent of Sandy, Utah, he is cur-rently running for one of thenew county commissionerslots and has wide-rangingsupport from the constituencybecause of his long govern-ment service, communityplanning skills, and compre-hension of minority needs andaspirations.

Winston characterizes him-self as “three times a minority:I’m a Republican, I’m black,and I’m a Mormon.” In fact,Winston’s experiences combineto produce a complex, caringindividual who has successfullycompartmentalized the ques-tions of racial injustice into aplace he does not visit veryoften and which makes himmore determined to improveothers’ lives.

This background explainshis attitude toward his positionas donor liaison: “It’s not aboutfund-raising” but “about savingpeople’s lives.” He is particu-larly concerned about themany bright, capable studentswho would not be able toattend Law School withoutdonor support. He assurespotential donors that becom-ing “part of someone’s life iswhat giving is all about.”

he remained until 1981. Therehe determined to become evenmore involved in politics andjoined the Republican Party.

In 1980 he attended theMaryland Republican StateConvention. In the hotel lobby,he passed a man he’d never metbefore and suddenly feltprompted to stop and ask thestranger about his religion. Theman was Dallas Merrell, wholater became a member of theQuorum of the Seventy. Merrellresponded that he was aMormon, and when Winstonpressed him for more details, he graciously invited theWilkinsons to his home for din-ner and to meet the missionar-ies. After two lessons, Winstonknew the Church was what hewanted, but Gloria took a bitlonger to convince. She wasparticularly concerned abouthow they and their childrenwould be accepted in a whitechurch. Merrell assured themthere were black members inthe congregation, and theyagreed to attend. None of theblack Saints were there theweek the Wilkinsons went tochurch, however. Nevertheless,the members were friendly andwarm. (Winston admits that allentries into new wards haven’tbeen quite as warm. “For a sec-ond I wonder if it’s because I’mnew or because I’m black, but Iprefer to think that it is becauseI’m new.”) Once they finishedthe lessons, Winston, Gloria,and their oldest son were bap-tized. (The couple’s daughterand other two sons were bap-tized as they came of age.)

Some time after their bap-tisms in 1981, when the familywas well established in theChurch, Winston discoveredthat blacks had not held the priesthood before 1978.Although it took him sometime to work through the

Winston slowed to a stop, thedriver eased the limo into theback of his legs, nudging himwhile revving the engine asthough he would run Winstonover. No longer was he insu-lated from Southern hatred andprejudice.

After four years in thehonor guard, Winston used thegi Bill to attend Morgan StateUniversity in Baltimore, wherehe starred in basketball. There,military spit and polish gaveway to an Afro halo and a FuManchu mustache that reachedhis chest. Similar changesoccurred mentally, and beforelong he joined fellow studentsat sit-ins, pitching tear gas can-isters back at the policemenwho threw them.

His growing anger wastempered somewhat when hemoved on to law school and afellow student advised himthat to prepare for future criseshe must develop mentally,physically, and spiritually.Though raised a Christian, hesaw his spirituality as his weak-est suit and began to search fora belief he could truly espouse.After serious introspection, heand his wife, Gloria, whom hehad met at Morgan and mar-ried in 1970, embraced Islamand changed their names. Forthree years he was a believer,but he was still not entirely sat-isfied. He recalls praying anumber of times for guidancein finding the religion thatwould answer all of his needs,but not receiving a response.

He was making progressprofessionally, however. Upongraduating from Howard,where he concentrated on cityplanning and zoning ratherthan on litigation, he clerkedin the country attorney’s officein Prince Georges County,Maryland, then moved to thecounty executive offices, where

39Clark Memorandum

f o r t h e p a s t y e a rRichard Fitt has been assignedto byu Development as a donorliaison for the Law School. Herecalls one of his early experi-ences in fund-raising when heworked for lds Foundation* inNorthern California. A localcpa who is a member of theChurch contacted him about anonmember couple who wouldbe paying high taxes if they didnot give a charitable gift. Thecpa had outlined the vari-ous educational interests of the Church for the potentialdonors. When he mentionedRicks College, they perked upand wanted to know moreabout the school. Richard hadprovided the cpa with a copy ofa video on a program for out-door education of the handi-capped, and the cpa invited thecouple to view it. Afterward,they confided that they had ahandicapped son named Rick.Their gift of $300,000 substan-tially furthered the RicksCollege program.

When people ask RichardFitt what he does, he oftenillustrates his explanation withsuch stories. “Fund-raising forthe Church is very missionary-like,” he says. “It’s absolutelyclear that we are directed by theLord if we are doing what weshould be doing.” When askedwhat they should be doing, heanswers, “All we do is buildrelationships and help donorsdo what they want to do.”

Like many involved infund-raising, Richard came tothe field by a circuitous route.Both his ba and ma, earned atbyu, were in humanities, withemphasis on art history andFrench literature. The vaguenotion that he would somedayteach gave way to successfulforays into sales and market-ing in the San Francisco Bayarea where he was reared. In1985, almost by accident, heheard about an opening for aposition with lds Foundationin Northern California. Helearned that lds Foundationpersonnel are employed andstaffed through Church head-quarters in Salt Lake City anddeployed to particular areas orassigned to specific projects.

Since Richard lacked therequisite experience in financeand charitable giving for thejob, he didn’t think his applica-tion had much of a chance. Tohis surprise, he was called in forpersonal interviews and offeredthe job. At the risk of seemingungrateful, he asked why he waschosen over other applicants.His new employer assured himthat finance and charitable giv-ing can be learned, but sellingand people skills cannot.

Richard’s people skills wereimmediately called into service.He began by contacting pastdonors; professionals involvedin charitable giving and estateplanning, including attorneys

and cpas; and ecclesiasticalleaders who are often consultedabout giving charitable gifts.Next Richard made presenta-tions to lds stake leaders sothey would know how to man-age their part of the transac-tion. In a bishopric himself atthe time (in fact, since 1980 hehas served as a counselor orbishop every year but one), heknew how burdened these menwere, so he requested that theydo no more than remember hisname. Richard follows a similarapproach for the Law School.

One substantial gift inCalifornia came as a result of anecclesiastical contact. A stakepresident found out that a less-active widow in his stakewanted to give a gift, and hereferred her to Richard. As theyvisited, Richard discoveredsomething she loved. Before herhusband’s death, the couple hadgone on cruise after cruise—notbecause they loved cruises butbecause they found that a cruiseship is a wonderful place to

ballroom dance. Richard toldher about the byu BallroomDance Program, and she wasdelighted with the opportunityto contribute a generous mil-lion dollars. Subsequently, sheenjoyed the results of her giftwhen she attended many ball-room competitions.

“You try to discover theirdreams,” Richard explains of hisapproach, “what they want toaccomplish, their vision of thefuture, and then try to make asgood of a match as you can.”

Large or small, “everypenny of any gift goes to theproject itself.” Modest gifts areas important to the effort aslarge ones. “It’s amazing howhelpful $10 can be when thewhole amount goes to a par-ticular destination,” Richardsays. The important thing isthat the donor feel “goodabout the gift and that it willmake a difference.”

In 1993 an opportunity tolearn more about the legalitiesof charitable giving opened up

FIT FOR THE

KINGDOM:LAW SCHOOL DONOR

LIAISON

RICHARDFITT

by Lovisa Lyman

directly with donors, thoughhis efforts also extend to attor-neys who represent donors.“The Law School has a naturalconstituency—graduates of theLaw School and attorneys,either byu graduates or not,”explains Richard.

In approaching these“extraordinarily gifted, incredi-bly talented people” Richardfirst seeks to establish a rela-tionship. “My job is so muchmore building genuine rela-tionships than fund-raising.Naturally people realize whenyou contact them that you areinterested in their money, butthey can see very clearly if youare only interested in theirmoney.” Sincere interest cannotbe feigned and should never bepushy. “Pressure takes awayfrom the charitable nature ofthe gift, robbing donors of theblessing of giving a totally vol-untary contribution.”

Publicity can also dilute thejoy of giving. Richard recallsanother gift he arranged. Evennow he is hesitant to tell thedetails, since the donor insistedon complete anonymity. Thediminutive woman involvedwas a college science professorwho lived on pristine propertyabutting a national forest. Oneday an inexperienced logger cutdown a tree on governmentland, which fell onto her prop-erty, hitting her, breaking herleg and jaw, and inflicting inter-nal injuries. After six weeks ofhospitalization with her jawwired shut and months ofrecovery, she finally received asettlement from the govern-ment. About that time, she wasdiagnosed with bone cancer.Since the settlement of $40,000did not begin to compensateher for the money she hadspent on her accident expenses,she determined to give themoney to the lds Foundation

E. Lee Advocacy Program; Cole Durham’s InternationalCenter for Law and ReligiousStudies, which strives toassure that religious liberty isbuilt into the language ofemerging constitutions inEastern Europe; and RichardWilkins’ World Family PolicyCenter, directed at helpingfamilies internationally tostand against policy-makinginstitutions and people withantifamily agendas. In addi-tion, Law School liaisons seekongoing funding for scholar-ships and professorships.Currently Law School devel-opment is setting up a volun-tary organization for the LeeMemorial Fund. “We needparticipants in time and trea-sure,” says Richard, who istalking to alumni, law societyunits across the country, andother attorneys. “All you needto qualify is a desire to makefriends.”

For the past 15 years,Richard has made many friendswhile helping generous peoplefind the projects they can feelgood about and then assist-ing them with the intricacies of actually giving their gifts.“Most donors,” he has discov-ered, “regard their wealth as astewardship, and they want touse it properly. If they are lds,they usually view their dona-tions as helping to build thekingdom as well.” They sub-scribe to the Savior’s words:“No man, having put his handto the plough, and lookingback, is fit for the kingdom of God” (Luke 9:62). So doesRichard Fitt, whose hand is firmly on the plow of theLaw School.

*lds Foundation is the “umbrella”

department that oversees all fund-

raising efforts of the Church, includ-

ing byu Development.

40 Clark Memorandum

instead. She told Richard abouttwo causes dear to her heart:byu—Hawaii and teaching sci-ence to youngsters. Togetherthey drafted a scholarship fundfor Polynesian students whowanted to become scienceteachers. Her final hope wasthat she would be able to go toHawaii to set up a related tutor-ing program. Against all medicalexpectations, she went, lived inHawaii for two months, andreturned home to die a monthlater. Richard admits he grievedthe death of this strong, deter-mined woman: “You becomeso involved with people thatyou are almost treated likemembers of the family.”

Though difficult to heed inthis woman’s case when shewas so ill, Richard realized oneof the truths of giving: “Don’ttry to dissuade people fromwhat they want to do. The giftis the donor’s stewardship. Theliaison’s job is to give optionsand counsel.” As a footnote tothis story, Richard says thisdonor continues to give. Herecently learned that with the settlement of her estate the Foundation has received$50,000 to fund scholarshipsfor Polynesians and LatinAmericans at Church colleges.

The Law School is stillreaping the benefits of BruceSnow’s and other Law Schooldonor liaisons’ work. “Wehave helped to harvest wherethey plowed and planted,”Richard says of much of hisand Winston Wilkinson’s ser-vice. “The Lighting the WayCampaign was tremendouslysuccessful. But now we areplowing and planting forfuture harvests.” Richard iswholly committed to cur-rent Law School projects, including the Rex E. LeeEndowment, which funds anendowed chair and the Rex

in Provo. Richard and his wife,Patricia (Tricia), had met atbyu and welcomed the chanceto return to Utah with theirthree children. In the ldsFoundation’s technical assis-tance office, he joined threeattorneys in counseling donors—generally through their profes-sional representatives—aboutways to make gifts the mostbeneficial to the university and the donor. Their efforts,geared more to the profes-sional than to the giver, servedas a resource for attorneys.Although Richard lacked a lawdegree, he was the only one inthe office who had worked asa donor liaison before. Thus,while he gained a healthyrespect for the legal challengesof charitable giving, includingtrusts, estates, and annuities,Richard shared his long experi-ence in the human side of giv-ing. “Lawyers want to look atall sides,” he says.

Though his time at techni-cal assistance was mutually pro-ductive, Richard missed directcontact with donors. After fiveyears, he was reassigned to the College of Humanities andthe Lee Library, areas heavilyinvolved in fund-raising fornew buildings. Then in 1998,when Development’s LawSchool representatives BruceSnow and Larry Bluth movedon—Bruce to become executivedirector of Development forbyu, and Larry and his wife topreside over the Mexico CityTemple Visitors Center—Bruceinvited Richard to assume LawSchool fund-raising for thewestern United States.

Richard’s past experiencehelped him better understandwhat lawyers face in protectingthe university, its institutions,and their donors and uniquelyprepared him for the new posi-tion. Best of all, he still works

Clark MemorandumJ. Reuben Clark Law SocietyJ. Reuben Clark Law SchoolBrigham Young University