The author responds to Avery Cardinal Dulles\u27s essay and lecture  Catholic Social Teaching and American Legal Practice,  Fordham Urb. L.J., 277 (2002) (available at http://new.fordhamj.org/demonstration/dc/v30/27_30FordhamUrbLJ277(2002-2003).pdf).  She provides a practical perspective on the applications of Catholic social teachings to the practice of law.  She concludes that Catholic teachings and law intersect in two areas: in the lawyer\u27s discretion and in the lawyer\u27s professional interactions with others

Mone, Jennifer M.

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Catholic Social Teaching and American Legal Practice: A Practical Response

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Fordham Urban Law JournalVolume 30 | Number 1 Article 182002Catholic Social Teaching and American LegalPractice: A Practical ResponseJennifer M. MoneFollow this and additional works at: https://ir.lawnet.fordham.edu/uljPart of the Legal Ethics and Professional Responsibility CommonsThis Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted forinclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For moreinformation, please contact tmelnick@law.fordham.edu.Recommended CitationJennifer M. Mone, Catholic Social Teaching and American Legal Practice: A Practical Response, 30 Fordham Urb. L.J. 299 (2002).Available at: https://ir.lawnet.fordham.edu/ulj/vol30/iss1/18Catholic Social Teaching and American Legal Practice: A PracticalResponseCover Page FootnoteThe Author is an associate with Farrell Fritz, a Long Island law firm. She works on a broad variety of litigationmatters, with extensive deposition, courtroom, and case management experience. Before joining Farrell Fritz,Ms. Mone was an associate with the Manhattan office of Kirkpatrick & Lockhart. Prior to that, she clerked forthe Honorable Loretta A. Preska in the United States District Court for the Southern District of New York.Ms. Mone received her Juris Doctorate from Fordham University School of Law in 1993, where she was amember of the Phi Kappa Phi honor society and Editor-in-Chief of the Fordham Urban Law Journal. A specialthank you to Dean Feerick, Amy Uelman, and Professor Russel Pearce for the invitation to participate in sucha worthwhile and interesting lecture.This article is available in Fordham Urban Law Journal: https://ir.lawnet.fordham.edu/ulj/vol30/iss1/18CATHOLIC SOCIAL TEACHING ANDAMERICAN LEGAL PRACTICE: APRACTICAL RESPONSEJennifer M. Mone*I am honored to be asked to participate in this dialogue withsuch distinguished speakers. I hope to contribute to tonight's dis-cussion by responding to Cardinal Dulles's edifying remarks from apractical perspective.' Both Dean Feerick and the Cardinal haveilluminated us with broad remarks relating to American jurispru-dence and the social teachings of the Catholic church.2 I hope toaddress what some of this means to us in our daily lives as practic-ing attorneys.The Cardinal began his remarks by discussing a widespread as-sumption in American society that religion belongs in church onSunday, and that it should not enter into our public or professionallives.3 But, as the Cardinal responded, the whole idea behind whatwe learn in church on Sunday is to gain edification for our every-day lives outside the church, to help us in our daily quest to comecloser to God.4 That is what being a Catholic is all about. It is notsomething you can or should turn on and off, depending on whoyou are with, or what you are doing.Having said that, some of the key points of intersection betweenCatholic social principals and the practice of law are a bit hard toswallow as an attorney. The Cardinal commented that lawyersshould strive for results that "do justice for the parties," that they"should not blindly support their client's greed for profit at the ex-* The Author is an associate with Farrell Fritz, a Long Island law firm. Sheworks on a broad variety of litigation matters, with extensive deposition, courtroom,and case management experience. Before joining Farrell Fritz, Ms. Mone was an as-sociate with the Manhattan office of Kirkpatrick & Lockhart. Prior to that, sheclerked for the Honorable Loretta A. Preska in the United States District Court forthe Southern District of New York. Ms. Mone received her Juris Doctorate fromFordham University School of Law in 1993, where she was a member of the PhiKappa Phi honor society and Editor-in-Chief of the Fordham Urban Law Journal. Aspecial thank you to Dean Feerick, Amy Uelman, and Professor Russell Pearce forthe invitation to participate in such a worthwhile and interesting lecture.1. Avery Cardinal Dulles, Catholic Social Teaching and American Legal Practice,30 FORDHAM URB. L.J. 277, 277-89 (2002).2. Dulles, supra note 1, at 277; John D. Feerick, Response to Avery Cardinal Dul-les, 30 FORDHAM URB. L.J. 291, 291-97 (2002).3. Dulles, supra note 1, at 277.4. Dulles, supra note 1, at 277-78.FORDHAM URBAN LAW JOURNAL [Vol. XXXpense of other parties," and that, in negotiations, they should seekto preserve the rights of all concerned.5But, in the context of litigation, is it my job to do justice for theparties? I do not believe so. It is my job to represent my client'sinterests, not the interests of all concerned. The judge and the lawdecide what is greed for profit at someone's expense, and what issimply good business. From my client's perspective, her adver-sary's actions are at her expense, and vice versa. In fact, I am do-ing my client a great injustice if I am equally concerned withpreserving the rights of my client's adversary as I am in fighting formy client's rights.6In fighting for her client's interests, a lawyer is serving a neces-sary role in our system of justice and in that way is contributing tothe common good.7 As Cardinal Dulles noted in his enlighteningbook, The Splendor of Faith, "[t]he Church, for its part, teaches itsmembers to serve the common good of the secular society, to per-form their civic duties[.]"8At the same time, that is not to say that reliance on "role" willalways excuse a lawyer's choices and decisions. Resorting to roleto justify invidious actions is nicely illustrated by a biblical refer-ence: Pontius Pilate relied on his role as Governor of Judea in giv-ing Christ up to be crucified. 9 As Governor, Pilate's dutiesincluded the maintenance of law and order, and he possessed su-preme judicial authority.10 Pilate is portrayed in Luke's gospel aspersonally believing that Jesus is blameless, yet, Pilate gave Christup to be crucified." Pilate then washes his hands of this act, sym-bolically separating his personal beliefs from the decision he madein his role as judge and governor. 2 In this circumstance, Pilate'sreliance on role to distance himself from his decision could notwash away the crime that befouled his conduct.When is it okay to justify your actions based on the idea that youare performing a societal role, versus declining to do something for5. Dulles, supra note 1, at 287.6. See Debra L. Bassett, Three's a Crowd: A Proposal to Abolish Joint Represen-tation, 32 RUTGERS L.J. 387, 449 (2001) (arguing that loyalty to the client is one of thebest tenets of the legal profession).7. See Stephen L. Pepper, Lawyer's Ethics in the Gap between Law and Justice, 40S. TEX. L. REV. 181, 183 (1999) (arguing that lawyers serve the common good bycompetently serving their clients).8. AVERY DULLES, THE SPLENDOR OF FAITH 152 (1999) (citation omitted).9. Matthew 27:2.10. John 18:29-40, 19:1-13.11. Luke 23:3; John 19:6.12. Matthew 27:24.3002002] MONE REPONSE TO CARDINAL DULLES 301a client, even though it is best for the client, because it is morallyrepugnant? The answer to this question lies in each lawyer's dis-cretion, which will necessarily be guided by her faith. The pream-ble to the Model Rules of Professional Conduct obliquelyrecognizes this point, in stating that where circumstances call fordiscretion, issues must be resolved through the exercise of sensitiveprofessional and moral judgment. 13 Guidance in these difficult ar-eas of discretion is something we hope to gain when we go tochurch on Sunday.The Cardinal also commented on a lawyer's counseling function,suggesting that lawyers should "persuade clients to do what is so-cially beneficial, rather than pursue their private gain without re-gard for others."' 4 In other words, the Catholic social teachingsdirect a lawyer to advise a client morally. In response, I am goingto steal a quote from prominent Fordham Law graduate TomKavaler which fits in well here: "[Religion] is about beliefs andfaith, whereas law is about logic. We lawyers aren't in the moralitybusiness. If you want morals, talk to a minister, if you want legalcounsel, go to a lawyer. "15Although Tom makes the point rather bluntly, what he is sayinghere makes a lot of sense. Clients come to me for legal advice, Iam their lawyer. The majority of times, that is the extent of ourrelationship, lawyer to client. If a client needs moral advice inmaking a decision, why would they come to me? They would go totheir peers or their family, but not to their lawyer. Indeed, if Ipresumed to give them moral advice, nine times out of ten theywould immediately get on the defensive, and then you really haveno ability to influence their decision from a moral perspective. If,on the other hand, we have the sort of relationship where the clientdoes seek out my moral advice, they are coming to me not as anattorney, but as a friend or peer. Another reason the idea of givinga client moral advice seems incompatible with my job as an attor-ney is that I am not trained to be a moral counselor.1613. MODEL RULES OF PROF'L CONDUCT Preamble [9] (2002).14. Dulles, supra note 1, at 287.15. Rose Kent, What's Faith Got To Do With It?, 6 FORDHAM LAW., Summer 2001,at 11.16. See generally Roger C. Cranton, What Does It Mean To Practice Law "In TheInterest Of Justice" in the Twenty-First Century?, 70 FORDHAM L. REV. 1599, 1604(2002) (stating that "because clients are uninterested in moral dialogue and firms aremotivated to please clients, the relative autonomy of the outside law firm lawyer hasshrunk radically from the idealized model of the wise counselor to the purveyor oftechnical services on behalf of narrowly defined client interests.").FORDHAM URBAN LAW JOURNAL [Vol. XXXProviding moral advice necessarily involves moral judgment.How can I, who is supposed to be acting as the client's attorney,judge someone's actions from my own moral standpoint? Ofcourse, there will be some areas where the right answer from amoral perspective is clear. But in the day-to-day life of a lawyer,the issues that arise will not lend themselves to such black andwhite answers of moral and immoral.I was in the middle of settlement negotiations once involving aland dispute between neighbors. It was during Lent, and the ser-mon that Sunday had been about forgiveness and love of neighbor.When I met my client, who was Catholic, and who knew I wasCatholic, that following week, she began speaking to me about herfeelings about the case in light of the Lent season and that week'ssermon. Part of her wanted to just give the neighbor what theywanted so they could live in peace. But her husband disagreed,standing by his conviction that they had been wronged. Here weretwo Catholics, both of whom had attended the same sermon thatSunday and each with different moral beliefs about their case, bothon the same side. Although I listened, even in this circumstance, Idid not offer my moral advice. For the most part, whether a partic-ular action is moral or immoral, or somewhere in between, will de-pend on whose shoes you are standing in!At the same time, as I mentioned earlier, with some issues, therewill be an objective moral and immoral response. Cardinal Dullesdiscusses the objective morality in his book, The Splendor of Faith,where he writes of the theological vision of Pope John II:The recent decline of the West in terms of cultural influence,[Pope John Paul II] asserts, "seems to have its basis in a crisis oftruth." This is at bottom a metaphysical crisis. "An objectivevision of the truth is often replaced by a more or less spontane-ous subjective view. Objective morality gives way to individualethics, where each person seems to set himself up as thenorm ... "17Thus, unlike Pontius Pilate, who asks Jesus Christ: "Truth, what isthat?"' 8 implicitly denying the existence of truth, Pope John Paul IIspeaks in terms of an objective truth "which transcends" reasonand human subjectivity.19Here is another situation that could arise for a litigator. A po-tential client, someone you do not have any past relationship with,17. DULLES, supra note 8, at 122 (1999) (citation omitted).18. John 18:38.19. See DULLES, supra note 8, at 122 (1999).3022002] MONE REPONSE TO CARDINAL DULLES 303telephones to say that she had signed a contract to buy a residence,and was scheduled to close in one week. The seller had just calledto say that she was backing out because she just found out she hada terminal illness. She even offered to pay all of the buyer's ex-penses, but could not go through with the deal. The potential cli-ent, however, wants the house and she wants to retain you to suefor specific performance.On the surface, from a moral point of view, this may seem horri-ble. How could someone even think about adding to the stress ofsomeone who just found out she is terminally ill by suing her? Butdo you say this? Do you decline to take on the case for moralreasons? Do you accept the engagement and advise the client thatfrom a moral standpoint, she should not sue to force the sale? Onthe other hand, what if the seller's reasons for backing out are notso clear-cut? Perhaps the real reason is that there is a better offer;perhaps she just did not want to sell. In a perfect world, where youcould assume the seller was truthful, perhaps the moral questionhere would be easier, but our training and experience as attorneysprecludes us from making these assumptions.The lawyer's ethical code addresses this issue in an ethical con-sideration stating, "in assisting the client to reach a proper deci-sion, it is often desirable for a lawyer to point out those factors thatmay lead to a decision that is morally just."2 Note that this ruledoes not direct a lawyer to give moral advice, but basically, whenconditions allow, to lead a client in the direction of moral justice.Again, what it comes down to is that most of the big issues thatarise in various cases that you are involved in as an attorney andthe concomitant advice that you give will naturally involve yourdiscretion, and that discretion, for a Catholic lawyer, will be guidedby faith, because that faith is so much a part of who you are.In addition to filtering into an attorney's discretion, faith inter-sects with professional life in another very important way: throughthe way in which you interact with and treat the people that youdeal with day to day, adversaries and co-workers alike-what theCardinal described as "solidarity"-and this holds true for any bus-iness, not just for attorneys.21 Thus, from my perspective, the syn-thesis of faith and the profession of law can be found in two areas:in the lawyer's discretion, and in the lawyer's relationships and in-teraction with others in the day-to-day work life.20. MODEL RULES OF PROF'L RESPONSIBILITY EC 7-8 (1983).21. Dulles, supra note 1, at 280, 285.

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Catholic Social Teaching and American Legal Practice: A Practical Response

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