GovERNoR GnBc Aneorr

December 22,2015

Allan DuBois
President, State Bar of Texas
c/o Michelle Hunter
Executive Director, State Bar of Texas
P.O. Box 12487

Austin, Tx787LI
Via m,ail and e-ntil

Re:

Minim.um, Continuing Legal Education (MCLE) Cont'm'ittee

Dear Mr. DuBois

I write regarding a troubling recent decision of the Minimum

Continuing
prompt
merits
This
decision
Bar
of
Texas.
State
Committee
of
the
Legal Education
attention.

Background
San Antonio Catholic Lawyer Guild and the Christian Legal
Society of San Antonio produced and sponsored a CLE program called "Christian
trthical Perspectives: Faith & Law Today." The program was taught by
practitioners and academics, including the current dean and a former dean of St.
Mary's University School of Law. Although this program was approved for attorney
CLE credit, the MCLE Committee subsequently reviewed the program and notified
the sponsors that it "will not be approved in the future." Se Notification of Non-

In October, the

Accreditation for Future Presentations, Smith letter to Piatt (Attachments at 1).

The reason offered for the denial was that, under the Committee's Accreditation
Standards, "the definition of legal ethics . . . includes matters pertaining specifically
to attorney duties and responsibilities and excludes . . . individual religious or moral
responsibilities." Id. The letter explained that approval for "partial credit" might
be obtained in the future, but only if the sponsors "clearly identiffy] and separate"
the discussion of "secular law and legal ethics" from the discussion of "religious or
moral responsibilities." Should the sponsors fail to distinguish a bright line
between these topics, the MCLE Committee "would not be able to allow MCLE
accreditation for any portion of the program." Id.

Sumrnary

The Committee's position that "legal ethics" and "religious or moral

responsibilities" should be-or even can be-completely divorced from each other is
entirely without basis. Neither the denial letter nor the MCLE Accreditation

Standards provide any explanation or justification for the Committee's position. To

be honest, the idea that a lawyer's professional ethics have nothing to do with
morality sounds more like the start of a bad joke than a serious philosophical or
legal proposition. But if our profession has in fact reached the point where its
leaders no longer think lawyers need concern themselves with the morality of their
professional conduct, we should consider whether the iawyer jokes have it right.
The study of legal ethics necessarily implicates moral questions. Look no
further than the Disciplinary Rules governing the profession: "It is proper for a
lawyer to refer to relevant moral and ethical considerations in giving advice." TEX.
DISCIPLINARY R. OF PROtr"L CONDUCT 2.01, comment 2 (Attachments at 8). If
we can agee that legal ethics has a moral element, then lawyers of faith are
justified, even compelled, to seek to understand that moral element in terms of their
beliefs about what God requires of us. The ongoing search for that understanding is
reflected in the long tradition within American legal education and scholarship of
thoughtful inquiry into the complex and delicate balance between law and faith.
At best, the Committee's decision and its Accreditation Standards are based
on a shallow and impoverished understanding of legal ethics and an unduly narrow
view of legal eclucation. At worst, the Committee's actions amount to religious
discrimination against the CLE sponsors. In any event, the denial of accreditation
should be withdrawn. The Committee should revise its standards to recognize the
importance of legal education that explores the intersection of legal ethics and
"religious or moral responsibilities." Whether for lawyers of faith seeking guidance
for use in their personal practice of law, or for other lawyers merely seeking a more
humane and varied understanding of our legal tradition, this is just the kind of
serious, thought-provoking educational topic that the Bar should encourage for its
members.

Discussion

I.

The MCLE Cornmittee's understanding of legal ethics conflicts

with the Disciplinary Rules governing attorney conduct.

A review of the course outline for "Christian Ethical Perspectives: Faith & Law
Today" demonstrates that the CLE presentation would educate attorneys of faith on
their ethical obligations in the context of a legal culture becoming less and less
receptive to religious faith. Ironically, the MCLE Committee's position that
morality and reiigion must be ignored when discussing legal ethics proves the
vitalitv of the proposed CLE.
The course sponsors produced a two-page outline describing the topics of
discussion and identifying the course presenters . See Application for Accreditation
of CLE Activity (Attachments at 2-3). The presenters included attorneys, a former
)

judge, the present dean and a former dean of St. Mary's School of Law, mediators,
and law professors. Id. The five topics of discussion were designed "to educate and
inform attorneys regarding ethical perspectives from both a legal and religious
perspective," and they were described on the sponsors' outline as follows:
o Faith, Morals, Law and Duty: This presentation will examine the
overall ethical issues facing attorneys of faith;
o The Role of the Christian Attorney in Family Law Matters: This
panel will examine, from a Christian perspective, and from the
perspective of a judge, a mediator and attorneys, recurring ethical
dilemmas in family law practice;
o Alternatiue Dispute Resolution Processes for Seruing Clients: Tlns

panel will consider the uses of collaborative law, Christian

Reconciliation and Early Intervention mediation, focusing on the

appiication of ethical and moral principles to assist clients;

o Life Issues: This panel will focus on ethical dilemmas facing
attorneys of faith in areas involving abortion, use of deadly force in a
"just war" and other life issues;
o Ftting Legal Processes to People (Rather than Vice Vers): This
panel will examine how Christian attorneys may ethically modify,
implement, and even create processes to assist their client, applying
principles of faith.
Id.
These topics largely satis$r the standards that the MCLE Committee applies
when evaluating pograms for accreditation. The state bar website provides the
MCLE Committee's "Accreditation Standards for CLE Activities." The standards
are "Lo be used as guidance for determining whether CLE activities submitted for
MCLE accreditation satisfi' the general standards for accreditation." Accreditation
Standards for CLE Activities (effective April 25, 2OI2) (Attachments at 4-6). The
proposed CLE course meets the format criteria in "Accreditation Standard I" by
offering the presentations live and via live streaming video. Id. And ihe
description of the CLE program satisfies the substantive criteria in "Accreditation
Standard II" by: educating attendees on substantive subjects of law, legal skills and
techniques, and legai ethics; including a panel on alternative dispute resolution;
limiting the instructors to attorneys; and designing the course for attendance
primarily by attorneys. Id. Finally, the proposed CLtr course does not do any of the
prohibited activities in "Accreditation Standard III." Id.
The Committee appears to have disqualified an otherwise qualified CLtr
program based solely on the Committee's view that programs with moral and
religious components can have nothing to do with legal ethics.l This sorely
1 Even accepting the MCLE Committee's definition of legal ethics as binding, the definition
does not state that programs are eligible for credit if they discuss only "IegaI and
professional duties." The definition instead merely requires that the program "includ.e"
discnssion of "legal and professional duties." Id. (Attachments at 6).

misunderstands legal ethics. The Texas Disciplinary Rules of Professional Conduct

speak much more authoritativeiy on the nature of legal ethics than does a
Committee of the State Bar.z And under Rule 2.0L of the Disciplinary Rules, an
attorney shall serve as an "Advisor" to each client, and "[i]n advising or otherwise
representing a client, a lawyer shall exercise independent professional judgment
and render candid advice." Tpx. Dlsctpl-INaRY R. oF PRoF'L CoNnucr 2.0I
(Attachments at 7-8). The Comment to RuIe 2.01 describes the appropriate scope of
this "candid advice:" "Advice couched in narrow legal terms may be of little value to
a client. . . . Purely technical legal advice, therefoe, can sometimes be inadequate.
It is proper for a lawyer to refer to releuant moral an"d ethical considerations in
giuing aduice. Although a lawyer is not a moral advisor as such, ntoral and ethical
considerations intpnge upon most legal questions and may decisiuely influence how
the law will be applied." Tpx. DtscIpLINARy R. or PRotr"l- CoNtucr 2.01, comment 2
(Attachments at 8) (emphasis added).
Based on the description of "Christian Ethical Perspectives: Faith and Law
Today," the program would present a variety of perspectives on just the kind of
"candid advice" contemplated by Disciplinary RuIe 2.01. The Disciplinary Rules
rightly recognize that while some lawyers may view their ethical responsibilities
through a purely secular lens, many lawyers and many clients hold themselves to
moral standards of conduct arising from sources of authority other than "purely
technical" legal sources. The complex reality of how most people-lawyers and nonlawyers alike-approach questions about right and wrong is not something that can
be explained in purely secular terms, as if ethics were an exact science to be applied
mechanically. Morality and religion are ever-present and welcome aspects of life in
our free and diverse society. Accordingly, Iawyers are encouraged by the
Disciplinary Rules to take individual moral considerations into account when
advising clients.
The Committee's decision, on the other hand, suggests that a lawyer's sense
of morality-religious or otherwise-is irrelevant to the lawyer's professional ethical
responsibilities. This rigid, narrow understanding of professional ethics cannot be
squared with the reality of everyday legal practice, and it cannot be squared with
the instructions provided by the Supreme Court in the Disciplinary Rules. The
Committee should reconsider its definition of legal ethics and reverse its decision.

Texas law provides that "[e]ach attorney is subject to . . . the Texas Disciplinary Rules of
Professional Conduct." TEX. Govr. CooB S 81.072(d). The Supreme Court amends the
Disciplinary Rules at the request of the State Bar. ,E.g., Order Promulgating Amendments
to Rule 1.04 of the Texas Disciplinary Rules of Professional Conduct, Misc. Docket No. 059013 (Jan. 28,2005). Especially given the State Bar's influence over the Disciplinary Rules,
the Bar's accreditation decisions for legal-ethics CLE should not discourage programs that
educate attorneys on these rules.
2

II

The MLCE Committee's position ignores the rich tradition of

scholarly inquiry into the intersection between law and faith.

Studying the interplay between morality, religion, and the law is not a new
concept, and educating the legal profession on these issues is not a novel pursuit. In
the Supreme Court's words, "We are a religious people whose institutions
presuppose a Supreme Being." Zorq,ch, u. Clauson, 343 U.S. 306, 313 (1952). It
should be no surprise, then, that American legal education and scholarship has long
sought to better understand how religion and morality interact with the law and
with a lawyer's responsibilities.
In 1998, for example, the Fordham University School of Law organized a
symposium called "The Relevance of Religion to a Lawyer's Work: An Interfaith
Conference." The symposium was co-sponsored by the American Bar Association's
litigation section, and the opening remarks were given by ABA President N. Lee
Cooper. Russell G. Pearce, Forward: The Religious Lawyering Mouentent: Ar
Enzerging Force in Legal Ethics and Professionalism, 66 FonoHAM L. REV. 1077-78
(1998). The symposium published a 500-page volume in the Fordham Law Review,
included a variety of reiigious perspectives,s and considered a variety of views on
the interaction between legal ethics and religious ethics.a ABA President Cooper
concluded his remarks by recognizing that "[a]s lawyers, we can still always find
room for our faith, work by faith, and have confidence that through our faith we will
help create a better secular world. Don't expect this to be easy. Or else it would not
require faith." N. Lee Cooper, Religion and the Lawyer,66 FonoHAM L. REV. 1082
(1ee8).

Texas Tech University School of Law hosted a similar symposium, bringing

together nearly fifty "lawyers, judges, and law professors . . . to reflect on how they
have reconciled their professional life with their faith life." Thomas E. Baker &
Timothy W. Floyd, A Syn"r,posium Precis, 27 Tex. Tech L. Rev. 911 (1996). See also
Stephen L. Carter, Faith and the Law Syposium.: Introduction,2T Tnx. Tucu L. Rnv.
925-26 (1996) (recognizing the connection between faith and the law, and arguing
that "as lawyers and law professors work to make those connections more obvious . .
. the law increasingly will be infused with the rich ethical insights that have been a
principal product of America's religious traditions"). Numerous other scholarly
3 See, e.g., Azizah Y. al-Hib, Faith and the Attorney-Client Relationship: A Muslin't
Perspectiue, 66 FoRDHAM L. REV. 1131 (1998); Michael J. Broyde, Practicng Crim.irus,l Law:
A Jewish Laru Analysis of Being a Prosecutor or Defense Attorney,66 FORDHAM L. REV. 1141
(1998); Kinji Kanazawa, Being a Buddhist and, a Lawyer,66 FORDHAM L. Rnv. 1171 (1998);
K.L. Seshagiri Rao, Practitioners of Hindu Law: Ancient and Mod,ern,66 FORDHAM L. Rpv.
1185 (1ee8).
a See, e.g., Joseph

Allegretti, Lau,tyers, Clients, and Couenant: A Religious Perspectiue ot't,

Legal Practice and Ethics, 66 FoRDHAM L. Rnv. 1101 (1998); James M. Jenkins, Wha,t Does
Religion Haue to Do with Legal Ethics? A Response to Professor Allegretti, 66 FORDHAM L.
REV. 1167 (1993); Leslie Griffin, The Releuance of Religion to a Lawyer's Worlz: Legl Ethics,
66 FoRDHAM L. Rnv. 1253 (1993); Mary Ann Dantuono, A Citizen Lwyer's Moro,l,
Religious, and, Professional Responsibility for the Administro,tion, of Justice for the Poor, 66
FORDHAML. Rnv. 13BB (1998).

books and articles have addressed the interaction between religion, morality, and
legal ethics. ,8.9., Thomas L. Shaffer, ON BpINc A CHRISTIAN AND A LATTER (1981);
David Lyons, E:ruIcs AND THE Ruln oF LAw 7-II (1984) (comparing the "natural
law" views of St. Thomas Aquinas with the "legal positivism" advocated by John
Austin, and noting that "both writers stressed that law is subject to appraisal from
a moral point of view"); id. at 61-109 (examining the connections between moral
principles and the law); A. Leon Higginbotham, Jr., The Life of the Law: Values,

Commitment,

and Craftsmanship, 100 Hanv. L. Rpv. 795, 815 (1987)

("To

paraphrase Justice Holmes, the iife of the law must not be mere logic; it must also
be values. Each lawyer-whether judge or politician, professor or entrepreneurmust make personal judgments. Those critical moral and human values cannot be
acquired by even the most meticulous reading of opinions or statutes. Each lawyer
must consciously and constantly assess his or her values and goals in forging rules
of law for the future.").
And in literature, to pick one example, the interplay between "God's law" and
"mn's law" was memorably depicted in Robert Bolt's A MaN Fon All Spasoxs. In
Bolt's play depicting King Henry VIII's confrontation with the Catholic Church,
William Roper and Sir Thomas More have differing views of the roles of civil law
and religious law. When Roper states that he would "cut down every law in
England" to go after the Devil, More responds: "Oh? And when the last law was
down, and the Devil turned round on you-where would you hide, Roper, the laws
all being flat? This country's planted thick with laws from coast to coast-6n'g
laws, not God's-and if you cut them down . d'you really think you could stand
upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for
my own safety's sake." Robert BoIt, A MeN Fon All SpasoNS 65-66 (Vintage Int'l
ed. 1960).
Inquiring into any one of the above topics would lead to an educationai
discussion worthy of an accredited CLE presentation. The San Antonio Catholic
Lawyer Guild and the Christian Legal Society of San Antonio have proposed a CLE
program that fits securely within this tradition of educating lawyers on the
intersection of law, morality, and religion. Their program and others like it should
be accredited by the State Bar.

III

The MCLE Comrnittee should quickly rernedy this matter and

others like it.

Unfortunately,

the

Committee's rejection

of the "Christian

Ethical
Perspectives" program does not appear to be an isolated case. Texas Lawyer reports
that the Committee also recently rejected three CLE programs proposed by the St.
Thomas More Society in Dallas, including a program on natural law. Brenda
Sapino Jeffreys, Law Prof: CLE Accreditation Nixed for Catholic Messag, TEXAS
LAWYER, Nov. 23, 2015. Natural law, of course, provides the primary
philosophical underpinning for the Anglo-American system of common law, which is
practiced in Texas courts today. See John C.H. Wu, The Natural Law and Our
Comnton Lau.t, 23 FoRtueu L. Rpv. 13 (1954). The men who founded the United
States and wrote our Constitution considered natural law to be the indispensable

underpinning for any man-made legal system. See Philip A. Hamburger, Natural
Rights, Natural Lau.t, and American Constitutions, I02 YaIe L.J. 907 (1993); Randy
E. Barnett, RESToRING THE Losr CoNsutuuoN (rev. ed. 2OL4). That many lawyers
don't know this about the legal heritage they have inherited is a reason to
encourage them to learn it, not to encourage their persistence in ignorance.
With respect to the "Christian Ethical Perspectives" program, it is my
understanding that the MCLE Committee's decision has been appealed. The appeal
asserts that, among other deficiencies, the Committee's decision violates the tr'irst

the Equal Protection Clause, and Texas Religious Freedom

Restoration Act. (Attachments at 9-I4). Rather than spend time responding to

Amendment,

those charges-which imposes unnecessary costs on both the State Bar and the
CLE's proponents-the Committee should be encouraged to reconsider and
withdraw its denial of accreditation for this and other related programs. Moral and
religious considerations are a proper-and for many lawyers an essential-aspect of
legal practice. Members of the bar who wish to do so should be encouraged to
explore the difficult and important ethical questions addressed in these CLE
programs.

A copy of this letter is being provided to Nancy R. Smith,

Director of
Minimum Continuing Legal Education for the State Bar. I ask that this letter be
made part of the record in the ongoing appeal of the MCLE Committee's decision to
deny accreditation to the program titled "Christian Ethical Perspectives: Faith &
Law Toclay." The Justices of the Supreme Court of Texas will also receive copies.
Thank you for your attention to this matter and for your service to the State
Bar and the people of Texas.
ly,

Jimmy B lacl<Iock
General Counsel
Office of Governor Greg Abbott
cc (via e-mail):

Blake Hawthorne, Clerk, Supreme Court of Texas, for distribution to the Chief
Justice and Justices of the Supreme Court
Nancy R. Smith, Director, Minimum Continuing Legal Education
Stephen M. Sheppard, Dean, St. Mary's University School of Law
BiIl Piatt, Professor of Law, St. Mary's University School of Law
Catholic Lawyers Guild of San Antonio