R J UTGERS OURNAL OF L & R AW ELIGION VOLUME 12 FALL 2010 PART 1 Editor-in-Chief CARLY KARLBERG Managing Editor JEFF PILLAR Lead Articles Editor Research and Writing Editor Lead Notes Editor DAVID ESTES SHANNON PHILLIPS CATHERINE REILLY Lead Nuremberg Editor Lead New Developments Business/Marketing Editor Editor BEVERLY BEAVER NABILA SAEED GREGORY CONLEY Lead Technical Editors KATHARINE M. KRASSAN SCOTT SIMPKINS Associate Associate Associate Managing Editors Technical Editors Articles Editors LAUREN COOLEY JENNY AGILA SEFAN KELLY BARSE ERIC FREEMAN KERRY CAHILL DANIELLE GOLD RACHEL GALLAGHER Associate Associate Associate Nuremberg Editors Notes Editors New Developments Editors SAMANTHA KUGLER CAITLIN DUNSTON JESSICA DONOGHUE GIGIO K. NINAN MIKE RASOR RICHARD RAMONES DAVID STAMM Associate Research and Associate Business and Marketing Writing Editors Editor RACHEL BREKKE KAYCI PETENKO ANDREW SEIKEN VOLUME 12 FALL 2010 PART 1 R J UTGERS OURNAL OF L & R AW ELIGION -ARTICLE- CAN COMPASSIONATE PRACTICE ALSO BE GOOD LEGAL PRACTICE?: ANSWERS FROM THE LIVES OF BUDDHIST LAWYERS Deborah J. Cantrell* TABLE OF CONTENTS I. Introduction.............................................................................................................................3 II. Setting the Stage: Buddhist Traditions in the United States..................................................5 A. Two Buddhisms in America...............................................................................................5 B. A Very Short Primer on Particular Buddhist Traditions in America..................................7 1. Commonalities Among the Yanas................................................................................8 2. Theravada Tradition: Vipassana.................................................................................12 3. Mahayana Traditions: Zen and Tiep Hien.................................................................13 4. Vajrayana: Tibetan Traditions...................................................................................15 III. Methodology.........................................................................................................................15 A. Selecting the Participants..................................................................................................15 B. Definition of “Lawyer” and “Buddhist Practice”.............................................................16 C. General Scope of the Interviews.......................................................................................17 IV. Findings.................................................................................................................................17 A. Geographic Regions Represented.....................................................................................18 B. Legal Practice Areas Represented....................................................................................18 C. Religious Upbringing........................................................................................................21 D. Coming to Buddhism (or not)...........................................................................................24 1. Overview.....................................................................................................................24 2. Some Individual Stories..............................................................................................26 E. What Constitutes Buddhist “Practice”..............................................................................34 F. Lawyerly Values...............................................................................................................38 G. Lawyerly Practice as a Buddhist Practice.........................................................................40 H. Discussions of Buddhist Practice with Client and Colleagues.........................................51 I. Interplay Between Buddhist Practice and the Rules of Professional Conduct.................56 * Associate Professor, University of Colorado Law School. With deep gratitude and respect, I thank the fifteen participants in this project. Without their generosity, candor, and patience, this project would not have happened. Thank you to my colleagues at the University of Colorado Law School, particularly Sarah Krakoff and Pierre Schlag. Thanks to Leanne Hamilton and Wunpenn Zaborek for tireless research assistance, and to Jane Thompson, Assistant Library Director, for finding many obscure materials for me. Thanks also to William Boyd for suggesting a qualitative instead of quantitative approach for this project. RUTGERS JOURNAL OF LAW AND RELIGION VOLUME 12 FALL 2010 PART 1 V. Reflections on the Interviews................................................................................................59 A. Observations of the Expected...........................................................................................60 1. American Buddhist Lawyers as American Buddhists................................................60 2. Buddhist Lawyers Can Be as Qualmish as Other Lawyers About Religion...............60 3. Participants Strongly Believed That Their Buddhist Practices Make Them Better Lawyers.......................................................................................................................62 B. Observations of the Unexpected.......................................................................................67 1. Buddhist Lawyers Practice in a Range of Settings and Are Not Congregated in Any Particular Practice Area....................................................................................................67 2. The Importance of Honesty as a Lawyerly Value......................................................71 3. The Importance of Compassion as a Lawyerly Value................................................73 VI. Conclusion............................................................................................................................75 RUTGERS JOURNAL OF LAW AND RELIGION VOLUME 12 FALL 2010 PART 1 ABSTRACT What does it mean to say that one is a “good lawyer” in the United States? The dominant view is that a lawyer is a zealous advocate owing loyalty to, and taking direction from, the client. The lawyer is singularly focused and hyper-rationality is prized. This article challenges that narrative. Using the real lives of a group of lawyers across the United States, this article offers rich and nuanced descriptive data about the possibilities of “good lawyering” through compassion, equanimity, and an expanded notion of honesty. This article contributes importantly to the debate about what it means to be a “good lawyer” by moving beyond speculation to an actual inquiry and dissection of lawyering that prioritizes professional values other than those privileged by the mainstream view. I. INTRODUCTION Imagine the following scene: A litigation partner in a large law firm enters his office on Monday morning and the first item on his calendar is a meeting with a client related to a new litigation matter about which the client is extremely anxious and angry. The client has told the partner over the phone that the client wants to “nail the other side to the wall.” Possible Ending One: To prepare for the meeting, the partner spent the preceding weekend reviewing materials the client had provided. The partner stayed up until 3:00 a.m. the night before the meeting sketching out litigation strategies, including one particularly aggressive approach. At the meeting, the partner presented the client with the list of litigation strategies, leading with the aggressive approach. Possible Ending Two: To prepare for the meeting, the partner spent Friday afternoon reviewing materials the client had provided. The partner then spent the weekend leading a retreat for the local Zen Center. The partner entered the Monday morning meeting calm, open, and ready to learn from the client. 3 RUTGERS JOURNAL OF LAW AND RELIGION VOLUME 12 FALL 2010 PART 1 The lawyer from Possible Ending One fits with many popular images of the zealous advocate. A good lawyer is one who will go to all legal and ethical lengths to represent her client’s stated interests. We associate certain intense, adversarial, and even addictive behaviors with that lawyerly type, and that association has an unfortunate resonance with fact.1 Yet what about the lawyer from Possible Ending Two? Can she also be a good lawyer? This article explores that question in the context of a qualitative study of Buddhist lawyers. The traits associated with Buddhist practice include compassion, equanimity, and an expanded notion of honesty. This paper examines how Buddhist lawyers incorporate those traits into their law practice, and in doing so, ultimately argues that the dominant image (and perhaps reality) of the good lawyer is too narrow. The Buddhist lawyer not only can be a good lawyer, but can offer us concrete examples of lawyerly behavior that illuminate what is lacking in the dominant image. Debates about what constitutes a good lawyer abound in the bar and the scholarly literature. Positions range from decrying the erosion of professionalism2 to espousing that lawyers must separate their personal moral values from their practice.3 While some scholars have theorized that religious, and even Buddhist, values can inform ethical legal practice,4 none have undertaken the kind of in-depth examination of practicing Buddhist lawyers that comprises the heart of this paper. This qualitative study takes the theory to the ground, and is the first of its kind. Based on extensive interviews of fifteen participants, this article provides a detailed, but preliminary, 1 See, e.g., Patrick Schiltz, On Being A Happy, Healthy, Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 VAND. L. REV. 871 (1999). 2 See generally MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993). 3 See Norman W. Spaulding, Reinterpreting Professional Identity, 74 U. COLO. L. REV. 1 (2003); Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 CARDOZO L. REV. 1577 (1993). 4 See Amelia J. Uelmen, Can a Religious Person Be a Big Firm Litigator?, 26 FORDHAM URB. L.J. 1069 (1999); Joseph Allegretti, Lawyers, Clients, and Covenant: A Religious Perspective on Legal Practice and Ethics, 66 FORDHAM L. REV. 1101 (1998); Timothy W. Floyd, The Practice of Law as a Vocation or Calling, 66 FORDHAM L. REV. 1405 (1998); Thomas E. Baker & Timothy W. Floyd, A Symposium Precis, 27 TEX. TECH L. REV. 911 (1996) (introducing symposium in which lawyers of many faiths were asked to narrate how faith informed their professional work); Russell G. Pearce, Jewish Lawyering in a Multicultural Society: A Midrash on Levinson, 14 CARDOZO L. REV. 1613 (1993); Thomas L. Shaffer, The Practice of Law as Moral Discourse, 55 NOTRE DAME LAW. 231 (1979). 4 RUTGERS JOURNAL OF LAW AND RELIGION VOLUME 12 FALL 2010 PART 1 catalog of Buddhist lawyers in the United States. The narratives presented include lawyers who currently practice, or have practiced, in a wide range of legal settings, from large firms to solos, from government lawyers to corporate counsel, legal aid, criminal prosecution and defense, law faculty, and law school administration. The group also includes lawyers with a range of experience levels, from newer lawyers (three years from graduation) to very experienced lawyers (over 30 years from graduation). Each of the fifteen participants identify as having some level of Buddhist practice. Many have committed to a particular form of Buddhist practice, like Zen or one of the Tibetan traditions, while others have recently begun exploring a basic contemplative practice. The participants offer candid and comprehensive descriptions of the ways in which they understand their obligations as lawyers and the ways in which they understand their aspirations as Buddhist practitioners. They talk about the ways in which there is interplay between their lawyering and their Buddhist practices, and they consider whether they have found tensions between their lawyerly roles and their spiritual roles. All have concluded that they are better lawyers because of their Buddhist practices. This article first situates Buddhist traditions in America, providing some historical and canonical background. It then delves into the professional lives of the fifteen participants, providing information on their legal careers, their religious upbringings, and the ways in which they came to Buddhism. It next describes how the participants have each connected their Buddhist practices and their lawyering practices, exploring ways in which Buddhism and lawyering are harmonious and ways in which they may be in tension. The article concludes by squarely asking, “Can a Buddhist be a good lawyer?” It answers the specific question with a definitive yes, thereby importantly expanding general theories about what counts as good lawyering. II. SETTING THE STAGE: BUDDHIST TRADITIONS IN THE UNITED STATES A. Two Buddhisms in America The lawyers who participated in this project are, of course, a very small portion of a larger community of Buddhist lawyers in the United States, which is itself only a small part of a 5 RUTGERS JOURNAL OF LAW AND RELIGION VOLUME 12 FALL 2010 PART 1 general community of Buddhists in America. In order to have some context in which to consider the stories of the fifteen participants in this project, it is important to sketch out some broader descriptive parameters about Buddhists in the United States. There has been a Buddhist presence in America since at least the mid-1800s.5 From its inception, Buddhism in America has had two fairly independent elucidations – (1) Buddhism as known and practiced by immigrants from countries in which Buddhism was a well-established religion and (2) Buddhism as learned by Westerners.6 An example of the first is Buddhism as practiced by Chinese immigrant railroad laborers in the mid to late 1800s, who built Buddhist temples along the California coast.7 An example of the second is Buddhism as practiced by New Yorker Helena Blavatsky, who co-founded the Theosophical Society in 1875 and formally committed to Buddhism in 1880.8 Scholars of American Buddhism have found discernible differences between the two paths of American Buddhism. As a starting matter, the fact that there are two paths has meant that describing a person as an “American Buddhist” is unhelpful.9 It has been unhelpful not only because it does not capture differences in Buddhist practices between the two paths, but also because of the risks of privileging one path over the other and of interpreting “American” to mean white and not inclusive of others.10 Thus, scholars have spent intensive effort on developing an appropriate nomenclature. There now appears to be a reserved consensus to use “Asian immigrant Buddhism” and “American convert Buddhism” to describe the two paths.11 This Article will follow that convention. Because all fifteen of the participants in this project would be considered American convert Buddhists,12 it may be useful to briefly describe two primary differences between American convert Buddhism and Asian immigrant Buddhism. One is that American convert 5 CHARLES S. PREBISH, LUMINOUS PASSAGE: THE PRACTICE AND STUDY OF BUDDHISM IN AMERICA 3-4 (1999). 6 Id. at 3-7. 7 Id. at 4. 8 Id. at 5. 9 Id. at 57-63. 10 Id. at 57. See also RICHARD HUGHES SEAGER, BUDDHISM IN AMERICA 9 (1999). Seager notes that Buddhists born in America can be of European, Asian, and Native American backgrounds, just as “there are white collar Buddhists; Buddhist cab drivers, mechanics, and chefs.” Id. 11 PREBISH, supra note 5, at 61-63. See also SEAGER, supra note 10, at 9-10. 12 Just as Buddhist scholars remain unsettled about nomenclature, not all of the participants are easy with being labeled “convert Buddhists.” 6 RUTGERS JOURNAL OF LAW AND RELIGION VOLUME 12 FALL 2010 PART 1 Buddhists highlight the place of meditation in Buddhist practice.13 In contrast, Asian immigrant Buddhists generally “maintain practices consistent with ritual activity . . . .”14 The difference is one of emphasis; it is not that American convert Buddhists only practice meditation without ritual or that Asian immigrant Buddhists only practice ritual without a contemplative practice.15 A related difference is that American convert Buddhists have de-emphasized distinctions between lay Buddhists and monastic Buddhists.16 As Charles Prebish has described, in Asian countries with Buddhist traditions, the “monastic unit” is extremely important, and separate from, the laity.17 In contrast, American convert Buddhists emphasize integrating their ordinary lives with a contemplative practice.18 One noted American convert Buddhist teacher, Jack Kornfield, described integration as follows: North American Buddhists have already begun to develop means to integrate and live the practice as householders, as family people, as people with jobs who still wish to partake of the deepest aspects of the Dharma [Buddhist teachings] – not through running away to caves, but by applying practice to their daily lives.19 As discussed more fully below, the fifteen participants follow the patterns for American convert Buddhism. B. A Very Short Primer on Particular Buddhist Traditions in America For readers less familiar with the general tenets of Buddhism, this section will briefly introduce core concepts shared by all Buddhist traditions, as well as briefly describe the particular Buddhist traditions represented by the fifteen participants in this project. This section 13 PREBISH, supra note 5, at 63. See also HUSTON SMITH & PHILIP NOVAK, BUDDHISM: A CONCISE INTRODUCTION 143-44 (2003). 14 PREBISH, supra note 5, at 63. 15 SEAGER, supra note 10, at 3-6. 16 PREBISH, supra note 5, at 70-73; SMITH & NOVAK, supra note 13, at 143-44. 17 PREBISH, supra note 5, at 70-72. 18 Id. at 71-72. 19 PREBISH, supra note 5, at 71. 7 RUTGERS JOURNAL OF LAW AND RELIGION VOLUME 12 FALL 2010 PART 1 is not comprehensive, but is intended to introduce readers to several core principles or activities of Buddhism that the fifteen participants refer to throughout their narratives.20 Like other religions, Buddhism is divided into multiple schools.21 Buddhists generally refer to the schools as “yanas” or “vehicles.”22 They are: Theravada, Mahayana and Vajrayana, although some scholars consider Vajrayana to be a part of Mahayana.23 Also like other religions, within each school, there are more particular traditions. For example, within Mahayana, there is the Japanese Zen tradition, and within Japanese Zen, there are more particular traditions such as Soto Zen and Rinzai Zen.24 1. Commonalities Among the Yanas25 All three yanas share certain core characteristics and principles. An important characteristic is the idea of “practice” – think piano practice or soccer practice. The Buddha set out a kind of daily training regimen designed to enable any person to understand the world as it really exists. The training regimen is called the Eightfold Path and it is part of the foundational principle of Buddhism called the Four Noble Truths.26 The Noble Truths are: First Noble Truth: Life is dukkha (usually translated in English as “suffering”). Second Noble Truth: The cause of dukkha is tanha (usually translated in English as “desire”). 20 For a more comprehensive overview of Buddhist traditions in America, see SEAGER, supra note 10, at chs. 5-10. See also PREBISH, supra note 5, at ch. 3. 21 For example, within Christianity, there are multiple schools including Catholicism, Protestantism, and Episcopalian. 22 SEAGER, supra note 10, at 21. 23 Id. at 22, 23, 29. In this article I will follow the approach of treating Vajrayana as its own vehicle. There are also some variations in describing yanas. See, e.g., THICH NHAT HANH, THE HEART OF THE BUDDHA’S TEACHINGS 13 (1998) (describing Source Buddhism, Many-Schools Buddhism, and Mahayana Buddhism). 24 SEAGER, supra note 10, at 27-29. 25 This section is intended to be a very cursory introduction to core Buddhist principals. Readers who are interested in a more thorough understanding might review Smith & Novak, supra note 13. See also SEAGER, supra note 10, at ch. 2. 26 SEAGER, supra note 10, at 14-16. 8 RUTGERS JOURNAL OF LAW AND RELIGION VOLUME 12 FALL 2010 PART 1 Third Noble Truth: The end of dukkha comes by overcoming tanha. Fourth Noble Truth: The way of overcoming tanha is the Eightfold Path.27 The translation of “dukkha” into the English word of “suffering” may be misleading. A more appropriate translation is the idea that things are askance or dislocated; “Something has gone wrong. It is out of joint. . . . [I]ts pivot is not true.”28 According to the Second Noble Truth, the reason that one’s life is askance is that one craves permanence in a world that is ever- changing.29 One desires personal fulfillment, and clings to a false sense of an individualized, separate, permanent self.30 The Third and Fourth Noble Truths instruct that one overcomes dislocation by following the Eightfold Path.31 The destination upon overcoming dukkha and tanha is an equanimity towards all, and to “rest in pure awareness.”32 That destination is referred to as nirvana, translated as “unbinding,”33 or “to extinguish” or “blow out” as with a fire.34 The idea of nirvana is not a sense of annihilation, but instead is the “highest destiny of the human spirit . . . [and] what is to be extinguished are the boundaries of the finite self . . . .”35 The Eightfold Path is the practicum for reaching enlightenment. The Eightfold Path is generally translated as: 1. Right View 2. Right Intent 3. Right Speech 4. Right Conduct 5. Right Livelihood 6. Right Effort 27 SMITH & NOVAK, supra note 13, at 31-37. 28 Id. at 34. 29 Id. at 34-35. 30 Id. at 36-37. 31 Id. at 37. 32 Jack Kornfield, This Fantastic Unfolding Experiment, BUDDHADHARMA, Summer 2007, at 34. 33 SEAGER, supra note 10, at 13. 34 SMITH & NOVAK, supra note 13, at 51. 35 Id. at 52. Buddha insisted that attempts to categorize or describe nirvana were useless as it is “incomprehensible, indescribable, inconceivable, unutterable.” Id. 9 RUTGERS JOURNAL OF LAW AND RELIGION