University of Southern California Dissertations and Theses

Cause and consequence: confronting ethical challenges in models of morally informed legal practice

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Cause and consequence: confronting ethical challenges in models of morally informed legal practice

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CAUSE AND CONSEQUENCE: CONFRONTING ETHICAL
CHALLENGES IN MODELS OF MORALLY INFORMED LEGAL PRACTICE

by

David Ward German

__________________________________________________________________

A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(PHILOSOPHY)

August 2009

Copyright 2009 David Ward German

ii
Dedication

For Marina - whose love sustains me, whose life inspires me.

iii
Acknowledgments

Sincere thanks to Dallas Willard and John Dreher for helping me clarify my
thinking about the issues discussed here. Gideon Yaffe has been an unwavering source
of support and encouragement during my time at USC. Nomi Stolzenberg’s counsel and
kindness enriched the final years of my graduate career.
Neil McArthur’s friendship made my early years in the philosophy department a
pleasure. The company of Gregory Pleasants and Eric Schultheis mitigated the pain of
law school to a significant degree.
I thank Robert Myers for his friendship and guidance.
This project would never have been completed without the love, support and
encouragement of Cynthia and Jim Eastman. I am very lucky to have you both.
Finally, I thank my wife, Marina Tomazinis, for her love and support, and for the
happiness she brings me.

iv
Table of Contents
Dedication ii

Acknowledgments iii

Abstract v

Introduction 1

Chapter One: Historical Emergence of Professional Norms 7
Moral Neutrality: A Crisis in Conventional Legal Practice 13
Reformist Laments and Lost Virtue 15
Cause Lawyers Creating Change 26
Current Conflict 44
Away from the Advocacy Model: Social Transformation, 48
Pervasive Activism, Education, and Individual Autonomy

Chapter Two: The Private Attorney General Model 51
History of Brown 57
Continuing Influence of NAACP Tactics 69
Procedure 81
Unity of Purpose Between Lawyers and Clients 83
Emergence of Intra-class Divisions 93
Marriage Equality Litigation as Contemporary Analogue 99
False Unity Versus Pluralistic Interests 101

Chapter Three: Rebellious Lawyering 108
Chapter Four: Relation to Groups as a Test of Practice Models 190
Proceduralist Responses to Division 192
Client-Centeredness: The Enhancement of Group Autonomy 203
Shared Aspects Providing Legitimacy in Representation of 216
Divided Classes

Chapter Five: A New Model of Morally Committed Legal Practice 220
References 243

v
Abstract

Many attorneys reject the largely instrumental role that has come to define
contemporary legal professionalism. Instead they seek to structure a professional practice
that allows them to effectuate their social ideals through their work. This study critically
examines various theoretical models created to structure such morally informed legal
practice. The author finds that the most popular of these models contain flaws that create
insurmountable ethical dilemmas for the attorney working within them. He then argues
for the position that morally informed legal practice is possible within the current
framework of professional ethics only if the focus of such practices becomes the moment
of engagement in a matter. Such a change shifts the morally significant decision for an
attorney to a more clearly delineated and temporally prior moment than that which is
currently the focus of ethical debate and regulation. The endorsement of and
identification with the ends of representation can effectively transform the purely
instrumental nature of current professional practice, thereby having significant
ramifications for internal professional norms. Moreover, such a change is capable of
occasioning dramatic changes in the satisfaction and sustainability of the work lives of
many legal professionals.

1

Introduction

“No social role encourages such ambitious moral aspirations as the lawyer’s, and no
social role so consistently disappoints the aspirations it encourages.”
1

- William Simon

William Simon’s claim about the ultimately illusory nature of the aspirations that
the legal profession inspires in those who choose it as a career has deep resonance for the
majority of legal practitioners. What makes the aspirations of the profession so
consistently unattainable for so many of its initiates?
Many, perhaps most people, are drawn to the legal profession because they see it
as a way to promote justice. In a very abstract sense, there is a widely shared intuition
that whatever mysteries one is exposed to in law school, the goal of such education must
be to train you to further justice. Much in the way that a medical school ought to train its
students in the promotion of health, there is an equally general and widely held belief that
law schools will train their students to promote justice. Just as the promotion of health is
viewed as a good to be pursued as an ultimate end (we don’t ask doctors to withhold
treatment until they have evaluated the ends to which their patients will put the renewed
vigor afforded by their improved health), so it is generally believed that lawyers will
pursue justice as a transcendent end, and that the pursuit of this ultimate good is capable
of providing the general focus for the practice of law in all its various forms.

1
WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS’ ETHICS 2 (1978).

2
Unfortunately, the actual role that lawyers play in society is much more prosaic
than the vision outlined above. Despite popular depictions whose dramatic appeal
focuses on attorneys’ pursuit of transcendently just ends (almost always, interestingly, by
struggling to overcome the constraints of legal process and internal professional ethical
norms), the actual practice of law is invested with the enactment of procedural rituals that
are often completely disconnected from any end that transcends a client’s self-interest.
Popular depictions are effective dramatically because they signal the appropriate and
transcendently just outcome prior to any engagement with the legal process. Both the
actors and spectators are aware of what the transcendently just outcome is; it only
requires that the heroic lawyer overcome the obstacle of Law to bring about that better
state of society.
The socialization of the legal professional that takes place in law schools is
traditionally known as teaching one “to think like a lawyer.” This notion is often alluded
to quite vaguely, but when characterized more explicitly, is sometimes described as the
attainment of precision and rigor in thought and argumentation. The process of legal
education is purportedly one in which law students have habits of vague logic and appeal
to ill-defined ideals such as Justice and Fairness drilled out of them through intense
engagement with legal thought. Such a characterization is mostly accepted by law
students because of the intense anxiety among them that they are somehow not
intellectually up to the task of legal training. Part of showing oneself up to that task, one
of the main intellectual hallmarks of “becoming a lawyer,” is the abandonment of the
notion that transcendent values of justice or fairness are at work in the law. Such beliefs

3
are to be replaced by an understanding that legal facts and legally just outcomes are
matters internal to the workings of law that can only be known, only exist in fact, once
the procedural requirements and process of legal adjudication have been carried out.
Legal training appears designed to destroy the belief that any facts exist about what
outcomes will promote justice, or what legal outcome is fair, prior to the enactment of
legal process.
The practice of law continually and pervasively reinforces this focus on process
and procedural requirements. Nevertheless, many law students and attorneys find it
painful and disorienting to accept that the promotion of morally important ends is simply
not on their career horizon. I believe it is this realization that is at the heart of the
pervasive dissatisfaction in the legal profession. Becoming a lawyer purports to offer
something more than a gainful trade. The allure of law as a profession depends upon the
belief that a life in the law promotes non-instrumental values. A crisis of identity can
take hold as the idea that there is any transcendent value promoted in the practice of law
dissipates.
While many attorneys come to take pleasure in creating legal solutions that bring
about others’ ends, there are also many in the profession who find the instrumental nature
of such work demeaning. Why is this so? It goes back to the initial reason so many came
into law. They believed that they were going to promote transcendent values of justice or
fairness, and the practice of law offers them only the ability to effectuate the ends of
others. Students enter law school with the naïvete of architectural students who believe
they will shape society through the beauty and socially transformative functionality of

4
their designs for public spaces. They leave law school armed with a building code and a
brief to place bathrooms in the most efficient way within an edifice designed by others.
While the efficient and effective processing of sewage is essential to society, few
architects view such details as the highest form of a profession that encompasses both the
arts and engineering. Without the idea that there is a transcendent value being promoted
by their work, many attorneys balk at the realization that legal practice essentially
consists of creating ever more efficient and elegant solutions to effectuate the ends of
others.
Some lawyers refuse to become resigned to the instrumental role of the
profession, they seek to structure a practice that allows them to pursue their social ideals
through their work in the law. As we will see below, the concept that an attorney’s duty
is to promote socially just outcomes irrespective of the interests of their clients is not
new. However, it is an open question whether such a self-conception is tenable for a
lawyer working within our legal system. Leaving aside for now the many practical
concerns such a role creates with respect to our notions of representation, one can
question whether, in a democratic society, there is any appropriate sense in which such a
role can be ethically self-assigned to an individual attorney as opposed to judges or
legislatures. Despite the fact that individuals enter the law in the belief that they will be
able to directly serve transcendent values, it is not the case that society has allocated
lawyers any role beyond that of constrained actors within a carefully circumscribed and
socially essential process. Simply because some attorneys have an understandable desire
to live out the dreams they had for their professional life prior to being indoctrinated in its

5
prosaic realities, and to somehow transcend their procedurally driven role in the legal
process, does not mean that there is a clear path to claim such a transcendent professional
perspective. Nor, importantly, does such desire necessarily entail that such a perspective
even exists.
Idealistic reconstructions of the attorney’s role in society have focused almost
exclusively on the relation between attorneys and their clients. In the chapters below, I
critically examine some of the most prominent practice models proffered as a means to
infuse the practice of law with moral import. Unfortunately, each model ultimately fails
to create a stable conception of alternative professional practice. I will argue that this
failure is due to their focus on the attorney-client relation as the morally determinative
aspect of legal practice.
Ultimately, I will propose a solution to the crisis occasioned by this failure,
advocating a simple— though, in effect, quite radical-- shift away from the attorney-
client relationship as the locus of ethical legal professionalism. I will argue that a
morally serious legal practice requires that one understand both the moment of moral
significance and the type of moral commitment made quite differently than current
professional norms suggest. I argue that it is the moment of engagement in a matter,
more clearly delineated and temporally prior to the ongoing attorney-client relationship
that is currently the focus of ethical admonitions, which is the morally significant
moment of commitment for an attorney. More significantly, I then hold that only through
endorsement of and identification with the ends of representation can attorneys transform
the purely instrumental nature of current professional practice. These two simple

6
changes would have significant ramifications for internal professional norms, but I
believe them capable of occasioning equally dramatic changes in the satisfaction and
sustainability of the work of legal professionals. I believe this change in focus will retain
the source of satisfaction that currently prevalent models of alternative legal practice
sometimes provide their adherents without leading to the ethical instability to which they
are prone.

7

Chapter One: Historical Emergence of Professional Norms

Contrary to the widespread alienation and dissatisfaction pervasive in the legal
profession,
1
attorneys whose practices focus on the promotion of ends to which they have
a deep personal commitment often lack, to a greater or lesser extent, the symptoms of
alienation and anxiety about their choice of profession.
2

Although such attorneys practice across an array of specialties and in a variety of
settings, the professional activity of all cause lawyers is animated by moral and political
commitment. This contrasts with a more traditional legal practice model that exalts the
zealous pursuit of ends defined by clients through the use of the attorney’s, largely

1
RICHARD ZITRIN & CAROL M. LANGFORD, THE MORAL COMPASS OF THE AMERICAN LAWYER: TRUTH,
JUSTICE, POWER, AND GREED 232 (1999) [hereinafter “Zitrin & Langford, Moral Compass of the American
Lawyer”] (“Despite all their money and power, lawyers themselves have never been more dissatisfied with
their profession than they are today.”); WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF
LAWYERS’ ETHICS 1-2 (1978) [hereinafter “Simon, The Practice of Justice”] (explaining the moral anxiety
common to lawyers by arguing that the ideology of uncritical advocacy “weakens the connection between
the practical tasks of lawyering and the values of justice that lawyers believe provide the moral foundation
of their role.”); DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION 8
(2000) [hereinafter “Rhode, In the Interests of Justice”]:

Only one-fifth of attorneys feel that the law has lived up to their expectations in contributing to the
social good. Symptoms of professional malaise are also apparent in health-related difficulties. An
estimated one-third of American attorneys suffer from depression or from alcohol or drug
addiction, a rate that is two to three times higher than in the public generally.

Also see generally Chapter 2 of Rhode, In the Interests of Justice, especially the “Dynamics of Discontent”
section at 24-28.

2
STUART A. SCHEINGOLD & AUSTIN SARAT, SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND
CAUSE LAWYERING 1-2 (2004) [hereinafter “Scheingold & Sarat, Something to Believe In”]; see also
Simon, The Practice of Justice, at 3. His argument that the main source of moral anxiety in the dominant
conception is “the perceived tenuousness of the connection between the concrete immediate injustices of
practice and the remote justice that is supposed to redeem them” suggests a reason why the immediacy of
practice focused on morally informed ends may constitute an antidote to such anxiety.

8

technical, skills.
3
The conventional model of practice precludes the expression of an
individual attorney's moral or political beliefs.
4
Likewise, there is little room for the
pursuit of political and social ends that transcend the ends defined by individual clients.
5

In fact, the uncritical acceptance and pursuit of a client’s goals is taken as a virtue in that
it “release[s] a lawyer of the need, or indeed right, to be his client’s judge and thereby
frees him to be the more effective advocate and champion."
6

3
Id., at 2, see also Charles Silver & Frank B. Cross, What’s Not to Like About Being a Lawyer? Lawyer: A
Life of Counsel and Controversy, 109 YALE L.J. 1443 (2000).

4
See Simon, The Practice of Justice, at 2, asserting that norms of traditional practice have led us to a point
where “No social role encourages such ambitious moral aspirations as the lawyer’s, and no social role so
consistently disappoints the aspirations it encourages.”

5
Zitrin & Langford, Moral Compass of the American Lawyer, at 77 quoting a lawyer disapproving of
objections to the representation of unethical corporate clients in civil matters:

Had they mastered the meaning of the adversary system. They would have known that their
conduct was subversive of the central tenet of the profession they were about to enter . . . [They]
have not taken account of the operation of the adversary process. The utility of that process is that
a release a lawyer of the need, or indeed right, to be his clients judge and thereby frees him to be
the more effective advocates and champion.

For an early statement extending the obligations of zealous advocacy to a civil context see GEORGE
SHARSWOOD, AN ESSAY ON PROFESSIONAL ETHICS (5th ed., 1896), at 95-96:

The same course of remark applies to civil causes. A defendant has a legal right to require that the
plaintiff demand against him should be provided and preceded with according to law. . . . [I]f a
suit be instituted against a man to recover damages for a tort, the defendant has a right to all the
ingenuity and eloquence he can command in his defense, even if he has committed a wrong, the
amount of the damages may not exceed what the plaintiff is justly entitled to recover.

6
Id.; see also SUSAN D. CARLE, Introduction, in LAWYERS’ ETHICS AND THE PURSUIT OF SOCIAL JUSTICE:
A CRITICAL READER 1-2 (Susan D. Carle ed., 2005); compare Simon, The Practice of Justice, at 2
(describing the morally corrosive effect of such a position for the individual attorney:

This conception often requires that the lawyer take actions that contribute to injustice in the
circumstances at hand. Of course, these actions are supposed to facilitate a greater justice in a
more remote sense. But the remoteness of the ultimate moral payoff of the lawyer’s conduct is a
problem. At best, the situation demands of the lawyer an exacting moral asceticism. Her
immediate experience implicates her in violations of the values to which she is most
fundamentally committed; the redeeming beneficial effects occur somewhere outside of her
working life, perhaps invisibly. . . The problem becomes more serious once we have reason to

9

Regardless of their irreconcilable motivations, cause lawyers and more traditional
practitioners are bound to one another in interesting and sometimes uncomfortable ways.
All lawyers share a set of ethical rules and professional norms. More importantly, they
also share a stock of social capital whose value rises and falls in concert with the public’s
perceptions of the profession as a whole. These bonds create both ties and tensions
between cause lawyers and the larger profession. Because codifications of rules and
norms of the profession have been dominated by and oriented towards the professional
needs of traditional practitioners, they often constrain and disfavor morally informed
advocacy. Conversely, traditional practitioners find themselves tied to cause lawyers
because they perform much of the work perceived by the public as constitutive of the
profession’s most essential contribution to society.
The public largely rejects the apparent amorality of the ethic of neutrality that is
exalted within the profession.
7
Traditional practitioners have played central and visible
roles in facilitating or perpetrating some of the least admirable events in our recent
history such as Watergate and the Enron scandal.
8
A need clearly exists for assertive

doubt the connection between the vividly perceived injustice of the here and now and the greater
justice expected elsewhere and later.

Also see Zitrin and Langford, The Moral Compass of the American Lawyer, at 234 (“Our system is
designed so that each side can have a lawyer who is a spokesperson, a standard-bearer, whose highest duty
is to the client, not to the state or the lawyer’s own notion of what is right”).

7
Zitrin and Langford, The Moral Compass of the American Lawyer, at 3; Simon, The Practice of Justice, at
4 (describing the core of the traditional public critique of lawyering as “that layers in their conventional
practices contribute knowingly to injustice”).

8
Id., at 3, 22, (describing the disconnect between professional views of the obligations to the adversarial
system and public perception in the criminal context); see also Scheingold & Sarat, Something to Believe
In, at 40-42; Although I clearly do not mean to claim that the legal profession was widely popular at any
point in American history – consider Lawrence M. Friedman, Lawyers in Cross-Cultural Perspective, in 3

10

rehabilitation of the profession’s image.
9
Because the work of attorneys with morally
informed practices often aids the least fortunate in society, such attorneys often improve
the image of the profession. The profession has therefore been forced, in the service of
public relations, to overcome its distaste for modes of practice that eschew the tradition
of neutrality respecting the goals of representation.
Insofar as they hew relatively closely to traditional models of practice, individual
practitioners that are motivated by political beliefs or strong convictions about the social
obligations of professionals are easily embraced and applauded by the profession. To the
extent that the harsh hired gun image of the legal profession is thereby mitigated, such
accommodation has become widely accepted, especially since the advent of traditional
cause lawyering in the civil rights era.
10
Yet in reality, the ethic of committed obligation
is held up as a model of practice and applauded by the profession almost exclusively at
ceremonial occasions such as the welcoming ceremonies and graduation exercises of law
schools.
11

Lawyers in Society: Comparative Theories,at 6 (Richard L. Abel & Philip S. C. Lewis eds., 1989) noting
that even the earliest settlers in the colonial period “consigned lawyers to a role only slightly above the
Biblical serpent.”

9
Rhode, In the Interests of Justice, at 3 (quoting political consultant as counseling politicians that “It’
almost impossible to go too far when it comes to demonizing lawyers.”) Yet as Rhode notes, such disdain
is not new, “Over two thousand years ago, Seneca observed advocates acting as accessories to injustice,
‘smothered by their prosperity,’ and Plato condemned their ‘small and unrighteous souls.’” Id., at 1.

10
See generally Scheingold & Sarat, Something to Believe In, ch. 2.

11
Id., at 57-58; Robert W. Gordon, The Independence of Lawyers, in Lawyers’ Ethics and the Pursuit of
Social Justice: A Critical Reader, at 66 (Susan D. Carle ed., 2005):

I know perfectly well that when lawyers start talking about their public duties, being officers of
the court and so on, most of us understand that we have left ordinary life far behind for the hazy

11

In the remainder of this chapter, I will explore the divergent ethical bases which
inform traditional and “cause” models of legal practice. I’ll also try to make explicit the
basis of the unstable truce that currently holds between them. This chapter will proceed
at a quite general level, its purpose being to set the stage for a series of more focused
explorations of the ethical challenges faced by individual practitioners whose relationship
to the profession at large puts them in the camp of cause lawyering. While the models of
practice explored in subsequent chapters are informed by several quite distinct visions of
how politically motivated practice ought to proceed, they are also constrained in similar
ways by the general relation of such practitioners to the profession at large. Their
rejection of a morally neutral advocacy is sufficiently radical that their challenges to the
professional status quo are similarly received. The further their methods and motivations
diverge from those of the traditional legal practitioner, the more constrained by
professional norms the cause lawyer’s ability to maneuver as legal and political actors
and activists become.
12
Despite divergence in motive and theoretical underpinnings, any
mode of professional life that pursues a truly transformative agenda or employs tactics
that are perceived as risking the social capital of the profession as a whole will receive
little support and often face active obstruction and sanction.
13

aspirational world of Law Day sermon and Bar Association after-dinner speech – inspiration,
boozily solemn, anything but real.

12
Scheingold & Sarat, Something to Believe In, at 18 (arguing that while “working within the liberal
democratic paradigm provides cause lawyers with political legitimacy . . . insofar as cause lawyers pursue
transformative agendas, they must do so with fewer political and legal resources and with poorer
professional prospects”).

13
Id., (“Cause lawyers experience the pull of the profession as a disciplining and domesticating force,
policing the kinds of causes for which lawyers can and should advocate and the nature of the advocacy they

12

One way of illustrating the relationship of different types of cause lawyering
models to the dominant paradigm is to describe the extent to which their practice diverges
from the means and motivations of conventional lawyers. Nevertheless, careful
examination of the specific ways in which they diverge from each other is also important.
As will become clear in later chapters, variations in the practical implementation of
alternative visions of legal practice lead to significantly different outcomes when
evaluated with an eye to conflicts with the rules of professional ethics.

provide.”); Richard L. Abel, Why Does the ABA Promulgate Ethical Rules, in LAWYERS’ ETHICS AND THE
PURSUIT OF SOCIAL JUSTICE: A CRITICAL READER, at 22, (arguing that ethical rules are constructed mostly
as a means to legitimation of professional conduct). Conversely, Abel’s arguments also suggest that rules
established in pursuit of legitimation for standard practices can be wielded as a means to preserve
legitimacy by forcing conformity among non-standard practitioners.
Auerbach makes a similar point in describing the bar’s resistance to the tactics of movement
lawyers in the 1960’s: “Ever since the beginning of the urban industrial era, elite lawyers had engaged in
‘partisanship combined with technical excellence.’ But partisanship for the underprivileged, combined with
technical excellence, was an unsettling combination.” Auerbach, Unequal Justice, at 285. Once the tactics
of legal services lawyers seeking truly transformative goals began to be effective, elite elements of the bar
supported President Nixon’s legislation which severely restricted the areas in which federally funded legal
services attorney’s could practice and completely denied funding to attorney’s working on impact
litigation. These lawyers were charged with placing “causes ahead of cases” and using clients “as mere
vehicles to promote sweeping social and political change.” Id., at 298. The ABA’s demand of fastidious
observation of the traditional ethical precepts of advocacy contributed to the unequal distribution of legal
services that legal aid attorneys were trying to address: nevertheless, the ABA insisted that such precepts
be observed, accommodations were not forthcoming to address the dire problems of equal access to legal
assistance among the poor. Id., at 299.
This pattern of support by the elite bar against aggressive pursuit of the rights of the poor was
repeated when President Reagan attacked impact work by publicly funded legal services attorneys. See
DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY, at 241-43.

13

Moral Neutrality: A Crisis in Conventional Legal Practice
Lawyers see themselves as providing a public good.
14
Conventionally, lawyers
view the driving force of their activities as service to individual clients.
15
A generally
accepted consequence of this belief is that the primary professional responsibility of an
attorney is to provide high-quality service to individuals and organizations regardless of
the attorney’s personal commitment to the ends those clients seek to attain.
16
Moreover,
a core commitment of this view is that the attorney must provide zealous advocacy for
the client regardless of her personal views about clients and their endeavors.
17
This
commitment entails that, once retained, the attorney will advocate as vigorously on behalf
of clients whose behavior she finds reprehensible as she does for clients she admires.
18

14
Scheingold & Sarat, Something to Believe In, at 6; Simon, The Practice of Justice, at 11; but see Rhode,
In the Interests of Justice, at (“Only one-fifth of attorneys feel that the law has lived up to their
expectations in contributing to the social good”).

15
Scheingold & Sarat, Something to Believe In, at 6.

16
Id., at 7.

17
Rhode, In the Interests of Justice, at 15:

Under prevailing views of professional responsibility, lawyers need not choose to exercise moral
independence within their professional role. Rather, their preeminent obligation is loyalty to client
interests. Over the last century, the bar’s codes of conduct have progressively narrowed the
ethical discretion that lawyers are expected to exercise once they have accepted representation.
Except in limited circumstances, such as where a client seeks assistance in criminal or fraudulent
conduct, lawyers are to maintain clients’ confidences and to pursue their interests ‘zealously
within the bounds of the law.” In effect, an attorney’s obligation is to defend, not judge, the client.
Under this standard view, good ethics and good business are in happy coincidence.

Emphasis added.

18
Id., at 7-8; Simon, The Practice of Justice, at 8 (“the only ethical duty distinctive to the lawyer’s role [in
this view] is loyalty to the client”); Zitrin and Langford, The Moral Compass of the American Lawyer, at
56 (quoting a prominent attorney writing in the National Law Journal as arguing that “winning for our
clients is the only thing that matters so long as we do it within the ground rules.”); Rhode, In the Interests
of Justice, at 50, describing trial attorneys’ belief that:

14

The rules governing the behavior of lawyers explicitly divorce an attorney’s
obligation in representing clients from any endorsement of their views.
19
This distinction
allows attorneys to commodify and sell their professional expertise without undertaking
anything more than a cursory and completely optional evaluation of the moral and
political consequences of such a sale.
20
The ideology of zealous advocacy that informs
such a commodified view of the role of a legal professional is described by William
Simon as the “dominant view” of legal professionalism.
21
He locates the defining feature

of this view in the requirement that an attorney maintain neutrality with respect to the
broader consequences of his zealous defense of the interests of his client.
22
Neutrality,
detachment, and the purported objectivity gained by such distance are viewed within this

“Lawyer’s serve the public interest by undivided fidelity to each client’s interest as the client
perceives them.” This assumption has obvious advantages for lawyers, whose financial success
and professional status generally depend on satisfying the individuals who retain them. Bar ethics
codes make a virtue out of expedience.

Quoting Roscoe Pound-American Trial Lawyers Foundation, The American Lawyer’s Code of Conduct
(Washington D.C.: American Trial Lawyers’ Foundation, 1981), at 202).

19
MODEL RULES OF PROF’L CONDUCT R. 1.2(b) (2003) (“A lawyer’s representation of a client, including
representation by appointment, does not constitute an endorsement of the client’s political, economic,
social or moral views or activities.”); MODEL CODE OF PROF’L RESPONSIBILITY EC 7-17 (1981) (“The
obligation of loyalty to is client applies only to a lawyer in discharge of his professional duties and implies
no obligation to adopt a personal viewpoint favorable to the interest or desires of his client”).

20
Rhode, In the Interests of Justice, at 15:

The conventional view . . . is that the most effective way to discover truth and preserve rights is
through an adversarial process in which attorney’s have ‘undivided fidelity to each client’s
interests as the client perceives them’ . . . undivided fidelity to client objectives is often difficult to
square with commonly accepted ethical principles. Familiar examples include contexts in which
third parties’ health, safety, or financial well-being is at risk. These contexts receive inadequate
treatment both in the bar’s ethical standards and in its discussions of professionalism. The result is
a dispiriting disjuncture between current norms and traditional aspirations.

21
Simon, The Practice of Justice, at 7-8.

22
Id.

15

model as necessary to effective representation.
23
Moreover, consideration of and concern
about the social consequences of a client's success in achieving his aims are eschewed as
tending to undermine an attorney's competence.
24

Reformist Laments and Lost Virtue
Mildly reformist commentators on the legal profession focus on reminding
attorneys of virtues that allegedly characterized the profession during earlier eras but they
do little to challenge the core commitment to neutrality in the choice of ends. Defenders
of traditional advocacy point to a number of important functions that lawyers have
traditionally played in civil society;
25
Mary Ann Glendon asserts that “lawyers’ special

23
Id., at 26-28.

24
Id.; Scheingold & Sarat, Something to Believe In, at 8-9.

25
Simon, The Practice of Justice, at 11 (describing this view as essential to encourage “loyalty, trust, and
empathy on the part of the lawyer toward another person, the client” and noting that the proponents who
justify the advocacy view on this basis believe that the lawyer-client relation is a good in itself that would
be undermined if a lawyer were simultaneously responsible for vales and people external to it); Rhode, In
the Interests of Justice, at 3:

The legal profession is also responsible for much that is best in American democratic processes.
Lawyers have been architects of a governmental structure that is a model for much of the world.
And they have been leaders in virtually all major movements for social justice in the nation’s
history.

Rhode points out that the justifications offered in support of this ethic often fall far short of
justifying professional partisanship:

Although [] rationales [emphasizing protection of individual rights and seeking truth through
adversarial testing] for zealous advocacy have considerable force, they fall short of justifying
current partisanship principles. A threshold weakness is the bar’s over-reliance on criminal
defense as an all-purpose paradigm for the lawyer’s role. Only a small amount of legal work
involves either criminal proceedings or civil matters that raise similar concerns of individual
freedom and governmental power. An advocacy role designed to ensure the presumption of
innocence and deter prosecutorial abuse is not necessarily transferable to other legal landscapes.
Bar rhetoric that casts the lawyer as a “champion against a hostile world” seems out of touch with
most daily practice. The vast majority of legal work assists corporate and wealthy individual

16

attachment to formality, order, and continuity make the legal profession a linchpin of
democracy’s social checks and balances.”
26
The commodified provision of legal practice
can be viewed as a public good in that the existence of and ready ability to resort to the
assistance of competent advocates improves the character of civil society.
27
This position
emphasize the long-standing role of lawyers in American life as counselors for families,
business people, civic groups,

and political actors.
28
Glendon writes that:
[T]he most important [] collective achievement[] [of the shared legal culture of
English and American lawyers] was the American Founding, which gave this
country’s public law its own unique stamp and character. The Declaration of
Independence, the Constitution, The Federalist, and the landmark early decisions
of the Supreme Court could only have been produced by statesmen who were
steeped in the common law tradition and supremely skilled at innovative
extensions of established principles.
29

clients in a system that is scarcely hostile to their interests. When a Wall Street firm representing
a Fortune 500 corporation squares off against understaffed regulators or a victim of unsafe
products, the balance of power is not what bar metaphors imply.

Id., at 55.

26
MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS
TRANSFORMING AMERICAN SOCIETY 102 (1994); [hereinafter “Glendon, A Nation Under Lawyers”].

27
Glendon, A Nation Under Lawyers, at 100-101, generally lamenting the demise she has seen in the
profession since the 1970’s states that:

Lawyers of all sorts, for better or worse, will continue to have much influence on how America
deals with the great issues of our time – the deterioration of natural and social environments,
crime, poverty, education, race relations, the plight of child-raising families, decaying
infrastructure, intense international competition, and so on. Traditionally, the country has
depended on the legal profession to supply most of our needs for consensus builders, problems
solvers, troubleshooters, dispute avoiders and dispute settlers. The country’s need for talented
persons in such roles is greater than it has ever been.

28
Id., at 12-13, 107-08, 181-82.

29
Id., at 181-82.

17

But she also decries the overdependence on unrestrained partisanship:
Peacemaking, problem-solving lawyers are the legal profession’s equivalent of
doctors who practice preventive medicine. Their efforts are generally
overshadowed by the heroics of surgeons and litigators. The plain fact is that
much of what lawyers do best is exacting, unglamorous, and unadvertised – the
reasonable settlement that averts costly litigation, the creditors’ arrangement that
permits a failing business to regain its health, the patient drafting of model
legislation . . .
The exaltation of litigation, moneymaking, and efforts to achieve social
transformation through law in recent years has been at the expense of the useful
services that have always given lawyers in the aggregate their best chance to
achieve personal satisfaction while contributing to the well-being of their fellow
citizens.
30

Glendon and other proponents of this position also point to the role of lawyers providing
patient and responsible explication of the role and workings of law, thereby reinforcing
the legitimacy of the legal decision-making process:
31

[C]ompetent accomplishment of everyday tasks of lawyers deserves to be
celebrated in our complex, pluralistic nation oriented to the rule of law,

30
Id., at 107-08. Glendon (writing in 1994) noted the widespread influence of attorneys in American life:

Twenty-three of our forty-one Presidents have been lawyers. At present, the majority of U.S.
senators and nearly half the members of the House of Representatives have law degrees. Of the
eighteen-member cabinet appointed by lawyer President Bill Clinton in 1993, thirteen were
lawyers. For the first time, the President’s wife is a lawyer, more visible than her predecessors in
shaping policy. Lawyer-dominated legislatures and bureaucracies now extend their reach into
every corner of contemporary American life – taxing, subsidizing, licensing, attaching conditions,
granting dispensations, mandating or encouraging this and forbidding or discouraging that. The
positions that lawyers occupy throughout the corporate, financial, and commercial worlds are no
less strategic. Judges increasingly seem to have the last word on the most divisive and hotly
contested questions of the times.

Yet, oddly the Acadian vision of earlier professionalism in the bar ended in the 1960s, just prior to her
graduating law school. Self-deception about the life she expected but found missing upon entering practice
may have had as much to do with her disillusionment as any actual change in the larger profession.

31
TALCOTT PARSONS, The Law and Social Control, in LAW AND SOCIOLOGY: EXPLORATORY ESSAYS, at 56
(William M. Evan ed., 1962); Scheingold & Sarat, Something to Believe In, at 13; Glendon, A Nation
Under Lawyers, at 101, lamenting the diminishment of “order-affirming” as opposed to adversarial roles
for attorneys.

18

representative government, and fundamental freedoms. Lawyers cannot claim to
have a monopoly on any of the following qualities, but no other occupational
group in American society displays the ensemble to the same degree. For that
reason, no other group has more to offer American society simply by building on
what it has always done best.
32

A related line of thinking has grown out of the observations of Alexis de
Tocqueville, the prescient observer of American institutions, who viewed American
attorneys as the bulwark of our civil society.
33
His progeny argue that the legal
profession's particular commitment to and endorsement of our shared institutions make
its members uniquely supportive actors within a civil society.
34
De Tocqueville argued
that:
the authority [Americans] have entrusted to members of the legal profession, and
the influence that these individuals exercise in the government, are the most
powerful existing security against the excesses of democracy.
35

Men who have made a special study of the laws derive from this occupation
certain habits of order, a states for formalities, and a kind of instinctive regard for

32
Glendon, A Nation Under Lawyers, at 102.

33
1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA, 272-287 (Phillips Bradley & Francis Bowen eds.,
Henry Reeve trans., 1990) (12th ed. 1848); see also, SHARSWOOD, supra, at 53-54:

The opinion of the Bar will make itself heard and respected on the Bench. With sound views,
their influence for good in this respect may well be said to be incalculable. It is indeed the noblest
faculty of the profession to counsel the ignorant, defend the weak and oppressed, and to stand
forth on all occasions as a bulwark of private rights against the assaults of power, even under the
guise of law.

Kronman and Glendon among innumerable others point to De Toquevilles arguments for the essential role
of Lawyers in American democracy. True but it proves too much: any particular view of nostalgia can be
endorsed using his open ended quotes.

34
ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 118, 122-23
(1993) [hereinafter “Kronman, The Lost Lawyer”]; see also, SHARSWOOD, AN ESSAY ON PROFESSIONAL
ETHICS 26 “From the ranks of the Bar, more frequently than from any other profession, are men called to
fill the highest public stations, in the service of the country, at home and abroad.”

35
Id., at 272.

19

the regular connection of ideas, which naturally render them very hostile to the
revolutionary spirit and the unreflecting passions of the multitude.
36

When the American people are intoxicated by passion or carried away by the
impetuosity of their ideas, they are checked and stopped by the almost invisible
influence of their legal counselors.
37

In America there are no nobles or literary men, and the people are apt to mistrust
the wealthy; lawyers consequently form the highest political class and the most
cultivated portion of society. They have therefore nothing to gain by innovation,
which adds a conservative interest to their natural taste for public order. If I were
asked where I place the American aristocracy, I should reply without hesitation
that it is not among the rich, who are united by no common tie, but that it
occupies the judicial bench and the bar.
38

Yet another version of this position describes the traditional legal profession as
uniquely characterized by an ethos that produces “lawyer-statesmen.”
39
Anthony
Kronman argued that lawyers once shared a characteristic virtue of practical wisdom that
shaped their social role, gave meaning to their work, and was central to their self-
conception.
40
The belief that a lawyer’s independence and learning made him uniquely
qualified to serve the long term interests of the country was historically supported by the
fact that lawyers “furnished a disproportionate share of Revolutionary statesmen,
dominated high office in the new governments and the organs of elite literary culture, had

36
Id., at 273.

37
Id., at 278.

38
Id.

39
See generally Kronman, The Lost Lawyer; De Toqueville, at 279:

As the lawyers form the only enlightened class whom the people do not mistrust, they are
naturally called upon to occupy most of the public stations. They fill the legislative assemblies
and are at the head of the administration; they consequently exercise a powerful influence upon
the formation of the law and upon its execution.

40
Kronman, The Lost Lawyer, at 2-3.

20

more occasions even than ministers for public oratory, and were the most facile and
authoritative interpreters of laws and constitutions.”
41
Nevertheless, the modern history
of the profession has shown little willingness on the part of most practitioners to forgo
individual profit in order to assert what independence the profession provides in the
interests of the public.
42

The lawyer-statesman model celebrates the lawyer’s possession of character traits
and skills that allow them to successfully move between the private sector and public
service, thereby creating a particularly important source of strength.
43
But it is difficult
to see how such a virtue infused practical wisdom is likely to suffuse the current role of
purportedly public spirited practitioners in the revolving door between government and
corporate lobbying.
44
Unfortunately, even Kronman seems to suspect that a public
service ethos, stripped of the character traits that distinguished the profession in earlier
eras is the best to be hoped for.
45

With greater or lesser grasp of the historical reality of the behavior, motivation,
and role of the American legal professional, various combinations of role in civil society,

41
Gordon, The Independence of Lawyers, at 67.

42
Id., at 68-71.

43
Kronman, The Lost Lawyer, at 12, (describing lawyers, perhaps a bit rosily, as uniquely “possessed of
great practical wisdom and exceptionally persuasive powers, devoted to the public good but keenly aware
of the limitations of human beings ant their political arrangements”). But see Simon, The Practice of
Justice, at 23-24 (challenging the plausibility of Kronman’s position for its failure to take account of the
constraints currently placed on ethically informed practice by professional rules).

44
Kronman, The Lost Lawyer, at 12.

45
Id., at 368, arguing that the likelihood or a restoration of the lawyer-statesman ideal, and therefore of a
noninstrumental public-spirited ideal of practical wisdom becomes less with each passing year.

21

De Toquevillian democracy, or virtuous lawyer-statesman are said to constitute the past
of the profession. The proponents of a return to any or all of these principles believe they
will work as a remedy to the excesses of the current ethos of amoral advocacy that
plagues the profession. Yet, even if the profession truly did embody these principles
during its acadian past, there is no reason to think that they still exist anywhere close to
the surface of the profession’s character. Kronman argues that “the virtue of practical
wisdom [must be restored] to the vocation to a position of respect in the profession –
something that must occur in lawyers, even public-spirited ones, are again to see their
role in non-instrumental terms, as a calling or vocation.”
46

Even if such nostalgic characterizations of earlier eras did correspond to historical
reality, being more civil or more civic-minded alone would not challenge the role-
morality that pervades the profession and is enshrined in its ethical codes. The public is
rightly suspect of the profession’s uncritical commitment to the ideal of neutral
advocacy.
47
Regardless of the societal functions lawyers may serve, people deny that the
role of unchecked advocate is inextricably connected to the social contribution of
attorneys.
48
This intuitive judgment asks for a justification in terms of the balance of

46
Id.

47
Rhode, In the Interests of Justice, at 4 (discussing public complaints about “attorneys’ amoral advocacy –
their willingness to defend causes and clients without regard to the ethical merits. Many individuals share
the view of the nineteenth-century British critic Lord Macaulay, who questioned how a lawyer could ‘do
for [money] what he would think it wicked and infamous to do for an empire.’ Two-thirds of surveyed
Americans believe that attorneys are no longer ‘seekers of justice’”).

48
It is important to acknowledge that all criticism of this model should proceed in light of the fact that,
when given the choice, most people want to hire extremely partisan and aggressive attorneys to represent
them in contentions situations.

22

good such an ethic brings about. While there are many plausible reasons to support such
a role within the criminal context, when one constrains consideration of the question to
civil contexts, the wisdom of adopting such an ethic is harder to locate. Market forces
push attorneys to be more aggressive and it is foolish to deny that in civil litigation
practice, the ability to engage the services of the highest priced legal talent and unleash
them in unconstrained pursuit of one’s interests has an outsized influence on the
prospects of ones claims. If one believes that there is any fact of the matter about whose
claim is righteous prior to the engagement of the litigation process, then poor people
simply do not receive the balance of their rights once legal talent is engaged. Justice is
not served nor truth determined in such situations. Regardless of the fact that most
people would not hesitate to admit that they would hire such legal help if they could, it is
the lawyers who get blamed for the failing. It isn’t clear that this blame is misplaced. If
lawyers weren’t so promiscuous in their allegiance, and perhaps a bit more conscientious
about how our cases related to truth, clients would no longer have the option to flout rules
designed to lead to just outcomes.
The profession as a whole has come to realize that an ideology that commits the
profession to pure neutrality and efficient provision and commodification of technical
knowledge leaves important tasks of the legal profession undone, and the image of the
lawyer as independent professional easily diminished.
49
Moreover this model has

49
MODEL RULES OF PROF’L CONDUCT R. 6.1 cmt. 1 (2003) “Every lawyer, regardless of professional
prominence or professional workload, has a responsibility to provide legal services to those unable to pay .
. . . The American Bar Association urges all lawyers to provide a minimum of 50 hours of pro bono
services annually.” However, although stated as a rule, this requirement is merely hortatory; the comments

23

“reinforced a professional role that compromises public interests. Overzealous
representation of powerful clients has exposed innocent third parties to substantial health,
safety, and financial risks.”
50
One thing that does get lawyers credit is service to the
vulnerable and dispossessed and cause lawyers are often central providers of such
services.
51
This work softens the harsh view of attorneys generally, but even here the
public is often disdainful when such services are provided in a way that makes visible the
profession’s core commitment to the neutral advocacy model in its ethical precepts.

It is undeniable that many lawyers who are committed to working within the
traditional advocacy model provide important social capital to the profession by serving
the most vulnerable members of society through both direct service and impact litigation.
However, much work goes undone through lack of resources sufficient to meet extreme
need. Moreover, the bulk of such work is accorded low prestige because it is viewed as
unchallenging and not requiring advanced legal skills.
52
Therefore, many of the people
who respond to this need are guided by moral and political motivations. Regardless of
individual motivation for taking it on, such work is applauded by professional

go on to note that “[t]he responsibility set forth in this Rule is not intended to be enforced through
disciplinary process.” cmt. 12. See also Scheingold & Sarat, Something to Believe In, at 16.

50
Rhode, In the Interests of Justice, at 50.

51
Scheingold & Sarat, Something to Believe In, at 16 (“In short, serving the poor tends to be widely
acclaimed as doing good, even if the lawyers who do so are looked down upon for not doing well").

52
Scheingold & Sarat, Something to Believe In, at 15-16; Rhode, In the Interests of Justice, at 14-15:

Historical and cross-cultural research suggests that in contexts where the legal profession has
maintained greater independence from clients and has recognized greater ethical obligations to
third-party and public interests than the contemporary American bar, attorneys have secured less
income and influence than they now enjoy. Moral independence may bring lawyers an important
measure of social esteem and self-respect, but it comes at a price.

24

organizations as a social good. However, ultimately it is only sanctioned by the
profession insofar as it is pursued as a palliative: when the political commitment of an
advocate leads him to pursue a truly transformative agenda in pursuit of his vision of
social good, professional sanction is withdrawn.
53

This withdrawal is, at least purportedly, a result of the fact that when a lawyer’s
work is explicitly motivated by commitment to ends or values beyond the immediate
goals of competent client service, significant conflict with traditional legal ethics may
occur.
54
The divergence is constituted by the adoption of aims different from or more
expansive than, and possibly in competition with, those of the client.
55
As described

53
Scheingold & Sarat, Something to Believe In, at 16-17, 49-50; DAVID LUBAN, LAWYERS AND JUSTICE:
AN ETHICAL STUDY, at 160, 319-326 (discussing double-agent problem) [hereinafter “Luban, Lawyers and
Justice”].

54
Luban, Lawyers and Justice, at 319-326; David B. Wilkins, Who Should Regulate Lawyers? in
LAWYERS’ ETHICS AND THE PURSUIT OF SOCIAL JUSTICE: A CRITICAL READER, at 40 (arguing that ethical
requirements ought to vary with practice context in order to acknowledge the divergent ethical landscape
confronted in non-corporate practice); Simon,The Practice of Justice, at 28 (describing claim that politically
informed practice entails either “anarchy or totalitarianism. If the values to which the lawyer appeals are
seen as idiosyncratic, then the lawyer’s abuse [read: usurpation of choice of ends] of the client seems
anarchic; if the values really are a plausible approximation of some recognizable social interest, then the
lawyer seems to sacrifice the client’s right to the collectivity in the fashion of totalitarianism”).

Rhode urges reconsideration of the undifferentiated training and regulation of the profession:

It is time to reconsider whether an occupation as large and varied as the American bar is well
served by a unified regulatory structure. This is an era of ‘postmodern professionalism,’ with
increasing diversity along lines of personal background, substantive specialty, and practice setting.
. . . Attorneys from different backgrounds and practice contexts need different preparation and
sources of guidance. Our current one-size-fits-all model of legal education and professional
regulation badly needs revision.

Rhode, In the Interests of Justice, at 20.

55
Austin Sarat, & Stewart A. Scheingold, Cause Lawyering and the Reproduction of Professional
Authority: An Introduction, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL
RESPONSIBILITIES (Austin Sarat & Stewart A. Scheingold, eds., 1998) (arguing that the logic and inevitable
trajectory of such representation necessarily leads to privileging cause over legal and ethical constraints.);

25

below, cause lawyers affirmatively commit to practicing within the penumbra of this
tension, believing both that clients can be well-served, and that the subsidiary goal of
societal transformation can also be moved forward by morally motivated professional
practice. Either because they take on such work as a way to live out their moral beliefs as
part of their professional lives, or because as a result of such work they are sustained by
the importance and social relevance of their work, the more closely and attorney’s
practice is associated with disenfranchised and marginalized elements of society the more
likely they are to identify with the motivations and self-conceptualization of cause
lawyering.
56

A second way in which cause lawyering and public interest practice undertaken
within a traditional framework diverge is that while all "public interest" lawyering
undertaken within the conventional framework proceeds through legal rather than
political means,
57
much of cause lawyering is specifically committed to exploring
avenues for the application of legal knowledge in circumstances of activism and

see also Simon, The Practice of Justice at 28 (noting objections to the politically ambitious lawyer based on
claims of usurpation of client autonomy.)
This is a topic that will be extensively addressed when Luban’s “Double Agent” objection is
considered in the context of various practice models. See Luban, Lawyers and Justice, at 319-326, as
discussed in chapters 2 & 3, below.

56
Lynn C. Jones, Exploring the Sources of Cause and Career Correspondence among Cause Lawyers, in
THE WORLDS CAUSE LAWYERS MAKE, at 203-238 (Austin Sarat & Stewart A. Scheingold eds., 2005).

57
Lawrence M. Friedman, Lawyers in Cross-Cultural Perspective, in Lawyers in Society: Comparative
Theories, at 19 (discussing ways in which moderately reformist attorneys “fight ‘the system,’ but within
strict limits. . . . Reform lawyers make an important statement. They say in effect: ‘the government is not
perfect. The rule of law is perfect, but it is not completely realized. We will criticize the government, we
will push it to conform to law, but our critique will stay within the existing framework’”).

26

advocacy that extend beyond those which traditionally make up the purview of
attorneys.
58

Cause Lawyers Creating Change
1. The History and Emergence of Cause and “Movement” Lawyers
Public discomfort with the behavior of lawyers and the distinct ethical system that
allegedly sanctions their behavior is widespread.
59
Members of the profession largely
respond to such discomfort by asserting that the public doesn’t grasp the necessary virtue
of an ethic of attorney comportment that contrasts sharply with the moral intuitions of
non-lawyers.
60
It was not always the case that the ethical precepts of the legal profession

58
Lynn C. Jones, supra at 203-38; see also Michael McCann & Helena Silverstein, Rethinking Law’s
“Allurements”: a Relational Analysis of Social Movement Lawyers in the United States, in CAUSE
LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES, at 261-292 (Austin Sarat &
Stewart A. Scheingold, eds., 1998) (discussing the multiple venues in which caused lawyers work including
lobbying, political mobilization, social organization, civil disobedience and street demonstrations).

59
See Simon, The Practice of Justice, at 4; see also Zitrin and Langford, The Moral Compass of the
American Lawyer, at 3 (describing public perception of most lawyers as “either immoral or amoral”);
Rhode, In the Interests of Justice, at 3-4 (describing the widespread belief in the greed and dishonesty of
attorneys).

60
See Simon at 4, et seq., where he provides numerous examples to support the contrary position that:

Though lawyers like to attribute lay hostility to lawyers’ ethics to jurisprudential naiveté, the
opposite is closer to the truth. The lay public has always been relatively less handicapped than the
profession by the jurisprudence of formalism. The better lay portrayals of lawyering reflect a
jurisprudential understanding superior to the profession’s own pronouncements on the subject.

Simon bases his case here on examples where commitment to justice would require not just refraining from
taking certain actions to advantage a client but also assertively performing actions possibly to the detriment
of the client in the interests of the public or an individual third-party’s interest.
Richard Abel argues that the profession’s repeated revision of its ethical codes, while entailing
both that the “morality that guide[s] the rest of society [is] inappropriate” to deal with the ethical issues
confronting lawyers and that lawyers themselves are the only people competent to create an appropriate
ethic, serve mostly to justify their monopoly of legal services and to periodically renew normative
justification for the practices of lawyers as a sop to the critics of the profession and a salve to the
consciences of attorneys. Richard L. Abel, Why Does the ABA Promulgate Ethical Rules, at 18-23.

27

were so distinct from those of people outside the profession, or that the distinctive
contribution of the legal profession to society was limited to the acquisition and
technically competent deployment of skills in the absence of any view to their effect on
the public.
61
For much of the nation's history an essential aspect of the profession was a
version of civic responsibility that did not divorce professional obligation from general
morality.
62

While the legal tradition imported from England included the class and practice
area distinctions that formed the basis for stratification within English legal practice,
63

the colonial circumstances of agrarian decentralization dictated a less formal professional
demeanor.
64
The physical and practical differences between lawyers who formed an
urban aristocracy and so-called “country” lawyers who practice in rural areas allowed the

Another common defense of the social legitimacy of legal practice is the claim “that lawyers
perform a valuable social service by helping clients use the tools of law, or [] maneuver through or around
the maze of law, to accomplish their freely chosen ends.” Robert W. Gordon, Foreword, in LAWYERS’
ETHICS AND THE PURSUIT OF SOCIAL JUSTICE: A CRITICAL READER, at xvi (Susan D. Carle ed., 2005).
Gordon convincingly argues that “that answer is facile and insufficient. Just helping people to do things
more effectively does not necessarily lead to a more just or decent or prosperous society, especially if the
things some people want to do are exceptionally destructive or selfish or anti-social.” Id.
Rhode notes that a majority of attorney’s “surveyed believe that the public’s negative perception
of the profession is ‘due to ignorance and is fundamentally unjustified.’” Rhode, In the Interests of Justice,
at 5. She also argues that the substantial resources that bar associations devote to public relations
campaigns are misdirected because they are based on the “highly dubious” premise “that popular ignorance
and a bad press are the central problems” contributing to negative perceptions of the profession. Id., at 6.

61
Louis Brandeis, The Opportunity in Law, in BUSINESS – A PROFESSION (1933); Robert W. Gordon, Legal
Thought and Legal Practice in the Age of the American Enterprise, 1870 – 1920, in PROFESSIONS AND
PROFESSIONAL IDEOLOGIES IN AMERICA,at 70-110 (Gerald L. Geison ed., 1983); Susan D. Carle,
Introduction, in LAWYERS’ ETHICS AND THE PURSUIT OF SOCIAL JUSTICE: A CRITICAL READER, AT 1.

62
Scheingold & Sarat, Something to Believe In, at 23.

63
Nathan O. Hatch, Introduction: The Professions in a Democratic Culture, in THE PROFESSIONS IN
AMERICAN HISTORY, at 1, 4 (Nathan O. Hatch ed., 1988).

64
Maxwell H. Bloomfield, Law: The Development of a Profession, in THE PROFESSIONS IN AMERICAN
HISTORY, at 1, 1-2 (Nathan O. Hatch ed., 1988).

28

early American bar to be relatively inclusive.
65
Moreover, the fact that all members of
the bar were white, Protestant males facilitated a relatively easy collegiality during the
infrequent interactions between country lawyer and urban lawyer-aristocrats.
66
Within
this inclusive albeit homogeneous milieu, the self-conception of the profession included a
far-reaching civic role.
67

Prior to the civil war some attempts were made by bar associations to recreate the
class driven distinctions of the English legal profession in the colonies.
68
Such efforts
were thwarted by the civil war and by pervasive ideological commitment to aggressive
individualism and laissez-faire government, which entailed some commitment to
allowing competitive access to the professions for all male citizens on a competitive
basis.
69
The low barriers to entering the legal profession in the early 19
th
century are
described in one history of the profession as follows:
By 1820, accordingly, eleven out of twenty-four states prescribed no specific term
of study for prospective lawyers. This trend continued during the era of
Jacksonian democracy in the 1830s and 1840s, and reached a climax of sorts in
1851, when the voters of Indiana approved a new constitution that provided:

65
Scheingold & Sarat, Something to Believe In, at 23; JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS
AND SOCIAL CHANGE IN MODERN AMERICA, at 16 (1976) [hereinafter “Auerbach, Unequal Justice”];
Scheingold & Sarat, Something to Believe In, at 30-31.

66
Auerbach, Unequal Justice, at 16-20.

67
Id., at 20.

68
Id. at 34, citing LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW (New York, 1973), pp.81-88,
275; A.G. Roeber, FAITHFUL MAGISTRATES AND REPUBLICAN LAWYERS: CREATORS OF VIRGINIA LEGAL
CULTURE, 1680-1810 (Chapel Hill, N.C., 1980); WILLIAM E. NELSON, THE AMERICANIZATION OF THE
COMMON LAW (Cambridge, Mass., 1975), pp.13-35.

69
FRIEDMAN, A HISTORY OF AMERICAN LAW, at 266, 278.

29

‘Every person of good moral character, being a voter, shall be entitled to
admission to practice law in all courts of justice.’”
70

Regardless, ease of entry had a limited effect since market forces winnowed incompetent
practitioners.
71

This period of open entry to the profession was characterized by a professional
ethics that mirrored the morality of the general public. In fact, the first American code of
legal ethics, pervasively authoritative during the pre-Civil War period, explicitly rejected
the separation of private and professional morality. In Fifty Resolutions in Regard to
Professional Deportment, David Hoffman denied that lawyers might ever be guided by
norms that did not equally apply to all other citizens: “[w]hat is morally wrong, cannot
be professionally right, however it may be sanctioned by time or custom.”
72
Further, he
argued that neither loyalty to client nor compliance with the technicalities of the legal
process could absolve an attorney from obeying the dictates of conscience and striving to
do substantial justice to all parties.
73
He believed that the lawyer's obligation to seek

70
JAMES WILLARD HURST, THE GROWTH OF AMERICAN LAW: THE LAW MAKERS, AT 250 (Boston, 1950).

71
Friedman, supra, at 275-78. Richard Abel emphasizes the struggle for market control in his summary of
the profession’s response to its loss:

of control over supply in the Jacksonian period, when many states eliminated all restrictions on the
practice of law. The last two decades of the nineteenth century saw the beginning of a movement
to reassert control, which largely succeeded in the decades following the Second World War,
when most states required four years of college, three years of study at a law school accredited by
the ABA, and passage of a bar examination and a character test.

Richard L. Abel, Why Does the ABA Promulgate Ethical Rules, at 21; Michael Burrage, Revolution as a
Starting Point for the Comparative Analysis of the French, American, and English Legal Professions, in 3
Lawyers in Society: Comparative Theories, at 339 (Richard L. Abel & Philip S. C. Lewis, eds., 1989).

72
2 DAVID HOFFMAN, A COURSE OF LEGAL STUDY, ADDRESSED TO STUDENTS AND THE PROFESSION
GENERALLY, at 765 (2nd ed. 1836).

73
Id., at 755-57.

30

justice required that he refrain from using every available legal defense in support of his
client's position if it would cause injustice
74

The difficulty of implementing this approach in practice, especially in light of the
constitutional commitment to adversarial testing of guilt within the criminal context,
invited development of a competing theory.
75
George Sharswood’s Essay on
Professional Ethics was published in 1854 and adopted as the standard work on legal
ethics for much of the next 100 years.
76
While not explicitly endorsing the extension of
an unmitigated adversarial ethic to the commercial context, Sharswood argued for
resolute commitment to the proceduralist values of the legal process.
77
For him,
professional responsibility could not be sought by consulting public morality as

74
Id., at 754-56; Maxwell H. Bloomfield, Law: The Development of a Profession, in THE PROFESSIONS
IN AMERICAN HISTORY, at 1, 48 (Nathan O. Hatch ed., 1988).

75
U.S. CONST. amend. VI.; Nevertheless, the development of a contextual informed break on unbridled
partisanship appears inevitable if the profession is to regain, or gain for the first time, a measure of public
respect. See Rhode, In the Interests of Justice, at 50-51:

Any socially defensible conception of the advocate’s role will require more ethically demanding
professional codes and institutionalized practices. In essence, lawyers need to accept moral
responsibility for the consequences of their professional actions. That responsibility requires
advocates to consider all the societal interests at issue in particular practice settings. Loyalty to
clients is a crucial concern, but it needs to be balance against other values involving truth, justice,
and prevention of unnecessary harm. Ethical obligation will inevitably depend on context. The
degree of partisanship appropriate for criminal proceedings is not necessarily justifiable for civil
litigation.

76
GEORGE SHARSWOOD, AN ESSAY ON PROFESSIONAL ETHICS (5th ed., 1896).

77
Id., at 82:

Every case is to be decided, by the tribunal for which it is brought for adjudication, upon the
evidence, and upon the principles of law applicable to the facts as they appear upon the evidence.
No court or jury are invested with any arbitrary discretion to determine a cause according to their
near notions of justice. Such a discretion vested in any body of men would constitute the most
appalling of despotisms. Law, and justice according to law - this is the only secure principle upon
which the controversies of man can be decided.

31

embodied in the individual practitioner’s conscience. Rather, the morality of a legal
professional was to be sought in external guidelines provided by the legal process itself.
78

He argued that a lawyer who declined to assist a client in pursuit of her ends because he
believes those ends to be unjust and indefensible illegitimately usurps the function of
both judge and jury.
79
Because the justice or injustice of an individual case remained
indeterminate until the litigation process had been fully engaged,
80
once an attorney had
been retained by a client it is almost always a failure of the lawyer’s duty to refuse to
pursue a cause of action due to a lawyer’s pre-judgment of the merits of the case.
81

78
See Id., at 40-41, 81-84.

79
Id., at 83-84:

The party has a right to have his case decided upon the law and the evidence, and to have every
view presented to the minds of the judges, which can legitimately bear upon the question. This is
the office which he advocate performs. He is not morally responsible for the act of the party in
maintaining an unjust cause, nor for the error of the court, if they fall into error, in deciding in his
favor. . . . The lawyer, who refuses his professional assistance because in his judgment the case is
unjust and indefensible, usurps the function of both judge and jury.

80
Simon describes a contemporary version of what he terms “the epistemological objection” to ethically
informed legal practice, arguing that:

The ethically ambitious lawyer cannot ground her judgments in a way that would be necessary for
a plausible professional morality. To the extent that she treats her judgments as anything more
than subjective preferences, she deludes herself. She may appeal to justice or public interests, but
these terms are not self-defining, and particular applications of them tend to be controversial and
hence form an insubstantial basis for a professional ethic.

The Practice of Justice, at 28.

81
Acknowledging that “delicate and dangerous ground” upon which such decisions turn, Sharswood did
explicitly reject the extreme position he attributes to “Lord Brougham, in his justly celebrated defense of
the Queen,” that:

An advocate in the discharge of his duty knows but one person in all the world, and that person is
his client. To save that client by all means and expedients, and at all hazards and costs to other
persons, and among them to himself, is his first and only duty; and in performing this duty he must
not regard the alarm, the torments, destruction and neighboring upon others. Separating the duty of
the patriot from that of an advocate, he must go on, reckless of consequences: though it should be
his unhappy lot to involve his country in confusion.

32

Likewise, no obligation existed to seek a just resolution of a legal conflict with a view to
the attorney’s view of what that resolution was: there was no judging the justice of a
cause prior to its testing within the legal process.
82

The widespread adoption of Sharswood’s Essay as a guide to professional ethics
severed the tie between public and private morality and replaced Hoffman’s appeal to
general moral standards with internal professional norms often deeply in conflict with the
beliefs of the public.
83
This turn towards an adversarial ethic occurred during the twilight
of the profession’s homogeneity.
84
Serious divisions within the bar began to emerge as
significant numbers of lawyers from culturally distinct immigrant groups began entering
the profession in the late 19th and early 20th centuries.
85
Aversion to both the Catholic
and Jewish faiths of many of these practitioners, as well as to the progressive and
sometimes radical politics professed by some new immigrants, led to strenuous attempts
to limit the ability of immigrants to enter practice.
86
Such efforts included the formation
of the American Bar Association, whose initial focus revolved largely around promotion

SHARSWOOD, AN ESSAY ON PROFESSIONAL ETHICS, at 86-87:

82
Id., at 84.

83
Id., at 81 (“That lawyers are as often the ministers of injustice as of justice, is the common accusation in
the mouth of gainsayers against the profession”).

84
Auerbach, Unequal Justice, at 39.

85
Scheingold & Sarat, Something to Believe In, at 32; Auerbach, Unequal Justice, at 4-5, 19, 27, 40-52, 62,
119-29; see also Rhode, In the Interests of Justice, ch. 2 describing “[s]ome sixty recent reports on bias in
the profession [that] have chronicled persistent barriers to women and minorities,” and the unconscious
stereotypes that continue to bar these groups’ access to the highest rungs of the profession.

86
Auerbach, Unequal Justice, at 50-52, 71-72, 100, 106-09.

33

of ethnic purity within the profession.
87
The ABA’s efforts on this front included
exclusion of African-Americans from the ABA;
88
opposition to the nomination of Louis
Brandeis as the first Jewish Justice of the Supreme Court;
89
and aggressive, ultimately
quite successful, attacks on traditional apprenticeship training and night law schools.
90

While the efforts of the ABA were presented as attempts to improve the technical
expertise and uniform competence of the profession, the fact that such concern arose only
with the entry of immigrant practitioners puts the lie to the consumer-minded
justifications for the new barriers to entry.
91
Ultimately, the intended effect of severely
limiting the number of ethnic minorities entering the bar was brought about.
92

Another effect of the ABA’s “reform” efforts was to consolidate the normative
influence of the small number of elite commercial practitioners who organized and

87
Id., at 65-73, 104-108; Scheingold & Sarat, Something to Believe In, at 33.

88
Auerbach, Unequal Justice, at 65-66.

89
Id., at 65-73.

90
Id., 95-101 (describing the attack on such training and how it “correlated precisely with the era of mass
immigration and the resulting influx of the foreign-born and their children into the legal profession.”);
FRIEDMAN, A HISTORY OF AMERICAN LAW, at 537-38.

91
Carrie Menkel-Meadow, Culture Clash in the Quality of Life in the Law: Changes in the Economics,
Diversification, and Organization of Layering, in LAWYERS’ ETHICS AND THE PURSUIT OF SOCIAL JUSTICE:
A CRITICAL READER, at 100 (Susan D. Carle ed., 2005):

The story of the development of the legal profession in the United States in the nineteenth century
is the oft-told tale of limited competition and increased barriers to entrance to the profession,
characterized by the movement from apprenticeships to proprietary schools and increasingly
formal requirements for university and law school formal education, state examinations, and
licensing and certifications. Whether seen as an economic project to limit competition or a social
project to keep out immigrant and non-“nativist” men, the tale of the nineteenth century is an
exclusionary one.

92
Auerbach, Unequal Justice, at 21-22, 104-108.

34

controlled the ABA.
93
Control of the regulatory apparatus of the ABA, in conjunction
with the simultaneous re-organization of legal education, increased the dominance of
established commercial firms whose interests were closely aligned with those of large
corporations.
94
As internal codes of professional behavior were developed, the model of
corporate practice was used as a guide and its practitioners were used as authors:
95
the
resulting alignment of ethical rules with the interests of corporations contributing to an
erosion of public confidence in the profession.
96
Moreover, because they were designed
less to prescribe behavior than to “create a myth about what lawyers might be in order to
disguise [the publicly unpalatable truth of] what they are,” the rules were inevitably
“vague, unrealistic, riddled with gaps, duplicative of ordinary law and morality, unknown
to most practitioners, and systematically unenforced.”
97
Deborah Rhode notes that the

93
Id., at 4, 129-30.

94
Id., at 21-22, 32-34.

95
Id., at 4, describing how the stratification that emerged in the profession during the early 20
th
century:

Enabled relatively few lawyers, concentrated in professional associations, to legislate for the entire
profession . . . A paramount objective of this elite was to structure the legal profession – its
education, admissions, ethics, discipline, and services – to serve certain political preferences at a
time when social change threatened the status and value of the groups to which elite lawyers
belonged and whose interests they wished to protect.

96
Scheingold & Sarat, Something to Believe In, at 35:

Insofar as corporate firms controlled the ABA and insofar as these firms were in effect under the
thumbs of their clients, the legal profession gave up the high ground of civic professionalism,
which called for service to, and association with, a broad and inclusive social vision. Inextricably
connected to corporate wealth and to corporate interests, the organized profession was no longer
either autonomous or public.

97
Richard L. Abel, Why Does the ABA Promulgate Ethical Rules?, at 23.

35

inadequacy of current codes continues to reflect the vague and ineffectual exhortations
born of pursuit of consensus in their drafting and adoption:
In a profession that is sharply divided and scarcely disinterested, such codes end
up reflecting too high a level of abstraction and too low a common denominator
of conduct. In order to achieve consensus, bar standards must satisfy a group that
is varied in social background, practice settings, and ideological views, but largely
united in its desire to maximize members’ income and minimize their risks of
disciplinary or malpractice sanctions. The resulting ethical codes offer an
unsatisfying mix of vague directives (charge “reasonable” fees), moral
exhortation (volunteer pro bono service), and minimal prohibitions (refuse to
assist criminal conduct).
98

In a profession that seeks to maintain self-regulation, promulgation of such toothless and
impractical ethical directives cannot but lead to public skepticism.
Although inchoate, the idea of the “people's lawyer” eventually emerged in
reaction to the self-congratulatory and ineffectual strain of self-regulation that is the
forbear of our current codes. This concept signaled the first stirrings of the modern
concept of cause lawyer.
99
As articulated by Justice Brandeis:
instead of holding a position of independence, between the wealthy and the
people, prepared to curb the excesses of either, able lawyers have, to a great
extent, allowed themselves to become adjuncts of great corporations and have
neglected their obligation to use their powers for the protection of the people. We
hear much of the ‘corporation lawyer,’ and far too little of the ‘people's
lawyers.’
100

Brandeis’ conception of the public professional was informed by the burgeoning legal
realist movement. He perceived the law as embedded within specific social

98
Rhode, In the Interests of Justice, at 20-21.

99
Auerbach, Unequal Justice, 34-35.

100
Quoted in Auerbach, Unequal Justice, at 34-35.

36

circumstances rather than immutably removed therefrom.
101
The influence of the legal
realist movement during the inter-war period of the 20
th
century helped loosen the
stranglehold of corporate interests on the legal profession.
102
Realists described the law
as the work of human beings driven by their individual interests rather than the
unquestionable results of a logic unique to the law.
103
This challenge to the authority of
esoteric modes of legal reasoning, opened up a critical reappraisal of the rule of law and
society, and allowed a reinvigoration and re-imagining of the role of the legal profession
in support of civil society.
104

With the advent of the Great Depression and the New Deal, opportunities for
talented attorneys of all backgrounds emerged.
105
Work within the massive apparatus
created to implement and defend New Deal policies drew practitioners from a range of
backgrounds, prepared by legal realism and societal need to apply the law in support of a
struggling nation.
106
The pragmatic and experimental nature of the early New Deal
provided a ready-made testing ground for realist theories and methods.
107
The corporate
bar largely resisted New Deal legislation and an alternative bar organization, the National

101
See Simon, The Practice of Justice, at 127.

102
Friedman, A History of American Law, at 591-93.

103
Id.

104
Scheingold & Sarat, Something to Believe In, at 37; LAURA KALMAN, THE STRANGE CAREER OF A
LEGAL LIBERALISM, at 13 (1996).

105
Bloomfield, supra n. 44, at 45.

106
Auerbach, Unequal Justice, 173.

107
Id., 177-79.

37

Lawyers Guild, was established in 1937 as a liberal alternative to the ABA.
108

“Committed to the defense of the New Deal values and programs, the guild actively
recruited blacks, women, and members of ethnic minorities from the start.”
109
Defense
of the New Deal made familiar the idea that individual lawyers could have personal
obligations to take sides in social and political debates. Yet ultimately, the profession’s
commitment to an ethics informed by the dictates of the adversary process emerged
largely unscathed from this period, even and perhaps especially, among those attorneys
whose New Deal experiences allow them entrance into the world of elite legal practice.
110

Nevertheless, the cataclysmic upheaval of the Great Depression and its aftermath
sewed the seeds of a slow evolution in the understanding of the obligations of legal
professionals and the transformative possibilities of legal practice. This evolving
understanding was developed in the ongoing social justice advocacy of the National
Lawyers Guild and its explicit commitment to engagement in the ongoing struggles for
racial justice and equality.
111
The Guild, whose principled defense of the victims of
McCarthyism in the 1950s and continued commitment to the struggle for civil rights

108
Id., at 199-200.

109
Bloomfield, supra, at 45.

110
Auerbach, Unequal Justice, at 229-30, 281; Rhode, In the Interests of Justice, at 15-16 (discussing the
pervasive effects of self-interest in guiding the results of self-regulation); see also MARGI SARFATTI
LARSON, THE RISE OF PROFESSIONALISM, at 7 (1977):

What were construed by professionals as noble features of self-regulation turned out, on
inspection, to be ideologically camouflaged pretences for artificially created scarcity of supply of
services, for boosting prices of services, and for thereby excluding large numbers of potential
customers from the market for professional services.

111
Auerbach, Unequal Justice, 209-10.

38

created an inclusive if politically fragmented ideological home for many non-traditional
practitioners.
112
The National Association for the Advancement of Colored People
(hereinafter “NAACP”) and the American Civil Liberties Union (hereinafter “ACLU”)
also advocated in ways that anticipated the emergence of cause lawyering in the 1960s
and 1970s, albeit from a less radical perspective.
Yet, even as growing numbers of lawyers sought change, they practiced within a
relatively traditional conception of the role that a lawyer could assume in society. The
emergence of a significant number of attorneys self-identified as “cause” or “movement”
lawyers didn't occur until the social upheavals of the Vietnam War era. The wartime
political challenges coincided with the development of a broader crisis of faith in the
legal profession that was caused by a series of scandals that included: the failure of
attorneys in the Eisenhower administration to enforce the Supreme Court’s school
desegregation orders;
113
the central role of lawyers in the crimes and cover-up of the
Watergate scandal;
114
and the vehement opposition of the ABA to the creation of
nationally funded legal services programs designed to serve the poor and
disenfranchised.
115
Whether one agrees with the position that these incidents cause a

112
ANN FAGAN GINGER & EUGENE M. TOBIN, eds., THE NATIONAL LAWYERS GUILD: FROM ROOSEVELT
THROUGH REAGAN (1988).

113
RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK
AMERICA’S STRUGGLE FOR EQUALITY, AT 755 (2004) [hereinafter, Kluger, Simple Justice]; Scheingold &
Sarat, Something to Believe In, at 40-41.

114
Auerbach, Unequal Justice, at 263, 300-01.

115
Auerbach, Unequal Justice, at 236, 270-73. Scheingold & Sarat, Something to Believe In, at 40-41.

39

crisis of faith in the honesty and authority of the legal profession,
116
or views the
exposure and resolution of these issues through legal means as ultimately redemptive,
117

it is nevertheless the case that they very publicly displayed the shortcomings of a
professional ethics built solely on employing technical knowledge to the end of
efficacious task completion, regardless of the task.
118

Two Supreme Court decisions dramatically changed the landscape within which
public interest attorneys worked. The first was NAACP v. Button,
119
a case that endorsed
class-action litigation on behalf of politically subordinated groups as a form of political
expression. The Court held that as a politically expressive act, the work of attorneys in
organizing such cases was protected First Amendment activity and was not, therefore,
completely subject to the normally broad regulatory powers of the states.
120
The second,
much later, case that continues to define the landscape of public interest lawyering is In
re Primus.
121
There, an ACLU cooperating lawyer wrote a letter to a woman who had

116
Auerbach, Unequal Justice, at 263; Simon, The Practice of Justice, at 14:

The contemporary prominence of professional responsibility issues dates from the Watergate
scandal . . . it was the spectacle of lawyers participating in a burglary [and] obstructing justice by
making payments to those who were caught so they would not provide information to the
authorities about the other participants.

117
Scheingold & Sarat, Something to Believe In, at 41-42.

118
More contemporary failings of the advocacy model include: the savings and loan crisis of the mid-
1980’s during which attorneys were found to have misrepresented the financial status of the businesses and
fought federal agencies’ attempts to investigate the financial stability of the businesses, thereby leading to
ruinous losses by investors and a massive financial outlays by the federal government; the Enron scandal.

119
NAACP v. Button, 371 U.S. 415 (1963).

120
Virginia’s attempts to stop the desegregation work of the NAACP, which resulted in the Button case,
will be addressed much more fully below in chapter 2.

121
In re Primus, 436 U.S. 412 (1978).

40

been sterilized, informing her of the ACLU’s willingness to provide free legal
representation to women in her position in a proposed lawsuit challenging the
constitutionality of an alleged program of sterilizing pregnant mothers as a condition of
their continued receipt of Medicaid benefits.
122
The disciplinary board of the South
Carolina Supreme Court reprimanded the ACLU lawyer for violating a rule prohibiting
any “lawyer who has given unsolicited advice to a layman that he should [take] legal
action [to] accept employment resulting from that advice.”
123
The Supreme Court held
the reprimand unconstitutional, emphasizing that “for the ACLU, as for the NAACP,
‘litigation is not a technique of resolving private difference’; it is ‘a form of political
expression’ and ‘political association.’”
124

Just as rules against advertising and solicitation of clients were used historically
as a way to maintain the ethnic and class exclusivity of the bar, they were eventually
invoked by states to challenge the representation of previously unrepresented groups
among the poor and racial minorities. The early bar had used the regulation of a largely
illusory, or at best minor problem, to institute far-reaching regulation of its members.
However, such norms weren’t enforced against elite members when they were engaged in
activities that served the public.
125
Likewise, in their quest to stop litigation seeking

122
Id., at 415.

123
Id., at 418 n. 11..

124
Id., at 442.

125
Susan D. Carle, Race, Class and Legal Ethics in the Early NAACP (1910-1920), 20 LAW & HIST. REV.
98-99 (2002).

41

desegregation of schools, Southern states identified a possible, though as yet
undocumented, problem (divided classes of African-American parents) and attacked the
supposed signs of the problem (aggressive outreach by the NAACP and their attorneys).
Ultimately the Supreme Court’s decisions in Button and Primus resolved these
complaints in ways that mirrored the bar’s class-driven rules respecting how business
could be conducted. Approaching new clients in search or remunerative work was
morally suspect but, as had tacitly been the case all along for the most elite members of
the bar,
126
political expression (Button) or non-remunerative attempts to help people
vindicate legal rights (Primus) were above reproach. Both the selective and elitist
enforcement of rules in the early bar, and the Southern states’ alleged concern for public
protection from unscrupulous attorneys were effectively endorsed by the Button and
Primus decisions. Only the states’ pretextual concern with protecting dissenting
members of the represented classes was actually rejected in those decisions. These cases
did not overturn qualms about non-elite attorneys aggressively seeking to expand their
practices: rather, it was the political expression of elite attorneys and the vindication of
individuals’ legal rights that were exalted by these decisions.
In his dissent in Button, Justice Harlan expressed concern that the court had made
light of the serious possibility that attorneys who worked at arms-length from the large
classes they represented in civil rights litigation could ignore large divisions in the desires
of class members in order to pursue their personal ideological agendas. At the time his
concerns appeared unwarranted due to the demonstrable ideological unity of the class of

126
See full discussion of this in Chapter 2, infra.

42

African-American parents represented by the NAACP in Virginia. Nevertheless, his
basic concern ultimately proved well-founded. He put his finger on a real weakness in
this model of representation: so long as attorneys correctly identified (and represented)
the sentiments of a largely unanimous class (as they did in the litigation leading up to
Brown), First Amendment protection of nonstandard solicitation methods that violated
traditional anti-barratry statues made sense. However, if the attorneys only purported to
respond to an existing need while using such tactics to create and stage litigation that
served their own ideological ends, the possibility arose of deeply anti-democratic use of
the courts being protected by these precedents. Why should this matter? Although the
early NAACP had true community support for its cases, their model has been taken to
extremes in other contexts: by extending the protections afforded in Button, subsequent
class action litigation was often based on the political inclination of the attorneys who
created it regardless of the lack of any significant community support.
127
The issue of
intra-class conflict is, therefore, an important one, especially given the unique procedural
features of litigating on behalf of civil rights classes.
128

In light of the sanction provided by these decisions and the scandals and
concurrent social upheavals of the 60s and 70s, the ABA began to be more open to those

127
As one example, anti-affirmative actions classes purportedly representing the interests of minority
communities. One must also be aware that it isn’t only attorneys that have this power. Since individuals
can effectively determine the rights of class members by filing litigation that causes a right to be determine
under one theory as opposed to another they can cause just as much trouble.

128
These will be explored at length in chapter 2, below. But the general concern is that objecting class
members may not be protected by attorneys confident of protection by Button. Nor is there any guarantee
that the choice of litigation topic is at the top of a community’s agenda.

43

operating with openly politicized conceptions of legal practice.
129
More than ever,
students emerged from the legal academy into “the movement,” working against racial
and gender discrimination, and for the peace movement and economic justice; thereby
staffing environments that became the laboratories for an era that, in retrospect,
constituted the high-water mark of politicized legal practice.
130
Nevertheless, there
always remained a tension within the bar's tolerance of cause lawyers. Insofar as
attorneys sought to vindicate rights using traditional methods of advocacy, conservative
elements of the profession were glad to share in the glow of universally acknowledged
good deeds.
131
However, when lawyers employed explicitly political tactics which put
into jeopardy the much valued neutrality and authority of the profession as a whole, more
conservative elements of the bar condemned them.
132
Lawyers whose practice was
deeply identified with social justice movements were never completely embraced by the
more conservative elements of the elite bar. As the brief heyday of the Warren court and

129
Scheingold & Sarat, Something to Believe In, at 43, 45, 49.

130
See William H. Simon, The Dark Secret of Progressive Lawyering, 48 U. Miami L. Rev. 1099, 1099-
1100 (1994), describing the ever-shrinking scope and ever more intense self-scrutiny of lawyers working
for more and more modest goals.

131
Scheingold & Sarat, Something to Believe In, at 43, 45, 49.

132
Id., 49-50. An interesting example is the criticism of legal services on the grounds of their partisanship
on behalf of the poor. See Philip S. C. Lewis, Comparison and Change in the Study of Legal Professions,
in 3 Lawyers in Society: Comparative Theories, at 41 (Richard L. Abel & Philip S. C. Lewis eds., 1989),
discussing the controversy that arose due to the assertive litigation strategies of legal aid attorneys seeking
to broadly promote the interests of the poor:

Such controversies came to ahead in the federally funded program of legal services for the poor,
whose lawyers were frequently criticized for seeking political goals and whose efforts to change
the law and administrative practice through litigation or legislative lobbying were attacked as
improper. The criticisms were complex and not always coherent; since lawyers in the United
States have enjoyed substantial freedom to advance their clients’ goals, the argument had to be
that they were pursuing their own ends because they lacked identifiable clients.

44

the liberal era in which it flourished passed away, a retrenchment of the neutral advocate
position began. The space in which cause lawyers had constructed their practices began,
once again, to be contested, and any tactic that could be viewed as a threat to the
authority of the profession left its proponents open to sanction.

Current Conflict
While a well-defined concept of cause lawyering has emerged during the 20th
century history of the legal profession, a core commitment to the neutral advocacy model
has remained foundational for the majority of practitioners. The tension that was present
in the earliest ethical codes described above, that between professional and private
morality, remains deeply entrenched, so that a prominent lawyer disapproving of law
student protest to a firm’s representation of unethical corporate clients in civil matters can
critically comment:
Had they mastered the meaning of the adversary system. They would have
known that their conduct was subversive of the central tenet of the profession they
were about to enter . . . [They] have not taken account of the operation of the
adversary process. The utility of that process is that a release a lawyer of the
need, or indeed right, to be his clients judge and thereby frees him to be the more
effective advocates and champion.
133

It is precisely this core commitment of contemporary legal ethics, the belief that a lawyer
must remain politically and morally neutral, displaying only an objective technical
competence on behalf of his clients, that cause lawyering directly challenges. Essential

133
Zitrin and Langford, The Moral Compass, at 77 quoting Simon H. Rifkin.

45

to this challenge is a questioning of the premise that an ethics of morally neutral but
zealously partisan advocacy is an essential aspect to the professional project.
134

The claim that neutrality about ends is a contingent value constitutes a challenge
to the authority of the profession.
135
Yet, because politicized and morally informed
advocacy provides many of the moments the public views as embodying the best aspects
of the legal profession, some reconciliation or uneasy accommodation continues to exist
between the two camps. The preceding summary of how this accommodation emerged
provides some understanding of both the relationship between cause lawyering and the
profession as a whole and the possible role of cause lawyering in the future of the
profession.
Nevertheless, as the history recounted above shows, the key conflict between the
mainstream bar and advocates of the more politically and morally informed profession
involves the nature and purpose of the entire professional project. While the organized
bar has treated professionalism “not as an ideology, but as a thing with a set of essential
attributes,”
136
the challenges posed by cause lawyering maintain that at least some
significant tenets of legal professionalism are actually contingent and constructed.
Insofar as one accepts that the partisan advocacy underpinning of legal ethics is
contingent and possibly constructed in the interests of the conservative bar’s corporate
clients, it is possible to believe that an essential plank of the public's ongoing trust in the

134
Lewis, Comparison and Change in the Study of Legal Professions, supra, at 41.

135
Scheingold & Sarat, Something to Believe In, at 24.

136
Scheingold & Sarat, Something to Believe In, at 25 citing Peter Gabel, Reification in Legal Reasoning,
in Marxism and the Law (Piers Beirne & Richard Quinney eds., 1982).

46

profession is perpetually in danger of further erosion. Because the privileged status of
any profession ultimately depends on the public's belief “that professionals are both
uniquely knowledgeable and resolutely trustworthy” in the specific area of responsibility
acceded to them, lawyers must ultimately be acceptable to the public

as “agents of justice
- in much the same way as doctors are agents of health.”
137
The implausibility of this
characterization of the current state of the legal profession is indicative of the extent to
which the ideology of advocacy has diminished it in the eyes of the public.
As the public is already deeply distrustful of both the legal profession and the
necessity of actions resulting from the ideology of advocacy, conflict within the
profession about the morally appropriate basis for professional service obviously presents
some threat to the profession's legitimacy.
138
Yet insofar as cause lawyering bolsters the
profession's status as “agents of justice," the social capital that cause lawyers’ morally
informed practices provide reduces that threat and promotes public trust in the profession
as a whole.
139
Moreover, the ideals of cause lawyering are now acknowledged, if not
adopted, even by elite corporate firms to the extent that recruitment of graduates of elite
law schools require the allowance of some flexibility in terms of providing pro bono
hours. The bar has also institutionalized this ethos by suggesting the provision of 50

137
Scheingold & Sarat, Something to Believe In, at 26.

138
Rhode, In the Interests of Justice, at 4.

139
Scheingold & Sarat, Something to Believe In, at 29 (“by putting a humane face on lawyering, cause
lawyers provide an appealing alternative to the value-neutral, “hired-gun" imagery that often dogs in the
legal profession").

47

service hours per year per member.
140
The extent to which such measures have
rehabilitated the professional authority squandered during the 20th century is difficult to
measure. There is no doubt, however, that at least the kernel of the ideals that motivate
full-time cause lawyers have made inroads to the internal conception of an ethical legal
professional. And practitioners squarely within the cause lawyering tradition have
become important as prominent promoters of civil rights and anti-poverty, consumer
protection, environmental and other socially important projects, not the least of which
from the position of the organized bar is to serve as an appealing recruiting tool drawing
talented people into law schools.
141

By the end of the tumultuous decades of the 1960s and 1970s, the organized bar
began to acknowledge cause lawyering ideals; since then, at least nominal acceptance of
these ideals has become widespread for mostly instrumental reasons. However, support
for these ideals receded during the last decades of the 20th century and the first years of
the 21st. While the organized bar remains more open to cause lawyering, such ideals are
invoked more often in ceremonial speeches that in practice. It is also interesting to note
that the quite recent emergence of conservative cause lawyering (supporting gun rights
and school prayer or opposing abortion), has been received with little controversy.
142

This despite its aggressive disregard for the traditional ideal of political neutrality in legal

140
MODEL RULES OF PROF’L CONDUCT R. 6.1 (2003) (“Every lawyer has a professional responsibility to
provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro
bono publico legal services per year”).

141
Rhode, In the Interests of Justice, at 27.

142
Scheingold & Sarat, Something to Believe In, at 50; Ann Southworth, Professional Identity and
Political Commitment among Lawyers for Conservative Causes, in THE WORLDS CAUSE LAWYERS MAKE,
at 83-111 (Austin Sarat & Stewart A. Scheingold eds., 2005).

48
practice. This suggests that the profession’s historical resistance to liberal cause
lawyering was motivated more by entrenched conservatism, or at least concern about the
perception of the corporations that constitute the clients of the elite bar, than with any
reasoned objection to morally informed methods of practice.

Away from the Advocacy Model: Social Transformation, Pervasive Activism, Education,
and Individual Autonomy

Above I’ve described “Cause Lawyering,” the general area of legal practice I’m
concerned with, at its most general level. Likewise, the tension between the ABA and the
practices of cause lawyers has been articulated solely in terms of challenges to social
capital and societal role. In the following chapters, I will explore various quite specific
prescriptions for how one ought to apply the ideals of cause advocacy. These will be
presented with reference to the concrete aspects of day-to-day practice of attorneys
working within the tradition. Most importantly, I’ll explore the ways in which these
practice styles come into conflict with ethical rules originally constructed as guidelines
for the work of attorneys practicing within the zealous advocacy model, and examine the
moral implications of allowing one’s practice to be constrained by, or making the
informed choice to contravene, such norms.
The first model I will explore is perhaps the most traditional model of civil rights
advocacy. I will call it the “Private Attorney General Model” because it is a model
within which civil rights advocates construct strategies for the vindication or
establishment of legal rights more or less in abstraction from the concrete situation of the

49
people they hope to help through that litigation. Specifically, I'll focus at length on
exploring this model as it played out in the legal battles leading up to the case of Brown
v. Board of Education, and to a lesser extent, with respect to several marriage equality
battles that took place at the state level.
The next model I’ll examine is the direct result of theorizing about the
experiences of early public aid lawyers in the 60s and 70s. It will be described
alternately as “Rebellious Lawyering” or “Community Lawyering.” This is a model
deeply committed to the dismantling and avoidance of hierarchical relationships between
attorneys and their clients. The lawyer has a duty to listen seriously and respond
exclusively to the concerns and needs of community members. Moreover, its egalitarian
commitments expand the proper role of the attorney in the community to include quite
significant commitments to education, in which the attorney both teaches skills to
empower the community and learns “lay-lawyering” skills from the community.
Community lawyering takes as the core goal motivating any action by an attorney
the reliable ascertainment of and response to the wishes of a community. Therefore there
is a sense in which it presumes that the existence of the pre-Brown confluence of the
political will between counsel and community is a prerequisite to any legitimate action on
the community’s behalf. Ultimately, however, it seems impossible to create such a link
with a community defined as broadly as is done in community lawyering literature.
Either, as will be discussed below, there is no workable model within which to
understand the lawyer’s relation to the community over time, or the lawyer must
antecedently choose clients and issues in a way that preempts (both in terms of subject

50
matter and with respect to strategy) the organic community action that is the core value of
group action within community lawyering.

51

Chapter Two: The Private Attorney General Model

Although many attorneys looking to invest their practice with moral purpose are
drawn to models that focus on adopting specific principles in an attempt to remake the
attorney-client relationship, many such attorneys work in a way that looks much like
standard non-critical practice. Perhaps the most common and by far the most familiar
model in this vein is well-characterized as a “Private Attorney General” model.
Attorneys in this tradition largely share the practice styles of corporate practitioners and
the litigation they undertake is complex and often prestigious. In fact, although
practicing within this model is typically done by public-interest attorneys it can also be
used to further the interest of any societal group, including business or corporate
interests, and is therefore not distinctive to cause lawyering. The private attorney general
model utilizes litigation, usually in the form of class-action suits, to seek court mandated
vindication of constitutional or statutory rights or to challenge and guide the
administrative enforcement of laws. Cause lawyers working within this model have
traditionally sought to improve the lives of economically disempowered people or the
status of groups defined by race, religion, gender, disability, or sexual orientation.
Although pursued with the best of intentions, the manner in which such litigation is
carried out often creates ethical tensions that are unappreciated by many practitioners
and, due to the bar’s traditional emphasis on individual dispute resolution, largely
untreated by the profession’s ethical enforcement mechanisms.

52

The current form of practice within this model is pervasively influenced by
successful strategies established during the civil rights era. This is due in large part to the
monumental success of public interest litigation leading to school desegregation and, in
the decades following the Supreme Court’s initial desegregation decisions, establishing
greater equality in employment practices and access to public accommodations. The
persistence of the model also has to do with procedural peculiarities of civil rights class
actions that largely dictate the shape public interest litigation will take and the types of
relief it will seek. Contemporary lawyers working within this model shape all litigation
with the constraints of precedent and procedure in mind. The transformation of social
circumstances since the collective mobilization of the civil rights era creates serious
challenges to the continued applicability of this model. As civil rights lawyers seek to
litigate on behalf of ever more fragmented constituencies, procedural mechanisms and
professional presumptions that seek to enable precedent to have the broadest possible
effect may thwart the desires of a majority of the people purportedly represented.
Gerald Lopez is highly critical of attorneys working within this model. In
Rebellious Lawyering, he describes an archetypal public interest litigator working in this
model as convinced that the complexity of her work justifies her in completely excluding
her clients from the litigation.
1
While she values community organizations insofar as
they serve to put her in touch with individuals whose experiences would serve well to slot
into test cases that she has already designed, she views the activities of such groups as

1
GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO’S VISION OF PROGRESSIVE LAW PRACTICE
(1992). at 15.

53

peripheral to her legal work.
2
Although she designs her litigation to bring about various
types of social change, she does not consistently consult with the organizations
representing the groups affected by her litigation.
3
Almost the only time she connects
with such organizations is if she needs to find a test case client or wants to pad a press
event.
4
Barring such needs, she works alone and asks for no input from her clients. She
justifies her non-collaborative work style by pointing to “the broad social rather than
individual orientation of her work,” her belief that clients would choose to defer to her
expertise in any case, and the belief that she is allowing “the poor [to] have the same
opportunity as the rich to have a lawyer who takes care of their legal problems for
them.”
5
As described by Lopez:
Because of time pressure, the special expertise necessary, and the broad social
purposes of the case, [she] hardly ever asks clients to help gather information,
read materials, or study the law; to take part in the planning, preparing, or
attending meetings about the drafting of the complaint; to help frame and critique
the stories she will be telling on the clients’ behalf; or to think about including
their friends and supporters as part of anything other than the media show that the
lawyer scripts, produces and directs.
In fact, … after the filing of the complaint and often throughout the entire
trial and appeals process, the client nearly vanishes.
6

Lopez is harshly critical of lawyers working within this model. His core
complaint is that such lawyers fail to actually help the people they purport to represent.

2
Id. at 14.

3
Id.

4
Id. at 14-16.

5
Id. at 15.

6
Id. at 15-16.

54

He argues that this is the case because they cannot accurately identify the interests of
those they seek to help. Even when the interests of a community are well-defined, the
manner in which redress is sought marginalizes and disempowers community members
and promotes the agenda and personal aggrandizement of the attorneys involved. Derrick
Bell describes the tendency of civil rights organizations to pursue litigation without
respect to its conformity with the wishes of class members as a “malady” that:
may afflict many idealistic lawyers who seek, through the class action device, to
bring about judicial intervention affecting large segments of the community. The
class action provides the vehicle for bringing about a major advance toward an
idealistic goal. At the same time, prosecuting and winning the big case provides
strong reinforcement of the attorney’s sense of his or her abilities and
professionalism. [It has been] suggested that “[c]lass actions … have the capacity
to provide large sources of narcissistic gratification and this may be one of the
reasons why they are such a popular form of litigation in legal aid and poverty
law clinics.” The psychological motivations which influence the lawyer in taking
on a “fiercer dragon” through the class action may also underlie the tendency to
direct the suit toward the goals of the lawyer rather than the client.
7

Lopez describes his concern about this type of civil rights practice as involving both a
failure of respect for the constituents the attorney believes she is helping and an actual
failure to improve their situation caused by the misguided use of resources that inevitably
occurs in this model.
I believe that the problems described by Lopez can also occur in situations where
the attorneys in question begin the litigation intimately in touch with the needs and
desires of their clients. There are changes in how civil rights precedents are implemented
over time and in different contexts. Often, there is also significant divergence between

7
Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School
Desegregation Litigation, 85 YALE L.J. 470, 493 (1976) [hereinafter “Bell, Serving Two Masters”].

55

the meanings that attorneys and class members attach to the precedent established by
successful litigation. Therefore, even attorneys who are united in purpose with their
clients at the outset of litigation can begin to diverge from the clients’ goals for ongoing
litigation or ongoing implementation of past precedent as time goes on. The effects of
this divergence can be compounded by the fracturing of an initially united class into
factions with distinct goals over time.
Whether attorneys are disconnected from clients initially or, although initially
connected, later diverge from class members, the claim that an attorney working in this
model “represents” anyone but themselves can be sorely tested over time. Attorneys
prosecuting civil rights class actions can lose connection to the desires of the
communities they claim to represent: their commitment to goals defined by an initially
united group of plaintiffs or by patrons who fund their work can lead them to seek
particular remedies on behalf of a constituency that may explicitly disavow any continued
desire for them. Below I explore the example of such divergence provided by the
tortured history of school desegregation litigation that occurred in the aftermath of Brown
v. Board of Education.
8
My main goal in exploring this and subsequent examples will be
to attempt to understand how civil rights plaintiffs can have their ongoing desires
protected even when they diverge over time from those of other class members or of the
attorneys that control the ongoing litigation.
The possibility of such divergence is a core ethical issue with this model of public
interest practice. It is difficult to imagine the emergence of such a divide in other

8
347 U.S. 483 (1954).

56

attorney client relationships. However, both Supreme Court precedent and the class
action procedures of the Federal Rules of Civil Procedure, support practices that allow
lawyers litigating civil rights class actions to pursue agendas that may not be desired by
the people they purport to speak for. Below I will recount how this sanction came into
being, and then go on to present examples of how the existence of exceptional treatment
of class actions that seek civil rights injunctions can sometimes stifle new claims and
cabin the hopes of future generations by discounting the possibility that subsequent group
members may confront contexts incompatible with earlier goals or that they may have
divergent desires. Although some version of these rules is necessary to facilitate classes
that seek injunctions rather than damage awards, I’ll argue that even the most thoughtful
attorney must take Lopez’s critique into account if they hope to maintain real connection
with the desires of their class. Unfortunately, all too often, the attorneys answer to their
patrons rather than the class members.
9

9
See Bell, Serving Two Masters, at 490, arguing (in 1976) that:

the hard-line position of established civil rights groups on school desegregation is explained in
part by pragmatic considerations. These organizations are supported by middle-class blacks and
whites who believe fervently in integration. At their socio-economic level, integration has worked
well, and they are certain that once whites and blacks at lower economic levels are successfully
mixed in the schools, integration also will work well at those levels. Many of these supporters
either reject or fail to understand suggestions that alternatives to integrated schools should be
considered, particularly in majority-black districts.

See also Id., at 490-91 quoting:

School expert Ron Edmonds [as] contend[ing] that civil rights attorneys often do not represent
their clients’ best interests in desegregation litigation because ‘they answer to a miniscule
constituency while serving a massive clientele.’ . . .[and] those who currently have access to the
civil rights attorney [thereby helping define the goals of litigation] are whites and middle class
blacks who advocate integration and categorically oppose majority black schools. . . . the result is
to be pursued to a metropolitan desegregation, without sufficient regard for the probable
instructional consequences for black children.

57

History of Brown
This section recounts the NAACP legal strategy prior to the landmark decision of
Brown v. Board of Education, and during subsequent efforts to desegregate individual
school districts. Despite the complexity of this example, the centrality of the NAACP
strategy leading to Brown in the imagination of civil rights litigators is difficult to
overstate. This being the case, tactics that were perhaps recommended there by context
dependent necessity continue to be used in civil rights class action litigation without
sufficient consideration of their possible ethical shortcomings in less singular
circumstances.
The history of litigation challenging segregated education began many decades
prior to the creation of the NAACP.
10
Sixty years before the founding of the NAACP in
1909,
11
and more than 80 years before the ultimately successful campaign to outlaw
segregated education was conceived in the early 1930s,
12
the African-American parents
of Boston sued for equal educational opportunities for their children through the

10
Bell notes that the legal foundations of the Brown decision “can be found in the volumes of reported
cases stretching back to the mid-19
th
century, cases in which every conceivable aspect of segregated
schools was challenged.” Bell, Serving Two Masters, at 472-73 (citing Leflar & Davis, Segregation in the
Public Schools – 1953, 67 HARV. L. REV. 377, 430-35 (1954), for a full recounting of this history); See also
RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK
AMERICA’S STRUGGLE FOR EQULITY (2004) [hereinafter, “Kluger, Simple Justice”].

11
Waldo E. Martin Jr., Introduction, in, BROWN V. BOARD OF EDUCATION: A BRIEF HISTORY WITH
DOCUMENTS, at 7 (Waldo E. Martin Jr. ed., 1998) [hereinafter “Martin, A Brief History”]; Kluger, Simple
Justice, 97-100; Susan D. Carle, Race, Class and Legal Ethics in the Early NAACP (1910-1920), 20 LAW &
HIST. REV. 100-105 (2002) [hereinafter “Carle, Ethics in the Early NAACP”]; DERRICK A. BELL, SILENT
COVENANTS: BROWN V. BOARD OF EDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM, at 14
(2004) [hereinafter “Bell, Silent Covenants].

12
Bell, Serving Two Masters, 493 “By the early 1930’s, the NAACP, with the support of a foundation grant
[from the American Fund for Public Service, also called the “Garland Fund” for its founder], had organized
a concerted program of legal attacks on racial segregation”; Auerbach, Unequal Justice, at 212-14; Martin,
A Brief History, at 12-13; Kluger, Simple Justice, at 132-33, 193.

58

integration of Boston public schools. The plaintiffs in Roberts v. City of Boston
13
argued
that their children should be admitted to integrated public schools because:
the black schools were inferior in equipment and staffing; [] they were
inconvenient for those black children living closer to white schools; and [] neither
state nor federal law supported segregated schools.
14

The Supreme Court of Massachusetts denied their request, holding that equality before
the law did not preclude what it found to be a reasonable policy of segregation.
15

The subsequent history of the Boston community would become all too familiar
in the post-Brown era. For reasons apparently unrelated to racial justice, the
Massachusetts legislature voted to prohibit school segregation less than a decade after the
Roberts case.
16
The results, as recounted by Derrick Bell, were as follows:
As would happen a century later, when Brown was implemented, school officials
feared that white parents would not send their children to black schools or allow
them to be instructed by black teachers. Within a short time, black schools were
closed and black teachers dismissed. Textbook aid provided to black children
under segregation also ended, and after a decade or so, state officials conceded
that Boston's public schools had again become identifiable by race.
17

13
59 Mass. (5 Cush.) 198 (1850).

14
Bell, Silent Covenants, at 89; See also Kluger, Simple Justice, at 74, providing specific descriptions of
the complained of conditions.

15
Bell, Silent Covenants, at 89-90; Kluger, Simple Justice, at 75.

16
Bell, Silent Covenants, at 90; Kluger, Simple Justice, at 76.

17
Bell, Silent Covenants, at 90.

59

Even though Roberts was decided prior to the civil war and the enactment of the
Fourteenth Amendment, the opinion was repeatedly used by courts as a source of
precedent in subsequent decisions that were unsympathetic to integrated education.
18

Most importantly, the United States Supreme Court cited Roberts as precedent
(quite creatively, given that Roberts was a pre-civil war decision made by a state court) in
Plessy v. Ferguson, the case that established the “separate but equal” doctrine as the law
of the land for the next fifty years.
19
In 1890, the Louisiana legislature passed a law
requiring that:
all railroad companies carrying passengers and their coaches in this State, shall
provide equal but separate accommodations for the white, and colored, races, by
providing two or more passenger coaches for each passenger train, or by dividing
the passenger coaches by a partition so as to secure separate accommodations.
20

At the request of a New Orleans civil rights group, and in collusion with railroad officials
who disliked the law due to its extra costs, Homer Adolph Plessy, who claimed “seven-
eighths Caucasian and one-eighth African blood,”
21
tested the law by boarding a train
and taking a seat in a car reserved for white passengers.
22
He was immediately asked to

18
Id., at 90-92. This use is contrary to normal judicial practice in which state opinions have no precedential
and little “persuasive” weight in interpreting the requirements of the Federal Constitution and federal
statutory law. Moreover, the passage of the 13
th
and 14
th
Amendments makes the invocation of a pre-civil
war decision on race as precedent even more anomalous than the federal court use of state court precedent.

19
163 U.S. 537, 540 (1896).

20
Kluger, Simple Justice, at 71.

21
163 U.S. at 538.

22
Kluger, Simple Justice, at 72.

60
ng at length:

leave by a conductor and then arrested by a waiting detective.
23
Plessy then challenged
the constitutionality of the Louisiana law.
On appeal the Supreme Court held that the Fourteenth Amendment was not
violated by state laws that required segregation of public facilities but allowed for the
“separate but equal” accommodation of African-Americans. The Court found that:
Laws permitting, and even requiring, [the] separation [of races], in places where
they are liable to be brought into contact, do not necessarily imply the inferiority
of either race to the other, and have been generally, if not universally, recognized
as within the competency of the state legislatures in the exercise of their police
power.
24
. . .
We consider that the underlying fallacy of the plaintiff’s argument to
consist in the assumption that the enforced separation of the two races stamps the
colored race with a badge of inferiority. If this be so, it is not by reason of
anything found in the act, but solely because the colored race chooses to put that
construction upon it.
25

Although Professor Charles L. Black’s characterization of the quoted passage as “the
curves of callousness and stupidity intersect[ing] at their respective maxima,”
26
is
perhaps the most apt characterization of the Plessy opinion available, Justice John
Harlan’s lone dissent is also worth quoti
. . . I deny that legislative body or judicial tribunal may have regard to the race of
citizens, when the civil rights of those citizens are involved. Indeed, such
legislation as that here in question is inconsistent not only with that equality of
rights which pertains to citizenship, national and state, but with the personal
liberty enjoyed by every one within the United States . . .
The white race deems itself to be the dominant race in this country. And
so it is, in prestige, and achievements, in education, and wealth, and in power. . .

23
163 U.S. at 538-39.

24
Id., at 544.

25
Id., at 551.

26
Kluger, Simple Justice, at 79.

61

But in view of the constitution, in the eye of the law, there is in this country no
superior, dominant, ruling class of citizens. There is no caste here. Our
constitution is color-blind, and neither knows nor tolerates classes among citizens.
In respect of civil rights, all citizens are equal before the law. The humblest is the
peer of the most powerful. The law regards man as man, and takes no account of
his surroundings or of his color when his civil rights as guaranteed by the supreme
law of the land are involved. . . .
[The] present decision, it may well be apprehended, will not only
stimulate aggressions, more or less a brutal and irritating, upon the admitted rights
of colored citizens, but will encourage the belief that it is possible, by means of
state enactments, to defeat the beneficent purposes which the people of the United
States had in view when they adopted the recent amendments of the constitution.
[Sixty] millions of whites are in no danger from the presence here of eight
millions of blacks. The destinies of the two races, in this country, are indissolubly
linked together, and the interests of both require that the common government of
all shall not permit the seeds of race hate to be planted under the sanction of
law.
27

Given sanction by the Supreme Court, the intricate edifice of state-legislated
segregation quickly grew to dominate every corner of life in the South. More than any
other case, Plessy was the precedent that would dictate the terms of the NAACP’s attack
on segregated education: serving first as a sword with which to attack the perversely
unequal conditions of segregated schools and later as a target to be struck at directly.
The legal arm of the NACCP that was destined to successfully dismantle the
regime of Jim Crow was initially staffed predominantly by white members drawn from
the elite ranks of the New York bar. Although several luminaries of the black community
played leading roles in the larger organization, most notably W.E.B. DuBois, as editor of
the NAACP sponsored news magazine The Crisis,
28
the legal advisory committee was

27
163 U.S. at 554-55, 559-60.

28
DuBois served as the NAACP’s publicity director and the editor of The Crisis from the organization’s
founding until he broke with it in 1934. Martin, A Brief History, at 15; Carle, Legal Ethics in the Early
NAACP, at 105.

62

drawn mostly from within the white bar, and African-American attorneys were only
gradually given a prominent place in within the organization’s legal work.
29
By the
1930s, after receiving a sizeable foundation grant, the NAACP board decided that a
concerted litigation campaign to overturn legalized segregation should be carried out.
30

It was prominent black attorneys who designed and carried out what was ultimately a
decades-long battle to overturn the precedent established in Plessy.
Although he had long been a core member of its legal advisory board, Charles
Houston, the innovative Dean of Howard University Law School, was not hired as the
NAACP’s special counsel to direct the litigation until 1934. He was the major architect
of the strategy leading to Brown.
31
His protégé, Thurgood Marshall, would succeed
Houston in 1939.
32
As described in the NAACP Annual Report for 1934:
[T]he campaign [was] a carefully planned one to secure decisions, rulings and
public opinion on the broad principle instead of being devoted to merely
miscellaneous cases.
33

29
Carle argues that this was due too several factors: the belief, even on the part of DuBois, that the African
American lawyers available weren’t up to it; the suspicion of the legal committee of lawyers who couldn’t
do too much for free; the desire to husband the treasury linked with the fact that African American lawyers
had to work for a living.

30
Kluger, Simple Justice, at 132.

31
Martin, A Brief History, at 9-10. The NAACP Legal Defense Fund became a separate legal advocacy
organization at this time. While this split and the intricacies of the subsequent politics within the two
organizations is well documented, for ease of reading distinction will be elided here.

32
Bell, Serving Two Masters, at 473; Martin, A Brief History, at 11.

33
Bell, Serving Two Masters, at 473.

63

The NAACP’s ultimate goal was to overturn Plessy, thereby destroying the legal
foundation for segregation.
34
However, directly attacking the precedent risked
establishing further unfavorable precedent. Moreover, an expansive attack on the
institution of segregation that began while the country was still suffering from the Great
Depression would suffer from a lack of financial support and meet with a level of racial
tension already heightened by widespread economic frustration.
35

Houston, therefore, adopted a strategy that initially sought to build precedents that
would force the equalization of segregated facilities. For several reasons, public
education appeared susceptible to a successful and multi-faceted attack. As described by
one commentator:
Houston chose to focus on the legal assault on education because of its centrality
to advancement and fulfillment within American culture. As such, the blatant
denial of educational opportunities to black youth touched a powerful nerve in the
American psyche. The terrible realities of segregated education in the South
offered compelling evidence of gross racial disparities in facilities, budgets, and
salaries. Also, Houston contended, “discrimination in education is symbolic of all
the more drastic discriminations,” such as lynch law. Furthermore, Jim Crow
education represented the deeply ingrained stigma of innate black racial
inferiority.
36

There were three main prongs to Houston’s strategy. First came a series of successful
suits obtaining salary equalization for black and white teachers.
37
Unfortunately these
wins prompted school district throughout the South to create compensations systems

34
Martin, A Brief History, at 12-13.

35
Id., at 13.

36
Id, at 13, quoting Houston’s statement as recounted in MARK V. TUSHNET, THE NAACP’S LEGAL
STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950, 34 (1987).

37
Martin, A Brief History, at 24.

64

based on “merit” criteria which allowed them to reintroduce pay disparity without
explicitly basing the difference on race.
38

The second area of challenge was a series of hard-fought cases dealing with
graduate education. The South had almost no graduate and professional schools for
blacks, therefore equality of accommodation was completely absent.
39
At least in part,
this strategy was motivated by the extraordinary expense that states would incur if they
chose to establish separate facilities for graduate education. The historical practice of
simply denying opportunities for graduate education was inexpensive to states, but the
cost establishing separate institutions might make it harder to rationalize segregated
graduate education even within the tortured world-view of the segregated South. When
these cases reached the Supreme Court, the Court never directly addressed the core issue
of the constitutional status of the doctrine of separate but equal. Rather, each case
established that the lack of educational opportunity challenged was unconstitutional:
Missouri ex. rel. Gaines v. Canada
40
held that it was unconstitutional for Missouri to
refuse to admit blacks to its law school even if it provided tuition for them at out of state
schools (leading to the creation of a separate state supported law school for blacks);
Sipuel v. Board of Regents
41
declared Oklahoma’s refusal to provide legal education to

38
Id.

39
As of 1947 there was no university in the South where an African-American could pursue studies for a
doctorate. Only one of the South’s thirty medical schools, one of the forty law schools, and none of the
thirty-six engineering schools admitted African-Americans, and none did so on an integrated basis. Kluger,
Simple Justice, at 256.

40
305 U.S. (1938).

41
332 U.S. 631 (1948).

65

blacks unconstitutional (although the Court declined to provide further relief when the
state opened an obviously inferior law school for black students); Sweatt v. Painter
42

ordered the admission of a black student to the previously all white University of Texas
Law School (finding that Texas’s attempt to cobble together a separate law school for
blacks failed to provide substantially equal educational opportunity); finally, in McLaurin
v. Oklahoma State Regents,
43
the Supreme Court held that once black students were
admitted to a previously segregated institution they had to be allowed to participate fully
in the life of the institution and could not be segregated within the institution itself.
Following on the successful graduate education cases, the NAACP campaign
entered its third phase: the direct attack on segregated grade school education. This
litigation constituted a radically different undertaking than the earlier challenges because
of the distinct nature of the remedy it would occasion. While graduate education involved
very few people, elementary education touched every community in the nation. As
described be Derrick Bell, integration of primary education affected communities in a
much broader and more direcct way than the public accommodation cases that sought to
dismantle segregation in the wake of Brown:
[Cases seeking the integration of] lunchrooms, beaches, transportation, and other
public facilities were designed merely to gain access to those facilities. Any
actual racial “mixing” [was] essentially fortuitous; it was hardly part of the rights
protected (to eat, travel, or swim on a nonracial basis). The strategy of school
desegregation is much different. The actual presence of white children is said to
be essential to the right in both its philosophical and pragmatic dimensions. In

42
339 U.S. 629 (1950).

43
339 U.S. 637 (1950).

66

essence, the arguments are that blacks must gain access to white schools, because
“equal educational opportunity” means integrated schools, and because only
school integration will make certain that black children will receive the same
education as white children.
44

The shift to a direct attack on segregated grade school education began during the
late 1940s.
45
Numerous cases were begun, all of which sought to build extremely full
lower court records in order to illustrate that the extreme disparities in facilities and
funding for black grade schools denied black children equal education opportunities. The
NAACP also successfully entered into trial court records social scientific evidence of the
psychological harm to children caused by their exclusion from the white only schools in
order to create records on appeal that were redolent with the expansive human
consequences of such practices.
46

Five cases were ultimately consolidated and argued before the Supreme Court
collectively as Brown v. Board of Education: Brown v. Board of Education of Topeka,
Kansas; Briggs v. Elliott; Davis v. County School Board of Prince Edward County;
Belton v. Gebhart; and Bolling v. Sharpe. Each case squarely presented the question of
the constitutionality of racially segregated public grade and high schools.
47
The cases
were initially argued in the Supreme Court’s 1952-1953 term. The Court failed to reach a

44
Bell, Serving Two Masters, at 477-78.

45
“By 1945 the staff [of the newly created NAACP Legal Defense and Education Fund] had coalesced
around the move from equalization to direct attack, and in 1948 the board of directors and the Annual
conference issued a full-fledged statement in support of the direct attack strategy.” Martin, a Short History,
at 21.

46
Id., at 27.

47
Kluger, Simple Justice, at 707.

67

decision and set the cases for reargument the following year. During the intervening
summer, Chief Justice Fred Vinson died and Earl Warren became the new Chief Justice.
After rehearing, Chief Justice Warren was able to create consensus among the Justices in
support of a unanimous decision holding that segregated education was constitutionally
impermissible irrespective of its purported equality: the era of separate but equal was
over.
48

Writing for the Court, Chief Justice Warren answered the core question of
whether separate but equal was constitutional in public education by declaring that state-
mandated segregation inevitably marks black children as inferior and lessens their
educational opportunities. He found that:
To separate them from others of similar age and qualifications solely because of
their race generates a feeling of inferiority as to their status in the community that
may affect their hearts and minds in a way unlikely ever to be undone.
49

Although deferring a remedy until after hearing further argument the following term, the
Court clearly held that “in the field of public education the doctrine of ‘separate but
equal’ has no place. Separate educational facilities are inherently unequal.”
50

After hearing further argument in “Brown II,” the Supreme Court remanded the
cases to the lower courts, directing them to fashion remedies “to admit to public schools
on a racially nondiscriminatory basis with all deliberate speed the parties to these

48
347 U.S. 483 (1954); Kluger, Simple Justice, at 694-99.

49
347 U.S. at 494.

50
Id., at 495.

68

cases.”
51
The unfamiliar and unexplained “all deliberate speed” formulation for the
desegregation of schools created delay and uncertainty.
52
By failing to order the
immediate desegregation of schools, the Court made enforcement of Brown in lower
federal courts difficult and confusing.
53
Meanwhile, the South doggedly and defiantly
resisted desegregation efforts by various methods including: closing public schools
instead of integrating them;
54
creating “school choice” plans that purported to promote
desegregation through voluntary school transfers but in reality perpetuated segregation;
55

and implementing “one grade a year” plans that would spread desegregation of a school
system over decades.
56

51
349 U.S. 294, 301 (1955).

52
Bell describes Brown II as “a fall-back decision [issued in evidence response to the South’s resistance]
that became a prelude to its refusal to its refusal to issue orders requiring any meaningful school
desegregation for almost fifteen years.”

53
Bell argues that:

Paradoxically, . . . the major value of the Brown decision may have come as a result of well-
publicized forms of white resistance that appalled many who otherwise would have remained on
the sidelines. Clearly, the Civil Rights Act of 1964 and the 1965 Voting Rights Act were
responses to the courage of thousands of black people and their white allies who refused to be
intimidated by segregationist violence and disorder.

Silent Covenants at 7-8.

54
One such effort is challenged in Griffin v. County School Bd., 377 U.S. 218 (1964).

55
See Goss v. Bd. of Educ., 373 U.S. 683 (1963).

56
See Rogers v. Paul, 382, U.S. 198 (1965).

69

It was well into the 1960s before the Supreme Court struck down these tactics.
57

During the intervening decade, Southern states were successful in avoiding their
obligations to desegregate: by 1964 only 1.2 percent of black school children were
attending integrated schools.
58
Nevertheless, by the end of the decade, the Supreme
Court’s belated blocking of these tactics, coupled with the passage of the 1964 Civil
Rights Act that prohibited discrimination in schools receiving federal funds, began to
create significant momentum towards desegregation.
59
During the two decades between
1964 and the mid-1980s, there was significant progress, with most of the nation’s schools
becoming progressively more integrated.
60

Continuing Influence of NAACP Tactics

57
Goss v. Bd. of Educ., 373 U.S. 683 (1963) (declaring unconstitutional plan that perpetuated segregation
by allowing any student who had been assigned to a new school as part of desegregation to transfer from a
school where they were a minority to a school where they would be in the racial majority); Griffin v.
County School Bd., 377 U.S. 218 (1964) (declaring it unconstitutional for a county to close its school
system rather than desegregate); Green v. County School Bd., 391 U.S. 430 (1968) (declaring “freedom of
choice” plans unconstitutional).

58
Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 VA. L. Rev. 7, 9 (1994);
see also Kluger, Simple Justice, at 755 (“A decade after Brown, not even one in fifty African American
pupils was attending classes with whites in the eleven states with the largest proportion of black residents”).

59
On importance of 1964 Civil Rights act to breaking the decade-long impasse after Brown, see Bell, Silent
Covenants at 134 (discussing Gerald Rosenberg’s argument, in THE HOLLOW HOPE: CAN COURTS BRING
ABOUT SOCIAL CHANGE (Chicago 1991), that “before Congress and the executive branch acted to enforce
Brown under the Civil Rights Act of 1964 and the 1965 Elementary and Secondary Education Act, the
Supreme Court’s decision had virtually no direct effect on ending discrimination in American’s public
schools.”)
Kluger describes the passage of the federal funding for education under the umbrella of the 1964
bill as “arming Washington with a weighty financial club to enforce compliance with the desegregation
order of the federal courts.” Kluger, Simple Justice, at 759. Bell also describes “fear of losing federal
funds [under this bill as] a motivating factfor inducing school authorities to effectuate some small measure
of desegregation.” Bell, Silent Covenants, at 97.

60
Orfield, Gary & Eaton, Susan E., DISMANTLING DESEGREGATION: THE QUIET REVERSAL OF BROWN V.
BOARD OF EDUCATION, at 66-69. New York, New Press, 1996.

70

The tactics that were developed by the NAACP in carrying out its litigation, both
prior to and during the campaign leading to Brown, remain the standard methods of civil
rights and social change litigators.
61
That this would be the case was far from a foregone
conclusion. Many of the tactics used to develop test cases were clearly in violation of the
ethical norms promoted by the bar. Moreover, when these tactics were challenged as a
means of attacking the NAACP, the Supreme Court came close to ruling against their
use.
During the early years of the NAACP, its litigation “relied not only on gathering
and presenting [facts illustrating segregation in practice] but also on creating facts by
carefully staging scenarios that would present the right test cases to the courts for
adjudication.”
62
Attorney’s acting on behalf of the Association not only staged
confrontations to create facts for test cases, they also undertook extensive speaking tours
in order to raise money and solicit clients for predetermined test cases.
63
While traveling
to investigate cases, Association attorneys held large community meetings seeking
support and plaintiffs for test-case litigation that they outlined to the crowds.
64
Much like
contemporary civil rights attorneys who read the daily papers with an eye to likely
litigation, the Association utilized clipping services to spot possible cases across the

61
Susan D. Carle, Race, Class and Legal Ethics in the Early NAACP (1910-1920), 20 LAW & HIST. REV.
98-99 (2002) [hereinafter “Carle, Ethics in the Early NAACP”] (describing the NAACP’s practice methods
as remaining “key to American conceptions of how to achieve social change through law”).

62
Carle, Ethics in the Early NAACP, at 97.

63
Id., at 98.

64
Id., at 121.

71

county.
65
Susan Carle’s work on the early NAACP summarizes the divergence from
traditional practices that these actions represented:
Whereas traditional notions assumed that legal disputes arose separate from and
prior to the initiation of litigation, the NAACP’s test case strategy depended on
staging the best possible facts for the purpose of creating litigation. Whereas
traditional models envisioned lawyers sitting in their offices waiting for clients to
bring legal matters to their attention . . . the NAACP wanted to widely proselytize
new causes of action in order to reach potential plaintiffs who were strangers to
the legal world and would not otherwise have been aware of their rights. Finally,
whereas traditional models viewed litigation as resulting in judgments that would
primarily affect the rights of parties before the court in the present and short-term
future, the NAACP designed its litigation to try to affect the legal rights of all
African-Americans, far into the future.
66

These tactics were employed despite the strict rules of the bar associations to
which the attorney’s belonged forbidding “lawyers from ‘stirring up’ litigation,
advertising their services, or approaching prospective clients with offers of legal
representation.”
67
The ABA Cannons of Professional Ethics prohibited the
“unprofessional” action of “volunteer[ing] advice to bring a lawsuit, except in rare case
where ties of blood, relationship or trust make it [a] duty to do so.”
68
Moreover, common
law statutes prohibiting barratry (defined as “vexatious incitement to litigation, esp. by

65
Id., at 122.

66
Carle, Ethics in the Early NAACP, at 97; Susan D. Carle, From Buchanana to Button: Legal Ethics and
the NAACP (Part II), 8 U. Chi. L. Sch. Roundtable 281 (2001) [hereinafter “Carle, From Buchanan to
Button”].

67
Carle, Ethics in the Early NAACP, at 98.

68
ABA Canons of Professional Ethics, Canon 28 (1908); See Carle II, 283 n.11.

72

soliciting potential clients”)
69
constituted offenses that could be prosecuted both civilly
and criminally.
70

How did the NAACP attorneys get away with what appear to be clear violations
of prevailing professional norms, and why did they believe they would? It was certainly
not for lack of awareness: the attorneys comprising the Association’s executive
committee were among the most prominent members of the New York bar ethics
committees.
71
Basically, the early NAACP attorneys depended on the fact that their
social prominence and philanthropic purpose put them above ethical reproach. As
described by one historian of the early NAACP, the members of the early national legal
committee had:
credentials [that] served to signify the elite professional status of the NAACP’s
representatives. Race, along with ancestry, social and economic class,
educational credentials, and professional success (as measured by a corporate
client base and a Wall Street address), was a part of this symbolic code. At this
point in its history the NAACP sought not to challenge that code but to use it to
gain the most traditional legitimacy possible for its nontraditional plans.
72

The assignment of legal work within the early Association was stratified by race and
class in a way that maintained the presumption of ethical purity of its activities:
[T]he board stated such a policy explicitly, resolving in 1916 that the high profile
national test cases it wanted to sponsor should be handled by the most elite
lawyers available – by definition, white lawyers at the top of the bar’s hierarchy.

69
See Black’s Law Dictionary, 7th ed. (2000).

70
See Max Radin, Maintenance by Champerty, 24 Cal. L. Rev. 48 (1935) (discussing early 20
th
-century
conceptions of the related offenses of maintenance and champerty).

71
Carle, Ethics in the Early NAACP, at 98, 130-44.

72
Id., at 115.

73

Local New York City cases would be “referred to colored lawyers who are
willing to take them on contingency.”
73

In keeping with the stated policy, Association President Moorfield Storey represented the
NAACP in most of its early Supreme Court cases.
74

There were several motivations behind this strategy. Some of the strategy was
caused by beliefs about the unavailability or likely ineffectiveness of black legal talent.
75

More interestingly, there was a class divide that manifested itself in two ways. First, the
organization was careful to husband resources by utilizing attorneys able to offer services
pro bono, and few black attorneys could afford to neglect their paying practices long
enough to undertake the extensive litigation of the association without pay.
76

Second, the insistence upon free (therefore rich and white) legal assistance in
impact cases was supported by ethical considerations. As discussed in the previous
chapter, much of the bar’s ethics regulations during this period can be understood as an
attempt to limit the influx of immigrant and non-white practitioners. This fact gave the
volunteer members of the legal committee self-assurance that the rules would not be
applied to their activities. As discussed by Carle, the members of:
the legal committee were comfortable in the face of [rules prohibiting their
actions] because the motives they were considering were their own, and they felt
assured that these motives were beyond reproach. Equally important, they were
confident that their peers in the bar associations charged with interpreting and
enforcing legal ethics rules would reach the same conclusions. In these men’s

73
Id., at 119 (quoting minutes of the NAACP board’s 1916 annual meeting).

74
Id., at 117.

75
Id., at 104-5.

76
Id., at 119.

74

views, the NAACP’s legal work was exempt from the legal ethics strictures
enforced against others because the NAACP was acting solely in the “public
interest” – their very presence on its legal committee vouched for this fact.
77

The rules were established to discourage lower-class newcomers from entering the
profession,
78
and because NAACP attorneys were not engaged in “those unseemly
ambulance chasing practices motivated by pecuniary intent,” they were in no danger of
sanction.
79
This certainly was further bolstered by a shared:
Progressive Era mentality that viewed the public good as unitary and consensual. .
. . To the optimistic early twentieth-century mindset of the lawyers on the legal
committee, legal solutions to social injustice were ascertainable through study and
analysis – one’s perspective did not vary depending on one’s position in society.
this universalist understanding of social justice translated into a sense of
confidence about the reach of legal ethics rules. The purpose of these rules was to
prohibit “bad” conduct but not to interfere with “good,” altruistically motivated
endeavors.
80

This certitude remains an ongoing issue in group representation.
By the 1930s Charles Hamilton Houston, and then Thurgood Marshall, took
charge of the legal arm of the Association. Their attitudes were strikingly different. As
outsiders to the white establishment they could ill-afford to be so cavalier about ethical
norms and they “were deeply concerned about the tensions between the organization’s
nontraditional litigation strategies and traditional legal ethics rules prohibiting barratry,

77
Id., at 143.

78
Id.

79
Id., at 142. In the minds of the legal committee’s first members, preserving the NAACP’s ethical purity
was integrally tied, not only to associating itself with elite lawyers of impeccable credentials, but also to
disassociating its agents from the prospect of pecuniary gain. In this respect, race and socioeconomic class
reinforced each other as factors contributing to the exclusion of African-American lawyers for the direction
of the NAACP’s legal strategy in its earliest years.

80
Id., at 144.

75

solicitation, and like offenses.”
81
This concern was well-founded because during the
long post-Brown years in which the NAACP was forced to litigate piece-meal for the
enforcement of desegregation, Southern states repeatedly used legal ethics law to attack
the Association and its attorneys.
Such attacks came to a head in 1957 when the Virginia legislature enacted several
statutes that prohibited any organization to retain a lawyer in connection with litigation to
which it was not a party and in which it had no pecuniary interest.
82
In the resulting case
of NAACP v. Button, the Supreme Court ruled that the NAACP activities were protected
by the First Amendment, and that the statute was therefore unconstitutional.
83
Although
purportedly seeking to tighten control of the profession, the statutes were transparent
attempts to stop the NAACP from organizing and representing plaintiffs in school
desegregation cases. The record before the Supreme Court showed that NAACP
attorneys had in fact engaged in an array of nontraditional practices: as staff members of
the NAACP, the lawyers were obliged to follow organizational directives respecting
pleadings, forms of relief to be sought, and the timing of suits.
84
As quoted in Justice
Harlan’s dissent, internal NAACP policies stated that:

81
Id., at 146 citing

82
NAACP v. Button, 371 U.S. 415 (1963).

83
371 U.S. 415 (1963). See also Tushnet, Making Civil Rights Law, 272-83, describing how, when the
case initially reached the Supreme Court, a majority of justices first voted that the NAACP was liable to
criminal penalties for its litigation techniques. It was only after a change in the Court’s membership led to
reargument in the case, that a majority of the Court decided, over Justice Harlan’s dissent, that the NAACP
could not be prosecuted under Virginia’s legal ethics laws its test case litigation strategies were a protected
form of political activity under the First Amendment.

84
Button, 371 U.S. at 449-50 (J. Harlan dissenting).

76

Pleadings in all educational cases-the prayer in the pleading and proof be aimed at
obtaining education on a non-segregated basis and that no relief other than that
will be acceptable as such.
Further, that all lawyers operating under such rule will urge their client
and the branches of the Association involved to insist on this final relief.
85

Moreover, “specific directions were given as to the types of prospective plaintiffs to be
sought, and staff lawyers brought blank forms to meetings for the purpose of obtaining
signatures authorizing the prosecution of litigation in the name of the signer.”
86
Finally,
Justice Harlan noted the “substantial evidence indicating that the normal incidents of the
attorney-client relationship were often absent in litigation handled by staff lawyers and
financed by petitioner [NAACP].”
87
Taking these considerations into account, Justice
Harlan argued in dissent that the Court should have acknowledged the legitimate:
desire of the profession, of courts, and of legislatures to prevent any interference
with the uniquely personal relationship between lawyer and client and to maintain
untrammeled by outside influences the responsibility which the lawyer owes to
the courts he serves.
88

85
Id., at 449.

86
Id., at 450.

87
Id., specifically, these included:

Forms signed by prospective litigants have on occasion not contained the name of the attorney
authorized to act. In many cases, whether or not the form contained specific authorization to that
effect, additional counsel have been brought into the action by staff counsel. There were several
litigants who testified that at no time did they have any personal dealings with the lawyers
handling their cases nor were they aware until long after the event that suits had been filed in their
names.

88
Id., at 450. He then elaborated his concerns, stating:

When an attorney is employed by an association or corporation to represent individual litigants,
two problems arise, whether or not the association is organized for profit and no matter how
unimpeachable its motives. The lawyer becomes subject to the control of a body that is not itself a
litigant and that, unlike the lawyers it employs, is not subject to strict professional discipline as an
officer of the court. In addition, the lawyer necessarily finds himself with a divided allegiance-to
his employer and to his client-which may prevent full compliance with his basic professional
obligations.

77

Nevertheless, the Court found that:
In the context of NAACP objectives, litigation is not a technique of resolving
private differences; it is a means for achieving the lawful objectives of equality of
treatment by all government, federal, state and local, for the members of the
Negro community in this country. It is thus a form of political expression. Groups
which find themselves unable to achieve their objectives through the ballot
frequently turn to the courts.
89

This being the case, the Court held that:

the activities of the NAACP, its affiliates and legal staff shown on this record are
modes of expression and association protected by the First and Fourteenth
Amendments which Virginia may not prohibit, under its power to regulate the
legal profession.
90

The Court dismissed Virginia’s asserted concerns about professional regulation,
stating that:
However valid may be Virginia's interest in regulating the traditionally illegal
practices of barratry, maintenance and champerty, that interest does not justify the
prohibition of the NAACP activities disclosed by this record. Malicious intent
was of the essence of the common-law offenses of fomenting or stirring up
litigation. And whatever may be or may have been true of suits against
government in other countries, the exercise in our own, as in this case, of First
Amendment rights to enforce constitutional rights through litigation, as a matter
of law, cannot be deemed malicious.
91

Id.

89
Id., at 429.

90
Id., at 428-29.

91
Id., at 439-40.

78

Essential to this position was the Court’s treatment of “(the NAACP) and its members
[as] in every practical sense identical.”
92
As a result of this identification, the court found
that:
There has been no showing of a serious danger here of professionally
reprehensible conflicts of interest which rules against solicitation frequently seek
to prevent. This is so partly because no monetary stakes are involved, and so there
is no danger that the attorney will desert or subvert the paramount interests of his
client to enrich himself or an outside sponsor. And the aims and interests of
NAACP have not been shown to conflict with those of its members and
nonmember Negro litigants
93
. . . [and concluded] that although the petitioner has
amply shown that its activities fall within the First Amendment's protections, the
State has failed to advance any substantial regulatory interest, in the form of
substantive evils flowing from petitioner's activities, which can justify the broad
prohibitions which it has imposed.
94

This explicit identification of the affected parents with the Association is part of
what makes the logic of the ruling sound. Where, as here, there is identity of interests
between the attorneys and clients, then rules that would preclude their joint pursuit of the
vindication of Constitutional rights appear closer to restraints on political action than
regulatory protection. However, such moments of large-scale cohesion in support of
transformative social agendas are few. In cases where the premised unity is not present,
the effects of the NAACP’s non-traditional strategies might be much less benign. That
was the case memorably made by Harlan in dissent. He feared that allowing “the normal
incidents of the attorney-client relationship” and failing to adhere to the traditional
determination of the ends of representation by clients and their needs unaffected by

92
Id., at 443 citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958).

93
Id., at 442-43.

94
Id., at 444.

79

outside commitments of the attorney, would lead to a failure to represent the true views
of the community:
The NAACP may be no more than the sum of the efforts and views infused in it
by its members; but the totality of the separate interests of the members and others
whose causes the petitioner champions, even in the field of race relations, may far
exceed in scope and variety that body's views of policy, as embodied in litigating
strategy and tactics.
95

This worry was prophetic: with the NAACP’s successful strategy of desegregation
litigation serving as a model, organizations and attorneys with ever more attenuated
relationships with the communities they purported to represent, operated under the
auspices of Button, to speak for ever more fragmented groups.
There have been further cases, most notably In re Primus,
96
holding that “for the
ACLU, as for the NAACP, ‘litigation is not a technique of resolving private difference’;
it is ‘a form of political expression’ and ‘political association.’”
97
But the presumed
identity of interests between civil rights class attorneys and those they represent remains
to this day, as does the understanding that the vindication of constitutional rights is an act
that can ethically proceed on someone’s behalf without actually consulting them in any
significant way. The Court was correct that unity made it different in the NAACP cases.
Justice Harlan was correct in arguing that the general principle of the decision would be
troublesome in situations where this presumed unity was not present, or where the
community was divided. He was also correct in pointing out that acceptance of the

95
Id., at 462.

96
In re Primus, 436 U.S. 412 (1978).

97
Id., at 428.

80

principle that the construction of civil rights litigation presumptively merited First
Amendment protection would change attorney-client relationships irrevocably:
But from recognizing, as in that case, that the NAACP has standing to assert the
rights of its members when it is a real party in interest, it is plainly too large a
jump to conclude that whenever individuals are engaged in litigation involving
claims that the organization promotes, there cannot be any significant difference
between the interests of the individual and those of the group.
98

If, as the Court in Button said, public interest litigation is a means for achieving
political ends rather than resolving private differences, what role clients in this process?
There is no procedure for litigation without standing, purely political litigation is non-
justiciable. Civil rights litigation without plaintiffs is basically a citizen suit that attempts
to force state actors to act without an injured party; traditionally not a justiciable case.
So, unless, as the majority posited in Button, the community is identical and its interests
are identical, the architects of the litigation take on a unique role – the Private Attorney
General. As it is currently practiced, the litigation design and focus is often completely
divorced from any grass-roots organizational structure. All an attorney needs is one
plaintiff to file a class-action case. This is a logical extension of the presumption made in
Button that organizations claiming to represent the public good inevitably seek what the
public wants. The driver of litigation is removed from the constraints contained in the
traditional lawyer/client means/ends division of labor in a way that separates the ends to
be sought from specific reference to the desires of the individual client.

98
Button, 371 U.S. at 462 (J. Harlan dissenting).

81

Procedure
The exceptionalism established in Button is amplified by the unique procedural
rules that are used for civil rights class actions. Federal Rule of Civil Procedure 23 deals
with class actions. A core aspect of any type of class action is that it must satisfy four
requirements: “numerosity,” it has to be large enough to merit treatment as a class;
“commonality,” common issue must predominate in the claims of class members;
“typicality,” the class representative must have claims typical of the class; and
“representativeness,” which involves inquiring into whether the class representatives will
adequately represent the interests of all class members both in the prosecution of the
claim and in terms of representing their actual desires.
99

Class definition is a significant issue and classes are often split if members within
the class have suffered distinct harms, or more narrowly circumscribed if groups within
the class have different goals for the litigation or express concerns that the specific
interests of the named plaintiff are unrepresentative of their position. In most classes,
pre-trial notice allows class members to opt-out of the litigation (and therefore avoid
being bound by its results) and pre-approval notice of a proposed settlement allows class

99
Fed. R. Civ. P. 23(a):

(a) Prerequisites.
One or more members of a class may sue or be sued as representative parties on behalf of all members only
if:

(1) the class is so numerous that joinder of all members is impracticable,

(2) there are questions of law or fact common to the class,

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

82

members to present their grievances to the court about the terms of settlement. Both of
these tools for individual choice require that notice be given to the class members prior to
the judicial determination of their rights.
The unique rules of class-actions for injunctive or declaratory classes (categories
including almost all civil rights cases), do not require that notice be given to class
members and therefore deny these chances to opt-out or express dissatisfaction. Rule
23(b)(2) allows for class action status where “the party opposing the class has acted or
refused to act on grounds generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with respect to the class as a
whole.”
100
Given the often prohibitive cost of providing effective notice to class
members (which is an issue in all types of class action litigation), and the fact that civil
rights actions seek to stop or require action on the part of the party they pursue rather
than collect damages, requiring notice could stop most civil rights litigation before it
begins. The justification for this special treatment is that in the absence of individualized
damages most class members in any well-defined class will be similarly situated in
relevant respects. When the class is united, notice is unnecessary since people do not
have individually distinct claims. However, when the class is divided, it can preclude
effective opposition to the agenda of the people who purport to represent the class.
This problem is compounded by several facts. First, courts are not required to
make a finding that common issues predominate in a 23(b)(2) class. Nevertheless, each

100
Fed. R. Civ. P. 23(b)(2).

83

person within the class is bound by the judgment. As described by a Philadelphia federal
district court:
The provisions of Rule 23(b)(2) are designed to cover cases in which the primary
concern is the grant of injunctive or declaratory relief. In such cases, there is no
requirement that notice be given to all of the class members, and there is no
opportunity for putative class members to “opt-out.” Moreover, the precise
definition of the class is relatively unimportant. If relief is granted to the plaintiff
class, the defendants are legally obligated to comply, and it is usually unnecessary
to define with precision the persons entitled to enforce compliance, since
presumably at least the representative plaintiffs would be available to seek, and
interested in obtaining, follow-up relief if necessary.
101

Individual members of the certified class cannot subsequently re-litigate the issue and
they are bound by its conclusions whether they were aware of the litigation or not.
Although the unique treatment of such classes is necessary, it can have consequences that
are quite harsh: while an action taken to order local police to stop using a tactic that
violates the civil liberties of a minority community can’t directly harm even those
members of the community that oppose the litigation, when a court directs a school
district to implement a wide-ranging reorganization of its schools, many individuals not
involved in the litigation will be directly impacted in central aspects of their lives.

Unity of Purpose Between Lawyers and Clients
Early in his career Derrick Bell was central to the implementation of Brown. As a
NAACP lawyer he was individually involved in many cases and supervised hundreds of

101
Rice v. City of Philadelphia, 66 F.R.D. 17 (1974).

84

desegregation cases across the South.
102
In his book, Silent Covenants: Brown v. Board
of Education and the Unfulfilled Hopes for Racial Reform, he describes the initial unity
of purpose between NAACP attorneys and the African-American communities in which
they litigated:
For civil rights lawyers, school desegregation litigation became our case-by-case
equivalent of the Christian Crusades. Those of us who represented black parents
and their children were encouraged by our knowledge of the law and the faith of
our clients that we would eventually prevail in the courts. . . . Many of the parents
accepted our view that integration was the only means for improving their
children’s education. Others joined the school suits as a means of combating
through law the segregation that had diminished their lives in ways beyond their
ability to define or their willingness to discuss.
103

As described Bell’s seminal essay Serving Two Masters: Integration Ideals and Client
Interests in School Desegregation Litigation, the general pattern of school suits initiated
by the NAACP and LDF was as follows:
A local attorney would respond to the request of a NAACP branch to address its
members concerning their rights under the Brown decision. Those interested in
joining a suit as named plaintiffs would sign retainers authorizing the local
attorney and members of the NAACP staff to represent them in a school
desegregation class action. Subsequently, depending on the facts of the case in
the availability of the council to prepare the papers, a suit would be filed. In most
instances, the actual complaint was drafted or at least approved by a member of
the national legal staff. . . .
Named plaintiffs, of course, retained the right to drop out of the case at
any time. They did not seek to exercise “control” over the litigation, and during
the early years there was no reason for them to do so. Suits were filed, school
boards resisted the suits, and civil rights attorneys tried to overcome the
resistance. Obtaining compliance with Brown as soon as possible was the goal of
both clients and attorneys. But in most cases, that goal would not be realized
before the named plaintiffs had graduated or left the school system.

102
Derrick Bell, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial
Reform, at 105.

103
Id., at 97.

85
.
108

The civil rights lawyers would not settle for anything less than a
desegregated system. While the situation did not arise in the early years, it was
generally made clear to potential plaintiffs to the NAACP was not interested in
settling the litigation in return for school board promises to provide better
segregated schools. Black parents generally felt that the victory in Brown entitled
the civil rights lawyers to determine the basis of compliance. There was no doubt
that perpetuating segregated schools was unacceptable, and the civil rights
lawyers’ strong opposition to such schools had the full support of both the named
plaintiffs and the class they represented. Charges to the contrary, initiated by
several Southern states were malevolent in intent and premature in time.
104

Although some headway had been made as a result of persistent litigation and the
Civil Rights Act of 1964, federal district court judges didn’t really have clear Supreme
Court guidance about what type of remedies they could order in school desegregation
cases until Swann v. Charlotte-Mecklenberg Board of Education.
105
In Swann, the Court
held that although every school in a district need not “always reflect the racial
composition of the school system as a whole,” districts had to desegregate to the greatest
extent possible.
106
The court set forth a broad mandate authorizing district courts to
formulate an array of remedies including using busing as a “tool of desegregation,”
107

and affirmatively altering attendance zones to achieve integrated student placements
However, “[w]hen districts finally admitted more than a token number of black
students to previously white schools, the action usually resulted in closing black schools,

104
Bell, Serving Two Masters, at 475-477.

105
402 U.S. 1 (1971).

106
Id., at 24.

107
Id., at 30-31.

108
Id., at 28.

86

dismissing black teachers, and demoting (and often degrading) black principals.”
109
The
destruction of infrastructure mirrored the experience of the African-American community
of Boston a century earlier. Moreover, this result had been predicted and lamented by
vocal proponents of black institutions (not only, as some suggest, the teachers and
administrators who foresaw that they would be prevented from working in integrated
institutions). Since the beginning of the campaign leading to Brown, there had been a
systematic denigration of the quality of African-American institutions.
110

109
Bell, Silent Covenants at 124. Bell goes on to recall that during his work on desegregation litigation he
often heard of “respected principals of black schools who, in order to keep their pensions, had to accept
janitorial positions in mainly white schools.” Id. The destruction of Dunbar is described at 125.

110
See Martin, A Short History, at 16:
The historical and rhetorical development of Brown reflected a profound discomfort with racial
separatism. Essential to the social-scientific discourse behind Brown was the argument that racial
segregations, even voluntary segregation, was responsible for the psychological damage and
sociocultural pathology among blacks Du Bois clearly perceived that this negative
characterization of a distinctive black life and culture as well as of blacks as victims was one-sided
and misleading. This potentially baneful argument, increasingly vital to the NAACP’s liberal
indictment of Jim Crow, failed to make the crucial distinction between what Du Bois saw as the
benefits of voluntary segregation – autonomy and psychic health – and the harm of state-imposed
segregation – dependency and dehumanization.

During the formation of the strategy Du Bois urged the NAACP to refrain from committing to either
separate or integrated schools, he argued that:

. . . the Negro needs neither segregated nor mixed schools. What he needs is education. What he
must remember is that there is no magic, in either mixed schools or in segregated schools. A
mixed school with poor and unsympathetic teachers, with hostile public opinion, and no teaching
of truth concerning black folk, is bad. A segregated school with ignorant placeholders, inadequate
equipment, poor salaries, and wretched housing, is equally bad. Other things being equal, the
mixed school is the broader, more natural basis for the education of all youth. It gives wider
contacts; it inspires greater self-confidence; and suppresses the inferiority complex. But other
things are seldom equal, and in that case, Sympathy, Knowledge, and Truth, outweigh all that the
mixed school can offer. (Martin, A Short History, at 16-17.)

Du Bois bitterly objected to the focus on the inferiority of black institutions. (W.E.B. Du Bois, Does the
Negro Need Separate Schools, in, BROWN V. BOARD OF EDUCATION: A BRIEF HISTORY WITH DOCUMENTS
92-100 (Waldo E. Martin Jr. ed., 1998).) He stressed that blacks should strengthen the institutions they had
and celebrate their achievements in the face of undeniable racism. (Martin at 16-17; see also Kluger,
Simple Justice, at 170.) He argued that the education was hobbled both by racially motivated obstacles

87

The strategy of making arguments based on the social harm to black children
caused by education segregation was perhaps too successful in diminishing the
possibilities of black institutions. Subsequent debates about the extent to which the
infrastructure of African-American communities was damaged by desegregation were
conducted with more concern for the sensibilities of the whites affected than the impact
on African-American communities.
111
Schools that initially had, or eventually became
majority-minority schools were seen as inferior by black and white parents alike. As one
overwhelmingly positive commentator on the legacy of Brown acknowledged, “a critical
failure of the egalitarianism of the liberal and social-scientific consensus undergirding
Brown was its devaluation of black culture and black institutions and, ultimately, of
blacks themselves.”
112
The preconceived ideas of racial inferiority were obviously
solidly in place and likely abating on all fronts by the era of desegregation. However, on
at least one reading, Brown was premised on the notion that no all-black institution could
create educational experiences equal to an institution that was largely white. While this

blocking black educational opportunities and by the devaluation of black institutions and culture that came
from both blacks and whites. (Martin at 17.) Nor was Du Bois alone in his concern with such tactics.
Derrick Bell quotes the educator Dr. Benjamin E. Mays, as arguing that:

Black people must not resign themselves to the pessimistic view that a nonintegrated school
cannot provide Black children with an excellent educational setting. Instead, Black people, while
working to implement Brown, should recognize that integration alone does not provide a quality
education, and that much of the substance of quality education can be provided to Black children
in the interim. (Bell, Silent Covenant, at 115 quoting Benjamin Mays, Comment: Atlanta: Living
with Brown Twenty Years Later, 3 Black L. J. 184, 190, 190-92 (1974).)

111
Bell, Silent Covenant, at 112-113 (describing the use of “tracking” black children into less rigorous
programs within schools). Also see discussion of the effects of spreading black children throughout school
districts in order to keep their numbers acceptably low to the white population of any given school.

112
Martin, A Short History, at 33.

88

makes sense if there is no chance for equality of resources or quality instructors, when
such resources exist and no state mandate of segregation puts an official stamp of
inferiority on an institution, this premise can only remain true if white institutions were
somehow inherently better than black ones.
Unsurprisingly in light of such beliefs, many white and middle class black parents
reacted to integrated urban school districts by relocating their children to suburban
schools and private academies. Some of this movement was due to racist fears – notably
the post-Brown South’s rapid migration to all white private academies – but some was a
reasonable, or at least rationally explicable, effect of widespread propaganda to establish
the inevitable inferiority of majority-minority educational institutions. Perhaps the
cruelest blow to the hopes of urban educations systems was the Supreme Court’s decision
in San Antonio Independent School District v. Rodriguez,
113
which held that disparities in
school funding within a state’s various districts do not violate equal protection. This
decision effectively guaranteed the continuation of financial inequality between suburban
and urban schools and exacerbated the trend to racial resegregation that was already
being carried out through ever-increasing patterns of residential segregation that largely
fell across the lines of suburban school districts.
Whites, running from the blacks in the inner cities, have hidden in the suburbs
behind an impressive array or economic, social, and legal barriers. Local
governments were active accomplices through mortgaging practices, the location
of public housing and urban renewal projects, and zoning regulations. Racial
isolation in housing has both created single-race schools and insulated these
schools from court challenges.
114

113
411 U.S. 1 (1973).

114
Bell, Silent Covenants, at 110.

89
, holding that:

In the face of large-scale white migration and increasing percentages of majority-
minority schools, urban school districts sought to force the inclusion of suburban school
districts in inter-district desegregation plans.
115
The hope was that such plans could stem
the flow of whites to the suburbs by removing a major incentive to leave. The possibility
of interdistrict remedies for desegregation was foreclosed by the Supreme Court’s 1974
decision in Milliken v. Bradley.
116
In Milliken a district court had imposed a multi-
district remedy that included an entire multi-district metropolitan area, in order to
alleviate the effects of the intentionally discriminatory policies of one district. The
Supreme Court found such inter-district remedies impermissible
Before the boundaries of separate and autonomous school districts may be set
aside by consolidating the separate units for remedial purposes or by imposing a
cross-district remedy, it must first be shown that there has been a constitutional
violation within one district that produces a significant segregative effect in
another district . . . without an interdistrict violation and interdistrict effect, there
is no constitutional wrong calling for an interdistrict remedy.
117

Given the historically broad governmental involvement in maintaining residential
segregation throughout the nation, the decision gives perverse sanction to the lingering
effects of such policies. Majority-minority inner city school districts ringed with white
suburbs were simply unable to create meaningfully diverse schools when denied the
ability to mix students from suburban and urban neighborhoods. Thurgood stated in
dissent that:

115
Id., at 111.

116
418 U.S. 717 (1974).

117
Id., at 744-45.

90

The majority’s holding can only be seen as a retreat from our historic
commitment to equality of educational opportunity and as unsupportable
acquiescence in a system which deprives children in their earliest years of a
chance to reach their full potential as citizens.
118

This sentiment was echoed by Richard Kluger, who described the federal government’s
assertive support of this decision as “a national policy reversal driven by demagoguery
and deceit.”
119

One has to wonder, however, whether interdistrict remedies would have caused
increasing privatization of education and residential relocation to whatever extent
geographically necessary to make such remedies impractical. Whatever one’s view of
the effect of Milliken, the effects (acknowledged or surrendered to) were effectively
reinforced by subsequent Supreme Court decisions about the temporal extent of court
mandated desegregation plans. Only state, not private, actions (like leaving the city)
could warrant such relief:
120
in order to obtain such an order in the first place, litigants
had to show that actions taken by the district of the city had created the conditions of
segregation.
121
This was not hard in states where laws had required segregated schools.

118
Id., at 783.

119
Kluger, Simple Justice, at 768.

120
In Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976), the Supreme Court stated that:

having once implemented a racially neutral attendance pattern in order to remedy the perceived
constitutional violations on the part of the defendants, the District Court had fully performed its
function of providing the appropriate remedy for previous racially discriminatory attendance
patterns.

121
Keyes v. School Dist. No. 1, Denver, Colorado, 413 U.S. 189 (1973).

91

The Supreme Court had also established the proof necessary in states that had not had
such laws in Keyes v. School District No. 1, Denver, Colorado,
122
where it held that:
where plaintiffs prove that the school authorities have carried out a systematic
program of segregation affecting a substantial portion of the students, schools,
teachers, and facilities within the school system, it is only common sense to
conclude that there exists a predicate for finding the existence of a dual school
system.
123

Once widespread violations of students’ right to equal protection is proven, a remedy for
the entire school system is justified because “common sense dictates the conclusion that
racially inspired school board actions have an impact beyond the particular schools that
are the subjects of those actions.”
124
Nevertheless, once interdistrict remedies were held
impermissible as a means to stem the tide of demographically driven re-segregation of
formerly desegregated schools, progress was effectively at an end.
The judicial legacy of Brown is open to vastly different interpretations. Derrick
Bell describes the decision as:
Today, of little use as legal precedent, it has gained a reputation as a measure of
what law and society might be. That noble image, dulled by resistance to any but
minimal step toward compliance, has transformed Brown into a magnificent
mirage, the legal equivalent of that city on a hill to which all aspire without any
serious thought that it will ever be attained.
125

Michael Seidman laments Brown and its legacy as an ineffectual resolution of the
demand for true equality. Brown, he argues, resolved the clash between the nation’s

122
413 U.S. 189.

123
Id., at 201.

124
Id., at 203.

125
Bell, Silent Covenants, at 4.

92

purported commitment to equality and the white majority’s continued need form
dominance by:
resolv[ing] the contradictions by defintional fiat: Separate facilities were now
simply proclaimed to be inherently unequal. But the flip side of this aphorism
was that once white society was willing to make facilities legally non-separate,
the demand for equality had been satisfied and blacks no longer had just cause for
complaint. The mere existence of Brown thus served to legitimate current
arrangements. True, many blacks remained poor and disempowered. But their
status was no longer a result of the denial of equality. Instead, it marked a
personal failure to take advantage of one’s definitionally equal status.
126

Richard Kluger clearly views revitalization of the promise of Brown as the nation’s best
hope for the future. He describes “segregated schools [as] grim propagators of America’s
most persistent pathology”
127
and attacks both the Supreme Court’s subsequent retreat
from Brown and what he describes as the misguided emphasis of some in the African-
American community on increasing education excellence within majority-minority
institutions.
128

A more balanced assessment is found in Erwin Chemerinsky’s essay The
Segregation and Resegregation of American Public Education: The Court’s Role.
129
He
argues convincingly “that Supreme Court decisions over the past thirty years have
substantially contributed to” the dramatic resegregation that has occurred since the early

126
Michael Seidman, “Brown and Miranda,” 80 Calif. L. Rev. 673, 717 (1992).

127
Kluger, Simple Justice, at 773.

128
Id.

129
Erwin Chemerinsky, The Segregation and Resegregation of American Public Education: The Court’s
Role 29, School Resegregation: Must the South Turn Back? [J. Boger, and G. Orfield eds.] (2005).

93

1980s.
130
While he argues that “history offers little reason to hope that dual school
systems will ever be equal,” he treats the renewed emphasis within many minority
communities on intra-community efforts to improve educational quality with deserved
respect.
131
Chemerinsky concludes that the failure of Brown is largely attributable to the
Supreme Court’s retreat from the principles of true equality. He emphasizes that the
historical facts of pervasive governmental policy promoting residential segregation
provides more than enough state action to justify far reaching desegregation plans but
that the Court’s decisions in Milliken and Rodriguez, combined with a failure of political
will beginning with the Regan administration and continuing to the present, has
dismantled past successes and darkened future prospects for integrated schools.
132

Emergence of Intra-class Divisions
The preceding account is one, very incomplete, version of the development of
one, if not the, central social issues of modern American history. The centrality of Brown
as an icon and aspirational goal cannot be overstated. But I think it is important to see
that within this story, there is no monolithic class whose interests were being represented.
More exactly, once the brute fact of Southern resistance cracked and the 1964 Civil

130
Id., at 30.

131
Id., at 31.

132
See Id., esp., at 38 where he argues that:

The combined effect of Milliken and Rodriguez cannot be overstated. Milliken helped to ensure
racially separate schools, and Rodriguez insured that the schools would be unequal. American
public education is characterized by wealthy white suburban schools that spend a great deal on
education surrounding much poorer African American city schools that spend much less.

94

Rights Act incentivized the earnest implementation of desegregation, serious intra-class
issues began to develop within local African-American communities and between these
communities in different areas of the country. These conflicts were exacerbated by
districts using desegregation to disadvantage blacks, and by the continued white flight
that created de facto segregation through residential means just as desegregation plans
were attempting to overturn de jure segregation.
Faced with clear obstacles to quality education in a desegregated setting, black
parents began focusing on alternate methods of improving educational quality.
133
After
violent opposition to busing during Boston’s desegregation effort, community
representatives “wished to place greater emphasis on upgrading the schools’ educational
quality, to maintain existing assignments at schools which were already integrated, and to
minimize busing to the poorest and most violent white districts.”
134
The NAACP
responded by asserting that precedent bound them to pursue full integration.
135
Yet this
narrow interpretation was clearly only one of the possible ways to implement the
mandate of Brown. Local leaders in Detroit and Atlanta were also aggressively opposed
by the NAACP when they sought guarantees of improved education quality be prominent
in the educational plans implemented by federal district courts.
136

133
Bell, Silent Covenants, at 114-20.

134
Bell, Serving Two Masters, at 482.

135
Id.

136
Id., at 484-87.

95

Bell’s groundbreaking essay exposed the tensions inherent in a school
desegregation strategy that takes:
The actual presence of white children [as] essential to the right [to equal
education] in both its philosophical and pragmatic dimensions. In essence the
arguments are that blacks must gain access to white schools because “equal
education opportunity” means integrated schools, and because only school
integration will make certain that black children will receive the same education
as white children.
137

According to Bell, throughout the late 1970s “civil rights lawyers continue[d] to argue
that black children were entitled to integrated schools without regard to the education
effect of such assignments,”
138
despite evidence that “court orders mandating racial
balance may be (depending on the circumstances) educationally advantageous, irrelevant,
or even disadvantageous.”
139

Bell argues that such inflexibility “fails to encompass the complexity of achieving
equal educational opportunity for children to whom it so long has been denied.”
140
As
Bell sees it, such single minded focus fails to address:
the real evil of pre Brown public schools: the state-supported subordination of
blacks in every aspect of the educational process. Racial separation is only the
most obvious manifestation of this subordination. Providing unequal and
inadequate school resources and excluding black parents from meaningful
participation in school policymaking are at least as damaging to black children as
enforced separation.

Whether based on racial balance precedents or compensatory educational
theories, remedies that fail to attack all policies of racial subordination almost

137
Id., at 479.

138
Id., at 480.

139
Id., italics in original.

140
Id., at 478.

96

guarantee that the basic evil of segregated schools will survive and flourish, even
in those systems where racially balanced schools can be achieved. Low academic
performance and large numbers of disciplinary expulsion cases are only two of
the predictable outcomes in integrated schools where the racial subordination of
blacks is reasserted in, if anything, a more damaging form.
141

Moreover, this inflexibility assumes a deeply nonresponsive view of representation:

The position of the established civil rights groups obviates any need to determine
whether a continued policy of maximum racial balance conforms with the wishes
of even a minority of the class. This position represents and extraordinary view
of the lawyer’s role. Not only does it assume a perpetual retainer authorizing a
lifelong effort to obtain racially balanced schools. It also fails to reflect any
significant change in representational policy from [the 1960s], when virtually all
blacks assumed that integration was the best means of achieving a quality
education for black children, to the [late 1970s], when many black parents are
disenchanted with the educational results of integration.
142

What are the lessons here? Is there any way a litigator can be correct in
undermining the expressed will of parents in such a situation? Had well-meaning
attorneys, faced with the enormity of the wrong they battled simply lost touch with the
people on whose behalf they were supposedly fighting? If litigation became primarily a
means to vindicate their vision of the nations obligations under Brown – a vision that was
fixed over time even in the face of a shifting and possibly illusory goal – where did the
needs of the parents and students whose opportunities had been diminished by the
realities of our countries racial politics fit in to this process?
To return to the critique of the Private Attorney General model with which this
chapter began, although he doesn’t explicitly reference this social movement, it is hard
not to feel that Lopez’s criticisms apply forcefully to the latter stages of segregation

141
Id., at 487-88.

142
Id., at 492-93.

97
litigation as described by Bell. Even though the attorneys sought large-scale social
change, ignoring the unique needs and desires of individual communities led to a failure
to actually represent them. There is every reason to believe that formidable unity of
purpose was pervasively present in the African-American community during the
litigation leading to and immediately following Brown. Moreover, comporting with any
model valuing autonomous community control of litigation, Marshall and Houston had
earned their places as political leaders who had a good feel for community sentiment and
a large measure of community support. But if that campaign is to serve as the model for
contemporary civil rights litigation, then it is fair to ask whether there ought to be a
similar unity of purpose in other public interest litigation campaigns. Button not only
sanctioned the NAACP model, by basing its holding on the First Amendment the Court
created a very broad sanction for political action: political litigation was free to become
the action of lawyers rather than the expression of a community’s will. Without this
connection and the guidance it provides, what does a lawyer know? Marshall had both
the solidarity and the group membership to claim actual knowledge. Yet after decades of
pounding away with the same legal theory in post-Brown implementation, how in touch
were the lawyers that Bell describes with community sentiment? Even more troubling,
how in touch with such sentiment are contemporary attorneys who forgo the long
apprenticeship within the community to move directly to the “high impact” arena of
litigation?
During the initial litigation, leading to Brown, and shortly thereafter the legal
team and the class members were united in ends and goals: they wanted to end the evil of

98
separate and unequal education in the Jim Crow South. While the ultimate goals of the
NAACP lawyers designing the litigation strategy and the local class members for any
particular piece of litigation may have been different, with respect to be total litigation
project, there was substantial unity. This despite the fact that the attorneys acted in the
exact ways Lopez would condemn: they often constructed litigation on their own and
only later sought plaintiffs; they did not consult with or advise plaintiffs of the progress
of litigation, and plaintiffs sometimes did not even know they were a named plaintiff
until they found out from the press accounts. All these things Lopez condemns and yet
their shared sense of purpose and unity of understanding allowed them to pick the correct
issue.
Maybe the NAACP campaign didn't empower the community members directly
(although having African-American attorneys confront white attorneys in the deep South
certainly gave them something). Maybe the attorneys didn’t consult with the community
about what their most pressing concerns were (although the extreme poverty of the
educational system afforded blacks was so pernicious that perhaps it was an obvious
choice to attack first.) Nevertheless, because of the substantial unity of ends that was
present in the early NAACP challenges to segregated education, it does not seem that the
early NAACP strategy is open to the same condemnation Lopez addresses to other
litigators who work at a similar remove from their constituent communities.

99

Marriage Equality Litigation as Contemporary Analogue
Litigation seeking same-sex marriage equality in Vermont and Hawaii present
distinct examples to enrich reflection on the contemporary litigation of group rights in
light of the model derived from the campaign leading to Brown and the advocacy model
endorsed in Button. William Rubenstein’s article Divided We Litigate: Addressing
Disputes Among Group Members and Lawyers in Civil Rights Campaigns
143
discusses
how, once a community debate arose about whether the gay and lesbian community in
Hawaii should aggressively seek legal recognition of same sex marriage, major gay rights
organizations avoided the pitfalls of top-down civil rights advocacy and dutifully sought
to determine community sentiment and create consensus about goals prior to beginning
such litigation.
144
During this period of consultation, individual members of the
community filed actions on their own seeking the legal right to marry.
145
Such actions
not only circumvented the lawyers who sought to represent the community, they also
eschewed any obligation to consult with the community prior to seeking to vindicate
what they believed to be their individual constitutional rights.
As this example shows, the threat of attorney-driven cases where goals and tactics
are chosen without community consultation is only one way in which a community can
be ignored while their rights are litigated: individual group members can also unilaterally
assert the right to represent group members, can decide the framing of constitutional

143
106 Yale L.J. 1623 (1997).

144
Id., at 1637 (discussing the efforts of Lambda Legal Defense and the ACLU’s National Lesbian and Gay
Rights Project.)

145
Id., at 1638.

100

issues for consideration by the courts and the relief requested with no outside input, and
such action will have a binding effect on similarly situated individuals.
146

An alternate picture is presented in Supporting a Cause, Developing a Movement,
and Consolidating a Practice: Cause Lawyers and Sexual Orientation Litigation in
Vermont, by Scott Barclay and Anna-Maria Marshall.
147
The article describes how two
family law attorneys in Vermont, working at the request of their gay and lesbian clients,
built a successful legislative and litigation campaign leading to adoption of the state’s
expansive civil union law in 2000. At the request of several of their private family law
clients, Susan Murray and Beth Robinson litigated Baker v. State,
148
in which the
Vermont Supreme Court held that same sex couples must be granted full benefits of
marriage under the Common Benefits Clause of the Vermont State Constitution.
149

As reported in Supporting a Cause:
in addition to their work on this groundbreaking litigation, they also
simultaneously developed a statewide grassroots campaign in support of same-sex
marriage and coordinated much of the legislative lobbying that preceded and
followed the decision in Baker v. State.
150

146
Id., at 1624.

147
Supporting a Cause, Developing a Movement, and Consolidating a Practice: Cause Lawyers and Sexual
Orientation Litigation in Vermont Scott Barclay & Anna-Maria Marshall, at 171, in The Worlds Cause
Lawyers Make: Structure and Agency in Legal Practice (A. Sarat and S. Scheingold eds., 2005).

148
Baker v. State, 744 A.2d 864 (1999).

149
Id., at 867; Supporting a Cause, at 172.

150
Supporting a Cause, at 172.

101

Despite a nationally unfavorable litigation environment, the attorneys believed
that the Common Benefits Clause of the state constitution provided a unique avenue for
seeking endorsement of marriage equality.
151
Although they began consideration of
attacking restrictions on marriage equality in response to direct request from their clients,
they waited for a favorable political climate and worked extensively to prepare the state
legislature to facilitate enforcement of the decision rather than legislatively reversing it as
had earlier occurred in Hawaii.
152

Importantly, such relatively local action maintained attorney-client relations in a
traditionally responsive way. The political work also created a community cohesion
analogous to that which supported the logic of Button: if there is group unity and
representation which is in touch with group sentiment, then litigation can be a powerful
and effective politically expressive act. When, however, as in the latter phases of
desegregation litigation, community desires are thwarted by attorneys seeking to claim
the role of community representative in order to enact their own predetermined agendas,
Justice Harlan’s concerns about the use of clients for the ends of attorneys come to the
fore.

False Unity Versus Pluralistic Interests
A cause lawyer’s commitment to an issue can shape the goals of litigation in a
way that excludes the plaintiff they obtain to represent the class. When the class moves

151
Id., at 180-81.

152
Id., at 179-80.

102
out of the frame as the central concern, litigation can become little more than a vehicle
for the pursuit of the lawyer’s social vision. The pursuit of an individual attorney’s view
of a public good is not necessarily a bad thing, lawyers are often thoughtful and
committed participants in social change. Nevertheless, when an attorney implements
their vision without broad support by recruiting a like-minded or merely complacent class
representative, the implementation of procedural safeguards similar to those that limit
attorneys who represent damage class litigants would be helpful to protect the interests of
absent class members. Left to their own devices, attorneys can invoke an unrealistically
monolithic view of public good, and of class members’ interests and desires, in pursuit of
what they believe is right.
Lastly, because the establishment of precedent freezes the ground on an issue,
there is no easily available way for attorneys to represent the evolving views of group
members. Nor is there a way for emerging intra-class interest groups to easily assert that
they want to be represented in a different way. Failure to represent the diverse views
within a represented constituency gives lawyers with little accountability far too much
control of clients’ lives. Nevertheless, such failures to engage community members may
be more the rule than the exception. These facts make a commitment to early and
continuous consultation with community members essential to ethical representation.
For several reasons, this model of cause lawyering remains dominant. Perhaps
the main reason for this is the legacy of (seemingly) spectacular successes in the past.
These much invoked events grab the popular imagination and spawn law students eager
to repeat such victories. Many progressive people come to law school with dreams of

103
dramatic litigation victories like those of the early civil rights era. Yet today the judicial
landscape is hostile to such changes. Moreover, those historic social upheavals were not
generated by the lawyers who led the fights, they were core social movements that
lawyers attached to (even if the strategies they used once they got in control only partially
represented the goals of those they purported to represent.) In many cases, today’s
poverty and social change lawyers find themselves cutting their cases out of whole cloth.
This is likely due in part to the lack of cohesive movements for social change and in part
to the sanction for attorney distance provided by history. Creating cases without strong
guidance from a rich knowledge of the nuance of social context would be difficult for
anyone, but is especially apt to misfire when the lawyers fashioning that change have no
basis on which to engineer such change other than their own intuitions.
So what sustains this model now? Unfortunately, the answer is, in large part
entrenched hierarchy. The most prestigious jobs within the public interest world continue
to be litigation spots at the ACLU, LDF or MALDEF (Mexican American Legal Defense
Fund). For high-achieving law students, even those who have avoided putting their heads
in the noose of corporate “training” programs, the lure of jumping through the next hoop
of status is almost irresistible. Lacking the perspective or motivation to critically
examine the usefulness or continued relevance of such work, law students fight for such
spots thinking it is the best they can do for themselves and their careers within the “public
interest” world. This hierarchy is self-reinforcing in terms of recruitment but also in
terms of retention. The fact that the judicial and legislative landscape for social change
looks bleak and the successes of litigation strategies is slim, only make these already

104
complex practice areas more appealing to high-achieving idealists. A victory on this
field, no matter the vast amount of resources it takes to achieve it or the narrowness of the
positive change it represents, is a sign of true intelligence and ability. Therefore, at the
same time complex litigation is becoming ever less effective as an engine for social
change, the more working within it provides proof of one’s intellectual prowess.
Progressive attorneys with strong academic credentials are drawn into this work but those
who eventually perceive its futility often move into private practice rather than stepping
down into the lower status realm of direct services, a place where their youthful
enthusiasms may perhaps have been much better used (and had much more actual impact
on the lives of the people they set out to help) from the start.
Lest I be too negative, it is true that people take these jobs with the best of
intentions. There are also reasons that a relatively clear-eyed practitioner would hold on
to this model of work rather than modifying their practice such as the desire to make a
larger “impact” than can be made in one-on-one service provision. This is a genuine
motivation for many people, even those who can realistically assess the prospects of such
“impact” work in the current landscape can decide that their energies are better spent
there than in a direct services setting. On the whole this may be true in a law reform or
education/support role, (jobs conceived to directly improve the efficacy of direct service
provision) but this belief is highly questionable in the “impact litigation” world. There
are two reasons this is true: a disconnect from the community in terms of goals; and a
misevaluation of the amount of resources devoted to inefficacious litigation efforts versus
small scale but immediately effective direct service work.

105
Regardless of the initial constituency, social impact litigation has long-term
effects constituting long-range commitment of resources. Imagine importing this model
into a poor urban neighborhood. The attorney is a recent law school graduate focused on
some issue like housing or education, not from the neighborhood or even the state, not in
touch with community groups, basically just reading the paper or extrapolating from the
experiences of the people that walk into her office what might be an “interesting” or
“important” case to bring. Assuming that the attorney can go find a named plaintiff to
front her theory, this litigation will go forward, likely as a class action determining the
rights of hundreds or thousands of group members. The problem here is not with the
liberal class requirements. They are necessary due to the prohibitive cost of notice, etc.
Nor is the problem necessarily the litigation – we haven’t even specified the issue – she
could be attacking the primary obstacle to a community’s progress in the suit. The
problem is that the process of social change originates with someone unlikely to have any
idea where community resources are best spent or what the biggest problems in the
community are.
The ABA’s obstructionist argument against the ethics of legal services lawyers
doing impact litigation was ethically hollow rhetoric motivated by political distaste for
the results of such work. Yet there is a core question implicit in the objection that is
worth asking: who are the people represented, how are their interests being determined,
and are they well served by either the choice of goal or the litigation strategy that the
lawyer has constructed on their behalf? A cause lawyer who does not serve a
constituency and take his cues from it can do real damage through armchair social

106
engineering. That is the core idea that led to the articulation of the model discussed in the
next chapter. How much the threat posed by such attorneys is due to legal services
lawyers being, qua lawyers, necessarily elite and overly self-important actors is not clear,
but the effects can be damaging because they create the stage upon which the future of
community actions take place. Effects may last long after the attorneys who conceived of
the litigation have moved on.
The historic examples discussed in this chapter were meant to dramatize an issue
about how representation works in the Private Attorney General model, the most
common among traditional civil rights practitioners. Assessing these events critically
would be fruitless since they each created great gains in personal autonomy and relieved
repressive constraints on the self-determination of individuals. This was their goal and
they succeeded admirably. Yet, especially in the case of the educational legacy of the
civil rights struggle, ongoing cases are filed all the time in the name of a now visibly
fractured constituency. While current attorneys see themselves enforcing “the law” on
behalf of people whose rights under law are being denied, there is a sense in which large
percentages of the people they purport to represent may no longer interpret what they are
owed under Brown as beginning or ending with an integrated classroom: many believe
that their children are actually owed a strong publicly funded education first and
foremost.
Regardless of who does the theorizing, civil rights litigation in today’s
environment is a blunt and unpredictable tool. The intended beneficiaries must be
involved in guiding and focusing the issues on which it is concentrated. Lawyers must be

107
willing to forgo the sexy and prestigious world of impact litigation for community based
strategies of local empowerment. Lawyers may need to embrace a truly new kind of
poverty law practice rather than acting as a progressively inclined fringe within the mass
of traditional practitioners.

108

Chapter Three: Rebellious Lawyering
153

This chapter shifts to consideration of a very different model of public interest
lawyering called “rebellious” or “community” lawyering.
154
Given the largely
aspirational commitment of the profession to providing legal services to poor people and
the financial pressures militating against such a career, actual dedication to working for
subordinated groups in society is a rarely undertaken endeavor. And yet, a significant
minority of lawyers aspires to such dedication as the guiding ideal of their professional
life. For those practitioners who take this obligation as the primary focus of their practice
it is far from clear how they can best structure their work to effectuate their ideals.
Community lawyering challenges lawyers to rethink and recreate their roles
within the communities they serve; argues against the model of legal services focusing on
the discrete problems of individuals; and challenges the idea that impact work can be
effective if disconnected from the guidance of the communities it would ultimately
affect.
155
It evolved in response to models of public interest practice that, much like the

153
My thinking throughout this chapter is deeply indebted to the excellent work of Shauna Marshall.
Specifically, her study of application of community lawyering principles to work in the East Palo Alto
community. See Marshall, Shauna I. Mission Impossible?: Ethical Community Lawyering, 7 CLINICAL
L. REV. 147 (2000).

154
These terms will be used interchangeably throughout.

155
Main proponents of this view were Anthony Alfieri, Gerald Lopez and Lucie White. See Anthony V.
Alfieri, The Antinomies of Poverty Law and a Theory of Dialogic Empowerment, 16 N.Y.U. Rev. L. & Soc.
Change 659 (1988) [hereafter Alfieri, The Antinomies of Poverty Law]; Anthony V. Alfieri, Disabled
Clients, Disabling Lawyers, 42 Hastings L.J. 769 (1992); Anthony V. Alfieri, Impoverished Practices, 81
Geo. L.J. 2567 (1993); Anthony V. Alfieri, The Politics of Clinical Knowledge, 35 N.Y.L. Sch. L. Rev. 7
(1990); Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative,
100 Yale L.J. 2107 (1992); Gerald P. Lopez, Rebellious Lawyering: One Chicano's Vision of Progressive
Law Practice (1992)[hereafter Lopez, Rebellious Lawyering]; Gerald P. Lopez, A Declaration of War by

109

Private Attorney General model explored above, transfer traditional models of practicing
law with little or no modification to the representation of groups that have historically
been underrepresented. Community lawyering focuses on the unique circumstances that
arise during representation of the poor or otherwise “subordinated” communities. The
core claim made by community lawyering advocates is that using traditionally practice
styles when attempting to broaden access to legal services for the poor fails to address the
unique needs of their lives.
While traditional models of the provision of legal services may be ineffective in
the service of the poor, they are difficult to escape: the hierarchical nature of legal
training and practice is deeply entrenched even among those practitioners most
committed to egalitarian political theory.
156
The powerful socialization of legal
education, and of the legal profession, often works at cross-purposes from the goal of

Other Means, 98 Harv. L. Rev. 1667 (1985); Gerald P. Lopez, Economic Development in the Murder
Capital of the U.S., 60 Tenn. L. Rev. 685 (1993); Gerald P. Lopez, Lay Lawyering, 32 UCLA L. Rev. 1
(1984); Gerald P. Lopez, Reconceiving Civil Rights Law Practice: Seven Weeks in the Life of a Rebellious
Collaboration, 77 Geo. L.J. 1603 (1989) [hereafter Lopez, Reconceiving Civil Rights Practice]; Gerald P.
Lopez, Training Future Lawyers to Work with the Politically and Socially Subordinated: Anti-Generic
Legal Education, 91 W.Va. L. Rev. 305 (1989); Gerald P. Lopez, The Work We Know So Little About, 42
Stan. L. Rev. 1 (1989); Lucie E. White, Collaborative Lawyering in the Field? On Mapping the Paths from
Rhetoric to Practice, 1 Clin. L. Rev. 157 (1994); Lucie E. White, Goldberg v. Kelly on the Paradox of
Lawyering for the Poor, 56 Brook. L. Rev. 861 (1990); Lucie E. White, Mobilization on the Margins of the
Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. Rev. L. & Soc. Change 535 (1987-88) [hereafter
White, Mobilization on the Margins]; Lucie E. White, Paradox, Piece-Work, and Patience, 43 Hastings L.J.
853 (1992); Lucie E. White, Representing the "Real Deal," 45 U. Miami L. Rev. 271 (1990-91); Lucie E.
White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38
Buff. L. Rev. 1 (1990) [hereafter White, The Hearing of Mrs. G.]; Lucie E. White, To Learn and Teach:
Lessons from Driefontein on Lawyering and Power, 1988 Wis. L. Rev. 699 (1988) [hereafter White, To
Learn and Teach].

156
GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO’S VISION OF PROGRESSIVE LAW PRACTICE 5
(1992).

110

providing respectful and effective representation to subordinated groups.
157
Both
explicitly and implicitly, this socialization indoctrinates new practitioners with a raft of
views about what lawyers do and the most appropriate ways in which to do it, all of
which are presented with the same insistent necessity.
As explored above with respect to the Private Attorney General model,
practitioners who attempt to create new models of practice run the risk of being censored
as unethical by the legal profession. This is so even when the rejection is premised on a
belief that entrenched practices, and the ethical codes that support them, are based on
ideologies antithetical to context sensitive and morally informed models of practice. The
view of legal professionals as obligated to promote the public good is often promoted as a
shared norm of the profession. However, explicit commitment to this ideal as a core
functional goal of legal practice is rare, and it is almost exclusively invoked as a guiding
ideal at ceremonial occasions.
158
Strenuous adherence to a practice measured against this
goal is often viewed as naïve or morally suspect.
159
When conflicts arise between
standard practices and those motivated by ideals of service, professional regulatory
bodies appeal to internal codes of professional ethics for authority. Such appeals

157
Id., at 4. See also Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. Legal
Educ. 591 (1982).

158
See Scheingold & Sarat, Something to Believe In, at 57-58; Robert W. Gordon, The Independence of
Lawyers, in Lawyers’ Ethics and the Pursuit of Social Justice: A Critical Reader 66 (Susan D. Carle ed.,
2005).

159
As Gary Bellow laments, “[w]hat has always puzzled me in my efforts to teach and recruit other lawyers
to this perspective is the often made claim, and related unease in less articulated reactions, that there was
some deep impropriety connected with our view of how and to what ends our legal skills should be
employed. Law should not be practiced, used, or instrumentalized in this way, it was said. [citations]”
Gary Bellow, Steady Work: a Practitioner’s Reflections on Political Lawyering, 31 Harv. C.R.-C.L. L.
Rev. 297, 301(1996).

111

inevitably depend, at least implicitly, upon ideological views that may seem at variance
with an ideal of egalitarian service. The implicit suggestion that these rules are entailed
by uncontroversial ethical requirements of professionalism can seem deeply suspect.
The day to day reality of legal practice with subordinated groups often takes place
at a great remove from the arenas where rules of professional ethics are helpful guides to
practice. In fact, such rules often create obstacles effective and helpful work for
disempowered clients. However, while various critical appraisals of professional norms
have developed and evolved into alternative models of how a legal practitioner should
work, there is no separate set of context sensitive ethical guidelines for this type of work.

A. Historical Antecedents of Community Lawyering Model
The inspiration for new models of poverty law pratice grew out of the particular
historical circumstances in which legal aid for poor people first became widely available.
The first large-scale expansion of free legal services to the poor occurred during the
1960s. The effort to provide such services was initially supported by funds from the
Office of Economic Opportunity and the subsequent creation of local legal aid programs
under the auspices of the Legal Services Corporation.
160
The intense demand for such

160
See Gary Bellow, Turning Solutions into Problems: The Legal Aid Experience, 34 NLADA Briefcase
106, 106 (1977) (Stating that in 1965, when Sergeant Shriver committed 19 million dollars to fund legal
services for the poor, less than .2% of all money spent on civil cases in the United States went to people
unable to pay for an attorney.). The Legal Services Corporation Act created an independent non profit
corporation with the goal of delivering legal services through both local and neighborhood-based programs
and in specialized litigation centers. Id.

112

services immediately put strain on the systems designed to provide them.
161
The
attorneys working with individual clients in neighborhood offices were forced to carry
extraordinarily large case loads.
162

In order to rationalize the work and develop strategies to help more people,
separate offices were created where attorneys pursued impact litigation that addressed
institutional and group problems.
163
This divided structure created problems in terms of
the quality of services provided in neighborhood offices. Although the attorneys staffing
the local offices were young and idealistic they were among the least experienced
attorneys in the organization.
164
The pressures created by large caseloads were
exacerbated by a lack of mentoring by experienced attorneys, many of whom worked
separately in the satellite offices working on litigation and policy change.
165
The
resulting level of services in the local offices left much to be desired: cases were often

161
Stephen Wexler, Practicing Law for Poor People, 79 Yale L.J. 1049, 1049(1970) (noting the disconnect
between the profession’s professed aspiration to provide help for all poor people who need lawyers and the
fact “that there are too many poor people seeking or in need of aid to help them all."); Bellow notes that in
1977 the expenditure of funds for legal services meant the availability of one lawyer for every 9062 poor
persons, compared with one lawyer for every 430 non poor persons in the U.S. See Bellow, supra, note 5,
at 110.

162
Wexler, supra, at 1049.

163
Bellow, supra, 108-09 (describing the way in which legal services offices were organized).

164
Id. (the most experienced lawyers often worked in the support offices and so were unavailable to mentor
younger attorneys).

165
Id. See also Gary Bellow, Legal Aid in the United States, 14 Clearinghouse Rev. 337, 342 (1980).
(positing that large case loads, clients with complex life problems and inexperienced lawyers without
mentors leads to lawyers convincing themselves and their clients that nothing more than a routine
settlement can be accomplished, and that additional research is unnecessary since the settlement represents
all that could be achieved).

113

handled quickly and mechanically;
166
clients were moved through the office quickly with
little input into the process of solving their problems;
167
clients’ problems were narrowly
framed to fit within the areas most familiar and accessible to the attorney;
168
and
agreement to settlement was heavily encouraged.
169
Not surprisingly, clients felt
removed from the process and were often mystified by the results of the purported
resolutions to their problems obtained from such service providers.
170

Yet the forces that brought about this type of service were quite formidable.
Since legal aid attorneys were the only available service providers for the poor, they
knew that turning clients away might create worse outcomes than accommodating all
comers regardless of the effects which that choice had on their practice style.
171

166
Bellow stated that “Problems presented by clients in legal services offices by and large are dealt with
routinely and perfunctorily. If a case is not considered to be a legal problem, a referral is suggested. There
is no follow-up to see if the client actually got to the referral agency after the client is referred.” Bellow,
Turning Solutions into Problems, supra, at 108. See also Lopez, supra, at 1-10.

167
Bellow writes, "The definition of the client's problems and the 'best' available solutions are not mutually
explored and elaborated; they are imposed by the lawyer's view of the situation and what it possible within
it. In most discussions between lawyer and client, the lawyer does almost all of the talking, gives little
opportunity for the client to express feelings or concerns, and consistently controls the length, topics and
character of the conversation." Bellow, Turning Solutions into Problems, supra, at 108.

168
"The corollary of this limiting mode of inquiry is that the only problems handled by the lawyers are
those actually presented by the clients. Thus, if a client seeking a divorce has been defrauded in purchasing
consumer goods, ... the lawyer will not initiate inquiry into such problems. There is no concept of a 'legal
check-up' in legal services practice. Indeed, many clients actually feel discouraged from discussing other
possible legal difficulties." Id. at 108.

169
"[A] surprising number of clients are inappropriately 'helped' to recognize that settlement is the best
course to follow." Id. at 109.

170
Id..

171
“The legal aid bar, which is subsidized, after all, to serve the community, feels it must respond to this
need by taking many, many more cases than can be carefully, aggressively handled. The patterns of
practice that emerge are the 'best that can be done' under these circumstances." Bellow, Turning Solutions
into Problems, supra, at 110. See also Lucie E. White, Subordination, Rhetorical Survival Skills, and

114

Similarly, faced with the prospect of no help at all, many clients would choose less than
ideal services over none at all.
172
Although rules of professional conduct clearly prohibit
a lawyer from taking on more clients than they can serve well,
173
the alternative to doing
so in the face of such great need was obviously not an appealing choice either.
Further, the people who came to legal aid offices had already had their vision of
law and their relation to it shaped by an array of forces that most young attorneys had
little or no experience with.
174
The extent of relationships that low income people
develop with government bureaucracy as part of their daily lives profoundly affects the
way they view the law.
175
The models of interaction with institutions with which the

Sunday Shoes: Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1, 22-24 (1990) (discussing the pressures
felt by a legal aid attorney to provide services for anyone in extreme need).

172
"It is posited that given the need, most recipients would rather receive a little help than none at all.”
Bellow, Turning Solutions into Problems, supra, at 110.

173
See Model Rules of Prof'l Conduct R. 1.1, 1.3 (2003). See also Bellow, Turning Solutions into
Problems, supra, at 110 ("The legal profession's ethics insist that a lawyer not take more cases than he or
she can reasonably handle....").

174
Describing the first wave of legal aid attorneys that arrived in East Los Angeles in the 1960s, Lopez
writes, "sometimes, they didn't seem to know very much at all about the local, statewide, and regional
institutions with which we presumed they might regularly deal - about the obviously relevant neighborhood
organizations and social service agencies." Id. at 2.

175
Shauna I. Marshall, Mission Impossible?: Ethical Community Lawyering, 7 Clinical L. Rev. 147, 156
(2000), pointing out that:

the clients served by [] early legal services lawyers, like low income clients today, had
relationships with legal institutions, (the law) which differed from that of paying clients. Many
low income clients have a regular, ongoing relationship with a rule laden government bureaucracy,
which affects their day to day lives – they make regular visits to agencies like housing authorities,
job training programs and social services agencies.

See also Austin Sarat, Power, Resistance and the Legal Consciousness of the Welfare Poor, 2 Yale J.L. &
Human. 343 (1990) (describing the way in which law engulfs the lives of people on welfare); Bellow points
out that low income clients who successfully receive public benefits do so by putting up with filling out
endless forms and very long waits, and by dealing with frustrating and inexplicable rules. Unfortunately
legal services offices confronted clients with many of the same obstacles:

115

early legal services attorneys were trained, and which they, as highly educated members
of society, were likely to be familiar were very different from those of their clients.
176

These differences were reinforced by the training of young attorneys. They were trained
to solve discreet problems of individuals.
177
Services provided by early legal aid offices
often simply replicated, on an untenable scale, the way wealthier clients had always been
represented.
178
Even when resources permitted sufficient attention to individual cases,
traditional representation often proved insufficient: legal and bureaucratic issues pervade
poor people’s daily lives. Setting out to solve a discreet legal issue is, therefore, often
less effective than it might be for a wealthier client.
179
This point is made memorable by
Wexler’s observation that “[p]overty creates an abrasive interface with society; poor

Despite their commitment to avoid the kind of cautious, detached, client controlling service that so
many public bureaucracies - public housing authorities, welfare departments - seem to provide, my
guess is that, if one looked carefully, one would conclude that this is precisely the kind of service
our clients are receiving.

Bellow, Turning Solutions into Problems, supra, at 110.

176
Wexler points out “there are important problems of style, differences in income and education,
frustrations and anger about failures, and a host of social, cultural and psychological differences that tend to
divide rather than unite poor people and their lawyers.” Wexler, supra, at 1052. See also Lucie E. White,
From A Distance: Responding to the Needs of Others Through Law, 54 Mont. L. Rev. 1 (1993) (describing
the human, professional and biographical distances that separate us all and how that may particularly affect
an attorney-client relationship).

177
Lopez notes that, despite the fact that the lawyers of the 1960s and 1970s fashioned themselves radical,
"their idea of practice remained decidedly orthodox." See Lopez, Rebellious Lawyering, supra, at 2.

178
In Turning Solutions into Problems, Bellow emphasizes the traditional commitment of the practice of
law to individual representation. By "extolling personalized service of unique persons, [this traditional
model of practice] also insists on the separateness of each of the problems and clients with whom a lawyer
deals." Bellow, Turning Solutions into Problems, supra, at 119.

179
See Wexler, supra, at 1050-51 (pointing out that if the legal issue involves an agency with which the
low income client interacts on a regular basis, the resolution of the apparently discrete legal problem may
not provide much relief).

116

people are always bumping into sharp legal things.”
180
Given the multiple points at which
the law touches the lives of low income individuals, a model that insists on treating each
of their legal issues as discreet will often fail to address the real needs of the people who
are seeking out legal aid services. As Wexler describes it “[two] major touchstones of
traditional legal practice – the solving of legal problems and the one-to-one relationship
between attorney and client – are either not relevant to poor people or harmful to
them.”
181

Thus, the model of “Rebellious” or “Community” lawyering arose from a
landscape where: there were too few attorneys to deal with massive demand for legal
assistance;
182
the attorneys that were available were not sufficiently or appropriately
trained;
183
attorneys were working within a conception of legal practice that failed to seek
out and address the unique needs of the people they were serving;
184
and there was a
huge personal and cultural gulf between the lawyers and their clients in terms of
experience and world-view.
185
Community lawyering attempts to improve the work of
lawyers practicing law with subordinated client populations. The proponents of the
model are forced to grapple with the difficulties of putting theory into practice in the

180
Id., at 1050.

181
Id., at 1053.

182
Bellow, Legal Aid in the United States, supra, 342.

183
Id.

184
Bellow, Turning Solutions into Problems, supra, at 119.

185
Wexler, supra, at 1052.

117
odes?
complex world inhabited by poor or otherwise disempowered people. Practitioners also
face difficult and sometimes unexpected challenges from traditional professional ethics.
People seeking to live their ideals through their professional practices often end up
constrained by professional ethics in ways that a more traditional, and less self-
consciously public-interested practitioner, never does. The press of these constraints
force the question of whether these points of conflict expose a fault in the practice model
or a failure of prevailing ethical rules. In turn, this raises the question of whether existing
ethical codes thwart the most effective and appropriate methods of practicing law for
subordinated peoples? If so, should the rules be changed or expanded to include alternate
norms for non-traditional practices? Alternately, if the current ethical rules are worthy of
deference, can community lawyering be practiced in a way that implements its singular
values without running afoul of the ethical c
As will become clear below, there is another way in which community
practitioners set themselves apart from their peers: the lives they lead are shaped and
constrained in a uniquely pervasive way by the choice to practice law in this way. The
kind of commitment exhibited by adherents to the community lawyering model (or at
least their aspirations for how they practice) is informed by something close to the
traditional idea of professional vocation as a calling. Religious vocation has maintained
the closest connection to this type of professional commitment in contemporary society.
The model of religious vocation, with its ethos of self-effacing and humble service, often
parallels the critical model of legal practice that we will examine below. However, while
religiously committed lives have long included elements of self-sacrifice and denial, this

118

model of legal professionalism represents a significant departure for lawyers who, as a
group, have traditionally been accorded high social status and material success.
Community lawyering doesn’t just describe “best practices” for the public interest
attorney, it also purports to offer possible paths to a meaningful life in the law and as a
professional within the larger community.
186
Not all of them are described in ways that
will come easily to or be possible for even the most dedicated lawyers. But that perhaps
is the point: models of practice for those who would subvert society’s traditional power
structures in the interest of social justice plot a difficult course that is tough to follow for
very long. Even an initially non-political commitment to service will almost of necessity
turn to politicized engagement when that commitment is conceptualized within this
model [especially the first.] As Gary Bellow puts it:
Social vision is part of the operating ethos of self-conscious law practice. The
fact that most law practice is not done self-consciously is simply a function of the
degree to which most law practice serves the status quo. Self-conscious practice
appears to be less important, and is always less destabilizing, when it serves what
is, rather than what one ought to be.
187

Lawyers are trained to be elite functionaries of the governing class;
188
taking that
training and turning it to the service of justice for those oppressed by the current order
cannot be easy. It is difficult personally, but more essentially, it pervasively subverts role

186
Anthony V. Alfieri, Practicing Community, 107 Harv. L. Rev. 1747, 1762- 64 (1994) (book review).

187
Bellow, Steady Work: A Practitioner’s Reflections on Political Lawyering, 31 Harv. C.R.-C.L. L. Rev.
(1996) at 301. See also Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. Legal
Educ. 591 (1982).

188
Lopez, supra, at 52 (“In requesting a lawyer’s help, a client not only jeopardizes his sense that he can
manage on his own but exposes his way of life to an outsider – worse still, to a professional member of a
subordinating culture, a representative licensed by the state”).

119

expectations; done well it can become radically politicized. Nevertheless, in the end, the
practice of law can’t be dictated by theory alone. Too much is dependent on the personal
qualities and interpersonal abilities of individual practitioners and the contingent events
and complex individuals they meet face-to-face on a daily basis.

B. Gerald Lopez’s Rebellious Lawyering
Gerald Lopez created the seminal text for the community lawyering movement.
His book, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice, is
both a critical look at the practices of progressive lawyers and a prescription for change.
As developed by Lopez, community lawyering challenges lawyers to rethink and recreate
their roles within the communities they serve; argues against focusing on solutions to
isolated individual problems; and challenges the idea that impact work is effective or
helpful if disconnected from the guidance of the communities it will ultimately affect.
Lopez sees most public interest lawyers as stuck in the model of traditional, what he
terms “regnant,” law practice. He argues that even the most dedicated and celebrated
poverty law practitioners tend to give in to “the regnant idea of practice,”
189
a vision of
practice that largely replicates conventional practices, priorities, habits, and beliefs about
the types of knowledge and skills that a lawyer needs and what it means to be good at
what they do.
190

189
Lopez, supra, at 23.

190
Id., at 2, 23. See also Wexler, supra, at 1049:

120
people.
by various sources of cultural conditioning to engage professionals with an unhealthy

While his concerns are sweeping - directly challenging the practice methods of
most poverty law and civil rights practitioners - Lopez’s argument isn’t an attack on the
dedication or idealism of individual attorneys.
191
Rather, it serves as a touchstone text
for ongoing reflection about how one practices law in the interest of disadvantaged
192

Lopez argues that progressive lawyers act in ways that often disempower the
communities they seek to help and disrespect the people whose dignity they believe they
are protecting.
193
He sees these facts as resulting both from their socialization during
legal training and because they unconsciously act in accord with popular ideas of what
lawyers do and contribute to subordinated communities. Lopez argues that this
socialization affects both lawyer and client and that clients are antecedently conditioned

While most of these young lawyers understand that there will be a different tone and style in a
poverty practice, they expect their role as a lawyer to be much the same as that of a traditional
practitioner. They intend to – and by and large they do – practice law in the traditional model,
except with poor people as clients. Unfortunately, the traditional model of legal practice for
private clients is not what poor people need; in many ways, it is exactly what they do not need.

191
Id., at 9.

192
Lopez is a professor of clinical legal practice at New York University and he takes pains to tailor his
exposition to law students looking for an ideal of public interest practice. He presents his model as a guide
to reflection for law students and beginning practitioners that are seeking to square their idealistic vision of
a legal vocation with a legal landscape that is in many ways inhospitable to ongoing idealism. Clearly too
he seeks to energize seasoned public interest practitioners to rethink and reform the way they work and how
they conceive of what they do as professionals. For both groups his model presents not only a challenge,
but also a possible source of meaning, strength, and redemptive community with the people whose lives
their professional practice engages. Lopez at 9, 11-12, 25-29; See Anthony V. Alfieri, Practicing
Community, 107 Harv. L. Rev. 1747, 1752, 1764 (1994) (book review).

193
Id., at 1751 (exploring Lopez’s “struggle to integrate theory and practice”).

121

level of deference.
194
Lopez thinks it a pernicious truth that this conditioning comes as
much from lawyers training their clients into submission as from other sources.
195
He
argues that lawyers tend to train their clients because they assume that they are the only
competent actor in an interaction and that their skill set is the only one applicable to a
problem.
196
He also argues that attorneys distort the stories of their clients by forcing
them into forms that are relevant for legal procedures, thereby undermining clients’
understanding of their own problems and preemptively discounting their beliefs about
how their situation could be improved. It is this regnant conception of professionalism
that even the most well-intentioned students have socialized into them in law school,
through popular representations of lawyers, and by their own interactions with
professionals.
197
Lopez argues that:
Everyone who enters the fight for social change must contend with this idea of the
lawyer for the subordinated that reigns over the contemporary practice of trying to
change the world. This idea defines a lawyer’s connection to her job, to what she
knows, to those who work with and around her, to the institutions in which she
functions, and to the society she desires to change. . . . If you struggle to change
the world, you decide in small ways every day whether (like most) to acquiesce in
the idea’s reign, or whether . . . to elaborate a different idea of practice.
198

194
Lopez sees the ideal model for this interaction as one of exchange between two teachers and two
students in which the lawyer and client should both assume the roles of teacher and student, learning about
the other's expertise, challenging each other, raising questions, and offering solutions. Lopez, supra, 52-53.

195
Id., at 25.

196
Id. (“To do their job well, professionals operating within the regnant idea regularly tutor subordinated
people on how to behave and think when seeking help from lawyers”).

197
Id., at 25-26.

198
Id., at 23.

122

C. Theoretical Foundations
Seeking to delineate a method of escape from these counterproductive tendencies,
Lopez’s work is suffused with a radically divergent view of the relationship between the
professional and those with whom they work. He builds this model on the work of Paolo
Freire. Freire was a Brazilian educator and theorist of adult education whose work
sought to link educational practice and the liberation of subordinated peoples.
199

Freire’s thought is quite complex and any summary will inevitably dilute its
richness. What follows is a brief sketch that describes how Freire’s beliefs about the
proper role of educators working with oppressed people can serve as a model for
attorneys working with subordinated groups. Freire provides a largely Marxist analysis
of the relation between public interest professionals and the communities they seek to
serve: he argues that the class-based distance in world views between the groups is all but
unbridgeable. It could reasonably be argued that because his thought was developed as
an analysis of the interactions between professional educators and the impoverished
Brazilian illiterates they sought to teach, the distance is greater than that which we are
addressing. However, given the relatively rarefied social position of attorneys who work
on behalf of society’s most disempowered communities, the relationship may be roughly
analogous. Regardless of the exact relation, Freire’s analysis is quite compelling when
applied to the public interest attorney.

199
Freire, Paolo, PEDAGOGY OF HOPE, (2006); PEDAGOGY OF THE OPPRESSED, (2000).

123

Freire believes that professionals are precisely the group that has most deeply
internalized the societal values that dehumanize oppressed groups.
200
He argues that
even the most well-intentioned professionals have internalized beliefs in their personal
and social superiority so completely that to genuinely renounce them would threaten their
identities.
201
Whatever their conception of their mission in working with oppressed
people “[Professionals] are almost unshakably convinced that it is their mission to “give”
[people] their knowledge.”
202
This leads to a situation in which the agendas of
professionals inevitably “include their own objectives, their own convictions, and their
own preoccupations.”
203
Such objectives are often determined a priori or with limited
factual knowledge and almost inevitably antecedent to interaction with the “client”
community. Freire argues that before she can ever hope to work towards solidarity with a
community a professional must acknowledge and confront the difficult truth that her
goals may be motivated by the presumptuous and uniformed paternalism common to her
class.
204
Because attorneys are part of a class that benefits from the existence of
subordinated people, the belief of an individual attorney that she can act alone to end
such subordination is a delusion:
Although the situation of oppression is a dehumanized and dehumanizing totality
affecting both the oppressors and those whom they oppress, it is the latter who

200
Id., at 155.

201
Id., at 155-56.

202
Id., at 155.

203
Id.

204
Id., at 49.

124

must, from their stifled humanity, wage for both the struggle for a fuller
humanity; the oppressor, who is himself dehumanized because he dehumanizes
others, is unable to lead this struggle.
205

Freire argues that professionals who want to serve the poor inevitably tend to discount the
abilities of the oppressed due to their class status. He believes that when such
preconceptions lead to paternalism and “lack of confidence in the people’s ability to
think, to want, and to know . . . [the attorney] run[s] the risk of falling into a type of
generosity as malefic as that of the oppressors.”
206

A key insight drawn from Freire’s thought is that although public interest
attorneys may “truly desire to transform the unjust order; [] because of their background
they believe that they must be the executors of the transformation.”
207
Such a belief
dooms the efforts of the attorney, because a relationship:
which begins with the egoistic interest of the oppressors (an egoism cloaked in the
false generosity of paternalism) and makes of the oppressed the objects of its
humanitarianism, itself maintains and embodies oppression. It is an instrument of
dehumanization.
208

The best an attorney can do is work alongside a subordinated group.
209
As Freire puts it,
believing that one must do something for rather than with a community shows a fear and
distrust of people that undermines any attempt at connection and involvement and that is

205
Id., at 47.

206
Id., at 60.

207
Id.

208
Id., at 54.

209
Id., at 48.

125

itself dehumanizing:
210
“Attempting to liberate the oppressed without their reflective
participation in the act of liberation is to treat them [not as people, but] as objects which
must be saved from a burning building.”
211
Regardless of intentions, it is an aggression
against a community to show up with a preconceived message of salvation when you
haven’t engaged that community in determining its needs.
212
Because it is ultimately
dehumanizing to have your interests dictated to you, a professional hoping to empower
community actors must intensively and collaboratively interact with the community to
co-discover political priorities and goals.
213

This leads us to the insight that has the greatest effect on legal practice. Freire
argues that it is the community, rather than the professional, who has the greatest
knowledge of the nature of oppression and the importance of overcoming it.
214
However,
given their internalization of a low estimation of community members and their skills,
this is often impossible for professionals to accept. Nevertheless, both Freire and Lopez
are deeply committed to the belief that people have a strong sense of the biggest
problems they face even if they have trouble articulating them. Professionals must
engage the community to have any authority in assisting it: not only because without
connection and familiarity, purporting to speak on behalf of a community is illegitimate

210
Id., at 126-29.

211
Id., at 65.

212
Id., at 95.

213
Id., at 66-67, 80-81.

214
Id., at 45.

126

and immoral,
215
but also because outside actors are likely to incorrectly identify the needs
of the community or, as noted above, to pursue “their own objectives, their own
convictions, and their own preoccupations.”
216
Freire’s model of how to work within
communities “starts with the conviction that [the professional] cannot present [his] own
program but must search for this program” through engagement and humble consultation
with the community.
217

Creating authentic connections between highly educated professionals and a poor
community is tough: communicating effectively with people different than oneself takes
both humility and continuous self-examination and self-scrutiny.
218
However, creating
such connection is necessary, because, as Freire puts it, “[t]he man or woman who
proclaims devotion to the cause of liberation yet is unable to enter into communion with
the people, whom he or she continues to regard as totally ignorant, is grievously self-
deceived.”
219
Professional largess bestowed on passive community members benefits
them far less than actions of which they are a part. If community members have no say
in goals and no part in the process of change, actions a lawyer purportedly takes on their
behalf do nothing to empower them and such exclusion can obviously be both dispiriting

215
Id., at 130.

216
Id., at 155.

217
Id., at 124.

218
Id., at 60.

219
Id., at 61.

127

and disempowering.
220
It is not hard to imagine the insidious self-doubt sewn by being
told repeatedly that you are not a reliable interpreter of the circumstances of your own
life.
Freire argues that the presumption of professionals in unilaterally imposing
priorities and undertaking actions on behalf of communities constitutes its own form of
oppression.
221
Yet the steps necessary to guard against such actions impose a radical
transformation of the traditional relation between client and professional. Freire
describes this transformation in religious terms, asserting that professionals “ ‘die,’ in
order to be reborn through and with the oppressed.”
222
Further:
Conversion to the people requires a profound rebirth. Those who undergo it must
take on a new form of existence; they can no longer remain as they were. Only
through comradeship with the oppressed can the converts understand their
characteristic ways of living and behaving . . .
223

Although there are some obvious connections, Freire’s model clearly requires
significant translation to serve as a model for work as a public interest attorney in our
society. Lopez does a good job of elaborating what such a model would look like. As
will become clear below, his main emphases are the establishment of deep connections
between professionals and the communities in which they work and an absolute
commitment to collaborative and deferential determination of goals. To effectuate these
tenets, Lopez believes, professionals must overcome what he sees as the default stance of

220
Id., at 73.

221
Id., at 160.

222
Id., at 132-33.

223
Id., at 61

128

lawyers working with the poor: the assumption of an attitude of authority that results in
oppressive domination. In public interest practice with subordinated clients, the stifling
weight that such authority brings overwhelms any benefit that the assertion of
professional authority might have in other contexts because of the wide chasm of class-
based conflict in worldview and social understanding that exists between professionals
and the poor. Working within Lopez’s model requires disowning the assertion of
professional authority in favor of humility, openness, continual self-reflection and critical
evaluation of practice and process.

D. Regnant Description
Lopez describes what he feels is wrong with “regnant” practice through several
narratives. His explanation of the positive model he proposes also focuses less on
explicit argument than exemplary characterizations of attorneys that he views as model
professionals. Nevertheless, his commitments and cautions are gradually made explicit.
He starts by describing the experience of progressive legal services from the
perspective of one of the subordinated. He grew up in Chicano East Los Angeles during
the 1960s, and recalls “the first wave of self-consciously progressive lawyers” to enter his
community as monolithically white and male.
224
Their patterns of practice and
understanding of professionalism were very close to the traditional legal cultures that had

224
Lopez, Rebellious Lawyering., at 1.

129

historically been closed to and used against subordinated groups.
225
He describes these
lawyers as hamstrung by their inability to assimilate the culture and understand the needs
of the community they entered. This inability to bridge the gap between themselves and
the people they hoped to help undermined their efforts, and was often perceived by the
community as a lack of interest in closing the gap. Lopez suggests that perhaps the
problem was that the lawyers were actually unaware of how large the chasm was that
separated themselves and the community. Looking back, the main lesson Lopez draws is
that these practitioners’ effectiveness was impeded by their inability to grasp “the
relationship between [how they practiced] and what they hoped to change.”
226

He argues that progressive lawyers practicing in the regnant style continue to face
obstacles to their effectiveness because of the way they interact with clients. This occurs
in all types of public interest practice. Even when public interest lawyers try to act
differently, they face strong forces pushing them to default to regnant practice models.
Because of this fact, for many idealistic law students hoping to do public interest work,
the first encounters with the reality of public interest practice is experienced as a closing
down of the possibilities that such careers seemed to promise. Rather than concede that
the reality of legal practice is inevitably disappointing to idealistic initiates, Lopez locates
the problem in the compromises made by practitioners. As with most of the literature in
this genre, Lopez focuses his arguments around the relatively few types of practice sites
in which public interest law is practiced. The most common of these sites are those of

225
Id.

226
Id., at 5.

130
impact litigation, which normally proceeds according to a contemporary version of the
private attorney general explored above, and direct services work which focuses on the
representation of individual poor people. His descriptions make clear the ways in which
they share certain features of the regnant model of practice that ultimately undermine
their stated intentions and disempower the communities they seek to help.
As explored above, “impact” litigators working within the Private Attorney
General model can make large scale changes that help many people, thereby mitigating to
some extent the lack of representation for poor people. Nevertheless, the divisions that
occurred during the implementation of desegregation subsequent to Brown were minor
compared to the disconnections between attorneys currently working in this model and
the groups they purport to represent. The historical allure and continuing pull of this
model attracts attorneys who want to be agents for change, but as it is currently practiced
litigation in this model requires little actual connection to and no input from the
community one purports to represent. Attorneys can just think up novel legal attacks to
move forward goals that they see as important and develop the cases on their own. Such
attorneys need invoke the community only to the extent necessary to find a figurehead
plaintiff and often facts can be staged to create a good test case (which, needless to say,
moves the case even further from the actual facts of community members’ lived
experience.) Finally, the complexity of the litigation they have conceived creates a
ready-made justification for the lawyers to be completely insular in conducting the
litigation. After unilaterally choosing the topic, excluding community members from the
process of litigation exacerbates the lack of connection.

131

During the period when of the legal services corporation was on its firmest
footing, publicly funded lawyers often litigated aggressively for social change. This fact
has been used by opponents of government funded legal services for the poor to attack
them as inappropriately political. Such attacks are ill-disguised attempts to maintain the
powerlessness and subordination of the weakest groups in our society: the fact that such
attorneys aggressively pursued social reform illustrates that they were trying to advance
the interests of the constituency they had been explicitly charged with protecting.
Nevertheless, such social justice ‘impact’ litigation is also open to challenge on the
community model on the grounds that attorneys are unlikely to correctly identify the
most essential needs of subordinated communities. Even when they choose the correct
agenda, because such litigation often excludes the community at every stage, it provides
no impetus for collective community empowerment: the community cannot coalesce as a
coherent social entity if few or none of its individual members are invested in or
knowledgeable about what is styled as the community’s case. Aside from the
illegitimacy of wasting the goodwill other groups might have towards a community on a
possibly ill-advised project, the extreme paternalism inherent in such a model is obvious.
Direct services attorneys fall prey to equally insidious practices. Lopez describes
direct services attorneys who are committed to helping the poor, see educating the
community as part of their mission, and who indisputably possess deep sympathy for
their clients.
227
Nevertheless, much like the early legal services attorneys Lopez
remembers from his youth, these workers rarely attempt, much less succeed, in bridging

227
Id., at 20.

132

the cultural and class-based divisions between themselves and the community. All too
often, large workloads create isolation and reduce any effort to collaborate. Lopez
describes how one housing attorney falls into this trap:
because of time pressure and, frankly his own low opinion about the good sense
or intelligence of some of his clients, he hardly ever asks them to help him gather
information, to identify and choose among strategies, to read the materials he
prepares for them, to look at the law, to help fill out any of the forms, to take part
in (much less lead) meetings and negotiations.
228

His practice isolates him, even from other attorneys in his office,
229
and “he has only
minimal contacts with other social service groups in the community or with other people
in the community who are interested in housing issues.”
230
Such isolation is often
justified by pointing to the large numbers of people in need and questioning the relevance
of broad general engagement with the community.
231
However, the tunnel vision caused
by such a practice structure almost guarantees that attorneys will not cultivate
connections with their community. This isolation reinforces itself because “the more
hours [a direct services attorney works] just doing straight casework, the more helpful
(and beleaguered) he feels.”
232
The great threat in such a model is that once an attorney
has constructed a practice where he gains gratification and feels efficacious working
alone, when given the choice he would rather “solve poor peoples’ problems” for them,

228
Id., at 21.

229
Id.

230
Id.

231
Id.

232
Id., at 22.

133

to the extent it can be done, than engage in community work with less concrete and
measurable results.
233

The general outlines of Lopez’s characterizations are reflected throughout the
literature on public interest practice. The harried triage that inevitably results when
limited legal resources are deployed to solve the legal problems of individuals lead to
such patterns. Lopez argues, however, that such models are too tied to traditional views
of an attorney’s role to effectively aid poor communities. When public interest attorneys
eschew a broader conception of their role in and obligation to a community, Lopez
believes that, not only are the individual clients poorly served, but the attorneys
themselves forgo much of the richness and efficacy that is possible when subordinated
groups are empowered by fighting with a professional alongside them.
Although variants exist, practice consisting of either “impact” or “direct services”
work comprises much of the landscape offered to law students as possible models of
progressive legal practice. Public interested law students may be exposed to an array of
practitioners working in quite distinct communities, but nevertheless all working within
the closed spheres of either impact or direct services work. The implication is, implicitly,
though inevitably, communicated that such work is the only way to engage in public
interested professionalism. Lopez puts his finger on the uneasiness that law students feel
when trying to square their idealism with the drawbacks of these practice models:

233
Id. See also Bellow, supra, at 108-09 (describing legal aid programs where lawyers, believing that
clients are victims of an unresponsive system, do most of talking and lay out the solution); Wexler, supra,
at 1055-56 (stating that lawyers, due to their investment in their education, believe that they are the only
ones who can understand a client's problem and be effective advocates).

134

[Students] expect [their] vocation to animate and fit quite neatly into [their]
radical ambitions. Yet in exploring options and thinking about how through
[their] own work [they] can best help the world, [they] run up against a deeply
rooted conception of activist lawyers and activist lawyering that seems pretty
fundamentally at odds with [their] own gut sense of what it means to live out
[their] vocation.
234

The landscape of legal education provides little help in diagnosing the exact source of the
unease that students feel.
235
Lopez argues convincingly that the divide between the legal
actors working within these conventional models and the communities they serve
accounts for much of the dissonance apparent to new initiates.
None of the proponents of community lawyering fail to recognize that lawyers
with these practice styles often show exceptional dedication and commitment, and that
they feel as if this style of practice is thrust upon them by circumstances.
236

Nevertheless, the prevalence of these ways of working makes them all the more
pernicious because they take on the air of inevitability and the sanction of custom.
Despite the professed desire of progressive attorneys to act differently, Lopez argues that
these forms of public interest practice serve the psychic needs of many attorneys to view
themselves as valiant and heroic, and to minimize the abilities of their clients: he sees
these needs as direct outgrowths of the regnant idea of legal professionals.
The following list contains what Lopez views as essential elements of the regnant
idea of practice that he wants to overturn:
237

234
Id., at 23.

235
Id.

236
Id.

237
Id., at 24.

135
 Lawyers “formally represent” others.
 Lawyers choose between “service” work (resolving individual problems) and
“impact” work (advancing systemic reforms), largely dichotomous categories.
 Lawyers set up their offices to facilitate formal representation in service or impact
work.
 Lawyers litigate more than they do anything else.
 Lawyers understand “community education as a label for diffuse, marginal, and
uncritical work … and “organizing” as a catchword for sporadic, supplemental
mobilization (variations on sit-ins, sit-downs, and protests)
 Lawyers consider themselves the preeminent problems solvers in most situations
they find themselves trying to alter.
 Lawyers connect only loosely to other institutions or groups in their communities,
and almost always these connections focus on lawyers’ use of institutions or
groups for some aspect of a case in which they serve as formal representatives.
 Lawyers have only a modest grasp on how large structures – regional, national
and international, political, economic, and cultural- shape and respond to
challenges to the status quo.
 Lawyers suspect that subordination of all sorts cyclically recreates itself in certain
subcultures, thereby preventing people from helping themselves and taking
advantage of many social services and educational opportunities.
 Lawyers believe that subordination can be successfully fought if professions,
particularly lawyers, assume leadership in pro-active campaigns that sometimes
“involve” the subordinated.
 Lawyers do not know and try little to learn whether and how formal changes in
the law penetrate the lives of subordinated people.
 Lawyers understand their profession as an honorable calling and see themselves
as aesthetic if not political heroes, working largely alone to make statements
through their (more than their clients’) cases about society’s injustices.

E. Analysis of Regnant Ideas
Part of the interest in thinking about this list is that, although Lopez lays it out in
the manner of an indictment, many of these points may not sound troubling at all. Rules
about how to carry out of the formal representation of clients and when such
representation begins are enshrined in codes of ethics. The choice between direct service
and impact work seems (or has come to seem since the initiation of legal aid programs)
like a natural division of labor. Lawyers are highly educated and detail oriented and

136

often find it easier to take care of details themselves than to involve clients. And
competence as a problem solver is often central to a lawyer’s self-conception and self-
evaluation of her competence as a professional.
For Lopez, the problem with this model is that, even though its practitioners are
well-intentioned, the way they work inevitably recreates and reinforces the subordination
they seek to help their clients overcome. Most people have been socialized to understand
that the client is relatively passive in professional relationships. When a legal client
communicates their situation in ways a lawyer thinks are irrelevant, the lawyer helps train
him by defining what count as “legally relevant” facts as. This shaping of the lawyer-
client interaction discounts the client’s evaluation of the essential aspects of their story or
experience and explicitly denies their perception of their own situation.
238
This shaping
of the interaction may be seen by the lawyer as necessary to save time or stay focused,
but such shaping denies the lawyer the chance to learn more about the experience of the
client and denies the client the chance to help decide on the best (and possibly non-legal)
course of action for addressing their situation.
239
The lawyer misses chances to create

238
Id., at 53:

Together with the client, the lawyer must combat monopolized conversations without abandoning
her obligation to challenge her client – to critique as well as appreciate his understanding of his
situation, the legal culture, and the strategies he pursues. Yet at the same time, the lawyer must
guard against that element of the critique which squelches the client’s resourcefulness and
imagination: ‘You don’t fully understand the complexity of the situation, the rules by which this
game is played, or you wouldn’t be so outraged by that particular aspect of it.’ It is all too easy for
the lawyer to cut off approaches to or insights into a problem by writing off the client’s fury as
naivete.

239
Id., at 52:

137

new, more carefully tailored solutions because all problems are squashed into the legal
framework that seems appropriate – rather than looking at broad solutions, the attorney
sifts circumstances through a decision tree of technical defenses or possible affirmative
causes of action – neither of which include the client’s active participation in the
resolution of their problem.
In an article that anticipated Lopez’s position, Wexler argued that avoiding the
disempowering dominance of many poverty law practitioners should be a central goal of
progressive practice:
The hallmark of an effective poor people’s practice is that the lawyer does not do
anything for his clients that they can do or be taught to do for themselves. The
standards of success for a poor people’s lawyer are how well he can recognize all
the things his client can do with a little of his help, and how well he can teach
them to do more.
240

Drawing from Freire, Lopez expands on this point in imaginative ways. He argues that a
core competence of lawyering is “telling stories,” and that everybody has narrative skills
that can be brought to bear in legal contexts.
241
Allowing clients to articulate the critical
awareness of their circumstances and the obstacles they struggle against is more than just

In making his life available in his own terms and in understanding his life in other (including
law’s) terms, a client always teaches and always learns. Obviously, he instructs the lawyer about
his own practices; but he learns too, most immediately about what the lawyer needs to understand.
Obviously, he learns about how others, particularly those in the legal culture, perceive his
situation. But he teaches as well, perhaps about what those in the law take for granted or never
venture to learn – how it feels to experience the problem he faces, how he thinks it could be solved
most effectively, how exactly certain legal practices modify his life. As teacher and as student, a
client must both appreciate and critique, at once operating together with and in opposition to his
collaborator, the lawyer. In engaging in this collaboration, the client agrees to play and active role
in the resolution of what is often a crisis situation in his life. And both the lawyer and the client
must understand and accept the responsibilities that this effort demands.

240
Wexler, supra, 1055.

241
See Id., at 43.

138

an exercise: it provides insights that lawyers can develop with their clients as strategies
for change. Moreover, although this is rarely acknowledged, due to long and difficult
experience, the subordinated are skilled at survival strategies,
242
and they may also have
access to collaborative networks of family and community that can be marshaled to assist
them.
243
Tapping into such networks enables the community attorney to become much
more effective. Lopez argues that, intentionally or not, most community lawyers are
effectively closed to such client collaboration and input.
Lopez also challenges the idea that what lawyers can and should do is limited to
the arena of formal representation. Because he believes that competent representation
requires in-depth community knowledge, he views the presumption that lawyers only
make contact with the community after having assumed the role of its representative as
indicative of a deeply pernicious arrogance. Only after learning and listening to the
community in a broad variety of settings can an attorney clam competence to effectively
represent others.
244

The presumption that a lawyer is the natural leader in any situation prevents
exercise of the humility needed to gain community knowledge and therefore blocks the
fruitful collaborations with the community that can provide such knowledge. This
knowledge is essential because “impact” litigation designed without a deep understanding
of the needs and realities of the community is unlikely to bring about substantial change.

242
See Id., at 43-44, 50.

243
See Id., at 54.

244
See Id., at 54.

139

It is essential because direct service work undertaken without comprehensive knowledge
of the community is often blind to the facts necessary to find creative and effective
solutions to the problems community members repeatedly face. Most of all,
collaboration and community knowledge are essential because even if an attorney is
originally from a community or has some cultural affinity to or cultural competence
within it, the very fact of legal education creates a huge barrier to trust and
understanding.
245
No matter how close their experiences may be or may once have been
to the communities they serve, all practitioners need to relearn and reconnect with their
communities on an ongoing basis.
Because the success of any type of advocacy depends on connections with
institutions and groups in the community, these connections must be consistent and far
reaching. Nevertheless, the unfortunate truth is that civil rights litigators often have no
more connection with community groups than that required to occasionally mine them for
appropriate plaintiffs to slot into pre-conceived litigation.
246
For Lopez this practice is a
paradigmatic illustration of how lawyers in the regnant ideal can get so far off track in
their interactions with the communities they hope to help. If attorneys only show up to
find a plaintiff for a lawyer-driven case, the decisions about what are the most important
issues in the community and what are the best ways to solve them have necessarily been

245
Id., at 47.

246
See DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY, 317, 324-37 (1988) (acknowledging
the common use of such a tactic and providing a justification of attorney manipulation of clients on behalf
of cause.)

140

decided prior to involving and consulting the community.
247
Because of the often
unacknowledged gap between lawyer and community, the issues such litigation focuses
on are unlikely to be identical to those the community views as of primary importance.
In addition to the fact that this perverts the idea that an attorney is representing the
community (as opposed to her conception thereof), it wastes the limited legal and
political resources available to the community on issues of secondary importance. Even
assuming that the importance of a case should be determined not by the community but
by some external measure of the possible positive impact on the community, when
litigation priorities are made without community input legal novelty and complexity will
inevitably weigh too heavily and the more prosaic needs of the community not enough.
This line of thought takes us back to Lopez’s objection to the assumption of
attorney efficacy: because lawyers see themselves as the most competent problem solvers
in most situations, they tend to think it is unproblematic if the subordinated are only
tangentially related to the decision making process. Analogously, lawyers tend to assume
that bringing their professional skills to bear is always the most effective way to effect
social change. They often think it unnecessary to involve the subordinated even in
determining and defining the most important problems they face: if the answers seem
obvious from the outside, involving the community might “waste time” by bringing up
“irrelevant” [not susceptible to simple categories of litigation] and “unrealistic” [not
describing legally remediable causes of action] concerns.

247
Lopez, supra, at 55. This point is developed independently in William H. Simon’s, The Dark Secret of
Progressive Lawyering, 48 U. Miami L. Rev., 1099 (1994).

141

Although it rings true in several respects, Lopez’s critical examination of
progressive law practice is tough to swallow because the lawyers he is ultimately
criticizing have, despite any failings they may have, given up a lot to do what they do.
248

There is ambiguity in Lopez’s observation that public interest lawyers “understand their
profession as an honorable calling and see themselves as aesthetic if not political
heroes.”
249
This understanding is to some extent valid about even the most
unselfconscious holders of this self-conception: their work defines them and their lives
and they have sacrificed financial gain and prestige and held fast to their principles in
order to do the work they do. Nevertheless, Lopez argues that regardless of the extent of
their sacrifice or commitment, many poverty lawyers are “working largely alone to make
statements through their (more than their clients’) cases about society’s injustices,”
250

and that this focus on the lawyer himself as actor for good ultimately makes his self-
conception illusory. At its most dysfunctional, whatever gains the poor take from their
relationship with progressive lawyers come at a very high cost. As Alfieri puts it:
[What is it that] progressive lawyers give to subordinated people? The
conventional answer is rights. Lawyers give people their legal rights. The logical
correlate of rights is power, for judicially enforced rights constitute power. On
this reasoning, giving people their rights is empowering. What do progressive
lawyers take from subordinated people? The answer is dignity: the value of
independent action and speech. Lawyers take peoples dignity. The taking
deprives them of the opportunity to demonstrate – in private and public spheres –
their competence as autonomous, self-determining agents. That deprivation
denies people a vital component of their personhood (self-esteem and self-

248
Lopez, Rebellious Lawyering, at 381-82.

249
Id., at 24.

250
Id.

142

sufficiency) and denies communities a crucial element of their solidarity
(organization and mobilization.)
251

Acting for rather than with clients reinforces the self-conception of the
professional as hero and simultaneously reinforces the preexisting subordination of poor
clients. To become a truly empowering actor in the lives of subordinated people,
community lawyers therefore attempt to be very critical of the manner in which they
engage the community. This is not easy and we’ll see below that the practices such
critiques recommend aren’t necessarily compatible with current norms of ethical legal
practice.
252
The prescription that Lopez offers for progressive law practice is extreme, it
subverts traditional norms of legal professionalism and it is not a course that most people
will be able to follow even with the best of intentions and considerable effort.
253
Yet, for
those who can, it seems to offer a vision of legal practice that offers a possible path
towards a deeply enriching and redemptive sense of purpose and community or, in
Freire’s language, solidarity.
254

F. Positive Description of Community/Rebellious Practice
Lopez believes that no important and lasting change can occur unless the
subordinated themselves are core actors in making it happen. He therefore sees belief
education as an essential part of a community lawyer’s work. In the regnant idea,

251
Alfieri, Practicing Community, at 1751.

252
But the latter fact obviously shouldn’t preclude consideration of the model as the norms of professional
ethics may be (as argued in chapter one) ideologically shaped in ways that undermine their claim to
legitimacy.

253
Lopez, Rebellious Lawyering, at 381-82.

254
Alfieri, supra, at 1752.

143
which:
selves up to being educated by all those with whom they come in
contact

community organizing and education are marginal activities; for Lopez they constitute
the core of a lawyer’s role in fighting social injustice.
255
This conclusion echoes Freire’s
views of an educator’s role. Yet there are internal tensions involved in applying such a
vision to the legal context, as illustrated by the Wexler’s claim that:
Poverty will not be stopped by people who are not poor. If poverty is stopped, it
will be stopped by poor people. And poor people can stop poverty only if they
work together. The lawyer who wants to serve poor people must put his skills to
the task of helping poor people organize themselves. This is not the traditional
use of a lawyer’s skills; in many ways it violates some of the basic tenets of the
profession.
256

Organization, education, submission to the priorities set by the group rather than those
chosen by the attorney acting as unilateral decision-maker: these are not priorities
accepted (or at least not acted upon), by the regnant practitioner.
Lopez’s alternative to the regnant conception is what he calls “the rebellious idea
of lawyering against subordination.”
257
He describes this as a model of practice in
Lawyers must know how to work with (not just on behalf of) women, low-income
people, people of color, gays and lesbians, the disabled, and the elderly. They
must know how to collaborate with other professional and lay allies rather than
ignoring the help that these other problem-solvers may provide in a given
situation. They must understand how to educate those with whom they work,
particularly about law and professional lawyering, and, at the same time, they
must open them
, particularly about the traditions and experiences of life on the bottom and
at the margins.

255
See Id., at 52-53.

256
Wexler, supra, at 1053 emphasis added.

257
Id., at 37.

144
heir interplay with seemingly more mundane local affairs. At bottom,
the rebellious idea of lawyering demands that lawyers (and those with whom they
work) nurture sensibilities and skills compatible with a collective fight for social

This model obviously has lofty expectations and serious demands for its
practitioners. Lopez describes composite characters to illustration how these principles
might play out in practice. Not only do his model practitioners work in an extraordinarily
self-aware and conscientious manner, they also live within the communities where they
work, send their children to local schools, stay active in and integrate into the social and
grass-roots political life of their community, and refrain from presumptuously assuming a
right to lead these organizations. While the extraordinary individual model
practitioners he describes may make his model seem merely aspirational, there are some
general elements of the model that stand out aside from the remarkable individuals that
embody them: process and collaboration are valued highly; the tasks of defining what
problems to address, and of choosing the best strategies for change, must be undertaken

To move in these directions, those who would “lawyer rebelliously” must
… ground their work in the lives and in the communities of the subordinated
themselves, whether they work for local outfits, regional offices, or national
policymaking agencies. They must … continually evaluate the likely interaction
between legal and “non-legal” approaches to problems. They must … know how
to work with others in brainstorming, designing and executing strategies aimed at
responding immediately to particular problems and, more generally, at fighting
social and political subordination to build them, and not just for the purposes of
filing or “proving up” a lawsuit … They must appreciate how all that they do with
others requires attention not only to international, national, and regional matters,
but also to t
change.
258

259
260

258
Id., at 37-38.

259
Id., at 30-37.

260
Id., at 30.

145
e among
any ty
improve and decisions about the amount of resources appropriately spent on such

by the subordinated communities themselves; what counts as legal knowledge should be
understood expansively and formal legal training should be viewed as only on
m pes of practical knowledge that can be used to solve legal problems.
261

Other theorists of community lawyering emphasize distinct but related aspects of
this model. Yet all versions of Rebellious or Community lawyering emphasize the
necessity of collaboration between the attorney and client, as well as contact with and
utilization of the resources of the wider community,
262
as essential to overcome the
difficulties inherent in the relationship between professionals and the poor. The hope is
that by working to know the communities in which their clients live, rebellious
practitioners will be able to link the problems of individual clients to the larger struggles
of the community. Connecting with the community in multiple ways, many of which
may not appear relevant to legal work, eventually allows attorneys to form a broad and
reliable foundation for group representation and informed advocacy. Once the
community is involved in the work of poverty lawyers, especially those engaged in
impact litigation and law reform, the effectiveness of the remedies will hopefully

261
Id., at 38.

262
Wexler describes the allocation of power in this collaboration:

the control which poor people should exercise over their lawyer is much greater than that of
merely selecting among his proposals. Because he does know more about the possibilities in the
law, the lawyer should present new knowledge and options to his clients; but, because they know
what is helpful to them and possible for them, they can and must structure their own alternatives
and make their own choices.

Wexler, supra, at 1063.

146

strategies be focused more appropriately.
263
These benefits should occur as a function of
the greater reliability of issue characterization and prioritization that stems from careful
consultation with community members.
An essential aspect of this model in each of its iterations is a deep commitment to
learning to listen to clients.
264
For reasons similar to those emphasized by Freire
proponents of this model propose non-legal solutions proffered by clients may ultimately
bring about more sustained solutions than those coming from individual legal actions.
265

Such suggestions are precluded when lawyers work within the regnant model, and
therefore the problem of lawyer domination of clients and their choices is faced daily by
all poverty law practitioners.
266
An ongoing evaluation of the respective roles and power
balance of the conversation between attorney and client is essential, not just to avoid the
pernicious effects of lawyer domination, but because there is also real value created by
the improved understanding of client needs and the availability of solutions that the client

263
See Derrik Bell, Serving Two Masters: Integration Ideals and Client Interests in School Desegregation
Litigation, 85 Yale L.J. 470 (1976)(exploring source of push for litigation). It is also clear that in general
lawyers are perhaps too susceptible to the sexiness of “impact” work as a matter of personal interest and a
source of professional prestige.

264
See GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: MATERIAL FOR CLINICAL
INSTRUCTION IN ADVOCACY (1978).

265
Alferi, The Antinomies of Poverty Law (emphasizing the need for the poor and their lawyers to develop
“critical consciousness” and engage in meaningful discourse about their problems, the contexts in which
they arise, and the relevant political, social and economic forces).

266
See Paul R. Tremblay, Theoretics of Practice: The Integration of Progressive Thought and Action:
Rebellious Lawyering, Regnant Lawyering and Street-Level Bureaucracy, 43 Hastings L.J. 947, 952 (1992)
(exploring how rebellious lawyering attempts to overcome "the interpersonal domination of clients by
lawyers" inherent in traditional lawyering).

147

will bring to the table if they have a chance.
267
This shift in the balance of conversation
also allows clients to expatiate on how the immediate issue they face relates to other
aspects of their lives, giving the attorney a fuller understanding of how this problem
intersects to the larger struggles of the client and other members of their community.
268

Better listening and greater sensitivity to the overall situation of clients should
provide lawyers with better knowledge about the problems shared by members of the
community. Because of the attorney’s unique position he may be able to recognize
patterns in what to clients seem unique circumstances. Facilitating connections between
clients with similar problems is, therefore, an essential aspect of rebellious practice.
269

These connections help clients overcome the feeling of isolation that is often found
among legal aid clients.
270
One important method of creating such connections is
through public education outreach.
271
To be effective, public education campaigns

267
See DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT-
CENTERED APPROACH (1977); DAVID A. BINDER, PAUL BERGMAN & SUSAN C. PRICE, LAWYERS AS
COUNSELORS: A CLIENT-CENTERED APPROACH (1991). For a defense of client-centered lawyering, see
Robert Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 Ariz. L. Rev. 501 (1990).
But see Bellow, Steady Work, 303-304:

influence is a fundamental element of respect and mutuality, not its adversary. What distinguishes
alliance in political lawyering is the social distance that often must be bridged between lawyer and
client, and perhaps, the greater danger of excessive influence. Only a conception of clients as
much weaker and manipulable, however, dictates a level of subservience that leaves the lawyer
without her own vision and stake in the outcomes being pursued.

268
See Bellow, Turning Solutions into Problems, supra, at 108 (discussing finding that clients coming to
legal services offices were asked only about the specific problem which brought them to the office).

269
See Tremblay, supra, at 953.

270
Wexler argues that traditional law practice actually injures low income clients by keeping them isolated
from one another. See Wexler, supra, at 1053.

271
In Rebellious Lawyering, Lopez describes a group workshop set up to assist immigrants applying for
legal status. The facilitators developed a model for processing immigration claims, and trained lay

148
ngoing problem.”
273

should grow out of the attorney’s sustained involvement in the community. This
involvement will assure that the subjects of the campaigns address needs that are actually
perceived as pressing by the community.
272
Coming together to take part in such
campaigns “allow members of the community to talk about common problems, to begin
to analyze and understand systemic inequities, and to look into the possibility of
concerted action as a means of taking on an o

G. Summation of Descriptive Section
While Lopez cautions lawyers to be circumspect about their tendency to
overvalue “impact” work over work more closely tied to the community, it is obviously
important to use tools with far reaching effect in order to help bring about more essential
changes in the institutions and structures that constrain the lives of poor people.
274
Yet it
is clear that change that strikes at the roots of clients’ problems can’t be generated by
lawyers alone. The most relevant legal and non-legal strategies will always grow out of
the knowledge that community members possessed about their neighborhoods and their

volunteers to run the workshops. The workshop allowed more applicants to be assisted than the traditional
model of individual appointments. In addition, the applicants established relationships with one another.
See Lopez, Rebellious Lawyering, supra, at 32.

272
In a case study presented in Lopez's Rebellious Lawyering, a young rebellious lawyer argues against
going ahead with a public education series because it does not involve the community sufficiently. The
lawyer recognizes that an effective public education program must be designed to address needs that the
community has identified and should have community members in the planning and production of the
sessions. See id., at 151-53.

273
Marshall, supra, at 161-162. See also Alfieri, The Antinomies of Poverty Law, supra note 3, at 684
(explaining that the individual approach to poverty law deprives clients of coming together to talk about
their problems).

274
See Marshall, supra, at 160-61, (commenting on the challenges posed by Wexler and Bellow).

149
institutions. The goal of meeting the needs of individual clients while simultaneously
forging stronger connections with the community does create a significant challenge.
Lawyers working in this model must spend time gaining understanding of all types of
informal networks and civil society organizations within the community. They have to
help bring community members together into coalitions that address common problems
and facilitate the interaction among constituent members of these groups. These tasks
will often require work of a non-legal nature that may be uncomfortable or difficult for
attorneys to perform.
The initial appeal of the community lawyering model stems from its respect for
individuals and its acknowledgment that the poor are resourceful in making their way
through complex bureaucratic interactions. Also, it quite reasonably depends on the
premise that poor people have a pretty good idea what their problems are and how best to
address them, even if they lack the means to carry out such action. These are important
insights that can help empower communities and enhance the framing of issues.
Nevertheless, there are also clear difficulties with a model that reduces the traditional
authority and decision making preeminence of an attorney while simultaneously requiring
that she possess a range of truly extraordinary interpersonal and organizational
capabilities.
First, it is difficult for well-educated and driven attorneys to constantly defer to
the direction and opinions of the individual or group they are working with. Regardless,
such skills relate to the traditional lawyering skill of listening, and the humility will
clearly do most lawyers good. Less realistic is the expectation of so much from people

150
who are just lawyers: lawyers are not teachers, social workers, managers, or professional
organizers. One area of quite serious difficulty in the model is that, even as it attempts to
avoid the overvaluing of the professional, it seems to assume that lawyers are able to
easily attain the broad skill set required to implement its values. Another challenge is the
threat that the core idea of professionalism that lawyers share with other traditional
professions – independence, authority, autonomous decision making – is eviscerated by a
model that requires such complete deference to the will of clients or the collective will of
the client community. Leaving aside the significant epistemological difficulties in
determining such intent, it is not clear that such extreme deference is compatible with any
coherent notion of work as a professional. These larger difficulties with the notion will
be explored more fully bellow. First, I will examine the specific areas where a
practitioner working in this way runs afoul of current ethical norms.

H. Ethical Issues
There is an essential instability to the idea of community lawyering as presented
by Lopez: the breadth of his conception of “community” eviscerates any workable model
of representation, a plausible model of which is essential to understanding a lawyer’s
professional relation to other people. On the one hand, his model appears to de-
emphasize a lawyer’s possible role to such an extent that she disappears as an actor and is
only utilized by constituencies within the community as a resource to carry out their
projects (sans critical independent evaluation of their overall worth). On the other hand,
if the lawyer retains enough independence to be an actor within the community - a

151
“representative” capable of shaping and promoting programmatic interests - it is difficult
to see how such a role avoids the pitfalls of the regnant conception unless she becomes
the legitimately endorsed political leader of the community she purports to represent.
The concept of Community, as used within the lawyering literature is unstable because no
relevant community of interest is monolithic. Communities are composed of individuals
and these individuals can be variously characterized as composing one or more entities
based on organizational, class, or interest-based relationships. Additionally, no element
of the community is static over time or with respect to situational reactions.
Any time an attorney represents “the community” on an issue she will have future
obligations not to represent interests adverse to it. Once one acknowledges the temporal
instability and ideological diversity inevitably present within any group of individuals
organized to represent “the community” with respect to an issue, the difficulty of
maintaining representation relations begins to emerge. The interests of individual actors
or community components may coalesce for a moment, but will inevitably change over
time.

I. Competing Community Objectives
There are several distinct problems generated by trying to find a stable space
within which to work as an independent actor in the community. Most of these arise as a
result of the fact over time, that working for a broadly defined community will commit
the attorney instances of representation in distinct matters. Yet these temporally distinct
representations will inevitably involve different people and differently organized

152

elements of the community. Not only will an attorney have to choose sides in debates
(which will often determine the agenda for the community group by forcing it to go along
or lose representation) but over time an attorney may find himself in conflict with people
that he has directly represented on other issues, who see him as their lawyer, and who
would rightly feel betrayed by his active opposition to their positions.
The initial issue is how to navigate diverging views about the proper ends of
community actions. Once formal representation is undertaken, an attorney is bound to
pursue the ends chosen by the client. However, a community lawyer will be integral to
shaping community ends because she is often instrumental in shaping the relevant
community itself, and in helping it to coalesce around or define itself through a given
issue. Often, an attorney’s evaluation of the best interest of the community may diverge
from the group, or the group may splinter into factions each of which expects the
attorney’s support. While the attorney can attempt to convince group members that her
evaluation of the situation is correct, a withdrawal from representation or failure to
continue representation on subsequent projects may ultimately be her only option if she is
convinced that the group’s goals are ill-advised. Such a withdrawal may jeopardize her
position within the community.
One might argue that assertive promotion of one’s own positions shows solidarity
in political struggle.
275
The egalitarian aspiration implicit in such a position is
commendable, but it discounts the very real problem of lawyer domination that

275
Bellow, Steady Work, at 303-304 (arguing that “influence is a fundamental element of respect and
mutuality, not its adversary”).

153

community lawyering seeks to avoid. Assuming an uncommon modesty and self-
awareness about her possibly outsized influence on a group’s decision-making process,
what does an attorney do if a community group sets forth an agenda to do something she
sees as negative for the community? Given her past commitment to the members of the
group and also to their self-determination of goals, how does she react to this?
Such a bind could arise in a number of ways: working for a parents organization
who later challenges a school district action that she believes now serves the best interests
of the community [perhaps she initially represented them in a challenge against a school
district policy but when, many years later, the composition of the neighborhood changes,
they want to challenge the district’s newfound emphasis on bilingual education]. Does
commitment to represent a community entail that an attorney accept that a client is
always the best judge of ends (or at least always knows more than the attorney), or
believe that the public good is monolithic and easily knowable?
Once an attorney enters litigation with a formal attorney-client relationship, future
interactions are constrained by the rules of professional conduct. Model rule 1.2 states
clearly that the client chooses objectives and ends.
276
Rule 1.2 defines the attorney-client
relationship as one where “a lawyer shall abide by a client’s decisions concerning the
objective of representation.”
277
The relevant comment explains that this language should
be read as “confer[ing] upon the client the ultimate authority to determine the purposes to
be served by legal representation within the limits imposed by law and the lawyer’s

276
Model Rules of Prof'l Conduct, R. 1.2(a) (2003).

277
Id.

154

professional obligations.”
278
While continued representation of group does not imply
endorsement of the group’s agenda,
279
a lawyer is constrained from serving their own
interest at the expense of their client.
The option of refusing future representation remains, since an attorney is not
obligated to subvert his individual professional judgment in the service of clients
goals.
280
This has several perhaps unintended effects. First, it may leave the group
without an advocate, thereby ending the advocate’s earlier reputation as their champion.
Second, it could have the pernicious effect of determining their agenda by forcing them
to acceded to the attorney’s wishes. Continuing representation so as to push an agenda
contrary to the will of community members would inevitably destroy the attorney’s
position as an honest actor within the community. However, when one disengages from

278
Model Rules of Prof'l Conduct, R. 1.2(a) comment 1.

279
See Rule 1.2 (b) “A lawyer's representation of a client, including representation by appointment, does
not constitute an endorsement of the client's political, economic, social or moral views or activities.” Also,
Comment 5 to Rule 1.2 “[5] Legal representation should not be denied to people who are unable to afford
legal services, or whose cause is controversial or the subject of popular disapproval. By the same token,
representing a client does not constitute approval of the client's views or activities.”

280
See Rule 2.1:

In representing a client, a lawyer shall exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations
such as moral, economic, social and political factors, that may be relevant to the client's situation.

See also Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless
there is a basis in law and fact for doing so that is not frivolous, which includes a good faith
argument for an extension, modification or reversal of existing law. A lawyer for the defendant in
a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may
nevertheless so defend the proceeding as to require that every element of the case be established.

155
dverse party.
representation, not only does an attorney forgo the chance to exert influence, the attorney
is also barred from representing an a
An attorney cannot detach from a group and work against his former clients. In
the event of the break up of the coalition into those in agreement with his position and
those against it, an attorney is compromised because he is unable to work as a lawyer
against his former client and any part of the earlier coalition may be construed as the
“client.” It appears hard to find a space for legal practice in what is essentially the role of
community activist, unless the attorney subordinates his own opinions to a great degree.
Even then you still run into conflicts of interest over time as new issues emerge in the
community and coalitions shift in response to them.
All this just points out the difficulty of working for the Community without said
community consisting of a narrowly defined interest group. Yet breadth of concern is
central to the community lawyering ethos. As discussed above, a core belief is that an
attorney cannot understand what people are dealing with unless he sees other areas of
their lives and he is failing to utilize the full range of tools and solutions available to him
unless he brings various members of the community together. Building community and
attempting to help people solve their problems and face their challenges can only go a
short way in the abstract: anyone hoping to fill this role must join with people in an
assertive struggle. For anyone working as an attorney, once such a struggle has been
joined, the people you are joined to have a strong claim to loyalty qua clients. Such
repeated alliances over time lock one into a web of relationships that preclude the non-
aligned perspective that seems required to do much of the community-wide facilitation

156

described by Lopez. This problem is exacerbated by the fact that legal services for the
poor are often scarce and a community practitioner may be the only game in town.
281

Many of the ethical problems with implementing this model seem to stem from
the inability, under the current rules, to set-up the multiple relationships necessary for this
type of practice. While informality is fine at first, the usefulness of a community lawyer
is greatly reduced if she can never make more formal alliances. Yet, once she does, she
will inevitably face questions of conflicting loyalty as she becomes a repeat player in
community struggles.
282

J. Confidentiality & Representation
The core idea of community lawyering is expanding one’s practice out into the
community. Whether it involves attending public meetings, lending support for the
activities of going concerns, or being a link between different groups, the model requires
a consistent and thoughtful engagement with far more than just the people who happen to
walk through your office door. One goal of this consistent engagement is to gain deeper
knowledge of the circumstances of the community, but it also serves to create trust and
mutual familiarity between an attorney and members of the community. The nature of
the relationship between a self-styled community lawyer and the community, community

281
The attorney has an ethical duty to protect confidences told him by each of the parties, but
communications between clients are not confidential; in other words, if the mediation fails and there is a
dispute, the communications made between the parties in front of the attorney are not protected. See Model
Rules of Prof'l Conduct R. 2.2 cmt. 6 (2003).

282
See In Re Agent Orange Product Liability Litigation, 800 F.2d 14, 17 (2d Cir. 1986).

157

groups, and the individuals that comprise them is hard to pin down. To think about why
this is so we’ll need to consider the paradigm of a relationship between a lawyer and her
client and the rules that currently govern it.
Rule 1.6 of the Model Rules of Professional Conduct dictates the nature of the
duty of confidentiality that a lawyer owes to their client. It states that “a lawyer shall not
reveal information relating to representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized in order to carry out the representation or
the disclosure is permitted [under specified circumstances].”
283
This prohibition against
revealing confidential information fosters trust and openness in the attorney-client
relationship. The goal of creating a trusting relationship that is embodied in Rule 1.6 is
motivated by a particular conception of the relationship between an attorney and their
client. The ideal attorney-client relationship for the community lawyering model is
distinct: it values the creation of trust between an attorney and her clients, but for
different reasons.
The duty of confidentiality owed to the client has historically been justified by
one of two models, both of which depart significantly from the aspirations of the
rebellious model. The first model views a lawyer like an agent for the client.
284
As an

283
Model Rules of Prof'l Conduct R. 1.6 (2003).
284
An agent engages in business and contractual matters for the principal. As the "agent" for a client, a
lawyer behaves similarly, entering into transactions on behalf of the client. Accompanying that behavior is
a fiduciary duty to the client. “The duty of the finest loyalty ... as trustee is held to something stricter than
the morals of the market place. Not honesty alone, but the punctilio of honor the most sensitive, is then the
standard of behavior... For him and for those like him the rule of undivided loyalty is relentless and
supreme.” Meinhard v. Salmon, 164 N.E. 545, 546, 548 (N.Y. 1928); see also The Good Lawyer 8-9
(David Luban ed., 1983)[hereafter The Good Lawyer];

158

agent, the attorney owes the client a fiduciary duty.
285
Essential to the functioning of the
agency relationship is sufficient trust that the agent will effectively carry out the client’s
wishes and act on his behalf. Under this conception of the attorney client relationship,
just as the principal must be able to confide in the agent in order for the agency
relationship to work, so too a client has to feel free to communicate fully and truthfully
with their attorney without fear that the information will somehow accrue to their
disadvantage. As stated in comment 2 to Rule 1.6:
A fundamental principle in the client-lawyer relationship is that, in the absence of
the client’s informed consent, the lawyer must not reveal information relating to
the representation…. This contributes to the trust that is the hallmark of the client-
lawyer relationship.
286

The second model defines the role of the attorney in terms of the function that an
attorney serves in the adversarial process.
287
Here too the client has to be able to trust
that their communications with the attorney will be kept confidential. However, the main
reason this is thought to be essential to the relationship is that it improves the attorney’s
ability to work for the client’s interests within an adversarial setting. Not surprisingly,
the contexts in which this model has been most fully developed are criminal proceedings
where the commitment to an adversarial model of truth finding is not only strongest (we

285
The fiduciary duty employed in agency law stems from a desire to protect the principal from the agent
who might use her unique position for her own gain at the expense of the principal. The duty of trust
imposed upon the fiduciary allows the principal to communicate freely and openly without worry that the
information will be used to his detriment.

286
Model Rules of Prof'l Conduct R. 1.6, cmt. 2 (2003).

287
See The Good Lawyer, supra, at 8-9.

159

have a constitutional commitment to it) but also puts the liberty of the individual that a
lawyer is representing at greatest risk.
288

Whatever their differences, both of these models require that attorneys are
scrupulously loyal to their clients’ interests.
289
Describing this right, the court in In Re
Agent Orange Product Liability Litigation, 800 F.2d 14, 17 (2d Cir. 1986), stated:
As a matter of professional responsibility an attorney owes a duty of loyalty to his
client. This duty encompasses an obligation to defer to the client's wishes on
major litigation decisions, not to divulge confidential communications from the
client, and not to accept representation of person whose interest are opposed to
those of the client.

Questions about confidentiality arise with the community lawyering model due to
its focus on collective participation and group education. A place where this issue might
arise with some regularity is in the organizing of self-help workshops addressing specific
problems within the community.
290
A lawyer working in this model must avoid just
giving a prepared lecture to a passive audience.
291
The presentation of information in this
way would undermine the empowering functional aspects community lawyering: the
lawyer would effectively have adopted the regnant model. For a workshop to be a
success, the community members must participate prevasively. They have the facts to

288
See Freedman, supra, generally.

289
"Loyalty and independent judgment are essential elements in the lawyer's relationship to a client."
Model Rules of Prof'l Conduct, R. 1.7 cmt. 1 (2003).

290
See Lopez, Rebellious Lawyering, at 32, 76-77, 151.

291
Such a model of education, the “Banking” model rejected by Freire, is antithetical to community
practice.

160

help set the agenda and explore the best way to address topics.
292
Community members
know their situation better than anyone, therefore, if they take charge more solutions will
be proposed and they will likely be better focused. Further, the public expression of
individual experiences will allow for recognition of common struggles and create
solidarity and class consciousness.
293

While positive in many respects, this participatory way of running self-help
workshops creates concerns about confidentiality and makes it difficult to define the
relationship of the attorney to the participants and the participants to one another. For
participants to explore common problems and share strategies for resolving them they
will inevitably be sharing sensitive information with one another. This is essential in
that it can allow relationships to develop that may lead to a strengthening of community.
Further, such intra-group openness will foster the exploration of community driven
solutions rather than defaulting to attorney imposed strategies. Unfortunately, the
openness that creates these positive possibilities also makes the confidentially present in
traditional attorney-client interactions impossible to maintain.
Recall that the two justifications for the essential duty of lawyer confidentiality
were fiduciary trust and the promotion of adversarial effectiveness. Neither of these fit
what is going on in such a workshop. Regardless of the model of representation that

292
In a case study presented in Lopez's Rebellious Lawyering, a young rebellious lawyer argues against
going ahead with a public education series because it does not involve the community sufficiently. The
lawyer recognizes that an effective public education program must be designed to address needs that the
community has identified and should have community members in the planning and production of the
sessions. See Rebellious Lawyering, at 151-53.

293
See Alfieri, The Antinomies of Poverty Law, supra.

161

justifies the rules, the ethical rules are very clear about the duty of confidentiality owed to
clients. Quite reasonably, given the significant obligations created by the duties of
loyalty and confidentiality, these duties are only owed to people considered to be clients.
Because the attorney client relationship also creates rights that protect communications
made within the relationship against forced revelation, the rules are relatively strict about
the form an attorney client relationship must take.
Do the relationships formed between an attorney and a participant in one of these
workshops count as worthy of such protection? Clearly, the goals of the workshop,
building community, creating connections and coalitions, and allowing the participants to
find similar life situations and to help each other with creative solutions to shared
problems, would be furthered by such protection. But his setting is simply not one that is
structured in such a way as to provide attorney-client protection. The attorney can and
should offer to protect the confidences revealed by anyone present. Workshop
participants may also feel that what they are saying, they are saying to “their lawyer,” and
that it should therefore be protected. Yet the rules are quite clear that in a group setting
like this there is simply no protection for such communications.
294
Nor do other
individuals present at the workshop have a duty (at least none that binds them through the

294
Rule 1.6 protects communications once a one-on-one attorney-client relationship begins. The Rule's
goal is to allow the attorney to be an effective fiduciary or protector of the client's rights. Courts therefore
protect communications only once a one-on-one attorney-client relationship is formed or is in the process
of being formed. The courts create a zone of protection once a party engages in a private conversation with
an attorney. See, e.g., Unified Sewerage Agency v. Jelco, 646 F.2d 1339 (9th Cir. 1981); T.C. Theatre
Corp. v. Warner Bros., 113 F. Supp. 265 (S.D.N.Y. 1953); Green v. Montgomery, Alabama, 784 F. Supp.
841 (M.D. Ala. 1992) (a party's single conversation with an attorney prevented that attorney from
representing the party's adversary, even though the attorney was not ultimately retained by the party); See
Alchemy II Corp. v. Yes! Entertainment Corp., 844 F. Supp. 560, 565 (C.D. Cal. 1994).

162

professional codes) not to reveal what is said. If participants are unable to feel secure
that their revelations will be held in confidence, the goals of the workshop will be, at least
to some extent, thwarted.
The reason such communications are not protected in this setting has to do with
how courts determine that an attorney client relationship has been formed. To do so they
look both at the interactions between the parties and the expectations that the client has
come to have as a result of these interactions. Courts examine whether a client would
have reasonably believed that an attorney client relationship was in place in order to
decide if the client would have had an expectation that what they were saying would
necessarily be part of a confidential communication.
295
From the attorney’s side the
court will consider factors that suggest whether a lawyer was acting within a relationship
that would usually be one of representation.
296
Basically, the courts are looking for
characteristics that closely resemble the most traditional attorney-client relationship,
where individual representation is provided for a discrete legal problem. If the
interaction under consideration has features of this traditional interaction, and the parties
were acting in a way that led the client to feel comfortable sharing private information,
then Rule 1.6 becomes a shield they can appeal to in order to protect information that has
been shared.

295
Alchemy II Corp, 844 F. Supp. At 565.

296
See Alchemy II Corp., supra; Beuhler v. Sbardellati, 34 Cal. App. 4th 1527 (1995); Responsible Citizens
v. Superior Court, 16 Cal. App. 4th 1717, 1733 (1993).

163
A lawyer who is facilitating or coordinating a community workshop is not
working within either of the two traditional models that generate such protections.
Rather than working as an agent or a guide through an adversarial proceeding, he is
trying to provide information, facilitate and share in collaborative problem solving
efforts, and helping people to see that they share common problems. Creating a situation
of trust is essential to the success of such a setting, but creating community and helping
to bring about cooperative problem solving strategies does not occur within the
traditional one-client-one-attorney model that the rules are set up to protect. Creating
community is not one of the values that the rule is trying to promote.
While the people who come to the workshop might initially have some
expectation that they are entering into an attorney client type relationship, the attorney
can dispel this by telling the clients that he is not entering into that type of relationship
with them. He then has to say that they aren’t going to be protected and they aren’t going
to get protection for personal information they share. Such an opening will obviously
have a dampening effect on group cohesion. Because the attorney has explicitly
disavowed the existence of either confidentiality or a representation relationship, the
attendees cannot reasonably claim to expect either. Nevertheless, it is hard not to suspect
that an attorney’s disclaimer will appear to be a withholding from group members as
much as a precaution to protect them.
Even if he says there is no attorney-client relationship, won’t the clients still feel
like the attorney owes them some loyalty? Won’t they be justified in this assumption?
This isn’t just a presentation where the attorney states their rights and takes questions.

164
This is a group activity where relationships are formed among group members, including
the attorney. Relationships formed during such activities seem like they deserve some
kind of protection. Even though the people aren’t individually consulting an attorney,
they have come together to seek help solving their problems.
While the rebellious model hopes that community members will themselves
suggest problem solving strategies and engage in collective efforts to address common
problems, a large part of the process is informed by the assurance that an attorney is on
hand to help out with information about the relevant law; with guidance about strategy;
and as a confidant about the people and institutions that they see as constitutive of their
problems. The community members who have come to the meeting also have to trust one
another. Bridges and alliances can’t be created among members of the community if the
meeting is a place devoid of some sense of communal obligation. Trust and loyalty has
to be implicitly present among the participants if the meeting is to be an effective forum
for problem solving. The incentive to engage in such openness is lessened if it is clear
that the attorney owes them no collective obligation, yet current rules provide no safe
harbor of confidentiality to encourage such activities.

K. Working with Various Community Constituents
Above, we saw the importance of confidentiality to the ethical duties brought
about by legal representation in even its least formal manifestations. When
representation becomes more formal, both the obligations and the obstacles to an
informal community based practice expand as well. Any time a community practitioner

165
assumes the role of formal legal representative for a group difficulties will arise.
Regardless of the level of generality at which her practice is conceived – even if she only
works for “the community” and never plans on representing individuals – employing
legal advocacy skills in her work can alter her position within the community so as to
make it untenably unstable.
This instability derives from her responsibilities to both current and former clients
under the applicable conflict of interest rules. Rule 1.7 states that, except in narrowly
defined circumstances:
a lawyer shall not represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if: … (2) there is a
significant risk that the representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer.

The duties owed to former clients are contained in Rule 1.9, which states:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which that
person's interests are materially adverse to the interests of the former client unless
the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially
related matter in which a firm with which the lawyer formerly was associated had
previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules
1.6 and 1.9(c) that is material to the matter; unless the former client gives
informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present
or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the

166
former client except as these Rules would permit or require with respect to
a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules
would permit or require with respect to a client.

The motivation for these rules is to ensure the loyalty, now and into the future,
sufficient to facilitate the representation. The client needs to trust the attorney enough to
provide all the information necessary to represent them. If anyone suspected their
attorney could represent a future adversary or could ever trade on the private information
they held, for their own benefit or that of a third party, it would undermine the entire
relationship.
As merely one example, suppose an attorney undertakes formal representation of
a local coalition in a successful attempt to stop a police practice. Subsequently, members
of the coalition assumed majority power in the city council due to a groundswell of
support carried over from the organizational efforts involved in the suit. Can the attorney
then resume a nonaffiliated position in which she looks out for the interests of the
community at large and particularly its most disadvantaged members? For a time this
might work: her close relationships with former coalition members now prominent in city
government may even allow her to help formulate the shape of future city policies.
Unfortunately “the community” is not a simple entity. Even though many people
coalesced around the effort to stop the earlier tactics, political disagreement can again
arise around the implementation or interpretation of city policies put in place to resolve
the initial problem. If council members that had been part of the earlier coalition fail to
implement significant change and the police return to objectionable tactics, the attorney is

167
put in an ethical bind. If she wishes to sue the city or council members on behalf of other
community actors she faces a problem. Her single foray into traditional formal
representation can disqualify her from the litigation since her former clients (now part of
the city council) may object that she was their former lawyer. Conflict of interest rules
clearly require her to remove herself from continued representation of the new coalition.
Can her relationship with these groups be characterized in a way that will salvage
her ability to assume the role of partisan advocate once again? It depends how the
relationship with the parties is characterized. When the second conflict begins it is
implausible to characterize her as either the exclusive representative of the council
members or of the other community activists. Her work with the community activists
may have led them to believe she was their representative and to communicate
confidential information to her. On the other hand, she also had a history with the
council members that she had represented in earlier litigation. While she had not
represented them in their role as members of the city government, the rapport that they
developed during the period of representation may have caused them to subsequently
confide things to her that they would not have if they had known she could eventually
become an adversary. Allowing her to subsequently represent their opponents would
betray the trust that the ethical harms of loyalty and fidelity are in place to protect.
If she may not exclusively represent either party, perhaps she can formally
represent both during the subsequent disagreement. Representing two parties as they try
to work out a deal is allowed for in the rules under certain circumstances. Rule 1.7b is
the relevant provision of the Model Rules. Rule 1.7 (b) provides:

168

A lawyer shall not represent a client if the representation of that client may be
materially limited by the lawyer's responsibilities to another client or to a third
person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely
affected; and

(2) the client consents after consultation.

When representation of multiple clients in a single matter is undertaken,
the consultation shall include explanation of the implications of the common
representation and the advantages and risks involved.
297

Such joint representations have been accepted most often in transactional contexts
such as the formation of businesses or execution of business deals, loans, or property
sales. If people are looking for a good faith solution then a reason may exist to go in this
direction. It may reduce the confrontation and suspicion of opposing attorneys and
increase efficiency of communication between the parties. Openness and cooperation can
clearly lead to better results in some situations because solutions can be explored without
the gamesmanship inherent in adversarial settings. Yet even in the transactional settings,
courts often look closely to make sure the interests of the parties are sufficiently aligned
to allow an attorney too function without conflict.
298
Such representation always depends
on informed consent. To represent both sides in our hypothetical, a lawyer would have to
disclose potential conflicts as required by 1.7(b). It seems unlikely that they would agree
(especially since the community activists might be left without a lawyer if it fails).

297
Model Rules of Prof'l Conduct R. 1.7(b)(2003).

298
In any case, the situations appropriate for joint representation are few. Lessing v. Gibbons, 6 Cal. App.
2d 594 (1935), explores the types of cases in which joint representation is allowed

169

Finally, although she is acting in good faith, a lawyer in this situation should be
wary of believing that they can do this in an ethically appropriate manner. While an
attorney can represent two clients without identical interests,
299
she can’t attempt to
facilitate a negotiation when the interests of the parties are fundamentally at odds. The
responsibility to avoid this situation falls on the attorney,
300
and if a mistake is made
about whether it will work the attorney must completely withdraw from working on the
matter at all.
301

This all points to the instability of the position of “lawyer for the community.”
The rebellious practitioner may assume people know their allegiances will default to the
least powerful members of the community or to what is “best for the community,” but
this idea of a lawyer’s individual evaluation of the most virtuous or best outcome in a
situation is odd. Lawyers don’t usually function as free agents in this way. Even if the
lawyer attempts to consistently align herself with the interests of a given coalition
problems will still be close at hand. Coalitions, perhaps especially those including a
broad spectrum of subordinated peoples, will always include people with a diversity of
interests. Just because people are united for the action you are working on doesn’t mean

299
See Model Rules of Prof'l Conduct R. 1.7 cmt. 12 (2003).

300
See Lessing, 6 Cal. App. 2d at 605.

Model Code DR 5-105 states in part: "A lawyer may represent multiple clients if it is obvious that he can
adequately represent the interest of each and if each consents to the representation...." Model Code of Prof'l
Responsibility DR 5-105 (1969).

301
Model Rules of Prof'l Conduct R. 1.7 cmt. 1 and 2 (2003).

170

you won’t find yourself aligned against some, or many, of your former clients should you
attempt to engage in formal representation of a community group at a later time.
A community lawyer may come into conflict with traditional ethical rules: with
respect to determination of the ends of community action, in situations where formal
representation takes place, and in situations where confidentiality may be compromised.
In a way this seems perverse: the community lawyer runs afoul of rules designed to foster
trust and ensure the loyalty of attorneys precisely through engaging in practices designed
to create sensitivity to the desires of community members and earn trust through
consistent and hard-working commitment to the community.

L. A Lawyer for the Situation
An alternate conception of representation that might provide a model within
which the community attorney could work was offered by the recently discarded Model
Rule 2.2.
302
Rule 2.2 was designed to delineate a limited context within which attorneys
may act as intermediaries in matters involving multiple parties. The rule read:
(a) A lawyer may act as intermediary between clients if:

(1) the lawyer consults with each client concerning the implications of the
common representation, including the advantages and risks involved, and
the effect on the attorney-client privileges and obtains each client's
consent to the common representation;

(2) the lawyer reasonably believes that the matter can be resolved on terms
compatible with the clients' best interests, that each client will be able to
make adequately informed decisions in the matter and that there is little

302
Initially approved in 1983, Rule 2.2 was deleted in the 2002 revision.

171

risk of material prejudice to the interest of any of the clients if the
contemplated resolution is unsuccessful; and

(3) the lawyer reasonably believes that the common representation can be
undertaken impartially and without improper effect on other
responsibilities the lawyer has to any of the clients.

(b) While acting as intermediary, the lawyer shall consult with each client
concerning the decisions to be made and the considerations relevant in making
them, so that each client can make adequately informed decisions.

(c) A lawyer shall withdraw as intermediary if any of the clients so request, or if
any of the conditions stated in paragraph (a) is no longer satisfied. Upon
withdrawal, the lawyer shall not continue to represent any of the clients in the
matter that was the subject of the intermediation.
303

This rule created an attorney-client relationship that is based on the relationship between
an attorney and multiple parties rather than the traditional on-on-one attorney-client
relationships while purporting to maintain the values of loyalty and trust and
confidentiality that characterize single client representation.
304

Perhaps it offered the best model for a community lawyer to work from because it
is structured for a situation where an attorney is needed to facilitate a joint solution rather
than to serve as a partisan advocate. This seems in line with the aspirational values of
rebellious practice. However, the rule contains several aspects that may make it a less
than ideal fit for the situation at hand. It is necessary to inform parties of the benefits and
risks of such representation and to obtain their informed agreement prior to undertaking
it. If the intermediation fails, the attorney has to withdraw completely from the matter

303
Model Rules of Prof'l Conduct R. 2.2 (1992).

304
The attorney has an ethical duty to protect confidences told to her by each of the parties, but
communications between clients are not confidential; in other words, if the mediation fails and there is a
dispute, the communications made between the parties in front of the attorney are not protected. See Model
Rules of Prof'l Conduct R. 2.2 cmt. 6 (1992).

172
and may not work for either party. Most troubling, if the intermediation fails, the parties
will enjoy no ability to assert an evidentiary privilege with respect to confidential
statements made by the parties in the attorney’s presence.
It is not hard to imagine the difficulties such a position would encounter in our
hypothetical. The client group that had been united with respect to the initial
representation is divided regarding a subsequent issue and the attorney offers to mediate
among factions. If the attorney’s sympathies are known he will incur suspicion from the
previous clients on the other side. Yet even assuming that this isn’t an issue and an
attorney can get all parties to consent to his working as an intermediary, such a role will
only be possible until things move towards litigation. At that point he will probably have
lost some credibility with both sides. Clearly not all matters are susceptible to such
intermediation. It is obvious that different community constituents can have actually
conflicting interests. If an attorney disagrees with the stance that a former client has
taken they may view the interests of the attorney as opposed to theirs or the attorney as
actively opposed to their goals. As discussed above, conflict rules dictate that an attorney
has an ongoing obligation not to accept representation of people whose interest are
opposed to those of a client; therefore any previously represented party to the
intermediation can call it to a halt by challenging the attorneys impartiality and
withdrawing their consent.
Nevertheless, the concept contained in Rule 2.2 is at least superficially appealing
since it appears to create some space distinct from the single client advocacy model or the
very restrictive requirements for joint representation set forth in Rule 1.7. Unfortunately,

173
y a faction.

intermediation may not move very far towards creating a safe haven for the work of a
community lawyer as imagined by Lopez. Rule 2.2 as implemented contained several
constraints that a lawyer hoping to do community work on the model presented above
would come into conflict with. It required that a lawyer be proactive in both questioning
prospective group clients and disclosure to the group members before the clients can
consent and the lawyer can accept a representation. Required inquiries and disclosures
outline possible conflicts of interest inherent in any representation of two or more parties.
First, the lawyer has to talk individually with each of the potential clients
concerning the risks and advantages of common representation. One of the principal
risks in multiple client representation is the clients' waiver of the attorney-client privilege
as among all of the clients in the representation. As stated in the comments to Rule 2.2
"[w]ith regard to the attorney-client privilege, the prevailing rule is that as between
commonly represented clients the privilege does not attach.”
305
An obstacle to ongoing
work as a neutral is the fact that, if a dispute later arises between or among factions in a
group the lawyer can be forced to testify about the nature of conversations that occurred
during the representation.
306
This risk isn’t just a problem for the attorney, it also must
be disclosed to the group members, thereby impinging on trust and openness in the
presence of the lawyer outsider. This also makes a lawyer vulnerable to threat and
coercion b

305
Model Rules of Prof'l Conduct R. 2.2 cmt. (1992).

306
"The lawyer shall not continue to represent any of the clients in the matter that was the subject of the
intermediation." Model Rules of Prof'l Conduct R. 2.2(c) (1992). Under Rule 2.2(c), "[a] lawyer shall
withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in paragraph (a)
is no longer satisfied.”

174

A lawyer also has to satisfy herself that several other conditions can be met. First,
is it likely that "the matter can be resolved on terms compatible with the clients' best
interests."
307
Before entering into a formal role of representative, the lawyer must
reasonably believe that resolution compatible with all interests is likely, or that the risk of
harm from failure will be negligible. This line of thinking forces a lawyer to prejudge not
only the likelihood of a good outcome for each individual within the group (thereby
necessitating a pre-determined ranking of the desirable outcomes by the lawyer), but also
requires a predetermination of the cohesion of the group and the way members might
react in conflict. So the group’s goals have to be well-articulated, the group has to be
cohesive, and the lawyer has to evaluate possible process problems and outcomes from
arms-length. Not an ideal situation for community lawyering.
Another issue arises with respect to the capacity of group members "to make
adequately informed decisions in the matter."
308
Client’s abilities to understand the risks
and benefits of disclosure to and membership within the group will vary. As will each
individual’s ability to promote her position within the group itself and make her views
prominent on the group’s agenda. This may be mitigated by the duty of the attorney to
keep all parties informed.
309
Nevertheless, many unpredictable factors will come into

307
Model Rules of Prof'l Conduct R. 2.2(a)(2) (1992).

308
Id.

309
Once the lawyer accepts the representation as an intermediary, Model Rule 2.2 instructs:

While acting as intermediary, the lawyer shall consult with each client concerning the decisions to
be made and the considerations relevant in making them, so that each client can make adequately
informed decisions.

175

play here including relative legal sophistication, economic inequalities, emotional
attachments, or personality traits that could affect group members’ ability to make
adequately informed decisions.
At least in part, the initial impetus for putting Rule 2.2 in place was to embody the
notion of a “lawyer for the situation” first articulated by Justice Louis Brandeis. There is
a good amount of literature taking various, more or less romantic, positions on the
significance of the conception to Brandeis and the way in which it arose in his
confirmation hearing.
310
Regardless of the exact historical link to Brandeis’s thought, as
presented by Spillenger a core idea of being:
‘counsel for the situation’ is to resist in appropriate cases the traditional notion
that lawyers should have a single client to whom they owe unqualified loyalty. It
is to recognize and respect certain organic bonds, like family and other
relationships, as deserving of representation. It is to suggest that the lawyer should
be able to act as intermediary in situations that involve multiple but not
necessarily adverse interests -- for example, in the contexts of bankruptcy,
divorce, and inheritance. Sometimes the phrase refers to the role of lawyers as
social reformers -- making ‘the situation’ synonymous with ‘the public’ or ‘the
public good.’
311

The concept of “counsel for the situation,” therefore, clearly has common threads with
community lawyering. The idea acknowledges a lawyer may have morally informed
professional commitments that extend beyond the advocacy model, and that groups may

Model Rules of Prof'l Conduct R. 2.2(b) (1992).

310
John S. Dzienkowski, Lawyers as Intermediaries: The Representation of Multiple Clients in the Modern
Legal Profession, 1992 U. Ill. L. Rev. 741; Clyde Spillenger, Elusive Advocate: Reconsidering Brandeis as
People’s Lawyer, 105 Yale L.J. 1445; Thomas L. Schaffer, My Client the Situation, 49 Res Gestae 24
(2005).

311
Spillenger, Elusive Advocate, at 1502.

176

need a lawyer not as an advocate but as an involved party to help them attain a common
goal. However, the idea depends heavily on the maintenance of an attorney’s
professional preeminence within the relationship: working as a co-equal, as required by
community lawyering, is not part of the traditional articulation of the idea. The
independence and social vision endorsed by this view is a function of the pre-eminence
and authority of the attorney rather than co-equal solidarity with community groups and
their concerns.
There is some variation in how commentators articulate Brandeis’s conception of
being a lawyer for the situation but none seem amenable to easy reconciliation with
community lawyering. On the first view:
Brandeis's actions were an effort to harmonize competing interests, to reach an
accommodation that preserved a relationship rather than merely maximizing a
private interest. . . . Brandeis consciously embraced this task of "dispensing
justice among" the various parties to a transaction, [illustrated by his private
correspondence, stating]:

I think it should be brought out clearly somehow, that it was specifically my
"judicial temperament" that led to my holding a position in the community of
advisor to those who had varying interests in the same matter, they leaving to me
the decision as to what should be done because they recognized that I was in no
sense a partisan, and that a very large part of my practice with large business
concerns consisted in just that kind of service.
312

The second view is that he focused on arriving at a sense of the common good
consensually rather than defining it unilaterally and imposing it on clients. Although
Brandeis described his practices as “inquiring deeply and openly into the goals and
possibilities of the parties to the "situation" . . . so as to enable them to reach an

312
Id., at 1508 quoting Letter from Louis D. Brandeis to Edward Francis McClennen (Feb. 19, 1916).

177

agreement of some kind,” he appears to have acted in a much more authoritative fashion
when employing the model.
313
Basically, however, he conceived of it, Brandeis
functioned in this role by decisive exercise of his independent judgment and subsequently
convincing people to follow his advice.
314
He did put into practice the idea that a lawyer
should respond to a client’s needs in light of other public values, by seeking to impose
what he saw as a proper solution for harmonization and balance of competing interests.
315

However, unilateral evaluation of group good corresponds exactly to the regnant idea of
progressive practice that community practice seeks to avoid. Brandeis is lionized as a
model of public professionalism, but the fact is that it is exactly this idea of a lawyer
imposing his view of what is in the best interest of parties in a situation that community
lawyering is fighting against.
A more contemporary and completely articulated conception of acting as a lawyer
for the situation was made by Hazard, and it eventually led to the creation of Rule 2.2:
It is not easy to say exactly what a "lawyer for the situation" does. Clearly, his
functions vary with specific circumstances. But there are common threads. The
beginning point is that no other lawyer is immediately involved. Hence, the
lawyer is no one's partisan and, at least up to a point, everyone's confidant. He can
be the only person who knows the whole situation. He is an analyst of the
relationship between the clients, in that he undertakes to discern the needs, fears,
and expectations of each and to discover the concordances among them. He is an
interpreter, translating inarticulate or exaggerated claims and forewarnings into
temperate and mutually intelligible terms of communication. He can contribute
historical perspective, objectivity, and foresight into the parties' assessment of the
situation. He can discourage escalation of conflict and recruitment of outside

313
Id.

314
Id., at 1509.

315
Id.

178

allies. He can articulate general principles and common custom as standards by
which the parties can examine their respective claims. He is an advocate,
mediator, entrepreneur, and judge, all in one. He could be said to be playing God.

Hazard also acknowledge the ambiguity of role here and suggested that the parties to
each intermediation antecedently negotiate the exact relationships and role that they hope
the attorney to play:
[B]eyond saying that he will undertake to represent the best interests of all, a
lawyer cannot say specifically what he will do or what each of the clients should
do in the situation. (If the outcome of the situation were clearly foreseeable,
presumably the lawyer's intercession would be unnecessary.) . . . [U]nlike
advocacy or legal counseling involving a single client, lawyering for a situation is
not provided with a structure of goals and constraints imposed from outside. The
lawyer and the clients must create that structure for themselves, with the lawyer
being an active participant.
316

As described above, these aspirational ideals didn’t quite cash out in the concrete
Rule 2.2. The flexibility that allows creative role construction directed by the clients,
while never wholly unconstrained, was eventually caged by the rule itself. Regardless,
the rule itself was abolished by the revision of the rules in 2002.

M. Practical Considerations to Implementation
The community lawyering paradigm poses a radical challenge rather than setting
forth an agenda for reform. The struggles and doubts of those individuals who strive to
practice in the “rebellious” spirit of community lawyering pervade the literature: the
regnant idea is difficult to escape and always near at hand. It appears to be the inevitable

316
Dzienkowski, Lawyers as Intermediaries, at 786-87, quoting GEOFFREY C. HAZARD, JR., ETHICS
IN THE PRACTICE OF LAW 58 (1978) at 64-65.

179

default for tired and overworked lawyers.
317
While the proponents of the model are
inspiring, and their criticism of standard practices is very compelling, reflection on the
model quickly leads one past its specific difficulties towards a feeling that it is simply
unrealistic. In addition to living in the community in which one works and assuming an
extreme service ethos, a community practitioner must also defer to others about the ends
and purposes of one’s own profession life to an extent that seems unrealistic except for a
saintly individual. Perhaps commitment to community lawyering is very similar to what
is required of a traditional religious vocation, a kind of calling to service to a pervasively
self-effacing extent. To the extent that the general conception of professionalism stems
from the model of religious professionalism, maybe this link shows community lawyers
somehow touching the essence of what is required for a professional life that is dedicated
to others. If community lawyers are called to serve the community absolutely, then
much of the emphasis on integration with and sensitivity to the community can be
understood as an analog of missionary acculturation. The separation of the community
lawyer may be like that of a missionary priest who is respected by the community
because he lives as the community but not off of them. Then again, even the idea that
attorneys have knowledge to give communities is implicitly suspect on the model; it is
tempting to note that the level of humility and self-effacement that this model calls upon
in its practitioners is nothing short of that required when joining a religious order. But by
now the analogy has been stretched far enough to overdetermine how unrealistic a strict

317
See Lucie White, The Hearing of Mrs. G.

180

adherence to the model would be; attorneys, even dedicated public interest attorneys, are
not missionaries of liberation to the subordinated.
Freire does in fact describe such work as akin to a secular religious commitment,
using explicitly religious terms:
[Professionals] ‘die,’ in order to be reborn through and with the oppressed.
318

Conversion to the people requires a profound rebirth. Those who undergo it must
take on a new form of existence; they can no longer remain as they were. Only
through comradeship with the oppressed can the converts understand their
characteristic ways of living and behaving . . .
319

The core of this conversion sounds like a commitment to respect the dignity of the people
that you work among. To show them that through your acts, your service, and your
humble interactions you refuse to replicate the hierarchical structure of law and society
that many of them are so oppressed by. Perhaps such an acknowledgement that poor
people are worthy of equal respect provides license to strive to help them even if one is
bound to fall short of one’s ideals in many ways
Aside from the practical difficulties and the psychological challenges inherent in
relating to community members with such sensitivity and deference, the model poses a
distinct but significant psychological challenge about one’s status and place within the
larger society. Even if one is able to assume the required role while ensconced within the
community where he works, significant frustration may still arise with respect to one’s
place within the larger legal community. Many elite corporate practitioners tend to
assume that attorneys engaged in direct services work are less capable intellectually

318
Pedagogy of the Oppressed., at 132-33.

319
Id., at 61

181
because the work is believed to lack complexity. Conversely, the types of public interest
practice de-emphasized by community lawyering – impact litigation and class actions –
have traditionally provided a place for public interested practitioners who enjoy a level of
complexity in their practice that is widely acknowledged within the profession or who
concern themselves with the extent rather than the qualitative aspects of their personal
efficacy as a poor person’s lawyer. The prominence of this strain of public interest
practice is illustrated by the tendency of attorneys to overvalue complexity and novelty at
the expense of community responsiveness that Lopez decries in his work.
One factor mitigating the stringency of the model is the tendency (in Lopez and
others’ work) to describe the ideal practitioners as people who are working with a critical
and evolving sense of what their practice should be like. Perhaps because community
lawyering is linked so strongly to clinical education, the model emphasizes thinking self-
critically in order to open oneself to improvement and correction. The inevitability of
ongoing failures to continuously meet expectations leaves room for a picture of a
practitioner as someone who learns, grows, and benefits from their interactions with their
clients. This is an important stance since it rejects the paternalistic professional
presumption that the attorney – no matter how inexperienced – is a fully-formed actor to
be approached with unqualified deference. In the complex and culturally diverse world
of poverty law, a professional who strives to inhabit an Olympian remove and come away
from interactions unchanged in any fundamental way is unlikely to succeed. If
community attorneys are necessarily fated to fail and evolve as they strive to embody the
ideals of the model, then such remedial practice can be the source for the deep

182

understanding that the model requires, the method of acquiring the kind of deep context
and feeling for nuance that allows one to work within this morally appealing but
individually unlikely model. Although Lopez never explicitly endorses such a position,
this interpretation is bolstered by his focus on the importance of challenging exercises in
developing sensitivity to clients and routine methods of critical self-examination (such as
in-depth memos examining interactions with clients and detailed attention to the
messages conveyed by physical set-up of office spaces and internal employment
practices.)
The community lawyering model seeks to create social justice by charging public
interest attorneys with the task of being Just actors within the community in a very broad
sense. The struggle to fulfill this charge is essential because it is a struggle for
progressive lawyers to assume a role other than “giving rights” and diminishing dignity
in the process;
320
the work of community lawyers can become a locus of dignity and
community. As described by Alfieri, the human connection of community is the reward
of respectful interaction between equals, such connections create:
the opportunity, decidedly narrow and perhaps illusory, for the redemption of
community. Every meeting between progressive lawyers and subordinated people
affords the opportunity to redeem community in small moments of human connection
and in large events of group mobilization. The humanist faith that guides progressive
advocacy embraces that opportunity.
321

A further question presents itself: when such sought-for moments of community
and connection occur, to what extent are they capable of mediating the cultural divide

320
Alfieri, Practicing Community, supra, at 1750.

321
Id.

183
that inevitably exists between professionals and oppressed people? The lack of
understanding that purportedly blocks public interest attorneys from sensitive
representation appears almost impossible to overcome from the position of an outsider
that the professional inevitably occupies. It may simply be the case that very few can
ever successfully obtain the cultural knowledge to embody the ideals of this practice. It
must therefore be embraced, if at all, as an aspirational model within which a full career
can be spent in pursuit of the unattained ideal. If the incremental rewards are great,
perhaps such striving can sustain one through the inevitable difficulties of practice.
Nevertheless, this clearly poses a challenge for a young practitioner straight out of law
school. Expecting the ability to successfully embody the ideals of the model early in
ones practice would deny both the formidable burdens that all lawyers have in dissolving
the barriers of power and hierarchy that come with the social position and that the
individual lawyer comes equipped with their own cultural identity.
The most difficult challenge that this model poses for aspiring practitioners is not
the cultural and class divide between attorneys and community members. Rather, it is the
gap between the skill set required by this model and that actually possessed by most
attorneys. The model practitioners Lopez describes move with ease between organizing
community groups and facilitating coalition building among groups, create strong
personal connections with a broad swath of community members and also act as
educators. These activities all occur while managing intra-workplace conditions with
sensitivity and tact and working with individual clients with thoughtfullness, diligence,
and self-critical awareness of the ever-present threat of client domination.

184
One can’t help but ask why one should think that someone who went to law
school necessarily has the ability to be an educator, or to communicate across
socioeconomic, gender, and ethnic boundaries with ease, or to be an organizer in addition
to being an attorney. The people who do these things have unique talents; they take these
talents and hone them through training. It is arrogant to assume that anyone with a law
degree and a social justice bent will be able to intuit their way to proficiency in these
skills. One might respond to this challenge in two ways. One can return to the idea that
the model is provisional and aspirational, thereby recognizing the inevitability of failure
but affirming that such skills are desirable in a model practitioner. Alternatively one
could argue that aligning oneself with the community members that have such skills is
essential to creating the type of connections that are an uncompromising ideal of the
model: in addition to its instrumental value, this conception circumvents the need for
previous knowledge or quick acquisition of all but the general interpersonal skill of
communication which is perhaps unavoidably required. Nevertheless, the limitation of
practitioners’ skills remains a real issue for a model that appears to assume so much from
its practitioners. Paradoxically, a model that consistently seeks to deflate attorneys’
presumption of global competence as problem solvers simultaneously assumes that
attorneys can quickly attain (or connect with, recruit, and manage others who do) an
interdisciplinary breadth of skills far less common than general legal competence.
Community lawyering’s emphasis on non-legal skills also obscures the value of
having lawyers involved in community movements. If competent community lawyers are
continually wary of employing legal means to address problems, then it becomes unclear

185

what the purpose of the community lawyer as opposed to another form of activist is.
Take as an example the model’s exhortation to scrupulously avoid making choices that
may preempt a client’s decisions or framing issues so as to direct the goals of a client.
While such a principle may initially sound desirable, upon reflection it doesn’t seem to fit
with what most people would want from the professionals they engage. Rarely does
anyone go to an accountant because he wants to become empowered: people seek them
out exactly for the purpose of being authoritatively directed and relieved of the burden of
learning a technical area tangential to their day-to-day concerns. Navigating the world as
a poor person is draining enough without the inability to lay off a legal problem on
someone who is trained to take care of it, and it is arrogant to assume that legal services
for poor people should work on a teaching model rather than a service model. Wealthy
and highly educated people rarely concern themselves with the minutia of a problem that
they have delegated to a professional, why should the poor necessarily benefit from being
hectored into spending their time in such an inefficient way?
322

Further, if the goal of education in this model is to be sure that one is not making
choices for the client, that they are totally self-directive, then what, really is the role of

322
Lopez, supra, at 15. Lopez sees the persistence of this argument with respect to impact litigation as
illustrative of how disconnected the regnant idea can make lawyers. He believes it is a justification for
attorneys who seek to control issue choice resulting in improper determination of the goals of litigation or
whether litigation is an appropriate strategy. Lopez cites the argument that the poor as well as the rich
should have the right to have a lawyer “take care of their legal problems for them.” This is an assertion that
he sees as indicative of how dismissive regnant lawyers are towards the poor since, presumably the people
making this argument don’t want to have clients involved at any stage of litigation including determining
what their problems are and definitely not throughout the course of protracted litigation. Yet if you assume
that the client has clear goals in mind when they approach a lawyer and is merely using the lawyer to come
up with the means of accomplishing those goals, the negative force of the argument falls away. Clearly, the
rich and well educated delegate much of the technical work that keeps their lives running to lawyers,
accountants, real estate agents, craftspeople, etc. One does not always need to be intimately involved in a
process to direct it to one’s own ends.

186

the lawyer? Assume that a person faces a simple family law problem that she can and
does readily understand the answer to by reading a pamphlet. She may still want to
consult a lawyer to get a prediction of how things will play out, if for no other reason
than that it might be worth it to consult a lawyer as an insurance policy. But if the lawyer
refuses to direct her because of qualms about the exercise or claim of expertise, then that
peace of mind is denied. The simple scenario may appear unrealistic, but it makes a real
point. Even if we consider a more complex problem, if the attorney approached for help
believes that his duty is to educate the client to the extent necessary to make a fully
informed choice, most clients will be so burdened with the large amount of (ultimately
irrelevant) background information necessary to replicate the intuition gained by legal
training, that the experience will be totally exhausting. If such an attorney is useful at all
it will be in a non-professional capacity as amateur educator. This is so because the role
of professionals in society is traditionally one of consultation from a position of
differential knowledge. If one considers simple problems then there are many reasons
why one might argue the legal monopoly should be broken and a range of legal service
providers should be available.
323
Yet, on the other end of the spectrum, complex legal
problems look a lot more like complex medical problems; just as few people seriously
want a surgeon that will to defer to their thoughts on alternate ways to take out a tumor,

323
Sullivan, Work and Integrity at 9 (2005). [Even “An America Bar Association commission of the late
1980s conceded that there was no real basis for the claim that ‘lawyers have the exclusive possession of the
esoteric knowledge required and are therefore the only ones able to advise clients on any matter concerning
the law.”

187

few people want a lawyer to be completely non-directive about how to approach a
complex legal problem.
Freire addresses an analogous concern in Pedagogy of Hope.
324
In response to a
similar challenge to the radically democratic and programmatic passivity of educator in
his model, he argues that his belief in “democratizing the power of choosing content”
does not imply a complete withdrawal of the professional.
325
Rather, he argues that
because the relationship and goals have been built through dialogue between professional
and community member, the content is necessarily situated both within the people’s area
of concern and within an environment in which the educator can also offer his or her own
analysis of the world.
326
In Freire’s words:
The role of the progressive educator, which neither can nor ought to be omitted, in
offering her or his “reading of the world” is to bring out the fact that there are
other ‘readings of the world,’ different from, the one being offered as the
educator’s own, and at times antagonistic to it.
327

Such co-operative solidarity may work on Freire’s model, but as adapted to an
American legal context the prospect becomes less promising. As explained above, the
community lawyer faces an untenably unstable environment ethically. The most
effective and prevalent solution to such instability is to choose a narrow area of practice
or closely circumscribe the type of clients to which one will provide services. As long as
such an area is broad enough to keep one employed full-time in the service of a

324
Paulo Freire, Pedagogy of Hope: Reliving Pedagogy of the Oppressed (2006).

325
Id., at 100.

326
Id., at 111.

327
Id., at 112.

188
community or an issue it is hard to see why such a decision would be disagreeable.
However, because of how quickly relationships form and the long-lasting ethical and
fiduciary commitments such relationships entail, such choices must be made prior to
engaging the community. These choices pre-determine what the most important issues
are and what segment of the community is most in need of necessarily scarce legal
assistance. Such choice may be avoidable through long study and consultation prior to
beginning work as a professional. Nevertheless, the issue indicates how concerns about
unnoticed lawyer domination arise repeatedly once one is committed to a truly
collaborative and community focused practice model.
Finally, insofar as lawyers are exhorted to allow community members to
determine goals, there appears to be an assumption that what they want to do will be
worth doing. However, it is unrealistic to believe (although no more or less so than for
any other group), that traditionally subordinate groups will inevitably choose public-
spirited or inherently virtuous courses of action. Even if the goals determined by a
community organization sound well-reasoned, to what extend must a community lawyer
act on them if they were arrived at by a non-democratic process or by the democratically
elected leadership of a group that is non-responsive to the concerns of its dissenting
members? Although it doesn’t seem profitable to explore every issue that might arise as
a result of the principles of deference and decision set-forth by the model, I believe the
foregoing has illustrated many places where awareness and compromise will be required
if the model is to be made workable.

189
So then, what does it take for an attorney to fulfill her obligation to the
community that she chooses to work within? There is a sense in which it is
presumptuous to set-up shop hoping to make a living by serving a community to which
one does not belong. But the fact is that the young lawyer today who manages to make it
through law school ready to work for the good of others is neither entering a community
that is functioning well on its own terms nor expecting to be welcomed as a savior.
Almost all such law graduates are wading into reservoirs of urgent need where people
appreciate the availability of any additional resources. The lawyer owes them a lot. No
one is a saint for just showing up, but then again, the act of showing up is all the lawyer
really has to offer in the beginning. There is just no other way to bridge the gap between
a person who has reached the relative social prominence of membership in a state bar,
and a poor or disempowered community but to show up. What happens subsequently is
another matter, but showing up ready to learn, listen, and work is a promising beginning.

190
Chapter Four: Relation to Groups as a Test of Practice Models

The proceeding chapters have identified many issues concerning attorneys
working in communities or on behalf of groups: the relation of an attorney to individuals
and the represented class as a whole; the relevance of the extent of issue-specific unity
within a class; the ethically unstable position of attorneys claiming to work “for the
community” without well defined allegiances; the demonstrable lack of an ethically
stable alternative model for “community” attorneys. Exploration of these issues may
provide some insight into the best way for cause lawyers to conceive of their practice
goals. One issue that emerges as central to most of the questions above is the existence
of intra-class conflict and its relevance for the attorney’s relation to the class. This
chapter will seek to clarify the status of cause lawyers whose primary allegiance is split
between client and cause by focusing on this problem. It will also explore the issue of
how assertive an attorney should be in injecting themselves into decision procedures
aimed a resolving such division: a topic that inevitably raises related questions respecting
the use of coercive pressure to cause group members to coalesce and the attorney’s
promotion of their own moral and political viewpoint as a part of the decision procedure.
Hopefully, discussion of these issues will shed light on the proper theoretical
relation between attorney and class with respect to the goals and ends of representation.
Even if the most appealing relations to strive for are uncovered, the practical issues
relating to personal, professional, and procedural difficulties explored above may
nevertheless leave us with what are ultimately only provisional and aspirational

191
suggestions for the practitioner seeking guidance. Given the changing nature of practice,
provisional suggestions may ultimately be a boon if they can encourage self-reflection
and frequent re-evaluation. Such self-conscious practice may be the best guarantee that
individual practitioners, faced with an array of distinct and dynamic practice situations,
remain conscious that the attorney-client relationship is at the heart of the professional
endeavor even as they pursue ends in the context of representation, the moral and
political significance of which they are deeply committed to as individuals.
With respect to the question of what an attorney should ultimately do when
confronted with conflicting client factions, the literature proposes several general
solutions. First, there are proceduralist positions that seek to protect dissident minorities
by enhancing the functioning of the procedural rules regulating the filing and litigation of
class cases. Second, there are positions that focus on the enhancement of client
autonomy as an independent value within group practice, thereby seeking to have
representatives reflect the true range of opinion and enhance the ownership of the effort
by individual class members even if their preferred positions do not ultimately prevail.
Finally, there are the comradeship or political solidarity positions that suggest that,
regardless of the ongoing existence of intra-class conflict, legitimate forms of political
process can create morally acceptable sanction for an attorney’s actions on behalf of
groups.

192

Proceduralist Responses to Division
One important line of thought with respect to these issues focuses on possible
modifications of the class-action device. William Rubenstein’s Divided We Litigate:
Addressing Disputes Among Group Members and Lawyers in Civil Rights Campaigns,
explores the parallel problems posed by individuals proceeding with litigation that will
litigate the rights of entire classes without considering the wishes of other members of the
class, and individual attorneys filing cases that will have precedential effect without
consulting the full community of litigators who are experts in the relevant area of law.
328

Rubenstein points out that the “legal capacity of any individual, or group of individuals
within the community to end the debate about litigation by [unilaterally] resorting to
litigation” undermines consensus building.
329
Moreover, the protection of each
individual’s day-in-court “may well deny other community members their days in
court.”
330
This is so, because the “outcome of the initial action, though not preclusive of
future litigations, will be authoritative precedent governing them. Hence each initial

328
William Rubenstein’s Divided We Litigate: Addressing Disputes Among Group Members and Lawyers
in Civil Rights Campaigns, 106 Yale L.J. 1623 (1997), at 1644-47, where Rubenstein expands on the
individualist ideology supporting such actions:

Civil procedure’s private law orientation conceptualizes litigation decisions as individual “rights”
to be protected from governmental or centralized community control. The guarantee of litigative
autonomy is recognized by the “day in court” ideal and realized through procedural rules that
define parties to, and the preclusive effects of, litigation. Because an individual enjoys litigative
liberty, it would deprive her of due process to bind her to the results of a case in which she was not
heard, or over which she did not have control.

329
Id., at 1639.

330
Id., at 1646.

193

lawsuit will infringe upon the freedom of other community members to litigate their own
individual cases (or to choose not to litigate).”
331

Even where a case is initially filed in the name of a class, the limited protections
to ensure group cohesion that are built into the class-action form are not particularly
significant in the face of the individual’s ability to unilaterally begin litigation.
Rubenstein notes that if the same individual sought to formally represent the class by
filing their case in class action form:
[T]he exercise of the plaintiffs' autonomy forecloses the autonomous choices of
others, unless the class device can protect the autonomy of the noninterested class
members. In this circumstance it cannot. In certifying the class, the court would
entertain the argument that the proposed representative was not in fact
representative, but it is unlikely that a community division about filing the case
would bar appointment of the individual to represent this divided class. (Even if
this division did prevent the class from attaining certification, this would simply
put the case back in the situation of having stare decisis, rather than preclusive,
effects on those not present.) Once the case is certified as a class action, the
opportunities for the uninterested litigants to safeguard their autonomy are also
not meaningful in these circumstances. The classic means of dealing with
conflicting class interests is to split the class into subclasses. Yet it does the
opposing group members little good to be entitled to representation in a case they
wish had not been brought, because (as with the intervention rule) they will not
thereby be empowered to have the action dismissed. The class device might also
enable the nonlitigating community members to be involved in proposed
settlements or remedies, but, once again, in this type of litigation with this type of
dispute, these are not particularly meaningful opportunities. To the extent that
pluralist solutions achieved through the class action device turn litigation into a
"town meeting," this is a town meeting in precisely the wrong town.
332

In order to address these issues, Rubenstein suggests procedural safeguards that
will force the use of a democratic decision making process prior to filing such a case:

331
Id.

332
Id., at 1648-50.

194

[R]ather than one, indeed any, individual or elite group of experts deciding for the
entire group when and how to proceed in the litigation arena, democracy ensures
that litigations undertaken for groups have the assent of those whose rights are at
issue. Those individuals governed by the outcome of the case each possess an
opportunity to participate in the decisionmaking that sets the community's goals.
Litigants representing groups thereby have a stronger claim to legitimacy, and
their litigative activities evoke more confidence from their communities and from
other legal actors. Further, whereas individual filings promote competition
among plaintiffs and cases in the legal arena, democratic decisionmaking
envisions community discord before filing and ideally constructs it as a
meaningful, not competitive, discourse.
333

This suggestion, however, appears very difficult to implement. First, the
difficulty in ascertaining who qualifies as a community member and getting them to
participate are significant.
334
Another problem with this suggestion stems from the fact
that class interests are most likely to diverge into distinct positions after the litigation has
begun and the contours of possible relief are finally apparent. While it is easy to
convince groups of the importance of improving schools or ending discriminatory hiring
and promotion practices, finding consensus about how a city should spend extra
educational funds or what principles should be used to alleviate workplace discrimination
is much more difficult.

333
Id., at 1655-56.

334
Id., at 1657-58:

Relatively few class members respond to court mailings and those who do are not representative.
Even more disturbing, few class members attend meetings convened by their attorneys in civil
rights cases. Those who do respond or attend are often neither knowledgeable nor unbiased
observers, and their views are typically shaped by the attorneys presenting the issues to them.
These shortcomings of community decisionmaking in class actions led Rhode to conclude, in the
context of (complex) institutional reform litigation, that "public discussion is of limited use in
eliciting informed preferences" because "as political theorists remind us, the more technical the
issue, the less the point in counting noses."

(citing Deborah L. Rhode, Class Conflicts in Class Actions, 34 Stan. L. Rev. 1183 (1982), at 1234-38).

195

Rubenstein has two quite smart procedural ideas for forcing individuals to consult
with the larger communities of which they are a part. First, he suggests modeling a
special pleading rule for civil rights cases on the requirement already in place for
shareholder derivative suits.
335
This rule requires that prior to filing such a suit the
plaintiff show that he has communicated his grievance to the corporation: this has proven
to be a helpful requirement for improving the quality of actions that effectively sue a
corporation on its own behalf.
336
Rubenstein proposes an analogous pleading form for
“community and derivative suits," which would require plaintiffs “to demonstrate to the
court that the case grew out of some prefiling democratic processes (e.g., dialogue,
participation, voting, consultation) and hence that she could fairly represent the group's
interests.”
337

Second, Rubenstein proposes a pre-filing requirement that “plaintiffs filing group-
based cases provide notice prior to filing to those who would be significantly affected by
the outcome of the lawsuit.”
338
Although this is a more modest proposal, Rubenstein
believes it would at least “force self-appointed class representatives and experts into a
dialogue with other interested group members.”
339
These proposals have problems
similar to those inherent in a general requirement for democratic participation: the group

335
Id., at 1670.

336
Id.; Fed. R. Civ. P. 23.1; Model Business Corporation Act § 7.42.

337
Id., at 1671.

338
Id., at 1673.

339
Id.

196

to be consulted will be hard to define; the added process requirements will create a
barrier to the filing of what might otherwise be meritorious actions; and, with respect to
the second suggestion, the financial costs of notice to class members could significantly
discourage litigation. It is significant to note that civil rights classes seeking injunctive
relief are excluded from the prefiling notice requirement as part of damages classes
precisely because of concern about the stifling effects of such costs.
340

Rubenstein's application of these same ideas to the behavior of attorneys is far
more interesting. Attorneys too have a presumptive right to file and pursue cases of
significant impact on behalf of individual clients. This is so even when the attorney has
no experience in the area of law at issue. If attorneys who are experts in the area seek to
discourage or advise her against a poorly chosen course of action, an individual attorney
can rebuff them with the claim that she is doing what is best for her client.
341
Conversely,
the expert litigators affiliated with relevant civil rights organizations may have little
interest in helping the individual client pursue the process he feels he is due where his
concerns are idiosyncratic or his situation presents poor facts for a precedent establishing
case. Rubenstein argues that community interests can be protected from inexperienced or

340
Fed. R. Civ. P. 23(b).

341
Id., at 1652-53. Rubenstein finds this argument troubling:

The individualist attorney knows her case is a test case meant to make law for the entire
community. She pursues it for that reason. When her tactics are questioned as possibly harming
the entire community for which she hopes to set a precedent, it is inconsistent to defend them on
the grounds that they comport with the desires of her individual named client. A more robust
vision of client loyalty in this circumstance would ask the litigator to acknowledge the larger client
- the community - and thus to consider the consequences of her tactics on the community's
interests.

197

short-sighted attorneys by the introduction of procedural requirements mandating the
solicitation of significant input, or even the approval of, recognized experts in the civil
rights concerns of the relevant community.
342
Although such a requirement may seem
likely to stifle litigation on behalf of the community, Rubinstein notes that:
[B]ecause professional civil rights attorneys are often the only attorneys who are
actually appointed by and answerable to their communities . . . if they infringe on
their clients' interests, they alone (unlike volunteer attorneys) can be disciplined
by their organizations' board and membership, both of which are typically
comprised of community members. It is their very relationship to their
communities that makes them less, not more, likely to undermine the political
processes of those communities.
343

Generally, Rubenstein argues that the specialized expertise of lawyers with long-
standing ties to a community should be recognized.
344
He also suggests revision of the
ethical guidelines for attorney-client relations to reflect the fact that attorneys often do
and actually ought to take into account interest more extensive than those of individual
clients when litigating around civil rights.
345

For some, these suggestions will be difficult to accept because of the intuition,
supported by the entrenched individualist ethos of the professional rules, that all points of
view will not be advocated for if there is a panel of experts that can stop litigation. Of
course it would be unfortunate if an important voice was not heard or if some individual
community members felt that their voices had been stifled. Nevertheless, when it comes

342
Id., at 1663-68.

343
Id., at 1668.

344
Id., at 1676-77.

345
Id.

198

to something as important as the establishment of precedent respecting the rights of a
social group far into the future, it may be wise to evaluate the viability of a legal position
before it is advocated before the federal judiciary. Some faith in the expertise of
recognized authorities is surely reasonable. Moreover, the community accountability of
specialist attorneys noted by Rubenstein would likely be greatly enhanced if the
individuals charged with evaluating rights litigation on behalf of the community were
more easily identifiable.
Deborah Rhode’s essay, Class Conflicts in Class Actions, provides further reasons
to support the introduction of expertise into the civil rights litigation arena. Rhode,
however, focuses on the use of procedural reforms to hold both judges and attorneys
accountable for creating a record of efforts to understand the breadth of community
positions prior to binding class members to a particular resolution of the conflict.
Specifically, she supports greater judicial utilization of “expert witnesses, special
masters, and magistrates for surrogate representative functions.”
346
She argues that:
Requiring attorneys to record contacts with the class and perceptions of conflict
would, if nothing else, narrow their capacity for self-delusion about whose views
they were or were not representing. Explicit professional obligations, even those
unlikely to trigger any formal sanction, often affect behavioral norms simply by
sensitizing individuals to the full implications of their conduct.
347

Much like Rubenstein, Rhode also focuses on reform of class rules. While
Rubenstein suggested changes in pleading requirements to guarantee that representative
plaintiffs were exposed to the breadth of class sentiment and significant segments of the

346
Deborah L. Rhode, Class Conflicts in Class Actions, 34 Stan. L. Rev. 1183 (1982), at 1256.

347
Id., at 1258.

199

community were alerted to the litigation, Rhode places an interesting emphasis on
creating procedural requirements for judges. In order to engage class members more
fully, she suggests:
[C]ourts should be required to make a factual record concerning notice. More
specifically, the trial judge should be obligated to specify, before entering any
remedial order or consent decree, the nature and timing of information provided
to class members and why the court found it adequate in the circumstances.
Among the factors relevant to that determination would be the probable
intelligibility and expense of various forms of communication, and the likelihood
that responses would significantly inform the decision-making process. For the
vast majority of cases, those factors would militate against any individualized
communication. Some combination of public announcements, postings at central
locations, open meetings, insertions in regular mailings, or contact with court
appointed experts should suffice to apprise the court of significant unrepresented
constituencies. However, where those options are unsuitable or the court requires
more accurate information about aggregate preferences, the expense of sampling
or individual notice may be warranted.
348

In order to assure themselves that the full range of class sentiment is being presented, she
also suggests a requirement “that trial courts make a factual record on the adequacy of
representation before entering a remedial or consent decree.”
349
Community knowledge
can be assured by focusing the evaluation on the length and breadth of the attorney’s
contacts in and consultation with the community. Further, she argues that judges should
be much more open to intervention by dissident plaintiff groups, arguing that judges
should make:
a more broad-gauged inquiry into the potential contribution of intervenors and a
more particularized assessment of its expense. Concern should focus less on the

348
Id., at 1248. She proposes defraying the cost of such measures by the adoption of procedural provisions
allowing shifting of the costs to defendants. Such fee-shifting measures obviously engage a long-running
debate inappropriate to the issues at hand. For further consideration of this issue see Rhode’s discussion
and accompanying citations at 1248-49.

349
Id., at 1249.

200

timing of the dissenters' request or the partial redundancy of their views, and more
on the direct administrative costs that their involvement would entail. Especially
if remedial processes are still fluid, courts should make maximum efforts to
accommodate new entrants in some capacity.
350

Rhode makes a strong case for the importance of such reforms by extensively
exploring the many incentives judges and attorneys have for failing to give a full hearing
to the breadth of the opinions within a community. Moreover, she notes that even the
defendant, who sometimes might give voice to dissent within the plaintiff class, will
oftentimes avoid alerting the court to class divisions of which they are aware in order that
the resolution of the case will have the broadest res judicata effect, thereby precluding
future litigation by the greatest number of people.
351
Rhode does not think plaintiffs’
preferences should necessarily have overriding impact on how their rights are litigated,
because she feels that in many cases “current plaintiffs or their guardians will be
insufficiently disinterested or informed to speak for the entire class that will be bound by

350
Id., at 1253.

351
Id., at 1217. Judges will often react to significant divisions within a class by splitting the class into
distinct subgroups, thereby possibly requiring unique accommodations or occasioning future litigation.
Further, judges are cognizant of pragmatic factors favoring certification in injunctive and structural relief
cases:

To withhold certification in structural relief cases will not preempt opposition, whether animated
by financial or ideological motives. Regardless of how the action is denominated, a finding of
liability typically triggers class-wide relief and class-wide concerns. Most institutional reform
lawsuits now filed as class actions could also proceed as personal claims. Denying certification
would often introduce all the inefficiencies attending individual suits, without necessarily
restricting the scope of the ultimate decree. When private plaintiffs establish unlawful conduct
warranting structural relief, a court must so declare; the breadth of a remedy depends on the
"scope of violation” not the number of names in the caption of the complaint.

Id., at 1195-96 quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).

201

the court's decree.”
352
Nevertheless, she argues for the importance of giving clear
presentation to plaintiff concerns and the full range of class sentiment because:
[E]ven if their views are not dispositive, those litigants have a strong stake in
seeing their position put forward on issues that could materially affect the quality
of their lives.
353

Rhode’s position is that in “cases involving intra-class conflict, the preferable
strategy is to grant certification and create sufficient procedural safeguards to ensure
adequate disclosure of dissenting views.”
354
She argues that both the rationality of the
judge's decisions and the perceived legitimacy of any resolution will be enhanced by fully
disclosing class sentiment:
Disclosure of the full range of class concerns reduces the chance that courts will
overlook, undervalue, or otherwise misconstrue relevant considerations. Parties
who believe that their perspectives have been fairly presented may also display
more confidence in the judicial process and greater willingness to abide by its
results. Moreover, quite apart from the effect on particular outcomes or parties'
perceptions, recognition of a right to be heard serves certain broader societal
values. Respect for individual dignity, autonomy, and self-expression demands
that those with rights directly at risk have an adequate means of registering their
concerns.
355

The attorneys involved in class litigation are also often incentivized against
disclosure of intra-class division in several ways. Most generally, the attorneys usually
have a result that they think is desirable, and their obligations run to the class as a whole

352
Id., at 1199.

353
Id.

354
Id., at 1197.

355
Id., at 1198.

202

which includes future members, so they are seeking that resolution vigorously.
356
As
Rhode notes:
[W]here the range and intensity of divergent preferences within the class are
unlikely to surface without counsel's assistance, he often has strong prudential and
ideological reasons not to provide it.
357

356
As Rhode describes these problems:

In some instances, counsel may be reluctant to espouse positions that are at odds with those he has
taken or intends to take in other proceedings or that could establish an unwelcome precedent.
Moreover, . . . [o]nce a lawyer has prepared a claim with potentially significant impact, he may be
disinclined to settle.

Id., at 1209. With respect to the interests of future class members:

The class as an entity has interests beyond those expressed by its current constituents. As in many
other decisionmaking contexts, we do not trust the individuals capable of registering preferences
to make adequately informed or disinterested judgments.
. . .
From this perspective, relying on class counsel as a mediating presence has obvious advantages.
Such reliance maintains a convenient legitimating myth of client sovereignty, without an
inconvenient substantive reality.

Id., at 1241.

357
Although it introduces several large issues beyond the scope of this discussion, Rhode’s insightful
treatment of this point is worth considering at length:

flushing out dissension among class members can prove costly in several respects.

For example, opposing parties often seek to capitalize on class dissension by filing
motions for decertification. If such efforts prove successful, class counsel may lose a substantial
investment that he cannot, as a practical matter, recoup from former class members. At a
minimum, such motions result in expense, delay, and loss of bargaining leverage, and deflect
resources from trial preparation. Decertification disputes may also trigger involvement of
additional lawyers, who would share the limelight, the control over litigation decisions and, under
some circumstances, the resources available for attorneys' fees.

Exposing conflict can also impede settlement arrangements that are attractive to class
counsel on a number of grounds. As in many other litigation contexts, attorneys often have a bias
to settle not shared by their clients. Since institutional reform plaintiffs generally do not
underwrite the costs of litigation, their primary interest is in the result attained; the time and effort
necessary to attain it are of less concern. Yet from the attorney's perspective, a modest settlement
may generate a result "bearing a higher ratio to the cost of the work than a much larger recovery
obtained only after extensive discovery, a long trial and an appeal." [Quoting Saylor v. Lindsley,
456 F.2d 896, 900 (2d Cir. 1972).] For example, if the prospects for prevailing on the merits are
uncertain, some plaintiffs will see little to lose and everything to gain from persistence. That
viewpoint may be inadequately aired by class counsel, who has concerns for his reputation as well
as competing claims on his time and his organization's resources to consider.

203

Rhode’s position addresses the undeniable incentive to move forward with group
litigation as a way to preclude individuals from proceeding on their own, by creating
procedural safeguards that will uncover and force consideration of the diversity of class
sentiment. This is a good idea since there are so many reasons for repeat players (judges,
attorneys, institutional defendants) to avoid acknowledging the existence of complex and
divergent class sentiments. Nevertheless, there are obviously very important reasons to
guarantee that the people who will be bound by litigation outcomes feel that they have
been heard. These include: the pursuit of basic process values, improving pre-settlement
issue identification, and the increased likelihood of community support for litigation
outcomes.

Client-Centeredness: The Enhancement of Group Autonomy
Another prominent position on this issue, perhaps most closely related to
community lawyering practices explored above, is derived by extending the principles of
“client-centered” lawyering to groups, with the goal of enhancing client autonomy within
the collective. Where Rubenstein focused on democratization of the decision processes,
and Rhode emphasized procedural mechanisms to ensure that judges and attorneys seek
out and acknowledge the existence of dissenting views within classes, advocates of the
client-centered position argue for greater group control of litigation goals. As described

The potential for attorney-client conflicts is compounded when a proposed settlement
makes extremely generous, or totally inadequate, provision for class counsel.

Id., at 1206-07.

204

by Stephen Ellman “[c]lient-centered practice takes the principle of client
decisionmaking seriously, and derives from this premise the prescription that a central
responsibility of the lawyer is to enable the client to exercise his right to choose."
358

When extended to group representation situations, such sensitivity and responsiveness to
client groups is to be brought about by eschewing the paternalism of much public interest
practice: rather than dictate agendas to their clients, attorneys should seek to bring about
“empowerment” through the process of representation.
359

Stephen Ellman's essay Client-Centeredness Multiplied: Individual Autonomy and
Collective Mobilization in Public Interest Lawyers’ Representation of Groups,
360

provides a thoughtful exposition of how the enhancement of individual client autonomy
can be promoted even within group representation. He begins by acknowledging the
tension between and “uncertainty about the relative values of autonomy and community”
in situations of collective action.
361
Nevertheless, he does not see them as inherently
opposed. He argues that:

358
Stephen Ellmann, Lawyers and Clients, 34 UCLA L. Rev. 717, 720 (1987). On client-centered practice
generally, see DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT-
CENTERED APPROACH (1977) (describing objectives and techniques of legal interviewing and counseling).

359
See Id.; also see William H. Simon, The Dark Secret of Progressive Lawyering, 48 U. Miami L. Rev.
1099, 1099-1100 (1994) (“In this literature, client empowerment means liberation from lawyers as much as
obtaining leverage on the outside world. The scale of practice is typically small – often one on one – and
the benefits are often as much psychological as they are material”).

360
Stephen Ellman, Client-Centeredness Multiplied: Individual Autonomy and Collective Mobilization in
Public Interest Lawyers’ Representation of Groups, 78 Va. L. Rev. 110, 1109 (1992).

361
Id., at 1108.

205

[P]eople's involvement in groups can both protect and express their autonomy;
and at the same time, groups that respect their members' autonomy may draw
strength from that very feature of their make-up.
362

While the compatibility of individual autonomy and collective action is largely
aspirational, Ellmann believes that lawyers can facilitate the harmonization of the two
ideals.
363
He thinks that if attorneys are successful, they will have grasped a unique
“opportunity to empower clients by helping them to realize their collective capacity as
political actors.”
364

Ellmann points out that “[p]eople’s membership in groups is often itself an
expression of their individual autonomy.”
365
He argues that:
To some degree every such commitment limits the chooser's future choices, but
our acceptance of these limits is precisely an expression of our autonomous
capacity to shape our lives. Most such choices also reflect a willingness to accept
some future collective judgments with which the individual member disagrees;
generally, it is no part of these decisions to insist that everything must go our way
or the deal is off. Even our membership in groups that we did not originally
choose to join, such as (we may assume) the families, religions, and races into
which we are born, may express our autonomy, for our continued
acknowledgement and celebration of these originally involuntary ties will over
time come to contain at least an element of choice.
366

362
Id., at 1109.

363
Id., at 1109-10.

364
Id., at 1111.

365
Id., at 1123. As Ellmann notes: “The assertion that people can protect their individual wishes through
group membership is hardly a revelation; a central lesson of modern life is that it is very difficult for
people to protect themselves against others' encroachment except through group involvement that
overcomes the barriers to effective individual action.” Id., at 1122-23.

366
Id., at 1123.

206

Nevertheless, groups can also discourage or suppress the autonomy of individual
members. Ellmann argues that lawyers working with groups can protect individual
autonomy only through “an intimate and detailed engagement between the lawyer and the
client.”
367

When working with an individual client, the creation of trust and attainment of a
clear understanding of client’s goals required by the client-centered model is always
difficult: creating trust and understanding when working with a group presents added
difficulties. Ellmann attempts to create a model for doing so by extrapolating from the
principles of individual client-centered practice, which he describes as resting:
[O]n the premise that individuals should make their legal decisions for
themselves. But they should not make these decisions on impulse or in ignorance.
Instead, it is the lawyer's job to win the client's trust and cooperation, so that the
lawyer can understand the client's situation and engage the client in a very careful
process of decisionmaking.
368

Extending this to groups, Ellman suggests that:
[J]ust as standard client-centeredness seeks to encourage individual clients to
make decisions through a careful, deliberate and rational process, so group client-
centeredness would seek the same achievement from the group. Broadly, too, the
elements of a well-considered decision are the same for a group as for an
individual. Multiple decisionmakers, like individuals, should clarify their goals,
identify the available courses of action, weigh their pluses and minuses, and then
decide what to do.
369

367
Id., at 1129.

368
Id.

369
Id., at 1132.

207

As explored by Ellman, creating such a relationship with a group requires: building trust
with a group – a much more complex undertaking that when undertaken within individual
representation;
370
attempting to ensure that individual members have their views heard
through the implementation and use of a relatively democratic group decision process;
371

serving as a monitor and a mediator, ensuring the fairness of the process;
372
and
attempting to encourage decisions that the group can unite around.
373
Implementation of
these norms creates the risk of lawyer domination in the decision procedure and having
undue influence on its ultimate outcome. That said, Ellmann thinks that it is proper for
the attorney to express her:
own moral or political perspective when she disagrees with the client's intentions.
So, too, a client-centered lawyer for a group can give advice based on the
priorities the group has articulated during her work with it, and she can speak
based on values she holds but that the group may not.
374

This position is close to the community lawyering position articulated above in its
emphasis on autonomous decision-making and fear of attorney encroachment on client

370
Id., at 1136-39.

371
Id., at 1142.

372
Id., at 1152.

373
Id., at 1154:

The client-centered lawyer who represents a group should similarly seek to encourage a decision
that will "sit well" with the group as a whole. Decisions that the group can live with promote the
group's cohesion and strength. Hence they enhance the autonomy of the group and, within limits,
the autonomy of the members. To some extent, groups may be able to take heart from decisions
over which the members were deeply divided, if every member is persuaded that the process of
decision making was a fair one in which he or she was heard and his or her views respectfully
considered.

374
Id., at 1164.

208

choices, but it is also essentially conservative in its treatment of dissenting voices. While
the commitment to democratic process creates room for voicing dissent prior to litigation,
Ellmann maintains that once litigation has begun the “lawyer's first duty should be to
represent the position endorsed by the organization.”
375
In the face of serious dissent, the
lawyer’s sole duty to what he describes as “an alienated, and seemingly voiceless,
minority within the larger group,” is to “ask them whether they want to pursue on their
own the issue over which they have argued with the majority, and if they do, . . . advise
them to get counsel.”
376

As client-centeredness for groups tracks community lawyering in many respects,
it also runs into some of the same difficulties when faced with conflict such as the role of
attorney self-assertion. Ellman’s pragmatic acknowledgement of the inevitability of the
attorney being a political actor within the group is an important insight extended by some
other client-centered theorists who argue that attorneys who fail to express their own
moral and political perspective on issues "demeans clients’ ability to make independent
judgments."
377
This position is developed by William Simon who suggests that intra-
class conflict should be confronted by creating a strong community of interests consisting
of both class and class counsel.
378
He eschews positions that are apologetic about the
existence of attorneys who hold their own strong beliefs, and argues that through

375
Id., at 1160.

376
Id., at 1161.

377
Id., at 1163, quoting Binder & Price, supra, n.31.

378
William H. Simon, The Dark Secret of Progressive Lawyering, 48 U. Miami L. Rev. 1099 (1994).

209

consistent and comprehensive communication and meetings, lawyers and their clients
will be able to form one nonhierarchical community of equal political actors wherein the
lawyer takes on the additional role of facilitating the goals of the community.
379

Simon makes some insightful points about the weaknesses of theories of
progressive legal work. First, he argues “that effective lawyers cannot avoid making
judgments in terms of their own values and influencing their clients to adopt those
judgments.”
380
This is the case because lawyers choose their clients through their choice
of specialization and affiliation. Next, he claims that “the advice lawyers give clients and
the representational tactics they choose on behalf of clients are inevitably influenced by
the lawyers' own values.”
381
Finally, he argues that:
[C]ollective practice involves commitments to multiple clients with potentially
differing interests. To engage in this kind of practice, lawyers have to make
choices that influence the balance of power among these interests.
382

Although explicitly acknowledging these points, each of which create critical tensions
within the application of progressive theory to practice, he rejects the description of such
inevitable attorney influence as pathological.
383

Simon argues that once the threat of lawyer domination is dismissed as being of
greater theoretical than practical significance, the progressive emphasis on preservation

379
William H. Simon, Visions of Practice in Legal Thought, 36 Stan. L. Rev. 469 (1984).

380
Simon, Dark Secret, at 1102.

381
Id.

382
Id.

383
Id., at 1104.

210

of client autonomy largely collapses into a traditional deference for client self-
determination of the ends of representation. He sees the tendency of such positions to
focus on attorney creation of empowerment among clients as largely coercive, describing
“the structure of the consciousness-raising process [as] necessarily a structure of power,”
and arguing that “the ways the lawyer influences that structure will necessarily influence
the outcomes [of choices of ends, strategies, etc.].”
384
Finally, he finds the level of a
lawyer self-effacement required by these positions deeply implausible, due to the
alienation that would be caused by not “allowing the expression of any personal
commitments of the lawyer beyond the general commitment to the poor.”
385
He suggests
that not only is such a diminished view of the cause lawyer’s role implausibe,
386
it leads
progressive lawyers to act the same as traditional practitioners that uncritically allow
clients to determine the goals of the lawyer client relationship.
387
Finally, Simon

384
Id., at 1105.

385
Id., at 1106.

386
See Id., at 1105-06, arguing:

Mainstream doctrine portrays the lawyer as mediating between client goals and a determinate, just
system that delineates the boundaries of each citizen's autonomy. Since lawyers are presumptively
morally committed to the system, serving the autonomy of any client is consistent with the
lawyer's own moral autonomy. But radical lawyers don't see the system as either just or
determinate. They see the assertion of legal claims as part of a broad political struggle. Radical
lawyers thus cannot think that their work is valuable and fulfilling just because they help enforce
their clients' legal rights. The fact that their clients are poor is critical to their sense of professional
worth and satisfaction. But the new scholarship seems hostile to allowing the expression of any
personal commitments of the lawyer beyond the general commitment to the poor. Once the client
is identified as poor, her values are supposed to determine the relation. Yet this position seems to
condemn the radical lawyer to an experience that, in almost any other context, she would call
alienation, since the values of even poor clients' will sometimes be different from those of the
lawyer.

387
See Id., at 1106, arguing:

211

emphasizes that neither the theory of client-centered lawyering, nor that of community
lawyering, provide any real insight into how to resolve the difficulties that lawyers have
it relating to divide classes.
388
Intra-group conflict inevitably forces the lawyer to make
difficult choices in order to function as a group representative. As Simon puts it:
Any degree of conflict of interests among client constituencies will necessarily
require lawyer judgments about the comparative legitimacy of different client
goals that cannot be made in terms of articulated client goals. This seems
unacceptable in the new poverty law scholarship framework.
389

This point can be seen as an alternative articulation of the concern developed above with
respect to “community” representation: that such a position is so unstable in practice as to
require any thoughtful practitioner to rely on a traditional framework for the resolution of
difficult situations. A theory that only works during periods when it is not hard-put
against the realities of practice is obviously close to useless. Admirable as they initially
sound, it is unclear why the priorities of such a theory should be inculcated in clinical
education settings as models of practice if their transfer to non-controlled settings outside
the academy is doomed to fail.
David Luban holds a position similar to Simon’s but comes to quite different
conclusions. He sees the rejection of models that encourage lawyer passivity in favor of

this premise, morally implausible enough for mainstream lawyers, seems doubly so for poverty
lawyers. Most mainstream lawyers allocate their efforts through the market to the highest bidders,
thus obviating normative judgments. But poverty lawyers typically disapprove of this practice and
in any event cannot practice it themselves. They must make normative judgments about how to
distribute their services, and of course, they cannot defer to clients here, because they don't know
who the clients are until the judgments are made.

388
Id., at 1107.

389
Id., at 1108.

212

client choice as essential to a coherent theory of progressive representation.
390
He is
comfortable with the existence of facts used as an indictment by advocates of greater
client control, conceding:
that public-interest lawyers bent on law reform recruit clients as plaintiffs; that
they sometimes manipulate their clients and put the interests of the cause above
those of the clients; that they occasionally file class actions, even though a large
part of the class invoked, sometimes a majority, opposes them; and that there will
be times when "their handling of test cases serves, not the enlightened self-interest
of the poor, but the political theories of the lawyers themselves."
391

Luban simply doesn’t find these facts objectionable.
392
He believes that objections to
attorney actions taken in the face of client dissent "amount to an attack on political action
itself."
393

Luban argues that cause lawyers and their clients "engage in a political mode of
action that differs significantly from the ordinary lawyer-client relationship."
394
He
describes this relationship as one of "mutual political commitment" or "comradeship,"
that is based on a central element of reciprocity.
395
Whereas the obligations in a
traditional attorney-client relationship run almost exclusively from the attorney to the
client who has engaged him as an agent, Luban argues that “political comrades, by

390
DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY (1988).

391
Luban at 317, quoting CHARLES WOLFRAM, MODEN LEGAL ETHICS. St. Paul, Minn.: West, 1986, at 940.

392
Id.

393
Id.

394
Id., at 324.

395
Id., at 324-25.

213

contrast, have a primary one way commitment to their political cause and a derivative
mutual commitment to each other.”
396
Luban argues that the Supreme Court cases of
Button and Primus endorsed First Amendment grounds “for treating the lawyer-client
relationship in political contexts differently from the standard agency relationship.”
397

As Luban describes it, such a political conception of the attorney-client
relationship involves not only reciprocal commitment but also mutually instrumental
treatment:
Mutual political commitment, . . . is an unsentimental, deeply risky adventure
with high stakes: it generates inestimably valuable personal relationships,
tempered to a unique extent by suspicion and manipulation, and it threatens at
each moment to disintegrate into poisonous, unforgiving, hatred.
These features make political action extraordinarily competitive and
individualistic.
398

However, so long as such commitment is “taken freely and reciprocally by people who
regard each other as political equals," an attorney’s instrumental "manipulation of a client
on behalf of the cause is tolerable."
399

396
Id., at 326-27.

397
Id., at 327. He argues that :

Conceptually, what is interesting about [Primus and Button, and related decisions,] is that they
mark a dissonance between the agency-centered ethic of individualized service on which bar codes
are predicated and law practice as political action for collective ends. The Court's insistence that
what is really going on is a form of protected political association indicates the agency, or
individualistic, conception of legal practice is not the only one - that the political, or collective,
conception is also constitutionally legitimate.

Id., at 328.

398
Id., at 333.

399
Id., at 337.

214

Luban challenges the common intuition that an attorney who promotes their own
interests, or the interests of a small subset within a class, acts unethically. He argues that,
so long as an attorney makes credible efforts to stay in consistent consultation with the
group, he is justified in overriding the wishes of the group representatives when he feels
they are not acting in the best interest of the client class. This is a drastic step, but Luban
feels that where class members fail to make informed decisions or where they fail to see
beyond intergenerational intraclass conflicts of interest created by the existence of as yet
unascertained or unborn class members, “the attorney should consult with a part of the
class that adequately represents the values of the class members, without worrying too
much about their actual wishes.”
400
He argues that attorneys faced with divided classes,
especially when the interests of future generations are insufficiently represented, "cannot
abdicate, they must act. Thus theirs is a mandate of necessity. They must decide the
interests of the class because the buck has stopped with them."
401

This treatment of the problem appears to rest on a misunderstanding of the unique
nature of political litigation. By arguing that classes may be manipulated or simply
forced into pursuing ends that serve future members of that class, Luban forgets that a
central premise of all litigation is that it functions solely as a means to resolve actual
disputes. In the absence of an existing and justiciable conflict between presently
identifiable parties, it is unclear why a court would involve itself in such an action.
Essentially, the problem is that lawsuits, while capable of serving many ends, are simply

400
Id., at 346.

401
Id., at 349.

215

not designed to serve as exercises in deliberative democracy; they are a means of
resolving clearly drawn and presently existing conflicts. Therefore, while Luban’s
understanding of the politicized nature of social change litigation is interesting, his belief
that political litigation is so transcendently distinct from other class representation as to
absolve an attorney of close accountability to client desires bespeaks a misconception
about the nature of the undertaking at hand.
Nevertheless, Luban’s exposition of the unique character of the politicized
attorney-client relationship and the egalitarian interactions presupposed by the dual
commitments, first to cause and then to each other as political co-equals, moves us closer
to a workable conceptual framework for accommodating the inevitable tensions between
attorneys and divided groups. Although a lawyer interacting with a divided class is
always an ethically fraught situation, there are reasons to reject the traditional
presumption in favor of dissaffiliation or division of the class.
402
Even within an
ideologically diverse class, collective action may often prove to be beneficial.
403

Although plaintiffs with different visions for relief might feel better represented if they
were split into separate groups and thereby better able to make their case distinct,
pursuing a unified challenge may create a result that is more satisfactory for each group
than what they could obtain as distinct groups working, to some extent, at cross-
purposes.
404
Further, staying together may allow the class to work towards resolution of

402
Simon, Visions of Practice, at 480-81.

403
Id., at 481.

404
Id.

216

their differences during the course of their affiliation. Not only will facing a common
opponent possibly create greater group cohesion and deeper solidarity than was initially
present, preemptive disaffiliation denies the reality that the process of collective action
can itself change the goals and understanding of clients in significant ways.
405

Shared Aspects Providing Legitimacy in Representation of Divided Classes
Looking at our models through the lens of these analyses of intra-class conflict,
some preliminary conclusions are possible. A range of attorney relations to community
and class members appear morally acceptable so long as a clear unity of purpose exists
between attorneys and the class members they purport to represent. Such a unity of
purpose in the early NAACP struggle validated the implementation of extremely
antidemocratic and lawyer-driven strategies of attorneys working within the Private
Attorney General Model. Likewise, the community lawyering model strives for unity of
purpose between lawyer and community in order to ensure the correct prioritization of
issues and ongoing community involvement in litigation activities, both of which are
among its primary values. Traditional practitioners can also, however, claim a similar
unity of purpose between their goals and those of their clients, especially in extreme
cases where the attorney fails to maintain any critical distance from the ends of the client
regardless of their merit and essentially merges with the client’s perspective.

405
Id.

217
Likewise, although the positions emphasizing relations of solidarity or
comradeship between lawyers and clients believe that they justify lawyer self-assertion,
such positions are reasonable only to the extent that attorneys and clients antecedently
share similar goals. In the end, the emphasis on equality and respect between actors in
this model gives community members no more than their due (certainly no more than
paying clients receive) and, as discussed above, simply cannot justify the level of
attorney control over the ends of litigation its proponents believe it does. Insofar as an
attorney feels the need to diverge from the expressed desires of her client, styling herself
a committed comrade will only justify her actions if that client eventually coalesces
around and endorses her position. Advocating truly unpopular litigation positions “on
behalf of” any but the most completely voiceless constituencies will simply not be
tenable over time regardless of an attorney’s justification for doing so.
When confronted with intra-class division, attorneys seem to do best when they
hew to a rather traditional position focusing on their responsibility to represent as best
they can the original ends they were charged with attaining. While it must be
acknowledged that lawyers often play an outsized role in the initial crystallization and
statement of ends, especially where a case is conceived and driven by attorneys at every
stage, the procedural safeguards proposed above would go a long way towards protecting
the unique interests of civil rights classes. While group representation can be improved
by procedural devices, thereby making more voices heard by judges and class counsel,
attorneys invested in complex litigation are almost invariably forced to more forward
with the original agenda even in the face of emergent client dissent about tactics or aims.

218
This is so because the more perspectives the attorney is accountable to, the greater the
ethical instability of her position. As explored with respect to community lawyering,
there is no stable place within which an attorney can function unless their allegiance is
clear and can be guaranteed into the future. This is entailed by the fact that attorney-
client relationships are essentially representation relationships. In order for them to work,
they must pick out a unique relation between the attorney and the client or organization
that the attorney does not, currently or prospectively, share with other members of the
community.
What form do the positions above posit as ideal for attorney-group relations?
Ellman’s work on client-centered practice points out that client-centeredness should be
tempered by an understanding that ongoing identification as a member of a group is more
than accidental. On the one hand, this means that each member of a group doesn’t
always have to get their way in order to have their perspective respected. On the other
hand, membership in a group is undoubtedly enriched by having one’s point of view
heard within the group even if not ultimately adopted by it. Both Ellman’s group client-
centered position, and the community position as developed with Freire in mind, make
space for attorney articulation of their own beliefs. Simon sees the basis of attorney
legitimacy as respect and solidarity. Luban, although arguing for a more individualistic
brief for the attorney, still points to a kind of shared involvement in ends-driven political
struggle as the basis of attorney action on behalf of groups.
The question remains: do any of these positions actually provide an acceptable
basis to free non-traditional practitioners from the limitations of professional rules

219
developed to bolster traditional advocacy? Has the emergence of cause lawyering
created any unique ethical space in the profession? The answer appears to be “no.”
While the alternative models explored above involve room for individual aspiration to a
practice that feels quite non-traditional, individualistic pursuit of political goals, using
clients as means to an end, is no more appealing than uncritical and aggressive pursuit of
any end a client chooses to set forth. Nevertheless, within the vast middle ground of
everyday practice, space may remain to hope for something more: unity of purpose and
shared values based on something deeper than predetermined professional role. While a
detached but respectable non-cause practice leaves the attorney client relation one of
distant representation, cause lawyers seek to practice in a way that fosters a strong sense
of unity of purpose with others in the pursuit of goals that are mutually important. This is
distinct from traditional practice. Aspiring to such unity of purpose is inherently open-
ended and, as we have seen, cannot alone support a radically new profession relation, but
it does seem to promise the possibility of interpersonal reciprocity and shared meaning
sufficient to provide great professional satisfaction. Thinking of one’s professional
practice as striving for this ideal allows, perhaps, for the possibility of a more fulfilling
life in the law. Additionally, as I argue below, these ideals can point towards a very
different locus of moral import for an ethically engaged attorney.

220
Chapter Five: A New Model of Morally Committed Legal Practice

What has this examination of the most common models of cause lawyering shown
about the possibility of overcoming the moral poverty that many find characteristic of
contemporary legal professionalism? This project began with a description of the
untutored hope of people entering law school to join a profession where they could
pursue a deeply meaningful professional life; effectuating values that transcend the
merely instrumental. The commitments and values at issue work in very different ways
for criminal practitioners, but in the context of civil practice we have sympathetically
explicated and critically evaluated the models of legal practice that are most often
believed to be capable of supporting these ideals. Despite the vague positive ideals of
reciprocity of commitment, unity of purpose, and connection with a community which
alternative models aspire to, no model considered has come close to providing a
satisfactory answer to our initial problem. Such a result is quite disheartening because
we have examined the main options on offer to public interested law students for
focusing their practices on doing good and being more than just a well compensated
means to others’ ends.
I believe that these and future models of alternative legal practice will continue to
disappoint regardless of how the attorney-client relationship is approached. As we have
seen, in our legal system, the relationship between attorneys and their clients is
constrained by core commitments to confidentiality and loyalty. These commitments
cause all models that are defined by their approach to the attorney-client relationship to

221
inevitably collapse towards a common, client-focused conception of an attorney’s ethical
obligations. The theories described above have staked out places on a continuum of
possible approaches to the attorney-client relationship, each arguing that if an attorney
characterizes the relationship in a certain light, or approaches relationships strictly guided
by certain principles, a more humane and ethical light will bathe the relationship. This
continuum ultimately forms a circle: a practitioner that zealously pursues any client’s
ends with no thought to evaluating the worth of those ends is in practice little different
than a scrupulously devoted client-centered practitioner who would never deign to
influence the client goals uncovered in their painstaking excavation of a client’s actual
desires. No point on the circle seems to provide any ethically superior vantage from
which to engage in practice: much like a political spectrum on which ideologies of the
extreme right and left propose effectively similar policies, where one tends to fall may
have more to do with personal psychological predispositions than morally decisive
differences among the various positions.
There is, however, a solution to this impasse that provides clear guidance for the
legal practitioner seeking transcendent purpose in his work life: this solution consists in
the realization that the moment of moral significance takes place prior to the formation of
the attorney-client relationship. To be morally engaged and invested, an attorney must
make a commitment to the ends of a representation prior to beginning it. While this
appears a very simple proposal, the act of accepting responsibility for the ends pursued
on behalf of a client constitutes a radical challenge to the current professional culture. It

222
also captures the hope of all cause-driven lawyers for a professional life that avoids the
alienation inherent in a purely neutral advocacy model of legal professionalism.
In a way, my view is reminiscent of the naïve position of Hoffman, widely
accepted prior to the civil-war, that lawyers could never be guided by norms that did not
equally apply to all other citizens. My suggestion is not, however, that we return to
Hoffman’s position. I believe that the neutral advocacy model’s exaltation of an
attorney’s moral distance from the ends pursued in the practice of law must be rejected.
But contrary to Hoffman, I do not believe this ought to remove the post-engagement
practice of law from the governance of internal professional norms.
Our society has chosen to have its legal culture function in an adversarial way.
This may or may not provide the best results for our society overall, but the utilitarian
belief that it is the best system for the resolution of civil disputes within our particular
form of government and society is a choice towards which the professionals who carry it
out can be effectively indifferent. Law functions as it does in our society. It functions in
other ways in other societies such as civil law jurisdictions where attorneys work as aids
to judges who are both the investigator and final arbiter of disputes. That is simply not
how we have chosen to set up our society and it would be fantastically naïve to believe
that individual practitioners could improve our system of dispute resolution through
individual actions designed to preempt our system of procedural justice. It would benefit
no one to suggest that each act performed within the artificial procedurally driven world
of law ought to be decided by an intuited system of everyday moral precepts. Yet a
morally engaged attorney clearly can commit herself never to accept a charge to pursue

223
any end that she believes does not benefit society so long as the evaluation necessary to
effectuate such a commitment occurs prior to accepting a client’s case.
Defenders of the prevailing patterns of professions self-understanding would
argue against my claims about its inevitable amorality. There is a sense in which the
professional stance I have characterized as an uncritical ethos of zealous advocacy is
founded on moral beliefs. These are of two main types and I believe they can provide a
kind of justification for our procedural system though not, I would argue, for the
individual attorney’s role within it. One can describe these beliefs as claiming for
procedure the status of a socially necessary decision procedure, unquestioned
commitment to which is required in a modern state for Hobbesian reasons: the necessity
of an enforceable decision procedure for disputes between citizens or among social
groups being essential to the maintenance of a viable and cohesive state. Alternatively,
some might argue that commitment to process endorses a determination of Truth, Justice,
or Rights, in the most abstract sense, thereby implicitly claiming that a shared
commitment to the promotion of these values is what supports our commitment to
process. The latter approach tends to circularity: evaluating the extent to which an
abstraction is well-served by any given system is often confused by a definition that
makes the faithful execution of procedural steps definitive of the ideal itself. Yet the
former, Hobbesian justification provides no grounds upon which to follow one set of
procedural or professional norms over another as long as universal commitment is
mandatory and enforceable by effective sanction.

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The most plausible description of a self-justifying aspect of process is that
described by John Hart Ely in his work Democracy and Distrust: A Theory of Judicial
Review. His work includes discussion of the ways that identification with rather than
alienation from institutions can be brought about by the respect for individuals show by
allowing them sufficient process to feel as if they have been given a fair hearing. While
this may explain why individual due process concerns weigh so heavily in debates about
reform of process, such a view does not create a justification for the extreme zealous
advocacy position as characterized by an unquestioning exaltation of procedural
mechanisms as central to the functional identity of legal professionals. Regardless of the
extent to which individual process values may be served through a system that privileges
procedure, the promotion of such values provides no justification for the uncritical
advocacy ethos of our current professional culture. Given the vast disparities in access to
legal representation that characterize our society, the ideology of zealous advocacy is far
more likely to be invoked to justify the use of procedure as a cudgel to deny an individual
plaintiff their day in court than a mechanism through which to protect individuals against
the depredations of the state. In truth, unless there is an antecedent moral touchstone
against which to measure the value of a procedural regime, there is no reason to believe
that commitment to it is morally important. There are a few areas where moral
commitments directly influence procedural safeguards, such as the criminal law, but in
the world of private law with which we are concerned, process is determined almost
exclusively by functional concerns rather than a hope to effectuate shared values to which
our society is constitutionally committed. In the end, civil procedure is simply not a

225
fruitful arena from which to seek moral, as opposed to functional, justification for a form
of professional life: such justification must be fully articulated prior to the engagement
with procedure. Thus, my placement of morally important moments of professional
commitment (to client, cause, ideal or end), prior to engagement in the procedures by
which professionals effectuate such ends or promote the interests of individual clients or
causes.
In the final analysis, I believe the emptiness that many find in the practice of law
has to do with their misplaced commitment to a mechanistic understanding of the law as
nothing more than a formal decision procedure. If one cannot move through the thicket
of ideologically informed socialization involved in professional indoctrination and find a
meaningful purpose for professional endeavor on the other side, a meaningful life in the
law will not be forthcoming. No matter how complete and careful a map of the
procedural underbrush one may create, nor how dutifully its paths are trod, one must step
outside its confines to maintain orientation towards transcendent commitments: no
compass is embedded within the maze of procedure, it must be found without. Asking
attorneys to make an evaluation of ends antecedent to commitment to the ends of
representation is akin to enforcing a mandatory look at one’s moral compass prior to
diving into the swirl of complexity and conflict that legal work involves.
I focus here solely on a review of ends. There is, undoubtedly, much to be said
for the position that my dismissing a concurrent focus on the means by which attorneys
pursue ends is misguided. One strong articulation of the position that the performance of
the advocate’s role must be reformed is presented by Deborah Rhode:

226

Any socially defensible conception of the advocate’s role will require more
ethically demanding professional codes and institutionalized practices. In
essence, lawyers need to accept moral responsibility for the consequences of their
professional actions. That responsibility requires advocates to consider all the
societal interests at issue in particular practice settings. Loyalty to clients is a
crucial concern, but it needs to be balance against other values involving truth,
justice, and prevention of unnecessary harm.
406

Obviously, the profession is damaged and the purpose of our system of laws is
undermined by attorneys who act unethically towards one another or officers of the court.
I do not in any way mean to condone such practices or the cynical view of a
professional’s role that they represent. Attorneys do have an obligation to abide by
principles of fair dealing and truthfulness that does not differ from that applicable to the
behavior of those outside the profession. Nevertheless, contrary to positions that seek to
embed such evaluations in the attorney’s role during ongoing disputes, I would argue that
considering broader societal interests is more effective antecedent to engagement in a
matter.
Part of the appeal of a position that, like Rhodes’, seeks to reform the internal
procedural norms of the profession, is that it acknowledges the fact that commitment to
such a proceduralist view of practice can itself be based on moral commitments.
Especially in the criminal context, there are many whose fervent adherence to the value
of process and procedure stems from deep moral commitment. Such adherents may be
motivated by a type of rule-utilitarian position that exalts procedural rules as the
embodiment of collected wisdom about how societal good can be advanced. Equally

406
Rhode, In the Interests of Justice, at 50-51.

227
plausible is a distinct but complementary focus on the importance of particular procedural
safeguards as the embodiment of deontological commitments about the value of the
individual participants within our system of justice. These concerns are quite powerful
within the criminal context where issues of process supervene on issues of respect for the
dignity and value of individual defendants and the economic and social costs of
procedural rules is explicitly evaluated with respect to utilitarian outcomes that balance
respect for victim’s rights and future threats to society against the possible harms
insufficient process may inflict on a defendant. Yet, except within a few paradigmatic
categories (the revocation of government provided entitlements and governmental takings
through eminent domain or regulation), the force of such concerns is markedly
diminished in a civil law context. In purely private civil law situations where no
governmental entity is a party, the importance of process lies much more in its equal and
impartial application than in its extent: reforms in civil procedure for private law
adjudications are almost always argued on the basis of concerns about distributive justice.
Debates about such reforms center around the impact of changes in notice or discovery
rules for litigants that are economically disadvantaged (in either relative or absolute
terms). In contrast, greater process for situations when individuals are engaged with the
government are commonly argued in ultimately deontological terms: that process values
are effectuated by procedural rights.
If, as I argue, private civil law practice is the place where extra-systemic moral
commitments motivate commitment to procedure least, changing professional behavior
through more morally informed day-to-day practice makes little sense. Many of the most

228
vociferous defenders of purely proceduralist views of a lawyer’s role practice in corners
of civil practice farthest from those where procedure is directly informed by moral
concerns. Unfortunately, the level at which an individual attorney’s commitment to
procedure motivates individual actions is extremely tenuous. Commitment to its
exaltation is effectuated prior to practice as a central part of the ideological socialization
during legal training. Therefore, individual practice patterns, or the profession’s self-
promulgated regulatory codes that purportedly shape such practices, seem like the wrong
place to focus if one is concerned with excavating a foundational principle upon which to
base a practice that can be morally fulfilling for individual attorneys.
There are also purely practical reasons to avoid focusing reform on post-
engagement practice patterns. Once an attorney has committed to pursue what she
believes is a just end on behalf of a client it is inappropriate for her to continually re-
evaluate which side of the dispute should be vindicated and try to bring about that
outcome. Hoffman seemingly suggested that an attorney might have some sort of
gentleman’s duty to subtly undermine his client’s case if he felt it would promote a fair
outcome. In addition to the obvious betrayal of the client’s trust such actions represent, I
disagree with the assumption that such actions would in the end bring about a more fair
state of affairs for two reasons. First, an attorney in the middle of a complex case is in a
horrible position to make such a judgment. The law on issues of even moderate
complexity can be hard to find, difficult to interpret, and open to unexpected judicial
response. If the application of law were simple enough to do mechanistically, there
would be no need to run disputes through the expensive process of legal adjudication.

229
Once an issue is submitted to this process, it is in a forum that our society has accepted as
a valid mechanism for fact finding and dispute resolution. As such it should not be
undermined lightly.
Second, this study seeks to find a manner in which morally serious practitioners
can bring their work into alignment with their ideals. If doing so was a matter of treating
other attorneys with greater respect or being more forthright with judges, the issue would
have been sufficiently treated by one of the many critics of the legal profession discussed
above in chapter one. It seems obvious that a morally serious professional should avoid
putting himself in such a compromised position to begin with. Models that focus on
attorney-client relations fail to mitigate any of the problems caused by attorney deference
to the aims of clients. I believe, therefore, that the only solution is to escape the sterile
triad of attorney, client, and opposing counsel, and focus on the moment an attorney
makes the decision to engage in representation. Each such choice allows for an analysis
of the proposed ends to be pursued: a clear moment when an attorney can step outside
considerations of professional role or internal professional ethical frameworks and ask
whether she, as an autonomous moral decision maker, ought to embark on a struggle to
effectuate a given end.
Asserting that a morally engaged attorney should never accept a charge to pursue
any end that they believe does not benefit society calls for a reversal of legal education’s
focus on both the community and client-centered models and the hyper-instrumental
ethos that dominates transactional work and business litigation. It should be the shared
end of the client and attorney that is viewed as the essence of both cause and

230
conventional lawyering: the form of attorney-client relationship is an incidental concern
that cannot be determinative of the morality of legal work since legal actions always seek
to effect an end, some change, in the circumstances outside that relationship. The effect
on the world that the relationship aims to bring about is the morally significant result of
the relationship and, therefore, professional responsibility’s central moment should be the
evaluation of that goal.
To reiterate at the most general level: the legal professional seeking a model of
morally informed practice should take a step back, theoretically and temporally, from the
attorney-client relationship as the locus of ethical concern. As an autonomous moral
actor, the attorney must make an explicit commitment to the ends of any given
representation. This is the essential moment of moral choice. Autonomy and
empowerment of the client should be subordinate to the morally well-directed choice of
the attorney. People and groups turn to litigation to effectuate many desires and goals
that are unatainable through non-legal means. Whether an attorney seeks to serve such
ends should depend on an independent evaluation of their merit, not an evaluation of the
relative social power or sympathetic status of the client seeking to effectuate them.
Despite its apparent simplicity, this position is radical in at least two ways. First,
it rejects the traditional claim of independence from the views and activities of one’s
client. As set forth in Rule 1.2(b) of the ABA Rules of Professional Conduct and the
subsequent Comment 5 on that rule:
(b) A lawyer’s representation of a client, including representation by appointment,
does not constitute an endorsement of the client’s political economic, social or
moral views or activities.

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[Comment 5] Legal representation should not be denied to people who are unable
to afford legal services, or whose cause is controversial or the subject of popular
disapproval. By the same token, representing a client does not constitute approval
of the client’s views or activities.

One might object that criminal defendants or those proposing unpopular First
Amendment views will be left without representation if this rule is rejected. However,
the ends to which attorneys in such cases almost always commit are constitutional in
nature and have nothing to do with the actions or beliefs of their clients. All
sophisticated observers understand that it is the constitutional guarantees provided
criminal defendants and the constitutionally framed procedural advocacy model of truth
determination that attorneys are committed to defending when they represent criminals
who have committed egregious acts. Likewise, civil rights attorneys that defend the
holders of offensive social views almost always do so solely because of a commitment to
the First Amendment principles involved. Defense of Constitutional criminal procedure
and the Bill of Rights are ends to which an attorney might comfortably commit oneself
on my model whether the presumption expressed above exists or not. On the other hand,
attorneys who feel it is appropriate to divorce themselves from the ends of a rapacious or
polluting business enterprise will quite rightly be denied the moral cover of a
presumptive disaffiliation from a client’s activities.
Second, my position explicitly rejects a core principle governing the profession’s
conception of the attorney-client relationship. A longstanding rule governing the
allocation of authority between an attorney and her client is that lawyers “shall abide by a

232

client’s decisions concerning the objectives of representation,”
407
but will assume
significant discretion within the realm of the means to carry out those objectives. Making
control of means rather than ends definitive of an attorney’s role entrenches an unhealthy
instrumentalism at its core. Here too, rejection of the principle would create an
immediate change in the allocation of moral accountability between lawyer and client.
Making an explicit commitment to the ends of a client prior to entering into
representation removes the temptation to focus solely on instrumentally valuable
technical competence without taking responsibility for the actual results of one’s work.
This model of morally committed legal practice has several advantages over the
models explored previously. First, one’s form of practice is not constrained by a
commitment to my model. As only the ends pursued must be morally defensible, the
model can work within all types of practice area and can be applied from all ideological
perspectives. Second, accountability on this model does not require a radical
restructuring of professional practices in relation to clients: it requires only that a
practitioner make the pursuit of a worthy end a threshold consideration for attachment to
a legal project. Finally, this model could work at all levels of practice and for all clients.
There is no particular practice structure dictated by a concern for ends, and its moral
appeal only grows as one considers the range of clients, from powerless to the most
powerful, to which it would equally apply.
One might object that a greater commitment to act ethically within ones practice
will bring about largely the same ends without requiring the upsetting of longstanding

407
ABA Model Rules of Prof. Conduct 1.2(a).

233

professional principles. I think it clear that a commitment to act in ways that are morally
defensible outside one’s professional identity or so as to promote justice within one’s
practice, while admirable, is a step too late if one makes no threshold determination about
the worth of the objectives held by one’s clients. The day-to-day technical competence
employed in the practice of law, the “means” to which traditional practice is largely
circumscribed, are formal and procedural. It is the realm of ends that deals with the
moral, and the choice of ends is where a clearly articulated moral choice can be made.
Another concern about this position is that it is unrealistic to expect attorneys to
take personal responsibility for the ends of their clients in all cases. While this model
obviously not for everyone, I think that if a person of good faith attempts to apply it they
will run into such problems less often than one might suspect. In addition to the criminal
and civil rights cases discussed above, it is difficult to imagine an entity that a morally
serious advocate might want to represent whose ends could not also be affirmed.
Although it is a simple point, being comfortable identifying oneself with the ends to
which one’s work tends seems like a good goal for a morally sound professional practice.
Moreover, under current ethical codes, the discretion available to attorneys
subsequent to the acceptance of a client is narrowly constrained. As noted by Rhode:
Under prevailing views of professional responsibility, lawyers need not choose to
exercise moral independence within their professional role. Rather, their
preeminent obligation is loyalty to client interests. Over the last century, the bar’s
codes of conduct have progressively narrowed the ethical discretion that lawyers
are expected to exercise once they have accepted representation.
408

408
Rhode, In the Interests of Justice, at 15.

234

The reason such constraint has been acceded to is because many practitioners accept the
position that “the only ethical duty distinctive to a lawyer’s role is loyalty to the
client.”
409
Once formalized, the ethical norms of unquestioning and unmitigated zealous
advocacy on behalf of each client in every case make it difficult for attorneys who
understand their moral obligations more broadly to act as their conscience dictates
without professional sanction. So long as the ideal of uncritical advocacy holds sway
among the drafters and enforcers of internal codes of legal ethics, conscientious
practitioners will find themselves in difficult straits. I believe that my model significantly
alleviates their dilemma.
The dominant conception has held sway for so long that a focus on ends might
almost be seen as failing to “act like a lawyer.” It is true that explicit avowal of concern
for ends will make some lawyers into political actors. However, transformational
leadership seems better employed as a political stance than an add-on to representation of
others as several of the positions considered above seem to make it.
One might also argue that such a reversal is impossible or unwise at this point in
the profession’s development. Yet it is clear that such a change is not conceptually
contrary to the nature of the professional endeavor. As discussed above, a similar
position was prevalent in elite levels of practice in the pre-civil war era. That position
eventually lost influence to a more instrumentally focused position. I assert that the
choice to adopt the instrumentalist position was error, and that nothing short of a reversal
of this choice can restore the profession to an estimable position in American public life.

409
Simon, The Practice of Justice, at 8.

235

Proponents of the instrumentalist tradition offer two main responses to any
suggestion that an attorney should antecedently evaluate the merits of a client’s claims.
The first comes from Sharswood’s original defense of a partisan advocacy principle:
The party has a right to have his case decided upon the law and the evidence, and
to have every view presented to the minds of the judges, which can legitimately
bear upon the question. This is the office which he advocate performs. He is not
morally responsible for the act of the party in maintaining an unjust cause, nor for
the error of the court, if they fall into error, in deciding in his favor. . . . The
lawyer, who refuses his professional assistance because in his judgment the case
is unjust and indefensible, usurps the function of both judge and jury.
410

A more strident contemporary version of this position dismisses attorneys that refuse to
assume the civil representation of clients whose ends they find objectionable with the
claim that:
Had they mastered the meaning of the adversary system. They would have
known that their conduct was subversive of the central tenet of the profession they
were about to enter . . . [They] have not taken account of the operation of the
adversary process. The utility of that process is that a release a lawyer of the
need, or indeed right, to be his clients judge and thereby frees him to be the more
effective advocates and champion.
411

This argument is circular in that it assumes that an attorney’s role is simply that of a
functionary in the process of adversarial adjudication and then suggests that conceiving
of the profession as anything more is to misunderstand its essential nature. An attorney
who declines to pursue a course of action she feels in unjust is making a choice about
how to conduct her professional life, not a public judgment about the merits of the client

410
GEORGE SHARSWOOD, AN ESSAY ON PROFESSIONAL ETHICS 83-84 (5th ed., 1896).

411
Zitrin & Langford, Moral Compass of the American Lawyer, at 77 quoting a lawyer disapproving of
objections to the representation of unethical corporate clients in civil matters.

236

who wishes to carry out that action. The argument against exercising independent moral
judgment reads as a defensive self-justification of a neutral advocate rather than a reason
not to make morally informed choices about which clients one will represent. The reason
such a position incurs such strident opposition is that it entails that neutrality about the
ends of advocacy is a contingent value and thereby challenges a core premise of the
professional project as currently constituted: without such neutrality the commodification
of legal services would be much more difficult. Insofar as the engagement of a
professional involves something different in kind than the purchase of a fungible
commodity, this fact is not troubling.
The second response to rejection of the uncritical advocacy position argues that
there is an epistemological difficulty with making the moral judgments necessary to
screen clients on moral grounds. As articulated by Simon:
The ethically ambitious lawyer cannot ground her judgments in a way that would
be necessary for a plausible professional morality. To the extent that she treats
her judgments as anything more than subjective preferences, she deludes herself.
She may appeal to justice or public interests, but these terms are not self-defining,
and particular applications of them tend to be controversial and hence form an
insubstantial basis for a professional ethic.
412

Simon’s claims have force if one is discussing a professional ethics that addresses the
minutia of attorney interactions with clients, the court, and other parties. Calculating
which actions will promote transcendentally just outcomes from within the complex
whirl of a litigation situation does offer insubstantial and shifting ground from which to
make informed judgments. I strongly disagree, however, that no such judgments can be

412
Simon, The Practice of Justice, at 28.

237
made prior to the acceptance of representation. Unless the claim is that no moral
judgments can be absolutely certain and that one therefore ought never to make them, I
don’t see how inevitable uncertainty can fatally undermine the value of acting on
considered moral judgments. The fact that an attorney may misevaluate a client’s ends,
thereby refusing to support the pursuit of a worthy goal, does not entail that the moral
faculty ought to be abandoned once one has signed her bar card.
These two arguments also point to deeper issues about the purpose of a legal
professional in our society. The fact remains that attorneys are largely service
professionals. Just as one doesn’t expect a doctor to evaluate whether one was careless in
becoming ill prior to offering treatment, one doesn’t want an attorney to evaluate whether
now is really the right time for you to sell your house and retire to Florida before they
will advise you on how to solve a problem with your escrow company. This only points
out the large percentage of legal work that is morally uninteresting. Just as a doctor can
almost always advise patients secure in the knowledge that improved health is generally a
good, so too can an attorney help people conduct their affairs comfortable in the belief
that assisting people to live and work as they choose to is a useful function. Not all cases
are like these: doctors are sometimes asked to provide patients with experimental or
unconventional treatments, to remove life support from vegetative patients, or to assist a
severely ill person to end their life. Attorneys also face a range of cases where people
request help in projects fraught with complex moral ramifications or uncertain effects on
other people. Just as doctors have a right to consider carefully before deciding whether to
provide a patient with a requested but dangerous treatment, there are many situations that

238
require an attorney to carefully evaluate the possible consequences of his pursuit of a
client’s wishes.
A distinct worry is that encouraging attorneys to identify morally with the causes
and ends they advocate provides no basis upon which to guide the attorneys, and that
lacking such a basis for the choice of morally beneficial ends, attorneys may simply go
off the rails morally, either by advocating harmful positions or failing to pursue just
causes. The frame of my entire project works against such an objection. My concern is
with a significant subset of attorneys who seek to align values commonly associated with
the function of law with their actual experience of practice. The pursuit of transcendently
important ends and morally informed professional practice are a tantalizing mirage for all
too many attorneys. The oasis of meaning and virtue shimmer and glow from the glossy
pages of law school admissions brochures but the further one progresses in training,
professionalization, and eventually practice, the ideals not only continuously recede but
also fade. The description proposed here of a shift of perspective aiming to revivify ideal
images of practice and pull them to the foreground of professional training and practice
responds to the problem initially posed. Problematic aspects of the moral psychology of
individual practitioners is outside the scope of my concern as the practice of law is
unlikely to fix whatever problems individuals bring to it. Yet, for the rare individual
deeply committed to a morally informed professional practice, I believe my analysis of
the mechanisms underlying the moral trouble of the profession and my proposed
perspectival shift on the place of morality within the profession makes a valuable
contribution. I may be naïve, but I simply do not think that a surplus of ethically serious

239
but morally misguided commitments is what is to be feared: it is lack of thought and lack
of commitment that is common and dangerous.
As my earlier examples illustrate, the history of cause lawyering has been
populated largely by politically liberal lawyers. The current landscape of politically
motivated attorneys is much more diverse: the rapid expansion of conservative cause
lawyering and proliferation of religiously informed attorney activists has created large
impacts over the last decades. This can only be seen as a positive development. Far from
concern that activist lawyers may advocate for the wrong issues or fail to be fully
informed about their choice of issues, I would argue that lawyers committed to
effectuating the morally informed ends of a range of groups and individuals inevitably
enrich our democratic discourse and shared political life. Attorneys who view their
function as effectuating whatever ends they are paid to may argue that, although not
invested themselves, they can functionally fulfill the same role by advocating non-
judgmentally for the range of individuals that engage them. While this may be true to an
extent, it does not speak to the problem we set out to address: the source of the morally
barren professional landscape many attorneys find in place of the morally meaningful and
rich professional experience on offer as a siren-song to the uninitiated.
Quite literally, the zealous advocacy model is the apotheosis of rule-following
behavior into an unquestioned end. Presumably the intuition that allowed this exaltation
to occur, long-ago turned from one among many views into the dogmatic core of legal
practice, is that such behavior will result in a positive rule-utilitarian outcome. I think it

240
is time to aggressively question this position on the meaning of lawyering. Were it were
possible, would it cause unforeseen problems? I would argue not.
What if all lawyers followed my advice? The first obstacle to such a state of
affairs is that many legal professionals have core commitments to which their
professional life is completely subordinate: a particular relation to family or community;
an individual passion; anything but work that constitutes the core of their life plans. As
in many areas of professional endeavor, it is undeniable that many attorneys see their
work as a purely instrumental exercise. Asking these people to evaluate clients according
to the method described here could be challenged on grounds that if someone views legal
practice as only a way to make a living it makes little sense to evaluate her professional
choices by the same standards as one would evaluate an ideologically driven
practitioner’s professional commitments. A common standard of evaluation seems to
make little sense here and it is hard to see how it would be useful to criticize their choices
as failing to meet a standard they seemingly have no reason to accept.
I think a telling point can be made by examining the many people who do things
they wouldn’t affirm as ethically virtuous in order to have as much money as possible.
Nothing would make them think they should refuse work so long as it is legal and they
could profit by it. Let us suppose that this stance is motivated by a quite reasonable
desire to provide for a family or support a church or charity. What to say about this case?
In a sense it takes us back to the beginning. Only a select few attorneys will
devote their entire practices to a cause, and most will have alternative values or ends they
personally hope to promote through the practice of law. Nevertheless, what would be

241
objectionable with a professional norm that required attorneys to affirm the ends of their
clients, at least insofar as acknowledging that they are willing to promote a given end for
the profit it brings? Higher ends to spend the profit on could easily justify almost all such
acknowledgments. Such an acknowledgment would though force an explicit examination
of the social role an attorney plays for their money. This would be a positive change
from the current ethical framework of the profession that encourages all manner of
suspect ends to be pursued under the cover of an ideal of neutrality. People are not
always at their best when they are not held to account for their actions. The legal
profession seems one area of human endeavor where a mechanism to encourage more
realistic self-evaluation might benefit both attorneys and society. This is especially true
since the current regime of moral distance from the ends of clients has an aura of the
strategy of “plausible deniability” sometimes used to such unfortunate effect in other
areas of public life.
Privileging the autonomous moral analysis of individual lawyers returns the legal
profession to core principles of professionalism: the use of independent judgment, the
exercise of authority, and autonomous and accountable decision making. The extreme
deference to client desires promoted by both the advocates of a neutral model of
advocacy and the community lawyering and client-centered models offered as alternative
to that dominant model is simply incompatible with the value of autonomous and morally
informed work that constitutes the traditional core of all professions. This return to the
core virtue of professionalism can serve as an antidote to the malaise and self-hatred that
afflict many members of the legal profession. The solution exalts the values of cause

242
lawyers by making morally informed and motivated practice available to all practitioners.
The individual implementation of this ideal will be as varied as the people who choose to
pursue it.

243

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Abstract (if available)

Abstract Many attorneys reject the largely instrumental role that has come to define contemporary legal professionalism. Instead they seek to structure a professional practice that allows them to effectuate their social ideals through their work. This study critically examines various theoretical models created to structure such morally informed legal practice. The author finds that the most popular of these models contain flaws that create insurmountable ethical dilemmas for the attorney working within them. He then argues for the position that morally informed legal practice is possible within the current framework of professional ethics only if the focus of such practices becomes the moment of engagement in a matter. Such a change shifts the morally significant decision for an attorney to a more clearly delineated and temporally prior moment than that which is currently the focus of ethical debate and regulation. The endorsement of and identification with the ends of representation can effectively transform the purely instrumental nature of current professional practice, thereby having significant ramifications for internal professional norms. Moreover, such a change is capable of occasioning dramatic changes in the satisfaction and sustainability of the work lives of many legal professionals.

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Asset Metadata

Creator German, David Ward (author)

Core Title Cause and consequence: confronting ethical challenges in models of morally informed legal practice

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Philosophy

Publication Date 07/29/2011

Defense Date 04/29/2009

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag cause lawyering,legal ethics,OAI-PMH Harvest

Language English

Contributor Electronically uploaded by the author (provenance)

Advisor Willard, Dallas (committee chair), Stolzenberg, Nomi M. (committee member), Yaffe, Gideon (committee member)

Creator Email David.W.German@gmail.com,dgerman@usc.edu

Permanent Link (DOI) https://doi.org/10.25549/usctheses-m2415

Unique identifier UC1122670

Identifier etd-German-2915 (filename),usctheses-m40 (legacy collection record id),usctheses-c127-573306 (legacy record id),usctheses-m2415 (legacy record id)

Legacy Identifier etd-German-2915.pdf

Dmrecord 573306

Document Type Dissertation

Rights German, David Ward

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Repository Name Libraries, University of Southern California

Repository Location Los Angeles, California

Repository Email cisadmin@lib.usc.edu