Joseph Phelan of Organizing Upgrade sat down with Purvi Shah and Chuck Elsesser of the Community Justice Project based at Florida Legal Services in Miami in early April to discuss the role of lawyers in grassroots organizing, social movements, and building another world.
What is the relationship between lawyering and social justice?
Historically, while not always clearly articulated, different legal models have developed as to how to use the law to create social justice. The civil legal-aid model, believes that the major problem with the legal system is a lack of lawyers. It argued that if there were just enough lawyers to represent every single poor person, the courts would be able to administer a just result. The test-case or impact litigation model, believes that systemic social change can result from carefully targeted class action litigation. The social-rescue model believes that poverty is the result of failure of social and other support services, including, legal services.
The first two of these models believe in the underlying justness of the legal system – if you can simply have a lawyer to enforce the law, or have the right case argued to the right judge justice will result. The third model assumes that poor people are poor largely because of their own failings. They are simply “broken people” who need comprehensive services to be “fixed.” Not one of these models takes into account the long standing systems of class and racial discrimination and oppression, which have resulted in systemic powerlessness of whole communities. Many of the classic conflicts between organizers and traditional legal services lawyers can be attributed to this disconnect between their differing theories of social change. Traditionally, lawyers and organizers have vastly differently analyses on why our world is the way it is.
We believe that the poverty of our clients is simply a symptom of the larger disease of systemic oppression and conscious inequality. We use legal advocacy to build the power of communities to challenge and eradicate these systems of inequality. In this model, rather than saviors or gatekeepers, lawyers are tacticians in the struggle for change. We call it community lawyering.
Can you break down your model a little more?
Similar to the different schools of thought in organizing (community vs. union, Alinksy vs. ideological), community lawyering has many different strains. What sets community lawyers apart from each other boils down to their answers to the following three questions: Who do you work with? What do you do for them? And how do you work together? Similar to organizing, the answers to these questions vary depending on the political orientation of the lawyer and the theory of social change they ascribe to.
Our particular brand of community lawyering believes in supporting community organizations and other organized groups of people (i.e. worker/tenant associations, community coalitions, and unions) that shift power through collective action and strategic campaigns. Like many organizers, we believe sustainable change comes through building large-scale, democratic organizations focused on building the power and conscious leadership of poor and working people. By using legal advocacy to support organizing, community education, and leadership development, community lawyering allows lawyers to have a much larger impact that any one lawsuit.
That brings us to the “what.” This is the area of our work that is least regimented. Pretty much anything is fair game. Depending on the campaign goals and our relationship with a particular organizer/organization, we will support a campaign with a variety of tactics including litigation, policy advocacy, research, community education, and infrastructure/institution building. In the past we have: conducted know-your-rights trainings; presented at public forums to advance campaign demands; worked with members to develop their public-speaking and writing skills; litigated individual cases on behalf of workers and residents; litigated actions on behalf of classes of workers, tenant associations or the base-building organizations itself; drafted policies or legislation; researched and provided technical assistance to develop a campaign strategy; and provided transactional and corporate advice to new and existing organizations.Our goalis to increases our clients’ participation and control over complicated and time-consuming legal processes that can otherwise be alienating. But perhaps more important than what we do, is what we aim not to do. We aim to transfer knowledge and skills to organizers and clients so that we are not relied on all the time. Through every case, we hope to be expanding the collective knowledge base within the organization.
For us, the “how” comes down to accountability. We believe that our clients (whether organizational or individual) are partners—not just in name—but in leadership, control and decision-making. The lawyer-client relationship is rife with power dynamics that do not evaporate simply because the long-term goals of the lawyer are aligned with that of the organizer or client. Therefore, we also believe that community lawyers must be engaged in a regular practice of self-scrutiny and self-reflection. If lawyers want to practice law in respectful, responsible and accountable manner, we believe you have to be constantly evaluating your work to determine if it perpetuates racism, sexism, homophobia, classism and elitism. To that end, we believe that community lawyers should be engaged in a process of political study and growth collectively with organizers. Poor communities of color face multiple and intersecting injustices and good lawyering requires a deep understanding of race, class, and power.
How are you as lawyers able to encourage collective power building?
The legal system in the Unites States is very individualistic. It tends to atomize disputes, which works against an organizing model. The legal system is designed to address disputes between a single plaintiff and a single defendant. Because of this, many ethical and procedural rules make it incredibly difficult to use litigation to achieve collective goals. For example, when you settle a lawsuit, attorney-client privilege only applies if you don’t involve a third-party in the discussion–which means organizers cannot be in the room when you discuss settlement with you client. The obvious solution would be to try to represent a group rather than individuals. But sometimes the rigorous procedural rules of litigation force disputes to remain individualized, because for whatever reasons we don’t have standing to represent the worker association nor tenant union as a whole. These rules and many others are serious obstacles to utilizing a collective approach to grievances.
Lawyers that are battling these obstacles have to constantly be thinking of mechanisms to both obtain positive results for their individual clients while furthering the goals of the client’s organization. We struggle with this challenge constantly and work with clients to reinforce their understanding of both their dispute as a collective grievance and the legal strategy as simply a tool in a collective response. Hopefully, the clients themselves will want to share their learning experiences and their increased understanding of the problem by continuing to participate in the organizational campaign. But poor clients and their families are burdened with enormous pressures so it doesn’t always work that way. However, we are constantly working in an educational way to foster that collective understanding of the problem.
Another common experience is that clients will be offered a settlement agreement that, while of marginal benefit to the collective, offers substantial benefit for the individual. We’ve seen this tactic used time and time again to split off individuals from the collective. Many lawyers handle these situations by simply communicating the offer to the client without any conversation about its benefits/detriments to the collective goals. Though we agree that ethical rules require lawyers to allow the client to make all settlement decisions, the rules do not prohibit honest and frank discussions between lawyers and clients about the individual and collective benefits of any possible settlement. We are not shy about reminding clients about the collective goals they had at the beginning of the case and that the individual settlement being offered to them doesn’t reflect their original goals. In this way, lawyers can work refocus clients back towards their initial collective vision.
What are some lessons you have from being lawyers and engaging in that level of consciousness raising, encouraging people to engage in collective action or understanding? What are the limitations that law puts on you in engaging in this type of work?
One of our major observations is that most people, regardless of their personal history, expect the legal system to deliver justice. Our educational system, T.V., pop culture, all reinforce the idea that ultimately if we have the opportunity to tell our story to a judge, justice would result. Initially, it is also important to remember that very, very few poor people ever get the opportunity to tell their story to a judge (at least on the civil side.) The number of poor people actually represented in civil disputes, such as landlord-tenant matters, is infinitesimal. However, so many people believe that if they could just get that “champion” lawyer, they would be able to obtain justice and fairness.
But the reality is that most of the harms experienced by poor and working people in this country simply are not illegal. Even if represented by the best lawyer, any poor person who goes into court will be outgunned by overwhelming resources. In addition, they face the systemic biases of both the substantive law and the judicial decision makers whether judge or jury. As such, the law quite literally is designed to protect private property and capital investment and not to render justice.
None of this is to say that we do not believe in challenging and pushing the law to change—reform struggles in the law can be incredibly important in highlighting contradictions and challenging the dominant narrative. We often engage in counter-hegemonic conversations with our organizer counterparts and our clients in order to set reasonable expectations around what type of justice is possible to obtain from the legal system. We consistently have to remind people that the law is a tactical tool, not a solution. We often times have shift perspectives from seeing winning the lawsuit as victory to seeing the lawsuit as simply an opportunity in a larger strategy.
In addition, we constantly remind the client and the group that the court is just another political venue. The truth is, sometimes we have to remind ourselves as well. Experience has taught us that when you pack the courtroom with thirty people, you transform that venue back into a political one where success is influenced by collective power. Judges like any other political entity respond to this. As people associate the political struggle with the legal victory it demystifies the whole process of the lawyer winning a case. You get something that is a response to the collective struggle and presence.
This model sounds like it is directly in line with this model of organizing that is paired with political education and leadership development of grassroots communities. What is the response to this coming from other lawyers? Is it growing in popularity?
This style of lawyering has been around. It has been present in different movements and different struggles but it remains fairly uncommon due to the challenges and obstacles to institutionalizing this approach. The first of these challenges is that, amongst lawyers (and the public), there is lack of understanding of what organizing is. A lot of lawyers out there simply don’t understand what organizing is. It is this lack of a common language that often perpetuates the divide and disconnect between organizers and service providers. Part of it is that people are speaking different languages and can’t see how to connect the dots. However, historically (and rightfully so), there has been considerable distrust of “community” lawyers. All organizers can recount examples of where lawyering in support of communities or in the name of communities has been done wrong and has created a lot more harm than good. Lawyers can take up a lot of space. Power can gravitate to lawyers. If both lawyers and organizers are not hyper-vigilant about managing and passing along that power, lawyers can be destructive for community organizations or organizers.
An additional challenge is that, unfortunately, young lawyers are not being taught community lawyering in law schools. If you are a progressive or left lawyer, there are not many places to get training to figure out how to lawyer in support of community organizing. There is a dearth of mentors and elders to train the next generation of community lawyers. Many progressives who decide to attend law school end up being frustrated and choose to never practice law. Like anything else, a community-based practice of law is something that has to be taught. Our project is working to bridge this gap by teaching in clinical programs at local law schools and running a summer institute for law students to train the next generation. Also, though there are a number of lawyers across the country engaged in the practice of community lawyering, the theory on community lawyering is, at best, embryonic. Those of us engaged in the practice have simply not been able to effectively distill and document our experiences in a cohesive and clear theory.
Finally, for those lawyers who believe in this type of work, most are housed in institutions that tie their hands because of limitations from funding sources. The vast majority of lawyers that represent low-income people are housed in legal-services/legal-aid organizations many of which are funded by the Legal Services Corporation Grants from the federal government. These LSC grants put specific limitations on the type of legal work grantees can engage in, the most notable being that LSC-funded lawyers cannot bring class actions and cannot engage in lobbying. These limitations, as they were designed to do, have had a stifling effect on community-based legal work. As a result, part of our work at CJP has been to build new partnerships and identify clear opportunities for community lawyering to occur within existing legal-services institutions. We firmly believe that the individual legal representation that traditional legal-services organizations engage in is still really important work. However, there are no funding restrictions that prevent that same work fr