Cause Lawyering.docx

CAUSE LAWYERING: ISSUES OF ETHICS

CHAPTERISATION 1. Introduction 2. DEFINITION 3. HISTORY 4. PUBLIC INTEREST LAWYERING 3.1. HISTORY 3.2. DEFINITION AND DEBATE 3.3. PUBLIC INTEREST AND POLITICS 5. COMMUNITY ECONOMIC DEVELOPMENT LAWYERING 4.1. HISTORY 4.2. CRITICISMS OF CED 6. ORGANIZATIONS 5.1. NOTABLE LEGAL ADVOCACY GROUPS 5.2. CRITICISMS OF LEGAL ADVOCACY GROUPS 7. TRENDS 6.1. UNITED STATES TRENDS 6.2. INTERNATIONAL TRENDS 8. NOTABLE CAUSE LAWYERS 9. SUGGESTIONS 10. CONCLUSION INTRODUCTION A cause lawyer, also known as a public interest lawyer or social lawyer, is a lawyer dedicated to the usage of law for the promotion of social change to address a cause. Cause lawyering is commonly described as a practice of “lawyering for the good” or using law to empower members of the weaker layers of society. It may or may not be performed pro bono. Cause lawyering is frequently practiced by individual lawyers or lawyers employed by associations that aim to supply a public service to complement state-provided legal aid. Cause lawyering is

performed by a lawyer or a firm that is “Most frequently directed at altering some aspect of the social, economic, and political status quo.” The content of the issue is not particularly relevant, only the advocacy of an issue and the attempt to bring about social change through legal or even quasi-legal avenues. Cause lawyering can include dedicated advocacy by public interest firms, pro bono work by attorneys in private practice and other non-traditional forms of law practice that advocates a cause. Lawyers who work for the government, whether federal, state, or local, can also be cause lawyers; although the majority of cause lawyering tends to be adversarial towards the state. Definition As coined by experts Stuart Scheingold1 and Austin Sarat in their work Something to Believe In: Politics, Professionalism, and Cause Lawyering,2 cause lawyering consists of “using legal skills to pursue ends and ideals that transcend client service – be those ideals social, cultural, political, economic or indeed, legal”.3 There is no single “correct” way to define what Cause Lawyering is or who is a cause lawyer.4 Cause lawyering is particularly hard to put limits around because it encompasses so much in the legal world and almost any issue can be considered an issue or cause that is being advocated for, and thereby qualifying as cause lawyering. Cause lawyering does not require a particular political side, but does require a “determination to take sides in political and moral struggle without making distinctions between worthy and unworthy causes”. Cause lawyering is less about the client and more about the issue the client represents. Cause lawyering is about the belief in a cause or issue and the will/desire to advance that cause. 5 Cause lawyers tend to choose clients on the basis of their own ideological grounds, no matter where they fall on the political, social, economic, and /or legal spectrum. What ultimately separates the cause lawyer from other types of lawyers is the advancement of the cause through the client to transform the status quo in service to a cause that is just as important, or more important, than the 1

“Obituary: UW professor renowned for work on law, politics”. 26 June 2010

2

Stuart A. Scheingold and Austin Sarat Something to Believe In: Politics, Professionalism, and Cause Lawyering Stanford Law and Politics (2004). ISBN 978-0804749473 3 Austin Sarat and Stuart Scheingold, Cause Lawyering: Political Commitments and Professional Responsibilities. New York: Oxford University Press (1998) 4 Anna-Maria Marshall, Daniel Crocker Hale, Cause Lawyering, 10 Ann. Rev. L. & Soc. Sci. 301, 302 (2014). 5

Thomas M. Hilbink, You Know the Type...: Categories of Cause Lawyering, 29 Law & Soc. Inquiry 657, 659 (2004).

client. In a 2004 American Bar Foundation essay, Thomas M. Hilbink outlined the “typolog[ies]” of cause lawyering. In this essay, cause lawyers are broken into three typologies: (1) Proceduralist Lawyering; (2) Elite-Vanguard Lawyering; and (3) Grassroots Lawyering. Proceduralist lawyering is “marked by a belief in the separation of law and politics, and a belief that the legal system is essentially fair and just”. Elite-Vanguard lawyering focuses on law as a superior form of politics that uses the law to render substantive justice in a way that will change substantive law and thereby change society. Grassroots lawyering, however, approaches law as “just”another form of politics, a venue that is corrupt, unjust, or unfair, and aims to achieve substantive social justice through using the law in combination of other social movements, but refraining from using the law as a primary method for social change. HISTORY What is now known as cause lawyering grew when the idea of “legal science”, a 19th-century belief of legal objectivity in which law could be determined through the application of scientific principles and methodologies, was challenged. Until the late 19th century, the legal field worked to separate law and politics, precluding the idea that the law could be used as a force for political or social change. The first organizations to break into cause lawyering and tear down the idea came into existence in the 20th century, the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU). Through intermixing political progressivism and the law, these two organizations paved the way for politically themed legal entities to use the law in a way that would advance the cause they represented. In applying the broad encompassing cause lawyering definition from above, cause lawyering has existed as long as legal advocacy has existed. As long as an advocate has advocated for a client and against a perceived social or legal wrong, although the term was not coined until 1998, cause lawyering has been active. In the late 1800s it was slavery and state's rights, in the early 1900s it was women's suffrage and civil rights. In the 1960s and the non-profit law firm was born. The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the NAACP and the ACLU to advance progressive causes from the environmental protection to consumer advocacy. These beginning organizations of cause lawyering, and the ones that followed scored major legal victories that have lasting effects to this day; see Brown v. Board of Education In the 1960s, the Ford

Foundation began funding legal services programs as a component of anti-poverty programs helping fund some of the forerunners of legal services for indigent clients: Mobilization for Youth in New York, Action for Boston Community Development, the Legal Assistance Association in New Haven, and the United Planning Organization in Washington. While not identified as cause lawyers at the time, these early programs explicitly fit the mold of using the legal system to advance their cause. Once the newly minted non-profit law firms were established as charitable organizations eligible for IRS tax-deduction, they began to advocate on behalf of disadvantaged and underrepresented groups, advancing the civil rights and poverty legal work from decades earlier. During the 1970s, feminist law firms began to emerge with the growing Women's Movement and with each newly emerging social movement, new cause lawyering organizations sprung up to compliment them. By the mid to late 1970s the explosion of progressive cause lawyering organization was being followed by the creation of more conservative cause lawyering firms. The face of cause lawyering has ebbed and flowed just as political movements, social movements, and economic movements have from the 1970s through today. Major events, like the establishment of the Legal Services Corporation and subsequent restriction; decisions in Loving v. Virginia, Lawrence v. Texas, Roe v. Wade, District of Columbia v. Heller, Citizens United v. Federal Election Commission, National Federation of Independent Business v. Sebelius, Shelby County v. Holder, United States v. Windsor, and Obergfel v. Hodges; along with everyday victories and defeats of cause lawyers all over the United States have shaped our last one hundred years and will continue to shape the legal landscape to come. As Dean F. Michael Higginbotham said in his Keynote Speech at the University of La Verne Law Review Symposium in 2014: “Make no mistake ... there is no better feeling in this life than to know that you have helped to improve the lives of those around you. Nice to make some money, nice to have material things, but there is nothing better than knowing that you have helped the impoverished, that you have helped the hungry, that you have helped the politically powerless, and that you have helped the undereducated to gain at least a semblance of dignity.” PUBLIC INTEREST LAWYERING Public interest law is "the legal practice that advances social justice or other causes for the public good". In its most simple form, public interest is defined as “(1) the general welfare of the public

that warrants recognition and protection” and “(2) [s]omething in which the public has a stake ...” HISTORY The public interest notation was first given to a group of lawyers in the 1960s who fought to address the social injustice that existed in American society. Throughout the late 20th century, many lawyers self-defined themselves as public interest lawyers in order to gain legitimacy and respect as they sought to change complex social, political, environmental, and educational problems. As a result of many attorney's desire to participate in public interest law, organizations, such as the ACLU and NAACP, were formed to develop a collaborative approach to addressing these societal problems. Today, public interest lawyering has expanded greatly to include free legal aid groups, liberal and conservative public interest organizations, partisan environmental groups, and individual lawyers who choose to represent the underrepresented. DEFINITION AND DEBATE With the increase in self-proclaimed public interest lawyers, the definition and categorization of public interest lawyering continues to be a debated topic. In attempt to narrow the categorization of public interest lawyering, many scholars and researchers have attempted to create a more precise definition of “public interest law”. The Ford Foundation was one of the first groups to attempt to define public interest law as an “[a]ctivity that (1) is undertaken by an organization in the voluntary sector; (2) provides fuller representation of underrepresented interests (would produce external benefits if successful); and (3) involves the use of law instruments, primarily litigation.” Looking at the role of public interest law groups, Laura Beth Nielsen and Catherine Albiston defined public interest law groups as “organizations in the voluntary sector that employ at least one lawyer at least part time, and whose activities (1) seek to produce significant benefits for those who are external to the organization's participants, and (2) involve at least one adjudicatory strategy.” Looking at public interest law as a broader category, Scott Cummings suggests that public interest law is the legal means that advance the interest of disadvantaged people by way of challenging corporate or governmental policies and practices. Other scholars have defined public interest laws not by what a lawyer does but by a lawyer's financial self-sacrifice. When discussing young lawyers who are influencing change, Karen

Dillon stated that public interest lawyers are those who “have followed their hearts, not necessarily their wallets, into careers that they are convinced will make a difference in the world”. Pro bono work of lawyers has become synonymous with the public good, and there is no debate that a majority of pro bono attorneys do contribute to the public good. PUBLIC INTEREST AND POLITICS There are multiple ideological groups that unite on specific issues and work towards advances the causes that they believe are in the public interest. The early successes of the public interest movements prompted the emergence of public interest law firms, advocating on divisive political issues. In their discussion of cause lawyering, Scheingold and Sarat suggest that cause lawyering, “conveys a determination to take sides in political or moral struggle without making distinctions between worthy and unworthy cause”. Today, public interest law firms are at the forefront of public interest groups and political advocacy organizations. When partisan public interest organizations first gained popularity in the 1960s and 1970s it was the liberal groups that bound together to promote significant social change. Drawing from the strategies developed by previous groups to advance specific causes, like the NAACP, ACLU and LDF, these public interest groups expanded their role to substantive law reform, litigation, and administrative and legislative advocacy. Because of this expansion in services offered, these groups began employing lawyers to create more lasting substantive change through legal reform. n response to the success of liberal groups advancing their partisan agendas, conservatives began to adopt this type of organization and developed public interest groups of their own. Many of the first conservative public interest groups (the National Right to Work Committee, National Right to Life Committee, Catholic League for Religious and Civil Rights), were created to advance very specific policy goals. These groups do not necessarily advance the public's interest but are intertwined with corporations and lobbying efforts to advance the interest that benefit their clients and result in financial gain for them. Since their inception, the role in public interest groups in politics has increased drastically, with many of them funding political action committee (PACs) with the purpose of advancing or inhibiting campaigns based on the candidate's stance on important issues. Public interest groups on both sides of the aisle have expanded their roles tremendously

and can even be attributed to the divisive political arena that exist today. While their roles have expanded, their overall goals have not. Partisan public interest groups continue pursuing the causes that connect with their ideological beliefs and continue to have successes in advancing these interests.