A Legal Practice Well Worth Doing
Cross-post from CityLimits.org
Negotiating Justice: Progressive Lawyering,
Low-Income Clients, and the Quest for Social Change, by Corey S.
Shdaimah, NYU Press, $45.
Amid the surfeit of bad news that has
surfaced of late is the less than obvious connection between the
economic downturn generally and the budget crisis now being faced by
legal service providers. Due to a quirk in the manner in which many
organizations receive funding, hard times for Wall Street now means
it's even harder than usual to fund lawyers who serve the poor.
The
decline in interest rates undercuts the interest earned on a key kind
of account maintained by lawyers, called the Interest on Lawyers Trust
Accounts (IOLTA), a major source
of funding for legal aid organizations. Cash-strapped legal aid groups
may be fielding more demands than ever, yet find themselves less able
to provide services than they were even just last year.
And it is
no secret that, even in flush times, the best efforts of these groups
barely scratch the surface of the legal needs of poor communities and
families. While the victims of Bernie Madoff will almost certainly have
their day in court, it's clear that for many victims of mortgage fraud
and predatory lending schemes, workplace harassment, landlord-tenant
disputes, credit problems, or those grappling with mental illness,
securing a lawyer with the time and inclination to properly address
their needs remains a pipedream.
A new book
by Corey S. Shdaimah, "Negotiating Justice: Progressive Lawyering,
Low-Income Clients, and the Quest for Social Change," makes a measured,
observation-based analysis of the operation of a single legal service
clinic, named with the pseudonym "Northeast Legal Services" or NELS,
that serves poor clients in a medium-sized American city.
Through
interviews, the author applies social science methods in evaluating
day-to-day interactions of lawyers and clients. The book is
particularly meticulous in examining whether the work in the clinic
maps onto the contours of what has been a vigorous conversation in
academic and legal services circles concerning the goals and nature of
community-based legal practice.
Starting several decades ago,
some legal scholars and practitioners on the left began to question
whether the potential for empowering clients in legal work was being
realized in practice. Law professors and pioneering theorists Gerald
Lopez of UCLA, Lucie White at Harvard, and Amherst College's Austin
Sarat, among others, asked whether legal services lawyers were able to,
or did, assist clients in achieving social justice through litigation
and advocacy, or whether power dynamics within the lawyer-client
relationship were actually reinforcing poor clients' difficulty in
effecting change.
After losing many of the struggles to enshrine
social entitlements that were part of the so-called "War on Poverty,"
immediate goals for legal practitioners did - and had to - rise to the
forefront as part of a far more piecemeal approach to legal practice.
Particularly
against the current legal backdrop of largely conservative courts, as
well as federal funding restrictions that prohibit many legal aid
lawyers from bringing class actions and other important types of cases,
it became more crucial for legal services and community-based lawyers
to ensure that their work did not re-victimize poor clients as those
clients sought justice.
Scores of law review articles were
published as part of what Shdaimah calls the "progressive lawyering"
approach, which encouraged legal services lawyers to use opportunities
to listen more closely to clients, to maximize client autonomy and
lawyer-client collaboration, and to gain self-awareness about the
limitations of lawyerly expertise in telling client stories. The
obvious class divisions among lawyers and poor clients were also
highlighted.
As a conversation, it revealed a clear need for
community-based and more holistic, inclusive approaches to the practice
of law that included access to non-legal help as well as self-help, and
justified organizations' attempts to transcend a narrowly legal
approach by grappling with at least some other negative pressures in
clients' lives.
Most of these insights are now accepted widely
by legal services lawyers. They are an important aspect of both
aspirations and achievements of legal services organizations, including
such local, multi-dimensional organizations such as Make the Road by
Walking or The Neighborhood Defender Service of Harlem.
Shdaimah's
book is an important recent addition to this tradition of closely
examining public interest legal practice. Isolating certain themes
concerning progressive lawyering, Shdaimah - a lawyer and assistant
professor in the University of Maryland School of Social Work - probes
them carefully. Her innovation is to ask directly about, for example,
lawyer-client collaboration and client autonomy. The book contains
substantial excerpts from interviews, in which we hear both the
lawyers' and clients' voices and perspectives.
Shdaimah argues
with some force that much of the earlier scholarship lacked a
substantial empirical component, and this was to its detriment. From
her perspective, the literature has saddled practitioners with a set of
abstract and difficult-to-achieve goals, thereby burdening lawyers with
the unattainable.
Her most pointed example concerns the value
of collaboration: Shdaimah asks whether wealthy clients get their legal
needs met without being asked to shoulder a laboring oar, and therefore
whether it is fair for clients with far fewer resources to be expected
to perform tasks (such as getting affidavits signed) as a precondition
of receiving services. She rightly points out that, for many clients,
securing access to competent legal counsel is no small victory in
itself.
Yet the book makes it clear that, in practice, lawyers
need client assistance on many aspects of a case due to both the
pressure of caseloads and the greater efficiency of client action on a
matter. In interviews, the lawyers also directly linked their hopes for
collaboration in a particular case to their assessments of client
capacity. One lawyer indicated that he would do far more than usual in
the case of one specific client, a woman who was particularly
vulnerable and easily overwhelmed. In short, a mixture of transactional
and resource realities (and compassion) informed lawyers' judgments in
applying the abstract notion of collaboration to particular clients and
circumstances.
The book, as a whole, will be a terrific
resource for students who would like to leaven their academic
scholarship with insights gained from observations, surveys and
interviews at a real legal clinic. It would also be a deeply helpful
companion text in seminars accompanying clinical legal studies
programs, wherein law students work alongside lawyers to serve clients.
However, with the collaboration question, as with many of the
others that Shdaimah highlights, I found myself far more drawn to the
direct sources and stories she assembled than to her critique of the
scholarship. Much of what Shdaimah found confirms that lawyers are able
to work with clients to secure measurable improvements in their lives,
and are valued in this role by the clients, despite the fact that no
transformational change in the overall conditions of poverty is on the
horizon.
Her descriptions underlined the significance of the core
lawyer-client collaboration - "naming, claiming and blaming" - which
both confirms the clients' feelings of righteousness in their cause,
and makes the most of lawyers' skills in framing challenges and
possible solutions.
Moreover, through the interviews, it was
clear that the lawyers at NELS were very familiar with at least the
broad contours of the literature, and aware of its conceptual
significance for community-based legal centers. Shdaimah did not have
the liberty of studying this kind of legal practice before and after
the notion of progressive lawyering took shape, and these notions
appear to already pervade legal practice at NELS.
My own view is
that the lawyers' attempt to apply such values, however constrained in
practice or by compassion, is a rarely celebrated, but crucially
important, advance in how we have come to imagine legal practice in
these and other settings. When I was a law student, I admit to being
captivated by this literature, and credit it with providing me and
countless others tools for self-examination and self-awareness that
have proven an invaluable part of whatever I have done.
While
scholars such as Lucie White do exhort practitioners to a set of
engagement-oriented norms, equally important for her and others is a
call to situated practice, informed by real-life contingencies and a
clear-eyed assessment of what is possible. So while Shdaimah appears
somewhat dismayed by the distance between the literature and reality, I
am instead reassured by how far we have come in understanding the
challenges and pitfalls of lawyering in poor communities. Shdaimah's
findings at NELS of attentive, hardworking lawyers, who sensitively
work with clients to secure incremental change, are actually a happy,
and somewhat overdue, confirmation that real-world application of these
values creates a legal practice well worth doing.
