31 HVCRCLLR 415
(Cite as: 31 Harv. C.R.-C.L. L. Rev. 415)
Harvard Civil Rights-Civil Liberties Law Review
*415 EMBEDDED PRACTICES: LAWYERS, CLIENTS, AND SOCIAL CHANGE
Louise G. Trubek [FNa]
Copyright © 1996 by the President and Fellows of Harvard University; Louise
Introduction: Ideology and Institutions
The ideology and institutions underlying lawyering for social justice are in a transitional period characterized by academic debate and innovative practices. Diminished funding for lawyers for subordinated people [FN1] and challenges to the lawyer-client hierarchy are contributing to the uncertainty; out of uncertainty, however, can come innovation.
The academic debate centers on the ways in which law, lawyers, and legal institutions affect the situations of subordinated people. At the heart of the controversy are challenges to the canonical model for social change lawyering [FN2] that has been dominant since the 1960s: the Legal Services Corporation (LSC) model. The LSC model provides lawyer-based representation of the poor in a neighborhood office staffed by salaried lawyers and paralegals, organized as a hierarchy among staff members and between staff and clients, and regulated and funded by a federal agency.
The challenges come from two directions: internal critique and external analysis. The internal critique questions the efficacy of lawyering in LSC programs; the external analysis draws on scholarly writings that create a new theoretical lawyering model for subordinated people. The LSC internal critique targets lawyer proficiency and political efficacy. [FN3] *416 The proficiency problem is attributed either to a lack of lawyer competency or to institutional demands. The political efficacy critique states that narrow, case-by-case lawyering cannot effectively improve the overall situation of poor people, contrasting the LSC's current individual approach with its early approach, which emphasized community organizing and systemic litigation. [FN4]
The external analysis expresses a different vision of advocacy on behalf of subordinated people. [FN5] Sometimes called "critical lawyering," this theory addresses two major concerns: improving lawyer-client relationships in order more effectively to serve subordinated groups, and rethinking the relationship between legal work and political mobilization. [FN6] Critical lawyering aims to provide subordinated people with greater access to legal representation and to promote more social change. [FN7] While providing practical suggestions for reform, critical lawyering theorizes social change lawyering, drawing heavily on feminist and critical race jurisprudence. [FN8] Critical lawyering theory softens the distinction between individual client work and "impact" work on test cases, class actions, and legislation. It views client work as transformative in and of itself, lessening the tension between advocating on behalf of individual clients and pursuing transformative goals. Collaborative lawyer-client relationships, [FN9] *417 and working with social movements and client groups are central tenets of critical lawyering. Social change lawyers are also uncomfortable with traditional hierarchical workplace relationships and seek to transform the workplace into a more collegial site. [FN10]
The internal critique and external analysis have different institutional goals. The aim of the internal critique is to revitalize the LSC model so it can continue as the primary location for social change lawyering. [FN11] Deep funding cuts and restrictions in federal tax support for LSC reflect a growing belief in fiscal austerity, welfare reform, and hostility to lawyers. [FN12] Cutbacks and radical restructuring of welfare programs are devastating for legal services lawyers. Having premised their legitimacy on government's obligations to subordinated people, and having built institutions and careers around government funding, they now find both threatened. One veteran legal services attorney describes his decision to leave and set up a private practice as "pretty easy." [FN13] The internal critics are deeply concerned about maintaining LSC in light of funding cutbacks and the defection of experienced lawyers.
Although the internal critics realize that rethinking LSC programs is essential in obtaining revived congressional support, there is substantial disagreement on how to revitalize the LSC programs. [FN14] The disagreements in the literature relate to the potential for social change through individual case representation, the significance of mobilization, and the importance of quality assurances. [FN15] There is little discussion of rethinking relationships with clients, creating and maintaining workplace collegiality, or collaborating with community groups using nonlawyer models.
On the other hand, the lawyers and scholars associated with the external analysis are exploring alternative institutions for social change *418 lawyering. [FN16] Because prospects for state funding are dimming, opportunities for government employment are declining, and our ideas about the best approach to lawyering for subordinated groups are changing, alternative practices for social change lawyering should be identified and encouraged. Recent studies have identified alternative practices, including social justice law firms, law school clinical programs, pro bono models, and client nonprofits, at work in several different geographic locations. [FN17] These social change practices display an alternative ideological and institutional vision for practicing law for subordinated people. These practices illustrate the viability of models that use diverse funding sources and depend upon a commitment to collaborative lawyer-client relationships. Alternative practices both create and reflect ideological and institutional frameworks for social justice. Ironically, these same elements also create conflicts that may jeopardize the survival of these practices. The success of such practices is crucial as they assist clients, redeem lawyers, and expand the realm of social change lawyering.
This Article examines two models of alternative practices now functioning in Wisconsin. [FN18] Both models may be termed "embedded": they are in the private sector, provide services for subordinated people, evolve from a local community and legal culture, and are client funded. The first *419 model is the "client nonprofit": nonprofit organizations that serve specific client groups and integrate lawyering into the operation of these organizations' mission. The second model is the "social justice law firm": fee-for-service firms that incorporate lawyering for causes and disadvantaged groups within their overall practice. I describe the operation of these practices, analyze their key elements, and compare their effectiveness. I then discuss how the elements of nonlawyer control, diverse funding, and new lawyer recruitment, which characterize these practices, produce conflict within the profession. I conclude with a challenge to the bar and to law schools to encourage cooperative coexistence among social change lawyers and tolerance of experimentation.
I. Embedded Practices
A. The Client Nonprofit
There are a growing number of nonprofit organizations that work with subordinated people; they range from support groups to housing rehabilitative services to homeless shelters. [FN19] The ascendancy of the client nonprofit during the 1980s "stemmed from the preference of government funders for using private groups to deliver new services rather than expanding government agencies." [FN20]
These nonprofits view their mission as strengthening the collective and individual power of their clients. Law, lawyers, and legal institutions emerge as both enablers and obstacles in the achievement of their goals. This Section profiles client nonprofits in Wisconsin that are aggressively pursuing legal strategies on behalf of their clients: an older people's advocacy group and battered women's shelters. [FN21] These organizations were selected because each organization exhibits a well-developed integration of its mission with the utilization of law and lawyers, demonstrates financial and leadership stability, and provides services throughout the state.
*420 1. Services for Seniors
The Coalition of Wisconsin Aging Groups (CWAG) is a nonprofit corporation founded in 1978. It is the leading Wisconsin-based service and advocacy organization for older people. CWAG's central missions are advocating for the special needs of older persons, assuring that older persons are recognized as people of dignity and worth, and affirming that older persons are partners in building the Wisconsin of tomorrow for people of all ages. [FN22] CWAG provides its members with services and programs ranging from legislative lobbying to counseling on home equity mortgages to sponsoring a Medicare supplement insurance policy. [FN23]
CWAG understands the impact of law on the lives of its members. The drastic reduction of the number of elderly poor is directly related to the creation of Medicare and the increases in Social Security during the 1960s. [FN24] But these programs also generated rules and bureaucracy that negatively impact the lives of older persons. An increasing concern of older people is autonomy and control in their lives; laws and legal institutions influence access to home- based, long-term care and determine medical right-to-die decisions.
From its inception, CWAG's law-related program has provided legislative lobbying, grassroots activism, and client education. CWAG substantially expanded its legal services commitment in 1991 when its Board approved a merger with a well-respected legal project serving the elderly. Funded by federal and state funds, the project is an innovative legal services delivery system serving thousands of older persons throughout the state. [FN25] Nonlawyers, called "benefit specialists," are located in county offices and provide public benefits counseling and advocacy to older people. Staff lawyers from the legal unit provide backup to these field benefit specialists.
CWAG's budget and program reflect its increased strength and viability after the merger. The executive director indicates that CWAG received funding for two new services--counseling for home equity conversion *421 and food stamp outreach--because of its increased strength and visibility. [FN26] Funding for the legal unit has also expanded with local and national foundations and agencies providing additional funds. [FN27]
In addition to the field benefit specialists, there are now four lawyers on the CWAG staff. The scope of legal services provided has expanded to include a guardianship support center and an elder abuse project. While most of the services are provided by the staff attorneys and benefit specialists, several of the projects use pro bono attorneys. The benefit specialist system produces high-quality client service for two reasons. First, the advocates understand the needs of elderly clients such as the need to provide legal services through home visits to the disabled. Second, the benefit specialists are experts in the legal concerns of the elderly such as Medicare and Social Security. [FN28]
Collaboration between the lawyers and other CWAG staff members has positive effects. The statewide client casework provides the CWAG legislative lobbyists with personal, local stories for their discussions with legislators. The extensive casework also creates a statistical base to establish areas of concern for legislation, administrative agency reform, and class actions. The addition of the lawyer staff also creates what the executive director terms "synergy," arising from the combination of the expertise of the legal staff with concerns identified by the rest of the staff and Board. [FN29]
The placement of a law unit within the client organization creates an organic client-constituency-lawyer relationship. Such a relationship results in the respectful treatment of clients, more efficient collaboration between the client group and the lawyers, and an overall strengthening of the organization.
2. Shelters for Battered Women
Over the past twenty years, a vital movement to assist battered women has emerged. [FN30] In Wisconsin, the sites providing services to battered women are community-based shelters, which are nonprofit organizations funded through a mixture of government grants, foundation support, *422 and individual and corporate contributions. The shelters also belong to the Wisconsin Coalition Against Domestic Violence (WCADV), a statewide coalition that provides education and advocacy for battered women and support for the shelters. [FN31]
The movement against domestic violence has involved substantial interaction among movement activists, clients, and lawyers. [FN32] Lawyers have been part of the strategy that insists on treating domestic violence as a crime and ensuring that the criminal justice system treats victims fairly. [FN33] Groups advocating for battered women have fought to have battered women represented in the court system by advocates knowledgeable about the psychological dimension of battering. [FN34] In recent years, battered women's groups have also demanded greater access to family services and government policies that provide income to women in transition from violent relationships to independence. [FN35]
Each Wisconsin shelter provides a variety of legal services to its clients. Interviews with the directors of these shelters indicate different combinations of legal service providers, including staff lawyers, lay advocates, lawyer board members, LSC lawyers, pro bono attorneys, and private bar referrals. Human and economic resources for the legal services come from the general budget of the agency, Legal Services Corporation representation, and pro bono contributions from the private bar. [FN36] One shelter receives specific foundation and bar association grants to fund a staff attorney. [FN37] Another raises donations to build a retainer fund to reimburse pro bono attorney costs. [FN38]
Advocacy for protective orders is provided by a "legal advocate," a nonlawyer who assists battered women in court by aiding in the petitioning process, accompanying victims to court, and educating the court and police about the needs of battered women. The shelters rely on the legal advocate to walk the women through the protective order process. The advocates are often part-time, sometimes pro bono; several shelters employ *423 former deputy sheriffs with criminal justice degrees as legal advocates. [FN39]
Representation in family law matters varies with the shelter's resources. One shelter employs a full-time staff attorney to provide family law services to clients who cannot qualify for the local LSC program. The shelter hired the lawyer because it was unable to locate private attorneys to provide the services. The director explained:
We worked hard to develop a pro bono network, but it's been very difficult.... Most lawyers are reluctant to take pro bono work in this area. This is partly because the cases often evolve into messy custody disputes or other messy areas. Also, there may be a stigma attached, and the lawyers would lose other work in the community if strongly associated with victims of domestic violence. [FN40]
Another shelter uses the local LSC office for family law cases. The shelter does the screening and makes referrals to that office. If the client is above income limits, the LSC office uses a referral service under which the client pays a private lawyer a reduced fee. Even where the LSC office is providing the legal work, clients are directed to the shelter for nonlegal support while going through a divorce. [FN41] The LSC office relies on this support. As one staff attorney observes, the LSC office is "not able to handle divorces well without the screening by the shelter.... Clients go through the shelters for divorces so the women get support." [FN42]
The shelters' work on behalf of battered women extends beyond individual assistance; they integrate policy action with case representation. Advocacy by the shelters in the legislature is coordinated through WCADV. The shelters' local base assists in providing effective lobbying. One shelter director states: "I have earned and worked for a good relationship with my state senator and representatives. They call me and say 'You are my adviser on this issue."' [FN43] Action on public and community issues also creates a sense of empowerment in clients. One shelter indicated that "it encourages victims to contact WCADV directly. The most common progression is to see women who were once clients become volunteers and then stay active in their community." [FN44]
*424 A nonhierarchical workplace environment for staff and clients can be a key aspect of the shelters' missions. Respect and shared responsibility at the shelters can reduce psychological and emotional battering in our society by modeling alternative forms of interaction. One approach to a nonhierarchical workplace is maintaining a collegial and humane office. One worker comments: "We consider ourselves equal. Nobody wants anybody else's job." [FN45] The shelters' organizational structure can also promote equality. One shelter experimented with a collective model but has moved to a more structured environment where the director, though the final decision maker, employs a participatory management style. [FN46]
The shelters recognize that social change requires workplaces that embody goals of respect and equality; however, client crises combined with limited staff resources make nontraditional workplaces difficult to maintain. One shelter's staff considers tension in the workplace to be inevitable because "the work itself creates a constant crisis." [FN47]
3. Observations on the Client Nonprofit
Both CWAG and the battered women's shelters realize that lawyers, legal institutions, and laws are significant factors in advancing the interests of their clients and their own organizational goals. They attempt to operationalize a system that will improve their clients' experience with the law. They provide empowering client representation and collaboration between lawyers and client groups. The organizations understand that providing individual case representation is critical to the goals of the group; they believe that collective power increases through successful individual client representation. Both nonprofits also engage in more traditional collective action such as group organizing, legislative lobbying, and class actions. Each organization has been able to generate funding for its legal program by combining federal and state government funds, organized bar and individual lawyer contributions, foundation and business grants, and charitable donations.
These organizations opportunistically locate LSC and public interest lawyers, pro bono attorneys, and lay advocates on their staffs to provide these services. The use of lay advocates for representation is a striking feature of the client nonprofit model. [FN48] Locally based lay advocates provide *425 a significant portion of the services, working closely with the lawyers associated with the nonprofits. In the CWAG system, the county agency for the aging hires the benefit specialist and provides the local legal support base. The supervising lawyers are based in a single state office or regional LSC office. The locally based battered women's shelters have a lay advocate housed within their organization who provides local court services to the clients. The advocate has an informal relationship with a staff attorney, a pro bono attorney, or an LSC office attorney. The shelters also have a coordinating relationship with WCADV, which provides technical assistance and counseling to the local lay advocates and lawyers. [FN49]
Two major tensions arise in the client nonprofit model: one between the lawyers and the nonprofit organization, and the other between the lawyers and the lay advocates. The tension between the lawyers and the nonprofit organization stems from the conflict between the nonprofit's mission and the lawyer's view of client service. The nonprofit sees the purpose of the legal program as enhancing the situation of the client group, a view that may require tradeoffs with individual client service. A CWAG lawyer discusses a current example, where the organizational priority is home-based, long-term care as an alternative to nursing home care, but he identifies an alternative client need, such as eligibility for local welfare grants, that is not being met: "I raise [general assistance] issues where I think we should take a higher profile, but I am not successful. I am told it doesn't affect older people as much as the general population, which is true, [but it leaves me unable to help needy clients]." [FN50]
Contributing to tension between the lawyer and the nonprofit is the conflict between the lawyer's duties to the court and the organization's procedures. The director of one shelter indicates that the attorney was difficult to fit into a participatory office: "They try to include the attorney into the picture, but they have to work harder to include the attorney. Part of the problem is sheer scheduling because the attorney has to be in court." [FN51]
The tensions may be perceived by the nonprofit leadership as stemming from the lawyer's lack of commitment to the overall mission of the nonprofit. Lawyers may view the tension as arising from their own concern *426 for the adequacy of client representation. [FN52] Both perceive the tenuous connection of the staff lawyers to the broader profession as a source of tension. There exists the perception that the position as a nonprofit staff lawyer results in both a diminished ability to influence the lawyer's peers and a loss of prestige within the professional community.
The second major tension lies between lawyers and lay advocates. A staff attorney in one shelter recalled:
A staff person spends much more time with a client than a lawyer and may believe that the client qualifies for help from the shelter. After a brief review, the attorney may reject the client based on the "rules," disagreeing with the staff member. In the past, there was difficulty in finding ways to work that through. [FN53]
The attorney continued that although improving communication lessens this tension, "the attorney's responsibility is to act independently and to make the determinations under the ethical guidelines"; therefore, the tension will always be present. [FN54]
Despite the integral use of lay advocates in the legal program of these nonprofits, some lawyers may view lay advocates as "second best." Various reasons have been presented for this position: insufficient training and supervision of the advocate, perceived power imbalance when lay advocates face lawyers on the other side, and fear of unauthorized practice of law charges.
The lack of resources available to these nonprofits can result in insufficient training and supervision of lay advocates. [FN55] There is no prescribed education for these lay advocates; each one comes from a different background and must be individually trained. In the CWAG system, the attorney does not have complete supervision over the benefit specialist, as the county hires the benefit specialist and may restrict the benefit specialist's activities. [FN56] Several shelter directors note that lay advocates are less effective than the staff attorney but suggest that effective lay advocacy can be achieved through training. [FN57]
Nevertheless, even the best trained lay advocate may have less credibility with the courts, other lawyers, and the community than the lawyer. This creates a perceived power imbalance between lawyers and lay advocates. A lay advocate who accompanies domestic violence victims to court and assists in requesting restraining orders finds lawyers challenging her *427 right to provide assistance. In one case, a lawyer directly challenged a lay advocate's right to provide assistance by saying, "Why are you trying to be an attorney?" [FN58] This form of intimidation undercuts the lay advocate's ability to feel confident invoking her advocacy skills on behalf of her client and to obtain recognition of her competence.
In addition to promoting the power imbalance between lawyers and lay advocates, such statements arouse the fear of unauthorized practice of law charges. As one director stated: "We are in dangerous and murky water with the legal advocate. We're filling a void of legal information and we don't know when we're crossing the line. Attorneys use this to accuse us of providing legal services and diminish our effectiveness." [FN59] This fear can chill lay advocacy efforts, heightening the tension between lawyers and lay advocates.
Despite these limitations, studies of the CWAG program consistently commend the competence of the lay advocates and the model's long-term success. [FN60] Because Wisconsin has enacted specific legislation to allow their presence in court, the shelter lay advocates are integrated into the anti- domestic violence system. [FN61] Several lawyers and directors stated that although administering the lay advocacy program presented difficulties, there is no alternative; the resources just do not exist to have highly competent, trained lawyers staff these positions. [FN62]
Both major tensions, between the lawyer and the nonprofit organization and between the lawyer and the advocate, rest on a shifting of the paradigm of the lawyer-client relationship. The client nonprofit model presents a model of client organizational control, lawyer participation, and use of nonlawyers radically different from that with which most people are familiar.