American Bar Association
Section of Environment, Energy, and Resources
Keeping It Real—and Ethical—in Today’s Law Practice:
Skills and Challenges for Community Lawyers
Alexandra Dapolito Dunn
(acknowledged contributions by Chapter Co-Author Hana Heineken, Esq.)
45th Spring Conference
Hyatt Regency Austin
March 30, 2016 - April 1, 2016
Austin, TX
April 1, 2016
Abstract:
Community lawyers face unique professional responsibility challenges when it comes to
identifying group goals, ensuring effective communication while protecting confidentiality, and
providing candid advice on effective courses of action that adequately reflect the needs and
desires of a diverse group. In order to meet these challenges, community lawyers must employ a
broader array of tools in order to achieve the goals of the community they represent. Because of
the unique attributes of this distinct though important type of public interest lawyering, some
have asserted that the traditional rules of professional responsibility governing attorney-client
relationships do not effectively address the ethical challenges faced by community lawyers.
Public perceptions of this unique field of legal practice and the ethical challenges involved have
been heavily influenced by portrayals in film of zealous advocates fighting for the rights of
communities against single-minded, private interests. While these depictions in both fiction and
non-fiction media can be both widely popular and very insightful, it is important to understand
how the sorts of activities community lawyers engage in fit into the ethical rules governing
attorney conduct.
This paper, based on a chapter co-authored with Hana Heineken, Esq., from the ABA Section
of Environment, Energy, and Resources’ forthcoming book, Ethics and Environmental Practice:
The Practitioners Guide, will discuss some of the key differences—and similarities—between
how community lawyers are portrayed in popular culture and real-world stories from
practitioners. It will provide an in-depth examination some of the essential tools used and major
ethical challenges faced by attorneys advocating for the interests of community groups, while also
demonstrating how community lawyers apply the traditional rules of professional responsibility
as well as other non-traditional skills to advance the unique needs of the groups they represent
while fulfilling their ethical responsibilities in delivering their services. In giving this analysis, the
author hopes it will give readers a picture of how community lawyering practices are shaped by
the Model Rules of Professional Conduct and how these practices inform and are influenced by
public perceptions of the attorney’s role in community advocacy. In addition, it will strive to
provide useful information for practitioners as they stay on the right side of ethical guidelines and
while providing effective services to help community groups achieve their objectives.
Introduction:
Diverging from the standard conception of lawyering where attorneys focus on individual
clients and private interests, lawyers who engage in the practice of community lawyering 1 work
to advance the public interest and the shared goals of diverse groups of people—including
community groups, neighborhood associations, tribes, and formal or informal civil society
organizations. The concept of community lawyering is particularly relevant to the field of
environment, energy, and resources law, where environmental quality is inextricably tied to the
health of communities dependent on it.
Community lawyers face unique professional responsibility challenges when it comes to
identifying group goals, ensuring effective communication while protecting confidentiality, and
providing candid advice on effective courses of action that adequately reflect the needs and
desires of a diverse group. In order to meet these challenges, community lawyers must employ a
broader array of tools in order to achieve the goals of the community they represent. Because of
the unique attributes of this distinct though important type of public interest lawyering, some
have asserted that the traditional rules of professional responsibility governing attorney-client
relationships do not effectively address the ethical challenges faced by community lawyers. 2
Public perceptions of this unique field of legal practice and the ethical challenges involved have
been heavily influenced by portrayals in film of zealous advocates fighting for the rights of
communities against single-minded, private interests. While these depictions in both fiction and
non-fiction media can be both widely popular and very insightful, it is important to understand
how the sorts of activities community lawyers engage in fit into the ethical rules governing
attorney conduct.
This paper, based on a chapter from the ABA Section of Environment, Energy, and
Resources’ forthcoming book, Ethics and Environmental Practice: The Practitioners Guide, will
discuss some of the key differences—and similarities—between how community lawyers are
portrayed in popular culture and real-world stories from practitioners. It will provide an in-depth
examination some of the essential tools used and major ethical challenges faced by attorneys
advocating for the interests of community groups, while also demonstrating how community
lawyers apply the traditional rules of professional responsibility as well as other non-traditional
skills to advance the unique needs of the groups they represent while fulfilling their ethical
responsibilities in delivering their services. In giving this analysis, the author hopes it will give
readers a picture of how community lawyering practices are shaped by the Model Rules of
Professional Conduct and how these practices inform and are influenced by public perceptions of
the attorney’s role in community advocacy. In addition, it will strive to provide useful
1
The concept of “community lawyering” has been written about extensively in relation to social and
environmental justice lawyering and has also been referred to as “rebellious lawyering,” “law and
organizing,” “social change lawyering,” “critical lawyering,” and “empowerment lawyering.” See, e.g.,
Gerald Lopez, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice (1992); Michael
Diamond, Community Lawyering: Revisiting the Old Neighborhood, 32 Colum. Hum. Rts. L. Rev. 67, 75
(2000); Paul Tremblay, Counseling Community Groups, 17 Clinical L. Rev 389, 391 n.1 (2010).
2
See, e.g., Tremblay, supra note 1; Shauna Marshall, Mission Impossible?: Ethical Community Lawyering,
7 Clinical L. Rev. 147 (2000); Kristen A. Carpenter & Eli Wald, Lawyering for Groups: The Case of
American Indian Tribal Attorneys, 81 Fordham L. Rev. 3085 (2013). See also Michael Grinthal, Power
With: Practice Models For Social Justice Lawyering, 15 U. Pa. J.L. & Soc. Change 25 (2011) (noting that
traditional paradigms of group representation are designed either for fully-formed, established, and
hierarchized groups (e.g., corporate representation) or for constituencies who remain atomized and
relatively passive throughout representation (e.g., impact litigation and class actions).
information for practitioners as they stay on the right side of ethical guidelines and while
providing effective services to help community groups achieve their objectives.
I. The Client and Scope of Representation
Community lawyering is commonly practiced to address and respond to issues that affect
large groups of people, including community economic development, worker’s rights and
opportunities, land use, and environmental justice. It describes a type of lawyering where clients
generally are of lower income and disenfranchised, and where lawyers are working in the context
of advancing specific community goals on behalf of formally or informally organized citizen
groups. 3 Some scholars view the objective of community lawyering to be the empowerment of
the community client, who requires assistance in economic, political and social issues that go
beyond immediate legal problems. 4 The focus of this practice on addressing sometimes diffuse
community concerns and goals – which may or may not be linked to legal rights – has made
application of the rules of professional responsibility to the community lawyer challenging, but
not impossible. There are two aspects of community lawyering which are distinctive when it
comes to considering professional responsibility issues such as confidentiality and competence:
the client and the scope of representation.
A. “Standard Conception” of Lawyering
The ABA model rules of professional conduct are largely based on a traditional AngloAmerican concept of lawyering known as the “standard conception.” 5 This model of individual
lawyering has several key features: (a) partisanship and zealous advocacy, (b) neutrality with
respect to the moral merits of the client or the client’s objectives, and (c) moral nonaccountability. Typically based on a one-to-one attorney client ratio, the standard conception does
not fully take into account the challenges of lawyering for communities. While the Model Rules
recognize specific responsibilities that attach to lawyering for groups in Rule 1.13 (Organization
as Client), 6 this rule requires some translation when applying it to the social justice orientation of
community lawyering – which raises significant challenges when it comes to determining the
group’s identity and objectives and effectively communicating with the group client. 7
B. Definition of Client
One of the most difficult aspects of community lawyering is determining the identity of the
client, which in turn affects the application of other rules such as whose communications are
confidential on the basis of the Attorney-Client privilege. The Model Rules contemplate
representing groups in the form of organizational clients that are either incorporated or
unincorporated (Rule 1.13), 8 as well as individuals who are jointly represented (Rule 1.7), 9
3
See Diamond, supra note 1, at 75.
See Karen Tokarz, Nancy L. Cook, Susan Brooks, and Brenda Bratton Blom, Conversations on
“Community Lawyering”: The Newest (Oldest) Wave in Clinical Legal Education, 28 Wash. U. J.L. &
Pol’y 359, 363 (2008).
5
See Scott R. Peppet, Lawyers’ Bargaining Ethics, Contract, and Collaboration: The End of the Legal
Profession and the Beginning of Professional Pluralism, 90 Iowa L. Rev. 475, 500 (2005); Carpenter,
supra note 5 at 3089-3090.
6
Model Rules of Prof’l Conduct r. 1.13 (2013).
7
See Carpenter, supra note 1, at 3090.
8
Model Rules of Prof’l Conduct r. 1.13 (2013). For further analysis on the scope of Rule 1.13, see
Tremblay, supra note 1, at 422-426.
4
neither of which comfortably fits within the context of community lawyering. When representing
an organizational client, the Model Rules anticipate a lawyer will work with a well-structured
client, with well-defined rules for communicating with a lawyer. The Model Rules define an
organizational client as “a legal entity,” and notes that “it cannot act except through its officers,
directors, employees, shareholders and other constituents.” 10 When the client is a group of
individuals, Model Rule 1.7 provides that no lawyer shall engage in multiple representations of
clients whose interests will directly conflict unless (a) he or she reasonably believes that the
representation will not be adversely affected and (b) each client consents to the representation.11
The ABA does recognize that even in instances where a concurrent conflict of interest exists,
representation is still appropriate when the lawyer believes that she will be able to legally,
competently, and diligently represent each affected client, making sure there are no claims by one
client against another client being represented and each client gives written, informed consent. 12
In the context of community lawyering, the client is typically a group of individuals that
represent the interests of that community. This may make the form of the client more fluid or
informal than that contemplated by the Model Rules. Because of the sometimes informal
structure of these organizations, and their potential lack of experience interacting with lawyers—
among other possible issues—it is important that the community lawyer properly determine from
the outset who the client is, and make this clear in the form of an engagement letter and retainer
agreement in order to avoid ambiguity. 13 A community lawyer should let the group members
know that the organization as a whole is the client, and not its individual members (including
executive officers, tribal leadership, or community leaders). This approach is consistent with Rule
1.13 which anticipates that specific individuals will be identified to act on behalf of an
organizational client as a whole. 14 As explained in Section II, community lawyers may engage in
community empowerment practices such as training workshops, where community members may
perceive the lawyer as forging an attorney-client relationship. In such instances, a best practice is
for the community lawyer to explain to participants that she is not establishing an attorney-client
relationship and personal information disclosed by the community is not protected. 15
C. Scope of Representation
In determining the scope of the representation, a community lawyer must ensure that any
constituent of the organization with whom they interact is in fact representing the preferences of
that entity. The lawyer should clarify the decision-making structure within the entity, which may
9
Model Rules of Prof’l Conduct r. 1.7 (2013); see also Lucian T. Pera, The Ethics of Joint Representation,
40 Litigation 1 (2013) (noting that although the Model Rules are not explicit, it appears Model Rule 1.7
governs joint representation), available at
http://www.americanbar.org/content/dam/aba/publications/litigation_journal/fall2013/ethics-jointrepresentation.authcheckdam.pdf..
10
Model Rules of Prof’l Conduct r. 1.13 cmt. 1 (2013) (Note also that “the duties defined in this Comment
apply equally to unincorporated associations.”).
11
See also Tremblay, supra note 1, at 407-413.
12
Model Rules of Prof’l Conduct r. 1.7 (2013) (changes made from list format for style). [is this a reference
to a comment also?]
13
See Marian C. Rice, Engagement Letters: Beginning a Beautiful Relationship, ABA Vol. 39 No. 3
A.B.A. Law Practice Mag., May/June 2013, available at
http://www.americanbar.org/publications/law_practice_magazine/2013/may-june/ethics.html
14
See Model Rules of Prof’l Conduct r. 1.13 cmt. 1 (2013).
15
Marshall, supra note 2, at 183-184 (noting that while this measure should be taken, the participants at the
workshop are placing trust in the lawyer and the ethical rules do not neatly address the lawyers’ obligations
in such contexts).
be straightforward to discern in the case of well-structured entities but more difficult to identify in
the case of loosely structured community groups. One scholar notes that “while it is true that [a
lawyer] may lawfully represent a loosely-structured group such as an unincorporated association,
a lawyer may not do so within the constraints of the law of lawyering unless her client achieves
many of the attributes of a well-structured organization.” 16 The attributes in this analysis include
assurance that the group members recognize themselves as a group; identification of the
individuals that are members of the group; and an understanding with considerable confidence of
the decision-making structure of the entity. 17 Establishing a decision making approach that is
binding on the group (i.e. a protocol) in order to avoid the risk of acting without entity
authorization is a recommended approach. 18
Tensions can arise between the interests of the organizational client and the constituent in
articulating the objectives of the representation. It is therefore advisable to agree on the objectives
in a retainer agreement, outlining the project’s goals as agreed by the client and the lawyer as well
as the plan of action, both of which reflect the community’s values. 19 If the project involves
various constituents in the community, the lawyer can seek to involve all such groups in the
process of developing the retainer. 20 Some scholars advocate for the lawyer to play a more active
role in determining the objectives of representation—discussed further in Section II.
D. Communication and Protecting Confidentiality
Maintaining open and honest communications with the client, as required under Rule 1.4, can
be challenging with respect to a group client due to the more complex composition of its
constituency as well as the nature of the representation. One approach to facilitate communication
is to develop an internal policy for reporting to the client, clear management of client
expectations, and regular communication.
Essential to maintaining trust is protecting the confidentiality of communications with the
client (Rule 1.6) 21. Community lawyers may not reveal information relating to representation
unless the client has consented to the disclosure or impliedly authorized it, or it is allowed by
specific extenuating circumstances. 22 For example, where the lawyer is aware of illegal conduct
by a constituent of the organization, the lawyer shall take only those measures designed to
minimize the risk of revealing organizational information to persons outside the organization. In
light of the number of constituents who make up the group client, it is important that community
lawyers teach their clients about confidentiality in advance, explain how the Attorney-Client
privilege applies, 23 and verify the decision-making process of the group. This effort may be
closely tied to the process of defining the client. It is especially important that community
members understand that while lawyer represents the group as a whole, she does not represent
individual members, and any individual information disclosed is not protected by the AttorneyClient privilege.
16
Tremblay, supra note 1, at 426-428.
Id.
18
Id. at 438 (identifying 3 steps a lawyer must take before accepting a loosely-structured group as a client).
19
Marshall, supra note 2, at 221-223. The author advocates for a retainer that has some flexibility to
account for changes in the community’s values or goals, by building in opportunities for evaluating
strategies and goals.
20
Id.
21
See Model Rules of Prof’l Conduct r. 1.6 (2012).
22
See Model Rules of Prof’l Conduct r. 1.6(b) (2012).
23
This can be particularly difficult in the case of factual discovery resulting from SLAPP suits.
17
Confidentiality is complicated by the interdisciplinary nature of community lawyering.
Community lawyering often involves close collaboration with non-legal experts, such as
community organizers, in order to be effective. This raises questions as to client confidentiality
and necessitates widening the scope of confidentiality protection to include such organizers. It has
been recommended to establish written protocols on handling confidential information and to
closely supervise the organizer’s work product and conduct. 24 Community lawyers must also be
aware of duties to former clients, as past representations of individual community members may
create conflicts of interest. 25 There are methods for addressing past relationships, but the actions
of the attorney must be both intentional and thoughtful.
Lastly, a community lawyer must abide by Rule 4.2 governing communication with persons
represented by another lawyer in the matter and Rule 4.3 governing dealings with unrepresented
persons. 26A lawyer can only approach persons represented by another lawyer in the matter after
obtaining consent from the other lawyer or when authorized by law or court order. 27 With regard
to unrepresented persons, a lawyer should not act disinterested, but instead strive to clarify the
lawyer’s role in the matter and not give legal advice except to secure counsel if she knows or
should reasonably know that there may be conflict of interest with the client. 28
While issues of client identity, scope of representation, and confidentiality can be more
challenging in the context of community lawyering, a well-written engagement letter and retainer
agreement can be effective in avoiding ambiguities. Practitioners of community lawyering
therefore recommend having such documents to lay out the details of the representation and make
sure each member of the client group understands them. 29
II.
Community Lawyering and Professional Competence
The community lawyer’s responsibility to provide competent representation (Rule 1.1),
exercise professional judgment, and render candid advice (Rule 2.1) can diverge from the
standard model of lawyering due to the community-oriented objectives of representation.
Community lawyering typically seeks community empowerment and is intertwined with public
interest objectives. Lawyers must be ready to seek alternatives to traditional litigation owing to
the fact that adversarial tactics can have a divisive effect on the community and thus hinder the
achievement of group goals. Another challenge arises when attorneys take a more active role in
shaping the community group’s objective, requiring careful attention in order to avoid conflict of
interest.
A. Lawyering for Community Empowerment
Community lawyering differs from the standard mode of lawyering envisioned by the Model
Rules due to its emphasis on empowering the community to find lasting solutions. Community
lawyering is not impact litigation, which is a distinct form of social justice lawyering that is
perhaps more in line with the standard mode of lawyering, as it is often lawyer-driven and
24
See Scott L. Cummings & Ingrid V. Eagly, A Critical Reflection on Law and Organizing, 48 UCLA L.
Rev. 443, 508 (2001).
25
See Model Rules of Prof’l Conduct r. 1.9(a) (2012). See also Marshall, supra note 2, at 197.
26
Model Rules of Prof’l Conduct r. 4.2 (2012).
27
Id.
28
Model Rules of Prof’l Conduct r. 4.3 (2012).
29
Based on an interview with the Executive Director and Managing Attorney of a nonprofit law firm which
offers environmental legal services for modest means clients; see also Model Rules of Prof’l Conduct r.
1.4(b) (2012).
intended to force social justice changes in the law itself. 30 By comparison, community lawyering
typically places emphasis on a client-centered approach and reliance on litigation alternatives,
such as advocating for policy change or building more effective community organizations. 31
Successful community lawyering is less defined by victory in court and more by the improvement
in the quality of life for individuals in the community and for the community as a whole. 32 To
accomplish this, the community lawyer may conduct training workshops to facilitate community
understanding of the situation and relevant laws, seek civil remedies, negotiate voluntary
compliance, motivate agency cooperation, or create new organizations such as community
courts. 33 In contrast with standard lawyering strategies like investigation, negotiation, and
litigation, a community lawyer may engage in more advocacy-oriented activities, including media
outreach, petition drives or public demonstrations. 34 However, as will be discussed further below,
it is important to note the limits imposed by the Model Rules on attorneys engaging in these
practices.
B. Competent Representation
Owing to the distinctive features of community lawyering, effective community lawyers may
require a broader skill set than the traditional lawyer. This is especially true of community
lawyers engaged in solo, small-firm, or non-profit practice with limited resources. As a group of
clinical legal educators have stated, “community lawyers often must assume roles that fall outside
their conventional legal training . . . interdisciplinary work deepens the ability of lawyers . . . to
identify and cultivate additional resources and partners.” 35
Rule 1.1 requires community lawyers to have “the legal knowledge, skill, thoroughness and
preparation reasonably necessary” to provide “competent representation” to the client. Foremost,
this entails knowing the relevant local, state, tribal and federal laws, and in the case of community
lawyers that are addressing environmental issues, the lawyer must be competent in the relevant
environmental laws and case laws. Of particular relevance to lawyers addressing environmental
issues is the procedural orientation of many state and federal environmental laws, especially those
related to permitting facilities. 36 Lawyers who work on behalf of a community must have the
competence to satisfy both the substantive and procedural aspects of the law.
Community lawyers must be able to practice client-centered lawyering by listening to the
client and involving them in the decision-making process. 37 Involve clients in the design and
30
For further discussion, see John N. Tye & Morgan W. Williams, Networks and Norms: Social Justice
Lawyering and Social Capital in Post-Katrina New Orleans, 44 Harv. C.R.-C.L.L.Rev. 255, 263-68 (2009).
31
See Roger Conner, Community Oriented Lawyering: New Approach for Public Sector Lawyers, 8 The
Pub. Law. 3, 5 (2000); PowerPoint Slide prepared by Steven Fischbach, Community Lawyer with Rhode
Island Legal Services, Building Community Capacity in Environmental Decision-making through
Community Lawyering (on file with author).
32
Id.
33
Id.
34
Rose Cuison Villazor, Community Lawyering: An Approach To Addressing Inequalities In Access To
Health Care For Poor, Of Color And Immigrant Communities, 8 N.Y.U. J. Legis. & Pub. Pol'y 35, 50
(2004).
35
Tokarz et al., supra note 4, at 379-80.
36
Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for
Environmental Poverty Law, 19 Ecology L.Q. 619, 644 (1992)
37
See David A. Binder et al., Lawyers as Counselors: A Client-Centered Approach, (3rd ed., 2012).
implementation of solutions is critical to the process of empowerment. 38 It also ensures a correct
understanding and pursuit of the community’s interests. 39
A community lawyer may need to have the ability to assist in organizing the community and
engage in non-legal advocacy strategies, such as training workshops. Helping a community
group to formalize their structure and training them in community organizing techniques may not
only further a community lawyer’s ability to engage with their client and involve them in
designing and implementing solutions, but also validate the group as being truly representative of
the community. While a lawyer need not be an expert community organizer, 40 the ability to
organize groups in the pursuit of a common cause is an important skill for a community lawyer’s
repertoire. 41 The importance of community organizing is recounted by Colin Bailey who, as an
attorney for Legal Services of Northern California, represented a local neighborhood association,
AGENA, in its effort to oppose an underground natural gas storage project in Sacramento. 42
While effectively representing a community client certainly requires the attorney to be a skilled
lawyer, the practice of community lawyering requires her to go beyond traditional legal labels
and constructs, such as “service” or “impact cases”, and adopt the goals and language of the
organizers so that she may effectively communicate with group members and articulate and
advocate for their shared objectives. 43
Lastly, community lawyers must be sensitive to the community’s culture and priorities, as
this can influence the right course of action. For example, in the case of working with the Deaf
community, Kelly McAnnany and Aditi Kothekar Shah, attorneys with New York Lawyers for
the Public Interest (NYLPI), identified collectivism as a primary value of Deaf culture, as well as
group decision-making and mutual aid. 44 According to McAnnany and Shah, “the solidarity and
collective vision exemplified in the history of the Deaf community lends itself naturally to the
community lawyering model,” and they attempted to put it into practice in their advocacy on
behalf of the Deaf community. 45 For example, instead of using “traditional lawyering tools to
immediately conduct a targeted plaintiff search and prepare for a lawsuit challenging”
problematic police practices, “NYLPI took the first step of bringing together key stakeholders to
formulate a long-term, community-led campaign to improve police practices.” 46 Further
examples of sensitivity to the Deaf community’s culture and values occurred when NYLPI relied
on community input in formulating a Freedom of Information Law (FOIL) request to the New
York Police Department (NYPD). While the attorneys wished to use the term “hearing impaired”
as part of their FOIL request, to combat potential claims of confusion over the information
requested by using the term for Deaf that the NYPD used, the Deaf community that McAnnany
38
Marshall, supra note 2, at 160.
Kelly McAnnany & Aditi Kothekar Shah, With Their Own Hands: A Community Lawyering Approach to
Improving Law Enforcement Practices in the Deaf Community, 45 Val. U. L. Rev. 875, 897 (2011).
40
Model Rules of Prof’l Conduct r. 1.1 cmt. 2 (2012).
41
See Colin Bailey, Winning Against the Odds: Race-Conscious Community Lawyering and Organizing for
Environmental Justice, Sargent Shriver National Center on Poverty Law (Feb. 11, 2013),
http://povertylaw.org/communication/advocacy-stories/bailey.
42
Id.
43
See Charles Elsesser, Community Lawyering – The Role of Lawyers in the Social Justice Movement, 14
Loy.
J.
Pub.
Int.
L.
375
(Spring
2013),
available
at
https://billquigley.wordpress.com/2015/07/23/community-lawyering-the-role-of-lawyers-in-the-socialjustice-movement/.
44
McAnnany, supra note 39, at 912-13.
45
Id. at 916-17.
46
Id. at 918.
39
and Shah worked with insisted that the terms Deaf or hard of hearing be used. 47 Through the
communal decision making process the attorneys realized that “there were multiple goals at this
stage, not just the need for information. The group felt that it was important to seek to educate the
NYPD and maintain integrity while also gathering information.” 48 Thus the NYPLI attorneys
were able to fulfill these goals and respect the Deaf community’s values not only through the
process of collective decision making, but also through the proper use of the community’s selfidentifying terminology.
C. Professional Judgment and Candid Advice
A lawyer representing a community group will often serve their client as an advisor. Rule 2.1
requires the lawyer to exercise independent professional judgment and render candid advice,
“referring 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.” 49 This duty entails avoiding
improper influence by others such as third parties or those with conflicts of interest, but this
should not deter the lawyer from working with the community as it is an important feature of a
client-centered approach. The Rule’s reference to non-legal considerations when rendering advice
leaves open the possibility of considering community objectives, issues, and needs. 50 A
community lawyer thus should be prepared to offer educated advice and opinions on non-legal
matters but also state that the advice or opinion is not a legal opinion or position if it is not based
in clear legal precedent but on expert judgment and relevant experience.
Disagreements between the parties also relates to the attorney’s role as an advisor. The
lawyer ideally will advise the client on the proposed course of action, as opposed to dictating it,
and work with the client towards an agreeable solution. Under Rule 1.2(a), the client has the
ultimate authority and responsibility for setting the objectives of the representation and for major
tactical choices, and the lawyer has the duty to aid the client’s decision-making by bringing these
non-legal considerations into focus, pursuant to Rule 2.1. 51 So long as the client’s choice of
action is not subject to mandatory or permissive withdrawal under Rule 1.16, the lawyer must
continue to serve as a zealous advocate for her client regardless of whether the lawyer personally
agrees with the client’s decisions.
Sometimes an activist lawyer working with community groups goes beyond the traditional
role of neutral, hired gun to share with her client a desire to reach the same final objective. 52 For
example, the late Elizabeth M. Fink dedicated her career as to zealously advocate for prison
inmates and pariahs of mainstream American society, both in the courts and in the public arena. 53
While lawyers who use their work as an engine for positive social change is considered laudable
by some and certainly can help legitimize the legal profession as a whole, 54 it is important that the
47
Id. at 920.
Id.
49
Model Rules of Prof’l Conduct r. 2.1 (2012).
50
Marshall, supra note 2, at 209.
51
Model Rules of Prof’l Conduct r. 1.2(a) (2012).
52
See Austin Sarat & Stuart Scheingold, Cause Lawyering and the Reproduction of Professional Authority,
an Introduction, Cause Lawyering: Political Commitments and Professional Responsibilities 3 (Austin
Sarat & Stuart Scheingold eds., 1998).
53
Sam Roberts, Elizabeth M. Fink, a Lawyer for Attica Inmates and Radicals, Dies at 70, N.Y. Times,
September 25, 2015, at B15, available at http://www.nytimes.com/2015/09/25/nyregion/elizabeth-m-finka-lawyer-for-attica-inmates-and-radicals-dies-at-70.html.
54
Sarat & Scheingold, supra note 52, at 3.
48
community lawyer clearly mark the scope of the representation of the client group in order to
manage expectations. 55
Some scholars have argued that certain community groups may require a community lawyer
to take on a more active role than that of an advisor. For example, Paul Tremblay, a former
Senior Attorney at the Legal Aid Foundation of Los Angeles and current Faculty Director of
Experiential Learning at Boston College, argues that representing community groups with a
public mission might grant a lawyer “some discretion, and perhaps an obligation, to intervene
more actively in the decisionmaking of that client . . . in order to ensure the client’s faithful
pursuit of its public mission.” 56 Other scholars such as Katherine Kruse have asserted that when
working with disempowered communities, lawyers might “reject a client’s ‘[s]tated [w]ishes’ to
overcome ‘[c]lient misdiagnosis of what the client really wants.’” 57 However, a model of
lawyering like the one Kruse suggests can be problematic. It not only conflicts with Rule 1.2, but
also the client-centered approach, which warns “community lawyers against committing
“interpretive violence” against poor clients and “subordinat[ing] their clients’ perceptions of need
to the lawyers’ own agendas for reform.” 58
It is important that the community lawyer recognize the effectiveness of different strategies in
the context of community lawyering and advise the client appropriately. While litigation is often
thought as the primary tool for a lawyer, community lawyers must often make use of alternative
strategies such as public relations campaigns and negotiated settlements. 59 In environmental
justice cases, for example, the community lawyer should advise her client on negative
repercussions that may occur as a result of a decision to initiate environmental justice litigation.
For example, community-based clients run the risk of becoming a future target for SLAPP suits
(strategic lawsuit against public participation) in retaliation to litigation, which may adversely
affect the community as a whole. In one case, Helen Holden Slottje, co-founder of the
Community Environmental Defense Council (CEDC), utilized legislative techniques to help
municipalities across New York pass zoning ordinances which ban oil and gas development. 60
Slottje developed a unique theory around the New York Constitution’s guarantee of home rule for
local governments allowing local governments to simply ban fracking. 61 Slottje and her husband,
“told basically any town in the state that wanted us to draft this kind of law for them, we will do
it, and we will do it for free.” 62 One town which Slottje assisted was Dryden, where she helped a
local community group draft an ordinance and meet with the town supervisors. Dryden passed an
amendment to its zoning ordinance which forbade oil and gas exploration, which was
subsequently challenged by Anschutz Exploration Corporation. In Wallach v. Town of Dryden,
55
See Rice, supra note 13.
Tremblay, supra note 1, at 457.
57
Id. at 464 (citing Katherine R. Kruse, Fortress in the Sand: The Plural Values of Client-Centered
Representation, 12 Clinical L. Rev. 369 (2006).) (some internal quotations removed for clarity).
58
Id. at 464-65 (citing Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning the Lessons of
Client Narrative, 100 Yale L. Rev. 2107, 2123 (1991) and Lucie E. White, Mobilizations on the Margins
of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. Rev. L. & Soc. Change 535, 545 (1987-88).)
59
For example, some scholars note that litigation generally is not conducive to community empowerment
and should be avoided. See Quigley, supra note 43, at 467.
60
Lauren Etter, No Fracking Way: Towns Across the Country are stopping the big energy industry from its
controversial effort to dig for natural gas, A.B.A. J., Nov. 2014, available at
http://www.abajournal.com/magazine/article/no_fracking_way_towns_across_the_country_are_stopping_t
he_big_energy_indust; About Us, Community Environmental Defense Council, Inc. (last visited Jan. 23,
2015).
61
Id.
62
Id.
56
the New York Court of Appeals agreed that the town had a right under home rule to ban fracking
from their community. 63
The experiences of community groups pursuing environmental justice provide lessons that
other community lawyers addressing environmental justice issues may wish to consider. These
include, for example, that environmental justice lawsuits are more successful in the context of a
broad, political organizing campaign conducted by a community group. 64 Or, that legal
challenges based on failure to meet procedural requirements of environmental laws, as opposed to
civil rights laws, can be the most successful litigation strategy for communities. 65 Related, that
civil rights challenges, while carrying a high bar to ultimate success in court, have proven over
time to have political value, which often creates other benefits for the community group such as
publicity, political education, and gaining allies. 66 A lawyer whose clients wish to use a civil
rights claim to address environmental justice concerns may find it best to advise the client that
proving discriminatory intent has been difficult, and that even if one wishes to bring a
constitutional claim for its political value, it may be best to pursue alternatives, such as bringing
the constitutional or statutory civil rights claim alongside substantive environmental and
procedural claims. 67
Conclusion
Community lawyers can play a critical role in helping community groups address social and
environmental justice issues, but the unique context of community lawyering necessitates a
careful consideration of how the rules of professional responsibility apply. Community lawyering
differs from the standard conception of lawyering as it usually focuses on the community and
public interest, as opposed to individual clients and private interests. Some of the unique
challenges for community lawyers include determining the identity of the client and scope of
representation, communicating with the client and protecting confidentiality, and providing
candid advice on the proposed course of action and potential repercussions to the community.
While rep[resenting community groups does not neatly fit within the framework of the traditional
standards set forth in the Model Rules, understanding the dynamics of community representation
and acquiring and employing the unique skills effective in community lawyering can help
attorneys deliver effective service while fulfilling their ethical responsibilities as lawyers.
63
Id.
Luke W. Cole, Environmental Justice Litigation: Another Stone in David’s Sling, 21 Fordham Urb. L.J.
523, 545 (1993).
65
Id. at 526. See also Clifford Rechtschaffen, Eileen Gauna & Catherine A. O’Neill, Environmental
Justice: Law, Policy & Regulation, 492 (2nd ed. 2009) (stating that there has been a “lack of success of
equal protection claims and . . . reticence of environmental agencies – at local, state, and federal levels – to
condition or deny permits on environmental justice grounds.”).
66
Id. at 542-45.
67
Id. at 531. See also Rechtschaffen et al., supra note 65, at 493 (noting that some community groups have
brought private lawsuits, as an alternative to pursuing administrative actions, to enforce section 602 of Title
VI of the Civil Rights Act of 1964.).
64