Home » Anthony V. Alfieri and Rebellious Lawyering

Anthony V. Alfieri and Rebellious Lawyering

“López calls his aspirational vision of practice ‘rebellious lawyering.’”

“What ‘counts,’ López asserts, is understanding ‘how things work and how to get things done.’”

“[Rebellious lawyers] strive to learn about alternative worlds and ways of knowing and thus renounce the regnant privilege to proclaim absolute truth. For López, this renunciation is the well-spring of rebellious lawyering.”

“To López, truth is neither universal nor given. Indeed, there is no truth that ‘makes sense of everything in the world.’ Rather, truth is contingent, negotiated, and partial. It arises out of collaboration between lawyers and clients working jointly as co-eminent practitioners in local contexts.”

“To López, everyone possesses lawyering and storytelling skills that can alter social arrangements and remedy disputes. It is the job of lawyers to recognize how often subordinated people deploy ‘story/argument strategies’ to contest institutionally assigned roles and relations of dependency. Once lawyers realize the force and regularity of that deployment, López asserts, they must help clients understand how to transfer their everyday living skills to legal advocacy.”

“The socially constructed reality of client dependency and incompetence shifts with the content of lawyer stories. According to López, lawyer ‘stock and improvised’ stories and arguments can ‘help establish meaning and distribute power.’ Consequently, storytelling has the potential to transform the meaning of client difference and identity, and to reallocate lawyer-client power to manage the advocacy process.”

“López challenges the regnant story glorifying lawyer preeminence and power. The differences in lawyer-client authority flowing from that stock story, he warns, ‘disfigure’ individuals and ‘distort’ social arrangements. To realign lawyer-client authority, López recommends reversing the ‘marginalization’ of clients’ ‘local knowledge.’ Reversal hinges on believing clients to be ‘capable’ moral agents equipped ‘with a will to fight, and with considerable experience in resisting and occasionally reversing subordinated status.’ Treating clients as capable fighters in the struggle against subordination affirms a practical expertise that complements lawyers’ knowledge. The inability of lawyers and clients to uncover this complementary potential is in part a function of unequal institutional roles and relations.”

“Within legal institutional contexts, the imperatives of administration and adjudication dictate conventional roles and relations of practice. For advocates in civil rights and poverty law contexts, the received tradition of practice constructs clients as victims. This construction reduces clients to powerless and pathological objects.”

“López links client objectification to the tendency of legal institutions to be ‘hostile’ to and ‘often systematically ignorant’ of client needs. The institutions pass on ‘structural constraints’ and engender ‘specific adaptations.’ Implanted within these social constraints and adaptive strategies are ‘practical moments’ of rebellion. Although ‘unpredictable,’ those moments provide the ‘central opportunities’ for rebellious lawyering.”

“López contends that lawyers and clients can transform routine acts into opportunities for collaborative problem-solving in which skills are combined and power is shared. In advocacy, collaboration may generate lawyer-client, client-client, and client-community alliances. Collaboration is an empowerment or enabling strategy that redefines traditional lawyer-client roles, reorganizes divisions of legal and nonlegal labor, and reallocates the authority to designate and to execute advocacy tasks.”

“López imagines collaboration as an experimental and ‘constantly reevaluat[ed]’ process involving lawyers, clients, and lay advocates. Because that process ‘can relocate and blur the lines between self-help, lay lawyering, and professional lawyering,’ internal tensions may ensue. Mitigating those tensions demands ‘forgiveness and patience,’ as well as a sense of the ‘practical and moral limits’ of the process itself. This sense of limits intrudes upon López’s vision of rebellious lawyering, reminding us that lawyers and clients ‘remain divided’ in spite of good faith efforts at collaboration.”

“López views lawyer-client collaborative problem-solving as part of a gradual, integrated move into ‘a larger network of cooperating problem-solvers.’ This network avoids the professional and political ‘separatism’ that plagues progressive lawyering, and thereby, allows practitioners to pursue ‘collective’ problem-solving through the teaching of ‘self-help and lay lawyering’ skills. Teaching self-help and lay lawyering, López concludes, enables ‘public institutions and professional service providers [to] help people help themselves.’”

“Bridging the ideas of regnant and rebellious lawyering demands a strategy of reform. For López, the core of this strategy resides in the ‘familiar practices’ of daily lawyering, for it is the ‘small, everyday details’ of practice that offer the greatest chance of reorienting the traditional sensibilities and skills of advocacy. López belongs to a community of lawyers, scholars, and teachers embroiled in debate over the best methods of bridging theory and practice to reform progressive lawyering. Unlike critical scholars of the last two decades, the theoretics of practice community espouses an explicitly normative goal: to foster individual and collective client acts of self-determination in order to broaden social and economic forms of democracy. To reach this goal, López and others have disassembled the lawyering process, challenging not only lawyers’ epistemological, interpretive, and linguistic practices, but also their basic education and training.”

“The teachings of legal education and training, amplified by the imperatives of law and legal institutions, compel progressive lawyers to adopt a heroic stance toward communities that condemns them as outsiders. The centrality of lawyer heroism in the progressive canon inhibits experimental forms of lawyer-client collaboration and, thus, frustrates the realization of lawyer-client community. Under the progressive canon, neither lawyers nor subordinated people hold out claims to community. The absence of such claims stems from lawyers’ lack of connection to client identities, narratives, and histories. To make these human connections, lawyers must relearn their habits of knowing, thinking, and speaking.”

“Lawyers must relearn their own convictions. We must learn that our professional autonomy is linked to the autonomy of others and that our claims of neutrality are false. We must learn that our cognitive judgment is impaired, not objective, and that our practical reasoning ignores alternative sources of knowledge. We must learn that our ability to empathize with clients and to translate clients’ stories into legal discourse is limited by hierarchy.”

“Furthermore, lawyers must relearn the sociolegal world. We must learn that a client’s speech acts – whether in the form of uncomfortable answers to interview questions, vague assent to counseling options, or rambling testimony at trial – are rhetorical strategies of accommodation and resistance that enable her to maneuver within relationships and institutions under the cover of ambiguous and sometimes inconsistent stories. We must learn to enlarge the discourses of law and legal institutions to fit, rather than silence, these stories. And we must learn to redefine institutional roles and relations to permit clients and communities to collaborate in telling their stories, even if the bridges of collaboration are makeshift and short-lived.”

“To be sure, the critical evaluation of our convictions and our mapping of the sociolegal world is unlikely to bridge fully the practices of regnant and rebellious lawyering. The legal consciousness and sociolegal practices of regnant lawyering are historically entrenched in law schools, law offices, courts, and the streets. Neither passionate nor persuasive entreaties will overturn them, but instead only the day-to-day struggle of people who suffer their indignities, allied with those who find such suffering intolerable.”

“López inspires those who labor on behalf of subordinated communities to rethink their efforts. Rethinking begins in remembrance – for me, the remembrance of chance meetings outside an old New England church and inside an airless, New York City storefront. Some say that to look for the loss or redemption of community in these meetings is misguided. To look for some meaning, for some lesson to be learned, is not.”

“What is the lesson here? The lesson is that lawyers working for or with subordinated people in impoverished communities need to learn where they stand. This means learning from the people who live in those communities; it means learning that lawyers stand divided from the communities they represent. The man in New England and the woman in New York City taught me where to stand when confronted by divisions of class, gender and race. Although our meetings hardly mark the deliverance of redemptive community, neither do they signal the hopeless resignation to loss.”

Excerpted from Anthony V. Alfieri, PRACTICING COMMUNITY, 107 Harv. L. Rev. 1747 (1994).

 

anthony-alfieri

 

 

 

 

Anthony V. Alfieri, Professor of Law and Dean’s Distinguished Scholar, is the Founder and Director of the Center for Ethics and Public Service, and the Founder of the Historic Black Church Program, at the University of Miami School of Law.

Professor Alfieri earned an A.B. in 1981 from Brown University, graduating magna cum laude with concentration honors in the Center for Law and Liberal Education, and a J.D. from Columbia University School of Law in 1984, graduating with Harlan Fiske Stone Scholar and Jane Marks Murphy Prize honors.

From 1984 to 1987, he served as a staff attorney in the South Bronx trial office of the Civil Division of the New York Legal Aid Society, specializing in federal and state complex public benefits litigation. In 1987, New York Law School appointed him Clinical Associate Professor and Managing Attorney of its Federal Litigation Clinic. In 1990, he served at Marquette University Law School as Assistant Professor of Law and Director of Clinical Studies.

In 1991, Professor Alfieri joined the University of Miami School of Law, where he teaches civil procedure, ethics, professional liability, public interest law and leadership, social entrepreneurship, and lawyer malpractice. He has published more than 70 articles, essays, and editorials on ethics, criminal justice, poverty law, and the legal profession in leading journals and book anthologies. His work has been cited and downloaded more than 3,000 times in books, law journals, social science networks, and the media.

Under his direction, the Center for Ethics & Public Service has won the American Bar Association 1998 E. Smythe Gambrell Professionalism Award, the Florida Bar Seventh Annual 1999-2000 Professionalism Award, and the Miami-Dade County Commission on Ethics and Public Trust 2001 ARETE Award for nonprofit of the year.

Professor Alfieri is a current member of the American Law Institute, the University of Miami Circle of Omicron Delta Kappa, the Executive Committee of the Association of American Law Schools’ Section on Professional Responsibility, and the St. Thomas Episcopal Parish School Board of Trustees; an elected Fellow of the American Bar Foundation; past member of the Florida Bar Standing Committee on Professionalism, the Ethics, Integrity and Accountability Task Force of the Miami-Dade County Commission on Ethics and Public Trust, the Attorney-Client Privilege Task Force of The Florida Bar, and the Executive Committees of the Association of American Law Schools’ Section on Clinical Education; and a past Contributing Op-Ed Columnist for The Miami Herald. In addition, he was recently appointed to the AALS Standing Committee on Curriculum Issues, the Corporate Social Responsibility Center Advisory Board, the Coconut Grove Ministerial Alliance, Inc. (a consortium of Historic Black Churches), and as a Visiting Scholar at Dartmouth College’s Ethics Institute and at Brown University’s Department of Africana Studies.

Professor Alfieri is the winner of numerous awards, including the 2000 and 2009 Richard Hausler Professor of the Year Award and the Class of 2000 Amicus Curiae Dedication, the Florida Supreme Court 1999 Faculty Professionalism Award, the Association of American Law Schools’ Clinical Section Committee on Lawyering in the Public Interest 2004-2005 Gary Bellow Scholar award, the 2006-2007 William J. Clinton Distinguished Fellowship, the Association of American Law Schools’ Clinical Section 2007 William Pincus Award, the Association of American Law Schools’ Pro Bono and Public Service Opportunities Section 2007 Father Robert Drinan Award, and the 2011-2012 Public Interest Innovative Service Award.

 

 

#RebelliousLawyering