Home » Influence of Rebellious Lawyering on Legal Practice and Pedagogy – Part 1 – Shauna I. Marshall, Paul R. Tremblay, Kevin R. Johnson, E. Tammy Kim, Joshua D. Blank, Milner S. Ball, Angelo N. Ancheta, Avi Brisman, Janine Sisak, Jessica A. Rose, Ann Southworth

Influence of Rebellious Lawyering on Legal Practice and Pedagogy – Part 1 – Shauna I. Marshall, Paul R. Tremblay, Kevin R. Johnson, E. Tammy Kim, Joshua D. Blank, Milner S. Ball, Angelo N. Ancheta, Avi Brisman, Janine Sisak, Jessica A. Rose, Ann Southworth

Excerpted from Shauna I. Marshall, MISSION IMPOSSIBLE?: ETHICAL COMMUNITY LAWYERING, 7 Clinical L. Rev. 147 (2000):

 

“I refer to this style of practice as community lawyering; it is also known as ‘rebellious‘ lawyering, a phrase used by one of the prominent scholars in the field, Gerald López.”

 

“Lawyers working in low income and poorly resourced communities as well as teachers and law students working in clinical programs engage, from time to time, in a style of practice known as community lawyering. The practice is premised upon the belief that one way to remedy certain types of problems in poor communities is for the community to be an integral part of the development and implementation of the solutions to those problems. This style of lawyering envisions lawyers becoming a part of the community in which they work, bringing to the community the knowledge and expertise that they have gained from their education. Community lawyers recognize the need to learn about the neighborhoods in which they work from their neighbors. They collaborate with the community and together work toward solutions to the communities’ problems.”

 

“What happens when a lawyer using the strategies and methodology developed in this style of practice confronts an ethical dilemma? Are the values which are at the core of this practice style consistent with the values of our ethical rules? What happens when a community lawyer engages in public education on behalf of tenants living in the same city? Are the ethical codes’ protections for confidentiality sufficient to protect all in attendance at the public education gathering? What happens when the attorney’s clients’ objectives are at odds with other important goals for the community? Are our present ethical codes instructive, irrelevant, hurtful?”

 

“….I…explore how the ethical challenges facing these lawyers stem, in large part, from their adherence to the values they hold as community lawyers. This article attempts to understand why, when these lawyers turn to our ethical rules for help with their dilemmas, they find that the traditional paradigm doesn’t always quite fit.”

 

“To understand community lawyering as discussed in this article, it is important to look at what, in part, inspired its creation. By understanding its roots, we are better able to identify the goals of community lawyering and the values underlying the practice. For it is those values and goals which may at times be at odds with some of the values and goals promoted by our ethical codes.”

 

“The development and refinement of community lawyering was one reaction to the way in which legal services were often delivered to low income communities as legal aid programs expanded. The expansion of free services to the poor in the 1960s was brought about first by the Office of Economic Opportunity’s commitment of funds to these programs and ultimately by the creation of the Legal Services Corporation through the passage of the Legal Services Corporation Act. The overwhelming need for these services meant large case loads for the lawyers working in neighborhood offices and representing individual clients. Satellite offices were also created to handle impact cases. The Legal Services Corporation recognized that, in addition to addressing poor people’s individual cases, a strategy was needed for tackling institutional and group problems and for promoting law reform where necessary.”

 

“Many of the lawyers working in these offices were young, eager, idealistic but inexperienced. Given the tremendous case load, cases were often handled in a quick, routinized manner. The push to move clients through often gave clients little opportunity to have input on how their problems should be solved. Moreover, clients’ problems were often framed narrowly, limited to the specific causes of action handled by the office. Clients’ cases were settled regularly, particularly disputes involving the bureaucracies with which poor people regularly interact. Although this approach often led to clients receiving badly needed benefits, some clients left the office mystified by the process.”

 

“There are many factors which led to this type of service delivery system. Undoubtedly, the high case load overwhelmed the attorney staff and created pressure to provide help to as many clients as possible. The decision to handle large case loads rather than setting strict limits on the number of clients handled by any one attorney may have made it difficult for lawyers working in low income communities to spend a great deal of time on any one particular client or case. It is easier, however, to theorize about the need to set limits on representation than it is to turn a needy person away.”

 

“Another reason put forth for legal services’ clients somewhat limited involvement in the development of their own case is the distance in the relationship between the attorney and the client. The distance was and continues to be created by class differences, educational differences, and cultural differences. The gulf may have been compounded by the lack of familiarity by some legal services lawyers with the way in which institutions and bureaucracies encircle low income people’s lives.

 

“The clients served by these early legal services lawyers, like low income clients today, had relationships with legal institutions (the law) which differed from that of paying clients. Many low income clients have a regular, ongoing relationship with a rule laden government bureaucracy, which affects their day to day lives–they make regular visits to agencies like housing authorities, job training programs and social service agencies. These experiences shape their view of the law and what legal institutions can do for them.”

 

“Moreover, resolution of personal legal problems for the typical paying client differs from that of the low-income client. Generally, for the paying client, when a case is settled (or tried) and the lawyer paid, the problem is often resolved. But for a legal services client, if the case involves one of the agencies with which she continually interacts, the end of the ‘legal‘ problem does not necessarily spell the end of the client’s problems as she continues to encounter that bureaucracy.”

 

“The lawyers who joined legal service offices in the 1960s and 1970s were trained, however, to look at clients’ problems in the discrete, individual manner described above. They were trained to solve the immediate, legal problem and then move on to the next one. As Gary Bellow noted in his 1977 seminal article, the practice of law is committed to individual representation. This commitment, ‘in extolling personalized service of unique persons, also insists on the separateness of each of the problems and clients with whom a lawyer deals. Each of these orientations gives some support for what representation has come to mean in legal aid work.’ In other words, lawyers working for low income legal services clients approached their clients’ problems as individual cases to be resolved on an individual basis. At any given time their focus was on the problems of an individual client or client group, not on the problems of a neighborhood or community divorced from a specific client with a discrete set of problems.”

 

“The huge demand for services, the ‘distance’ between attorney and client, the experience of the low income clients with ‘the law,’ and the legal services attorneys’ training culminated in offices providing services which, at times, appeared ‘shallow, cautious and incomplete.’ Although lawyers were responsible for an incredible transfer of wealth to low income communities, it was clear that additional strategies were needed to fully represent the interests of poor communities.”

 

“New approaches accompanied the critique of legal services. The early critics of poverty law challenged lawyers to reinvent their roles within the community. Looking at poverty law as originally practiced, they argued that representing people in isolated, individual cases did not always solve the clients’ problems, or constitute zealous advocacy. Similarly, sometimes law reform cases became the exclusive work of the lawyer, disconnected from the client community, and given the range of remedies available, used a disproportionate amount of attorney time and office resources.”

 

“The challenge for the low income community lawyer was to find ways to meet individual clients’ needs, while forging stronger connections with the client community. In part lawyers needed to gain a greater understanding of the community’s organizations, its places of worship, its institutions, its bureaucracies. The community lawyer was encouraged to use her legal expertise to help create opportunities for community members to come together around common problems. Community members’ knowledge about their neighborhoods, their institutions, their bureaucracies were now valued and clients were asked to participate in the development and implementation of the solutions to their problems. The new poverty lawyer was to work with the community to promote holistic, not just individual, solutions.”

 

“The lawyers who helped create this new vision of lawyering offer concrete steps for lawyers to help them break with traditional modes of practice. At a very fundamental level, poverty lawyers have to learn to listen to their clients. To combat attorney-client communications dominated by lawyers, lawyers are asked to think through their roles as lawyers and to become client-centered. The goal is to shift the balance of the conversation, and to find out clients’ problems and how their ‘legal’ problem may be connected to other trouble spots in their lives.”

 

“Advocates of client centered lawyering believe that by listening to one’s client, a lawyer will have a fuller understanding of the problem and the context in which it arises. If, at the outset, the client is a participant, he will be more likely to collaborate in the solving of the problem. With the benefit of improved communication and the beginning of a true dialog, the lawyer and the client can begin to explore ways to solve the problem. It was, in part, the lack of meaningful client involvement that caused some of the poverty law critics to conclude that zealous advocacy did not always take place. In its place were limited solutions which often led to quick settlements. Another criticism was the limited range of solutions explored. In their early critiques of legal services lawyers, Stephen Wexler and Gary Bellow expressed the importance of going beyond solving individual claims and introducing solutions that strike at the root of clients’ problems,  and that challenge the institutions and structures surrounding their lives.”

 

“[C]entral to their approach is the successful development of an attorney-client collaboration, a partnership which allows clients truly to be a part of the design and implementation of the solutions. In his book Rebellious Lawyering, Gerald Lopez describes this dialog as an exchange between two teachers and two students–for the lawyer and client should both weave in and out of the roles of teacher and student, learning about the other’s expertise, challenging each other, raising questions, and offering solutions.”

 

“Another goal of the new community lawyer is to foster connections between clients with similar problems, to lessen the isolation often experienced by clients when represented by legal services lawyers. Creating settings where groups of clients with similar claims can come together and get advice, information and representation from lawyers, as well as lay advocates, is one method of breaking the isolation. One means of forging connections is to engage in meaningful community public education– meaningful in the sense that it occurs because of the lawyer’s involvement with the community. Moreover, the subjects of the public education, ‘know your rights’ workshops should come from needs expressed by the community. These connections are essential; they allow members of the community to talk about common problems, to begin to analyze and understand systemic inequities, and to look into the possibility of concerted action as a means of taking on an ongoing problem.”

 

“Another central component of community lawyering is the development and facilitation of lay advocacy. By lay advocacy I mean helping train and develop members of the community to represent themselves or each other in front of administrative, electoral and other governmental bodies. For at the heart of the critique of poverty law is the conclusion that true change in low income communities must, in large part, be developed and carried out by the members of those communities. Moreover, community lawyering recognizes that in the course of our daily lives, we all, especially those whose lives are mired in bureaucracy, engage in various forms of persuasion and advocacy. Its goal is to recognize, understand, develop, label and use those skills. Effective lay lawyering, using those skills strategically, integrating the practical with the theoretical, is a part of the critical consciousness raising that occurs with community lawyering.”

 

“Anthony Alfieri, David Luban, Deborah Rhode, Thomas Shaffer and William H. Simon, among others, have criticized one of the underlying values of the legal profession’s present ethical codes–the lawyer’s duty to use all means, within the law, to advocate zealously for her client and the accompanying principle that one’s client’s beliefs need not necessarily reflect or coincide with his lawyer’s beliefs. These critics conclude that the failure to attach any moral value to the goal of the client or to the means by which lawyers reach that goal has left lawyers with the hard edged, take-no-prisoners corporate lawyer of the day.”

 

“Community lawyers will continue to work in low-income neighborhoods and to engage in lay advocacy and public education. They will continue to work with various constituencies solving pressing community issues in ways that do not resemble a traditional attorney-client relationship. They will continue to have ethical dilemmas. We, the legal community, must begin to develop an ethical paradigm that helps them in their work.”

 

 

 

 

 

 

Excerpted from Paul R. Tremblay, REBELLIOUS LAWYERING, REGNANT LAWYERING, AND STREET-LEVEL BUREAUCRACY, 43 Hastings L.J. 947 (1992):

“The debate about the proper ethical stance for lawyers representing the poor and disadvantaged is important and necessary….”

 

“One significant school of thought urges a ‘rebellious’ approach to lawyering for the subordinated.”

 

“[R]ebellious lawyering constitutes a justifiable, justice-based allocation of resources away from clients’ short-term needs and in favor of a community’s long-term needs.”

 

“We must… confront this apparent preference for the “rescue mission” if we are to arrive at an accepted rebellious role for poverty lawyers.”

 

“Rebellious lawyering is lawyering that seeks to empower subordinated clients.”

 

“Rebellious lawyering is… attentive to the elements of the attorney-client relationship and its interpersonal qualities that might further disenfranchise those who are oppressed.“

 

“Formal legal intervention may bring short-term benefits such as a successful lawsuit, administrative appeal, or beneficial settlement. Little long-term benefit, however, may result from legal intervention, because the oppressive, unfair, or even unlawful conditions which led to the dispute do not change. Long-term rewards are not only ignored, they are sacrificed, as energies are applied elsewhere, and thus lost.”

 

“The rebellious idea of lawyering for the subordinated seeks to address the three defects in conventional lawyering just described: the interpersonal domination of clients by lawyers; the disempowerment that accompanies reliance on litigation-based dispute resolution or its equivalent; and the inefficacy of intrasystemic remedies to achieve meaningful change in the lives of poor clients.”

 

“[T]he “client voice” theme challenges paternalistic, lawyer-driven handling of client cases and urges increased client collaboration in and control of the activity surrounding the client’s dispute. Greater deference to client expertise, and less to lawyer expertise, is likely to empower the client.”

 

“[Rebelliousness remains the exception, and not the norm.”

 

“The term ‘regnant,’ like the term ‘rebellious,’ is courtesy of Gerald López…. It refers to lawyering for poor people in a fashion that relies upon conventional remedies and institutions, and upon lawyer expertise and dominance, even while seeking the client’s ‘best interests.’”

 

 

 

 

 

 

 

Excerpted from Kevin R. Johnson, HOW RACIAL PROFILING IN AMERICA BECAME THE LAW OF THE LAND: UNITED STATES v. BRIGNONI-PONCE AND WHREN v. UNITED STATES AND THE NEED FOR TRULY REBELLIOUS LAWYERING, 98 Geo. L.J. 1005 (2010):

“Gerald López conceptualized ‘rebellious lawyering’ as a way of empowering poor clients through grassroots, community-based advocacy facilitated by lawyers. Others have sought to import those teachings to immigration and related fields. The fundamental idea is for lawyers to attempt to pursue meaningful social change while at the same time employing community activism to empower the subordinated who can serve as their own advocates in future struggles when the lawyers are long gone.”

 

 

Excerpted from E. Tammy Kim, LAWYERS AS RESOURCE ALLIES IN WORKERS’ STRUGGLES FOR SOCIAL CHANGE, 13 N.Y. City L. Rev. 213 (2009):

 

 

 

 

“…Gerald López’s ‘rebellious lawyering’ critique… jolted individual lawyers from their entrenched practices. Rebellious lawyering gave rise to productive self-reflection and external critiques, resulting in the now canonical models of collaborative lawyering, client-centered lawyering, and critical lawyering. In addition to revising our thinking about the lawyer-client relationship, rebellious lawyering led to the development of alternative lawyering models, including community-based law offices, lawyering connected to community organizing, and community development advocacy. These models reflected a distrust of the law and a ‘view that the law is not capable of protecting the interests of the poor and subordinated.’”

 

 

 

“Regarding lawyers and clients, the rebellious call to reject lawyer-client hierarchy and to respect the cultural and communal factors that shape our lawyering remains important. Social justice lawyers must be vigilant against the creep of privilege (whether based on education, class, race, gender, sexuality, or language) and the temptation to dominate the client.”

 

 

 

 

 

 

 

 

 

 

 

 

 

Excerpted from Joshua D. Blank, Eric A. Zacks, DISMISSING THE CLASS: A PRACTICAL APPROACH TO THE CLASS ACTION RESTRICTION ON THE LEGAL SERVICES CORPORATION, 110 Penn St. L. Rev. 1 (2005):

 

 

“Community education can also respond to problems that the legal system cannot resolve. Class action lawsuits usually only provide relief in those situations where there was some illegal or tortious action, whereas community education can help poor community members address a vast array of problems. Community education also allows poor community members to address those problems using their own developed skills, including new leadership skills. The class action tool, at its best, may only address specific past harms suffered by the affected poor community, whereas community education is a mechanism for remedying harmful situations encountered in the future.” (Citing Gerald P. Lopez, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice, at 70 (1992)) (asserting that the poor can be helped by community education to “gain confidence in their ability to handle situations that they would otherwise experience as utterly foreign and unmanageable”).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Excerpted from Milner S. Ball, POWER FROM THE PEOPLE, 92 Mich. L. Rev. 1725 (1994):

 

““[R]ebellious lawyers do not bring power down from the social-political high places but participate in its creation — like Lopez himself in law school — by relying on each other and on the communities that constitute them.”

 

Under “Regnant and Rebellious Illustrations: Species Identification”:  Rebellious Lawyering (1992) “led me to imagine the essential regnant bird as a well-meaning liberal… embarked on a mission he does and does not believe is righteous. The reader is specifically directed to look for lawyers enamored of litigation, for that allows them to play hero. Regnant lawyers are convinced of the necessity of active leadership by professionals, especially lawyers. They find participation in community education to be of only marginal importance. They are not associated with community institutions, and they have little practical understanding of the power of legal, political, economic, and social structures. Their lawyering dominates. It dominates clients in particular.”

 

A component “of rebellious lawyering is association with everyday living and with the stories of ordinary people as a primary means of understanding and of transformation. Another is collaboration with other lawyers and with “lay” lawyers, nonprofessionals skillfully immersed in their communities. A third component is demystification — that is, making law accessible to everyone and making subordinated people’s sense of the world accessible to lawyers. The fourth is the fundamental reorientation of lawyering toward education in support of self-help.

 

“Nonprofit law offices, like nonprofit lawyers, should, as López  urges, amend themselves over time.”

 

“López does not forewarn readers… that this is only the first installment in a serial and that we will have to tune in next week to learn how it all turns out.  Because there is no next week, we must imagine an ending ourselves.”

 

 

 

 

 

 

 

 

 

 

 

Excerpted from Avi Brisman, THE CRIMINALIZATION OF PEACEMAKING, CORPORATE FREE SPEECH, AND THE VIOLENCE OF INTERPRETATION: NEW CHALLENGES TO CAUSE LAWYERING, 14 CUNY L. Rev. 289 (2011):

 

“[L]aw is not a collection of definitions and mandates to be memorized and applied but a culture composed of storytellers, audiences, remedial ceremonies, a set of standard stories and arguments, and a variety of conventions about storywriting, storytelling, argument making, and the structure and content of legal stories . . . .” (citing Rebellious Lawyering (1992)).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Excerpted from Angelo N. Ancheta, COMMUNITY LAWYERING, 81 Cal. L. Rev. 1363 (1993) (see also Angelo N. Ancheta, COMMUNITY LAWYERING, 1 Asian L.J. 189 (1994)):

 

“’Give us something we can use.’ For those of us engaged in the practice of law for social change, this is a familiar admonition directed at scholars who have developed theories on the transformation of law and the legal system.”

 

“[T]he new legal theories, while injecting fresh perspectives into legal scholarship, have not found a large audience outside the academic setting…. they have paid little attention to ways of actually implementing doctrinal changes through the courts and other legal decision-makers, which are inherently conservative and often hostile to change… [O]nly recently have scholars discussed how transformative theories can influence the practice of law itself: the day-to-day activities of lawyers who interact with clients, their communities, and the legal and political systems that affect everyone’s lives…. This area of thought has benefited significantly from Professor Gerald P. López’s book, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice.”

 

“In Rebellious Lawyering, Professor López presents a lucid analysis of progressive law practice. Interweaving fictional accounts of lawyers and their clients with theories of legal practice and community organizing, López presents a richly textured portrayal of lawyering based upon the collaboration of lawyers, clients, and the communities in which they live.”

 

“López argues that progressive practice must be a partnership in which individuals minimize their traditional roles as lawyers and clients; lawyers and clients must share power and combine their overlapping practical knowledge of the world in order to solve problems of subordination.”

 

“[A]ll of us are lawyers: whether we are helping ourselves, helping others informally by being ‘lay lawyers,’ or helping others formally as professional lawyers, we constantly draw upon our personal experiences to interpret and transform the world through problem solving.”

 

“[R]ebellious lawyering [is] an alternative to conventional theories of progressive law practice, what López calls ‘regnant lawyering.’”

 

“Professor López manages to combine theory with an accessible and detailed picture of what progressive lawyers, legal workers, and organizers do on a day-to-day basis. This alone makes the book required reading for anyone employed in a nonprofit legal office or in a progressive law firm.”

 

“The book’s importance lies in its ability to convey, through the use of detailed narratives, the experiences and problem-solving abilities that reside in and affect everyone.”

 

“By challenging existing notions of progressive legal practice and community organizing, López demonstrates how all of us accommodate—and resist—change in our daily lives, and how, through working together and sharing power, we can bring about positive changes that improve our collective existence.”

 

“[I]nstitutional and personal inertia often prevent lawyers from shedding their traditional roles as the sole players in advocating for social change through the legal system.”

 

“Rebellious Lawyering is organized around the basic dichotomy between rebellious lawyering and regnant lawyering.”

 

“The narratives that López employs in Rebellious Lawyering provocatively capture many of the dilemmas that exist in progressive law offices (though I do not know of any lawyer or community activist who keeps the detailed records that López’s lawyers and activists keep). And López goes even further by stimulating the reader to consider how solutions could be different if lawyers’ perceptions were changed to accommodate collaborative problem solving.”

 

“[O]ne of the major conflicts that arises in nonprofit legal services offices revolves around the tension between “direct service” work and “impact” work.  In direct service work, lawyers focus on individual client representation, spending much of their time preparing particular cases for trial or hearing in order to assist the individual client. In impact work, on the other hand, lawyers focus more on institutional reform, using legal means (typically litigation) to bring about systemic changes that affect a larger number of people. Offices constantly struggle with this tension as they strive for maximum effectiveness with very limited resources.”

 

“Under López’s theory, the direct service-impact dichotomy definitely exists, but it masks a more fundamental tension: client control versus lawyer control. If clients and others in the community are allowed to participate more in the problem-solving process, the tension shifts away from a lawyer-based litigation strategy to a client-based empowerment strategy. The task of lawyer and client is to determine what the client needs and wants, and to see if the client or others can help make the change. Certainly, the tension between service and impact work would not disappear, but a more client-centered practice could lead to more innovative strategies, such as client organizing and lobbying, that could achieve the desired ends without having to rely exclusively on the work of lawyers.”

 

“Narrative—or storytelling, as López prefers to call it—is the primary vehicle for persuading others to act….”

 

“All people see the world through ‘stock stories,’ those combinations of existing knowledge and methods of perceiving and processing information that give order to the world.”

 

“Narrative allows one to convey to others, an audience, a story designed to inform the audience’s understanding of a problem. If the story is persuasive, it can compel the audience to change the world in some way so that the problem might be solved.”

 

“The central tenet of rebellious lawyering is the empowerment of clients. Progressive lawyers who engage clients in problem solving can shift power from themselves to clients, enabling clients to collaborate in the process of social change. In this way, the lawyer-client relationship can provide a seed for the shifting of social arrangements that can empower subordinated groups.”

 

“As López states, ‘if people subordinated by political and social life can learn to recognize and value and extend their own problem-solving know-how, they . . . may gain confidence in their ability to handle situations that they would otherwise experience as utterly foreign and unmanageable, with or without a lawyer as representative.’”

 

“The inherent contradiction of progressive law practice is perceiving the world in a certain way, trying to change the world through problem solving, and then realizing that you cannot do very much because the problems are too large and the people you are trying to persuade do not perceive that there is any problem at all. In other words, advocating for change under a system of laws and legal institutions that disfavors change and limit possibilities for change is the dilemma with which progressive lawyers and legal workers struggle every day.”

 

“The lessons I have learned from my own work as a progressive lawyer point in two directions: toward clients, as López explicitly suggests, and away from law, as López implicitly suggests. Community lawyers, particularly those who work with racially-subordinated groups…. must remind themselves that they are part of the community for which they work.  The lives of their clients are not that different from their own. Personal empowerment can go hand-in-hand with the client empowerment that results from rebellious lawyering. Sharing power and responsibility can make the work easier for everyone.”

 

“Consistent with the idea of client empowerment is the notion that rebellious lawyers have to transcend the conventional definition of lawyer when they want to be community activists. We are often told that law is not the same as politics. This is wrong. Law is all about politics, and progressive lawyers have to understand and use political means to achieve the lofty goals they often set for themselves. Lawyering that attempts to overcome the basic contradictions of progressive practice must expand the lawyer’s work to include a broad range of legal and political activities.”

 

“If López is correct in saying that lawyering is just one form of problem solving, then problem solving to empower subordinated communities must challenge the ways in which power is held within society, not just the way power is allocated between lawyers and clients.”

 

“Ultimately, the success of rebellious lawyering will be measured in the same way that all forms of activism are measured: by how close we have come to realizing those elusive, but not unattainable, ideals of economic and social justice.”

 

“Professor López’s Rebellious Lawyering is something all of us—professional and lay lawyers—can definitely use.”

 

“Rebellious Lawyering is a cogent reminder that because people share common experiences, by working together they can make a difference.”

 

 

 

 

 

 

 

 

 

Excerpted from Janine Sisak, IF THE SHOE DOESN’T FIT . . . REFORMULATING REBELLIOUS LAWYERING TO ENCOMPASS COMMUNITY GROUP REPRESENTATION, 25 Fordham Urb. L.J. 873 (1998):

“[M]ost agree that poverty lawyers are burdened by scarce resources, certain critics have suggested that the attorney-client relationship is the root of the problem. They have posited that poverty lawyering merely offers band-aid relief rather than an effective solution to the fundamental problem of poverty itself. Gerald Lopez has labeled this faulty approach “regnant lawyering” and has offered “rebellious lawyering” as an alternative.”

 

“Rebellious lawyering mobilizes, organizes, and empowers clients to formulate a collective response to issues poor people face.  It demands cooperation and collaboration between clients, lawyers, and other lay professionals in an effort to overcome the oppression inherent in the poverty law context.”

 

“[R]ebellious lawyering is a ‘collaborative communicative practice”’ [and a] ‘dialogic empowerment.’”

 

“Through an open attorney-client dialogue, lawyers can defy myths of ‘ingrained indigent isolation and passivity’ by treating clients as experienced self-advocates who are capable of resisting and reversing subordinated status.”

 

“Rebellious lawyers also can help initiate a broader community dialogue that enables clients to share similar experiences with each other and serves as a precursor to class consciousness. In the final stage, this dialogue forms a basis for effective coalition-building that encourages community-driven strategies with both legal and non-legal components.”

 

“The rebellious lawyer is often well-positioned to serve as a facilitator to the conversational process.  While she does not claim to be more politically savvy, she is able to set the tone for collective learning and moderate the critique of the immediate situation. Maintaining a fluid dynamic is crucial because it allows each party to bring fragments of ‘community know-how’ to the effort, thus “enriching and extending the range of possible strategies and outcomes they might cooperatively pursue. The resulting collaboration reflects a mutuality whereby each party always teaches, always learns.”

 

“[R]ebellious lawyering encourages lawyers to adopt a variety of forms. This dynamic nature seems to be in keeping with the visionary goals of alternative practice.  By denying the existing boundaries of the poverty law context, rebellious lawyering hopes to inspire innovation. Whether in the form of grass-roots mobilization, client education, or transactional legal services, this innovation promises to revitalize the practice of poverty law.”

 

 

 

 

 

 

 

 

Excerpted from Jessica A. Rose, REBELLIOUS OR REGNANT: POLICE BRUTALITY LAWYERING IN NEW YORK CITY, 28 Fordham Urb. L.J. 619 (2000):

“C’mon it’s no great news: Means do prefigure ends.” (citing Rebellious Lawyering (1992)).

 

“ ‘What might a rebellious law office look like? Turn loose your imagination for just a moment.’” (citing Rebellious Lawyering (1992)).

 

“[I] n order to challenge police brutality on a systemic level, while at the same time empowering the client and community, the progressive legal community of New York City must adopt a form of practice that is more ‘rebellious’ in its methodology.”

 

“This Comment examines the legal representation of victims of police brutality in New York City through the lens of Professor Gerald Lopez’s theory of rebellious lawyering.”

 

“Rebellious lawyering seeks to empower subordinated clients.”

 

“[R]ebellious lawyering seeks to address the defects of regnant lawyering, namely, ‘the interpersonal domination of clients by lawyers; the disempowerment that accompanies reliance on litigation-based dispute resolution or its equivalent; and the inefficacy of intrasystemic remedies to achieve meaningful change in the lives of poor clients.’”

 

“The critical lawyer sees the lawyer-client relationship as collaborative, as opposed to hierarchical. Lopez draws from this collaborative approach to lawyering. Lopez, like the critical lawyering theorists, stresses the importance of client voice and the use of the client’s knowledge in the legal process.”

 

“Paolo Freire pioneered the theory of popular education in his work on the community education and politicization of the poor and marginalized in Brazil and throughout the Third World. He asserted that, given the necessary tools, individuals could enter into a dialogue with each other and society at large that had the potential for personal and political transformation. Education is seen as a tool by which the oppressed can transform their situation and achieve political and social transformation.”

 

“Freire states: ‘Critical and liberating dialogue, which presupposes action, must be carried on with the oppressed at whatever the stage of their struggle for liberation.’ Through the process of popular education the student and teacher are considered ‘critical co-investigators in dialogue.’ The popular education model has important implications for rebellious lawyering. The two theories emphasize the importance of student/client voice, the goal of empowerment and societal change, and the student/client serving as co-strategist in problem solving with the teacher/lawyer.”

 

“Saul Alinsky, another theoretician and practitioner of community organizing, established what are known as the Alinsky concepts of mass organization for power…. Lopez, like Alinsky, stresses communication as the most essential component to organizing.  Similar to Lopez’s theory of rebellious lawyering, Alinsky stressed that the dialogue must be a two-way experience. This is facilitated as messages are conveyed so that people will be able to relate them to their own experiential knowledge.”

 

“The actual accounts of people working in the legal field of social change are not often heard. Mainstream media either downplays or ignores organizing efforts and litigation victories.”

 

“Lawyers themselves often do not create a space for their clients’ voices to be heard in the legal process, and instead translate clients’ stories into legal arguments and clients’ narratives into under-emphasized ‘impact statements’ or ‘witness/victim testimonies.’ As Lopez explains, ‘our oral traditions rarely report activist work as well as they might. Most such stories seldom circulate outside small, local circles.’”

 

“The use of narrative, or storytelling, is a central element of rebellious lawyering.”

 

“[T]his Comment frames the analysis of legal representation in cases of police brutality in the context of the stories of the lawyers who are actually doing the lawyering and the community organizers working with them.”

 

“In examining the ‘rebelliousness’ of lawyers working with the issue of police brutality in New York City, it is critical not only to engage the lawyers in a self-examination of their practices, but also to listen to the experiences of the community organizers and survivors of police brutality who have worked with lawyers on this issue. This is another aspect of the dialogic process that is an integral component to rebellious lawyering.”

 

“Rebellious lawyering stresses the importance of clients’ storytelling because the theory recognizes the silence forced upon marginalized communities.  Rebellious lawyers must collaborate with their clients in a manner that enables clients to express their stories. The client’s narrative can be incorporated into every form of legal representation discussed. The class action, individual action, legal referral, archival, and community organizing approaches can increase client narratives in a variety of ways. Forums in which lawyers could incorporate client narratives include: in the courts (e.g., introducing victim impact statements and direct testimony); before the public (e.g., holding public hearings); in the media (e.g., giving interviews and issuing press releases); and by community outreach (e.g., disseminating posters and educational materials).”

 

“[A] fundamental characteristic of rebellious lawyering is the ability to see the client’s issue within the larger societal context. A rebellious lawyer should not only see the impact of the lawyer-client collaboration on the client’s individual life, but also the impact it will have and the response it will receive in the local, regional, national, and international socio-political spheres.”

 

“The theory of rebellious lawyering has particular salience in the context of the legal representation of victims of police brutality. The clients and their communities are, on ‘lock-down’ and they and their loved ones have been subject to and witnesses of continuous, brutal attacks by the NYPD.”

 

“Police brutality is a symptom of larger power inequities within the United States. Therefore, the goal of police brutality-related legal representation should be to abolish such brutality, as well as the power dynamic that creates and condones this articulation of inequality. A more rebellious stance on the part of the legal community would respond to the needs of the clients and the community on a more profound level. It is incumbent upon the legal community to take a more rebellious stance in its practice. The transformative process of rebellious lawyering must take place on both an organizational and individual level.”

 

 

 

 

 

 

 

Excerpted from Ann Southworth, TAKING THE LAWYER OUT OF PROGRESSIVE LAWYERING, 46 Stan. L. Rev. 213 (1993):

“López urges activist lawyers to commit themselves to… ‘the rebellious idea of lawyering against subordination,’ a process of teaching clients ‘about law and professional lawyering’ and learning from clients ‘about the traditions and experiences of life on the bottom and at the margins.’ He suggests that lawyers should help ‘people subordinated by political and social life … learn to recognize and value and extend their own problem-solving know-how,’ so that these clients ‘may gain confidence in their ability to handle situations that they would otherwise experience as utterly foreign and unmanageable.’ This approach… ‘is one way of helping them gain more control over the life we share.’”

 

“Rebellious Lawyering contributes to an essential debate about lawyers’ roles in progressive politics. López persuasively argues that lawyers should strive to understand their clients and their communities and share with clients control over the process of defining problems, identifying options, and selecting and implementing strategies.  He properly criticizes lawyers who adopt familiar legal approaches without considering alternatives and who do not analyze how their work relates to more comprehensive political strategies. He also endorses the sensible view that lawyers should demystify law and lawyering to enable people to handle many routine legal problems on their own.”

 

“We need to examine further whether lawyers are contributing all they can, and should, to efforts to improve opportunities for the poor. We need to know more about the work of lawyers on civil rights and poverty issues: What tasks are lawyers performing? Are we drawing on the full range of services lawyers could provide? What types of expertise should aspiring civil rights and poverty lawyers acquire? Do the pro bono skills of corporate, tax, and real estate lawyers offer a significant untapped resource? These questions assume that we need to examine not only attorney-client interactions but also the substance of lawyers’ work before we can begin to understand what imaginative lawyering might accomplish.”

 

 

 

 

These are Rebellious Lawyering law journal articles that are accessible online at no cost:

Hing, Bill Ong (2004) “Rebellious Lawyering, Settlement, and Reconciliation: Soko Bukai v. YWCA,” Nevada Law Journal: Vol. 5: Iss. 1, Article 10.Hing, Bill Ong (2004) “Rebellious Lawyering, Settlement, and Reconciliation: Soko Bukai v. YWCA,” Nevada Law Journal: Vol. 5: Iss. 1, Article 10.

Saito, Natsu Taylor (2012) “Rebellious Lawyering in the Courts of the Conqueror: The Legacy of the Hirabayashi Coram Nobis Case,” Seattle Journal for Social Justice: Vol. 11: Iss. 1, Article 8.

MICHAEL GRINTHAL, POWER WITH: PRACTICE MODELS FOR SOCIAL JUSTICE LAWYERING (2011)

Alan K. Chen, RIGHTS LAWYER ESSENTIALISM AND THE NEXT GENERATION OF RIGHTS CRITICS

 


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