Embedded practices: Lawyers, clients, and social change

Harvard Civil Rights-Civil Liberties Law Review

Volumn 31, Issue 2, 1996, Pages 415-441

  Trubek, Louise G ^a  

^a UNIVERSITY OF WISCONSIN LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0030505383     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (156)

1. I define the terms "subordinated people" or "subordinated groups" as people who suffer from a marginalization that prevents them from becoming full members of society. I use these phrases interchangeably with "poor people" and "disadvantaged people."
2. I use the term "social change lawyering" to refer to lawyers whose work is directed at altering some aspect of the social, economic, and/or political status quo. I am referring to those lawyers who believe that the current status quo inhibits the full participation of and adequate benefits to subordinated people in society.
3. A recent set of articles address the appropriate critique of the current situation of the Legal Services Corporation programs. See 83 GEO. L.J. 1529-1709 (1995). Compare Marc Feldman, Political Lessons: Legal Services for the Poor, 83 GEO. L.J. 1529 (1995) (criticizing the efficacy and efficiency of LSC work for the poor) with Gary Bellow & Jeanne Charn, Paths Not Yet Taken: Some Comments on Feldman's Critique of Legal Services Practice, 83 GEO. L.J. 1633 (1995) (agreeing with Feldman's critique of efficacy and efficiency to some extent but offering alternative solutions).
4. A recent set of articles address the appropriate critique of the current situation of the Legal Services Corporation programs. See 83 GEO. L.J. 1529-1709 (1995). Compare Marc Feldman, Political Lessons: Legal Services for the Poor, 83 GEO. L.J. 1529 (1995) (criticizing the efficacy and efficiency of LSC work for the poor) with Gary Bellow & Jeanne Charn, Paths Not Yet Taken: Some Comments on Feldman's Critique of Legal Services Practice, 83 GEO. L.J. 1633 (1995) (agreeing with Feldman's critique of efficacy and efficiency to some extent but offering alternative solutions).
5. A recent set of articles address the appropriate critique of the current situation of the Legal Services Corporation programs. See 83 GEO. L.J. 1529-1709 (1995). Compare Marc Feldman, Political Lessons: Legal Services for the Poor, 83 GEO. L.J. 1529 (1995) (criticizing the efficacy and efficiency of LSC work for the poor) with Gary Bellow & Jeanne Charn, Paths Not Yet Taken: Some Comments on Feldman's Critique of Legal Services Practice, 83 GEO. L.J. 1633 (1995) (agreeing with Feldman's critique of efficacy and efficiency to some extent but offering alternative solutions).
6. See generally Feldman, supra note 3, at 1558-83 (discussing the historic causes of the depolitization of LSC). For two additional articles discussing critiques of LSC based on depolitization, see Ruth Margaret Buchanan, Context, Continuity, and Difference in Poverty Law Scholarship. 48 MIAMI L. REV. 999 (1994) and Gary L. Blasi, What's a Theory For?: Notes on Reconstructing Poverty Law Scholarship, 48 MIAMI L. REV. 1063 (1994).
7. See generally Feldman, supra note 3, at 1558-83 (discussing the historic causes of the depolitization of LSC). For two additional articles discussing critiques of LSC based on depolitization, see Ruth Margaret Buchanan, Context, Continuity, and Difference in Poverty Law Scholarship. 48 MIAMI L. REV. 999 (1994) and Gary L. Blasi, What's a Theory For?: Notes on Reconstructing Poverty Law Scholarship, 48 MIAMI L. REV. 1063 (1994).
8. See generally GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1994) (illustrating the limitations of the predominant formal approach to progressive lawyering and highlighting "rebellious lawyering" as a more inclusive alternative); Anthony A. Alfieri, Practicing Community. 107 HARV. L. REV. 1747 (1994) (reviewing GERALD P. LÓPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE): Louise G. Trubek, Critical Lawyering: Toward a New Public Interest Practice, 1 B.U. PUB. INT. L.J. 49 (1991) (discussing the concept of critical lawyering and its implementation in a public interest law practice).
9. See generally GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1994) (illustrating the limitations of the predominant formal approach to progressive lawyering and highlighting "rebellious lawyering" as a more inclusive alternative); Anthony A. Alfieri, Practicing Community. 107 HARV. L. REV. 1747 (1994) (reviewing GERALD P. LÓPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE): Louise G. Trubek, Critical Lawyering: Toward a New Public Interest Practice, 1 B.U. PUB. INT. L.J. 49 (1991) (discussing the concept of critical lawyering and its implementation in a public interest law practice).
10. See generally GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1994) (illustrating the limitations of the predominant formal approach to progressive lawyering and highlighting "rebellious lawyering" as a more inclusive alternative); Anthony A. Alfieri, Practicing Community. 107 HARV. L. REV. 1747 (1994) (reviewing GERALD P. LÓPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE): Louise G. Trubek, Critical Lawyering: Toward a New Public Interest Practice, 1 B.U. PUB. INT. L.J. 49 (1991) (discussing the concept of critical lawyering and its implementation in a public interest law practice).
11. See generally GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1994) (illustrating the limitations of the predominant formal approach to progressive lawyering and highlighting "rebellious lawyering" as a more inclusive alternative); Anthony A. Alfieri, Practicing Community. 107 HARV. L. REV. 1747 (1994) (reviewing GERALD P. LÓPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE): Louise G. Trubek, Critical Lawyering: Toward a New Public Interest Practice, 1 B.U. PUB. INT. L.J. 49 (1991) (discussing the concept of critical lawyering and its implementation in a public interest law practice).
12. See Ruth Buchanan & Louise G. Trubek, Resistances and Possibilities: A Critical and Practical Look at Public Interest Lawyering. 19 N.Y.U. REV. L. & Soc. CHANGE 687 (1992) (illustrating the critical lawyering perspective as a viable alternative to traditional public interest practice while highlighting practical difficulties in its realization).
13. See Peter Gabel & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law. 11 N.Y.U. REV. L. & SOC. CHANGE 369 (1982-83); Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. REV. L. & SOC. CHANGE 535 (1987-88).
14. See Peter Gabel & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law. 11 N.Y.U. REV. L. & SOC. CHANGE 369 (1982-83); Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. REV. L. & SOC. CHANGE 535 (1987-88).
15. See, e.g., Lucie E. White. Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L. REV. 1 (1990) (arguing for a humanist - opposed to a masculine - vision of procedural justice to address "deeply-rooted substantive inequality"). See generally Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L. REV. 461 (1993).
16. See, e.g., Lucie E. White. Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L. REV. 1 (1990) (arguing for a humanist - opposed to a masculine - vision of procedural justice to address "deeply-rooted substantive inequality"). See generally Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L. REV. 461 (1993).
17. I define "collaborative lawyer-client relationship" as one where the lawyer self-consciously consults and involves the client in all important decisions, including allocating substantive work between the attorney and the client, to empower the client through the legal process.
18. See generally Gerald P. Lopez, Reconceiving Civil Rights Practice: Seven Weeks in the Life of a Rebellious Collaboration, 77 GEO. L.J. 1603 (1989) (documenting one lawyer's struggle to move beyond present conventions in the legal profession toward the "rebellious idea of lawyering against subordination" characterized by collaboration with professional and lay allies, education of colleagues and clients, and openness to lessons offered by subordinated clients). 1 define "collegial site" as a workplace where there is a self-conscious goal to treat every worker with respect or to reduce workplace hierarchy based on status and income.
19. See Feldman, supra note 3: see also Alan W. Houseman, Political Lessons: Legal Services for the Poor - A Commentary, 83 GEO. L.J. 1669 (1995) (rejecting the idea of legal services as a catalyst for change, but nevertheless arguing for an interdisciplinary and holistic approach to legal services delivery).
20. Steven Labaton, Back from the Brink, the Legal Services Corporation Discovers It's in Danger Again, N. Y. TIMES, Mar. 31, 1995, at A28.
21. Martin Gottlieb, A Lawyer for the People Plans to Fight on His Own. N. Y. TIMES, Jan. 28, 1996, at A12.
22. Compare Feldman, supra note 3 with Houseman, supra note 11.
23. Compare Feldman, supra note 3 with Houseman, supra note 11.
24. See, e.g., Louise G. Trubek, The Worst of Times . . . and the Best of Times: Lawyering for Poor Clients Today, 22 FORDHAM URB. L.J. 1123 (1995); Lucie E. White, Collaborative Lawyering in the Field? On Mapping the Paths from Rhetoric to Practice, 1 CLINICAL L. REV. 157 (1994).
25. See, e.g., Louise G. Trubek, The Worst of Times . . . and the Best of Times: Lawyering for Poor Clients Today, 22 FORDHAM URB. L.J. 1123 (1995); Lucie E. White, Collaborative Lawyering in the Field? On Mapping the Paths from Rhetoric to Practice, 1 CLINICAL L. REV. 157 (1994).
26. See, e.g., MICHAEL J. KELLY, LIVES OF LAWYERS: JOURNEYS IN THE ORGANIZATIONS OF PRACTICE (1994) (studying a variety of private practitioners, including a social justice law firm): John C. Kilwein, Still Trying: Cause Lawyering for the Poor and Disadvantaged in Pittsburgh, Pennsylvania, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997): Richard D. Marsico, Working for Social Change and Preserving Client Autonomy: Is There a Role for 'Facilitative' Lawvering?, 1 CLINICAL L. REV. 639 (1995) (studying a law school clinical program): Aaron Porter, Norris, Schmidt, Green, Harris, Higgenbotham & Associates: The Impact of Philadelphia Cause Lawyers, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Stuart A. Scheingold, The Struggle to Politicize Legal Practice: Left-Activist Lawyering in Seattle, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Ann Southworth, Lawyer-Client Decision Making in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 4 (1996) (studying public interest and pro bono practitioners).
27. See, e.g., MICHAEL J. KELLY, LIVES OF LAWYERS: JOURNEYS IN THE ORGANIZATIONS OF PRACTICE (1994) (studying a variety of private practitioners, including a social justice law firm): John C. Kilwein, Still Trying: Cause Lawyering for the Poor and Disadvantaged in Pittsburgh, Pennsylvania, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997): Richard D. Marsico, Working for Social Change and Preserving Client Autonomy: Is There a Role for 'Facilitative' Lawvering?, 1 CLINICAL L. REV. 639 (1995) (studying a law school clinical program): Aaron Porter, Norris, Schmidt, Green, Harris, Higgenbotham & Associates: The Impact of Philadelphia Cause Lawyers, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Stuart A. Scheingold, The Struggle to Politicize Legal Practice: Left-Activist Lawyering in Seattle, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Ann Southworth, Lawyer-Client Decision Making in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 4 (1996) (studying public interest and pro bono practitioners).
28. See, e.g., MICHAEL J. KELLY, LIVES OF LAWYERS: JOURNEYS IN THE ORGANIZATIONS OF PRACTICE (1994) (studying a variety of private practitioners, including a social justice law firm): John C. Kilwein, Still Trying: Cause Lawyering for the Poor and Disadvantaged in Pittsburgh, Pennsylvania, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997): Richard D. Marsico, Working for Social Change and Preserving Client Autonomy: Is There a Role for 'Facilitative' Lawvering?, 1 CLINICAL L. REV. 639 (1995) (studying a law school clinical program): Aaron Porter, Norris, Schmidt, Green, Harris, Higgenbotham & Associates: The Impact of Philadelphia Cause Lawyers, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Stuart A. Scheingold, The Struggle to Politicize Legal Practice: Left-Activist Lawyering in Seattle, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Ann Southworth, Lawyer-Client Decision Making in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 4 (1996) (studying public interest and pro bono practitioners).
29. See, e.g., MICHAEL J. KELLY, LIVES OF LAWYERS: JOURNEYS IN THE ORGANIZATIONS OF PRACTICE (1994) (studying a variety of private practitioners, including a social justice law firm): John C. Kilwein, Still Trying: Cause Lawyering for the Poor and Disadvantaged in Pittsburgh, Pennsylvania, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997): Richard D. Marsico, Working for Social Change and Preserving Client Autonomy: Is There a Role for 'Facilitative' Lawvering?, 1 CLINICAL L. REV. 639 (1995) (studying a law school clinical program): Aaron Porter, Norris, Schmidt, Green, Harris, Higgenbotham & Associates: The Impact of Philadelphia Cause Lawyers, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Stuart A. Scheingold, The Struggle to Politicize Legal Practice: Left-Activist Lawyering in Seattle, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Ann Southworth, Lawyer-Client Decision Making in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 4 (1996) (studying public interest and pro bono practitioners).
30. See, e.g., MICHAEL J. KELLY, LIVES OF LAWYERS: JOURNEYS IN THE ORGANIZATIONS OF PRACTICE (1994) (studying a variety of private practitioners, including a social justice law firm): John C. Kilwein, Still Trying: Cause Lawyering for the Poor and Disadvantaged in Pittsburgh, Pennsylvania, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997): Richard D. Marsico, Working for Social Change and Preserving Client Autonomy: Is There a Role for 'Facilitative' Lawvering?, 1 CLINICAL L. REV. 639 (1995) (studying a law school clinical program): Aaron Porter, Norris, Schmidt, Green, Harris, Higgenbotham & Associates: The Impact of Philadelphia Cause Lawyers, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Stuart A. Scheingold, The Struggle to Politicize Legal Practice: Left-Activist Lawyering in Seattle, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Ann Southworth, Lawyer-Client Decision Making in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 4 (1996) (studying public interest and pro bono practitioners).
31. See, e.g., MICHAEL J. KELLY, LIVES OF LAWYERS: JOURNEYS IN THE ORGANIZATIONS OF PRACTICE (1994) (studying a variety of private practitioners, including a social justice law firm): John C. Kilwein, Still Trying: Cause Lawyering for the Poor and Disadvantaged in Pittsburgh, Pennsylvania, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997): Richard D. Marsico, Working for Social Change and Preserving Client Autonomy: Is There a Role for 'Facilitative' Lawvering?, 1 CLINICAL L. REV. 639 (1995) (studying a law school clinical program): Aaron Porter, Norris, Schmidt, Green, Harris, Higgenbotham & Associates: The Impact of Philadelphia Cause Lawyers, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Stuart A. Scheingold, The Struggle to Politicize Legal Practice: Left-Activist Lawyering in Seattle, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997); Ann Southworth, Lawyer-Client Decision Making in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 4 (1996) (studying public interest and pro bono practitioners).
32. My knowledge of the Wisconsin legal culture enabled me to select these alternative practices and obtain cooperation from those interviewed. The "Cause Lawyering" project coordinated by Austin Sarat and Stuart Scheingold helped me to conceptualize the paper. The "Cause Lawyering" project assembled a group of scholars to examine who are cause lawyers and what are the social, political, and professional conditions that make it possible for lawyers to devote their professional lives to "moral activism." The project is culminating in a forthcoming edited volume entitled LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997).
33. There are historic examples of similar efforts. The settlement houses in New York in the early 20th century used lawyers to advocate for law reform and to provide direct case representation on behalf of their poor immigrant clients. See MARTHA DAVIS, BRUTAL NEED: LAWYERS AND THE WELFARE RIGHTS MOVEMENT, 1960-1973 12 (1993).
34. Trubek, supra note 16, at 1130; see also Peter B. Edelman, Toward a Comprehensive Antipoverty Strategy: Getting Beyond the Silver Bullet, 81 GEO. L.J. 1697, 1727 (1993) (noting that nonprofits, not the federal government, are generally the agents for carrying out government and nongovernment programs to benefit the poor).
35. The profiles are based on interviews and a review of written documents provided by the organizations.
36. COALITION OF WISCONSIN AGING GROUPS, PLANNING FOR THE 21ST CENTURY: THE COALITION OF WISCONSIN AGING GROUPS' LONG RANGE PLAN (1994).
37. COALITION OF WISCONSIN AGING GROUPS, CWAG FACT SHEET (1992).
38. Edelman, supra note 20, at 1703, 1712.
39. Telephone Interview with an attorney from the Coalition of Wisconsin Aging Groups (Jan. 24, 1996) [hereinafter Telephone Interview with CWAG Attorney]. The original location of the legal unit was a public interest law firm that endorsed and encouraged the merger. The firm favored the move because it placed the program directly within the leadership and control of the client group it served. The firm also believed the direct administration of the unit by the client group would improve the long-range funding for the unit. DIVISION OF COMMUNITY SERVICES, WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, INTERIM PROGRAM POLICIES AND PROCEDURES FOR THE WISCONSIN LEGAL ASSISTANCE/BENEFIT SPECIALIST PROGRAM 1 (1992) (interim report).
40. Telephone Interview with Thomas Frazier, Executive Director, Coalition of Wisconsin Aging Groups (Sept. 25, 1995) [hereinafter Telephone Interview with CWAG Director].
41. Telephone Interview with CWAG Attorney, supra note 25.
42. Hearings on Legal Services Delivery before the Comm'n on the Delivery of Legal Services, State Bar of Wisconsin (Aug. 14, 1995) (statement of Jane Raymond, former supervisor of the Wisconsin Elderly Benefit Specialist Program. Bureau of Aging, Wisconsin Department of Health and Social Services).
43. Telephone Interview with CWAG Director, supra note 26.
44. Trubek, supra note 16, at 1124 (citing Elizabeth M. Schneider, Particularity and Generality: Challenges of Feminist Theory and Practice in Work on Women-Abuse, 67 N.Y.U. L. REV. 520, 522-24 (1992)).
45. WISCONSIN COALITION AGAINST DOMESTIC VIOLENCE, PHILOSOPHY, MISSION AND GOALS.
46. Trubek, supra note 16, at 1124 (citing Elizabeth M. Schneider, Particularity and Generality: Challenges of Feminist Theory and Practice in Work on Women-Abuse, 67 N.Y.U. L. REV. 520, 522-24 (1992)).
47. Trubek, supra note 16, at 1124.
48. Task Force on Battered Women and Association for Women Lawyers, 1992 Request to the Women's Fund of Milwaukee Foundation 4-5 (1992) (unpublished manuscript, on file with the author).
49. Trubek, supra note 16, at 1124.
50. Telephone Interview with an attorney from the Legal Services Center in Oshkosh, Wis. (Jan. 24, 1996) [hereinafter Telephone Interview with LSC Attorney].
51. Telephone Interview with Director, Domestic Violence Shelter #2, Superior, Wis. (Sept. 27, 1995) [hereinafter Telephone Interview with Shelter #2].
52. Telephone Interview with Director, Domestic Violence Shelter #3, Richland Center, Wis. (Jan. 24, 1996) [hereinafter Telephone Interview with Shelter #3].
53. Telephone Interview with Director, Domestic Violence Shelter #1, Platteville, Wis. (Sept. 27, 1995) [hereinafter Telephone Interview with Shelter #1]; Telephone Interview with Shelter #2, supra note 37; Telephone Interview with Shelter #3, supra note 38.
54. Telephone Interview with Shelter #2, supra note 37.
55. Telephone Interview with Shelter #1, supra note 39.
56. Id.
57. Telephone Interview with Shelter #3, supra note 38.
58. Telephone Interview with Shelter #1, supra note 39.
59. Id.
60. Telephone Interview with Shelter #2, supra note 38.
61. Telephone Interview with Shelter #3, supra note 37.
62. In this Article, I use "nonlawyer" to refer to persons without law degrees who perform substantive legal work, "lay advocate" to refer to employees of nonprofit organizations who perform substantive legal work, "paralegal" to refer to employees of law firms or self-employed persons who perform substantive legal work, and "pro se" to refer to individuals who represent themselves in legal matters. The lexicon of nonlawyer activity in legal and law-related matters is confusing because many of the terms are used with significant variation from jurisdiction to jurisdiction and from one organization to another. See A.B.A. COMM'N ON NONLAWYER PRACTICE, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS iii, xvii-xviii (1995).
63. WISCONSIN COALITION AGAINST DOMESTIC VIOLENCE, LEGAL PROJECT WORK PLAN, (Jan. 1, 1995-Dec. 31, 1995).
64. Telephone Interview with CWAG Attorney, supra note 25.
65. Id.
66. Id.
67. Telephone Interview with Shelter #2, supra note 37.
68. Id.
69. E.g., Telephone Interview with LSC Attorney, supra note 36.
70. Telephone Interview with CWAG Attorney, supra note 25.
71. E.g., Telephone Interview with Shelter #2, supra note 37.
72. Telephone Interview with Shelter #1, supra note 39.
73. Telephone Interview with Shelter #3, supra note 38.
74. WILLIAM H. SIMON, CENTER FOR PUBLIC REPRESENTATION, AN INNOVATIVE MODEL PROVIDING HIGH QUALITY LEGAL ASSISTANCE FOR THE ELDERLY IN WISCONSIN (1988); THE SPANGENBERG GROUP, COMM'N ON LEGAL PROBLEMS OF THE ELDERLY, AMERICAN BAR ASS'N, EXECUTIVE SUMMARY: WISCONSIN ELDER NEEDS STUDY (1991); see also Herbert M. Kritzer, The Reality of Advocacy: Lawyers and Nonlawyers Compared or "The First Thing We Do, Let's Kill All the Lawyers" (unpublished manuscript, on file with the author) (presented at meeting of the Law & Society Association, Toronto, Canada, June 1-4, 1995) (studying the role of lay advocates and finding them competent).
75. WILLIAM H. SIMON, CENTER FOR PUBLIC REPRESENTATION, AN INNOVATIVE MODEL PROVIDING HIGH QUALITY LEGAL ASSISTANCE FOR THE ELDERLY IN WISCONSIN (1988); THE SPANGENBERG GROUP, COMM'N ON LEGAL PROBLEMS OF THE ELDERLY, AMERICAN BAR ASS'N, EXECUTIVE SUMMARY: WISCONSIN ELDER NEEDS STUDY (1991); see also Herbert M. Kritzer, The Reality of Advocacy: Lawyers and Nonlawyers Compared or "The First Thing We Do, Let's Kill All the Lawyers" (unpublished manuscript, on file with the author) (presented at meeting of the Law & Society Association, Toronto, Canada, June 1-4, 1995) (studying the role of lay advocates and finding them competent).
76. WILLIAM H. SIMON, CENTER FOR PUBLIC REPRESENTATION, AN INNOVATIVE MODEL PROVIDING HIGH QUALITY LEGAL ASSISTANCE FOR THE ELDERLY IN WISCONSIN (1988); THE SPANGENBERG GROUP, COMM'N ON LEGAL PROBLEMS OF THE ELDERLY, AMERICAN BAR ASS'N, EXECUTIVE SUMMARY: WISCONSIN ELDER NEEDS STUDY (1991); see also Herbert M. Kritzer, The Reality of Advocacy: Lawyers and Nonlawyers Compared or "The First Thing We Do, Let's Kill All the Lawyers" (unpublished manuscript, on file with the author) (presented at meeting of the Law & Society Association, Toronto, Canada, June 1-4, 1995) (studying the role of lay advocates and finding them competent).
77. See WIS. STAT. § 813.122(3)(b)(2) (1992). The recent American Bar Association report on nonlawyer practice extensively discusses the lay advocate for domestic violence cases. See A.B.A. COMM'N ON NONLAWYER PRACTICE, supra note 48, at 155-57.
78. Telephone Interview with LSC Attorney, supra note 36; Telephone Interview with CWAG Attorney, supra note 25.
79. ROBERT GRANFIELD, MAKING ELITE LAWYERS 90 (1992): see also Gottlieb, supra note 13.
80. Louise G. Trubek & M. Elizabeth Kransberger, Social Justice and the Structures of Private Practice, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997). Contemporary social justice law firms have historical antecedents. See WABUN WIND, THE PEOPLE'S LAWYERS, MARLISE JAMES (1973).
81. Louise G. Trubek & M. Elizabeth Kransberger, Social Justice and the Structures of Private Practice, in LAWYERING ON THE LEFT: CAUSES, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart A. Scheingold eds., forthcoming 1997). Contemporary social justice law firms have historical antecedents. See WABUN WIND, THE PEOPLE'S LAWYERS, MARLISE JAMES (1973).
82. Trubek & Kransberger, supra note 64. This Section includes material from early interviews used in Social Justice and the Structures of Private Practice. The names of the lawyers have been changed and the locations of their practices have been omitted to preserve the anonymity of the lawyers.
83. Interview with Attorney Caldwell, Partner, Strickland & Caldwell (May 1993) [hereinafter Interview with Caldwell]; Interview with Attorney Strickland, Partner, Strickland & Caldwell (May 1993) [hereinafter Interview with Strickland].
84. Interview with Strickland, supra note 66.
85. Interview with Attorney Strickland, Partner, Strickland & Caldwell (July 1994) [hereinafter Interview with Strickland Supplemental].
86. Id.
87. Interview with Caldwell, supra note 66.
88. Telephone Interview Attorney Caldwell, partner, Strickland & Caldwell (May 1995).
89. Interview with Caldwell, supra note 66. But cf. Austin Sarat & William L.F. Felstiner, Law and Strategy in the Divorce Lawyer's Office, 20 L. & SOC'Y REV. 93 (1986) (describing the divorce lawyer as cynically manipulating the client to accept the lawyer's view of their legal claim).
90. Interview with Caldwell, supra note 66.
91. See Nancy Dowd. Work and Family: The Gender Paradox and the Limitations of Gender Discrimination in Restructuring the Workplace, 24 HARV. C.R.-C.L. L. REV. 79 (1989).
92. Interview with Caldwell, supra note 66.
93. Carol Rose Ashley, Effective "Cause" Lawyering: A Case Study of Attorney [James Smith] 1 (Dec. 12, 1992) (unpublished manuscript, on file with the author) [hereinafter Smith #1].
94. Id. at 11.
95. See id. at 12.
96. Id. at 1.
97. Id. at 4-6. Ironically, the older attorney who was a mentor to Smith is now practicing in Smith's firm after the breakup of the original firm.
98. Telephone Interview with Attorney James Smith, Lead Partner, Smith & Associates (Dec. 16, 1994) [hereinafter Telephone Interview with Smith #3].
99. Telephone Interview with Attorney James Smith, Lead Partner, Smith & Associates (Dec. 5, 1994) [hereinafter Telephone Interview with Smith #2].
100. Telephone Interview with Smith #3, supra note 81.
101. See supra notes 65-83 and accompanying text.
102. See, e.g., Louise G. Trubek, Introduction to the Symposium on New Approaches to Poverty Law, Teaching, and Practice. 4 B.U. PUB. INT. L.J. 235, 240-41 (1995) (summarizing the insights of various symposium participants in recommending shifts in substantive law as a way for poverty lawyers to combat attacks on legal services); see also Trubek, supra note 16, at 1136.
103. See Naomi Cahn & Joan Meier, Domestic Violence and Feminist Jurisprudence Towards a New Agenda, 4 B.U. PUB. INT. L.J. 339. 359-60 (1995); Peter Margulies, Representation of Domestic Violence Survivors as a New Paradigm of Poverty Law: In Search of Access, Connection, and Voice, 63 GEO. WASH. L. REV. (forthcoming Aug. 1996).
104. See Naomi Cahn & Joan Meier, Domestic Violence and Feminist Jurisprudence Towards a New Agenda, 4 B.U. PUB. INT. L.J. 339. 359-60 (1995); Peter Margulies, Representation of Domestic Violence Survivors as a New Paradigm of Poverty Law: In Search of Access, Connection, and Voice, 63 GEO. WASH. L. REV. (forthcoming Aug. 1996).
105. See Peter Pitegoff, Law School Initiatives in Housing and Community Development, 4 B.U. PUB. INT. L.J. 275, 283 (1995). Lawyers who work with community groups and minority entrepreneurs engage in collaborative relations with the client. Southworth, supra note 17.
106. Interview with Caldwell, supra note 66: Interview with Strickland, supra note 66.
107. Smith #1, supra note 76, at 9-11.
108. Id.; Telephone Interview with Smith #3, supra note 81.
109. Smith #1, supra note 76, at 12.
110. See Telephone Interview with Smith #3, supra note 81; Telephone Interview with Smith #2, supra note 82.
111. See, e.g., Telephone Interview with Smith #2, supra note 82.
112. See, e.g., Jerry Van Hoy, Selling and Processing Law: Legal Work at Franchise Law Firms, 29 LAW & SOC'Y REV. 703 (1995) (discussing dissatisfaction of lawyers with routinized case handling in franchise law firms).
113. I have borrowed the phrase "silver bullet" from Peter Edelman, who uses it to refer to the complexity required to eliminate poverty. See Edelman, supra note 20, at 1755.
114. White, supra note 16, at 158.
115. See Houseman, supra note 11, at 1673-78 (1995). Houseman credits the Legal Services Corporation for "impact far beyond its direct work for the poor." Id. at 1709 n.70. He states that the clinical movement in law schools may not have happened without the Legal Services Corporation and that the opening of admissions policies to women and minorities was influenced by Legal Services programs. See id. at 1709 n.70.
116. Labaton, supra note 12; Indira A.R. Lakshmanan, Curbs Near in Legal Aid for the Poor, BOSTON GLOBE, Mar. 26, 1996, at 1.
117. MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.4(c) (1993).
118. Ted Schneyer. Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct, 14 L. & Soc. INQUIRY 677, 735 (1989); see also Houseman, supra note 11, at 1674 (discussing the support by the organized bar in the early days of developing the Legal Services Corporation program for the idea that Legal Services programs should be free from lay control).
119. MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.5 (1993); see Deborah Rhode, The Delivery of Legal Service by Non-Lawyers, 4 GEO. J. LEGAL ETHICS 209, 211-14 (1990).
120. MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.5 (1993); see Deborah Rhode, The Delivery of Legal Service by Non-Lawyers, 4 GEO. J. LEGAL ETHICS 209, 211-14 (1990).
121. A.B.A. COMM'N ON NONLAWYER PRACTICE, supra note 58, at 163-73 (two minority dissents expressing reservations with the generally supportive view of nonlawyer activity).
122. Id. at 161.
123. Id. at 163-73. Recent discussions at the Wisconsin Commission on Delivery of Legal Services meetings generated substantial, heated debate on the issue of nonlawyer practice. It is unclear whether any consensus will emerge. See Commission on the Delivery of Legal Services, Minutes 3-7 (Jan. 3, 1996) (on file with the author).
124. These systems have various names, such as "client coaching." See Making Clients Partners in Preparing Their Cases, A.B.A. J., Dec. 1994 at 64 [hereinafter Making Clients Partners]. "Unbundling" is another name. See Forrest Mosten, The Unbundling of Legal Services: Increasing Legal Access, in SHAPING THE FUTURE: NEW DIRECTIONS FOR LEGAL SERVICES (Roger Smith ed., 1994).
125. These systems have various names, such as "client coaching." See Making Clients Partners in Preparing Their Cases, A.B.A. J., Dec. 1994 at 64 [hereinafter Making Clients Partners]. "Unbundling" is another name. See Forrest Mosten, The Unbundling of Legal Services: Increasing Legal Access, in SHAPING THE FUTURE: NEW DIRECTIONS FOR LEGAL SERVICES (Roger Smith ed., 1994).
126. These systems have various names, such as "client coaching." See Making Clients Partners in Preparing Their Cases, A.B.A. J., Dec. 1994 at 64 [hereinafter Making Clients Partners]. "Unbundling" is another name. See Forrest Mosten, The Unbundling of Legal Services: Increasing Legal Access, in SHAPING THE FUTURE: NEW DIRECTIONS FOR LEGAL SERVICES (Roger Smith ed., 1994).
127. Making Clients Partners, A.B.A. J., supra note 105.
128. The ethics issues that are occasionally raised concerning arrangements for lawyer-client division of work relate to the A.B.A. Model Code. See PROFESSIONAL RULES OF RESPONSIBILITY Rules 1.1, 1.2 (1993). The Wisconsin Commission on the Delivery of Legal Services may be recommending a symposium on the subject of "unbundling" in order to furnish a wide number of lawyers with a body of information to evaluate the merits and problems of "unbundling" legal services, especially judicial administration, risk management, and ethical issues involved. Final Draft of Subcommittee Recommendations (Jan. 24, 1996) (on file with the author).
129. See Labaton, supra note 12.
130. See Thomas Ross, The Rhetoric of Poverty: Their Immorality, Our Helplessness, 79 GEO. L.J. 1499 (1991) (describing the influence of the view of the poor as a marginal, morally weak, and undeserving group on decisions involving the poor).
131. An example is Centro Legal, a firm in Wisconsin that provides primarily family law representation to low-income Latinos by utilizing a nonprofit organization combined with a sliding-scale fee schedule. See CENTRO LEGAL 1994 ANNUAL REPORT.
132. Legal assistance is designated in the Older Americans Act (OAA) of 1965 as amended, as a priority service to be funded under Title III B, 42 U.S.C. § 3026(a)(2)(C).
133. Pub. L. No. 103-322, 108 Stat. 1807 (codified as amended in scattered sections of 16, 18, 28, and 42 U.S.C.).
134. See John A. Powell, Race and Poverty: A New Focus for Legal Services, 27 CLEARINGHOUSE REV. 299, 304-06 (1993) (arguing that LSC programs have failed to serve poor urban people of color through their delivery system).
135. Court awarded attorney fees are essential to the maintenance of the private consumer, civil rights, and environmental bar associations. See Benjamin A. Holden. Doing Well: A Law Firm Shows Civil Rights Can Be a Lucrative Business, WALL ST. J., June 10, 1993. at A1.
136. See Jane Schukoske. The Evolving Paradigm of Laws on Lead-Based Paint: From Code Violation to Environmental Hazard. 45 S.C. L. REV. 511 (1994).
137. Telephone Interview with CWAG Attorney, supra note 25.
138. See COUNCIL FOR PUBLIC INTEREST LAW, BALANCING THE SCALES OF JUSTICE: FINANCING PUBLIC INTEREST LAW IN AMERICA, 4 (1976); Robert W. Gordon & William H. Simon, The Redemption of Professionalism?, in LAWYERS' IDEALS / LAWYERS' PRACTICES: TRANSFORMATIONS OF THE AMERICAN LEGAL PROFESSION 230 (Nelson et al. eds., 1992): see also MODEL RULES OF PROFESSIONAL CONDUCT, Preamble, Rule 6.1 and cmt. (1993).
139. See COUNCIL FOR PUBLIC INTEREST LAW, BALANCING THE SCALES OF JUSTICE: FINANCING PUBLIC INTEREST LAW IN AMERICA, 4 (1976); Robert W. Gordon & William H. Simon, The Redemption of Professionalism?, in LAWYERS' IDEALS / LAWYERS' PRACTICES: TRANSFORMATIONS OF THE AMERICAN LEGAL PROFESSION 230 (Nelson et al. eds., 1992): see also MODEL RULES OF PROFESSIONAL CONDUCT, Preamble, Rule 6.1 and cmt. (1993).
140. See COUNCIL FOR PUBLIC INTEREST LAW, BALANCING THE SCALES OF JUSTICE: FINANCING PUBLIC INTEREST LAW IN AMERICA, 4 (1976); Robert W. Gordon & William H. Simon, The Redemption of Professionalism?, in LAWYERS' IDEALS / LAWYERS' PRACTICES: TRANSFORMATIONS OF THE AMERICAN LEGAL PROFESSION 230 (Nelson et al. eds., 1992): see also MODEL RULES OF PROFESSIONAL CONDUCT, Preamble, Rule 6.1 and cmt. (1993).
141. See Michelle Jacobs, Legal Professionalism: Do Ethical Rules Require Zealous Representation for Poor People? 8 ST. THOMAS L. REV. 97. 105-06 (1995) (describing the attack on traditional normative descriptions of lawyer's ethical role); Paul R. Trembley, Practical Moral Activism, 8 ST. THOMAS L. REV. 30, 45 (1995) (discussing tension between traditionalists and activist theories of ethical legal practice).
142. See Michelle Jacobs, Legal Professionalism: Do Ethical Rules Require Zealous Representation for Poor People? 8 ST. THOMAS L. REV. 97. 105-06 (1995) (describing the attack on traditional normative descriptions of lawyer's ethical role); Paul R. Trembley, Practical Moral Activism, 8 ST. THOMAS L. REV. 30, 45 (1995) (discussing tension between traditionalists and activist theories of ethical legal practice).
143. See Minna Kotkin, Professionalism, Gender and the Public Interest: The Advocacy of Protection, 8 ST. THOMAS L. REV. 157, 169 (1995) (discussing the change that feminist theory has made in women law students and their ideas of social change).
144. See generally Delgado & Stefancic, supra note 8, at 462-63 (1993).
145. See, e.g., Carrie Menkel-Meadow, Culture Clash in the Quality of Life in the Law: Changes in the Economics, Diversification, and Organization of Lawyering, 44 CASE W. RES. L. REV. 621, 637-43 (1994) (summarizing arguments that women and other excluded groups have impacted both substantive law and the organization and culture of legal practice). There are white male lawyers who embrace the feminist and critical race understandings. See Trubek & Kransberger, supra note 64, at 37.
146. See Menkel-Meadow, supra note 121, at 626.
147. A recent student paper in my class discussed interviews with minority LSC program lawyers. These lawyers expressed great dissatisfaction based both on low salaries and the disrespect given to their points of view of how to handle the cases. See also Menkel-Meadow, supra note 121, at 635.
148. See. e.g., Feldman, supra note 3, at 1562-67; Bellow & Charn, supra note 3, at 1644-45.
149. See Feldman, supra note 3, at 1571-72. But see Bellow & Charn, supra note 3, at 1644 (arguing that bar-affiliated leaders of legal service programs were in many ways reformist).
150. See Labaton, supra note 12.
151. See Schneyer, supra note 100. Schneyer discusses "ethical pluralism" in the development of the Model Rules of Professional Conduct in 1983. He indicates the role of various "practice" groups such as legal service lawyers and small-town practitioners in the development of bar rules and policies.
152. See supra notes 35-44 and accompanying text.
153. For example, nonlawyer practice could be regulated by a broad-based certifying system under the aegis of the state supreme courts. Other innovative concepts are malpractice coverage for nonattorneys that is easy to obtain and a system for client grievances against nonlawyers.
154. This concept is being proposed in Wisconsin and a bitter battle is under way between the LSC attorneys, other nonprofit law firms, and members of the Bar. See Minutes, Commission on the Delivery of Legal Services (Jan. 23, 1996) (on file with the author).
155. See Howard S. Erlanger et al., Law Student Idealism and Job Choice: Some New Data on an Old Question 12 (Oct. 1995) (unpublished manuscript, on file with author.)
156. Interview with Bob Seidel, Senior Lecturer, Cornell Law School, in Ithaca, N.Y. (Feb. 13, 1996). His recent survey indicates that approximately 20% of clinicians are financed by the U.S. Department of Education and Legal Services Corporation funding for law school clinics. This funding will be eliminated as of October 1996. There is great skepticism that any of these positions will be funded with permanent law school funding. Id.