Am I my client?: The role confusion of a lawyer activist

Harvard Civil Rights-Civil Liberties Law Review

Volumn 31, Issue 2, 1996, Pages 442-470

  Polikoff, Nancy D ^a  

^a AMERICAN UNIVERSITY   (United States)

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EID: 8344248668     PISSN: 00178039     EISSN: None     Source Type: Journal    
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References (91)

1. I include in the term "progressive lawyer" all those who use their legal skills to end poverty, racism, patriarchy, imperialism, and other impediments to social, economic, and political justice.
2. The specific demands of this national march were as follows: the passage of a federal lesbian and gay rights bill; an end to discrimination against people with AIDS, AIDS Related Complex (ARC), HIV-positive status, or those perceived to have AIDS: a massive increase in funding for AIDS education, research, and patient care; repeal of all laws that criminalize sodomy between consenting adults; a presidential order banning antigay discrimination by the federal government; legal recognition of lesbian and gay relationships; reproductive freedom, the right to control one's own body, and an end to sexist oppression; and an end to racism in this country and to apartheid in South Africa. See A Call to Action, in OUT AND OUTRAGED: NON-VIOLENT CIVIL DISOBEDIENCE AT THE U.S. SUPREME COURT, CIVIL DISOBEDIENCE HANDBOOK, NATIONAL MARCH ON WASHINGTON FOR LESBIAN AND GAY RIGHTS 7, 8 (Handbook Committee, National Lesbian and Gay Civil Disobedience Action ed., 1987).
3. One source estimated the number arrested to be 572. Karlyn Barker & Linda Wheeler, Gay Activists Arrested at High Court, WASH. POST, Oct. 14, 1987, at A1. Another put the number of people arrested to be between 600, the number given by police, and 840, the number given by organizers. Munyaradzi Chenje, Hundreds of Homosexuals Held in D.C., BALTIMORE SUN, Oct. 14, 1987, at 1A, 12A. According to a Supreme Court spokesperson, this march was the largest show of civil disobedience in Washington since the Vietnam War protest on May Day in 1971. Aaron Epstein, Gay Rights Protest Leads to 600 Arrests, PHILA. INQUIRER, Oct. 14, 1987, at 1A.
4. One source estimated the number arrested to be 572. Karlyn Barker & Linda Wheeler, Gay Activists Arrested at High Court, WASH. POST, Oct. 14, 1987, at A1. Another put the number of people arrested to be between 600, the number given by police, and 840, the number given by organizers. Munyaradzi Chenje, Hundreds of Homosexuals Held in D.C., BALTIMORE SUN, Oct. 14, 1987, at 1A, 12A. According to a Supreme Court spokesperson, this march was the largest show of civil disobedience in Washington since the Vietnam War protest on May Day in 1971. Aaron Epstein, Gay Rights Protest Leads to 600 Arrests, PHILA. INQUIRER, Oct. 14, 1987, at 1A.
5. One source estimated the number arrested to be 572. Karlyn Barker & Linda Wheeler, Gay Activists Arrested at High Court, WASH. POST, Oct. 14, 1987, at A1. Another put the number of people arrested to be between 600, the number given by police, and 840, the number given by organizers. Munyaradzi Chenje, Hundreds of Homosexuals Held in D.C., BALTIMORE SUN, Oct. 14, 1987, at 1A, 12A. According to a Supreme Court spokesperson, this march was the largest show of civil disobedience in Washington since the Vietnam War protest on May Day in 1971. Aaron Epstein, Gay Rights Protest Leads to 600 Arrests, PHILA. INQUIRER, Oct. 14, 1987, at 1A.
6. The reasons for engaging in civil disobedience were described in a vision statement printed in the civil disobedience action handbook: We gather October 13, 1987, at the Supreme Court in Washington, D.C. By its actions in Bowers v. Hardwick, the Court embraces a legacy of prejudice. The decision's immediate effects are obvious: having sex makes us criminals. What might be less obvious are its broader effects. This decision denies our humanity and subjects us to degradation, harassment, and violence. It hinders our struggle for basic civil rights, housing, health care, and employment. It makes it difficult, if not impossible, to retain custody of our children, and to provide foster and adoptive homes. By upholding repression against gay men and lesbians, the bigoted opinion of Justices White, Burger, Rehnquist, O'Connor, and Powell extends our country's most shameful legacy: its failure to support human dignity . . . . The Supreme Court will not stop our loving, living, struggling, and coming out. To be lesbian or gay in some states today is to be labeled a criminal and risk arrest; to openly acknowledge that identity is to commit civil disobedience, which is the open breaking of unjust laws. We challenge any law that denies us our humanity. We challenge any institution that contributes to that denial. We choose collective non-violent civil disobedience to demonstrate the anger and determination of our community. Vision Statement, in OUT AND OUTRAGED: NON-VIOLENT CIVIL DISOBEDIENCE AT THE U.S. SUPREME COURT, CIVIL DISOBEDIENCE HANDBOOK, NATIONAL MARCH ON WASHINGTON FOR LESBIAN AND GAY RIGHTS 2 (Handbook Committee, National Lesbian and Gay Civil Disobedience Action ed., 1987).
7. Although a few civil disobedience protests related to lesbian and gay rights and AIDS issues occurred prior to the 1987 Supreme Court action, the use of civil disobedience as a strategy escalated dramatically after the extensive publicity accorded the 1987 action. See, e.g., Paul Taylor, AIDS Guerrillas, NEW YORK, Nov. 12, 1990, at 62 (crediting ACT UP movement with spurring health organizations to increase the number of clinical trials of AIDS drugs and with bullying government agencies into appointing AIDS activists to advisory committees); see generally Dave Walter, Does Civil Disobedience Still Work?, ADVOC., Nov. 20, 1990, at 34 (chronicling civil disobedience actions that successfully lowered prices of the AIDS drug AZT and forced drug companies to include input of AIDS activists when designing research strategies). Sue Hyde, a staff member at the National Gay and Lesbian Task Force (NGLTF) at the time, described the impact and power of the Supreme Court protest in a postevaluation memo to the Civil Disobedience Organizing Committee: The single most significant outcome of the [civil disobedience] is that lesbians and gay men all over the country now consider civil disobedience to be a viable and legitimate political tactic. It has become a card in our hand to be played when we think we need it. And need it we will. Memorandum from Sue Hyde, Member, Legal/Support Committee & Team for the Oct. 17, 1987 Civil Disobedience at the Supreme Court to Civil Disobedience Organizing Committee, March on Washington (Jan. 7, 1988) (on file with author).
8. Although a few civil disobedience protests related to lesbian and gay rights and AIDS issues occurred prior to the 1987 Supreme Court action, the use of civil disobedience as a strategy escalated dramatically after the extensive publicity accorded the 1987 action. See, e.g., Paul Taylor, AIDS Guerrillas, NEW YORK, Nov. 12, 1990, at 62 (crediting ACT UP movement with spurring health organizations to increase the number of clinical trials of AIDS drugs and with bullying government agencies into appointing AIDS activists to advisory committees); see generally Dave Walter, Does Civil Disobedience Still Work?, ADVOC., Nov. 20, 1990, at 34 (chronicling civil disobedience actions that successfully lowered prices of the AIDS drug AZT and forced drug companies to include input of AIDS activists when designing research strategies). Sue Hyde, a staff member at the National Gay and Lesbian Task Force (NGLTF) at the time, described the impact and power of the Supreme Court protest in a postevaluation memo to the Civil Disobedience Organizing Committee: The single most significant outcome of the [civil disobedience] is that lesbians and gay men all over the country now consider civil disobedience to be a viable and legitimate political tactic. It has become a card in our hand to be played when we think we need it. And need it we will. Memorandum from Sue Hyde, Member, Legal/Support Committee & Team for the Oct. 17, 1987 Civil Disobedience at the Supreme Court to Civil Disobedience Organizing Committee, March on Washington (Jan. 7, 1988) (on file with author).
9. Although I had represented civil disobedience activists in other movements since the 1970s, I did not begin representing lesbian and gay protestors until the Supreme Court action in 1987.
10. See, e.g., DAVID A. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH (1991); DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT-CENTERED APPROACH (1977); Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 ARIZ. L. REV. 501-04 (1990).
11. See, e.g., DAVID A. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH (1991); DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT-CENTERED APPROACH (1977); Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 ARIZ. L. REV. 501-04 (1990).
12. See, e.g., DAVID A. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH (1991); DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT-CENTERED APPROACH (1977); Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 ARIZ. L. REV. 501-04 (1990).
13. See MORRIS DEES, A SEASON FOR JUSTICE: THE LIFE AND TIMES OF CIVIL RIGHTS LAWYER MORRIS DEES (1991) (describing the antiracist lawyering work of the Southern Poverty Law Center); THOMAS GEOGHEGAN, WHICH SIDE ARE You ON?: TRYING TO BE FOR LABOR WHEN IT'S FLAT ON ITS BACK (1992) (documenting Geoghegan's representation of activists within labor unions). Neither book reflects upon the lawyer-client relationship nor evidences that the lawyer has experienced any role confusion in his work. Professor Arthur Kinoy's autobiographical work does include the evolution of his own thoughts about the relationship between lawyers and a mass social movement. ARTHUR KINOY, RIGHTS ON TRIAL: THE ODYSSEY OF A PEOPLE'S LAWYER (1983). Even this highly recommended book, however, does not suggest that Kinoy grappled with the role confusion issues that I discuss in this Article.
14. See MORRIS DEES, A SEASON FOR JUSTICE: THE LIFE AND TIMES OF CIVIL RIGHTS LAWYER MORRIS DEES (1991) (describing the antiracist lawyering work of the Southern Poverty Law Center); THOMAS GEOGHEGAN, WHICH SIDE ARE You ON?: TRYING TO BE FOR LABOR WHEN IT'S FLAT ON ITS BACK (1992) (documenting Geoghegan's representation of activists within labor unions). Neither book reflects upon the lawyer-client relationship nor evidences that the lawyer has experienced any role confusion in his work. Professor Arthur Kinoy's autobiographical work does include the evolution of his own thoughts about the relationship between lawyers and a mass social movement. ARTHUR KINOY, RIGHTS ON TRIAL: THE ODYSSEY OF A PEOPLE'S LAWYER (1983). Even this highly recommended book, however, does not suggest that Kinoy grappled with the role confusion issues that I discuss in this Article.
15. See MORRIS DEES, A SEASON FOR JUSTICE: THE LIFE AND TIMES OF CIVIL RIGHTS LAWYER MORRIS DEES (1991) (describing the antiracist lawyering work of the Southern Poverty Law Center); THOMAS GEOGHEGAN, WHICH SIDE ARE You ON?: TRYING TO BE FOR LABOR WHEN IT'S FLAT ON ITS BACK (1992) (documenting Geoghegan's representation of activists within labor unions). Neither book reflects upon the lawyer-client relationship nor evidences that the lawyer has experienced any role confusion in his work. Professor Arthur Kinoy's autobiographical work does include the evolution of his own thoughts about the relationship between lawyers and a mass social movement. ARTHUR KINOY, RIGHTS ON TRIAL: THE ODYSSEY OF A PEOPLE'S LAWYER (1983). Even this highly recommended book, however, does not suggest that Kinoy grappled with the role confusion issues that I discuss in this Article.
16. In recent history, civil disobedience has been widely used by, among others, the civil rights movement, the anti-Vietnam War movement, the peace and disarmament movement, the Central America solidarity movement, and the student protest movement. A broad look at political lawyering in the 1960s and early 1970s, including representation of large numbers of people arrested in protest actions, is found in MARLISLE JAMES, THE PEOPLE'S LAWYERS (1973). James writes: In the midsixties the [National Lawyers Guild] actively began to organize law students. It became known as the legal arm of the movement. Soon, it started to handle directly each year thousands of cases connected with demonstrations against the war, racism, and poverty. And there were thousands of cases to handle as protest spread across the nation. In 1967, the first Guild mass defense office was set up to handle protest cases in New York City. Id. at xviii-xix. The book also describes the opening of the San Francisco regional office of the National Lawyers Guild in 1969 and its initial work representing hundreds of political protestors. Id. at 225-26. Although few of the lawyers described in the book discuss the role confusion issues or the lawyer-client relationship issues that are the heart of this Article, the book as a whole captures political lawyering at a particular historical moment and is an invaluable resource on the way that political lawyering can fit into a larger social change movement.
17. In recent history, civil disobedience has been widely used by, among others, the civil rights movement, the anti-Vietnam War movement, the peace and disarmament movement, the Central America solidarity movement, and the student protest movement. A broad look at political lawyering in the 1960s and early 1970s, including representation of large numbers of people arrested in protest actions, is found in MARLISLE JAMES, THE PEOPLE'S LAWYERS (1973). James writes: In the midsixties the [National Lawyers Guild] actively began to organize law students. It became known as the legal arm of the movement. Soon, it started to handle directly each year thousands of cases connected with demonstrations against the war, racism, and poverty. And there were thousands of cases to handle as protest spread across the nation. In 1967, the first Guild mass defense office was set up to handle protest cases in New York City. Id. at xviii-xix. The book also describes the opening of the San Francisco regional office of the National Lawyers Guild in 1969 and its initial work representing hundreds of political protestors. Id. at 225-26. Although few of the lawyers described in the book discuss the role confusion issues or the lawyer-client relationship issues that are the heart of this Article, the book as a whole captures political lawyering at a particular historical moment and is an invaluable resource on the way that political lawyering can fit into a larger social change movement.
18. In recent history, civil disobedience has been widely used by, among others, the civil rights movement, the anti-Vietnam War movement, the peace and disarmament movement, the Central America solidarity movement, and the student protest movement. A broad look at political lawyering in the 1960s and early 1970s, including representation of large numbers of people arrested in protest actions, is found in MARLISLE JAMES, THE PEOPLE'S LAWYERS (1973). James writes: In the midsixties the [National Lawyers Guild] actively began to organize law students. It became known as the legal arm of the movement. Soon, it started to handle directly each year thousands of cases connected with demonstrations against the war, racism, and poverty. And there were thousands of cases to handle as protest spread across the nation. In 1967, the first Guild mass defense office was set up to handle protest cases in New York City. Id. at xviii-xix. The book also describes the opening of the San Francisco regional office of the National Lawyers Guild in 1969 and its initial work representing hundreds of political protestors. Id. at 225-26. Although few of the lawyers described in the book discuss the role confusion issues or the lawyer-client relationship issues that are the heart of this Article, the book as a whole captures political lawyering at a particular historical moment and is an invaluable resource on the way that political lawyering can fit into a larger social change movement.
19. J.L. CHESTNUT, JR. & JULIA CASS, BLACK IN SELMA: THE UNCOMMON LIFE OF J.L. CHESTNUT, JR. (1990) [hereinafter CHESTNUT & CASS].
20. The lesbian activists to whom I refer are Urvashi Vaid and Jill Harris.
21. This incident is also a story of the separation caused by a lawyer's role as counselor rather than decision maker. See infra text accompanying notes 38-39.
22. See Marcia Slacum Greene, AIDS Activists March on the White House, WASH. POST, Oct. 1, 1991, at B2.
23. Early in this century, activists demonstrating on behalf of women's right to vote protested by chaining themselves to the White House fence. See INEZ HAYES IRWIN, THE STORY OF ALICE PAUL AND THE NATIONAL WOMEN'S PARTY 202-05 (1977).
24. One gay man arrested at the 1987 Supreme Court action described his experience as follows: "We were stood against the wall of the Court, frisked, photographed, cuffed in back, and put on buses. I knew I had volunteered for this, but it felt like being mugged." Robert Massa, The Importance of Being Arrested, VILLAGE VOICE, Oct. 27, 1987, at 17.
25. See infra part II.C.
26. MARTIN OPPENHEIMER & GEORGE LAKEY, A MANUAL FOR DIRECT ACTION 87, 111 (1965); Setting the Terms, in OUT AND OUTRAGED: NON-VIOLENT CIVIL DISOBEDIENCE AT THE U.S. SUPREME COURT, CIVIL DISOBEDIENCE HANDBOOK, NATIONAL MARCH ON WASHINGTON FOR LESBIAN AND GAY RIGHTS 6 (Handbook Committee. National Lesbian and Gay Civil Disobedience Action ed., 1987); Bob Warren, A Lawyer's Role in Civil Disobedience Actions: Paper Provided by the Southern Regional Steering Committee of the National Lawyers Guild 9-17 (unpublished manuscript, on file with author).
27. MARTIN OPPENHEIMER & GEORGE LAKEY, A MANUAL FOR DIRECT ACTION 87, 111 (1965); Setting the Terms, in OUT AND OUTRAGED: NON-VIOLENT CIVIL DISOBEDIENCE AT THE U.S. SUPREME COURT, CIVIL DISOBEDIENCE HANDBOOK, NATIONAL MARCH ON WASHINGTON FOR LESBIAN AND GAY RIGHTS 6 (Handbook Committee. National Lesbian and Gay Civil Disobedience Action ed., 1987); Bob Warren, A Lawyer's Role in Civil Disobedience Actions: Paper Provided by the Southern Regional Steering Committee of the National Lawyers Guild 9-17 (unpublished manuscript, on file with author).
28. MARTIN OPPENHEIMER & GEORGE LAKEY, A MANUAL FOR DIRECT ACTION 87, 111 (1965); Setting the Terms, in OUT AND OUTRAGED: NON-VIOLENT CIVIL DISOBEDIENCE AT THE U.S. SUPREME COURT, CIVIL DISOBEDIENCE HANDBOOK, NATIONAL MARCH ON WASHINGTON FOR LESBIAN AND GAY RIGHTS 6 (Handbook Committee. National Lesbian and Gay Civil Disobedience Action ed., 1987); Bob Warren, A Lawyer's Role in Civil Disobedience Actions: Paper Provided by the Southern Regional Steering Committee of the National Lawyers Guild 9-17 (unpublished manuscript, on file with author).
29. This interactive process can work. For example, one of the protestors at the 1987 Supreme Court civil disobedience who gave his name as Michael Hardwick - the gay man who challenged the constitutionality of Georgia's sodomy laws in Bowers v. Hardwick - asked a prison guard if he knew who Michael Hardwick was. The guard replied that he did not care, and, in response, another protestor told the guard that he should care because the Hardwick case affects everyone's bedroom privacy. "At that point Eileen [one of the guards] looked at the guard, then looked into our cell and quipped, 'Another well informed citizen!' I then saw a young female guard who was sitting next to Eileen lean over and ask who Michael Hardwick was. Eileen explained." Tim Sally, Leave It to a Bunch of Queens, in FOR LOVE, LIFE & LIBERATION: FIRST PERSON ACCOUNTS OF THE LESBIAN AND GAY NONVIOLENT CIVIL DISOBEDIENCE AT THE U.S. SUPREME COURT 27 (Markley Morris ed., 1989).
30. This phenomenon is by no means unique to lesbian and gay activists. In 1966, James Montgomery, a National Association for the Advancement of Colored People (NAACP) lawyer representing civil rights demonstrators in Chicago wrote: [W]e were at war. The power structure infiltrates the civil rights organizations, and there is a lot of distrust created. Some of the demonstrators don't even trust the lawyers to such secrets as the time and place of demonstrations. They had closed-door meetings barred to the press and lawyers. It sounds ridiculous, but it is true. This made our job much more difficult. James Montgomery, Defense Lawyers Meet Civil Rights Clients, 25 GUILD PRAC. 22, 24 (1966).
31. At the 1987 Supreme Court civil disobedience, some protestors gave false names upon arrest as a tribute to certain well-known lesbians and gay men. In addition to Michael Hardwick, among the names given were Harvey Milk (the gay San Francisco city supervisor shot and killed in 1978) and Sharon Kowalski (the disabled Minnesota lesbian whose parents prohibited her lover from having any contact with her). Baker & Wheeler, supra note 3, at A14.
32. This support work can consist of holding bail money and medicine, tracking individuals so that they are not lost in the penal system, and informing a wider circle of the arrested activist's friends and family of his or her status. See Nancy L. Aloch, Support, in OUT AND OUTRAGED: NON-VIOLENT CIVIL DISOBEDIENCE AT THE U.S. SUPREME COURT, CIVIL DISOBEDIENCE HANDBOOK. NATIONAL MARCH ON WASHINGTON FOR LESBIAN AND GAY RIGHTS 53-54 (Handbook Committee, National Lesbian and Gay Civil Disobedience Action ed., 1987).
33. I found only two references to this lawyering function in all of the accounts that I read. One woman lawyer describes this work for her women clients arrested during protests at the 1972 Republican National Convention. See HELENE E. SCHWARTZ, LAWYERING 229 (1976). Martin Luther King, Jr.'s letter from Birmingham jail was brought to the public's attention via his lawyer, Norman Amaker. See Norman C. Amaker, De Facto Leadership and the Civil Rights Movement: Perspective on the Problems and Role of Activists and Lawyers in Legal and Social Change, 16 S.U. L. REV. 1, 29 (1989).
34. I found only two references to this lawyering function in all of the accounts that I read. One woman lawyer describes this work for her women clients arrested during protests at the 1972 Republican National Convention. See HELENE E. SCHWARTZ, LAWYERING 229 (1976). Martin Luther King, Jr.'s letter from Birmingham jail was brought to the public's attention via his lawyer, Norman Amaker. See Norman C. Amaker, De Facto Leadership and the Civil Rights Movement: Perspective on the Problems and Role of Activists and Lawyers in Legal and Social Change, 16 S.U. L. REV. 1, 29 (1989).
35. CHESTNUT & CASS, supra note 10, at 183.
36. Id.
37. Id. at 183-84.
38. Id.
39. See id. at 184.
40. See Nancy D. Polikoff, Educating Judges about Lesbian and Gay Parenting: A Simulation, 1 LAW & SEXUALITY: A REV. LESBIAN & GAY LEGAL ISSUES 173 (1991). In this Article, I describe a judicial education program that exposed all District of Columbia judges to the legal and mental health issues involved in lesbian mother custody disputes. My participation in this program as a member of the planning committee was well received largely because many judges on the District of Columbia Superior Court had seen me in their courtrooms and because I had previously served with many of them on court committees examining a wide range of family law issues.
41. CHESTNUT & CASS, supra note 10, at 246.
42. Martin Luther King, Jr. was assassinated in 1968.
43. See CHESTNUT & CASS, supra note 10, at 245-46.
44. Id. at 246.
45. Id. at 246-47.
46. See id.
47. Id. at 248.
48. Arthur Kinoy's memoirs contain a poignant description of the need for political lawyers to feel connected to a movement. He writes the following passage with regard to the defense of Ethel and Julius Rosenberg, two Americans convicted of treason during the Cold War: When you are involved in a case of such intensity, you need something more fundamental than technical help and assistance. You need emotional support. You need companionship, comradeship, a feeling that other people and other lawyers support you and identify with you in the struggle. No matter how well you may understand, intellectually and politically, what is happening in the courtroom, you cannot avoid feeling the impact of the prosecution's attack. You need, just as much as do the political defendants, the strength which flows from the knowledge that others are standing with you in the inevitable moments of crisis.
49. See supra note 7.
50. Lawyers make this mistake even when they are not a part of the movement that their clients represent. Thirty years ago, Robert Treuhaft wrote about representing the student movement at the University of California: The lawyer has to distinguish very carefully between his role as a professional, a counselor, a barrister, and that of a participant, a tactical advisor, a strategist. There is a danger that these two roles will become confused or blend in his own mind . . . . [A]s I sat with [the student organizers] during negotiations . . . I learned a great deal about how important this separation of roles was, because I was certainly tempted to speak up very often on tactical questions . . . . Robert Treuhaft, Should the Lawyer Be At the Scene?, 25 GUILD PRAC. 1, 18 (1966). The likelihood of feeling entitled to speak on tactical and strategic questions is much greater when the lawyer is part of the same movement as are her clients. One example of a political lawyer's lack of adherence to a client-centered counseling model is found in DEES, supra note 8. Dees was representing a group of Vietnamese refugee fishermen against the Ku Klux Klan (KKK) in a lawsuit growing out of the KKK's violent harassment of the fishermen. A leader of the refugees came to Dees a week before a court hearing and told Dees that he and the elders of the community wanted to withdraw the suit because they feared repercussions. Rather than serving as a client-centered counselor, Dees responded by "trying to persuade them that it was in their interest to continue." Id. at 33. He went to a meeting of the elders and said, "Sometimes lawyers are called counselors. I'd like to give you my counsel tonight." Id. What he gave them was a speech about the Constitution and their obligation to fight for the rights of immigrants. He ended the speech with, "It's all up to you all." Id. at 34. The community decided to continue the lawsuit. Client-centered counseling in this situation would have taken the form of dialogue rather than a speech and would have focused on the clients' goals and the consequences, from the clients' perspective, of various courses of action.
51. Lawyers make this mistake even when they are not a part of the movement that their clients represent. Thirty years ago, Robert Treuhaft wrote about representing the student movement at the University of California: The lawyer has to distinguish very carefully between his role as a professional, a counselor, a barrister, and that of a participant, a tactical advisor, a strategist. There is a danger that these two roles will become confused or blend in his own mind . . . . [A]s I sat with [the student organizers] during negotiations . . . I learned a great deal about how important this separation of roles was, because I was certainly tempted to speak up very often on tactical questions . . . . Robert Treuhaft, Should the Lawyer Be At the Scene?, 25 GUILD PRAC. 1, 18 (1966). The likelihood of feeling entitled to speak on tactical and strategic questions is much greater when the lawyer is part of the same movement as are her clients. One example of a political lawyer's lack of adherence to a client-centered counseling model is found in DEES, supra note 8. Dees was representing a group of Vietnamese refugee fishermen against the Ku Klux Klan (KKK) in a lawsuit growing out of the KKK's violent harassment of the fishermen. A leader of the refugees came to Dees a week before a court hearing and told Dees that he and the elders of the community wanted to withdraw the suit because they feared repercussions. Rather than serving as a client-centered counselor, Dees responded by "trying to persuade them that it was in their interest to continue." Id. at 33. He went to a meeting of the elders and said, "Sometimes lawyers are called counselors. I'd like to give you my counsel tonight." Id. What he gave them was a speech about the Constitution and their obligation to fight for the rights of immigrants. He ended the speech with, "It's all up to you all." Id. at 34. The community decided to continue the lawsuit. Client-centered counseling in this situation would have taken the form of dialogue rather than a speech and would have focused on the clients' goals and the consequences, from the clients' perspective, of various courses of action.
52. Lawyers make this mistake even when they are not a part of the movement that their clients represent. Thirty years ago, Robert Treuhaft wrote about representing the student movement at the University of California: The lawyer has to distinguish very carefully between his role as a professional, a counselor, a barrister, and that of a participant, a tactical advisor, a strategist. There is a danger that these two roles will become confused or blend in his own mind . . . . [A]s I sat with [the student organizers] during negotiations . . . I learned a great deal about how important this separation of roles was, because I was certainly tempted to speak up very often on tactical questions . . . . Robert Treuhaft, Should the Lawyer Be At the Scene?, 25 GUILD PRAC. 1, 18 (1966). The likelihood of feeling entitled to speak on tactical and strategic questions is much greater when the lawyer is part of the same movement as are her clients. One example of a political lawyer's lack of adherence to a client-centered counseling model is found in DEES, supra note 8. Dees was representing a group of Vietnamese refugee fishermen against the Ku Klux Klan (KKK) in a lawsuit growing out of the KKK's violent harassment of the fishermen. A leader of the refugees came to Dees a week before a court hearing and told Dees that he and the elders of the community wanted to withdraw the suit because they feared repercussions. Rather than serving as a client-centered counselor, Dees responded by "trying to persuade them that it was in their interest to continue." Id. at 33. He went to a meeting of the elders and said, "Sometimes lawyers are called counselors. I'd like to give you my counsel tonight." Id. What he gave them was a speech about the Constitution and their obligation to fight for the rights of immigrants. He ended the speech with, "It's all up to you all." Id. at 34. The community decided to continue the lawsuit. Client-centered counseling in this situation would have taken the form of dialogue rather than a speech and would have focused on the clients' goals and the consequences, from the clients' perspective, of various courses of action.
53. Lawyers make this mistake even when they are not a part of the movement that their clients represent. Thirty years ago, Robert Treuhaft wrote about representing the student movement at the University of California: The lawyer has to distinguish very carefully between his role as a professional, a counselor, a barrister, and that of a participant, a tactical advisor, a strategist. There is a danger that these two roles will become confused or blend in his own mind . . . . [A]s I sat with [the student organizers] during negotiations . . . I learned a great deal about how important this separation of roles was, because I was certainly tempted to speak up very often on tactical questions . . . . Robert Treuhaft, Should the Lawyer Be At the Scene?, 25 GUILD PRAC. 1, 18 (1966). The likelihood of feeling entitled to speak on tactical and strategic questions is much greater when the lawyer is part of the same movement as are her clients. One example of a political lawyer's lack of adherence to a client-centered counseling model is found in DEES, supra note 8. Dees was representing a group of Vietnamese refugee fishermen against the Ku Klux Klan (KKK) in a lawsuit growing out of the KKK's violent harassment of the fishermen. A leader of the refugees came to Dees a week before a court hearing and told Dees that he and the elders of the community wanted to withdraw the suit because they feared repercussions. Rather than serving as a client-centered counselor, Dees responded by "trying to persuade them that it was in their interest to continue." Id. at 33. He went to a meeting of the elders and said, "Sometimes lawyers are called counselors. I'd like to give you my counsel tonight." Id. What he gave them was a speech about the Constitution and their obligation to fight for the rights of immigrants. He ended the speech with, "It's all up to you all." Id. at 34. The community decided to continue the lawsuit. Client-centered counseling in this situation would have taken the form of dialogue rather than a speech and would have focused on the clients' goals and the consequences, from the clients' perspective, of various courses of action.
54. Martha Minow, Breaking the Law: Lawyers and Clients in Struggles for Social Change, 52 U. PITT. L. REV. 723, 747 (1991).
55. Andrew W. McThenia, Jr., Civil Resistance or Holy Obedience? Reflections from Within a Community of Resistance, 48 WASH. & LEE L. REV. 15 (1991).
56. Id. at 28 n.50.
57. See supra part I.A.
58. LEN HOLT, AN ACT OF CONSCIENCE 43 (1965).
59. See supra notes 3-5 and accompanying text.
60. For example, during the 1987 Supreme Court civil disobedience, the D.C. Superior Court, which does not normally hold evening or night hours, ran three arraignment courtrooms until 2:15 a.m. in a futile attempt to process all the cases. See Lou Chibbaro, Jr., Largest Arrest Protest at Supreme Court, WASH. BLADE, Oct. 16, 1987, at 17.
61. Warren, supra note 17.
62. Id.
63. See Barbara Deming, Non-cooperation, in OUT AND OUTRAGED: NON-VIOLENT CIVIL DISOBEDIENCE AT THE U.S. SUPREME COURT, CIVIL DISOBEDIENCE HANDBOOK, NATIONAL MARCH ON WASHINGTON FOR LESBIAN AND GAY RIGHTS 58 (Handbook Committee, National Lesbian and Gay Civil Disobedience Action ed., 1987).
64. Perhaps the earliest known example of a lawyer overriding the choices of a civil disobedience client involved activist Susan B. Anthony in 1872. Anthony was arrested while attempting to register to vote and was subsequently convicted. She wished to stay in jail pending appeal. This course of action was part of the National Woman Suffrage Association's strategy both to obtain a hearing before the nation's highest court and to generate the publicity that Anthony's remaining in jail would provide. Her lawyer, Albert G. Riddle, a former member of Congress and long-time supporter of women's suffrage, paid Anthony's fine in direct violation of her wishes because he could not tolerate a "lady" remaining in jail. See KAREN O'CONNOR, WOMEN'S ORGANIZATIONS' USE OF THE COURTS 44-45 (1980).
65. There were numerous complaints about the lawyers' handling of the arrests. Protestors consistently reported to me and others that lawyers did not listen to them. In fact, the protestors claim that the lawyers were so distressed by the number of arrests that they were sometimes screaming. Observing the lawyers in this dysfunctional state made those behind bars feel more out of control. One commented: "Keep those stressed out lawyers out!" Lawyers were disrespectful, talking to, rather than with, their clients. One story, retold many times, concerned a lawyer who entered the holding area screaming, "Listen up, listen up!" This lawyer proceeded to pepper the captive audience with information and then walked out without answering questions or talking with anyone.
66. An affinity group is a small unit of demonstrators within the larger civil disobedience action that agrees as to which specific issues the group intends to stress and which particular actions their unit will take. Affinity groups serve as a source of support and help protect against infiltration by outsiders. See Affinity Groups, in OUT AND OUTRAGED: NON-VIOLENT CIVIL DISOBEDIENCE AT THE U.S. SUPREME COURT, CIVIL DISOBEDIENCE HANDBOOK. NATIONAL MARCH ON WASHINGTON FOR LESBIAN AND GAY RIGHTS 55 (Handbook Committee, National Lesbian and Gay Civil Disobedience Action ed., 1987).
67. I was aware of the stories of butch lesbians arrested in the bar raids of the 1950s and 1960s who were singled out for special humiliation by the police. See Leslie Feinberg, Letter to a Fifties Femme from a Stone Butch, in THE PERSISTENT DESIRE: A FEMME-BUTCH READER 102-08 (Joan Nestle ed., 1992); ELIZABETH LAPOVSKY KENNEDY & MADELINE D. DAVIS, BOOTS OF LEATHER, SLIPPERS OF GOLD: THE HISTORY OF A LESBIAN COMMUNITY (1993).
68. I was aware of the stories of butch lesbians arrested in the bar raids of the 1950s and 1960s who were singled out for special humiliation by the police. See Leslie Feinberg, Letter to a Fifties Femme from a Stone Butch, in THE PERSISTENT DESIRE: A FEMME-BUTCH READER 102-08 (Joan Nestle ed., 1992); ELIZABETH LAPOVSKY KENNEDY & MADELINE D. DAVIS, BOOTS OF LEATHER, SLIPPERS OF GOLD: THE HISTORY OF A LESBIAN COMMUNITY (1993).
69. In particular, the activists argued that the new definition did not address the special needs of women and intravenous drug abusers. See Nick Bartolomeo, ACT UP Action Called 'Act of Violence'Against Community, WASH. BLADE, Feb. 28, 1992, at 11.
70. See Lisa M. Keen, New Demo Twist: Activists Handcuffing Activists, WASH. BLADE, Mar. 13, 1992, at 19.
71. See id.
72. See Bartolomeo, supra note 53, at 11.
73. One of the ACT UP activists stated that the action was intended to make the advocates "psychically uncomfortable." ACT UP organizer Tracy Morgan reported that "[t]here was no threat of physical violence. People felt psychic violence and were uncomfortable about that. But that was our point: If you're going ahead with the meeting at least we'll make you feel psychically uncomfortable. They needed to feel the pressure - that was the point of the handcuffs. We were saying, 'If you don't have a conscience, we're your conscience. We're your ball and chain.'" Keen, supra note 54, at 19.
74. Id.
75. Organizer Tracy Morgan noted: "The message with [Vaid] would be that we're not illegitimate. Our demands have more weight behind them . . . . We expected she would give us credibility." Id.
76. Id.
77. Telephone Interview with Urvashi Vaid, Executive Director of NGLTF (Aug. 1, 1992).
78. I intentionally decline to embark upon a detailed, rule-bound analysis of whether Vaid's midaction withdrawal violated her obligations under the District of Columbia Rules of Professional Conduct. Briefly, it appears that withdrawal under these circumstances would be permitted because the handcuffing would be "a course of action involving the lawyer's services that the lawyer reasonably believes is criminal." D.C. RULES OF PROFESSIONAL CONDUCT Rule 1.16(b)(1) (1995). Ironically, other rules of conduct appear to question the propriety of any lawyer supportively counseling activists who engage in civil disobedience, which is by definition illegal activity. For example, the D.C. Rules of Professional Conduct state that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal," and that a lawyer should limit her role to "discuss[ing] the legal consequences of any proposed course of conduct . . . ." Id. at Rule 1.2(c). Civil disobedience representation in light of rules of professional conduct or professional responsibility has been discussed and analyzed in several articles. See, e.g., Kathryn Abrams, Lawyers and Social Change Lawbreaking: Confronting a Plural Bar, 52 U. PITT. L. REV. 753 (1991); Lindsey Cowen, The Lawyer's Role in Civil Disobedience, 47 N.C. L. REV. 587 (1969); Charles R. DiSalvo, The Fracture of Good Order: An Argument for Allowing Lawyers to Counsel the Civilly Disobedient, 17 GA. L. REV. 109 (1982); L. Harold Levinson, To a Young Lawyer: Thoughts on Disobedience, 50 Mo. L. REV. 483 (1985); David Luban, Conscientious Lawyers for Conscientious Lawbreakers, 52 U. PITT. L. REV. 793 (1991).
79. I intentionally decline to embark upon a detailed, rule-bound analysis of whether Vaid's midaction withdrawal violated her obligations under the District of Columbia Rules of Professional Conduct. Briefly, it appears that withdrawal under these circumstances would be permitted because the handcuffing would be "a course of action involving the lawyer's services that the lawyer reasonably believes is criminal." D.C. RULES OF PROFESSIONAL CONDUCT Rule 1.16(b)(1) (1995). Ironically, other rules of conduct appear to question the propriety of any lawyer supportively counseling activists who engage in civil disobedience, which is by definition illegal activity. For example, the D.C. Rules of Professional Conduct state that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal," and that a lawyer should limit her role to "discuss[ing] the legal consequences of any proposed course of conduct . . . ." Id. at Rule 1.2(c). Civil disobedience representation in light of rules of professional conduct or professional responsibility has been discussed and analyzed in several articles. See, e.g., Kathryn Abrams, Lawyers and Social Change Lawbreaking: Confronting a Plural Bar, 52 U. PITT. L. REV. 753 (1991); Lindsey Cowen, The Lawyer's Role in Civil Disobedience, 47 N.C. L. REV. 587 (1969); Charles R. DiSalvo, The Fracture of Good Order: An Argument for Allowing Lawyers to Counsel the Civilly Disobedient, 17 GA. L. REV. 109 (1982); L. Harold Levinson, To a Young Lawyer: Thoughts on Disobedience, 50 Mo. L. REV. 483 (1985); David Luban, Conscientious Lawyers for Conscientious Lawbreakers, 52 U. PITT. L. REV. 793 (1991).
80. I intentionally decline to embark upon a detailed, rule-bound analysis of whether Vaid's midaction withdrawal violated her obligations under the District of Columbia Rules of Professional Conduct. Briefly, it appears that withdrawal under these circumstances would be permitted because the handcuffing would be "a course of action involving the lawyer's services that the lawyer reasonably believes is criminal." D.C. RULES OF PROFESSIONAL CONDUCT Rule 1.16(b)(1) (1995). Ironically, other rules of conduct appear to question the propriety of any lawyer supportively counseling activists who engage in civil disobedience, which is by definition illegal activity. For example, the D.C. Rules of Professional Conduct state that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal," and that a lawyer should limit her role to "discuss[ing] the legal consequences of any proposed course of conduct . . . ." Id. at Rule 1.2(c). Civil disobedience representation in light of rules of professional conduct or professional responsibility has been discussed and analyzed in several articles. See, e.g., Kathryn Abrams, Lawyers and Social Change Lawbreaking: Confronting a Plural Bar, 52 U. PITT. L. REV. 753 (1991); Lindsey Cowen, The Lawyer's Role in Civil Disobedience, 47 N.C. L. REV. 587 (1969); Charles R. DiSalvo, The Fracture of Good Order: An Argument for Allowing Lawyers to Counsel the Civilly Disobedient, 17 GA. L. REV. 109 (1982); L. Harold Levinson, To a Young Lawyer: Thoughts on Disobedience, 50 Mo. L. REV. 483 (1985); David Luban, Conscientious Lawyers for Conscientious Lawbreakers, 52 U. PITT. L. REV. 793 (1991).
81. I intentionally decline to embark upon a detailed, rule-bound analysis of whether Vaid's midaction withdrawal violated her obligations under the District of Columbia Rules of Professional Conduct. Briefly, it appears that withdrawal under these circumstances would be permitted because the handcuffing would be "a course of action involving the lawyer's services that the lawyer reasonably believes is criminal." D.C. RULES OF PROFESSIONAL CONDUCT Rule 1.16(b)(1) (1995). Ironically, other rules of conduct appear to question the propriety of any lawyer supportively counseling activists who engage in civil disobedience, which is by definition illegal activity. For example, the D.C. Rules of Professional Conduct state that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal," and that a lawyer should limit her role to "discuss[ing] the legal consequences of any proposed course of conduct . . . ." Id. at Rule 1.2(c). Civil disobedience representation in light of rules of professional conduct or professional responsibility has been discussed and analyzed in several articles. See, e.g., Kathryn Abrams, Lawyers and Social Change Lawbreaking: Confronting a Plural Bar, 52 U. PITT. L. REV. 753 (1991); Lindsey Cowen, The Lawyer's Role in Civil Disobedience, 47 N.C. L. REV. 587 (1969); Charles R. DiSalvo, The Fracture of Good Order: An Argument for Allowing Lawyers to Counsel the Civilly Disobedient, 17 GA. L. REV. 109 (1982); L. Harold Levinson, To a Young Lawyer: Thoughts on Disobedience, 50 Mo. L. REV. 483 (1985); David Luban, Conscientious Lawyers for Conscientious Lawbreakers, 52 U. PITT. L. REV. 793 (1991).
82. I intentionally decline to embark upon a detailed, rule-bound analysis of whether Vaid's midaction withdrawal violated her obligations under the District of Columbia Rules of Professional Conduct. Briefly, it appears that withdrawal under these circumstances would be permitted because the handcuffing would be "a course of action involving the lawyer's services that the lawyer reasonably believes is criminal." D.C. RULES OF PROFESSIONAL CONDUCT Rule 1.16(b)(1) (1995). Ironically, other rules of conduct appear to question the propriety of any lawyer supportively counseling activists who engage in civil disobedience, which is by definition illegal activity. For example, the D.C. Rules of Professional Conduct state that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal," and that a lawyer should limit her role to "discuss[ing] the legal consequences of any proposed course of conduct . . . ." Id. at Rule 1.2(c). Civil disobedience representation in light of rules of professional conduct or professional responsibility has been discussed and analyzed in several articles. See, e.g., Kathryn Abrams, Lawyers and Social Change Lawbreaking: Confronting a Plural Bar, 52 U. PITT. L. REV. 753 (1991); Lindsey Cowen, The Lawyer's Role in Civil Disobedience, 47 N.C. L. REV. 587 (1969); Charles R. DiSalvo, The Fracture of Good Order: An Argument for Allowing Lawyers to Counsel the Civilly Disobedient, 17 GA. L. REV. 109 (1982); L. Harold Levinson, To a Young Lawyer: Thoughts on Disobedience, 50 Mo. L. REV. 483 (1985); David Luban, Conscientious Lawyers for Conscientious Lawbreakers, 52 U. PITT. L. REV. 793 (1991).
83. I intentionally decline to embark upon a detailed, rule-bound analysis of whether Vaid's midaction withdrawal violated her obligations under the District of Columbia Rules of Professional Conduct. Briefly, it appears that withdrawal under these circumstances would be permitted because the handcuffing would be "a course of action involving the lawyer's services that the lawyer reasonably believes is criminal." D.C. RULES OF PROFESSIONAL CONDUCT Rule 1.16(b)(1) (1995). Ironically, other rules of conduct appear to question the propriety of any lawyer supportively counseling activists who engage in civil disobedience, which is by definition illegal activity. For example, the D.C. Rules of Professional Conduct state that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal," and that a lawyer should limit her role to "discuss[ing] the legal consequences of any proposed course of conduct . . . ." Id. at Rule 1.2(c). Civil disobedience representation in light of rules of professional conduct or professional responsibility has been discussed and analyzed in several articles. See, e.g., Kathryn Abrams, Lawyers and Social Change Lawbreaking: Confronting a Plural Bar, 52 U. PITT. L. REV. 753 (1991); Lindsey Cowen, The Lawyer's Role in Civil Disobedience, 47 N.C. L. REV. 587 (1969); Charles R. DiSalvo, The Fracture of Good Order: An Argument for Allowing Lawyers to Counsel the Civilly Disobedient, 17 GA. L. REV. 109 (1982); L. Harold Levinson, To a Young Lawyer: Thoughts on Disobedience, 50 Mo. L. REV. 483 (1985); David Luban, Conscientious Lawyers for Conscientious Lawbreakers, 52 U. PITT. L. REV. 793 (1991).
84. I intentionally decline to embark upon a detailed, rule-bound analysis of whether Vaid's midaction withdrawal violated her obligations under the District of Columbia Rules of Professional Conduct. Briefly, it appears that withdrawal under these circumstances would be permitted because the handcuffing would be "a course of action involving the lawyer's services that the lawyer reasonably believes is criminal." D.C. RULES OF PROFESSIONAL CONDUCT Rule 1.16(b)(1) (1995). Ironically, other rules of conduct appear to question the propriety of any lawyer supportively counseling activists who engage in civil disobedience, which is by definition illegal activity. For example, the D.C. Rules of Professional Conduct state that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal," and that a lawyer should limit her role to "discuss[ing] the legal consequences of any proposed course of conduct . . . ." Id. at Rule 1.2(c). Civil disobedience representation in light of rules of professional conduct or professional responsibility has been discussed and analyzed in several articles. See, e.g., Kathryn Abrams, Lawyers and Social Change Lawbreaking: Confronting a Plural Bar, 52 U. PITT. L. REV. 753 (1991); Lindsey Cowen, The Lawyer's Role in Civil Disobedience, 47 N.C. L. REV. 587 (1969); Charles R. DiSalvo, The Fracture of Good Order: An Argument for Allowing Lawyers to Counsel the Civilly Disobedient, 17 GA. L. REV. 109 (1982); L. Harold Levinson, To a Young Lawyer: Thoughts on Disobedience, 50 Mo. L. REV. 483 (1985); David Luban, Conscientious Lawyers for Conscientious Lawbreakers, 52 U. PITT. L. REV. 793 (1991).
85. Perhaps somewhat ironically, Vaid's own tactics have at times been controversial within the gay and lesbian movement. In March 1990, while serving as executive director of the NGLTF, she interrupted President George Bush during a press conference by waving a placard and shouting. She was forcibly removed from the room. Some in the gay and lesbian community believed that she had gone too far and that her action had harmed rather than helped the movement. See Keen, supra note 54.
86. Before joining the staff of the NGLTF in 1986, first as public information director and then as executive director, Vaid was a staff attorney at the ACLU National Prison Project, the primary focus of which is large test case litigation. See URVASHI VAID, VIRTUAL EQUALITY XV (1995).
87. CHESTNUT & CASS, supra note 10, at 191.
88. Amaker, supra note 22, at 25.
89. After a black woman, recently elected to be tax collector, was killed in a car accident, the county commission appointed the new tax collector. Instead of appointing the widower of the person who had been elected, as was customary, the commission chose to appoint a white man. This protest ensued. CHESTNUT & CASS, supra note 10, at 370.
90. Id.
91. See McThenia, supra note 40, at 16 (describing the author's participation in a civil disobedience campaign against the coal mining Pittston Company in Virginia in 1989). I made the decision in April 1989 to be arrested at an action on the steps of the Supreme Court in support of full reproductive rights for women. I looked forward to this protest action as an opportunity to shed my lawyer role. At the last minute, however, the organizers prevailed upon me to serve as their lawyer, and I agreed. For a general description of the protest, see Abortion Issue Argued Outside High Court, Too, WASH. POST, Apr. 27, 1989, at A15.