Negotiating Justice

Progressive Lawyering, Low-Income Clients, and the Quest for Social Change

Corey S. Shdaimah

• Publisher: NYU Press
• Year: 2009
• ISBN:
  9780814708514
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

While many young people become lawyers for the big bucks, others are motivated by the pursuit of social justice, seeking to help people for whom legal services are financially, socially, or politically inaccessible. These progressive lawyers often bring a considerable degree of idealism to their work, and many leave the field due to insurmountable red tape and spiraling disillusionment. But what about those who stay? And what do their clients think? Negotiating Justice explores how progressive lawyers and their clients negotiate the dissonance between personal idealism and the realities of a system that doesn't often champion the rights of the poor.

Corey S. Shdaimah draws on over fifty interviews with urban legal service lawyers and their clients to provide readers with a compelling behind-the-scenes look at how different notions of practice can present significant barriers for both clients and lawyers working with limited resources, often within a legal system that many view as fundamentally unequal or hostile. Through consideration of the central themes of progressive lawyering—autonomy, collaboration, transformation, and social change—Shdaimah presents a subtle and complex tableau of the concessions both lawyers and clients often have to make as they navigate the murky and resistant terrains of the legal system and their wider pursuits of justice and power.

1 Clients and Lawyers

I mean, am I changing the world? No. But the revolution still isn’t happening and at some basic level this office, legal aid programs and myself personally make a difference in people’s lives … on basic bread and butter issues. … [T]here are people in this office … who have a lot of trouble … that we’re playing at the margins, that we are not fermenting the revolution. And we’re not. We’re not. We really are not. And that’s fine. I mean I can live with it. But no, I love this job, this is a great job. And we do make a difference, both individually and on issues that affect our client population. And but for the work we did, things would be considerably worse for our clients.

—Steve, a Northeast Legal Services lawyer

I just think that when you got certain stuff that you’re not clear about, you get a professional to handle it, so that is what I did. … It’s a process that’s not a familiar process for most people. And it’s something that a professional should handle. There’s no way in this world I would go and file legal proceedings and not know what I’m doing.

—Dara, a NELS client

A one-page flyer, written in both English and Spanish, distributed by Northeast Legal Services (NELS), opens with a heading in large print: “Do you have a LEGAL problem or question? We want to help you!” NELS is a nonprofit legal services organization with a centrally located main office and one neighborhood branch office serving a large urban center. Its flyer offers assistance for questions as well as problems. It does, however, require that clients understand their problem to be a legal one, and might deter those who are unsure if their case meets this criterion (see chapter 4). This flyer, as well as NELS’s website that contains a similar message (but does not emphasize the legal aspects), both note that assistance is available in other languages but explain that this might not be immediately available:

Note to people who do not speak English: We are committed to serving you, but have few regular staff members who speak languages other than English or Spanish. If possible, please have a friend or family member come with you for your first visit, or call in advance so that we can make sure an interpreter is available.

NELS is committed to assisting non-English-speaking Northeast City residents through a language access project. NELS reports serving clients who speak Arabic, Cambodian, Cantonese, Creole, English, French, German, Italian, Korean, Laotian, Mandarin, Polish, Portuguese, Russian, Sign Language, Spanish, and Vietnamese.

Flyers are distributed when NELS does community outreach and, in some cases, NELS contact information is provided by local government agencies. For example, Northeast City’s child protective services inform legal guardians that they can seek representation from NELS, as do appeal forms for Social Security Disability Insurance. In some cases, clients are referred through the court system, including many of the family advocacy clients. Most clients, however, must go through a screening process.

Each unit has its own intake process. Some units (such as the housing unit) have telephone intake, and others (such as the elderly law unit) go to centers where potential clients congregate. NELS’s intake generally requires a potential client to come to their offices. At one time NELS had up to six neighborhood offices, but these were reduced due to funding cuts. The lack of neighborhood presence is a burden for clients who often have to travel far on public transportation, or who may have disabilities or may be caring for other family members. Martin, a NELS lawyer, remarks that when NELS reduced its number of neighborhood offices, it tried to minimize this concern by increasing telephone intake:

When I started working here we had five offices, so there were four neighborhood offices and then the midtown office. So it was easier for people to get in to see NELS, just physically easier. Now we only have two offices. And when we did, I think we tended to allow more phone intake program-wide. The preferred method I still think, for most units, is for walk-in intake.

Walk-in intake is conducted during limited hours; particular units do intake on particular days. Janet, a client, said that NELS did not help her over the phone: “No, they just said you have to go down there, they didn’t really help me on the telephone. They said you just have to go down between such and such days, such and such hours.” Clients who inquire over the phone are given the office’s hours of operation. Clients who arrive at undesignated times are turned away and told to return during intake hours. There is also a general walk-in intake every day from 9 a.m. to 12 noon at the main office, and only on Monday, Wednesday, and Friday from 9 to 12 at the neighborhood office. Clients who arrive at the correct time and day wait to be called. As Janet explains:

Yeah. You just walk in, you fill out the forms. You go back and you talk to another lady doing intake and then she’s the one referred me to Steve. … I was there most of the day … I waited quite a while before I got, before I was seen. In fact I remember I was falling asleep [laughs]! But then when I had an appointment, I didn’t wait. But just the first initial time, I waited a long time.

Waiting time varies, although clients at the neighborhood office were more likely to complain of lengthy wait times. Elizabeth, who sought services at both offices, made the comparison: “No. I didn’t have to wait a long time [at the main office]. That was good. Now [at the branch office]! I had to wait about a hour, 2 hours. I waited a long time. They don’t see people after 12 o’clock. Lot of people in there.” As Janet indicates, once a person goes through the intake process and becomes a client, she then schedules appointments with the individual paralegal or attorney handling the case and does not have to wait.

Lawyers and paralegals in most units participate in the intake process. They determine which cases are eligible based on a variety of criteria that include client’s income and the area of law involved. Clients come to NELS in a variety of ways, and each unit has its own guidelines for interviewing clients and determining whether or not they will take on cases beyond NELS’s universal income eligibility requirements. Some call lawyers directly. Other clients are referred by social service agencies, other public interest law organizations, or, in the case of the family division, by the courts. My client sample includes people who enlisted the assistance of NELS via each of these routes.

NELS does not accept all clients who apply for assistance. According to e-mail correspondence with its director:

The truth about eligibility decisions is that they vary depending on the unit’s situation … how many other cases came in recently and how swamped we are, along with an evaluation of the merits and likelihood of success, our expertise, time it will take, impact for the greater client community of handling this, etc. Some places are much better than we at putting those variables into writing … but they do change so often, that we do it on an ongoing basis, usually at unit meetings. But then there is the hard rule on certain cases … no one over the income limit, no Social Security insurance cases, because the private bar will do them, no divorces … because they’re not seen as urgent and they can be done by private attorneys very cheaply, no employment discrimination (which we used to do) because they are so immense for one person’s benefit, etc. Of course, tho I say those are “hard” rules, even they could be broken if there is an exceptional situation.

Selection criteria have been discussed in the literature and came up regularly in my conversations with clients and lawyers. I will discuss them further in chapter 6.

Legal services programs are not all of a piece.¹ With approximately 100 employees that include administrators, lawyers, paralegals, and social workers, NELS is one of the largest public interest organizations in a city with quite a few. It is well integrated in a collaborative and diverse public interest law community. From its inception, it kept close ties with local law schools and a wide variety of community organizations. NELS is a highly regarded, sought-after public interest law practice. Pete, a lawyer in the benefits unit, was attracted not only by the prestige and reputation, but by the caliber of the legal work that came out of NELS and the opportunity to work with highly qualified professionals:

When I made the move over to NELS, uh, we have, you know, without being like a braggart, you know, one of the top welfare practices in the country in terms of the collection of critical mass of people who have been doing this for a long time that have, you know, experience and perspective and who are really hard-working and thoughtful and, um, it’s a very unique organization. It serves both this kind of like a traditional, you know, neighborhood law center in the sense that we do individual cases but we also are for all intents and purposes a state and in some ways a national back-up center.²

While NELS engages in both individual and impact work, most lawyers have large caseloads and constant client interaction, in keeping with its legal services mission “[t]o help low-income residents obtain justice by providing them advice and representation in civil legal matters, advocating for their legal rights and conducting community education about legal services.” NELS has a number of operational divisions. These address either substantive legal issues such as Social Security benefits, employment or housing; or serve particular populations such as those in need of language assistance or the elderly. Participants in this study represented lawyers and clients from most of NELS’s units.

All clients must meet NELS’s means test of having an income of no more than 125 percent of the federal poverty line.³ With management approval, NELS also accepts clients “with exceptional expenses or circumstances” whose incomes go up to 187.5 percent of the federal poverty line. An example of such a case provided by a NELS intake supervisor was a client who recently found employment, making him ineligible for services, but who had previously been unemployed and still had a high level of debt. In short, all clients experience some level of financial and social distress. In 2006, NELS handled nearly 17,000 cases. The number of people assisted in some way exceeds this, however, as a NELS administrator explained: “This number excludes many brief encounters where legal advice was dispensed, such as brief phone calls from individuals, other practitioners, or social service providers seeking our assistance.”

The Research Site: Northeast Legal Services

The Founding of Northeast Legal Services

The city that I call Northeast City⁴ is a de-industrialized urban center. Like many similar cities, it suffered a loss of well-paid blue-collar jobs and outward migration to the suburbs of the more affluent citizens over the last few decades. Today, Northeast City contains a core of struggling older communities, where a significant portion of the residents endure high rates of unemployment, violent crime, inadequate housing, underresourced public schools, and areas with high concentrations of extreme poverty. These communities have disproportionate numbers of minority residents, female-headed households, and immigrants. The central business district of the city is vibrant, and a number of poor neighborhoods are undergoing a process of gentrification that is encouraged by Northeast City’s government. Community groups and housing advocates claim that this has made housing even less affordable for Northeast City’s poorest residents and has had a deleterious effect on communities.

NELS was formed in the mid-1960s, a time when legal services programs were started around the country and legal services careers enjoyed a surge of popularity. Lawyers influenced by social and intellectual changes sought to create a different kind of legal assistance to the poor. At that time, critiques of traditional legal aid bureaus and offices abounded, and a new kind of lawyering for the poor was championed. The critiques decried the conventional stance of legal aid as disempowering. They also criticized the narrow provision of particular (and very limited) types of legal services and the limited pool of clients that, according to the critics, was based on inaccurate and self-serving determinations of deservedness. These programs did not mount any kinds of systemic or policy-related claims, and did not challenge the state or its administrative apparatus in any way. The evolution of legal services programs as we currently think of them was the product of social and intellectual ferment within the profession and outside of it. This was pioneered by organizations such as the National Association for the Advancement of Colored People that developed a social change–focused litigation strategy. It was also the product of a new generation of lawyers such as Edgar and Jean Cahn and Charles Reich, who wrote for and advocated to an (albeit limited) audience impatient with the glacial pace of social change.⁵

There was much contention within this group about how legal work could optimize social change, and the extent to which clients could and should be involved in the process.⁶ There was consensus that many of the existing government systems were fundamentally inimical to the interests of poor people and minorities; that the law could and should be used for social change; and that in order to mount these challenges lawyers needed to create a new form of practice to use the legal system against itself, challenging legal institutions to live up to the promise of equal justice.⁷

To some extent, these new legal services programs gained the support of the organized bar and institutional interests on the federal and local levels. However, this support often came from different motivations and was drawn from a more conservative conception of legal services. For example, while some wanted to use legal services for radical social change, others saw it as a way to channel societal grievances into relatively tame legal frameworks. It also meant that, in practice, legal services lawyers were often criticized by their national and local professional counterparts.⁸

NELS was one of the first of this new breed of legal services programs. It was founded at the initiation of members of the Northeast City Bar Association, although it was not supported by all private attorneys or members of the organized bar. Lawyers who had been with NELS from the early days reported that NELS encountered hostility from local attorneys and judges and that it took some years for NELS to be accepted and respected by the broader legal community.

Founders of NELS in Northeast City sought to create a legal services program on the new model. In some cities, existing legal aid programs sought new federal funding without changing their mission or model of practice. According to Joe, a former NELS director, in Northeast City “the decision was made to close down the [existing] legal services organization although we acquired some of those employees.”

NELS followed the new model of storefront offices that served communities in their own neighborhoods. Ben, a longtime consumer lawyer with NELS, described how NELS had provided a variety of services in locations throughout Northeast City:

We had offices all over the city so … we’d have like five different consumer units and you’d have to have meetings of all the consumer lawyers in all the different offices, same thing with welfare and employment and social security and all the other things we do.

Like other longtime NELS lawyers, Joe describes with a tinge of nostalgia his first experience in a NELS neighborhood law office:

You had to travel through the community on a daily basis and I think that had a healthy effect. And literally, I mean I would, you know, drive to the office, park my car and as I walked from wherever I parked to the office literally you would talk to people on their porches … and they would interact with you about their legal problems before and after work … You were this outside professional coming in and although you thought of yourself differently as a professional than perhaps other lawyers downtown, reality was that you were a stranger in that community. And a stranger in a lot of ways … and so I had a lot to learn. But I think people were eager to teach you and to interact with you and were appreciative. But I think that was helped by the fact there were informal opportunities to interact as well as formal opportunities.

Joe and other lawyers practicing in these years associate lawyering in the community setting with the generalist practice model. Lawyers did not “screen out” cases and often had very little experience practicing law, but they were open to serving the needs of the clients as they came:

When I started we were all generalists in the law. There was no specialization. And people would drop in with a problem; you wouldn’t know what that problem would be. And we’d be expected to respond to that problem and I think that was a great challenge for lawyers. We were all young lawyers at the time in the program. There really were no senior lawyers so the level of experience was much, much lower than it is today in legal services. And that generalist approach in some ways, I think, made the institution closer to the communities that they served.

Although Joe’s tone is somewhat nostalgic, he does not romanticize the early years. The generalist neighborhood practice often lacked professional experience; it was also hectic and confusing. As another attorney, Barry, observed: “We probably didn’t have all the tools we needed to practice law the way we would have liked, so there are trade-offs.”

Nor does Joe romanticize all aspects of being in a neighborhood. He noted that over time, drug problems in poor neighborhoods grew worse and with drug use came concerns for safety. Leslie, a client of the benefits unit, echoed worries about safety at the remaining neighborhood office: “I was a little skeptical because I really didn’t like being [in the neighborhood office], ’cause it can be a little ah [laughs]! It’s not like it used to be.” In addition to concerns for safety, Joe observed that as the lawyers matured along with legal services, their own lives and obligations grew more complicated as they started families of their own and desired more regular schedules.⁹ Most lawyers did not live in client neighborhoods, so when connections to poor communities became more attenuated through the closing of neighborhood offices, no one picked up the slack outside of the formal work context.

Over time, due to a combination of cuts in state funding and restrictions placed on federal funding, NELS closed most of its neighborhood offices. This was a painful decision, and most lawyers saw it as a survival mechanism with unfortunate consequences. Today, only two offices remain. One is a storefront neighborhood operation and the other is NELS’s main branch, located in the heart of Northeast City in pro...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Preface
• 1 Clients and Lawyers
• 2 Why Talk to Clients and Lawyers? A Grounded Interpretivist Framework
• 3 Working for Social Justice in an Unjust System
• 4 Did Someone Say Autonomy?
• 5 Collaboration
• 6 Lawyer and Client: Face to Face
• 7 Progressive Lawyering and the Ethic of Risk
• Appendixes
• Notes
• References
• Index
• About the Author