Cause Lawyering as a Tool to Increase Access

Neal McConomy[1]

University of Denver, Sturm College of Law Professor Alan Chen opened the Cause Lawyering as a Tool to Increase Access panel discussing facial constitutional challenges. Professor Chen’s discussion of facial challenges focused on the shrinking ability to bring as applied challenges due to doctrinal limitations imposed in landmark cases such as Citizens United and Heller. Professor Chen further noted that structural limitations fluster facial challenges. These structural limitations include institutional constraints, attorney fee shifting provisions, and ideological attacks on rights lawyering.

The institutional constraints include the refusal to extend the right to counsel to habeas and civil cases. The attorney fee shifting limitations include the fact that attorney fee shifting was supposed to allow lawyers to take on cases that were often seen as financially unsuccessful. However, this legislation has instead restricted the amount an attorney can collect to a level that makes trying such cases financially unsound outside of pro bono representation. Professor Chen noted that the third set of structural limitations, ideological attacks on rights lawyering, come from both sides of the political spectrum. While liberals decry rights lawyering as non sustainable, conservatives argue it is inappropriate for prestigious lawyers to take civil rights cases and that such cases are an inappropriate way to address civil rights claims. Professor Chen argued these limitations on rights lawyering have changed the topography of civil rights lawyering.

Though the actions of civil rights lawyers today are distinct from the actions of landmark civil rights lawyers such as Justices Thurgood Marshall and Ruth Bader Ginsburg, civil rights lawyers are still engaged in meaningful work. Despite the differences in the work being done today, the critiques of civil rights lawyers remain the same. For example, such lawyers do not represent clients but instead rights and amendments.

The change in civil rights lawyering comes in many forms. First, rights lawyering today is less about gaining new ground and more about holding the ground gained by previous generations of rights lawyers. Second, rights lawyers have been forced to adapt to new types of campaigns for rights. For example, instead of bringing challenges in the court system, many rights lawyers must now protect those acting for political reform of rights. This new campaign is well demonstrated by the legal battles surrounding the current occupy movements across the country. Therefore, rights lawyers are holding ground previously gained through the courts while assisting civil activists in procuring legislative, rather than judicial, expansion of rights. Professor Chen argues this change is possibly better and more sustainable because gaining ground through legislative change looks more like a populace mandate rather than a court appointed rule.

Professor Michael Waterstone from Loyola Los Angeles Law School spoke about his study of disability cause lawyers. In this study, Professor Waterstone interviewed disability cause lawyers to determine how the field of disability cause lawyering has changed. Professor Waterstone delineated two distinct iterations of disability cause lawyering. First, disability cause lawyers brought causes against an oppressive state. In this stage, Professor Waterstone highlighted the actions of the National Association for the Advancement of Colored People (NAACP) as a prime example of such lawyering. Currently, Professor Waterstone defines disability cause lawyering as a cause being brought against a viewpoint or bias, citing the cases of Lesbian, Gay, Bisexual, and Transgendered groups as prime examples of this type of lawyering. This second stage consists of less organized opposition: not a state actor but rather various, divided groups with slightly divergent viewpoints.

To construct his sample, Professor Waterstone contacted members of the Disability Rights Lawyers Association. The discussions consisted of questions about the lawyers’ backgrounds, how they are paid, the nature of the cases brought, why the cases are brought, the lawyers’ views on the United States Supreme Court and the Americans with Disabilities Act, as well as how the lawyers use the media in their lawyering.

Professor Waterstone found that these lawyers were not in close contact with each other, unlike the lawyers of the first iteration who all interacted regularly. This lack of contact seemed to be connected to the fact that these lawyers did not hold entrenched positions on issues but rather looked for clients to represent on various issues. Furthermore, these lawyers use the media and perform public education regarding disability rights issues, and all have experience working on not just the legal but also the legislative end of disability rights. In fact, all of these lawyers viewed legislative change as the preferred path to changing laws regarding disability rights.

Furthermore, these lawyers often use state laws to procure nationwide change. For example, Professor Waterstone cited an instance where lawyers used a California law to have Target retailers, and in turn all other nationwide retailers, change the accessibility of its webpage to accommodate the disabled. In these cases, the lawyers intentionally avoid the Supreme Court because of its current composition.

To find cases, the lawyers often reached out to the disabled communities to discover which persons had been aggrieved and if a claim for such a grievance was plausible. This led Professor Waterstone to conclude that those receiving representation and access to justice are relatively unimpeded by current Supreme Court precedent. However, those with the most severe disabilities are receiving access to justice while those with more minor disabilities are left without representation.

Finally, Professor Waterstone commented on some of the resourceful tactics employed by these lawyers. For example, lawyers would try to find cases where the defendant had so many wrongs that it could not remedy all of them before trial, thereby ensuring a positive verdict to be showcased in the media. Lawyers also practice in states where the law is more protective of disabilities than the federal standards. These lawyers go industry by industry rather than case by case or cause by cause. Finally, though the constitutional underpinnings of disability rights are under attack, these lawyers only argue these underpinnings in defense of gained ground rather than in an offensive assertion to gain more ground, thereby not risking losing ground by having underpinnings overturned.

University of Colorado Law School Professor Deborah Cantrell closed the presentation, addressing how cause lawyers need to adapt to the new political and social climates in order to bring about bigger change. Professor Cantrell accepted the fact that cause lawyers indeed represent causes and not clients. However, she also accepted that such a situation risks creating a demeaning and dismissive relationship with clients, wherein the client’s concerns are not addressed for the sake of zealously representing the cause of the lawyer rather than the actual issues of the lawyer’s client. This situation also means that lawyers pick and choose what clients to represent based on the cause, which in turn creates a problem in terms of access to justice. These problems have created what Professor Cantrell refers to as a “hyper relationship” with clients.

She considers this hyper relationship deeply problematic. This relationship can force a lawyer into a dichotomous view of the legal landscape where people are either friends or enemies: people solely represent those working for or against a specific cause. However, the legal world is not so straight forward, but instead much more fluid. Therefore, someone who appears a foe one day may indeed be a friend the next depending on the cause being represented. If cause lawyers accept the dichotomous view of the legal world, the cause lawyers risk missing opportunities to create greater, more dynamic social change by developing more relationships between diverse individuals.

Because of this danger, Professor Cantrell argued that the relationship between cause lawyers and their clients must change to become more nimble and innovative. She encouraged cause lawyers, clients, and adversaries to approach each other from a position of interest and curiosity rather than adversity or advocacy. Such a change in the relationship dynamics will hopefully bring about a more compassionate environment. However, Professor Cantrell noted that cause lawyers should not view such compassion as a soft environment of capitulation, but rather an environment that creates space to understand the opposing side. Seeing the views of both sides should allow a cause lawyer to know when an opposing side is feeling unhelpful pressure that one can use to her advantage by identifying the opposition’s problems and reaching mutually beneficial conclusions to the problems that both sides have. Professor Cantrell averred that such an environment will lead to a more impactful environment that creates more change with the limited resources facing cause lawyering today.

Finally, the moderator, Troy Eid, thanked the speakers and opened the question and answer session by noting that all of the presentations had a common theme of understanding that cause lawyering is in flux. Therefore, cause lawyers must carefully evaluate their approach to lawyering for change in order to better understand their cause, their clients, and their goals for change.

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[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.