Fidelity to Community: A Defense of Community Lawyering
18 Pages Posted: 27 Sep 2011
Date Written: September 26, 2011
In July 2011, Miami-Dade County Mayor Carlos Gimenez, faced with a $400 million budget gap, proposed to close thirteen libraries across Greater Miami, including the Virrick Park Library in Coconut Grove Village West (“the West Grove”), an impoverished Afro-Caribbean-American community served by the University of Miami School of Law’s Historic Black Church Program. Now in its fourth year, the Historic Black Church Program provides multidisciplinary resources in education, law, and social services to underserved, predominantly low-income residents of the West Grove through partnerships with the Coconut Grove Ministerial Alliance, a consortium of historic black churches, and other local nonprofit entities, service providers, and schools for the purposes of grassroots community organization and legal rights mobilization. Publicly, Miami-Dade County officials asserted that the libraries slated for closing “were picked on two criteria: use and geography.” Nevertheless, because the closings disproportionately impacted low-income communities of color adversely, the selection process raised serious questions and widespread suspicions of class bias and racial animus.
Like many county library systems across the nation struggling to educate large and growing low-income populations, Miami-Dade County libraries “serve not only as a resource to borrow books and participate in literacy programs, but provide much-needed Internet service.” Although described as “a very modest facility in terms of space,” the Virrick Park Library reportedly offers “a thriving educational experience for a substantial number of both youngsters and adults.” As a result, both West Grove community advocates and elected officials protested the Mayor’s proposed closing of the Virrick Park Library, declaring that “the cost of the library is minimal compared to the value it provides the community.”
Within days of the Mayor’s announcement, West Grove church ministers and community leaders began to circulate e-mails opposing the Virrick Park Library closing and calling for political action to block it. To help map and gauge various strategic options, the Historic Black Church Program began to assess a range of legal-political tactics, including recommendations of limited direct service representation, county-wide impact litigation, and legislative law reform. Direct service representation required the recruitment of pro bono counsel (e.g., legal services organizations or for-profit law firms), the solicitation of injured plaintiff-parties (e.g., West Grove families and children), the formulation of plausible causes of action (e.g., civil rights disparate impact claims and state constitutional right to education claims), and the fashioning of appropriate relief (e.g., declaratory and injunctive remedies, the latter requiring an impracticable evidentiary showing of irreparable injury and the probability of success on the merits). More daunting, impact or test case litigation demanded the cooperation of multiple co-counsel and complex calculations of party standing and class certification. Law reform, by comparison, entailed private and public lobbying of key decision makers in the Mayor’s Office and at the County Commission.
In addition, the Historic Black Church Program explored non-legal alternatives, such as private fund-raising to replace the projected library budget shortfall and the physical relocation of the Virrick Park Library to a neighborhood church or school. Furthermore, the Program contemplated a media campaign (e.g., editorials and letters), public protest (e.g., a march, rally, or sit-in), and political pressure (e.g., reporting selected public officials for unethical or unlawful conduct to regulatory agencies in unrelated matters), all to persuade local municipal and county officials to help mobilize public opposition to the proposed closing.
Taken together, this conventional and sometimes controversial array of legal-political strategies and tactics will sound familiar to community lawyers. The notion of “community lawyering” is by now well entrenched in the literature of the legal profession. Wide ranging in scope, that literature spans civil rights and poverty law studies, clinical education and skills training courses, and the empirical work of interdisciplinary scholars. Indeed, histories of the American civil rights and poor people’s movements highlight the role of community lawyers in legal advocacy and political organizing. Likewise, developments in law school curricular design and campus-community outreach point to the integration of community lawyering models into legal education more generally. Similarly, the writings of law and society scholars underscore the significance of community or “cause” lawyering here and abroad.
This Essay will offer an ethical defense of community lawyering against the backdrop of W. Bradley Wendel’s important new book Lawyers and Fidelity to Law. Building upon his prior distinguished work on legal ethics and the contemporary writings of moral and political philosophers, Lawyers and Fidelity to Law advances a theory of legal ethics positing “fidelity to law” as the central obligation of lawyers at work in liberal democratic societies. Wendel’s moral and political arguments for a “fidelity to law” conception propound political legitimacy as a normative benchmark for lawyer decision-making. Moreover, his arguments ground the duties of lawyers in democratic law-making and the rule of law, thus situating the ethical value of lawyering in the domain of politics, rather than in ordinary morality or social justice. By defending a theory of legal ethics that places fidelity to law, instead of client or community interests, at the core of lawyers’ obligations, Wendel seeks to rehabilitate the idea of legitimacy as a normative ideal for lawyers, and to channel lawyers into a formal, procedural system of advocacy and counseling largely independent of substantive justice objectives. Wendel’s transformation of the evaluative framework of legal ethics from the concerns of ordinary morality and substantive justice to the considerations of political legitimacy and process-oriented legality, I will argue, exposes community lawyers to new terms of normative criticism and erodes the justification of their crucial work in American law and society.
The Essay proceeds in three parts. Part I describes Wendel’s “fidelity to law” conception and its normative, positive law underpinnings. Part II examines the meaning of and justification for community lawyering within Wendel’s ethical framework. Part III sketches an outsider ethic of disobedience and resistance as an alternative guidepost for community lawyers.
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