Counseling Community Groups

The training of lawyers for years has established ethical and practice protocols based upon an individual representation model, or, if the protocols contemplated a form of collective representation, they have envisioned formal, structured entities with powerful constituents. The good lawyers who represent the dispossessed, the exploited, and the powerless need to craft different protocols, ones which accept messier, less organized, and often contentious group representation. Writing about the ethical and political mission of “community lawyers” has flourished, but that scholarship has tended to elide some knotty practical questions about the lawyers’ professional responsibilities in their work with such groups. This Article is a beginning attempt to review community group representation through the lens of a traditional “law of lawyering” perspective. A lawyer who accepts a “community group” as her client must attend to all of the professional ethical mandates applicable to more conventional corporate and partnership representation. She must distinguish with great care whether her client is an aggregate of community members, or an entity, and much will depend on the outcome of that discernment. The lawyer must engage the group members to assist them to decide which of those statuses will apply, and, in doing so, she must be clear about her relationship with the members as they make that choice. If the community group lawyer accepts the group as her client, she must uncover, or create, an authority scheme on which she may rely for her direction. Once she has accomplished that, the community group lawyer may counsel her clients in ways different from how she would counsel an individual client with an individual legal matter. In representing any entity, the lawyer will owe to the entity constituents a different—one might say lesser—deference for their preferences and their leanings, because of their status as proxies for a larger client. The more loosely-structured the entity is (and there is much evidence that community group representation will involve many loosely-structured groups), the greater the responsibility of the lawyer to ensure that the constituent with whom she meets is a faithful proxy for the wishes of the group. In addition to attending to her ethical responsibilities emerging from the very fact that her client is a group, the community lawyer must recognize further special duties from the fact that her client is not just a group, but a community group. This Article uncovers three considerations peculiar to the community group representation context. For those groups with explicit public missions, the lawyer has a responsibility to attend to that public mission, in ways she may not have permission to do for groups established to achieve purely private ends. At the same time (and often at odds with the prior commitment), the community group lawyer must attend with special care to the empowerment and group cohesion aspects of the group’s work. Finally (and, again, at odds with the prior commitment), the community group lawyer may at times possess some moral duty to intervene with her group client to establish conditions, even if not chosen by the group, which are likely to increase the autonomy and the power of the group in the long run. The ideas developed in this Article emerge from the rich literature from so many progressive scholars over the past twenty-five years or more. The ideas need to be tested, nurtured and critiqued, though, especially by more stories from the field. The test of the ethical ideas will come from their usefulness in practice. This Article represents a beginning effort to offer a systematic structure, grounded in established theories of the law of lawyering, upon which to make those ongoing assessments