Perhaps unfairly, the language of “community engagement” evokes within me a wary scepticism. Will it be empty tokenism? Meaningless jargon? Mere platitudes? Yet the Centre for Applied Legal Studies (CALS), in Johannesburg, has recently published a Community Engagement Policy (2014) that preempts and placates these concerns. It is a practical and insightful document that works to broaden “the traditional matrix of legal ethics of lawyer, client, and legal activity… [to] include indigence, power differentials between client and lawyers, collective rather than individual clients, and non-traditional lawyering tactics” (p 11). It seeks to set some ground rules for respectful, ethical and effective communication between the lawyer and client in a non-private-sector context, in other words. In the Victorian (Australian) context, it harks back to a recurring discussion among community lawyers about the inadequacy of the mainstream legal ethics framework for community law work.
The principles of the policy (and some overlap) are as follows:
1. Mutual Respect and Co-operation
2. Overlapping Consensus of Justice
3. Non-Discrimination and the Pursuit of Equality
4. Security and Dignity of Clients
5. Clarity regarding roles, responsibilities and mandate
6. Clarity regarding intended outcomes and managing expectations
7. Representative, Participatory, and Responsive Leadership Structures, and Individual Agency, within Communities
8. Clear Instructions based on informed decision-making
10. Honesty and Integrity
11. Regular and Accessible Communication
12. Confidentiality and Anonymity
13. Transparency and Sharing of Information
14. Enhancing Legal and Specialised Knowledge of our Clients and Partners
15. Inter-Disciplinary Enriched Problem Solving Collaboration
16. Pursuit of Cross-Cultural Competency
17. Avoiding Conflicts of Interest
18. Continuity and Longevity
19. Maintain Objectivity and Independence
22. Compliance with Rules of the Profession
There are three further parts of the policy I found particularly interesting:
- an initial and explicit reference to reflection as a critical aspect of CALS’s work;
- the statement of benefits for lawyers of effective community engagement; and
- the discussion of the international and domestic law foundations of the “right to participate”.
Firstly, CALS explicitly incorporates critical reflection as an integral component of its work. See, in the introduction to the policy at page 9:
“CALS approaches its work through rigorous research, client engagement, advocacy, and creative lawyering. Increasingly, CALS has identified a fourth component of our work, namely, critical self-reflection to ensure that we are doing the ‘right work’ and that we are doing the ‘work right’.”
The implication is that this policy has emerged out of this reflective approach to legal practice. The policy goes on to state that while many of its principles are intuited and practised by lawyers, there have been few attempts to articulate them as a whole.
Secondly, the benefits of effective engagement are listed as (pp 12-13):
- responsiveness: if you engage effectively with your client(s), you are more likely to be responding to their actual needs;
- legitimacy: similarly, your strategy will likely have greater legitimacy with the clients that you work with, as well as among the public at large;
- leadership (capacity building): by effective engagement with your clients, there is the possibility of building leadership capacity within the community to drive further social change.
Thirdly, CALS steps through the international and domestic legal foundations for why effective engagement and participation of clients in the legal process is important to human rights legal practice. The discussion of the South African Supreme Court’s comments in the Doctors for Life International v Speaker of the National Assembly et al. (2006) case captures this well in the South African context:
‘Ngcobo J. underscored the historical origins of ‘people’s power’ as an alternative to the undemocratic system of apartheid, and that those processes became the foundation for a constitutional obligation of participatory democracy – not just ‘legislative etiquette or good governmental manners.’16 The Court suggested multiple ways through which to meet this obligation: through: public education that builds capacity for people’s participation; access to information; access to law-making structures and processes; and the facilitation of learning and understanding in order to achieve meaningful involvement. Sachs J. identified the importance of public participation for people who had been the victims of processes of ‘historical silencing,’ noting the importance of their voices being heard, and for those who lack higher education, access to resources and strong political connections.17’
An interesting document, well worth a look.