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The UK legal aid crisis (London, part 1)

IMG_3962Two related issues were brought into bright, precise focus during my week-and-a-half long stay in London: the importance of timing, and of resources. Neither lies at the heart of this project on strategic casework. However, in indirect ways, they are both essential to it, and so crucial to address.

Firstly: timing. Sometimes time is against you. Then all you can do is pivot, realign your expectations, and take in what surrounds. I arrived in London on 15 March 2015. The UK Budget was released on 18 March 2015. It provided that an “additional £30bn savings [were] needed in next Parliament“, and it is expected that some portion of this will come out of the legal aid budget. This arrives on the back of continuous legal aid budget cuts and restrictions on legal aid availability since the election of the incumbent Tory-led government in 2010.[1] The cuts have been sizeable, seeing the annual legal aid budget reduced by £500m-600m – about a quarter – to what is now approximately £1.6 billion.[2]

As a result of these changes, the legal aid, community law, and public interest law sector in the UK has been significantly diminished. And so it is little surprise that I found many lawyers’ eyes set firmly on their survival rather than on strategy. And then, the UK general election is listed for 7 May 2015. Key election issues include immigration, housing, and the continued existence of the Human Rights Act. These overlap significantly with the legal aid issue, for example through discussions of what I am told anecdotally are the “unworthy” accessing legal aid for allegedly non-meritorious claims. This turns the heat up even more on the sector.

I take pause here to note an interesting distinction in legal aid between Australia and the UK: the latter does not have a salaried service, and distributes all of its legal aid by way of grants to the private sector and some community organisations. Because of the restrictions on legal aid to only particular parts of particular areas of law, lawyers are encouraged to “unbundle” people’s legal problems, and seek “fixed fee” grants of legal aid only in relation to relevant disputes. In Victoria, Australia, by contrast, Victoria Legal Aid employs legal staff that it pays directly (together with providing legal aid by grants). Legal aid is not distributed by way of “fixed fee” grants, although it is limited to particular areas of law.

This leads me to the second point: resourcing. No matter how much I tried to deliberately exclude the resource question from the scope of this project on strategy, London showed it to be unavoidable. It is well proven that demand for CLC services is always greater than supply, and all CLCs feel the limits of their resources. I had therefore presumed that we could simply move swiftly from this shared understanding to that more interesting question of how we can do more with less. To shift the focus away from identifying constraints, which the sector does relatively well, to that more fruitful question of how we can use these constraints as a vehicle to foster creativity and innovation (see this article for ideas). However, resources do inevitably shape legal practice and culture. And so where constraints are too great, or are perceived as such, they can reduce the time and morale required to identify opportunities. This risks shrinking the sector, and in turn access to justice, even further than the original cuts themselves.


[1] Many of these restrictions were introduced by way of the Legal Aid, Sentencing & Punishing of Offenders Act 2012 (LASPO), which came in to force in 2013. There have been further restrictions placed on legal aid since LAPSO, for example on legal aid available for judicial review applications, and restrictions on costs available for such matters. A useful summary of the cuts dated September 2014 is available here: http://www.theguardian.com/law/datablog/2014/sep/09/legal-aid-in-england-and-wales-what-is-changing. For more information see, for example: http://www.theguardian.com/law/2014/sep/25/-sp-legal-aid-forgotten-pillar-welfare-state-special-report-impact-cuts; http://www.theguardian.com/law/2015/mar/02/labour-cannot-reverse-tory-legal-aid-cuts-sadiq-khan-says.

The National Audit Office reported in November 2014 that the consequences of the civil legal aid cuts had not been well considered by government: http://www.newlawjournal.co.uk/nlj/content/national-audit-office-slates-legal-aid-cuts

[2] I would gladly be corrected on the figures if this is incorrect.

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Why Australian politics needs to reframe its concept of the public interest

While this post talks about ‘public interest’ in relation to politics, it also has its relevance when considering the contested notion of ‘public interest’ in law and strategic litigation.

The Power To Persuade

Political slogans and robotic talking points should be of no interest and deliver no benefit to the public, says former federal department head Paul Barratt in this short essay. He calls for a new focus on an authentic notion of public interest, which requires:

  • a probing media and informed public
  • evidence based policy
  • better delegation of responsibility to the best suited level of government.

The essay is republished with permission from “Who speaks for and protects the public interest in Australia? Essays by notable Australians”, from  Australia21.

View original post 1,250 more words

Client interest, and public interest

The public interest and the client’s interest in strategic litigation do not always align. Sometimes they do, sometimes they don’t, sometimes they do incompletely, and sometimes things change over time. Scott Cummings said that this may be an overstated problem that can be overcome with the awareness and sensitivity of the lawyer, and good communication between the parties. I tend to agree with him. However, it can raise ethical challenges for lawyers, and has recently arisen in two quite different contexts.

Firstly, Ben Hoffman and Marissa Vahsling discuss this as a live issue in the context of transnational legal work, in their article “Collaborative Lawyering in Transnational Human Rights Advocacy“. They state at 266:

“We begin with the premise then that differing goals between the community and the human rights advocate are an inherent part of the lawyer-community relationship in the transnational human rights con­text. It follows that a human rights lawyer is not always going to be able to be “on tap,” waiting to serve whatever goal the community chooses in a given moment…

The lawyer instead looks to work with the community and sup­port a shared vision of justice. We believe that identifying and seeking this shared vision of justice, beyond any abstract notion of empower­ment, is the principal goal of the collaborative human rights lawyer through the representation—and the end to which the lawyer owes ultimate allegiance. The lawyer looks for collaboration with the community in pursuing a shared goal that is, necessarily, jointly informed by the lawyer’s own vision of social change.”

The authors met this challenge by, among other things, aiming to work collaboratively with their clients to “identif[y] and operationali[ze], a shared vision” of justice (at p 265). The development and drafting of the retainer (at pp 270-272), for example, was one of the opportunities that the authors identified to put this into practice.

I was then reminded of this question in a very different place: at the Guggenheim Museum exhibition of On Konwara‘s work titled “Silence“.  Konwara was a conceptual artist who was known for systematically documented the passing of time, the movement of history, through concise, daily rituals. One of his pieces, the Today series, was a series of about 100 paintings of the date starting from 4 January 1966 and ending close to his death in 2014. Each painting was exhibited with a box (in which it was stored when not exhibited) lined with a newspaper clipping from that date.

One box in particular struck me. On 4 March 1970, the New York Post contained an articled titled “N.J. Lawyer Fights Way Past Panther“.

IMG_3943  IMG_3942

The article commenced:

“The defence attorney for three Black Panthers accused of machine-gunning a Jersey City police station today tangled with three other Panthers who tried to bar him from the courtroom because he wasn’t conducting the trial in a political manner.”

The trial was that of Black Panther leaders Isaiah Rowley, Victor Perez, Charles Hicks, and the defence attorney was Raymond A. Brown, who was assisting in the matter pro bono due to the “principles of justice involved“. After a brief “fracas” Brown’s response was:

“Look, if you want this to be a political trial, talk to the [defendants]… They can spend the rest of their lives in jail if they’re convicted, and if you try to create a political trial in Jersey City you’re committing suicide.”

The three defendants eventually pleaded guilty to lesser charges and were sentenced.

Although far removed from this time and place, the story raises many interesting questions relevant today. Where is the line between politics and law drawn in our casework? Who draws it, and where should it be drawn? At what point does the interest of the individual client(s) extend to a community or group? Does it? Should it? And whose influence shapes the ideas of the “client’s best interests”, the “public interest”, and “justice” underlying each legal case?

Vancouver: taking ‘The Plunge’ into justice

IMG_3561With its misty backdrop of the North Shore Mountains, Vancouver, in Canada, is home to a small but well-connected network of public interest law and community law organisations. Over the last week, I have met with the following five of them (with one interview still in the pipelines):

While each organisation is clearly committed to its task, they each take a different approach, and there has been much to learn. Differences between the legal frameworks in Australia and Canada also make some lessons more transferable than others.

Therefore, this post is divided into three parts:

  • critical distinctions between the Australian and Canadian legal systems;
  • interesting approaches to strategic legal practice; and
  • one historical community law curio.

Key differences between legal systems

  • Human rights legislation. Most importantly, Canada has a tiered, legislative human rights framework, which in British Columbia (BC) includes Canada’s constitutionally entrenched Charter of Human Rights & Freedoms, Human Rights Act, and the British Columbia Human Rights Code. This dramatically alters its public interest law practice, in that most of the organisations I spoke to regularly litigate on human rights law issues. This overlap in practice area appears to build both constructive dialogue, and active collaboration, between organisations. See, for example, this joint work of on welfare and child support by CLAS and West Coast LEAF.
  • Interveners. Secondly, in Canadian law a non-party may ‘intervene’ in a proceeding, either as a matter of right or at the discretion of the court, to represent the rights of parties that may be affected by a decision, and who should ideally have the right to be heard. This mechanism allows community law organisations to regularly influence legal decision-making at the highest appellate levels. BCCLA and West Coast LEAF in particular, regularly do intervener work. Examples: West Coast LEAF intervened in this case relating to the imposition of hearing fees in family law matters; and BCCLA intervened in this case about the disclosure of intercepted communications to foreign states.
  • Public interest standing and institutional clients. Thirdly, Canada has a relatively flexible test for public interest standing (the right to bring a case to the court) that often allows organisational clients to act as litigants in public interest proceedings. See, for example, this challenge to solitary confinement brought jointly by BCCLA and the John Howard Society. Having the option of an institutional, rather than an individual, client, arguably allows for much greater access to justice and ventilation of legal issues relevant to disadvantaged groups. This is because it does not require one person (or group of people) to endure the time, stress and pressure of public interest litigation, which often runs for many years.

Interesting approaches to strategic lawyering

  • The ‘social determinants of health’ approach to case selection. Research has found that particular aspects of poverty, discrimination, and social exclusion have greater impacts on health outcomes than the quality of health services or lifestyle decisions. More information about the social determinants of health is available at the Canadian Facts website, which lists 14 key determinants, and on the World Health Organisation website. Centres can use this approach to prioritise their work, by selecting cases or areas of work that will most positively affect health outcomes. As an example, in tenancy work, a Centre may elect to focus on ensuring stable housing for disadvantaged communities, rather than looking at issues around residential tenancy bonds.
  • Litigation on questions of statutory interpretation and civil procedure. My conversation with Carmen Cheung, Acting Litigation Director at the British Columbia Civil Liberties Association (BCCLA), reminded me of the importance of litigation that looks not only to substantive law, but also at matters of statutory interpretation and procedure. IMG_3549
  • The concern with technical legal procedure in both areas of work struck me. In the case planning process for test cases, for example, BCCLA would closely consider to what extent the case would get lost in procedural questions such as choice of forum, or standing. For example, where an earlier case challenging solitary confinement through an individual client had settled, another case was brought in 2015 with institutional clients as a vehicle following the sufficient evolution of the law of standing.
  • BCCLA does two kinds of work: (a) intervener work, through which it aims mostly to raise technical legal arguments relating to matters such as constitutional interpretation, or procedural fairness; and (b) test case litigation, which it builds up on a case by case basis, and often runs through an institutional client. One notable example of this latter work is the recent case of Carter v Canada (2015), in which the Supreme Court of Canada held that a law that prohibited doctors from helping competent, seriously ill people hasten death was unconstitutional.
  • This raised questions in my mind as to what litigation work could be run in Victoria to expand the law on public interest standing, or protective costs orders, for example, for the assistance of all CLCs as well as other public interest litigants.
  • Using academic theory to inform case strategy. West Coast LEAF is a feminist legal organisation dedicated to promoting women’s equality through law. In its case planning it will map out the feminist theories relevant to a particular case in order to inform case strategy. This may also then inform its collaboration and communications strategy. West Coast LEAF’s Executive Director, Kasari Govender, told me how integrating academic ‘blue sky’ thinking about what is possible within a campaign is a useful counterbalance to the more immediate (but equally important) needs of community. Also incorporating a theoretical perspective may assist in balancing complex strands of a debate early on. Kasari reflected on how this was particularly useful in the analysis of this case relating to a constitutional challenge to a law prohibiting polygamy, which brought in to the mix many disparate feminist considerations.
  • Be guided by what is the highest and best use of the lawyer. EcoJustice is an environmental law organisation that aims to do only strategic litigation work. Its Executive Director, Devon Page, told me about three questions that had helped the organisation focus its strategic direction:

(1) What kind of legal work do we want to do?

(2) What is the highest and best use of the lawyer?

(3) What kind of litigation work will have the greatest impact?

  • EcoJustice answered these questions as follows: it wanted to focus on precedent-setting legal work, with lawyers doing litigation (rather than policy work), and working to maximize impact through a set of strategic priorities.
  • Interestingly, it employs two scientists to assist in researching and buildings its test case design. Noteworthy is that its funding comes entirely from private or philanthropic sources.
  • Finding the gaps in legal services: representing consumers’ interests in utilities pricing and regulation. Unlike in Victoria (Australia), many states in Canada have Utilities Consumer Advocates, which inform consumers on utilities issues and represent consumers’ interests in utilities rates hearings. In the absence of such an advocate in British Columbia, BC Public Interest Advocacy Centre (BCPIAC) take on the important work of representing consumers’ interests at hearings on utilities pricing and regulation before the BC Utilities Commission.

Postscript: a little bit of history

They say it may have all started with ‘The Plunge’.

In the late 1960s, a University of British Columbia (UBC) social work professor, Max Beck, started the Inner City Service Project. Its most popular component was ‘The Plunge’: a two-week orientation course for students about to commence at UBC, which required that they take $2 only, and spend two days and two nights in downtown Vancouver, making do. Students were expected to eat in bread lines, sleep in missions, and use the local health services if required. One student ended up in the local jail. Max Beck describes The Plunge as follows:

“In the future, these students will be delivering services to people and The Plunge is designed to show them what it’s like to ask for and receive help and to see the attitudes of the givers.”

Out of this came the first student-run community law service, started by a group of students disgruntled by the inadequacies of Legal Aid. When the Project ended in 1971, the success of this legal program, and recognition of its need by the Canadian Bar and others, lead to the funding for the first community law service in Vancouver: the Community Legal Assistance Society.

Plunge - 1Plunge - 2

And to come neatly full circle: CLAS was the very place where my interviews in Vancouver started. Although quite radical now, The Plunge reminds me of Bryan Stevenson’s call for greater proximity to those in need, as we work toward justice.

What next?

Tomorrow, I am off to New York, for the next leg of the journey.


Images:

(1) View of the North Shore Mountains from Water St, Vancouver, Canada. By Agata Wierzbowski.

(2) Public sculpture overlooking BC Place, Vancouver, Canada. By Agata Wierzbowski.

(3) UBC Reports, Volume 15, No 10 (27 March 1969), pages 6-7, online at <http://www.library.ubc.ca/archives/pdfs/ubcreports/UBC_Reports_1969_03_27.pdf&gt; last accessed on 27 February 2015.

Turning up the volume on community law practice and identity

In the ordinary humdrum of (at least my) everyday community legal practice, I only rarely take the time, or have the opportunity, to turn up the volume on the muted room of ongoing conversations about community lawyering. It happens, of course, but it doesn’t happen very often, and not in any full or comprehensive way. Doing the reading on public interest law as part of this project (also referred to as ‘impact’, ‘movement’, ‘social justice’, ‘progressive’ and ‘cause’ law) turns up the volume in that room. And for an Australian lawyer far removed from many international nodes of conversation, it is a heartening exercise, as there are a multitude of them going on.

The way we view the role of law, the relationship between law and change, and ourselves as lawyers, shapes our practice. Therefore it is useful to consider our practice in light of the past and ongoing discussions on these questions. The below quote from a 2010 interview of Purvi Shah and Chuck Elsesser of the Community Justice Project in Miami is a neat frame for the discussion that follows:

“Historically, while not always clearly articulated, different legal models have developed as to how to use the law to create social justice. The civil legal-aid model, believes that the major problem with the legal system is a lack of lawyers.  It argued that if there were just enough lawyers to represent every single poor person, the courts would be able to administer a just result. The test-case or impact litigation model, believes that systemic social change can result from carefully targeted class action litigation.   The social-rescue model believes that poverty is the result of failure of  social and other support services, including, legal services.

The first two of these models believe in the underlying justness of the legal system – if you can simply have a lawyer to enforce the law, or have the right case argued to the right judge justice will result.  The third model assumes that poor people are poor largely because of their own failings. They are simply “broken people” who need comprehensive services to be “fixed.” Not one of these models takes into account the long standing systems of class and racial discrimination and oppression, which have resulted in systemic powerlessness of whole communities.  Many of the classic conflicts between organizers and traditional legal services lawyers can be attributed to this disconnect between their differing theories of social change. Traditionally, lawyers and organizers have vastly differently analyses on why our world is the way it is.”

Below is a sampler of the theorists and readings that I have unearthed, set out in broad-brush historical context. This slap-dash blog entry is not intended to be a comprehensive account of the complex debates of why, how, and what works in public interest law. Rather, it aims to throw up some ideas, historical challenges, contests and approaches to public interest law that may silently underlie parts of contemporary legal practice in Australia. I undertook this reading because I think context is important, and it will inform the remainder of my thinking around the fellowship research.

I am the first to acknowledge that the readings I refer to are US-heavy, simply because the academic writing there has been prolific and, in my view, influential. Because of this I do generally, out of convenience, use the term ‘public interest law’ to refer to what includes ‘strategic casework’. I acknowledge that it is a contested term that has been ‘used throughout history to justify everything from democracy to totalitarianism’.[1] The readings are by no means a comprehensive list, but rather a choice selection. Please feel free to suggest further titles, particularly from other places.

Reading guides

Firstly, if you would prefer a self-directed reading journey on CLC and public interest lawyering, there are a few helpful reading guides available online:

If not, there are a few hyperlinks to relevant free texts scattered below.

This entry has turned out to be quite lengthy, so if you are short on time you may want to skip to the bottom for a somewhat-summary of ways of thinking about public interest law, posed as a series of questions.

The history of Australian CLCs

Australian community legal centres (CLCs) are ‘independently operating not-for-profit community organisations that provide legal and related services to the public, focusing on the disadvantaged and people with special needs’.[2] Some provide generalist, location-specific services, while others are ‘specialist’ centres working in particular areas of law (for example tenancy, consumer, or discrimination). Most undertake a blend of legal service, law reform and advocacy, and community legal education work. Some undertake what I refer to as ‘strategic casework’ (which includes both ‘impact litigation’, but also non-litigation legal work) and others do not. Alongside legal aid commissions, and the increasing amount of private firms undertaking piecemeal pro bono work (and a few which are arguably starting to specialise in this work), CLCs carry on a large part of the public interest lawyering in Australia.

The Australian CLC sector had, by contrast to the history of public interest law organisations in the US, had a relativel quiet and steady ascent. In the 1950s and 60s, a very limited legal aid scheme was established across much of Australia. This was a relatively conservative institution, based on a charity model, and carried on no law reform work. In an effort to meet the remaining unmet legal need, and inspired by the US poverty law movement, Australia’s first CLCs were established in the 1970s. The Federation of CLCs sets this early history out on its website:

The genesis of community legal centres in Australia started in 1971 with a group of Monash University law students who established a legal advice service at the Melbourne Citizens Advice Bureau.

In 1972, the Victorian Aboriginal Legal Service and Fitzroy Legal Service both opened, followed closely in 1973 by centres in Springvale, St Kilda, Broadmeadows and the Tenants Union. These were the first community legal centres in Australia. In 1982, the first regional Victorian community legal centre was established in Geelong.

The Federal Government first provided funding to a community legal centre in 1974 with the grant of $20,000 by the Australian Legal Aid Office to Fitzroy Legal Service. The Federal community legal centre funding program was formalised in 1979.

The first Victorian Government funding was provided in 1981 through the newly established Legal Aid Commission of Victoria (now Victoria Legal Aid).

The spirit of the early CLCs was quite different to today’s sector. They ran on modest budgets, with few (to no) paid staff, and were chaotic and at times intentionally radical, in defiance of conventional standards of legal professionalism. Jude McCulloch’s article titled Justice for All: a History of the Victorian CLC Movement (2011) provides a nice sense of that history.

The 1980s brought a nation-wide expansion of the CLC sector during what Noone and Tomsen call the ‘third wave’ of public interest law.[3] In 1982, the Public Interest Advocacy Centre (PIAC) was opened in NSW, and shortly thereafter Public Interest Law Clearinghouses emerged in other states to assist in the coordination of pro bono public interest work. Community Justice Centres were established in NSW in the early 1980s and then replicated in other states. In the mid-1980s, federal Attorney General under Hawke, Gareth Evans, increased funding for CLCs due to his enthusiasm for a sector that he is reported to have described ‘as being a strikingly cost-effective means of providing legal advice and representation’.[4] Over the 1990s, the sector across Australia continued to expand.

This included the introduction of specialist CLCs that came out of the demand of generalist centres. This evolution occurred despite of ‘a heated debate about the merits of specialist centres and whether or not they departed from the community-based model’.[5] Further, as the centres expanded, and resourcing became scarcer a ‘tension emerged between traditional casework and broader preventative and social work’, and this remains a live issue to this day.[6] This was perhaps prompted by the destablising of the role and identity of CLCs in the 1990s, when government economic and social policy turned against the welfare state, and legal aid, toward a neo-conservative agenda of economic rationalism.

Despite its identity crisis in the late 1990s, the sector persisted, and there are now around 50 community legal centres around Victoria including seven centres in rural and regional Victoria. There are over 200 community legal centres around Australia.

Some interesting readings on the history of CLCs are:

  • Jude McCulloch and Megan Blair, “From Maverick to Mainstream: Forty years of Community Legal Centres” (2012) 12(1) Alternative Law Journal Vol 37.
  • The final chapter, on CLCs, of: Mary Anne Noone & Stephen Tomsen Lawyers in Conflict: Australian Lawyers and Legal Aid (2006).
  • Jude McCulloch, “Justice for All: a History of the Victorian CLC Movement” (2011), available online.
  • Kevin Bell, “The Politics of Reforming the Legal Profession in Australia: a Case Study of the Western Region Community Legal Centre, Ltd” (1985) 7(1) Law & Policy

The 1970s and the beginning of the US poverty law movement

The US poverty law movement which had inspired the Australian CLC sector was spawned somewhere out of the joint work of lawyers and activists in the civil rights and anti-Vietnam war protest movements of the 1950s, 60s and 70s. It was encouraged by Lyndon Johnson’s declaration of a ‘War on Poverty’ in 1964, the rise of the welfare state, and a number of associated structural factors, including ‘a federal judiciary receptive to civil rights claims; centralized administrative agencies susceptible to reform through impact lawsuits; and a system of welfare entitlements open to enforcement and expansion.’[7]

To get a sense of the kind of work that was going on at the time, I will refer you briefly to two noteworthy lawyers of this early movement: Ralph Nader and Arthur Kinoy. Arthur Kinoy was a public interest lawyer who worked with unions and activists in the 1940 and 50s, with the civil rights movement in the 1950s and 60s, and to defend social activists in the 1960s. In 1966 he co-founded the Centre for Constitutional Rights, an organisation which has since its inception used ‘litigation proactively to advance the law in a positive direction, to empower poor communities and communities of color, to guarantee the rights of those with the fewest protections and least access to legal resources, to train the next generation of constitutional and human rights attorneys, and to strengthen the broader movement for constitutional and human rights.’

Ralph Nader is a (reputably quite eccentric) consumer lawyer. Starting in the 1960s, he arranged for in-depth research on various safety, environmental, and other issues, in particular automobile safety, often assisted by students called “Nader’s Raiders”. He would then provide this information to citizens, as well as policy-makers, by way of information sessions, in order to encourage them to become active in protecting their interests. He was a ‘rational analyst, the policy innovator and the policy promoter rolled into one’,[8] and was noted for using the media not to ‘expose and run’, but for corrective oversight of the executive branch of government. He was so effective at exposing issues in automobile safety that General Motors allegedly hired private investigators to dig up dirt to discredit him. In the 1970s he founded various organisations to undertake this work, including the Centre for Responsive Law and Public Citizen.

The 1980s and some critical reflection on public interest law

In the 1980s and 90s, a new conservative government in the US aimed to reduce public interest litigation by, among other things, stripping back welfare, limiting federal agencies powers, appointing an unsympathetic judiciary, and, importantly, restricting funding to class actions and strategic advocacy.[9] This development, alongside the ascent of the critical lawyering movement that had commenced in the 1970s, lead to a groundswell of critical academic writing about the limitations, as well as the possibilities, of public interest law. The writing over the next few decades, until the 90s, was quite critical of the ability of law, and litigation in particular, to affect meaningful social change.

Key among these early commentators on public interest law was Stuart Scheingold, who in The Politics of Rights (1974) argued that the belief in the ability of law (and litigation in particular) to bring about meaningful social change was a myth because ‘legal norms and tactics are closely linked to prevalent hegemonic political culture and are therefore highly limited in their capacity to promote significant social reform’. Rejecting the ‘‘myth of rights’’ he urged readers to adopt a more realistic understanding of ‘‘the politics of rights,’’ and to view rights as resources for political mobilisation rather than as ends in themselves. Yet even through the lens of ‘‘the politics of rights,’’ Scheingold was skeptical about the capacity of legal strategies to alter the balance of power in society and to bring about meaningful change.

Out of this critique also came much thinking, starting in the 80s and 90s, about how to innovate the practice of public interest lawyering. Although some of it is now dated, many of the themes that came out of this discussion touch on core aspects and challenges of contemporary public interest lawyering across the world. Some key thinkers during this time include, in no particular order, the following:

  • Gary Bellow, who founded Harvard’s clinical legal education in the 1970s, and was director of California Rural Legal Assistance in the 1960s. He was one of the first to call for a ‘focused case strategy’ approach in public interest law that involved the representation of a large number of clients against target institutions in ways that would pressure them to reform their practices. He argued that individual client representation could be used to generate institutional reform.[10]
  • In the early 1970s, Herbert Eastman, conceived of the ‘thick complaint’, which, in contrast to a traditional court complaint, is written ‘intertwin[ing] language that is both legal and nonlegal’, with the clients’ stories, voice, and narrative kept central. The aim of the thick complaint is to use narrative to ‘enliven, drive, and shape the legal argument’. It does this most unconventionally through the uses photographs, and images, to help explain, in a way that notice pleadings simply cannot, the imbalance in power, and the inequality, that underlies many public interest law pleadings (and this was particularly used in civil rights cases). This was arguably a practical response to the challenge of critical lawyers Gabel and Harris that ‘the lawyer should always attempt to reshape the way legal conflicts are represented in the law, revealing…the true socioeconomic and political foundations of legal disputes.’[11]
  • In 1988, Lucie White, a prolific critical lawyer, coined the notion of ‘third dimension lawyering’. The first dimension of lawyering is merely contesting litigation. The second dimension, in which many of us arguably participate, is when ‘the lawyer uses litigation as public action with political significance. The law and its practice have cultural meaning; they constitute a discourse – not merely a discussion – about social justice. The advocacy seeks to influence public consciousness. Here, law is “a public conversation.”’[12] The third dimension is where the lawyer engages in ‘collaborative work with the client community’ and seeks to ‘challenges subordination at the level of consciousness of the client community.’
  • Richard Abel argued that law should be subordinate to other forms of reform work, and that ‘litigation undermined social change movements by reinforcing poor clients’ feelings of powerlessness and dispersing social conflict into individualized legal claims.’[13]
  • Gerald Lopez, who advocated for a ‘rebellious’ approach to social justice lawyering in Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice (1992). There he argues that the well-intentioned poverty lawyers are ineffective due to their inability to shake off the tacit assumptions of their own legal culture. This he calls ‘regnant’ lawyering: that which relies upon ‘conventional remedies and institutions, and upon lawyer expertise and dominance, even while seeking the client’s “best interests.”’[14] Lopez argues that truly progressive lawyering demands a rethinking of the practice of law, the needs of the community and the relationship between the two. The Rebellious Lawyering Institute continues to this day.

There are of course many others, including Paul Tremblay, Louise Trubek, Shauna Marshall, Luke Cole, Sameer Ashar, and so on.

Recent developments in the US: the 1990s until now

The academic debates of particularly the 1980s and 90s led to (at least) three interesting developments in public interest law: (1) an interest in ‘collaborative’ and ‘democratic’ lawyering; (2) an acknowledgment that legal services are unlikely to achieve change alone, and so a shift toward collaborative, movement-based work (culminating in the notion of law and organizing); and (3) a concern with the relationship between public interest lawyering and legal professionalism.

Firstly, the thinking of Lopez and White in particular enlivened an interest in the overlapping ideas of ‘collaborative’ and ‘democratic’ lawyering. Both models emphasis the importance of lawyers’ working collaboratively with (not simply on behalf of) marginalised client groups and communities to collectively push for social change. My limited observations and experience suggests this has informed, to a lesser or greater extent, CLC practice in Australia for the last decade.[15] Related to this is the emphasis that Lopez, White and Eastman placed on client voice, narrative and story-telling, which is also apparent in contemporary Australian CLC practice and discussion (see, for example, Rachel Ball’s 2013 CLC Fellowship Report When I Tell My Story I’m in Charge).

Secondly, the acknowledgment of the limitations of law to achieve social change lead to the emergence of the ‘law and organizing’ movement, which privileges movement politics over law reform efforts and suggests that lawyers should facilitate community mobilisation rather than practice in the conventional mode. This is discussed in the Rich report,[16] although Rich also acknowledges in her report that this model had not, at the time of publication in 2009, been employed extensively in Australia.

Thirdly, the critical discussions of the 80s and 90s precipitated a debate around what public interest lawyering means for legal professionalism, and I would suggest that this debate remains live today.[17] This, together with the collaborative lawyering emphasis, has arguably lead to more recent discussions on ethics of care, holistic lawyering,[18] integrated service delivery,[19] and transformative justice,[20] which are active and ongoing.

Scott Cummings, and Austin Sarat & Stuart Scheingold (working together) have been particularly influential academics in the public interest law space in the last decade. Sarat & Schiengold’s Cause Lawyering series of books is a fascinating contribution to this field of study. The series comes out of an international academic collaboration, curated by Sarat & Schiengold, called the International Cause Lawyering Project. The collection of texts is as follows (some of which I have read, others which I have not):

  1. Sarat & Scheingold (eds) Cause Lawyering: Political Commitments & Professional Responsibilities (1998): which looks at why some lawyers devote themselves to a political cause, the relationship between law and politics, and how is this justified given the requirements of legal professionalism.
  2. Sarat & Scheingold (eds) Cause Lawyering and the State in a Global Era (2001).
  3. Sarat & Scheingold (eds) Something to Believe In: Politics, Professionalism and Cause Lawyering (2004).
  4. Sarat & Scheingold (eds) Cause Lawyers and Social Movements (2006), looks at cause lawyering from the perspective of social activists and movements.
  5. Sarat & Scheingold (eds) The Cultural Lives of Cause Lawyers (2008), which looks at how cause lawyers use and are represented in popular media, and asks whether, and to what extent, cause lawyering is embedded in the social lives and understanding of everyday people.

The series is interesting particularly because its titles alone trace the historical course of public interest law concerns, from professionalism, to globalisation, to collaboration, to lawyers’ use of and representation in media and popular culture.

Recently, Cummings has produced two relevant books, The Paradox of Professionalism: Lawyers and the Possibility of Justice (2009), and Public Interest Lawyering: a Contemporary Perspective (2013) (co-written with Alan Chen), and has also co-wrote a wonderful article with Deborah Rhode titled “Public Interest Litigation: Insights from Theory and Practice” ((2009) 36 Fordham Urban Law Journal 603). I provide a very brief summary of that article below. Arguably (or perhaps hopefully) this recent series of texts signifies a shift in the US academic writing on public interest law away from the purely critical, and toward a more practice-based approach that seeks to collaboratively explore opportunity and possibility.

Firstly, the Cummings & Rhode article sets out what the authors consider to be the key criticisms of public interest law: (a) that ‘litigation cannot itself reform social institutions’, and (b) ‘that over-reliance on courts diverts effort from potentially more productive political strategies and disempowers clients. It then considers these in light of research on (a) law and social change and (b) social philanthropy. The authors helpfully conclude that despite the criticisms, public interest litigation is an ‘imperfect but indispensable strategy of social change’, and that the ‘challenge is to increase its effectiveness through better understanding of its capacities and constraints’.

The lessons they draw out of their consideration of the literature are as follows:

  1. Litigation, although a necessary social change strategy, is never sufficient; it cannot effectively work in isolation from other mobilization efforts.
  2. Money matters: how public interest law is financed affects the kinds of cases that can be pursued and its likely social impact. A deeper understanding of financial constraints and opportunities in different practice contexts is therefore critical to effective reform.
  3. Systematic evaluation is important. Only through more reflective assessments of the impact of litigation can we realise its full potential.

Finally, Orly Lobel (2007) also helpfully reminds us in her 2007 article “The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics” that the limitations of public interest litigation may also exist in other for forms of “extra-legal” social change work.

The Australian literature

In comparison to the American literature, the academic writing on the practice of Australian public interest and community law is, unsurprisingly, relatively sparse. I will assume your relative familiarity with this literature, and so not set out the ideas in detail, as I have with the American literature.

Firstly, there is of course Nicole Rich’s excellent CLC Fellowship report ‘Reclaiming Community Legal Centres‘ (2009), which consolidates, and anchors, a significant conversation about why CLCs should undertake strategic advocacy and law reform work and how they should do it. In her paper Rich links back to the US debates discussed above, and in particular discusses focused casework, law & organizing, strategic campaigning, and funding and evaluation issues. It is, in my view, this paper that has shifted the conversation in Australia toward questioning what it means to undertake ‘strategic’ work, and it also clearly informs my project.

Over the last decade, Andrea Durbach, Liz Curran, Mary Anne Noone, Simon Rice, Peter Noble, Paula O’Brien and Hugh de Kretser, among others, have also written to expand the debate on CLCs and public interest law in Australia.

Relevant commentary includes, in reverse chronological order, the following:

  • The article by Andrea Durbach et al “Public Interest Litigation: Making the Case in Australia” ((2013) 38(4) Alternative Law Journal 219) is particularly pertinent, as it calls for more work to be done in analysing the history of public interest litigation in Australia.
  • Liz Curran has written numerous reports on CLC practice including Solving Problems – a Strategic Approach (2013) (available online at the FCLC website), Encouraging Good Practice in Measuring Effectiveness in the Legal Service Sector (2013) and Making The Legal System More Responsive To Community: A Report on the Impact of Victorian Community Legal Centre (CLC) Law Reform Initiatives (2007). The first two publications consider the approaches of Consumer Action and Footscray CLC in strategic casework and evaluation of those methods.
  • The first issue of the Alternative Law Journal (ALJ) for 2012 (volume 37) was dedicated to ‘a critique of the CLC movement in settled middle age’.[21] In the introduction of that volume, Virigina Bell notes that from the outset, ‘there has been a debate about the extent to which law reform and policy work should prevail over casework’ and at 2012 that debate continued to ‘flourish’. This comment alone presents an interesting contrast to the US debates on public interest law, which I discuss further below. This edition of the ALJ contains, among others, the following relevant articles:
  • Simon Rice, “Are CLCs finished?” (2012) 37(1) Alternative Law Journal
  • Peter Noble, “The future of Community Legal Centres” (2012) 37(1) Alternative Law Journal 22, which sets out suggestions for practical settings on a CLC that seek to increase effectiveness and minimise what he refers to as ‘cumulative harms’ of the sector.
  • Mary Anne Noone, “Integrated legal services: Lessons from West Heidelberg CLS” (2012) 37(1) Alternative Law Journal
  • Simon Rice’s 2010 NACLC Conference paper The Challenge of Remaining Unfinished in the Campaign for Justice, is thought-provoking for its challenge to consider CLC identity in relation to the divide between being ‘defined in’ and ‘out’ of the state apparatus, and how this positioning may affect the continued existence of CLCs (and, implicitly, the effectiveness of their work).

Much of the writing on the CLCs in the decade prior, epitomised nicely in Mary Anne Noone’s article ‘Mid-Life Crisis: Australian Community Legal Centres’ ((1997) 22(1) Alternative Law Journal 25), was about the identity of CLCs, when government economic and social policy had against the welfare state toward a neo-conservative agenda of economic rationalism. This concern was somewhat tempered, as CLCs persisted as part of the legal landscape in Australia.

Again, this is not an extensive biography, but just a flavor of the recent debate around CLC casework. For two more comprehensive readings lists of writing on Australian CLCs, please see:

Composition of public interest law organisations in Australia and the US

On my review, an interestingly large part of the academic commentary on Australian CLCs to date has been about their legitimacy, identity, and role in relation to other legal service providers (particularly legal aid commissions). The debate about the balance between transactional ‘individual service’ work, and law reform work, has also persisted. It is interesting to contrast this with the writing on public interest law in the US.[22] For example, the service-reform work debate is discussed in Chen & Cummings Public Interest Lawyering, but then is dismissed relatively quickly as not an either-or debate (that is, the conclusion is that these two categories of work are complementary).[23]

On initial consideration, this difference in approaches may arise out of the different funding histories of public interest lawyering between these two jurisdictions, as well as the obvious differences between size and legal culture. The introduction of legal aid in Australia and the inception of the CLC movement were initially met with opposition by the private legal sector due to a concern about loss of business, as well as the perceived threat to legal professionalism that the sector posed. However, this largely dissipated over time, as neither fear was realised, the CLC sector developed its own specialised areas of law (tenancy, welfare, and so on), and then continued to be funded relatively consistently by both conservative an liberal (state and federal) governments, which affirmed their utility and cost-effectiveness.

This has not been the case in the US, where state funding of public interest law particularly in the 1980s and 90s was less secure, or non-existent. Consequently the public interest law space in the US is populated with many more actors, which arguably adds to the dynamic debate in this area. For example, as Southworth discusses in her 2005 article Conservative Lawyers and the Contest Over the Meaning of “Public Interest Law”, conservative groups are increasingly taking up public interest litigation in the US, something that has not occurred in Australia to date. There also appears to be a more widespread private public interest law practice than in Australia (although I note here there may be a few emerging Australian exceptions). Finally, education of law students on public interest law, including legal clinics, also appear to be much more widespread in he US than has been my observation in Australia, which may also bring more diverse views into the debate.

Collaboration, partnerships, and the use of new media and technology

A little outside of the academic field, it is useful to touch on the thinking that is currently going on in social change organisations about cross-organisational collaboration, partnerships, and the use of social media and new technology in change campaigns. The Levi Strauss Foundation published a useful report on this issue titled Pioneers of Justice in 2014. The report emphasises a non-linear theory of change that is about dialogue, collaboration, and ‘grassroots action rather than organisational authority’. This echoes contemporary theories of organisational management and leadership that are being discussed in CLC circles.

As a minor aside, one powerful example of the use of story-telling in new media is that by law professor and death row advocate Bryan Stevenson. Stevenson works as an advocate in Alabama, Montgomery, and founded the Equal Justice Initiative (EJI), an organization that provides legal representation to indigent defendants and prisoners who have been denied fair and just treatment by the US criminal justice system and advocates for reform of that system. His frequent appearances online, and in particular his powerful TED lecture We need to talk about an injustice are emphatic works of internet advocacy on a legal issue.

Of interest also is EJI’s strategic use of expert reports in litigation. In the case of Miller v Alabama (2012), a report of the American Psychological Association was filed by way of an amicus curiae petition in order to support the (successful) argument that life without parole sentencing for children under the age of 17 was cruel and unusual punishment and therefore unconstitutional. This case was part of a series of litigation run by EJI to gradually erode the constitutionality of the death penalty, and life without parole, sentencing of children in the US.

Frames of reference for considering public interest law practice

From my reading on public interest litigation emerges a series of questions, and conceptual frames, through which public interest lawyering can be viewed. Refocusing back now on my fellowship research task, these frames are useful for considering how both a CLC constructs its organisational identity, together with its objectives and modus operandii, and also how an individual community lawyer may view her identity within that organisation as well as beyond it. This is important because CLC identity has, seemingly, been the ongoing focus of debate within and about the Australian CLC sector.

I set out a few of these frames out briefly below, in no particular order:

  • Ascanio Piomelli writes about ‘democratic lawyering’, which seeks to challenge the common view of democracy as limited to a political process that provides a say in selecting one’s representatives and an incentive structure to encourage representatives to act wisely. The democratic vision that unites these lawyers is a focus on enhancing citizens’ abilities to act in concert with others in self-government broadly construed. This vision unsettles predispositions related to: what democracy means and how we practice it; how we understand individuals and groups, intelligence and expertise; and the relative importance we place on formal rights or on the power of people and groups to change their living conditions.
  • To what extent is our work ‘democratic lawyering’? What role can and does strategic casework play in enhancing the democratic engagement of disenfranchised groups?
  • Cappelletti argues that individuals have difficulty in vindicating their rights and that the only ‘really effective protection is one which reflects the ‘collective’ or ‘class’ character of the right’. He argues that ‘organisational poverty’ is the ordinary individual’s lack of motivation, information or power to pursue such remedy against the producer or polluter, and to discourage further wrongful action.[24]
  • To what extent do CLCs aid in removing what Cappelletti calls ‘organisational obstacles’ to access to justice and so alleviate ‘organisational poverty’?
  • How, if at all, do we as lawyers use our legal casework to achieve social change? Kolstiner surveyed a group of activists on how they perceived say the relationship between law and social change. Out of these discussions, he proposes three (overlapping) ways of thinking about the interrelationship between law and change:
  1. Instrumental view.
    1. What is it? The idea that we can use law to correct injustice by providing individuals with basic needs such as jobs, health care, housing, education, language access, and others. Social power and empowerment is not a major concern in this view.
    2. Motivations? Often a rhetoric of service to those in need, and the satisfaction of helping others improve their lives.
    3. Strategies? Direct service and policy advocacy.
    4. What is success? Concrete solutions to concrete problems.
  1. Political view.
    1. What is it? Social justice is understood in terms of power and oppression, and there is an emphasis on struggle against power structures. Therefore, the root of injustice is power structures that marginalize and disempower particular communities. People working within this view reject the rhetoric of needs and service, which they see to victimize and disempower client groups. The aim is build leadership within client groups so they have more power and control over their own lives.
    2. Motivations? Often anger.
    3. Strategies? Law and organizing.
    4. What is success? Mass movements within marginalised communities.
  1. Cultural view.
    1. What is it? Social injustice is not a matter of unequal resource allocation (as in the instrumentalist view) but a matter of how people think about other people and cultures. So long as people’s way of thinking remains intact, the redistribution of resources is not going to solve social injustices.
    2. Motivations? Personal experience.
    3. Strategies? Training and education.
    4. What is success? Meaningful social change comes from changing the way people think so as to be respectful of other people and of other cultures.
  • What is the CLC relationship to the mainstream, private legal profession? Consider how Ann Southworth notes that the initial public interest law movement was ‘intertwined with a strong critique of the legal profession – the view that lawyers’ conceptions of professionalism aligned their duties with their economic self-interest’, and how ‘Ralph Nader asserted that most lawyers, in most of their work, undermined the public interest’.[25]
  • Sarat & Scheingold draw a distinction between ‘liberal democratic cause lawyers’, who ‘accept the existing social structures and seek to ensure that its benefits are fairly distributed’ and ‘social and emancipatory lawyers’, who ‘question fundamental social arrangements and seek their transformation’ through ‘the realization of economic and social rights and…a radically participatory, egalitarian society’. Is this a useful distinction to draw?
  • Do you engage in Lopez’s rebellious lawyering? How? Why?
  • According to White, the second dimension of lawyering is when ‘the lawyer uses litigation as public action with political significance.’ The third dimension is where the lawyer engages in ‘collaborative work with the client community’ and seeks to ‘challenges subordination at the level of consciousness of the client community.’ Do you do engage in this kind of work? How? Is it useful?
  • Sale & Simon argue that public interest litigation assists in the pursuit of ‘destabilization rights’ [sic]. These are the ‘right to disentrench or unsettle a public institution when, first, it is failing to satisfy minimum standards of adequate performance, and, second, it is substantially immune from conventional political mechanisms of correction’. Chen & Cummings state that ‘[o]n this view, public law litigation is more deliberative and transparent, and provides the parties with more control over a negotiated solution…It also reflects the reality that social change is an ongoing and dynamic process.’[26] Is this a useful frame for considering public interest law?
  • Chen & Cummings emphasis the importance of evaluating the work that we do as public interest lawyers. How do you, and your organisation, evaluate the social impact of your work?

And this is just the beginning. I would be interested in any comments, suggestions and ideas, big or small, that have been prompted by that admittedly ramshackle beginning to a literature review.

[1] Burton Weisbrod, ‘Conceptual Perspective on the Public Interest: an Economic Analysis’ in Burton Allen Weisbrod, Joel F. Handler, Neil K. Komesar (eds) Public Interest Law: An Economic and Institutional Analysis (1978) at 26.

[2] NACLC website: http://www.naclc.org.au/.

[3] Mary Anne Noone & Stephen Tomsen, Lawyers in Conflict: Australian Lawyers and Legal Aid (2006).

[4] Ibid, 216.

[5] Ibid, 211.

[6] Ibid, 202.

[7] Scott Cummings & Deborah Rhode, ‘Public Interest Litigation: Insights from Theory and Practice’ (2009) Fordham Law Journal, at 606-7.

[8] Alan Chen & Scott Cummings, Public Interest Lawyering: a Contemporary Perspective (2013) at 73.

[9] Cummings & Rhode, above n 7, at 607.

[10] Chen & Cummings, above n 8, at 211. See Gary Bellow, “Turning Solutions into Problems: The Legal Aid Experience” (1977) 34 NDLADA Briefcase 106.

[11] Peter Gabel & Paul Harris, “Building Power and Breaking Images, Critical Legal Theory and the Practice of Law” (1982) I 1 N.Y.U. REV. L. & SOC. CHANGE 369 at 376.

[12] John Calmore, Social Justice Advocacy In The Third Dimension: Addressing The Problem Of “Preservation-Throughtransformation” (2004) 16 Fla. J. Int’l L. 615 at 623.

[13] Cummings, S and I V Eagly, ‘A Critical Reflection on Law and Organising’ (2000–1) 48 UCLA Law Review 443, discussing Abel. Referring to Richard Abel, Lawyers and the Power to Change, (1985) 7 LAW & POL’Y 5, 8–9.

[14] Paul Tremblay, ‘Rebellious Lawyering, Regnant Lawyering and Street Level Bureaucracy’ (1991-1992) 3 Hastings L.J. 947 at 950, fn 12.

[15] See, for but one example: Wade, John, “Collaborative lawyering – some preliminary thoughts for Australia (2006) Law Faculty Publications. Paper 59, available online.

[16] Rich report, at 88-100.

[17] See, for example Scott Cummings (ed) The Paradox of Professionalism’(2009).

[18] See for example Robin Steinberg, ‘Beyond Lawyering: How Holistic Representation Makes For Good Policy, Better Lawyers, And More Satisfied Clients’ (2006) 30 New York University Review of Law and Social Change 625.

[19] Mary Anne Noone, “Integrated legal services: Lessons from West Heidelberg CLS” (2012) 37(1) Alternative Law Journal 26.

[20] Scott Cummings (ed) The Paradox of Professionalism (2009) at 21.

[21] Virginia Bell, ‘You are never too old for community justice’ (2012) 37(1) Alternative Law Journal 1, 2.

[22] Although I acknowledge here that writing on CLCs specifically, and public interest law generally are two different things.

[23] At 210-11.

[24] Mary Anne Noone, ‘ADR, Public Interest Law And Access To Justice: The Need For Vigilance’ (2012) 37(1) Monash Law Review 58 at 62.

[25]Ann Southworth, Conservative Lawyers and the Contest Over the Meaning of “Public Interest Law” (2005) 52 UCLA Law Review 1223 at 1237.

[26] Chen & Cummings, above n 8, 219.