Leaders, Followers, and Free Riders: The Community Lawyer's Dilemma When Representing Non-Democratic Client Organizations

Michael Diamond, Aaron O'Toole

"Democratic participation in decision making is a recurring ideal in many aspects of our society. We are encouraged to vote for candidates for public office; to voice our opinions to our representatives on matters of societal importance; to become involved in civic and social organizations; and to address common concerns through interactive debate and conduct. There is often, however, a considerable dissonance between the participatory ideal and the reality. This is particularly true in reference to community groups in low-income neighborhoods. There is a body of commentary that values the importance of democratic participation over the success of community groups in their legal struggles, but the literature suffers from a narrow and incomplete perspective. One important problem is that it emphasizes legal representation only in the context of the democratic ideal and not with reference to the needs of community groups as they actually exist and function. Moreover, the literature fails to recognize that there are many types of groups and that the ideal of democratic participation is not a one-size-fits-all imperative that suits the goals and modus operandi of each type.

This article will explore various aspects of the dissonance between the democratic ideal and the reality of groups in disenfranchised and disempowered communities. We will discuss the intersection of democracy and community action by examining the sociology of groups and the social psychology of leaders and followers. We will also examine the role of, and choices presented to, an attorney working in a community and for local community groups."

GloverWright - 1 Nov 2010

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HRI and the Center for Constitutional Rights present a panel discussion moderated by Bill Quigley, Legal Director for the Center on Constitutional Rights. This discussion will focus on the role of lawyers in grassroots advocacy efforts. Panelists include:

* Lucas Benitez, Co-Director, Coalition for Immokalee Workers * Chandra Bhatnagar, Human Rights Program, ACLU * Chaumtoli Huq, Director of Litigation, Manhattan Legal Services * Dina Levy, Director of Organizing & Policy, Urban Homesteading Assistance Board * Bekah Mandell, Base Building & Development, Vermont Worker's Center

This event is open to the public. Please direct any questions to hri@law.columbia.edu

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what is theory of change? basic principle: right to dignity. that's radical world would have to be turned upside down for all humans to have a right to dignity

the way change has happened in the past: when communtieis mobilize togehter to bring about change

talked with communtieis in haiti 5 fingers representin gchange

lawsuits - just 1 finger

other fingers building a community, building a movmeent change doesn't come about withtou that as an ingredient

direct action showing hypocrisy of institutions

education and outreach teach ourselves, others

media component reach out

. each panelist will talk things that have worked, things that will not work

.Chandra Bhatnagar

merging domestic and intl human rights and law and grassroots

what are human rights? due to you because humna inalienable, universal interconnected can't be segmented

some re protected with treaties

what is social movement lawyering? creative use of law to achieve progressive, radical social change

CCR has it in their DNA many other organizations committed to that end

this is not a new concept

idea of using law to attack domestic injustice old idea

iroqouis person went to League of Nations traveled on iroqouis passport, didnd't recongize US or CA legiatimacy turn attention to domestic injustices suffered. realizing limits of domestic court system

activists WEB Dubois

many others called for shining intl light on domestic issues

Malcolm X quote: 'civil rights mean you are asking Unlce Sam to treat you right. human rights are something you are born with'

social movement lawyering is also not a new idea

Nelson Mandeal Gandhi

but you don't end apartheid through S A legal system

legal training was important tool to use strategicall but movement itself led

it was the movement they were part of

looking at successful examples of contemporary law and social movement lawyering

Washington College of Law and ACLU PRIco in support of 200 women and children in PR displaced as result of hurricane relocated to PR. live on land owned by PR commonwealth. Black, immigrants, women headed households. and squatters. Many frames of discrimination

They were living there, had built up neighborhood system. PR gov tried to displace with tear gas, batons. supposedly land they are living on is a FEMA flood plain. community suspects the govt wants the land to make golf courses

PR gov cut off water.

ACLU worked with clinic to file for injunction in interamerican human rights system. AP reporter came to community, got an advance copy of the brief, took pictures. filed at 2pm, story at 3:30 pm, then story and pictures ran. that night, the PR gov turned the water back on.

local people were the force driving the bus we found a legal loophole we could use

Dina Levy urban homesteading assistance board

figure out ways to help tenants preserve and improve affordable housing in nyc

thinks housing is a human right

but we don't often use that adovcay strategy

we're working on campaign Predatory Equity big threat to housing

speculators, mostly PE firms armed with capital specifically targeted artificially low housing - rents kept low by regulation they saw upside potential - if can figure out how to raise rent, can make DOLLARS

what enabled this - banking industry provided $$ for acquisition

crazy harassment to get tenants out whole days in housing court of PE firms trying to evict people

renters didn't leave though

firms couldn't evict people, and couldn't make mortgage payments had to choose between mortgage payments, and keeping up place

so, noticed massive decline in services

never seen conditions this bad anywhere

no working toilets, ceilings caving in, no heat, no water

we're used to fighting bad landlords. now, we have to figure out how to target the bansk

they are holding 80% of the cash. they are the target. trying to restore housing.

hard to take on big banks we've worked closely with legal aid and legal services

why we bring litigation into organizing: 3 benefits 1. access to information. hardest hting to obtain in this scenario.

building going into forecloseure, need info

when we bring litigation, it enable smore thoughtful campaign

2. force behavioral changes by bank and landlords force repairs, increased transparency by lender

3. policy change Schumer helped pass legislation

litigation and organizing wears down officials. they just pass a law to get rid of problem.

successful exxample: 10 buildings portfolio PE firm called Milbank bought

loan sold to wall street firm, packaged into mortgage backed security

now its in forecloseure, controlled by special servicer

trying to get them to lower debt and transfer property to responsible buyer building uninhabitable no source of relief

we needed legal hook,more info legal services figured out a way to argue that - in certain circumstnaces, you can argue that the bak itslef is acting as an owner and is resposnsible very creative thing. didn't think we would be succesfful but were getting a lot of press ultimately judge ruled bank to put 2.5 million into property. they are appealing but still a big step forward for lender accountability.

in another portfolo case, judge got so fed up with portfolio owner, held him in contempt, jailed him 21 days in the tombs during trial, new buyer came in. wanted to evict all tenants. lawyers decided better to strike a deal to stop the mass evictions rahter than fight t othe end for a precedent. hard to balance.

. Chaumtoli Huq director of litigaiton at manhattan legal services

challenge: how to use apply intl frame

how do we make operational the idea that lawyers can support organizing. bring law and justice together - is this possible? are they in conflict?

when i entered law school as an organizer, i had the sense that you were entering a profession - particularl for communties of color and disadv - that has been repressive.

how to use as tool for social change.

these are inalienable right.

UDHR comes from history of colonization

oneof my heros is Arundhati Roy she's talking about soverieignty of people in Kashmir accused of sedition

example

Donnegie Day portfolio, UK company made first purchase in East harlem felt it was easy to get aroun dhousing laws, so would profit business model: get "market rents" displace tenants

this was an international landlord we needed a legal hook to bring here to make sure that in messaging about the case :clear: intl landlord, with business model of displacement

idea: tenants are consumers look at business practices laws use as legal hook consumer protection action in state court, involving plaintiffs from 49 buildings. reached great settlement that imrpoved repairs, billing practices. impacted 49 buildings in east harlem

simultaneoulsy, organizers went to England to build suport for htie rorgaizing work recognized. make it an international case.

Donnie Day is in foreclosure now then issue in community - what do we do now?

dbeate on strategy one group: let's find a good landlord antoher: let's let tenants decide

challenge to decide what to do.

Lucas Benitze, Cathy Albisa translating from Spanish

represents Coalition of Immokalee Workers

90% of NY tomatoes from Immokalee in Florida

since we began organizing ourselves, we used the framework of human rights.

every human beings has the right to a salary that is just and dignfiied and will allow us to maintain the dignity of our families.

right to work not in slavery

right to organize selves to have a voice

the framework of human rights unifies us, because it was the language of struggle in the countires we came from.

it helped us overcome language and racial differences

our goal was to have direct dialogue with the growers. we had to do it differently. we saw different methods, paths.

we thought that the legal path would take us more time. so we startecd with direct action our story was a bit different we started taking to the streets

in 95 we did the first general strik in the history of FL agriculture 3,000 workers work stoppage for week

we did a hunger strike for 30 days with 6 workers ,just asking for dialogue

we marched Ft. Myers to Orlando to ask for dialogue

we did not achieve what we wanted.

throughtout all this we were not doing it alone we needed support from lawyers we went to jail several times we had to fiht those cases in court we don't have money for the lawyers

so we would look for help from people like yourselves to defend our rights to express ourselves and fihgt for our huma nrights

from there to 2001, we were frustrated

many people - thought we were crazy. how could a small group tkae on a large company like taco bell

to make them responsible, to insiste that they help us

four yeras later, taco bell came to the table and negotiated with our lawyers

1. would pay an additional penny per pound of tomatoes, and that would go straight to workers salary

2. they would agree to a new code of conduct, insist and demand that growers follow it.

3. that there be participation of workers in design of code

It sounded good.

but we were specialists in writing large words. we were specialists in picking tomatoes.

So we relied on lawyers who supported us an dhelped use create that contract.

so that we would be able to enforce it.

after that victory, we have 9 agreements with large corporatios with similar provisions

we're starting o nsupermarkets now. Whole Foods.

so now we had 9 corporations pressuring growers to do the right thing to protect the workers.

we did all this work we did it with the lawyers we didn't see ourselves as clients. we saw ourselves as partners working towards a common goal. lawyers played an important role, but behind the scenes

we met some lawyers in FL that for years were the voice of the workers some of those lawyers, they are irritated today because we are spekaing for ourselves today.

so its a new model to get where we need to go to commnity lawyers and other allies to protect human rights

and in the last two weeks some great htings hvae happened

we have signed 2 contracts with 2 of the largest tomato growers in the country they have committed to code of conduct

and once again, the lawyers wer ethere when we were executing contract but we are now in charge of training workers to help implement

under this code workers have the right to form health and society committee to decide whether conditions are unhealhty to work. eg. pesticide, heat, lighting

zeor tolerance for slavery, sexual harassment

now we have more companies willing to sign.

we worked for 15 years.

Bekah Mandel

from VT Worker's Center big campaign: health care as a human right

she is organizer, though went to law school

worker's center started as an organizer of workers in VT organizign for better wages

we saw that people were losing out on health care, conceding in every negotiation wer wer supporitng people were not getting raises - health care costs skyrockeint, employers leveraging it

WC believes that change happens when people come together and demand change

the reaosn people dont' have health care, wage, housing is tha tthe people making decisions are not the people affected by decisions

labor organizing model

teeter totter

she's not happy with health care grinds teeth at night, needs a crown.

she's at top of teeter totter. can call company - they say no coverage.

health is treated as commodity. they have a lot of money

in VT, 3 insurance companies. small aount of people.

but VT has 600,000 people

if those people get on the teeter toter, tips it back over, ejects the company on the other side

taht's real democracy

this is why the banks are able to foreclose and do that stuff same solution organziing is coming together to flip this scenraro. so the most affected can have a voice

we chose the human rights frameowkr VT is known as progressive place

there was a longstanding single payer movemnt, but it wasn't very effective.

we thought about.

health care: broadly effects people. ots of people.

easy to understand? single payer is complicated

but human right frame - easy to undrstna my friends, family - can go ot doctor, huma nright

2 key points : broadly felt easy to understand

health care as human right is easy to explian, gets to our shared humanity.

easy to organize around

single payer harder to understand.

we came together around human rights framework. accessible and practical frameowrk

people get it.

this framework also forces us to become consciou of our racial privilege as orgnizes, other forms of oppresion.

rallying around single payer, you can exclud.e its juts a financin gmechanism.

human rihgt - means everon get sthe care they need. whether disable, lgbt, etc.

we're having convos with white working class VTers.

we see the myth of the rural conservation.

we were organizing in the Norhteast Kingdom. depressed eocnomy, timber indus went to Cnada

I'm from central vt, compared to NK, it's like NYC.

these folks don't have insurance, not getting care they needed. but they know that in Canda, it's not a problem. they all signed petition

health care as human right - can get past wonk details, scare tactics

white rural people in VT, can get behind idea - human rights - everyone is in. migrant workers on dairy farmers.

can be hard.

organizing has to go hand in hand with framework

dont' have time to go into how lawyers with in organizing framework

these are long struggles lawyers can help support organizers

QUESTION AND ANSWER

Elizabth Joins lawyer at latino justice

Q: WHat's worst thing lawyers bring?

A: Dina: it's frustrating for nonlawyers to hear: the law won't allow that. seems so unbalanced

how come we can't sue the banks? etc.

we'd like to see lawyers stretch more. YOU set the precedent. it would be great to work with lwayers - to find people who wil lpush the envelope.

having new litigation strategies would be great

Lucas: What has functioned for us that is best is the mutual respect. we are in the fields every day. we know what we want to change. we're the ones who say what goes into the agreement. lawyers decide the phrasing and language. mutual respect is key

Bekah we are building a grassroots network to change state health policy severallawyers on our policy committee, volutneering. they work with nonawlyers on the committee we don't have a litigation strategy per se our team is entirely volutneers we have a lot of unemployed volutneers, they sat at statehouse every day. tis' pretty small place iN VT, made the politics uncomfortable, to hvae unemployed workers sitting there all day.

lawyers: can help translate stuff that ca nbe otherwise intimidatin, legal stuff

Q: Gini Meyerer? new to nYC, lived in Detroit for 31 years, i'm an employment laywer i'm president of intl assoc of democratic lawyers

How to better integrate intl human rights frame?

A: Chandra:

I went to a gatheirng at Howard a while ago< Cathy was there, goal was to build US based human rights movement

It's improving. And this appraoch works. People will see that and get on board.

Bill Quigley has written a great piece - Letter to Public Interst Law Student

power of mentoring, meeting folks is key movement is growing.

Bill:

I lived in new orleans when katrina hit. we had been so wiped out i had been civil rights lawyer for 25 years people asked - who do we sue? there was 1 million displaced not fair housing, not due process issue cathy, chandra, other people - they said, you are IDPs there is a human right to return to your community, and have govt help rebuild we started a few workshops on this now, we talk about our human right to these things we had the experience that the rights we thought he had under statutes and constitution not working

these tools - human rights - allowed us to articulate the injustice, make claism that US system didn't allow us

now, use human rihgts in health care, housing.

i learned about human rights in haiti. they don't expect govt to work. they know abut intl human rights.

Q: Courts and public opinion

In Utah, courts don't listen to public opinion on immigration, and that's good.

A:

Cathy Albisa: [...] At time of Brown, most people supported deseg. Courts not always insulated.

Cass Sunsteins' book is good on this.

Bekah: it's an organziing problem. who is dividing us? often interested are aligned with immigrants.

Bill: as a fundamental thing: law is nto set up to create justice. we start from that point - the myth of law school - that law is there to create justice

truth: law is a way to maintain status quo through containing conflict. people with the most to lose can hire the most lawyers.

we have to be strategic about how we use law use law against itself make it fulfil the myth of providing justice

in law school what we learn - is to learn how to use this tool as best that we can - to go aganst he grain of what happens incourts every day

if you spend a day in court, almost always injustice, the default judgments taken by banks, landlords, the person with 5 lawyers picking on the person with no lawyers

Chandra:

postscript: Derek Bell on interest convergence you can take adv of moments when your interests and those in power can converge to create change.

can use media, public shaming to create that

Q:

How did Immolakee get the growers to agree ?

[...]

We spoke to a lot of people about how to bring litigation. but we decided - if we go down that path, they will just get more stubborn.

we did a hearing before interamerican commission, but the growers didn't care about that.

but when the buyers put pressure on, they folded their cards.

Q:

how to use the law against the law?

2 approaches:

legalist model: lawyer and client

political model: lawyer is partner of people

institution of law school: is teaching legal literacy

how to improve law school?

A:

Chaumtoli:

law school should do training in organizing i center myself on organizing need to understand political contextof things sometimes the law will not bring justice i need to be able to say sometimes - i'm useless here. that to me is also poewrful, because it pushses us to think about - open up opproutinies, imagine new laws. i want law and justice to merge

i would love law students to - meet with organizers, learn how it works, so you undertsand the political context in which you are operating

the lawyers that i've seen that are most effective are either former organizers or have a politica lunderstanding of the power relationship, know how they fit in as a piece

i don't think it wil lhappen though, because there's a very 'lawyer' - individualists, individual lawyer winning justce in court. this contrasts with how to bring social justice, owrkng togheter, somtiems steppng back

understanding hte politics.

it's hard, skill that should be respected

Cathy: redefine problem. lawyers don't understand other forms of litearcy in which they are not literate. so, the prob isn't lack of legal literacy in organizing community.

in law school, little undreesntangid of social change, organizing. v. non interdisciplinary aproahc.

we do want to increase legal literacy but lawyers also have to address their illiteracies

Dina: my experience in NYC has been the opposite worked with lawyers across the board - there is a clear understanding - ability to work together and crosspollination here in nyc, lawyers are great, not seeming 'above' people trying to help

Q: Strategy to combat negative policy changes in the future after midterm elections?

A: Dina:

when the dems are power in deeply divided context, seem less likely to press the envelope. playing defense.

Bekah:

from our perspective, the people in power make deciisons to beenfit the people who put them there. and it's the same people whether dem or republican.

so as grassroots movement, our job is to change that, pressure those in power, regardless of power. its harder whe npeople in power have different rhetorical strategy, but same basic strategy.

# Closing statements by panelists

Cathy: Success is posisble It's been a privilege to work with coalition of immokalee..

Lucas: FOr us, irrespective of who ends up in the house or senate, we've manage to make some of the most reactionary conservative companies in US to work with us to protect workers.

Dina: I thin khousing problem is going to get work. Renters are harder to get support for politically than homeowners, with the american dream and all. I'm optimist though unclear about how to integrate notion of housing as a human right into this framework. Interested in ideas on this

Chaumtoli:

Advice to students - if you're asking the right questions - what to do, how to use resources, I think invariably you will get to amass based framework, justice, and human rights frameowrk. Ask those questions - not just - what claims are available.

Bekah: Thansk to everyone. There will be house party on upper east side on Nov 14 for health care as a human right.

Chandra:

I was an organizer before law school. Lawyers and organizers both have different kinds of privileges. Communties can be pulled in different directions. Be aware, think through issues.

Human rights are nonpartisan. Great rhetoric on this from conservative politicians.

we don't all have to do the same thing, but we all have to do somehting.

quote from Cesar Chavez: 'once social change has begun, cannot reverse. once someone has learned to read, has pride'

Bill:

1 .Quote i have, put on my card, to remind me

quote from activist in Australia.

I always thought of myself as a helper, coming out of law school.

'if you've come to help me, you're wasting your time. if you've come because your liberation is bound up with mine, let us struggle together'

we have to be liberated. whatever education and money we have, we have to struggle fo rliberation. there i sno solo struggle for liberation. no solo acts in social justice. we all do it toghter learn from each other, be provoke dby each other, be supportive.

no matter what our role is.

2. tendency to focus on injustices in the world. god knows there are many. people in power want us to focus on that, so we get a sense of POWERLESSNESS. they like that.

they bombard us with the failures. but my experience - seeing people in death row, publci housing, iraq, haiti there is something extraordiinarly inspiring in social justice work if you go beyond the isuse s- and get th epeople involved - at the point where the oppression is so great - peopple struggling - at htat exact point where injustice is so sharp - if you ivnest in a relatioship with those people -you will find that those people who are so generous and couragesou - more inspring thatn people we would ordinarily call successfull

we are sharing our gifts, but we are getitng so much back. our teachers are grandmothers in public housing, rasisng family, they get to meeting, sit on a folding chair, in 95 degree heat, to change things.

by engagin in a lifetime of struggle, we will get the energy and enhtusiam an dpush to tackle thing speople would say impossible

we give, but we get o muh more

get beyodn the issues. work wtiht poeple. there's no burdens you cant carry if youre doing it with everyone else.