Attorney-Client Courage

-- By AshleyWilson - 10 April 2022

On Risk

Attorneys can be people who risk everything for a cause. One need only look to the war in Ukraine to find thousands of lawyers and law students who have traded in their casebooks for weapons against a bloody invasion by the Russian Federation. Ukrainian President Volodymyr Zelenskyy is using all his skills as a lawyer-turned-comedian-turned-leader to rouse his country to defend itself. But in a public interest lawsuit, the battlefield is a courtroom, and the two dueling sides are clients represented by their attorneys. What is truly at risk? And who is risking it?

A Plaintiff's Gamble

In cases that aim to tackle injustice, attorneys are facing opposition from the groups and institutions that hold power. When one is working to dismantle the systems of oppression, there is sure to be the threat of personal and professional retribution from those who have an interest in holding on to power. But attorneys in these cases cannot fight injustice alone- they must find clients to represent. Finding the cases that can promote and expand human rights will naturally require plaintiffs who are socially vulnerable enough to need to adjudicate their rights in a courtroom.

Private Pressures

Plaintiffs can be significantly burdened during the course of litigation. Though it may seem that attorneys are doing all of the work, bringing a legal action is not a passive activity. There are substantial economic and social costs involved with the American legal system, even if the attorneys on a case are working pro bono or as part of a legal aid organization that provides free services, Lawsuits can take years, and courts can be notoriously fickle in their scheduling practices. For clients with little job security or financial capital, the process can threaten their livelihoods and bring them to the brink of insolvency. And if a plaintiff is involved in a labor-related action, they could risk their employability in their field permanently.

A Public Affair

Moreover, cases that gain traction and a following can propel a plaintiff from a determined private citizen to a household name. And while this effect can be fast-tracked and multiplied in the Internet Age, where personal information is just a few clicks away, there is nothing recent about a plaintiff sacrificing their name and likeness to the public discourse. The most famous cases become part of our collective history, and in the worst cases, the selfless acts of plaintiffs can be eclipsed and erased through the bad deeds of our courts.

His First Name was Homer

For those in their first years of law school who are introduced to the field of constitutional law, the most vivid example can be found in Homer Plessy, the plaintiff in Plessy v. Ferguson._Plessy v. Ferguson_ is overwhelmingly regarded as one of the most damaging decisions the Supreme Court of the United States has ever rendered, paving the way for the Jim Crow laws of the Post-Reconstruction South. But for as may people as there are who are familiar with the impact of the decision, few realize that it began with an activist challenging a wave of white supremacist laws in his home state of Louisiana. Homer Plessy, a white-passing man of color, planned and took part in an act of civil disobedience by sitting in a “whites only” train car, where he was eventually wrestled off the train and arrested. Homer put himself in physical danger, at risk of criminal prosecution, to directly challenge the state of Louisiana and protect his rights, as well as the rights of other people of color living in the South. Not only did he lose his case and watch the South become more segregated throughout his lifetime, but his courageous acts have been subsumed in the historical narrative of his own case. Homer Plessy’s meticulously planned demonstration on the train car is mostly absent from discussions of Plessy, and his surname name has become associated with the very racial segregation and the subjugation of Black people in the American South that he worked so hard to prevent.

The Attorneys Bravery as a Derivative

Plaintiffs in public impact litigation are everyday people who have decided to risk their privacy, employability, and very identities with the hope of making society more inclusive and equitable, and they do this with no guarantee that the court will be on their side. And, unlike Homer Plessy, they also typically do not find themselves in court by their own design. Many plaintiffs have been irreparably wronged and find the unbelievable courage to bring a case against those who have harmed them.

There is always the lurking question of asymmetrical risk-reward for the attorney and for the client in public impact cases. Those who hold law degrees and a license to practice benefit from a robust social safety net. This is likely not the case for plaintiffs who are fighting for the recognition of their basic rights in the courts. Meanwhile, attorneys are doing a job, where a public impact case can be career-defining at best, and a note on a resume at worst. The attorneys work mostly behind the scenes, their names rarely well known to the public, slipping beneath the radar of viewers at home. It would seem, then, that attorneys who work on cases with the intent to pursue justice and progress society forward do face far less risk than the clients they serve. If and when they are exercising courage to fight for a cause, it is dependent on the heroic acts of normal people with far more to lose. Recognizing this tension is critical, and can provide perspective as attorneys work on behalf of their clients to bring about a more just society.

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