CAUSE LAWYERING: ISSUES OF ETHICS

CHAPTERISATION

1. Introduction
2. DEFINITION
3. HISTORY
4. PUBLIC INTEREST LAWYERING
3.1. HISTORY
3.2. DEFINITION AND DEBATE
3.3. PUBLIC INTEREST AND POLITICS
5. COMMUNITY ECONOMIC DEVELOPMENT LAWYERING
4.1. HISTORY
4.2. CRITICISMS OF CED
6. ORGANIZATIONS
5.1. NOTABLE LEGAL ADVOCACY GROUPS
5.2. CRITICISMS OF LEGAL ADVOCACY GROUPS
7. TRENDS
6.1. UNITED STATES TRENDS
6.2. INTERNATIONAL TRENDS
8. NOTABLE CAUSE LAWYERS
9. SUGGESTIONS
10. CONCLUSION

INTRODUCTION

A cause lawyer, also known as a public interest lawyer or social lawyer, is a lawyer dedicated to
the usage of law for the promotion of social change to address a cause. Cause lawyering is
commonly described as a practice of “lawyering for the good” or using law to empower
members of the weaker layers of society. It may or may not be performed pro bono. Cause
lawyering is frequently practiced by individual lawyers or lawyers employed by associations that
aim to supply a public service to complement state-provided legal aid. Cause lawyering is
performed by a lawyer or a firm that is “Most frequently directed at altering some aspect of the
social, economic, and political status quo.” The content of the issue is not particularly relevant,
only the advocacy of an issue and the attempt to bring about social change through legal or even
quasi-legal avenues. Cause lawyering can include dedicated advocacy by public interest firms,
pro bono work by attorneys in private practice and other non-traditional forms of law practice
that advocates a cause. Lawyers who work for the government, whether federal, state, or local,
can also be cause lawyers; although the majority of cause lawyering tends to be adversarial
towards the state.

Definition

As coined by experts Stuart Scheingold1 and Austin Sarat in their work Something to Believe In:
Politics, Professionalism, and Cause Lawyering,2 cause lawyering consists of “using legal skills
to pursue ends and ideals that transcend client service – be those ideals social, cultural, political,
economic or indeed, legal”.3 There is no single “correct” way to define what Cause Lawyering is
or who is a cause lawyer.4 Cause lawyering is particularly hard to put limits around because it
encompasses so much in the legal world and almost any issue can be considered an issue or
cause that is being advocated for, and thereby qualifying as cause lawyering. Cause lawyering
does not require a particular political side, but does require a “determination to take sides in
political and moral struggle without making distinctions between worthy and unworthy causes”.
Cause lawyering is less about the client and more about the issue the client represents. Cause
lawyering is about the belief in a cause or issue and the will/desire to advance that cause. 5 Cause
lawyers tend to choose clients on the basis of their own ideological grounds, no matter where
they fall on the political, social, economic, and /or legal spectrum. What ultimately separates the
cause lawyer from other types of lawyers is the advancement of the cause through the client to
transform the status quo in service to a cause that is just as important, or more important, than the

1
“Obituary: UW professor renowned for work on law, politics”. 26 June 2010
2
Stuart A. Scheingold and Austin Sarat Something to Believe In: Politics, Professionalism, and
Cause Lawyering Stanford Law and Politics (2004). ISBN 978-0804749473
3
Austin Sarat and Stuart Scheingold, Cause Lawyering: Political Commitments and Professional
Responsibilities. New York: Oxford University Press (1998)
4
Anna-Maria Marshall, Daniel Crocker Hale, Cause Lawyering, 10 Ann. Rev. L. & Soc. Sci. 301, 302
(2014).
5
Thomas M. Hilbink, You Know the Type...: Categories of Cause Lawyering, 29 Law & Soc. Inquiry 657,
659 (2004).
client. In a 2004 American Bar Foundation essay, Thomas M. Hilbink outlined the “typolog[ies]”
of cause lawyering. In this essay, cause lawyers are broken into three typologies: (1)
Proceduralist Lawyering; (2) Elite-Vanguard Lawyering; and (3) Grassroots Lawyering.
Proceduralist lawyering is “marked by a belief in the separation of law and politics, and a belief
that the legal system is essentially fair and just”. Elite-Vanguard lawyering focuses on law as a
superior form of politics that uses the law to render substantive justice in a way that will change
substantive law and thereby change society. Grassroots lawyering, however, approaches law as
“just”another form of politics, a venue that is corrupt, unjust, or unfair, and aims to achieve
substantive social justice through using the law in combination of other social movements, but
refraining from using the law as a primary method for social change.

HISTORY

What is now known as cause lawyering grew when the idea of “legal science”, a 19th-century
belief of legal objectivity in which law could be determined through the application of scientific
principles and methodologies, was challenged. Until the late 19th century, the legal field worked
to separate law and politics, precluding the idea that the law could be used as a force for political
or social change. The first organizations to break into cause lawyering and tear down the idea
came into existence in the 20th century, the National Association for the Advancement of
Colored People (NAACP) and the American Civil Liberties Union (ACLU). Through
intermixing political progressivism and the law, these two organizations paved the way for
politically themed legal entities to use the law in a way that would advance the cause they
represented. In applying the broad encompassing cause lawyering definition from above, cause
lawyering has existed as long as legal advocacy has existed. As long as an advocate has
advocated for a client and against a perceived social or legal wrong, although the term was not
coined until 1998, cause lawyering has been active. In the late 1800s it was slavery and state's
rights, in the early 1900s it was women's suffrage and civil rights. In the 1960s and the non-profit
law firm was born. The creation of non-profit law firms ushered in an era of progressive public
interest firms modeled after already established like the NAACP and the ACLU to advance
progressive causes from the environmental protection to consumer advocacy. These beginning
organizations of cause lawyering, and the ones that followed scored major legal victories that
have lasting effects to this day; see Brown v. Board of Education In the 1960s, the Ford
Foundation began funding legal services programs as a component of anti-poverty programs
helping fund some of the forerunners of legal services for indigent clients: Mobilization for
Youth in New York, Action for Boston Community Development, the Legal Assistance
Association in New Haven, and the United Planning Organization in Washington. While not
identified as cause lawyers at the time, these early programs explicitly fit the mold of using the
legal system to advance their cause. Once the newly minted non-profit law firms were
established as charitable organizations eligible for IRS tax-deduction, they began to advocate on
behalf of disadvantaged and underrepresented groups, advancing the civil rights and poverty
legal work from decades earlier. During the 1970s, feminist law firms began to emerge with the
growing Women's Movement and with each newly emerging social movement, new cause
lawyering organizations sprung up to compliment them. By the mid to late 1970s the explosion
of progressive cause lawyering organization was being followed by the creation of more
conservative cause lawyering firms. The face of cause lawyering has ebbed and flowed just as
political movements, social movements, and economic movements have from the 1970s through
today. Major events, like the establishment of the Legal Services Corporation and subsequent
restriction; decisions in Loving v. Virginia, Lawrence v. Texas, Roe v. Wade, District of
Columbia v. Heller, Citizens United v. Federal Election Commission, National Federation of
Independent Business v. Sebelius, Shelby County v. Holder, United States v. Windsor, and
Obergfel v. Hodges; along with everyday victories and defeats of cause lawyers all over the
United States have shaped our last one hundred years and will continue to shape the legal
landscape to come. As Dean F. Michael Higginbotham said in his Keynote Speech at the
University of La Verne Law Review Symposium in 2014: “Make no mistake ... there is no better
feeling in this life than to know that you have helped to improve the lives of those around you.
Nice to make some money, nice to have material things, but there is nothing better than knowing
that you have helped the impoverished, that you have helped the hungry, that you have helped
the politically powerless, and that you have helped the undereducated to gain at least a
semblance of dignity.”

PUBLIC INTEREST LAWYERING

Public interest law is "the legal practice that advances social justice or other causes for the public
good". In its most simple form, public interest is defined as “(1) the general welfare of the public
that warrants recognition and protection” and “(2) [s]omething in which the public has a stake
...”

HISTORY

The public interest notation was first given to a group of lawyers in the 1960s who fought to
address the social injustice that existed in American society. Throughout the late 20th century,
many lawyers self-defined themselves as public interest lawyers in order to gain legitimacy and
respect as they sought to change complex social, political, environmental, and educational
problems. As a result of many attorney's desire to participate in public interest law,
organizations, such as the ACLU and NAACP, were formed to develop a collaborative approach
to addressing these societal problems. Today, public interest lawyering has expanded greatly to
include free legal aid groups, liberal and conservative public interest organizations, partisan
environmental groups, and individual lawyers who choose to represent the underrepresented.

DEFINITION AND DEBATE

With the increase in self-proclaimed public interest lawyers, the definition and categorization of
public interest lawyering continues to be a debated topic. In attempt to narrow the categorization
of public interest lawyering, many scholars and researchers have attempted to create a more
precise definition of “public interest law”. The Ford Foundation was one of the first groups to
attempt to define public interest law as an “[a]ctivity that (1) is undertaken by an organization in
the voluntary sector; (2) provides fuller representation of underrepresented interests (would
produce external benefits if successful); and (3) involves the use of law instruments, primarily
litigation.” Looking at the role of public interest law groups, Laura Beth Nielsen and Catherine
Albiston defined public interest law groups as “organizations in the voluntary sector that employ
at least one lawyer at least part time, and whose activities (1) seek to produce significant benefits
for those who are external to the organization's participants, and (2) involve at least one
adjudicatory strategy.” Looking at public interest law as a broader category, Scott Cummings
suggests that public interest law is the legal means that advance the interest of disadvantaged
people by way of challenging corporate or governmental policies and practices.

Other scholars have defined public interest laws not by what a lawyer does but by a lawyer's
financial self-sacrifice. When discussing young lawyers who are influencing change, Karen
Dillon stated that public interest lawyers are those who “have followed their hearts, not
necessarily their wallets, into careers that they are convinced will make a difference in the
world”. Pro bono work of lawyers has become synonymous with the public good, and there is
no debate that a majority of pro bono attorneys do contribute to the public good.

PUBLIC INTEREST AND POLITICS

There are multiple ideological groups that unite on specific issues and work towards advances
the causes that they believe are in the public interest. The early successes of the public interest
movements prompted the emergence of public interest law firms, advocating on divisive political
issues. In their discussion of cause lawyering, Scheingold and Sarat suggest that cause lawyering,
“conveys a determination to take sides in political or moral struggle without making distinctions
between worthy and unworthy cause”. Today, public interest law firms are at the forefront of
public interest groups and political advocacy organizations.

When partisan public interest organizations first gained popularity in the 1960s and 1970s it was
the liberal groups that bound together to promote significant social change. Drawing from the
strategies developed by previous groups to advance specific causes, like the NAACP, ACLU and
LDF, these public interest groups expanded their role to substantive law reform, litigation, and
administrative and legislative advocacy. Because of this expansion in services offered, these
groups began employing lawyers to create more lasting substantive change through legal reform.

n response to the success of liberal groups advancing their partisan agendas, conservatives began
to adopt this type of organization and developed public interest groups of their own. Many of the
first conservative public interest groups (the National Right to Work Committee, National Right
to Life Committee, Catholic League for Religious and Civil Rights), were created to advance
very specific policy goals.

These groups do not necessarily advance the public's interest but are intertwined with
corporations and lobbying efforts to advance the interest that benefit their clients and result in
financial gain for them. Since their inception, the role in public interest groups in politics has
increased drastically, with many of them funding political action committee (PACs) with the
purpose of advancing or inhibiting campaigns based on the candidate's stance on important
issues. Public interest groups on both sides of the aisle have expanded their roles tremendously
and can even be attributed to the divisive political arena that exist today. While their roles have
expanded, their overall goals have not. Partisan public interest groups continue pursuing the
causes that connect with their ideological beliefs and continue to have successes in advancing
these interests.