The Rules for Law Reform and Social Change
Posted: Wednesday, January 09, 2008
by Geraldine Jensen
Smarter Changes, LLC
Ten Rules for Law Reformers on how to successfully work with advocacy groups.
1. Legal action is one of many strategies that groups use to fight for social justice. It is not the beginning or end of justice, only a part.
2. Legal action is usually the slowest and most difficult way to achieve social change.
3. Legal action is more likely to break apart or destroy an organization than build it, so tread carefully. What good is a decision in your favor when there is no group to make sure it becomes a reality, no group to make sure low income families understand it, no group to help find and solve the next injustice?
5. The group must choose if they want to use legal action as part of their advocacy strategy.
6. The Law Reformer attorney works for the low-income families. Low-income families aren't just tools for attorneys to use to right social justice wrongs.
7. Rules that apply to high-income clients also apply to low-income clients. The client calls the shots. The attorney's role is to advise the client, even if what they want might lose the case. The client gets to decide as long as what they are asking for is legal.
8. Law Reformers can not be all things to all people.
9. Law Reformers should not bite off more than they can chew.
10. Law Reformers should make good on promises made to low income families in order to earn their respect and trust. Remember, our experience is that those in power do not deserve our respect or trust.
Law Reformers often describe their mission as "helping the poor obtain justice." Unfortunately, often "injustice" is defined by the Law Reformers rather than the affected low-income people. Usually Law Reformers will say, "our goal is the same as low income people." What they really mean is, "we know better than low income people; they just don't understand the law well enough to decide."
A Case Example
:
One law reform organization - let's call them the Evil Justice Foundation - was approached by an advocacy group let's call them HEARTS - to file suit against the state welfare department. Here's how it happened. The State had illegally withheld child support payments from families leaving the welfare rolls. HEARTS had done the research and could prove this had happened to their members. They had already undertaken a media campaign to expose the state welfare agency in hopes of getting them to refund the money to the affected families, but the state welfare department was fighting over returning the money. HEARTS leaders voted to file a lawsuit. The HEARTS Board designated one leader to be responsible to find an attorney to take the case and work with that attorney as the case went on.
HEARTS was very happy to find the Evil Justice Foundation, because they specialized in righting the wrongs done to the poor. The Evil Justice Foundation made promises about when the lawsuit would be filed; in fact they promised to file two suits. To obtain policy changes at the state welfare department, they would start a "Mandamus Action", filed in state court. They'd try to get damages for affected families through a federal lawsuit.
The HEARTS leader designated by the group to contact the attorney - call her Jenni - returned to the leadership team and reported what the attorneys had said. She got approval to sign a retainer agreement with the Law Reformers. The Board quickly notified members that legal action was underway and reported to the members the time frame for the suits to be filed.
Discussions began with local leaders about how to use the legal action to build their members and their chapters: how to obtain media coverage for their chapters as a result of the legal action; how to use the legal action to get new members; how to get respect from their local officials. At the same time, the leadership began to deal with helping other leaders and members deal with the fear of reprisals from the state welfare department.
HEARTS anticipated that the state welfare department would stop all communications with the group. The State hadn't been particularly beneficial on the issue of illegally withholding child support payments, but they were helpful on other issues, especially resolving members' individual cases.
Everyone in the organization anxiously awaited the filing of the lawsuit. The group's designated leadership regularly contacted the Law Reformers to check on progress. Each time they were reassured; all was going well. Several times, Jenni did conference calls with the attorneys getting ready to file the suit. HEARTS attempted to meet every request the attorneys made: low income people who volunteered to be named on the suit; copies of the research they had used to determine that child support payments had been illegally withheld; details of cases and stories from across the state.
HEARTS continued its media strategy to keep pressure on the state welfare agency. They provide reporters with families to interview who could describe the difficulties of raising children on a single parent income without child support.
As the Big Day to file the lawsuits approached, when the Evil Justice Foundation had told the group leaders they would file both suits at the same time, the groups leader contact the attorneys at the Evil Justice Foundation. They told her they were not yet ready - filing the suit had to be delayed.
When Jenni explained to the Evil Justice attorneys that a delay was harmful to families waiting for payments, and that the group's members had been all set for the Big Day, the Evil Justice Foundation attorney was condescending. "You just don't understand how legally complicated it is." She told her that they had a small staff, which was overworked and underpaid, and that she should be happy to get any help and not to make demands. Jenni went back to the group and explained that the "Big Day was being postponed and that people had to wait and be patient." Others questioned whether something was wrong with the legal premise. Why had the Evil Justice Foundation promised to deliver the legal paperwork by a certain date? Didn't they know it was complicated to begin with?
Group members began to worry more about reprisals from the state welfare department. Some were scared of the attorneys. Leaders of the group worked hard to keep the members calm and again got them ready for the new Big Day.
When the new date for the suit to be filed was about a week away, Jenni contacted the Evil Justice foundation again, and again was told that the date had to be postponed. They just did not have enough attorneys on staff to get all the work done.
She went back to the leadership team, who decided to offer the Evil Justice foundation help from an attorney the organization had on staff in . Even though this was thousands of miles away, the hope was that HEARTS' staff attorney could be of some assistance. The Evil Justice foundation said they were happy to have the help, and began having conference calls with the Jenni and HEARTS' attorney. All was not smooth however. During one of these calls one of the Evil Justice Attorneys walked out of the room and refused to come back to finish the conversation.
The senior attorney at the Evil Justice Foundation explained she just could not get this attorney to do what she needed done on a timely basis but that the attorney was so "brilliant" she had to put up with this bad behavior. In fact, she said, this attorney was the reason the delays had occurred. The senior attorney promise the new deadline would be met. HEARTS' staff attorney did what the Evil Justice Attorneys asked, even though the laws were different in and she was not very experienced. She too trusted the Evil Justice Foundation attorneys.
The Evil Justice Foundation told Jenni that the Texas-based attorney was not being helpful and quit communicating with her and would only communicate with Jenni. Jenni found that she had to call them twice to check on the status of filing the lawsuits before she got some response.
As the new Big Day approached, HEARTS contacted the Evil Justice Foundation and got a commitment to a date and time for the suits to be filed. She told the Evil Justice Foundation that HEARTS was planning a news conference immediately following the filing of the suits.
The organization notified it s leaders and members of the new Big Day. Local chapters readied news releases and called reporters who had covered the story in the past to let them know.
Jenni traveled to the state capitol where the lawsuit was to be filed and where the Evil Justice Foundation had their office, a three-hour drive for her. She arrived the day before so she could make final arrangements for the news conference. She had been asked by the Evil Justice foundation to come to their office to go over any last minute legal issues. When she arrived, the senior attorney told her the lawsuit wasn't done; they could not file it the next day.
Jenni said, "But a few days ago, you told me you were all set. Our members and leaders all over the state have sent out news releases and called reporters." She insisted that something be done. The attorney said OK, they would stay up all night if needed to file the suit. The Evil Justice Foundation senior attorney then told Jenni they had removed the one attorney from the case who had made promises about deadlines and had not kept them.
She said she was keeping the brilliant attorney on the case even though his personality was difficult and she could not get him do to anything except at the last minute. She told Jenni she was personally going to write the legal document that would be filed the next day, but that it could not be both suits as promised - only the Mandamus.
Jenni was relieved because at least one promise made to the group was being fulfilled. She was also very disappointed that both suits were not being filed as promised; the groups' membership was counting on it, and the Federal lawsuit was the one that had the largest opportunity to benefit individual members because if they won people would get damages.
HEARTS organized an emergency teleconference. The leaders talked that evening about the changes and the problems. Other leaders in the organization were even more disappointed than Jenni. Several wanted to fire the Evil Justice Foundation and get other attorneys who would do what they said and who were not fighting with each other. Others argued to stay with them and to "settle for less" because that how it always was with "free-bee" attorneys. A discussion was held and a decision was made to go forward but limits were developed as how bad things could get with the "free-bee" attorneys before new lawyers were brought in. The HEARTS staff attorney was told to closely monitor the Evil Justice Foundation and report back to the group leaders weekly.
The A Big Day arrived and the Mandamus action was filed. The news conference got great TV, radio and newspaper coverage. The story went out on the Associated Press wire. HEARTS members and the Evil Justice Foundation were happy. Jenni asked when the case would get a hearing and was told she would be immediately notified. HEARTS staff attorney asked if something could be filed to get an expedited hearing and the Evil Justice Foundation agreed.
The Evil Justice Attorney said the federal case would be ready to file in two weeks. When two weeks went by and there was no news about the second lawsuit, Jenni called the senior attorney at the Evil Justice Foundation. The senior attorney expressed surprise the suit wasn't ready, she was sure the Evil Justice attorney assigned to the case was working on it. No, she had not filed the motion to expedite the mandamus but she would soon, very soon.
Finally the motion to expedite was filed. Jenni thought she finally understood how things worked at the Evil Justice Foundation. If she personally called the senior attorney to get something done, it would happen.
So she began calling the senior attorney weekly to push for getting the federal suit filed. After three months, the senior attorney gave her a date. Again, HEARTS notified the other leaders and members. Plans were made for media coverage. Families were lined up to talk to reporters about how they were harmed by the state welfare department's failure to distribute child support.
Once again Jenni traveled to the capitol to meet in person with the Evil Justice foundation Attorney. When she arrived at the office, the senior attorney was wringing her hands, and told her, " I'm sorry the suit is not ready to file." Again, Jenni them that there were news conferences planned, and members were counting on it. Again the senior attorney said she would stay up all night to get it done, but it had to be put off for a day.
Again Jenni called an emergency telephone conference for the group's leaders and arranged for the delay. The HEARTS Board was now very worried about the quality of legal services being provided. People worried that things done at the last minute could be wrong or of poor quality.
Again the argument was made to put up with it because they were "free-bee" attorneys and "beggars could not be choosers". The Big Day arrived and the Federal lawsuit was filed. The news conference for this suit was even bigger. Several news sources did a series of stories, profiling affected families. The Governor's office, which was responsible for the State Welfare Department, was the target of three of the largest newspapers in the state in their Sunday editorials. The newspaper demanded the Governor give the child support back to the affected families.
Within a week the first hearing on the mandamus action was held. Again there was more news coverage, even though the court made no decision and the hearing was more of a technical legal procedure than decisive.
HEARTS began to hear from more and more families who believed they too were victims. They began to call for the Governor to act to resolve the problem. The group decided to continue the media strategy since the Governor was on the ropes and he would have to act soon. For HEARTS, the goal was to get the illegally withheld child support released to the families. Getting interest would be a plus and they were pushing for it.
Legal and political maneuvering began. The State Welfare Department, represented by the Attorney General, began complaining to the Evil Justice Foundation about the media coverage. They accused them of not being able to control their client. The senior attorney at the Evil Justice Foundation began to push on the group to be quiet. The leaders held a telephone conference meeting and decided to continue the media campaign. That was the only thing that seemed to be doing any good.
The lawsuits ground slowly on. The federal Judge had not even assigned the case to a magistrate, who would hear the arguments. According to the Evil Justice Foundation, the federal judge assigned to the case was "bad" and they thought he would not certify the case as a class action. "The federal suit is doomed," one evil Justice Attorney told the HEARTS leaders who attended the news conference the day the suit was filed.
Jenni reported this to all the other leaders and soon the information was spread to the membership, and the group was losing hope that legal action would get them their money back. The State Welfare Department continued to win as long as it kept the money. The state Mandamus case was moving forward at a torturously slow pace. HEARTS was determined that the media strategy would continue.
Jenni went back to the senior attorney at the Evil Justice Foundation and told her they had decided to continue to press the state publicly. The senior attorney became very upset and stated the group would cause them, the Evil Justice Foundation, to lose the suit. She told Jenni that she had never had clients who were pro-active, that none of her clients had ever made demands like HEARTS. None of her clients had ever challenged her about what should or should not be done like the group did.
Jenni stood firm with the senior attorney at the Evil Justice Foundation. It was her job to make sure the attorneys carried out the group's wishes. The senior Evil Justice Foundation attorney said, "well we don't represent you on the federal suit, on that suit we represent individuals. You can't; tell us what to do on the federal suit."
Jenni reminded the attorney that the people on the federal suit were members of her organization and the decision to file was made with the organization as a "double frontal attack" strategy. Never before had the Evil Justice Foundation asserted that they didn't represent the organization on the federal case.
The Attorney said, "We will see if the people who are named on the suit listen to HEARTS or listen to us." So the fight for control of people on the federal lawsuit began. HEARTS called all the named plaintiffs to ask for their allegiance to the group and to remind them the lawsuit was a tactic to help all families in the state who were harmed by the state welfare department.
The Evil Justice Department dispatched the Brilliant Attorney out to meet with two sisters who were plaintiffs in person to get them to change their allegiance from the group to the Evil Justice Foundation. Not surprisingly, the two low income moms chose to listen the Brilliant Attorney and began to doubt the group, especially after the Brilliant Attorney explained to them that it was all too legally complicated for them or HEARTS to understand. They needed the Brilliant Attorney to triumph over the all-powerful State Welfare Department.
The Evil Justice Department attorneys telephoned the other three plaintiffs of the suit; they did not shift allegiance. HEARTS wondered if this was because they were not approached in person. Were the other plaintiffs threaten or scared by the in-person visit in their home?
As the Mandamus case began to finally move forward, HEARTS was in an uncomfortable situation. The Evil Justice Foundation represented the group on the Mandamus action and controlled two of the five plaintiffs in the federal lawsuit. The governor's office was beginning to bend under the pressure of media campaign and took direct charge of the legal team for the state. A settlement conference to talk about both suits was called. HEARTS held a telephone conference of leaders and decide to send the staff attorney from and two of the plaintiffs from the federal suit to represent the group's interest.
The group no longer trusted the Evil Justice Foundation at all; but everyone they talked to, especially other attorneys, told them it would be a bad time to change legal representation. It could jeopardize the lawsuit.
HEARTS gave the Evil Justice Foundation written instructions about what they were willing to settle for. Basically there were three things: illegally withheld child support must go back to the families with interest; no reprisals or families having to pay back any welfare received when they got the extra child support; and a public apology from the Governor. The Evil Justice Foundation promised not to settle anything without the agreement of the group.
The settlement talks began, and the HEARTS staff attorney and the individual plaintiffs spoke out at the meeting about what they wanted. The Evil Justice attorneys made them go out into the hall to talk with them. At one point the Brilliant Attorney yelled at one of the plaintiffs, telling her she could not tell the governor's legal staff what the settlement demands were, and that they did not have a right to settle either of the suits. The HEARTS staff attorney argued with the Evil Justice foundation attorneys too. The governor's legal team agreed to all of the group's demands except the Governor's apology, if the federal lawsuit would be withdrawn.
The settlement conference ended with everyone supposedly going home to talk over the offer before agreeing on it. Jenni, the HEARTS President, had come to the state capitol to meet with the group's settlement delegation. When she met with the delegation they were ecstatic about the Governor's offer. The group and the three plaintiffs with allegiance to them were willing to withdraw the federal suit. They were angry because the Evil Justice Foundation refused.
The leadership was appalled about the Evil Justice Foundation blocking the victory. All of the work for over a year was turning into a victory. Families would get their child support refunded with interest! How could the Evil Justice Foundation try to stop this to get more? More what? The affected families had not expected to get more, the goal had been to get the child support refunded with interest!
The leader of the group was instructed to contact the Evil Justice Foundation board and let them know their attorneys were harming low-income families rather than helping them. The HEARTS attorney and other attorneys explained that the Evil Justice Foundation was in a legal conflict of interest between the two suits and that the Evil Justice Foundation should immediately withdraw from one of the suits.
A letter was sent to the Evil Justice Foundation telling them they were in a conflict, and they should stop preventing families from getting the child support refunds with interest. The Evil Justice Foundation only reacted with anger to this letter. The group went directly to the Governor's legal team and attempted to get a settlement without the Evil Justice Foundation. But the Governor's team would not just settle the Mandamus, the agreement only stood if it included both suits. The group went to the media, calling on the Governor to act to help the affected families.
The Evil Justice Foundation board responded by telling the group it was inappropriate for a client of the Evil Justice Foundation to come to them. They had to communicate directly with the senior attorney. During communications with the senior attorney after the most recent media coverage she told the group's leader, "I quit, if you keep talking to the press!" Great, the leader thought, until the staff attorney and other organization attorneys told her it was not good for the attorney to quit the Mandamus suit. It could cause the suit to be lost or delay any settlement. This would take the legal pressure off the Governor to act. She was told to tell the Evil Justice foundation senior attorney, you cannot quit, the judge has to let you quit. You are in conflict of interest, please resolve the conflict in favor of your client, the group.
Luckily the media strategy finally paid off. The Governor announced he was issuing an Executive Order to refund the child support to families with 6% interest, that families would not be penalized in any way and would not owe any welfare benefits back to state because of receipt of the child support. He would go to the legislature to seek release of $38 million plus funding for interest on the inappropriately withheld child support. In all, $44.6 million would be given to the poorest families in the state, those who had left the welfare rolls since welfare reform was instituted. Statewide, 160,000 families were to benefit.
The group was ecstatic. "We won!" the members and group leaders chanted! "We can beat the system! There is justice! It is over, all these months of anxiously waiting. Yahoo!
The Evil Justice Foundation wasn't happy. They hadn't won a law suit, they had not collected legal fees. They continued to refuse to withdraw the federal suit. They finally announced that there was a conflict of interest in representing the group on the Mandamus and the two plaintiffs on the federal lawsuit and withdrew from representing the group on the Mandamus and turned over legal representation to the assistant attorney from Legal Aid. The Legal Aid attorney had only agreed to help with the Mandamus if it would not take much time. The lead counsel was the Evil Justice Foundation. Now he had inherited the whole enchilada at a crucial time.
Many decisions had to be made. Should they continue the Mandamus or dismiss? Was it best to keep the suit open until the families actually received the child support refunds or did it matter? Ultimately the decision was made to keep the Mandamus open as long as possible to help ensure that refunds were timely. The group had to go to the state legislature and make sure the bill releasing the $44.6 million was passed. To their astonishment, the House of Representatives acknowledged HEARTS from the House floor and gave the leader a standing ovation after the bill was passed.
On the federal suit, which the Evil Justice Foundation would not withdraw, the three group members listed as plaintiffs did not want to be represented by the Evil Justice Foundation. The group had to hire another attorney to represent them to protect their interests. Months and finally a year went by before the federal court dismissed the federal suit. "At last!" thought HEARTS, and the plaintiffs with allegiance to them.
But alas, the Evil Justice foundation decided to appeal the decision. So the saga continues.
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