November 2014
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Compassionate Lawyering

by Jonathan Wallace

Yesterday, I spent an hour with a client in her Brooklyn apartment, in a neighborhood I have been visiting every other week or so. It began when I represented a neighborhood activist in a criminal court appearance resulting from a civil disobedience arrest. She told me about the rapid gentrification, the landlords not cashing the checks of rent stabilized tenants and then suing them for eviction, the tear-downs of affordable housing and its replacement with luxury high rises. Two months later, I have filed an article 78 proceeding against the Community Board, am representing some tenants in Housing Court or in negotiations with landlords, and have met with tenants' organizations of two buildings. It occurred to me that I now routinely make house calls, in a neighborhood where most of my peers wouldn't venture, and I felt happy and proud.

I also have a very active pro bono practice representing activists in criminal court. It started when I got arrested on the night of the Zuccotti Park eviction, an exemplary civics lesson for any lawyer or in fact any white, middle class citizen of this country. The National Lawyers Guild represented me, for free, and I began hounding them to let me volunteer to stand up for others. They graciously invited me in and provided me with mentors and support, and since then I have represented about a hundred people in various appearances, pleas and trials. I have been interested in the First Amendment my entire career, and had filed amicus briefs on Internet free speech issues, but for the first time I am actually litigating free speech issues at street level, which is very different.

All this risks sounding like I am boasting; but I wanted to write about this because I feel I am closing in on an answer to a question which bothered me my whole life: the how, why, what, when and where of using the skills you have to help other people. As if my brain and heart didn't speak to each other (perhaps a primary and fatal ailment of our age), I was always intellectually baffled by the problem of how to help groups of people, and yet instinctively jumped in to assist individuals when I saw an opportunity. I just never related the work I occasionally did to the unsatisfying and incomplete intellectual framework I tried to construct.

Most lawyers are too busy, or too self-satisfied or uncaring, to do any pro bono work. In recent years the bar has paid lip service to the idea we should all dedicate a portion of our hours to socially relevant and unbilled tasks; but when you look around the legal landscape, you see a mass produced, bureaucratic,unsatisfying and often ineffective set of solutions. You can do some of the pro bono work available in this landscape without ever meeting an actual client; as a summer intern at a Wall Street firm I researched and wrote a section of a brief on behalf of a prisoner in a Southern state,whose voice I never even heard. You volunteer for and receive training from an organization which tends to limit your access to the people you are helping, and perhaps you see them for limited minutes in an office somewhere, where they file in resentful or hat in hand, and you are oblivious to the taint of inequality which hangs in the air. The organization through which you are volunteering limits and controls the time you spend, the tasks you do, and, most fatefully and fatally, who qualifies to be served. All of these organizations have had their budgets cut in recent years, and some are barely hanging on. Spend a day in housing court in any New York City borough, and you will see people losing their homes without representation of counsel because the legal services organizations practicing there only have the staff to represent a small number of the potential clients.

I assimilate this to the ongoing transition in what I call "late capitalism" from artisanal to mass-produced work. Law was one of the last of the truly artisanal professions, but is being forced into modes of mass production, with the corresponding losses of heart and quality and an increase in alienation among the lawyer-workers. Mass-produced pro bono work is no exception. This is a complex topic and I hope to write an essay about it sometime soon.

We are trained as lawyers to think that if you can't go in at the highest possible level, its not worth doing anything. This becomes a sad excuse for inaction. I often daydreamed about the amazing work I could do if I only had, say, five million dollars of capital to fund my own nonprofit, and in the 90's I set out to make the ten million I thought would be necessary to support that. I had a series of near misses, which were very educational, and am now semi-comfortably semi-retired driving used cars and wearing thrift shop suits. I never knew for sure what I would have chosen to focus on if I had had the means (Internet free speech? Campaign finance? Privacy and surveillance? Inequality? War? All of the above?) Would I have gotten bored running a bureaucracy? What I never admitted to myself was that top down solutions can be inherently vague and unsatisfying, don't engage the heart because they are not really about people.

I encountered top-down thinking the other day assisting a group of new clients who had approached a national civil liberties organization after being arrested. They wanted to challenge a particular law, and were told that they hadn't positioned their case properly. The renowned expert with whom they met told them, with a straight face, to accept pleas in the current case, then get arrested again under somewhat different circumstances he described in detail. When they came to me, by contrast, my mind started to race considering their actual circumstances: what could I argue? And I found a lot of ammunition (see my observation below about war metaphors). In my world, they didn't have to get re-arrested.

When the fog cleared, when I finally stopped imagining high level solutions I could personally create or influence, I found myself with a very satisfying variety of highly interesting human beings as pro bono clients. In the past few years, I have tried disorderly conduct cases, and defended people in mortgage foreclosures and eviction proceedings. All of the clients have my cell number--it is my only phone number--and know they can call me any time, and I have been to many of their apartments and houses (I work from home in Queens and have no office). It hit me one day that, without over-thinking it, I had started doing interesting, free work client by client, human by human, as a much more fulfilling substitute for a top-down, cause-based approach. This has made me stretch as a human and a lawyer: the stakes are high, for if I lose, someone gives up their home or their freedom. In the commercial litigation I always did before, most clients would be worth a little more or less money depending on the outcome and would be fine either way. Now I am frightened some of the time, but that fear reminds me I am human, that life matters, that I matter.

I find it impossible to write about this without saying some things I would once have put away from me as truisms--which I just found defined as "a statement that is obviously true and says nothing new or interesting". I wouldn't have seen it twenty years ago, but the value judgment implicit in the last five words is rather stunning and laughable. What obvious human truth is brand new? We have been debating, circling around, avoiding "Do unto others" since long before Jesus. What does it mean to say a moral perception or rule isn't "new or interesting"? That we can ignore it? Isn't that a non-sequitur?

Anyway, let me remind you of the story of the star-thrower. A young woman on the beach is throwing stranded starfish back into the surf, and a high-foreheaded, large-spectacled male interlocutor disdainfully says, "Do you realize how many billions of stranded starfish there are, on all the beaches, all around the planet, today alone? Do you realize that the vanishingly tiny percentage of them you are returning to the ocean cannot possibly matter?" The young woman, undaunted, replies, "It matters to them" and continues saving starfish.

The biggest discovery I made is that there is barely a hair of difference between me and the clients. Yes, I am almost always wealthier and more comfortable and often of a different race, but I recognize and identify with their compassion, their weary pragmatism, their desire to hang on, do the best they can, make a life for themselves and their children. It is a recapitulation of the same epiphany I had working on ambulances: we are all just trying to get by, and sometimes the world won't let us. I have reached a point at which I would frankly rather hang out with my Brooklyn clients than with any assorted group of white middle class homeowners and professionals, because I am likely to encounter much more superficiality, entitlement, and hypocrisy in the latter group. The people who can't just live because their landlords are trying to get them out and the cops are stopping and frisking them never have an opportunity to develop that unthinking vanity.

I have had some other incidental insights along the way. An admittedly, officially pro bono approach can influence the adversary positively. I now immediately tell the lawyer for the landlord or bank that I am working for free. This communicates that I will never drop out because the client cannot pay the fee, so I can't be outwaited or worn out, no matter how much paper they hurl at me. Talking straightforwardly to the adversary can inspire trust in return. In a case against a large bank, I told the lawyers that I was suing for one reason alone, to keep my client in his home, not for damages or my legal fees or for notoriety. I even took them to visit my client, a calculated risk which paid off when we reached a resolution allowing him to stay in his house.

Another not so pleasurable realization that I had, when representing pacifists, was that I couldn't get through a conversation about the law without using military metaphors: ammunition, lines of attack, blowing up the adversary's ideas or unconstitutional procedures, winning battles and wars.

Recently, I had the lovely opportunity to represent and get to know some members of Catholic Workers, and it hit me that, without knowing or planning it, I was practicing law according to Dorothy Day's tenets of compassion and "personalism". Another quotation I think of a lot, is what Aragon said in Lord of the Rings: "I have no help to send, so I must go myself". I often quote a line said by someone I no longer name because he has led a bad life: "90% of life is just showing up." These are good aphorisms for a law practice, and there is no reason why I should be almost alone in making house calls, or standing up, for free, in housing or criminal court for clients who came to me personally rather than through organizations. The reason I know I am alone is the same way you knew no-one else in high school had your exact schedule: because then she would be in every one of your classes. When I go to Brooklyn, I don't meet any other lawyers leaving the buildings I am visiting. Nobody ever says, the lawyer who was here last week....The consequence is that I feel I have to stay healthy, stay alert and interested, because if anything happened, some of my clients would not find another lawyer. Although I am privileged to be self sufficient enough to give away half my time, there is not a lawyer out there who couldn't take on a free client or two.

In the last analysis, my pro bono work results from an internal click which happens when someone says, can you help me? I don't want to be that lawyer, that human, who said no.

For the first time in my life, I am proud to be a lawyer.