Lawyers, Networks and Progressive Social Change

Lawyers Changing Lives

Jacqueline Kinghan

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509938100
• Edition: 1
• Topic: Law
• Subtopic: Legal Profession
• Index: Law

Written by a lawyer who works at the intersection between legal education and practice in access to justice and human rights, this book locates, describes and defines a collective identity for social justice lawyering in the UK. Underpinned by theories of cause lawyering and legal mobilisation, the book argues that it is vital to understand the positions that progressive lawyers collectively take in order to frame the connections they make between their personal and professional lives, the tools they use to achieve social change, as well as ethical tensions presented by their work. The book takes a reflexive ethnographic approach to capture the stories of 35 lawyers working to positively transform law and policy in the UK over the last 50 years. It also draws on a wealth of primary sources including case reports, historic campaign materials and media analysis alongside wider ethnographic interviews with academics, students and lawyers and participant observation at social justice conferences, workshops and events. The book explains the way in which lawyers' networks facilitate their collective positioning and influence their strategic decision making, which in turn shapes their interactions with social activists, with other lawyers and with the state itself.

1

Introduction

Using narrative research methodology, the central aim of this book is to investigate whether a network-based progressive lawyering movement exists in the UK. In view of this aim, and informed by the theoretical framework outlined in chapter two, the wider research questions underpinning this study are as follows:

1.What stories do lawyers tell about how they pursue social change?

2.How do they construct and negotiate their identity as progressive lawyers?

3.How do they describe the tools they use to achieve social change?

4.How do they perceive professional ethical tensions in their work?

5.How do they think of and construct the challenges to sustaining progressive lawyering in future?

This is not a study of the success or failure of the tools that lawyers use, but of the processes by which lawyers construct and negotiate how and why they use them across their networks. I am especially concerned with the difference that a collective progressive lawyering identity might make to both legal education and practice in the UK. As I will explore, the professional lives of lawyers have been subject to considerable change over time but the values and motivations underpinning their work remain constant. These values are strongly held and form an important link between personal and professional life, such that they are often described in emotional terms. While scholars have traditionally viewed progressive lawyers, and cause lawyers, as being on the ‘fringe’ or ‘edge’ of the legal profession,¹ I am interested in where lawyers perceive themselves to be situated in relation to one another, the rest of the profession and the state itself. I therefore analyse participants’ experiences of unique periods in legal and social history, weaving both personal and professional narratives and providing contemporary analysis of their accounts.² The book documents lawyers’ perspectives across a spectrum of both strategic³ and high-volume day-to-day casework in areas of law that we now understand as social welfare and human rights (although this is not necessarily how they were understood in the early decades of the study).

Throughout the book I explore in depth the lives of 35 progressive lawyers on the left of the political spectrum who seek to transform both law and policy through the causes they pursue and the clients they represent. In my wider ethnography I draw on interviews and field notes from many other encounters with progressive law students, lawyers and campaigners through my role teaching and working in partnership with charities and NGOs at the UCL Centre for Access to Justice.⁴ I use the term ‘progressive’ in order to capture a diffuse group of lawyers all on the left working to advance social change.⁵ Importantly, the term has the potential to embrace a broad range of legal activity across a variety of subject areas⁶ and practice-sites in the UK (see chapter three for full discussion of the identification of progressive lawyers). While the terms ‘social justice’, ‘human rights’ or ‘activist’ lawyer might adequately describe some participants in the study, the term ‘progressive’ conveys participants’ collective focus on ensuring that institutions are held to account and that governments have a role to play in addressing unfairness in society.⁷ It also reflects the shared desire to shift resources and power from the top of social hierarchies to those experiencing exclusion and disadvantage at the bottom.⁸ The term also captures lawyers working as both radicals and reformers,⁹ and further connects the research to critical legal studies thus encapsulating the rejection of an idealised version of the law that is separate from politics.¹⁰

Chapter two sets out the theoretical and historical foundations of the study. Drawing upon cause lawyering literature, against the backdrop of broader theories of public interest lawyering and legal mobilisation, it considers the different tools that lawyers use to achieve change. In view of the unique relationship between lawyers and the state by the UK’s legal aid model, the chapter sets out its historical development in order to understand the changing context of progressive legal practice. I argue that in view of the current context of constrained resource and wider pressure on the justice system, the ‘conservative’ and ‘radical’ spectrum of lawyering traditionally outlined in the literature has become more nuanced for progressive lawyers in the UK.¹¹ Chapter two also introduces the central theme of identity and considers collective identity and social movements as a basis for delineating the work of progressive legal practitioners and the personal and social interactions that lie at the heart of their casework, policy advocacy and campaigns. I outline in this context the value of a network-based approach as a basis for identifying a social movement of progressive lawyers in the UK.¹² As I argue in this chapter, theoretical insights can be derived from the controversies within cause lawyering theory and I set out the relevance of these controversies with a focus on ethical and professional critiques.¹³ The chapter explores whether progressive lawyers transcend traditional ethical boundaries by striving to achieve social change and the extent to which their values and beliefs might inform, for example, their case selection or involvement in wider campaigns.¹⁴ By drawing together the literature on cause lawyering, legal mobilisation and social movements I shift the focus to lawyer motivation within and across progressive legal networks; and interrogate the difference collective identity might make to lawyer’s strategies to pursue social change. Finally, the chapter considers the extent to which alternative visions of lawyering might assist in overcoming these controversies and their relationship to legal education.¹⁵

Chapter three explains the research process and outlines how participants were identified for the study. Many are considered elite in their field: they hold senior positions in private practice or in charities and NGOs working across the policy and practice of human rights. Others are highly esteemed within the progressive legal movement for their work at grassroots level daily representing vulnerable clients in law centres and legal aid law firms. Five subsets of progressive legal practice are delineated: Barrister-Campaigner, Legal Aid Lawyer, Charity/NGO Lawyer, Law Centre Lawyer and Law Clinic Lawyer. There is of course much overlap between these types of progressive lawyering, and movement between them, but I demonstrate how participants in the study, irrespective of labelling, tend to recognise lawyers within and across these subsets as forming part of a movement of lawyers ‘like us’. The chapter explains how the subsets of practice might also be thought of as ‘network nodes’, which facilitate interactive processes and a shared sense of belonging that is central to the concept of a social movement.¹⁶

Drawing on narratives from the study chapter four explores whether progressive lawyers share a collective identity. I interrogate the ways in which lawyers describe their own backgrounds and values as both a motivating and sustaining feature in the work they do and set out the relevance of social class, which is a prevalent narrative theme, and widening access to the profession. My aim is to delineate how lawyers in the study collectively frame who they are and their motivations for what they do. The chapter recognises how progressive lawyers engage in processes of social identification from early on in their careers in order to frame a personally meaningful but collectively experienced turning point away from corporate legal practice. A key finding is the relevance of social class to constructions of narratives around pathways to practice and the connections made between personal experience – often expressed in emotional terms as anger at the experience of injustice – and a desire to make a difference in one’s professional life for others. Across class backgrounds, and despite divergent approaches, I explain that a collective identity exists for progressive lawyers as illustrated by their shared constructions of turning points, values and motivations within and across their networks.

Chapter five addresses the ways in which lawyers construct the tools they use to achieve social change and identifies the relationship between those tools and state funded legal aid. As explored in chapter two, the relationship between progressive lawyers and the state is salient in view of changes to legal aid, challenges by way of judicial review and continuing activism by lawyers on access to justice and human rights issues. Building on this discussion, I seek to explore narratives that describe the changing perceptions and constructions of tools for change over the five decades of the study. I describe lawyers’ perceptions of their relationship with the state in their roles as campaigners and how those campaigns relate to strategic litigation. The chapter outlines the historic divide between the pursuit of strategic litigation and high volume casework and considers lawyers’ narratives in relation to both. My focus is on the strategies that lawyers pursue and what they believe they are accomplishing.¹⁷ I argue that networks are an important factor in understanding lawyers’ collective beliefs about the strategies they adopt and outline how narrative analysis reveals a deeper understanding of the relationship between the different tactics lawyers use and the collaborations that exist to support them. As such, I illustrate how the distinctions between different types of cause lawyering activities have become more nuanced in recent years by virtue of the access to justice crisis as a result of, for example, cuts to legal aid and wider austerity reforms.

In chapter six the exploration of collective identity is developed by analysing the ways in which progressive values are instilled in legal education. I analyse narratives in the study that draw on participants’ own experiences of legal education across different contexts and periods of time. The theme of social class is prevalent again and experiences of exclusion and their recurrent relevance in later professional life are examined. Throughout the chapter, I explore several contrasting narratives and highlight how experiences studying in the US leads to personally meaningful constructions of law and social change and networks of interaction.¹⁸ One outlying participant in the study is identified whose educational experience in a UK context conveys a similar experience of learning to those who have studied in the US, and this narrative is explored in depth by way of comparison. I seek here to begin to outline the ways in which a renewed cultural, experiential and critical approach to legal education¹⁹ might develop lawyers’ consciousness of law and social change. The chapter begins to highlight the ways in which such collective consciousness might better sustain the future of progressive lawyering despite pressures in the contemporary context, which are discussed further in chapter eight.

In chapter seven I explore how participants in the study construct and negotiate ethical tensions in their work in order to contribute to the body of knowledge in relation to professional and ethical controversies outlined in chapter one. My focus rests on the ways in which the representation of the progressive social self serves to embed professional ethical controversy. As this chapter shows, drawing out and confronting tension in legal ethical decision making can be uncomfortable but I argue that the silence, and discomfort, is in itself a resource to be drawn upon in order to better understand lawyers’ engagement with ethical rules. In...