This is part of our symposium on the legal representation of poor people.
“To put the matter crudely: if one relegates a certain social space simply to the selfish acquisition of material things, it is almost inevitable that soon someone else will come to set aside another domain in which to preach that, from the perspective of ultimate values, material things are unimportant; that selfishness-or even the self-are illusory, and that to give is better than to receive.. . .. Pure greed and pure generosity are complementary concepts; neither could really be imagined without the other; both could only arise in institutional contexts that insisted on such pure and single-minded behavior; and both seem to have appeared together wherever impersonal, physical, cash money also appeared on the scene.”– David Graeber, Debt: The First 5000 Years.
In their call to young lawyers entering public interest, Hershkoff and Loffredo remark that students entering public interest work are often held up by the sense that they are “losing out” by entering public service – in status, first and foremost. They work to dispel that selfish notion of individualistic altruism, and as the quote above illustrates, the individualistic altruism view is nothing more than a reverse manifestation of the individualistic greed that motivates much of the profession. The ideology underpinning individualistic altruism infects many of those who do enter public service law and this view glorifies powerlessness, when power is precisely what we need if we are to end injustice.
Public interest attorneys must conceptualize the work as in the holistic interests of both themselves and their clients and not as merely selfless altruism. Downwardly-mobile attorneys are badly saddled by school debt, and high rent. For lawyers of marginalized identities, all of this compounds on top of oppressions rarely ameliorated by simply occupying a “professional” occupation. In other words, public interest attorneys share interests with our clients in ending racial, gender, and economic injustice. The martyrdom culture of “heroic” public interest attorneys must be replaced with a sense of solidarity.
The basic problem with the view of public interest law as self-sacrifice is that it encourages a culture of martyrdom. That culture of martyrdom is the pervasive belief that one ought to be losing things valuable to oneself in a pure attempt to benefit others. The loss is as significant, or sometimes moreso, than the gain experienced by another. “He pulled an all-nighter and went down fighting” is admirable not because of the outcome, but because of what was given up by the fighter. This, in turn, encourages some quantity of acts that are performative, or even self-harming, without necessarily producing a proportionate benefit to another. This liberal altruistic view of public interest lawyering glorifies powerlessness, when power is precisely what is needed to end injustice. The narrative of noble resistance also absolves the young lawyer of the responsibility to actually change the system, because the scoreboard is based only on the quantum of individual struggle. Among white defenders, I suspect this view is part of a narrative of white guilt or white savior-ism, and is an example of how guilt may hamper substantive action.
This liberal altruistic view ultimately undermines projects for shared liberation. One aspect of the problem has been persuasively argued for by Abbe Smith, who critiques Charles Ogletree’s model of “emphathy and heroism” for public interest legal work. Smith points out the flaws in common liberal idealist motivations for the work, like constitutional idealism, as an insufficient basis for sustained motivation. The pursuit of an abstract ideal, if counterposed with one’s own material needs and the grinding realities of the work, will eventually wear away. Public interest attorneys in this model are far more likely to burn out, viewing their work as an impossible quest for individual moral perfection, and viewing themselves as a quantity to be poured away for the benefit of another.
Not only does this altruistic model lead to offices with high turnover, as idealistic defenders burn out, but it also limits the power of public interest attorneys, by alienating them from their own material interest in the work. The culture of martyrdom is frequently a factor deployed by management seeking to break unionization efforts, as they tell workers “you shouldn’t be concerned with your high caseloads, low pay and hard working conditions. It is our job to suffer for our clients.” Without worker-led unions that can fight both in their own interests as workers, and their shared interests with clients in ending policing and mass incarceration, defenders are left trying to change the system as heroic individuals, instead of as organizers with a mass movement.
But Smith’s approach fails in replacing Ogletree’s individualistic liberal motivations of “empathy and heroism” with a second set of individualistic liberal motivations. Smith suggests that the sustaining motivation for defenders can be “respect” for our clients (rather than “empathy”) and personal pride in our craft. But these motivations, like Ogletree’s, still divert public interest attorneys away from viewing themselves as parts of a mass movement focused on transforming society, instead directing them towards thinking of themselves as individuals resisting an unchangeable system system. Hershkoff and Loffredo point in a better direction, in directing public interest lawyers to both help people secure existing rights, and work with communities to win an expansion of these rights.
This task requires a public interest law model of solidarity. In this view, there is a material (not just idealistic) value to the long hours of work we put into public interest law – if we do it right, we can build collective power. Solidarity housing attorneys fight against landlords with their clients, not just in the client’s interest, but in their shared interests as renters or mortgagers, who could one day also be evicted. Solidarity public defenders fight against the racist system of mass incarceration, because the police will also be turned against us to limit our power and immiserate our own lives (though seldom to the same degree as our clients). As Angela Davis expressed, public interest attorneys should fight for our clients because “[i]f they come for me in the morning, they are coming for you that night.”
On such a view, our clients are not objects of our pity (though there will always be a visceral emotional response to suffering and injustice), nor are they (except incidentally) friends, but rather, our potential comrades. As Jodi Dean eloquently explains in her essay Comrade, the term denotes something specific. Our comrades are not always people we like (and indeed, we will not like all of our clients), but rather, people who are bound together in a shared struggle for liberation. We should not just serve poor communities, but work to develop long-term, organized relationships for shared power.
This ethos is not new, but in fact, very old. Before public interest law came to be dominated by the non-profit industrial complex, the movement for public interest law was led by communists and socialists motivated by their own liberation as much as their clients. The defense of the poor was not a battle waged apart from our interests, but rather, was the front-lines of the struggle for our liberation as well.
The work of the communist attorneys in the International Labor Defense has been especially inspiring to me. In addition to fighting with legal arguments in the courtroom, they organized on the ground. The ILD staged mass demonstrations in cities around the country involving tens of thousands of people in support of the release of their clients. They helped organize communities to create mutual aid networks to support the families of the incarcerated. This organizing and these networks developed many of the relationships and leaders that would shape the next four decades of civil rights movement work, even after the Communist Party USA had collapsed.
As labor power declined since the 1970s, as laws regarding the poor became harsher, and as the deck became more stacked against public interest lawyers, it is easy to see why we lost the hope that motivated earlier generations, and replaced solidarity with a doomed and noble resistance.
If we are to reclaim the hope of winning, in a time of uprisings against rent, mass incarceration, and injustice, we must also educate aspiring public interest lawyers in the ethos of solidarity, so that they may sustain the motivation for the many fights to come.
Sam Allison-Natale (@publicdefender) is a criminal defense attorney living in Kansas.