Paternalistic Interventions in Civil Rights and Poverty Law: A Case Study of Environmental Justice

Abstract

Low-income communities of color in Miami and in cities across the nation share the aspiration of equal justice and democratic participation and suffer the burden of legal underrepresentation and political disenfranchisement. That burden turns crippling when, as here in Miami, local legal aid offices, public interest organizations, and bar associations lack the resources to provide meaningful access to justice or engagement in the political process, and likewise, when local and state governments adopt policies that engender inner-city neglect, economic displacement, and racial exclusion. In these circumstances, volunteer lawyers from private sector law firms sometimes constitute the last best hope for individual residents and neighborhood groups in need of legal and political representation.

For many volunteer lawyers, the call of pro bono service comes from individual clients. For others, the call emanates from broader causes. And for some, the call rises from a sense of place and history, from the experience – real or imagined – of community itself. Whatever its source, for all, the call of pro bono service evokes a strong, discretionary sense of lawyer paternalism toward clients, their causes, and their communities. By lawyer paternalism, I mean interventions that not only interfere with a client’s “autonomous choices,” but also disregard or override a client’s value “commitments that make the client’s life meaningful and so impart dignity to it.”

This Review considers the call of community representation for pro bono lawyers, and their public interest cohorts, and the moral/ethical issues of paternalism they may encounter. Because a full account of such nettlesome issues is beyond the scope of this inquiry, the Review confines its analysis to three specific types of lawyer paternalistic intervention: coercive settlement counseling tactics, termination of representation threats, and censorious public disclosures. Against this backdrop, the Review explores Sarah Conly’s provocative new book, Against Autonomy: Justifying Coercive Paternalism, in search of the best moral/ethical justification for a lawyer’s discretionary, paternalistic use of coercive counseling, termination, and disclosure tactics. Borrowing Conly’s defense of government-sponsored policies of paternalistic regulation and engrafting its core libertarian and coercive theories on the lawyering process illuminates the moral/ethical complexities and risks of community-based lawyering for pro bono attorneys. The Review proceeds in three parts. Part I sketches a framework for the study of community representation in the context of environmental justice advocacy. Part II explores Conly’s arguments for greater state-instituted paternalism. Part III considers the implications of Conly’s arguments for the use of coercive lawyer tactics.