Leaders, Followers, and Free Riders: the Community Lawyer's Dilemma When Representing Non-Democratic Client Organizations
This Faculty Working Paper has been updated and posted within the Georgetown Law Faculty Publications series in the Scholarly Commons. It is currently available at http://scholarship.law.georgetown.edu/facpub/515/
Abstract
Lawyers who represent group clients from disenfranchised communities face a number of recurring political and ethical issues that are often as central to their practice as the underlying legal questions. These include whether the group's leadership is legitimate, whether the group's decision-making process is or ought to be democratic, and whether, and the extent to which, the attorney should intervene in the group's decision-making process. These issues are not addressed in any depth in the community lawyering literature. This body of work largely takes as a given the legitimacy of group leadership and decision-making or adheres strictly to Model Rule 1.13, which requires, with limited exception, that lawyers who represent groups follow the dictates of the group's “duly authorized constituents.” In this paper we argue that a proper analysis of how a lawyer should act in representing non-democratic groups must be based on the nature of the group, its goals and its leadership. The paper begins by setting out the problems confronted by community lawyers representing groups. It then examines sociological literature about organizational theory and about the definition and nature of groups and social psychological literature about leadership and followership. We go on to discuss these theories in the context of the existing literature and the Model Rules of Professional Conduct. Our analysis reveals that the Model Rules do not provide guidance for lawyers in a community practice. We conclude by proposing a set of factors lawyers should consider when evaluating their representation of non-democratic community groups and call for the development of a set of ethical rules that address this important area of practice.