Group Representation in Wage and Hour Cases
Thursday, October 4, 2018
1.5 MCLE Credits | 1.5 Ethics
Sponsored by the Committee on Legal Aid and the Committee on Continuing Legal Education of the New York State Bar Association
This program is offered for educational purposes. The views and opinions of the faculty expressed during this program are those of the presenters and authors of the materials. Further, the statements made by the faculty during this program do not constitute legal advice.
Copyright © 2018 All Rights Reserved New York State Bar Association
Program Description
This workshop will explain the basic legal requirements of multi-plaintiff, collective and class action wage theft cases under the Fair Labor Standards Act and New York Labor Law brought by resource limited legal services and non-profit firms. It will also explore ethical issues arising in group representation and partnership with worker centers.
Program Agenda
I. Benefits of Group Representation 9:15 a.m. Considerations for Legal Services offices
II. Review of Fair Labor Standards Act Collective Actions 9:30 a.m. Minutes
III. Review of New York Labor Law Class Actions 9:45 a.m.
IV. Partnering with Worker Centers and Co-Counsel Ethical and Logistical Considerations 10:00 a.m.
V. Challenges in Group Representation 10:15 a.m. a. Communication b. Decision Making c. Settlement
Q & A 10:25 a.m.
Accessing the Online Course Materials
Below is the link to the online course materials. These program materials are up-to-date and include supplemental materials that were not included in your course book.
www.nysba.org/Partnership2018Materials
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Group Representation in Wage and Hour Cases 2018 Partnership Conference Thursday, October 4, 2018 | Albany
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New York State Bar Association One Elk Street, Albany, NY 12207 Phone: 518-463-3200 | Secure Fax: 518.463.5993 Table of Contents Group Representation in Wage and Hour Cases
Outline - Section 1 ...... 1 Outline - Section 2 - Class and Collective Actions in Wage and Hour Litigation 5 Outline - Section 3 - Partnering With Worker Centers and Co-Counsel ...... 23 16 First Amended Complaint ...... 25 37 Memo of Law for Motion for Protective Order ...... 41 33 Memo of Law in Support of 32 Motion to Certify FLSA Class ...... 49 70 Memo of Law in Support of Class Cert ...... 67 Law Review Articles ...... 91 NYS Rules of Professional Conduct ...... 239 ABA Model Rules of Professional Conduct ...... 243 Sample Co-counsel Agreement ...... 245 329-1 Clean Revised Notice ...... 249 23-9 Ex. 5 Roseman Notice ...... 253 23-2 Ex. 2 Reminder Postcard ...... 255 Faculty Biographies ...... 259
Copyright © 2018 New York State Bar Association
SECTION 1
1. EVALUATING A POTENTIAL MULTI-PLAINTIFF, COLLECTIVE OR CLASS ACTION
Jose Bermudez comes to your monthly workers’ rights legal clinic at Mid-Hudson Worker Center and tells you the following: He was employed by a landscaping company that serviced large-scale residential and commercial clients for nearly 18 years. Recently, he had a dispute with the new manager and quit his job. He was never paid for his last week of work but he also thinks there is something wrong with the way he was regularly paid. He often worked more than 40 hours in a week. He was paid by check for the first 40 hours and in cash for the additional hours. His hourly rate of pay was the same for all hours worked. He was the foreman of crew and responsible for recording everyone’s work hours. Several years ago, he started making copies of these time sheets which he shows to you. He also shows you his pay stubs and some handwritten records of his cash wages. Mr. Bermudez explains that he and the other workers were required to report to their work sites about 20-30 minutes before their “official start time” and unload their equipment but they were never paid for this work. He says the company usually employed between 15-20 workers during the season and that there was a lot of staff turn over each year. He is upset about the way the new manager treated him after so many years of working for the company. He wants to get whatever compensation is owed to him under the law and says he is willing to go to court if necessary. He thinks there are at least 4-5 other former employees who might also be interested but that a lot of the workers would be scared to participate because of their immigration status. Mr. Bermudez is a United States citizen.
Questions:
a. What reasons are there to consider bringing a collective and/or class action in this case? b. What additional information do you need to evaluate the potential for a multi- plaintiff, collective and/or class action? c. How do you explain to Mr. Bermudez his options, including the possibility of bringing a claim on behalf of other workers? d. How do you assess the potential magnitude of the case (i.e. the work involved, the likely duration of the litigation and required resources)?
1
2. BENEFITS AND CHALLENGES OF GROUP REPRESENTATION IN WAGE AND HOUR CASES – SPECIAL CONSIDERATIONS FOR NON-PROFIT PRACTITIONERS
a. BENEFITS i. Assist more individuals with limited legal staffing resources ii. Develop stronger case based upon additional testimony and evidence of widespread violations 1. Greater likelihood that someone in the group has corroborating documentary evidence 2. Helps combat biases based on race, class, assumptions about immigration status, and language of testimony iii. Achieve greater impact in combating wage theft and other labor abuses iv. Obtain legal relief for undocumented immigrants who may not want to serve as named plaintiffs v. Support community organizing and worker center efforts to engage low- wage workers in collective action vi. Establish institutional presence of non-profit legal practice in state and federal courts vii. Fee generation and cy pres awards to support non-profit legal programming viii. Distribute/lessen financial burden of participating in litigation for low- wage workers b. CHALLENGES i. Identifying appropriate and viable multi-plaintiff, collective and class action litigation matters 1. Balancing group representation with need for legal assistance in individual matters affecting low-wage workers 2. Identifying potential plaintiffs willing to make commitment to long-term litigation and representative obligations 3. Determining potential defendants’ assets and assessing collectability 4. Identifying non-testimonial evidence of uniform policies and practices affecting low-wage workers ii. Managing the litigation 1. Maintaining communication with plaintiffs, opt-in plaintiffs and class members a. Geographic dispersion b. Limited availability of low-wage workers to participate in meetings, phone calls, etc. c. Loss of contact during protracted litigation 2. Costs
2 a. Filing fees, investigation (electronic records), depositions 3. Complexity a. Motion practice i. Protective orders ii. Strike defenses iii. Conditional certification iv. Discovery Motions v. Class certification vi. Summary judgment vii. Pre-trial motions b. Discovery c. Mediation and other forms of settlement negotiations 4. Decision-making a. Multi-plaintiff vs. class action i. Pressure on defendants and benefits of representative action stated above v. limited amount of money to pay workers ii. Disagreements among plaintiffs re: including other workers, division of settlement funds b. Advancement of organizational mission vs. interests of individual clients c. Division of settlement funds in absence of time and pay records
3. SAMPLE MATERIALS FROM COLLECTIVE AND CLASS ACTION BROUGHT BY NON-PROFIT LAW OFFICE a. Jose Barragan Contreras et al. v. Rosann Landscape Corp et al. i. Complaint ii. Motion for Protective Order iii. Motion for Conditional Certification iv. Motion for Class Certification
3 4 SECTION 2
Class and Collective Actions in Wage and Hour Litigation
I. Introduction
A. Collective Actions under Section 216 (b) of the Fair Labor Standards Act.
B. Class Actions under Rule 23 of the Federal Rules of Civil Procedure.
II. Certification
A. Certification under 29 U.S.C. § 216(b)
1. Two Stages:
i. First Stage: Conditional Certification.
The Second Circuit has approved a two-step approach in handling collective actions. See
Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010). At the initial “notice stage” plaintiffs must only establish that other employees are “similarly situated” to them. Realite v. Ark Rests.
Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998). At this initial stage “the Court is not being asked for a determination on the merits and the Defendant will have another opportunity to object to class certification after discovery.” Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317,
322 (S.D.N.Y. 2007).
For FLSA conditional certification “the court must examine whether the plaintiffs have made a ‘modest factual showing’ that they and potential class members are similarly situated insofar as they ‘were victims of a common policy or plan that violated the law.’” Jackson v.
Bloomberg, L.P., 298 F.R.D. 152, 158 (S.D.N.Y. 2014) (citing Myers v. Hertz Corp., 624 F.3d
537, 555 (2d Cir.2010)). The “modest factual showing” standard is very low and “considerably
5 less stringent than the requirements for class certification under Rule 23.” Jackson, 298 F.R.D. at
158 (citing Poplawski v. Metroplex on the Atl., LLC, 2012 WL 1107711, at *3 (E.D.N.Y. Apr. 2,
2012)). Because the determination that plaintiffs are similarly situated is merely a preliminary one, courts generally grant conditional certification. Jackson, 298 F.R.D. at 158-59.
If the plaintiffs meet their light burden to show similarly situated status, the court conditionally certifies the class and authorizes the plaintiffs to send notice to potential class members. Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 368-69 (S.D.N.Y. 2007).
Potential plaintiffs may then opt in pursuant to § 216(b) by filing consent to sue forms with the
Court. Id. In granting preliminary certification to a collective action, court-authorized notice is preferred because “[b]oth the parties and the court benefit from settling disputes about the content of the notice before it is distributed” and because such notice “serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff dates to expedite disposition of the action.” Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 172 (1989); Cohen v. Gerson
Lehrman Grp., Inc., 686 F. Supp. 2d 317, 326-27 (S.D.N.Y. 2010).
The Fed. R. Civ. P. Rule 23 requirements do not apply to FLSA “collective actions.” 29
U.S.C. §216(b). Under §216(b) collective actions, numerosity, typicality, commonality and representativeness are not in issue. Rather, there is only a threshold issue of whether the group is similarly situated. 29 U.S.C. §216(b); Hoffman v. Sbarro, Inc., 982 F. Supp. 249 (S.D.N.Y.
1997) (Sotomayor, J.). “It is unnecessary to show that putative class members share identical positions.” Schwed v. General Electric Co., 159 F.R.D. 373, 375 (N.D.N.Y. 1995). The question is whether there is a “factual nexus between [a named plaintiff’s] situation and the situation of other current and former [employees].” Sbarro, 982 F. Supp. at 262.
6 In Sbarro, the Court noted that it need not evaluate the merits nor wait for the completion of discovery: “To the contrary, the courts have endorsed the sending of notice early in the proceeding, as a means of facilitating the FLSA’s broad remedial purpose and promoting efficient case management.” 982 F. Supp. at 262; see also Patton v. The Thomson Corp., 364 F.
Supp. 2d 263, 268 (E.D.N.Y.2005) (early notice necessary “to preserve and effectuate the rights of potential plaintiffs whose claims might otherwise become time-barred during the discovery phase.”) When FLSA conditional certification is sought early in a case, “the court applies ‘a fairly lenient standard’ and (when it does so) typically grants ‘conditional certification.’” Torres v. Gristede’s Operating Corp., 04 Civ. 3316 (PAC), 2006 WL 2819730, at *7 (S.D.N.Y. Sept.
29, 2006) (citations omitted). “Hence, the merits of plaintiffs’ claims need not be evaluated nor discovery be completed in order for such a notice to be approved and disseminated.” Masson v.
Ecolab, Inc,. 04 Civ. 4488 (MBM), 2005 WL 2000133 *13 (S.D.N.Y. Aug. 17, 2005) citing
Sbarro, 982 F. Supp. at 262.
Notice should be sent early because, unlike a Rule 23 class action, the statute of limitations continues to run on class members until they opt in. 29 U.S.C. §255. As notice is delayed, claims die daily. Sbarro, 982 F. Supp. at 260. While early notice serves the FLSA’s remedial purposes, it does not prejudice the employer. Krueger v. New York Tel. Co., 93 Civ.
0178 (LMM), 1993 WL 276058, at *2 (S.D.N.Y. July 21, 1993) (“[E]ven if plaintiffs’ claims turn out to be meritless or, in fact, all the plaintiffs turn out not to be similarly situated, notification at this stage, rather than after further discovery, may enable more efficient resolution of the underlying issues in this case.”); accord Masson 2005 WL 2000133, at *15.
ii. Second Stage: The Decertification Motion.
7 The second stage of collective action certification typically occurs after substantial discovery has been conducted when defendants file a motion for decertification. “At the second stage, the district court will, on a fuller record, determine whether a so-called ‘collective action’ may go forward by determining whether the plaintiffs who have opted in are in fact ‘similarly situated’ to the named plaintiffs.” McGlone v. Contract Callers, Inc., 49 F. Supp. 3d 364, 367
(S.D.N.Y. 2014) (citation omitted). “If the record shows all putative class members are ‘similarly situated,’ the ‘conditional’ aspect is removed, the collective action is finally certified, and the matter proceeds to trial.” Morano v. Intercontinental Capital Grp., Inc., No. 10 CIV. 2192, 2013
WL 474349, at *2 (S.D.N.Y. Jan. 25, 2013).
Although “the standard is higher at this second stage, the ‘similarly situated’ requirement of 29 U.S.C. § 216(b) is considerably less stringent than the requirement of Fed. R. Civ. P.
23(b)(3) that common questions ‘predominate.’” Alonso v. Uncle Jack's Steakhouse, Inc., No. 08
Civ. 7813, 2011 WL 4389636, at *3 (S.D.N.Y. Sept. 21, 2011) (citation and internal quotation marks omitted). “All that is required is a persuasive showing that the original and opt-in plaintiffs were common victims of a FLSA violation pursuant to a systematically-applied company policy or practice such that there exist common questions of law and fact that justify representational litigation.” Pefanis v. Westway Diner, Inc., No. 08 Civ. 2, 2010 WL 3564426, at
*4 (S.D.N.Y. Sept. 7, 2010). “The Second Circuit has yet to prescribe a particular method for determining whether members of a class are similarly situated....” Morano, 2012 WL 2952893, at *5. However, district courts typically review several factors, including (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendant which appear to be individual to each plaintiff; and (3) fairness and procedural
8 considerations. Id.; see also Ayers v. SGS Control Servs., Inc., No. 03 Civ. 9077, 2007 WL
646326, at *5 (S.D.N.Y. Feb. 27, 2007).
B. Rule 23
“By its terms [Rule 23] creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010) (supplemental state claims subject to Rule 23 notwithstanding different state procedures). District courts regularly permit classing state wage claims along with a federal FLSA collective action. See, e.g., Flores v. Anjost Corp., 284 F.R.D.
112 (S.D.N.Y. June 19, 2012); Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81
(S.D.N.Y. 2001); Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363 (S.D.N.Y. 2007); Lee v. ABC Carpet & Home, 236 F.R.D. 193 (S.D.N.Y. 2006); Velez v. Majik Cleaning Service, Inc.,
No. 03 CIV. 8698 (SAS), 2005 WL 106895 (S.D.N.Y. Jan. 19, 2005); Noble v. 93 University
Place Corporation, 224 F.R.D. 330 (S.D.N.Y. 2004); see also Krueger v. NY Telephone
Company, 163 F.R.D. 433 (S.D.N.Y. 1995); Brzychnalski v. Unesco, Inc., 35 F. Supp. 2d 351
(S.D.N.Y. 1999) (state wage class certified along with federal FLSA collective action).
The Second Circuit clarified the court’s responsibilities in determining a Rule 23 class certification, in Initial Public Offering Securities Litigation v. Merrill Lynch & Co., Inc. 471 F.3d
24, 41 (2d Cir. 2006), holding that “a district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met.” The court went on to find that the fact that determining a Rule 23 requirement overlapped with a merits review did not preclude such a review. The certifying court should not make any factual findings or merits determinations that are not necessary to the Rule 23 analysis, however, and any factual
9 determinations made at the certification stage are not binding on a subsequent fact-finder, even the certifying court. Id. at 41.
“A motion for class certification should not . . . become a mini-trial on the merits.” Lewis Tree Serv., Inc. v. Lucent Techs.,211 F.R.D. 228, 231 (S.D.N.Y. 2002). “The dispositive question is not whether the plaintiff has stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Kowalski v. YellowPages.com, LLC, No. 10 CIV. 7318 PGG, 2012 U.S. Dist. LEXIS 46539, 2012 WL 1097350, at *12 (S.D.N.Y. Mar. 31, 2012) (quoting Lucent Techs., 211 F.R.D. at 231). In sum, the Court’s task at the Rule 23 stage is not to resolve the liability question, but to decide “whether the constituent issues that bear on [Defendants’] ultimate liability are provable in common.” Myers v Hertz Corp., 624 F.3d 537, 549 (2d Cir. 1020) (emphasis added). “The Second Circuit has emphasized that Rule 23 should be given liberal rather than restrictive construction, and it seems beyond peradventure that the Second Circuit’s general preference is for granting rather than denying class certification.” Espinoza v. 953 Associates LLC, No. 10 CIV. 5517 SAS, 2011 U.S. Dist. LEXIS 132098, 2011 WL 5574895, *6 (S.D.N.Y. Nov. 16, 2011) (quoting Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 361 (E.D.N.Y. 2009)).
Flores v. Anjost Corp., 284 F.R.D. 112, 122 (S.D.N.Y. 2012). “Rule 23 unambiguously authorizes any plaintiff, in any federal civil proceeding, to maintain a class action if the Rule’s prerequisites are met.” Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. at
406. The prerequisites of Rule 23 are:
Numerosity
Courts do not have a bright-line rule for numerosity, however, generally classes of more than forty individuals fulfill the numerosity requirement of Rule 23(a)(1). Iglesias-
Mendoza, 239 F.R.D. at 370 (citing Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993) holding that joinder can be impracticable where the prospective class consists of 40 members or more); see Korn v. Franchard Corp., 456 F.2d 1206, 1209 (2d Cir. 1972) (“Forty investors have been held to represent a sufficiently large group” for class action); Consolidated Rail
Corp v. Town of Hyde Park, 47 F.3d 474 (2d Cir. 1995) (“[N]umerosity is presumed at a level of 40 members.”).
10 Typicality and Commonality:
Rule 23(a)(2) requires that there be “questions of law or fact common to the class,” whereas Rule 23(a)(3) requires that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” “The commonality and typicality requirements, together, require Plaintiffs to show that they raise questions of fact or law, arising out of a single course of conduct or set of events, that are common to all putative class members and that their individual claims and circumstances are sufficiently similar to those of the absent class members so as to ensure that the named plaintiffs will press the claims of all class members.” Duling v.
Gristede’s Operating Corp., 267 F.R.D. 86, 97 (S.D.N.Y. 2010). The requirement of typicality,
Rule 23(a)(2), overlaps or merges with that of commonality, Rule 23(a)(3). Iglesias-Mendoza,
239 F.R.D. at 370-71; In re Currency Conversion Fee Antitrust Litig., 230 F.R.D. 303, 307
(S.D.N.Y. 2004) (citing Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997)) (“The commonality and typicality requirements tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3).”). “Even a single common legal or factual question will suffice” to satisfy the commonality requirement as to a particular claim. In re NYSE Specialists Sec. Litig., 260 F.R.D. 55 (S.D.N.Y. 2009); Duling, 267 F.R.D. at 96.
“The crux of [the typicality] requirement[ ] is to ensure that ‘maintenance of a class action is economical and [that] the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’” Marisol, 126 F.3d at 376 (internal citation omitted); accord Hirschfeld v. Stone, 193
F.R.D. 175, 182-83 (S.D.N.Y. 2000). Specifically, the “typicality requirement is satisfied when each class member’s claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant’s liability . . . irrespective of minor variations in
11 the fact patterns underlying the individual claims.” Robidoux, 987 F.2d at 936-37; accord
Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 155 (2d Cir. 2001). However “there is no requirement that the precise factual circumstances of each class plaintiff’s claim be shared by the named plaintiff.” Gortat v. Capala Broths., Inc., No. 07-CV-3629 (ILG), 2010 WL 1423018, at *4 (E.D.N.Y. Apr. 9, 2010). The factual background of the named plaintiff’s claim need not be identical to that of the putative class members as long as “the disputed issue of law or fact occup[ies] essentially the same degree of centrality to the named plaintiff’s claim as to that of other members of the proposed class.” Caridad v. Metro-North Commuter R.R., 191 F.3d 283,
293 (2d Cir. N.Y. 1999) (citing Krueger, 163 F.R.D. at 442) “Under this court’s jurisprudence, a single common question of law or fact may suffice.” Iglesias-Mendoza, 239 F.R.D. at 372; see also Marisol v. Giuliana, 126 F.3d 372 (2d Cir. 1997).
“In assessing the typicality of the plaintiff’s claims, the court must pay special attention to unique defenses that are not shared by the class representatives and members of the class.”
Spann v. AOL Time Warner, Inc., 219 F.R.D. 307, 316 (S.D.N.Y. 2003). Although “the mere existence of individualized factual questions with respect to the class representative’s claims will not bar class certification, class certification is inappropriate where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation.”
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir. 2000) (citation omitted); see also, Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
903 F.2d 176, 180 (2d Cir. 1990). Typicality is absent where the named plaintiffs are “‘subject to unique defenses which threaten to become the focus of the litigation.’” Duling, 267 F.R.D. at 97.
The U.S. Supreme Court recently issued a significant commonality decision in the discrimination context in Wal-Mart Stores, Inc. v. Dukes, a Title VII discrimination case. 131 S.
12 Ct. 2541 (2011). The Supreme Court held that the named plaintiffs and passive Rule 23 class there did not meet the commonality requirements under Rule 23(a)(2) because there was not a common policy or practice to “glue” the discrimination claims together. Wal-Mart Stores, Inc.,
131 S. Ct. at 2554. In Wal-Mart there were over 3,400 stores, and they employed over one million workers throughout the country. Wal-Mart Stores, Inc., 131 S. Ct. at 2546. Significantly,
Wal-Mart had an anti-discrimination policy and Plaintiffs had not identified a common practice or policy leading to the claimed discrimination. The Court explained that:
Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reason for all those decision together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.
Dukes v. Wal-Mart Stores, Inc., 131 S. Ct. at 2552.
Since Dukes v. Wal-Mart Stores, courts have repeatedly reiterated that Rule 23 class and
FLSA collective actions are appropriate when uniform pay practices cause a common wrong. See
Espinoza v. 953 Associates LLC, 280 F.R.D. 113, 127-28 (S.D.N.Y. 2011) (“With regard to commonality, the Named Plaintiffs’ claims and those of the members of the putative class arise from a common wrong: Defendants’ failure to pay proper minimum wage and overtime . . . The typicality requirement is also satisfied . . . [T]he minimum wage and overtime claims alleged by
Plaintiffs are similar to those of the class members and arise from the same allegedly unlawful practices and policies.”); see also Pippins v. KPMG LLP, No. 11 Civ. 0377(CM)(JLC), 2012 WL
19379 (S.D.N.Y. Jan. 3, 2012) (holding that the FLSA claims before the court did not require the analysis of millions of individual employment decisions but rather that “the crux of this [FLSA] case is whether the company-wide policies, as implemented, violated Plaintiffs’ statutory rights.”).
13 “The weight of authority rejects the argument that Dukes bars certification in wage and hour cases.” Morris v. Affinity Health Plan, Inc., No. 09 CIV. 1932 ALC, 2012 U.S. Dist. LEXIS 64650, 2012 WL 1608644, at *2 (S.D.N.Y. May 8, 2012) (collecting cases). Courts in this district have instead focused on whether the employer had company-wide wage policies that injured the proposed class.
Flores, 284 F.R.D. at 125.1
Adequacy:
Rule 23(a)(4) provides that, in order to certify a class, its proponents must show that “the representative parties will fairly and adequately protect the interests of the class” Fed. R. Civ. P.
23(a)(4). The Second Circuit Court of Appeals has held that the threshold for meeting “adequacy of representation” is “[first,] class counsel must be ‘qualified, experienced and generally able’ to conduct the litigation. Second, the class members must not have interests that are ‘antagonistic’ to one another.” In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992)
(internal citations omitted); Jankowski v. Castaldi, No. 01CV0164(SJF)(KAM), 2006 WL
118973 at *3-4 (E.D.N.Y. Jan. 13, 2007). The Requirements of Rule 23(b)(3) Are Met.
Predominance:
1 Other district courts continue to find commonality in wage hour cases despite the Dukes decision. Bond v. Ferguson Enterprises, Inc., No. 1:09–cv–1662 OWW MJS, 2011 WL 2648879, *5 (E.D. Cal. June 30, 2011) (certifying settlement class); Collins v. Cargill Meat Solutions Corp., No. 1:10–cv–00500, 2011 WL 2580321, *5 (E.D. Cal. June 28, 2011) (noting that “[e]very Class Member was paid under the same pay practices as every other class members. The commonality requirement is satisfied.”). Since Plaintiff alleges and demonstrates that Defendant used common pay practices for all class members, Plaintiff has demonstrated both commonality and typicality. See also Ramos v. SimplexGrinnell LP, 796 F. Supp. 2d 346, 355-57 (E.D.N.Y. 2011) (plaintiffs satisfied the commonality and typicality requirements requirement by showing the employer’s common pay practices: “plaintiffs have come forward with significant proof that defendant routinely failed to account for labor performed on public works projects and pay prevailing wages for covered work.”) In Hernandez v. Starbucks Coffee Company, a district court in the Southern District of Florida refused to decertify a FLSA opt-in class because “the common evidence and testimony of Defendant’s own corporate representatives” “suggest(s) the same class treatment”. No. 09-60073-CIV, *5-6, 2011 WL 2712586, *3 (S.D. Fla. June 29, 2011).
14 Under Rule 23(b)(3), a class may be certified only where “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). The predominance requirement evaluates whether a proposed class is cohesive enough to merit adjudication by representation.
See Moore v. PaineWebber, Inc. 306 F.3d 1247, 1252 (2d Cir. 2002). Predominance will be established if “resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof.” Id.
Consequently, to determine whether common questions of law or fact predominate, a court must focus “on the legal or factual questions that qualify each class member’s case as a genuine controversy . . . [and] test[ ] whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997); see also, In re Visa Check/MasterMoney, 280 F.3d 124, 135 (2d Cir. 2001); In re WorldCom,
Inc. Securities Litigation, 219 F.R.D. 267, 287-288 (S.D.N.Y. 2003).
And wage and hour issues are subject to generalized proof. Once those class-wide issues are resolved, the remaining factual questions are minor, e.g., how many overtime hours did a particular class member work. The Supreme Court has repeatedly stated that when a defendant fails to record all the work its non-exempt employees perform (as required by regulation, 29
C.F.R. § 516.2) generalized proof of the amount such work is permitted through “inexact” representative testimony. Anderson v. Mt. Clemens Pottery Co., Inc. 328 U.S. 680, 687-688
(1946). When employers fail to keep records as to daily work hours as required, employees may prove their hours of work by generalized representative testimony. Anderson v. Mt. Clemens
15 Pottery Co., Inc. 328 U.S. 680, 688 (1946); 29 C.F.R. §516.2 (requiring employers to keep track of daily start and stop times and total hours as well as weekly total work hours, among other recordkeeping obligations):
The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of s 11(c) of the Act. And even where the lack of accurate records grows out of a bona fide mistake as to whether certain activities or non-activities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible under the circumstances. Nor is such a result to be condemned by the rule that precludes the recovery of uncertain and speculative damages. That rule applies only to situations where the fact of damage is itself uncertain. But here we are assuming that the employee has proved that he has performed work and has not been paid in accordance with the statute. The damage is therefore certain. The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. In such a case ‘it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.’ Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 563, 51 S. Ct. 248, 250, 75 L.Ed. 544. It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 688 (1946).
It is an employer’s duty to keep track of an employee’s work hours and that duty is not delegable:
The obligation [to record hours worked correctly] is the employer’s and it is absolute. He cannot discharge it by attempting to transfer his statutory burdens of accurate record keeping, 29 U.S.C.A. 211(c), and of appropriate payment, to the employee. The employer ‘at its peril, * * * had to keep track of the amount of overtime worked by those of its employees in fact within the Act.’
Caserta v. Home Lines Agency, Inc., 273 F.2d 943, 946 (2d Cir. 1959). Indeed, this is the only rule that could rationally be applied, because if employers were allowed to evade the FLSA simply by failing to keep records, then the FLSA and state wage laws would be rendered completely ineffective ab initio. When an employer fails to abide by its legal duty to keep track of employee work hours, it cannot be heard to argue that its own failure should insulate it from
16 compensating its employees for the hours they worked and for which they legally should have been paid. These same principles apply to state law claims in New York. A. Uliano & Son. Ltd. v.
New York State Dep’t of Labor, 97 A.D.3d 664, 666-67, 949 N.Y.S.2d 84, 88 (2012) (permitting
DOL resolution of back pay based on investigatory interviews).
As the court found in Iglesias-Mendoza, “[t]he issues to be litigated are whether the class members (1) were supposed to be paid the minimum wage as a matter of law and were not, and
(2) were supposed to be paid overtime for working more than 40 hours a week and were not.
These are perfect questions for class treatment. Some factual variation among the circumstances of the various class members is inevitable and does not defeat the predominance requirement.”
239 F.R.D. at 373 (emphasis added). Even if some testimony were required to prove the extent of damages, where common questions of law and fact predominate with respect to liability, as they do here, the existence of individual questions as to damages is generally unimportant and does not defeat certification. See, In re Visa Check Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001)
(if common issues predominate as to liability, court should ordinarily find predominance even if some “individualized damage issues” exist); Shabazz v. Morgan Funding Corp., 269 F.R.D. 245,
250-51 (S.D.N.Y. 2010) (“Any class action based on unpaid wages will necessarily involve calculations for determining individual class member damages, and the need for such calculations do not preclude class certification.”); Steinberg v. Nationwide Mut. Ins. Co., 224
F.R.D. 67, 80 (E.D.N.Y. 2004).
Plaintiffs can testify in general form about any completely unrecorded work, as permitted by the Supreme Court in Anderson v. Mt. Clemens Pottery Co., Inc. and the great many other cases that have permitted wage hour representative testimony. “Courts have frequently granted back wages under the FLSA to non-testifying employees based upon the representative
17 testimony of a small percentage of the employees.” Donovan v. Bel-Loc Diner, Inc., 780 F.2d
1113, 1116 (4th Cir. 1985). See also Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233 (11th
Cir. 2008) (7 workers testimony on behalf of class of 1,424 not unfair); Adams v. U.S., 44 Fed.
Cl. 772 (Ct. Fed. Cl. 1999) (31 plaintiffs testified for class of 300); Schultz v. Capital Intern.
Sec., Inc., 466 F.3d 298, 310 (4th Cir. 2006); Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208,
1227 (11th Cir. 2001) (discussing pattern and practice evidence used to prove discrimination in the ADEA context); Donovan v. Burger King, 672 F.2d 221 (1st Cir. 1982) (allowing representative testimony to prevent cumulative evidence because of the “basic similarities between the individual restaurants”); Dole v. Snell, 875 F.2d 802 (10th Cir. 1989) (allowing representative testimony to address whether plaintiffs were independent contractors when the parties stipulated that the testifying plaintiff was representative); Falcon v. Starbucks Corp., 580
F. Supp. 2d 528, 540 (S.D. Tex. 2008) (collecting cases); Grochowski v. Phoenix Constr., 318
F.3d 80, 88 (2d Cir. 2003) (“[N]ot all employees need testify in order to prove FLSA violations or recoup back-wages”); Reich v. Gateway Press, 13 F.3d 685, 701-02 (3d Cir. 1994) (“Courts commonly allow representative employees to prove violations with respect to all employees.”);
Brennan v. General Motors Acceptance Corp., 482 F.2d 825, 829 (5th Cir. 1973) (allowing representative testimony in a case involving unpaid overtime); Thiebes v. Wal-Mart Stores, Inc.,
2004 WL 1688544, at *1 (D. Or. July 26, 2004); National Electro-Coatings, Inc. v. Brock, No.
C86-2188, 1988 WL 125784, at *8 (N.D. Ohio July 13, 1988) (“Courts have consistently allowed, or even required, a small number of employees to testify to establish a pattern of violations for a larger number of workers.”); see also The Fair Labor Standards Act, p.1333
(Ellen C. Kearns et al., eds.1999) (noting that it is “well settled” that “not all affected employees
18 must testify in order to prove violations or to recoup back wages. Rather, in most cases, employees and the Secretary may rely on representative testimony”).
It should be noted that recent Supreme Court decisions in Tyson and Comcast do not change this long-standing precedent. In Comcast v. Behrend, 133 S. Ct. 1426 (2013) the majority explicitly stated that in the context of the predominance requirement, the analysis of whether individualized damages overwhelm common class issues, “turns on the straightforward application of class-certification principles . . . .” Comcast, 133 S. Ct. at 1433. Thus, the Comcast decision does not infringe on the long-standing principle that individual class member damage calculations are permissible in a certified class under Rule 23(b)(3). Munoz v. PHH Corp., 1:08-
CV-0759-AWI-BAM, 2013 WL 2146925, *24 (E.D. Cal. May 15, 2013). As the Comcast dissent noted, the majority opinion “breaks no new ground on the standard of certifying a class action under Federal Rule of Civil Procedure 23(b)(3).” Id., citing Comcast, 133 S. Ct. at 1436
(Ginsburg, J. Dissenting) (“[r]ecognition that individual damages calculations do not preclude class certification under Rule 23(b)(3) is well nigh universal . . . In the mine run of cases, it remains the ‘black letter rule’ that a class may obtain certification under Rule 23(b) (3) when liability questions common to the class predominate over damages questions unique to class members”). And in Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), the Supreme
Court rejected an employer’s contention that representative proof must be statistically validity:
“Once a district court finds evidence to be admissible, its persuasiveness is, in general, a matter for the jury. Reasonable minds may differ as to whether the average time [the plaintiffs’ expert] calculated is probative as to the time actually worked by each employee. Resolving that question, however, is the near-exclusive province of the jury.”
19 Superiority:
The superiority question under Rule 23(b)(3) requires a court to consider whether a class action is superior to other methods of adjudication. The court should consider, inter alia, “the interest of the members of the class in individually controlling the prosecution or defense of separate actions” and “the difficulties likely to be encountered in the management of a class action.” Noble, 224 F.R.D. at 339.
The overwhelming precedent in the Second Circuit has made it clear that adjudicating
FLSA collective actions and Rule 23 state law claims together is superior to other available methods. See Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 164 (S.D.N.Y. 2008) (holding that defendant’s argument “that class certification should be denied because it is preferable that potential class members proceed through an FLSA collective action is unpersuasive, particularly in light of the overwhelming precedent in the Second Circuit supporting certification of simultaneous NYLL class actions and FLSA collective actions. Hence, the superiority requirement of Rule 23 is satisfied.”); see also Lee v. ABC Carpet & Home, 236 F.R.D. 193, 205
(S.D.N.Y. 2006). Indeed, the state Rule 23 claim for parallel state overtime claims complements the FLSA’s goal to protect “all” covered workers. Barrentine v. Arkansas Best Freight System,
Inc., 450 U.S. 728, 739 (1981) (“The principal congressional purpose in enacting the FLSA was to protect all covered workers from substandard wages and oppressive working hours . . .”.).
III. Practice Notes and Sample Forms
A. Distribution of Notice: Workplace Posting, Radio, and Text
B. Reminder Notice
C. Sample Forms:
1.Notice
20 2.Postcard Reminder
3.Consent To Sue
21 22 SECTION 3 Partnering with Worker Centers and Co-Counsel
I. Partnering with community organizers and worker centers a. Benefits b. Ethical Considerations i. Confidentiality Hypothetical: A community organizer asks you to meet with a group of Chinese delivery workers. The organizer tells you that the workers have not been paid at all for the last month. The workers are very fearful of speaking out against their employer and nervous about meeting with a lawyer. The organizer speaks the Chinese dialect spoken by the workers and plans to be present at your initial meeting with the workers. What concerns, if any, should you have?
ii. Communication with Person Represented by Counsel Hypothetical: A local worker center introduces you to a group of five waitresses who have claims for unpaid wages. You decide to file a federal complaint on their behalf with the understanding that this case is part of a broader campaign to bring to light wage theft in the restaurant industry. After you complaint has been filed in federal court, you learn that the local worker center is planning a demonstration for the following week in front of the restaurant. The Defendant’s lawyer immediately calls you to complain and accuses you and your clients of disrupting the litigation and orchestrating the demonstration. How do you respond?
iii. Conflicts of Interest Hypothetical: You have partnered with a worker center to bring a case for 20 workers for unpaid wages against a large construction contractor. After several months of litigation, Defendants make a settlement offer that you bring back to your clients. After much discussion, the workers decide to take the offer. Although it is less than what could be won at trial, the workers have mounting debts and are anxious to take the money now. Upon learning of the workers’ decision, the organizers are upset and request the opportunity to hold a second meeting with the workers to discuss how accepting an early settlement will impact the ongoing campaign against this particular contractor. The worker center was hoping to do additional publicity around this case and to document a large payout to illustrate the breadth of wage theft in this industry. You want to support this campaign, but you also want to honor your clients’ wishes. How do you proceed?
23
II. Partnering with law firms a. Benefits i. Mentorship ii. Assistance with costs and workload b. Considerations i. Relinquishing Control ii. Defining roles iii. Overseeing work of lawyers iv. Coaching lawyers on how to work with indigent and immigrant clients
III. Materials a. New York State Rules of Professional Conduct, applicable sections b. ABA Model Rules of Professional Conduct, applicable sections c. Sample Co-Counsel Agreement
IV. Additional Resources a. Scott L. Cummings and Ingrid V. Eagly, A Critical Reflection on Law and Organizing, 48 UCLA Law Review 443 (2001). b. Sameer M. Ashar, Public Interest Lawyers and Resistance Movements, 95 Cal. L. Rev. 1879 (2007). c. E. Tammy Kim, Lawyers as Resource Allies in Workers’ Struggles for Social Change, 13 N.Y. City L. Rev. 213 (2009).
24 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 1 of 16
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ______: Jose Barragan Contreras, Juan Alonzo Orellana, : and Jorge Yepez : : Individually, and on behalf of all others similarly : situated as Class Representatives, : : Plaintiffs, : : Case No.: 17-cv-06453 (CS) v. : : CLASS AND REPRESENTATIVE Rosann Landscape Corp., Rosann Land : ACTION Improvement Ltd., A.F.A. Management Corp., : and Ana Maria Birlescu : : : JURY TRIAL REQUESTED Defendants. : : ______:
FIRST AMENDED COMPLAINT
I. PRELIMINARY STATEMENT
1. Plaintiffs Jose Barragan Contreras, Juan Alonzo Orellana and Jorge Yepez (collectively
“the Individual Plaintiffs” or “Plaintiffs”) performed strenuous physical labor under harsh
conditions in Defendants’ landscaping and maintenance business, regularly working more
than forty hours per week and more than ten hours in a day, but were paid nothing
whatsoever for a substantial number of hours worked and were never paid a premium rate
for overtime hours as required by Federal and State law.
2. The Individual Plaintiffs, on their own behalf, on behalf of all others similarly situated,
and as class representatives bring this action against Defendants Rosann Landscape
Corp., Rosann Land Improvement Ltd., A.F.A. Management Corp., and Ana Maria
Birlescu (collectively “Defendants”), for Defendants’ failure to lawfully pay Plaintiffs’
25 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 2 of 16
wages for their work.
3. Plaintiffs allege violations of the overtime provisions of the federal Fair Labor Standards
Act, 29 U.S.C. §201, et seq. (“FLSA”), the minimum wage and overtime provisions of
New York Labor Law Article 19 §650, et seq. (“NYLL”), and unjust enrichment.
Plaintiffs seek their earned but unpaid wages, liquidated damages pursuant to the FLSA,
liquidated damages pursuant to the NYLL, and reasonable attorneys’ fees, costs, and
interest, as well as declaratory relief. Alternatively, Plaintiffs seek the reasonable value
for their unpaid labor.
4. Plaintiffs seek to equitably toll the statute of limitations.
5. Plaintiffs bring their FLSA claims individually and on behalf of other similarly situated
current and former employees of Defendants under the collective action provisions of the
FLSA, 29 U.S.C. § 216(b).
6. Plaintiffs bring their NYLL and unjust enrichment claims individually and on behalf of a
class of persons pursuant to Rule 23(a), 23(b) and (b)(3) of the Federal Rules of Civil
Procedure.
II. JURISDICTION AND VENUE
7. This Court has jurisdiction pursuant to the FLSA, 29 U.S.C. § 201 et seq., 29 U.S.C. §
216 and 28 U.S.C. §§ 1331 and 1337. As this action arises under Acts of Congress
regulating commerce, jurisdiction over Plaintiffs’ claims for declaratory relief is
conferred by 28 U.S.C. §§ 2201 and 2202.
8. With respect to the state law claims, this Court has supplemental jurisdiction pursuant to
28 U.S.C. § 1367 in that the state law claims are so related to the federal claims that they
form part of the same case or controversy under Article III of the United States
2
26 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 3 of 16
Constitution.
9. Venue is appropriate in the Southern District of New York pursuant to 28 U.S.C.
§ 1391(b), because the events giving rise to this claim occurred primarily within this
judicial district.
III. THE PARTIES
10. Plaintiff Jose Barragan Contreras is an adult individual and resident of the State of New
York, Westchester County.
11. Plaintiff Juan Alonzo Orellana is an adult individual and resident of the State of New
York, Westchester County.
12. Plaintiff Jorge Yepez is an adult individual and resident of the State of New York,
Westchester County.
13. At all times relevant to this Complaint, Plaintiffs were employees of Defendants as that
term is defined by
a. the FLSA, 29 U.S.C. § 203(e) (1), and by
b. the NYLL § 190.
14. At all times relevant to this Complaint, Plaintiffs were employees engaged in commerce
or the production of goods for commerce, and/or were employees in an enterprise
engaged in commerce or the production of goods for commerce within the meaning of 29
U.S.C. § 203(b)(r)(1).
15. Upon information and belief, Defendant Rosann Landscape Corp. (“Landscape”) is a
domestic corporation doing business in the State of New York and Westchester County.
Landscape maintains corporate headquarters at 633 5th Ave Larchmont, NY 10538.
16. Upon information and belief, Defendant Rosann Land Improvement Ltd.
3
27 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 4 of 16
(“Improvement”) is a domestic corporation doing business in the State of New York and
Westchester County. During the time period relevant to this complaint, Improvement has
maintained corporate headquarters at 633 5th Ave Larchmont, NY 10538 and 45
Knollwood Road Elmsford, NY 10523.
17. Upon information and belief, Defendant A.F.A. Management Corp. (“A.F.A.”) is a
domestic corporation doing business in the State of New York and Westchester County.
A.F.A. maintains corporate headquarters at 5 5th Ave Larchmont, NY 10538.
18. Upon information and belief, Defendant Ana Maria Birlescu is the managing director of
Landscape, the managing director and chief executive officer of A.F.A., and the principal
of Improvement. Defendant Birlescu is a resident of the State of New York.
19. Upon information and belief, at all times relevant to the Complaint, Defendant Birlescu
made all relevant decisions regarding Plaintiffs’ and all other employees’ wages, working
conditions and employment status at Landscape, Improvement, and A.F.A.
20. At all times relevant to the Complaint, Defendant Birlescu had the power to hire and fire
employees, set employees’ wages, retain time and/or wage records, and otherwise control
the terms and conditions of all employees’ employment at Defendants Landscape,
Improvement, and A.F.A. (collectively “the Rosann Entities”).
21. At all times relevant to the Complaint, Defendant Birlescu had the power to stop any
illegal pay practices at the Rosann Entities.
22. At all times relevant to the Complaint, Defendant Birlescu actively managed, supervised,
and directed the business affairs and operation of the Rosann Entities, and acted directly
and indirectly in relation to the employees.
23. At all times relevant to the Complaint, Defendant Landscape was an employer of each of
4
28 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 5 of 16
the Plaintiffs as that term is defined by
a. the FLSA, 29 U.S.C. § 203(d) and by
b. NYLL § 190.
24. At all times relevant to the Complaint, Defendant Improvement was an employer of each
of the Plaintiffs as that term is defined by
a. the FLSA, 29 U.S.C. § 203(d) and by
b. NYLL § 190.
25. At all times relevant to the Complaint, Defendant A.F.A. was an employer of each of the
Plaintiffs as that term is defined by
a. the FLSA, 29 U.S.C. § 203(d) and by
b. NYLL § 190.
26. At all times relevant to the Complaint, Defendant Birlescu was an employer of each of
the Plaintiffs as that term is defined by
a. the FLSA, 29 U.S.C. § 203(d) and by
b. NYLL § 190.
27. Upon information and belief, Defendants grossed more than $500,000 per year in revenue
for the past five calendar years and individually and collectively are an enterprise
engaged in commerce.
IV. STATEMENT OF FACTS
28. At all relevant times, Defendants provided landscaping and maintenance services to large,
primarily residential, facilities in New York and New Jersey.
29. Defendants hired and employed Plaintiffs to perform a range of physical labor including
driving of automobiles and light vans, transport of equipment, gardening, landscaping,
5
29 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 6 of 16
and maintenance of streets and park areas.
30. Defendants’ business is headquartered in Larchmont, New York and all operations were
directed from this location.
31. Plaintiffs regularly worked at multiple locations in New York State, as well as at least one
location in the State of New Jersey.
32. Plaintiffs routinely worked in excess of 40 hours per week, i.e. “overtime hours”, and
more than 10 hours in a day.
33. Defendants failed to pay Plaintiffs anything whatsoever for certain hours worked.
34. Specifically, Plaintiffs were routinely required to report for work at a designated location,
gather and load equipment into an automobile and transport themselves and equipment to
another work site where Plaintiffs performed additional labor. The period of time
between Plaintiffs’ reporting for work at the first location and arrival at the subsequent
work site often exceeded one and a half hours. This was typically repeated at the
conclusion of Plaintiffs’ work day as Plaintiffs returned equipment to their starting point.
Defendants paid Plaintiffs nothing for their labor during these time periods. In total,
Plaintiffs routinely performed at least 10 hours of uncompensated “off the clock” labor
each week.
35. Plaintiffs routinely worked six days per week, performing at least 48 hours of “on the
clock” work each week.
36. Defendants never paid Plaintiffs a premium rate for overtime hours in violation of the
FLSA and NYLL.
37. On average, Plaintiffs worked more than 10 hours in a single day at least once weekly.
38. Defendants never paid Plaintiffs a premium rate for the additional time for days in which
6
30 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 7 of 16
Plaintiffs worked more than 10 hours in violation of the NYLL.
39. Plaintiff Jose Barragan Contreras was employed by Defendants from approximately April
2000 to July 14, 2017. Plaintiff Jose Barragan Contreras was hired at an hourly rate of
$15 per hour which was increased incrementally to $24 per hour during the course of his
employment. As described above, he routinely worked in excess of 40 hours per week,
typically at least 58 hours, and was never paid a premium rate for overtime hours.
40. Plaintiff Juan Alonzo Orellana was employed by Defendants from approximately 2013 to
July 14, 2017. Plaintiff Juan Alonzo Orellana was hired at an hourly rate of $15 per hour.
As described above, he routinely worked in excess of 40 hours per week and was never
paid a premium rate for overtime hours. In a typical work week, Plaintiff Juan Alonzo
Orellana worked at least 58 hours and was paid $600. As a result, he was only paid for
forty hours of his labor and was effectively paid less than the applicable New York State
minimum hourly wage for additional hours worked.
41. Plaintiff Jorge Yepez was employed by Defendants from approximately May 2017 to
June 3, 2017. Plaintiff Jorge Yepez was hired at a rate of $15 per hour. As described
above, he routinely worked in excess of 40 hours per week and was never paid a
premium rate for overtime hours. In a typical work week, Plaintiff Jorge Yepez worked
at least 58 hours and was paid $600. As a result, he was only paid for forty hours of his
labor and effectively paid less than the applicable New York State minimum hourly wage
for additional hours worked.
42. During Plaintiffs’ employment, Defendants did not post and keep posted a notice
explaining the Fair Labor Standards Act in a conspicuous place in their establishment
such as would permit Plaintiffs or other employees to observe readily a copy, as required
7
31 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 8 of 16
by 29 C.F.R. § 516.4.
43. During Plaintiffs’ employment, Defendants did not post and keep posted the minimum
wage and overtime poster issued by the New York State Department of Labor at the
places of employment where it could be read easily by their employees, as required by
NYLL.
44. During Plaintiffs’ employment, Defendant did not notify Plaintiffs, or post and keep
posted the notice, of the employer’s policy on sick leave, vacation, personal leave,
holidays and hours, as required by NYLL § 195(5).
45. Plaintiffs Alonzo Orellana and Yepez did not receive at the time of hiring or any
subsequent time a wage notice in English or Spanish, the Plaintiffs’ primary language,
containing the information outlined in NYLL § 195(a)(1) such as the rate of pay.
46. Plaintiffs did not receive weekly wage stubs or statements containing all information
required by NYLL § 195(3) such as dates of work, rate of pay for regular and overtime
hours, and number of regular and overtime hours worked.
47. Plaintiffs do not speak or read English fluently.
48. During Plaintiffs’ employment, Defendants took no steps whatsoever to notify Plaintiffs
that they were entitled to premium pay for overtime hours.
49. Notwithstanding that Defendants knew that Plaintiffs routinely worked overtime hours,
Defendants issued paychecks to Plaintiffs that deliberately misrepresented to Plaintiffs
that they were not entitled to premium pay for working overtime hours.
50. During Plaintiffs’ employment by Defendants, Plaintiffs did not discover the nature or
extent of Defendants’ violations of their right to be paid according to the law because,
inter alia, Defendants failed to conspicuously post and provide to Plaintiffs information
8
32 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 9 of 16
mandated by federal and state law.
51. Defendants led Plaintiffs to believe that nonpayment of wages for work performed prior
to arrival at and after departure from “the plant” and nonpayment of premium rate for
overtime hours was a lawful business practice. In particular, in response to inquiries by
Plaintiff Barragan Contreras on behalf of himself and other employees, Defendant
Birlescu told Plaintiff Jose Barragan Contreras on multiple occasions that he was not
entitled to overtime pay or payments for hours worked before arrival at “the plant.”
52. Upon leaving Defendants’ employment, Plaintiffs have learned of their rights under the
applicable statute, and promptly commenced this suit.
53. Defendants were aware or should have been aware that applicable law required them to
pay employees such as Plaintiffs premium pay for all hours worked in excess of forty
(40) per week.
54. Upon information and belief, during the period of Plaintiffs’ employment by Defendants,
at all times approximately 10-15 other individuals were also employed by Defendants in
similar capacities and were subject to the same nonpayment of lawful wages in violation
of Federal and State law. The duration of employment for each individual varied and was
often less than six months. Plaintiffs estimate that in total at least 60-70 individuals were
employed by Defendants in similar capacities at the same job sites and subject to the
same pay policies during the past three years.
V. COLLECTIVE AND CLASS ACTION ALLEGATIONS
55. Plaintiffs bring their First Cause of Action as a collective action under the collective
action provision of the FLSA as set forth in 29 U.S.C. § 216(b) on behalf of all current
and former employees who have worked for Defendants as landscape, grounds keeping
9
33 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 10 of 16
and maintenance staff within the prior three years, or such earlier date as the Court may
determine is equitable.
56. In addition, Plaintiffs seek to add such additional former employees who ceased work in
excess of three years prior to the filing of this matter by means of equitable tolling.
57. The current and former employees described in the two preceding paragraphs above are
situated similarly to Plaintiffs within the meaning of FLSA, 29 U.S.C. § 216(b) and,
therefore, the First Cause of Action herein may be brought and maintained as an “opt-in”
collective action pursuant to Section 16(b) of FLSA.
58. This action is also maintainable as a collective action pursuant to FLSA, 29 U.S.C.
§216(b) because the prosecution of separate actions by individual members of the Class
would create a risk of inconsistent or varying adjudications with respect to individual
current and former employees which would establish incompatible standards of conduct
for Defendants.
59. Plaintiffs bring their NYLL and unjust enrichment claims on behalf of themselves and all
other similarly situated individuals under Rules 23(a), (b)(2) and (b)(3) of the Federal
Rules of Civil Procedure. Plaintiffs bring these New York State law claims on behalf of
all persons who worked for one or more of the Defendants as landscape, grounds keeping
and maintenance staff at any time after August 24, 2011 to entry of judgment in this case
(the “Class” and “Class Period” respectively), or such earlier date as the Court may
determine is equitable.
60. The persons in the Class identified above are so numerous that joinder of all members is
impracticable. Although the precise number of such persons is unknown, and facts on
which the calculation of that number are presently within the sole control of Defendants,
10
34 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 11 of 16
upon information and belief, there are approximately 60-70 members of the Class during
the Class Period. There are questions of law and fact common to the Class which
predominate over any questions affecting only individual members. The claims of the
Individual Plaintiffs are typical of the claims of the Class. The Individual Plaintiffs will
fairly and adequately protect the interests of the Class. A class action is superior to other
available methods for the fair and efficient adjudication of the controversy – particularly
in the context of wage and hour litigation where individual employees lack the financial
resources to vigorously prosecute a lawsuit in federal court against corporate defendants.
The Defendants have acted or refused to act on grounds generally applicable to the Class,
thereby making appropriate final injunctive relief or corresponding declaratory relief with
respect to the Class as a whole.
61. Questions of law and fact common to the collective and class action as a whole include,
but are not limited to the following:
a. Whether each of the Defendants is an employer of the Class under the FLSA
and/or the NYLL;
b. Whether Defendants unlawfully failed and continue to fail to pay overtime
compensation in violation of FLSA;
c. Whether Defendants unlawfully failed and continue to fail to pay minimum
wage, spread of hours and overtime compensation in violation of NYLL;
d. Whether Defendants’ unlawful failure to pay minimum wage, spread of hours
and overtime compensation to the Class was willful;
e. Whether Defendants provided adequate notice to the Class of their rights
under the FLSA and the NYLL; and
11
35 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 12 of 16
f. Whether Defendants received a benefit from Plaintiffs’ labor during the
uncompensated hours.
62. The names, last known addresses and cell phone numbers of the Class Plaintiffs are
available from Defendants and notice should be provided to the Class both by first class
mail to their last known address and by workplace posting, as well as by other practicable
means including but not limited to text messaging, as soon as possible.
VI. FIRST CAUSE OF ACTION
Fair Labor Standards Act
63. Plaintiffs Jose Barragan Contreras, Juan Alonzo Orellana and Jorge Yepez (collectively
“the Named Plaintiffs”) and any Class members who file individual consents to sue in
this action restate, re-allege and incorporate by reference all of the preceding allegations
as if fully set forth herein.
64. Defendants willfully failed to pay Plaintiffs overtime compensation at rates not less than
one and one-half times the regular rate of pay for each hour worked in excess of forty
hours in a workweek, in violation of 29 U.S.C. § 207 (a)(1).
65. Due to Defendants’ FLSA violations, Plaintiffs are entitled to recover from Defendants,
jointly and severally, their unpaid overtime compensation, an additional equal amount as
liquidated damages, reasonable attorneys’ fees, and costs of the action, pursuant to 29
U.S.C. § 216 (b).
VII. SECOND CAUSE OF ACTION
New York Labor Law
66. The Named Plaintiffs on behalf of the Class restate, re-allege and incorporate by
reference all of the previous allegations as if fully set forth herein.
12
36 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 13 of 16
67. Defendants willfully violated Plaintiffs’ rights by failing to pay Plaintiffs overtime
compensation at rates not less than one and one-half times the regular rate of pay for each
hour worked in excess of forty hours in a workweek, and an additional hour of pay for
each hour worked in excess of ten in one day, in violation of the NYLL and its
regulations.
68. Defendants willfully violated Plaintiffs’ rights by failing to pay Plaintiffs at the applicable
minimum hourly wage, in violation of NYLL.
69. Defendants willfully failed to provide Plaintiffs Alonzo Orellana and Yepez, at the time
of hiring or any subsequent time, a wage notice in English or Spanish, the Plaintiffs’
primary language, containing the information required by NYLL § 195(a) such as the rate
of pay.
70. Throughout the entire course of their employment, Defendants willfully failed to provide
Plaintiffs weekly wage stubs or statements containing all information required by NYLL
§ 195(3) such as dates of work, rate of pay for regular and overtime hours, and number of
regular and overtime hours worked.
71. Due to Defendants’ New York Labor Law violations, Plaintiffs are entitled to recover
from Defendants, jointly and severally, (a) their unpaid overtime compensation, their
unpaid minimum wages, damages for unreasonably delayed payment of wages,
reasonable attorneys’ fees, and costs of the action, pursuant to NYLL § 663(1); (b) $50
for each day Defendants failed to provide each Plaintiff with the required wage notice not
to exceed a total of $5,000 for each violation; and (c) $250 for each workday Defendants
failed to provide each Plaintiff with a wage statement, not to exceed a total of $5,000 for
each violation, together with costs and reasonable attorneys’ fees in accordance with
13
37 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 14 of 16
NYLL § 198.
VIII. THIRD CAUSE OF ACTION
Unjust Enrichment
72. The Named Plaintiffs on behalf of the Class restate, re-allege and incorporate by
reference all of the previous allegations as if fully set forth herein.
73. The Named Plaintiffs allege that they have conferred substantial benefits on the
Defendants by their labor for which they are entitled to as-yet unpaid compensation.
74. The Named Plaintiffs performed their labor for Defendants in the good faith belief that
they would be properly compensated.
75. Defendants accepted, indeed required, the services from the Named Plaintiffs as part of
their employment.
76. Plaintiffs reasonably expected to be compensated for their labor which reasonable
expectation Defendants fostered with their weekly payment to Plaintiffs for their labor.
77. The reasonable value of the unpaid time may be readily calculated from the hourly wages
paid to the Named Plaintiffs by Defendants as modified by the requirements of the
applicable statutes.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
78. Certify this case as a class action pursuant to Fed. R. Civ. Proc. 23(b)(2) and (3);
79. Designate this action as a collective action on behalf of the Class pursuant to
FLSA § 216(b) and order prompt issuance of notice to all similarly situated
members of the Class apprising them of the pendency of this action and
14
38 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 15 of 16
permitting them to assert timely FLSA claims in this action by filing individual
Consent to Join forms pursuant to FLSA § 216(b) and toll the statute of
limitations on the claims of all “opt-in” Class Plaintiffs from the date of filing of
this Complaint until the Class has been provided with reasonable notice of the
pendency of this action and a fair opportunity to exercise their right to opt in as
plaintiffs;
80. Designate Plaintiffs as representatives of the Class Plaintiffs;
81. Declare Defendants’ conduct complained of herein to be in violation of Plaintiffs’
and the Class’s rights under the FLSA;
82. Declare Defendants’ conduct complained of herein to be in violation of Plaintiffs’
rights under NYLL;
83. Declare that Defendants’ violations of the FLSA and NYLL were willful;
84. Equitably toll the statute of limitations;
85. Order Defendants to pay to Plaintiffs and Class all overtime wages owed,
consistent with the FLSA;
86. Order Defendants to pay to Plaintiffs and Class Plaintiffs all minimum, spread of
hours, and overtime wages owed, consistent with NYLL;
87. Order Defendants to pay to Plaintiffs and Class Plaintiffs the statutorily prescribed
penalties for failure to provide Plaintiffs with notice required by NYLL;
88. Award Plaintiffs and Class Plaintiffs liquidated damages for all wages withheld in
violation of FLSA;
89. Award Plaintiffs and Class Plaintiffs additional liquidated damages for all wages
withheld in violation of NYLL;
15
39 Case 7:17-cv-06453-CS Document 16 Filed 09/19/17 Page 16 of 16
90. Order Defendants to pay Plaintiffs such amounts to prevent Defendants from
being unjustly enriched;
91. Award the Individual Plaintiffs additional appropriate compensation as incentive
payments for their particular participation in this litigation benefitting other
workers;
92. Award Plaintiffs reasonable attorneys’ fees, costs and interest; and
93. Award Plaintiffs such other legal and equitable relief as the Court deems
appropriate.
IX. REQUEST FOR TRIAL BY JURY
Plaintiffs respectfully request a trial by jury as to all claims to which they are entitled.
RESPECTFULLY SUBMITTED,
______/s/ Maureen Hussain MAUREEN HUSSAIN, Esq. ROBERT MCCREANOR, Esq. Hudson Valley Justice Center 30 South Broadway Yonkers, NY 10701 (914) 308-3490 [email protected] [email protected]
/s/ David Tykulsker DAVID TYKULSKER, Esq. David Tykulsker & Associates 161 Walnut Street Montclair, NJ 07042 (973) 509-9292 (phone) (973) 509-1181 (fax) [email protected]
ATTORNEYS FOR THE PLAINTIFFS Dated: September 19, 2017
16
40 Case 7:17-cv-06453-CS Document 37 Filed 12/14/17 Page 1 of 8
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ______: Jose Barragan Contreras, Juan Alonzo Orellana, : and Jorge Yepez : : Individually, and on behalf of all others similarly : situated as Class Representatives, : : Plaintiffs, : : Case No.: 17-cv-06453 (CS) v. : : CLASS AND REPRESENTATIVE Rosann Landscape Corp., Rosann Land : ACTION Improvement Ltd., A.F.A. Management Corp., : and Ana Maria Birlescu : : Defendants. : ______:
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A PROTECTIVE ORDER
I. INTRODUCTION
Plaintiffs Jose Barragan Contreras, Juan Alonzo Orellana, and Jorge Yepez (“Plaintiffs”)
filed this lawsuit on August 24, 2017, on behalf of themselves and other similarly situated current and former employees, pursuant to 29 U.S.C. § 216(b) and Rule 23 of the Federal Rules of Civil Procedure. Since the lawsuit was filed, two additional former employees have filed
Consent to Sue forms with this Court. (Dkts. 11, 31.)
Defendants have signaled, both through their assertion and retention of two meritless
affirmative defenses predicated on immigration status, and through communications via counsel,
that they intend to seek discovery regarding immigration-related information as broadly as
possible. The clear import of such tactics is to suppress participation in the lawsuit by potential
opt-in and class plaintiffs, and to minimize Defendants’ liability through intimidation.
41 Case 7:17-cv-06453-CS Document 37 Filed 12/14/17 Page 2 of 8
Accordingly, Plaintiffs respectfully request that the Court issue a protective order to ensure that
the legal process is not co-opted for such an improper purpose.
II. STATEMENT OF THE CASE
Defendants operate a landscaping business, serving residential and commercial clients
located in various locations in New York and New Jersey. Plaintiffs seek to recover their earned
wages, under the FLSA and NYLL, for work they have already performed as landscaping and
maintenance staff for Defendants.1
On November 30, 2017, this Court held a pre-motion conference with counsel for all
parties, regarding this motion and other anticipated motions. The Court urged all counsel to
research the relevance of immigration status to Plaintiffs’ then-asserted common law claims for
unjust enrichment and indicated that, absent authority to the contrary with respect to the unjust
enrichment claim, the Court would be inclined to grant a protective order. As addressed more
fully by separate motion, even though a plaintiff may in fact recover on an unjust enrichment
theory regardless of immigration status, Plaintiffs nevertheless seek to dismiss their unjust
enrichment claims in the interest of streamlining this matter, thereby narrowing the scope of
inquiry on this motion to the FLSA and NYLL claims.2 Defendants have declined to stipulate to
the dismissal of the unjust enrichment claims or the entry of a protective order, necessitating the
Court’s intervention.3
1 For a more detailed statement of facts, Plaintiffs refer the Court to their separate motion, filed today, to conditionally certify a collective action under the FLSA, and its accompanying exhibits. 2 As the instant motion is deeply interconnected with Plaintiffs’ separate motion to strike and to dismiss their third claim for relief, filed today, Plaintiffs refer the Court to that motion and its accompanying exhibits, to minimize duplication of explanation here. 3 Plaintiffs’ proposed Stipulated Protective Order, to which Defendants declined to consent, is attached hereto as Exhibit 1.
42 Case 7:17-cv-06453-CS Document 37 Filed 12/14/17 Page 3 of 8
III. PLAINTIFFS ARE ENTITLED TO A PROTECTIVE ORDER TO PROHIBIT DEFENDANTS’ INQUIRY INTO AND DISCOVERY OF IMMIGRATION STATUS AND INDICIA THEREOF.
This Court is empowered, pursuant to Rule 26 of the Federal Rules of Civil Procedure and upon a showing of good cause, to issue a protective order limiting discovery and forbidding inquiry into certain matters. Fed. R. Civ. P. 26(c)(1). Such an order is appropriate here to protect Plaintiffs, as well as any potential opt-in plaintiffs and class plaintiffs,4 from injury,
harassment, or abuse of the court’s processes, that could result from inquiry into and disclosure
of their immigration status or work authorization status. See Bridge C.A.T. Scan Assocs. v.
Technicare Corp., 710 F.2d 940, 944-45 (2d Cir. 1983). Plaintiffs ask that any order also
specifically prohibit inquiry into or the discovery of any indicia of immigration status,
citizenship status, or employment authorization, including but not limited to passports, visas, tax
returns, social security numbers, tax ID numbers, place of birth, date or method of arrival in the
U.S., location of family members, I-9 forms and W-4 forms. Courts have recognized that
immigration status may be inferred from such information, and that “such inquiries are generally
just an alternative method to discover a plaintiff’s immigration status.” Nieves v. Opa, Inc., 948
F. Supp. 2d 887, 893 (N.D. Ill. 2013) (prohibiting inquiry into plaintiff’s immigration status,
including the filing of tax returns).
The affirmative defenses in Defendants’ Answer, as well as subsequent communications
with defense counsel, have made clear Defendants’ intent to pursue information related to
Plaintiffs’ immigration status and work authorization in this case. (See Dkt. 24.) The parties
4 As noted above, Plaintiffs also move the Court, by separate motion filed today, to conditionally certify a collective action with respect to their Fair Labor Standards Act claims. Plaintiffs anticipate a future motion to certify a Rule 23 class with respect to their New York Labor Law claims. The arguments made herein as to the named Plaintiffs extend to individuals who may participate in this case via any collective or class mechanisms that become available.
43 Case 7:17-cv-06453-CS Document 37 Filed 12/14/17 Page 4 of 8
have conferred, or attempted to confer, by telephone conference, e-mail, and at the pre-motion conference held by this Court, to no avail. Defense counsel has stated that he believes immigration-related information could reflect on credibility, that he intends to inquire into tax returns which bear indicia of immigration status, and that he does not intend to withdraw the affirmative defenses predicated on immigration status. Courts have consistently found good cause to issue protective orders in similar circumstances. See, e.g., Rosas v. Alice’s Tea Cup,
LLC)6XSSG 6'1< Uto v. Job Site Services, Inc., 269 F.R.D. 209 (E.D.N.Y.
Rengifo v. Erevos Enter., Inc:/ DW 6'1<0DU Avila-
Blum v. Casa de Cambio Delgado, 236 F.R.D. 190, 191- 6'1< Topo v. Dhir, 210
F.R.D. 76, 79 (S.D.N.Y. 2002).
A. The Plaintiffs’ Immigration Status and Work Authorization Status Are Not Relevant for Purposes of the FLSA and NYLL.
It is well-settled law that undocumented workers have the same rights to be paid earned wages as documented workers. See, e.g., Patel v. Quality Inn South, 846 F.2d 700 (11th Cir.
1988), cert. denied, 489 U.S. 1011 (1989) Colon v. Major Perry Street Corp., 987 F. Supp. 2d
451, 459 (S.D.N.Y. 2013) (“FLSA’s mandatory language leaves no discretion for courts to alter the statute’s remedial scheme based on an employee’s immigration status.”). Whether or not
Plaintiffs or any potential opt-in or class plaintiffs immigrated legally or whether they are or were authorized to work in this country, now or at the time of their employment by Defendants, has no bearing on their rights to recover unpaid wages. Courts generally prohibit discovery of immigration status and related information in the context of wage and hour violations under both the FLSA and NYLL. See Colon, 987 F. Supp. 2d at 464-65 (immigration status irrelevant to
)/6$DQG1
(“This Court finds that evidence of immigration status is irrelevant and therefore not admissible
44 Case 7:17-cv-06453-CS Document 37 Filed 12/14/17 Page 5 of 8
regarding any issue with respect to any [FLSA or] New York state law claim.´ Flores v.
Amigon, 233 F. Supp. 2d 462, 464- ('1< Liu v. Donna Karan Int’l, Inc., 207 F.
Supp. 2d 191, 192 (S.D.N.Y. 2002) (“[C]ourts addressing the issue of whether defendants should be allowed to discover plaintiff-workers’ immigration status in cases seeking unpaid wages brought under the FLSA have found such information to be undiscoverable.”) Topo v. Dhir, 210
F.R.D. 76, 79 (S.D.N.Y. 2002).
Nevertheless, Defendants’ Answer and responses to attempts to confer with respect to the instant motion suggest that they intend to seek this information. Quite simply, “[e]vidence that is irrelevant or may result in undue prejudice is outside the scope of discovery,” Rosas v. Alice’s
Tea Cup, LLC, 127 F. Supp. 3d 4, 7 (S.D.N.Y. 2015), and the Court should issue a protective order to protect Plaintiffs and potential opt-in and class plaintiffs from the “annoyance, embarrassment, oppression, or undue burden” that would necessarily arise from inquiry into their immigration status and work authorization status, whether legal or not.
B. Immigration Status and Related Information is Highly Sensitive and Discovery of it Chills the Assertion of Rights Under Federal and State Laws.
Immigration status and related information, such as work authorization status and social security or tax identification numbers, are highly private matters. See Burger v. Litton Indus.,
Inc., 1994 WL 669505, at *1 (S.D.N.Y. Nov. 29, 1994) (party seeking discovery of tax returns must establish that the returns are relevant and that there is a compelling need) S.E.C. v.
Cymaticolor Corp., 106 F.R.D. 545 (S.D.N.Y. 1985). Moreover, discovery of these matters could inhibit potential plaintiffs from pursuing their rights in the case, due to “possible collateral wholly unrelated consequences, because of embarrassment and inquiry into their private lives which was not justified, and also because it opened for litigation issues which were not present in the case.” In re Margarito Reyes, 814 F.2d 168, 170 (5th Cir. 1987). In granting protective
45 Case 7:17-cv-06453-CS Document 37 Filed 12/14/17 Page 6 of 8
orders such as the one that Plaintiffs here request, courts have recognized the danger of a chilling effect on the assertion of rights under the labor laws, if immigration issues were permitted to creep into the case. See, e.g., Topo, 210 F.R.D. at 78 (noting a “danger of intimidation [that] would inhibit plaintiffs in pursuing their rights”) LQWHUQDOTXRWDWLRQVDQGFLWDWLRQVRPLWWHG
Rengifo, 2007 WL 894376, at *2 (recognizing the “in terrorem effect of inquiring into a party’s immigration status and authorization to work in this country when irrelevant to any material claim”).
By separate motion filed today, Plaintiffs request that the Court conditionally certify a collective action under the FLSA anticipate filing a motion to certify a Rule 23 class in the near future. Allowing immigration and work authorization status to feature in the case would almost certainly chill participation in the case and allow Defendants to escape liability for the violations alleged in the case – not through merit, but through intimidation. The Court should issue a protective order to prevent its processes from being abused in such a manner. See Bridge C.A.T.
Scan Assocs., 710 F.2d at 944-45.
C. Any Relevance to Credibility is Highly Attenuated and Does Not Outweigh the Prejudicial Nature of the Inquiry.
Defendants have suggested that Plaintiffs’ immigration status may be relevant to their credibility. Courts in this district have consistently recognized, however, that while “credibility is always at issue, that ‘does not by itself warrant unlimited inquiry into the subject of immigration status when such examination would impose an undue burden on private enforcement” of the labor laws. Rengifo v. Erevos Enterprises, Inc., 2007 WL 894376, at *3
(S.D.N.Y. Mar. 20, 2007) (quoting Avila-Blum v. Casa de Cambio Delgado, Inc., 236 F.R.D. 190,
192 (S.D.N.Y. 2006) and granting protective order barring defendants from inquiring about plaintiff’s immigration status or social security number). Courts have generally held that, even
46 Case 7:17-cv-06453-CS Document 37 Filed 12/14/17 Page 7 of 8
where information related to immigration status may arguably be relevant, “the potential for prejudice far outweighs whatever minimal probative value such information would have.”
Amigon, 233 F. Supp. 2d at 464-65 (citing Liu)6XSSGDW Uto v. Job Site Services,
Inc., 269 F.R.D. 209 (E.D.N.Y. 2010). Accordingly, courts grant protective orders in cases like this one, precluding defendant-employers from seeking evidence regarding the plaintiff- employees’ immigration status and work authorization. See, e.g., Rosas, 127 F. Supp. 3d at 11.
IV. CONCLUSION
Immigration status and work authorization status are irrelevant to the material claims in this case. No potential use of such information outweighs the risk of harm to Plaintiffs and potential opt-in and class plaintiffs. Accordingly, Plaintiffs respectfully request that the Court issue a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, forbidding Defendants’ inquiry into and discovery of matters related to Plaintiffs’ immigration status and work authorization and indicia thereof, including but not limited to passports, visas, tax returns, social security numbers, tax ID numbers, place of birth, date or method of arrival in the U.S., location of family members, I-9 forms and W-4 forms.
Respectfully submitted,
/s/ Robert McCreanor
ROBERT MCCREANOR, Esq. MAUREEN HUSSAIN, Esq. Hudson Valley Justice Center 30 S. Broadway, 6th Fl. Yonkers, NY 10701 (914) 308-3490 [email protected] [email protected]
DAVID TYKULSKER, Esq. David Tykulsker & Associates 161 Walnut St.
47 Case 7:17-cv-06453-CS Document 37 Filed 12/14/17 Page 8 of 8
Montclair, NJ 07042 (973) 509-9292 [email protected]
Attorneys for Plaintiffs
48 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 1 of 17
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ______: Jose Barragan Contreras, Juan Alonzo Orellana, : and Jorge Yepez : : Individually, and on behalf of all others similarly : situated as Class Representatives, : : Plaintiffs, : : Case No.: 17-cv-06453 (CS) v. : : CLASS AND REPRESENTATIVE Rosann Landscape Corp., Rosann Land : ACTION Improvement Ltd., A.F.A. Management Corp., : and Ana Maria Birlescu : : Defendants. : ______:
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION, AUTHORIZE NOTICE TO THE CLASS, AND REQUIRE THE DISCLOSURE OF THE NAMES AND CONTACT INFORMATION OF THE POTENTIAL OPT-IN PLAINTIFFS
Respectfully submitted,
/s/ Robert McCreanor ROBERT MCCREANOR, Esq. MAUREEN HUSSAIN, Esq. Hudson Valley Justice Center 30 S. Broadway, 6th Fl. Yonkers, NY 10701 (914) 308-3490 [email protected] [email protected]
DAVID TYKULSKER, Esq. David Tykulsker & Associates 161 Walnut St. Montclair, NJ 07042 (973) 509-9292 [email protected] Attorneys for Plaintiffs
49 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 2 of 17
TABLE OF CONTENTS
I. INTRODUCTION 6
II. STATEMENT OF THE CASE 6
III. A FAIR LABOR STANDARDS ACT COLLECTIVE ACTION SHOULD BE CONDITIONALLY CERTIFIED AND NOTICE SENT TO THE CLASS 8
A. Legal Standards Governing FLSA Collective Actions 8
B. This Case Meets the Standard for Conditional Certification 10
C. Defendants Should Provide Information Necessary to Effectuate Notice via Several Methods 12
D. Six Years is the Appropriate Notice Period 14
E. Plaintiffs’ Proposed Notice Should Be Approved 15
IV. CONCLUSION 15
2
50 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 3 of 17
TABLE OF AUTHORITIES
Cases Page(s)
Adams v. Nature’s Expressions Landscaping, Inc. 10 2016 WL 6471455 (E.D. Ky. Nov. 1, 2016)
Batres v. Valente Landscaping 10 2014 WL 2111080 (E.D.N.Y. May 21, 2014)
Bhumithanarn v. 22 Noodle Market Corp. 12-14 2015 WL 4240985 (S.D.N.Y. July 13, 2015)
Bittencourt v. Ferrara Bakery & Café, Inc. 14 310 F.R.D. 106 (S.D.N.Y. 2015)
Bridges v. Absolute Lawn Care LA, LLC 10 2016 WL 6440326 (E.D. La. Nov. 1, 2016)
Damassia v. Duane Reade, Inc. 8 2006 WL 2853971 (S.D.N.Y. Oct. 5, 2006)
Fonseca v. Dircksen & Talleyrand, Inc. 14 2014 WL 1487279 (S.D.N.Y. Apr. 11, 2014)
Gortat v. Capala Brothers, Inc. 12 2010 WL 1423018 (E.D.N.Y. Apr. 9, 2010)
Guaman v. 5 M Corp. 14 2013 WL 5745905 (S.D.N.Y. Oct. 23, 2013)
Hallissey v. Am. Online, Inc. 10, 11 2008 WL 465112 (S.D.N.Y. Feb. 19, 2008)
Hernandez v. Bare Burger Dio Inc. 10-12 2013 WL 3199292 (S.D.N.Y. June 25, 2013)
Hoffmann v. Sbarro, Inc. 8 982 F. Supp. 249 (S.D.N.Y. 1997)
Hoffmann-LaRoche, Inc. v. Sperling 8, 12 493 U.S. 165 (1989)
Jackson v. Bloomberg, L.P. 13 298 F.R.D. 152 (S.D.N.Y. 2014)
3
51 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 4 of 17
Kelly v. Bank of America, N.A. 13 2011 WL 7718421 (N.D. Ill. 2011)
Khalil v. The Original Homestead Restaurant, Inc. 12 2007 WL 7142139 (S.D.N.Y. Aug. 9, 2007)
Khamsiri v. George & Frank’s Japanese Noodle Restaurant, Inc. 10, 11 2012 WL 1981507 (S.D.N.Y. June 1, 2012)
Kim v. 511 E. 5th Street, LLC, et al. 9-11 985 F. Supp. 2d 439 (S.D.N.Y. 2013)
Kucher v. Domino’s Pizza, Inc. 13 2017 WL 2987216 (S.D.N.Y. May 22, 2017)
Lopes v. Heso, Inc. 14 2017 WL 4863084 (E.D.N.Y. Oct. 27, 2017)
Lynch v. United Svcs. Auto. Ass’n 9, 10 491 F. Supp. 2d 357 (S.D.N.Y. 2007)
Myers v. Hertz Corp. 8, 10 624 F.3d 537 (2d Cir. 2010)
Moreira v. Sherwood Landscaping, Inc. 10 2014 WL 12539653 (E.D.N.Y. Mar. 31, 2014)
Pineda v. Jim-Mar Consultants, Inc. 10 741 F. Supp. 2d 398 (E.D.N.Y. 2010)
Raniere v. Citigroup, Inc. 9 827 F. Supp. 2d 294 (S.D.N.Y. 2011)
Salomon v. Adderley Indus. 14, 15 847 F. Supp. 2d 561 (S.D.N.Y. 2012)
Sanchez v. Gansevoort Mgmt. Group, Inc. 10, 11 2013 WL 208909 (S.D.N.Y. Jan. 10, 2013)
Sipas v. Sammy’s Fishbox, Inc. 12 2006 WL 1084556 (S.D.N.Y. Apr. 24, 2006)
Vasto v. Credico (USA) LLC 12 2016 WL 2658172 (S.D.N.Y. May 5, 2016)
4
52 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 5 of 17
Viriri v. White Plains Hosp. Med. Ctr. 9, 10 320 F.R.D. 344 (S.D.N.Y. 2017)
Whitehorn v. Wolfgang’s Steakhouse, Inc. 12, 13 767 F. Supp. 2d 445 (S.D.N.Y. 2011)
Winfield v. Citibank, N.A. 14 843 F. Supp. 2d 397 (S.D.N.Y. 2012)
Young v. Cooper Cameron Corp. 9 229 F.R.D. 50 (S.D.N.Y. 2005)
Statutes Page(s)
29 U.S.C. §§ 201, 216(b) Passim
Fed. R. Civ. P. 23 5, 13
New York Labor Law 14-15
5
53 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 6 of 17
I. INTRODUCTION
Plaintiffs Jose Barragan Contreras, Juan Alonzo Orellana, and Jorge Yepez (“Plaintiffs”)
filed this lawsuit on August 24, 2017, on behalf of themselves and other similarly situated current and former employees, pursuant to 29 U.S.C. § 216(b) and Rule 23 of the Federal Rules of Civil Procedure. Since the lawsuit was filed, two additional former employees have filed
Consents to Sue with this Court (Dkts. 11, 31), and Plaintiffs’ counsel have communicated with multiple other individuals who report having experienced the same pay policies while employed by Defendants. Plaintiffs allege that Defendants Rosann Landscape Corp., Rosann Land
Improvement Ltd., A.F.A. Management Corp., and Ana Maria Birlescu (“Defendants”) failed to pay them and a class of similarly situated employees (a) time-and-a-half for their overtime hours, and (b) anything at all for “off-the-clock” hours that employees were expected to work outside of their scheduled work hours.1
Plaintiffs now move the Court to conditionally certify a Fair Labor Standards Act
(“FLSA”) FROOHFWLYHDFWLRQ DXWKRUL]HQRWLFHWREHVHQWWRPHPEHUVRIDFODVVRIDOOFXUUHQWDnd former landscaping, grounds keeping, and maintenance employees employed by Defendants after
$XJXVW DQGUHTXLUH'HIHQGDQWVWRGLsclose the names and contact information of the potential members of such a class.
II. STATEMENT OF THE CASE
Defendants operate a landscaping business, serving residential and commercial clients located in various locations in New York and New Jersey. See First Amended Complaint, dated
Sept. 19, 2017 (“Am. Compl.”) ¶ 28 (Dkt. 16). Defendants employ a workforce comprised of
1 In addition to their federal claims, Plaintiffs assert several state law claims not relevant to the instant motion. 6
54 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 7 of 17
approximately 10-15 employees who perform the manual labor of landscaping, grounds keeping, and maintenance for Defendants’ clients. Id. ¶ 54. One of Defendants’ major clients is the
Newport development in Jersey City, New Jersey, see Exhibit 1, Declaration of Jose Barragan
Contreras, dated Dec. 6, 2017 (“Barragan Decl.”) ¶ 12, the self-described “largest mixed-use
development in the world,” which includes a riverfront pedestrian promenade, marina and yacht
club, park, town square, office buildings, shopping mall and other retail locations, restaurants,
hotels, parking garages, public transit hubs, and residential complexes.2
As Defendants’ business is seasonal and the work physically demanding, employee
WXUQRYHULVKLJK 3ODLQWLII%DUUDJDQ&RQWUHUDV estimates that approximately 80-100 landscaping employees have been employed by Defendants during the six-year time period prior to the filing of this lawsuit. See Barragan Decl. ¶ 26. Plaintiffs and Defendants’ other landscaping employees typically worked over 40 hours per week. See %DUUDJDQ'HFO Exhibit 2,
Declaration of Juan Alonzo Orellana, dated Dec. 6, 2017 (“Alonzo Decl.”) Exhibit 3,
Declaration of Jorge Yepez, dated Dec. 6, 2017 (“Yepez Decl.”) ¶¶ 7, 12. Defendants paid them weekly but never paid a premium rate for overtime hours. See Barragan Decl. $ORQ]R
Decl. ¶¶ 11-12 2 https://www.newportnj.com/index.php. 3 Defendants failed to pay Plaintiff Jose Barragan Contreras for even more “off-the-clock” hours per workday. See Barragan Decl. ¶¶ 13, 19. Defendants also failed to pay Plaintiffs for the periods in which they were transported, during their scheduled hours, between Defendants’ clients. 7 55 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 8 of 17 the Fair Labor Standards Act is warranted. III. A FAIR LABOR STANDARDS ACT COLLECTIVE ACTION SHOULD BE CONDITIONALLY CERTIFIED AND NOTICE SENT TO THE CLASS A. Legal Standards Governing FLSA Collective Actions Under the FLSA, an action to recover wages may be brought “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). The law provides an opt-in mechanism for employees to join such a suit, mandating that “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Id. District courts “have discretion, in appropriate cases, to implement [§ 216(b)] . . . by facilitating notice to potential plaintiffs” of the pending lawsuit and their ability to opt-in as party plaintiffs. Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffmann-LaRoche, Inc. v. Sperling, 493 U.S. 165, 169 (1989)). As the Second Circuit has noted, “the district courts of this Circuit appear to have coalesced around a two-step method” for implementing Section 216(b), Myers, 624 F.3d at 554- 55: first, “making an initial determination to send notice to potential opt-in plaintiffs who may be ‘similarly situated’ to the named plaintiffs with respect to whether a FLSA violation has occurred,” id. at 555 (citing Damassia v. Duane Reade, Inc., 2006 WL 2853971, at *3 (S.D.N.Y. 2FW /\QFK- Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor, J.)) DQGVHFRQGGHWHUPLQLQJRQDIXOOHUHYLGHQWLDU\UHFRUG“whether the plaintiffs who have opted in are in fact ‘similarly situated’ to the named plaintiffs” such that the action should continue as a collective, Myers, 624 F.3d at 555. To be deemed “similarly situated,” the named plaintiffs and the class of potential opt-LQSODLQWLIIVQHHGQRWEHLGHQWLFDOLQDOOUHVSHFWV rather, the relevant inquiry is whether they were allegedly subject to a common employment 8 56 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 9 of 17 policy that violated the FLSA. Raniere v. Citigroup, Inc., 827 F. Supp. 2d 294, 323 (S.D.N.Y. Sbarro, 982 F. Supp. at 261. In particular, “any factual variances that may exist between the plaintiff and the putative class do not defeat conditional class certification,” Lynch v. United Svcs. Auto. Ass’n, 491 F. Supp. 2d 357, 369 (S.D.N.Y. 2007), and even if “dates of employment and hours worked are unique to each employee,” that “does not necessarily create dissimilarity under the FLSA,” Viriri v. White Plains Hosp. Med. Ctr., 320 F.R.D. 344, 348 (S.D.N.Y. 2017) (internal quotations and citations omitted). At the preliminary certification stage, the court’s “limited role . . . is simply to determine whether the plaintiff has sufficiently alleged that he and other employees were victims of a common compensation policy that violated the FLSA,” Lynch, 491 F. Supp. 2d at 368, and “if the plaintiff’s allegations are sufficient on their face to support conditional certification, a defendant may not defeat the plaintiff’s motion by presenting conflicting factual assertions,” Kim v. 511 E. 5th Street, LLC, et al., 985 F. Supp. 2d 439, 446 (S.D.N.Y. 2013). Rather, the court must resolve any ambiguities in the record by drawing all inferences in favor of the plaintiff. Kim, 985 F. Supp. 2d at 446. Notice may be sent when plaintiffs make a “modest factual showing” that they and the potential opt-in plaintiffs were “victims of a common policy or plan that violated the law.” Id. (quoting Sbarro, 982 F. Supp. at 261). The focus at the notice stage “is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are ‘similarly situated’ . . . with respect to their allegations that the law has been violated.” Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005). Accordingly, a “low standard of proof” suffices at this first step, and courts “typically grant[] conditional certification,” as the purpose of the inquiry is simply to determine whether additional “similarly situated” plaintiffs may exist. 9 57 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 10 of 17 Viriri)5'DW LQWHUQDOTXRWDWLRQVDQGFLWDWLRQVRPLWWHG see Myers, 624 F.3d at 555. Plaintiffs may satisfy this standard by “relying on their own pleadings, affidavits, declarations, or the affidavits and declarations of other potential class members.” Hallissey v. Am. Online, Inc., 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008) Pineda v. Jim-Mar Consultants, Inc., 741 F. Supp. 2d 398, 400-01 (E.D.N.Y. 2010). A single affidavit establishing the common policy may meet the plaintiff’s low burden at the notice stage. Kim, 985 F. Supp. 2d at 445- see, e.g., Hernandez v. Bare Burger Dio Inc., 2013 WL 3199292, at *3 (S.D.N.Y. June Khamsiri v. George & Frank’s Japanese Noodle Restaurant, Inc., 2012 WL 1981507, DW 6'1<-XQH Sanchez v. Gansevoort Mgmt. Group, Inc., 2013 WL 208909 (S.D.N.Y. Jan. 10, 2013). Where the plaintiffs have met this lenient standard, “court-authorized notice is appropriate, to prevent erosion of claims due to the running statute of limitations, as well as to promote judicial economy.” Khamsiri, 2012 WL 1981507, at *2 (S.D.N.Y. June 1, 2012) (citing Lynch, 491 F. Supp. 2d at 371). B. This Case Meets the Standard for Conditional Certification Plaintiffs have adequately demonstrated that the class of employees performing landscaping, grounds keeping, and maintenance work for Defendants is similarly situated and subject to common pay practices that violate the FLSA. Courts consistently grant conditional certification motions in FLSA cases brought by landscaping workers such as Plaintiffs. See, e.g., Moreira v. Sherwood Landscaping, Inc.:/ ('1<0DU Batres v. Valente Landscaping, 2014 WL 2111080 (E.D.N.Y. May 21, 2014) Adams v. Nature’s Expressions Landscaping, Inc.:/ ('.\1RY Bridges v. Absolute Lawn Care LA, LLC, 2016 WL 6440326 (E.D. La. Nov. 1, 2016). Plaintiffs estimate that approximately 80-100 other individuals worked as landscapers for Defendants during the past six 10 58 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 11 of 17 years, and have in fact spoken with other workers they believe would be interested in joining the case. See Barragan Decl. ¶¶ 26- As described in their declarations, each of the named plaintiffs experienced the same unlawful pay practices, whereby Defendants failed to pay them a premium rate for their overtime hours, even though Plaintiffs and other employees typically worked over 40 hours in a week, and failed to pay them at all for time worked outside of their scheduled hours, which were not permitted to be recorded on their time sheets. See Barragan Decl. ¶¶ 9, 15- $ORQ]R'HFO7, 9-11 By Defendants’ own assertions, failure to pay overtime was a company-wide policy. In response to Plaintiff Jose Barragan Contreras’s queries about his pay, Defendant Ana Maria Birlescu informed him that “this is how the company pays.” Barragan Decl. ¶ 11. In response to Plaintiff Juan Alonzo Orellana’s similar query, she stated that “I can’t pay overtime.” Alonzo Decl. ¶ 8. In addition, each of the named plaintiffs spoke with and observed other employees who worked overtime and “off-the-clock” hours, and whom they understand were likewise underpaid. See %DUUDJDQ'HFO $ORQ]R'HFO Supp. 2d at 445- Hernandez:/ DW Khamsiri:/ DW Sanchez, 2013 WL 208909. 11 59 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 12 of 17 C. Defendants Should Provide Information Necessary to Effectuate Notice via Several Methods The Supreme Court has acknowledged that the benefits of a collective action “depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate.” Hoffmann-LaRoche, 493 U.S. at 486. Moreover, court-authorized notice “serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff dates to expedite disposition of the action.” Id. at 472. To facilitate notice, courts in the Second Circuit typically require employers to furnish the names and contact information of putative class members and approve the posting of notice and consent forms at the place of employment. Hernandez, 2013 WL 3199292, at *5 (collecting cases and requiring defendants to produce to plaintiff a computer-readable list of names, addresses, compensation rates, telephone numbers, and dates of employment for putative class members within 15 days). Traditionally, courts have approved notice by mail and workplace posting, see Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F. Supp. 2d 445, 449 (S.D.N.Y. 2011) (collecting cases), and by newspaper publication, see, e.g., Gortat v. Capala Brothers, Inc., 2010 WL 1423018, at *12 ('1<$SU DSSURYLQJSXEOLFDWLRQRIQRWLFHLQ3ROLVKODQJXDJHQHZVSDSHU Khalil v. The Original Homestead Restaurant, Inc., 2007 WL 7142139, at *2 (S.D.N.Y. Aug. 9, 2007) DSSURYLQJQRWLFHE\QHZVSDSHUSXEOLFDWLRQ Sipas v. Sammy’s Fishbox, Inc., 2006 WL 1084556, at *3 (S.D.N.Y. Apr. 24, 2006) (approving notice by mail and newspaper publication). As additional technologies have become more mainstream, courts are increasingly authorizing notice to class members by e-mail, text message, and website posting as well. See, e.g., Vasto v. Credico (USA) LLC, 2016 WL 2658172 (S.D.N.Y. May 5, 2016) (authorizing notice via e-mail DQGWH[WPHVVDJH Bhumithanarn v. 22 Noodle Market Corp., 2015 WL 4240985, at *5 12 60 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 13 of 17 (S.D.N.Y. July 13, 2015) (authorizing text message notice, as well as mail and workplace posting, and noting that in an industry with high turnover, “notice via text message is likely to be a viable and efficient means of communicating with many prospective members of this collective action´ Kelly v. Bank of America, N.A., 2011 WL 7718421, at *1 (N.D. Ill. Sept. 23, 2011) (approving notice by mail, e-mail, and website). Courts routinely approve requests to issue notice by multiple methods, especially where doing so imposes minimal burden on or disruption in the workplace. Whitehorn, 767 F. Supp. 2d at 449 ("[c]ourts routinely approve requests to post notice on employee bulletin boards and in other common areas, even where potential PHPEHUVZLOODOVREHQRWLILHGE\PDLO Jackson v. Bloomberg, L.P., 298 F.R.D. 152, 169-70 (S.D.N.Y. 2014) (approving notice by mail, e-mail and workplace posting and notice that such GHOLYHU\PHWKRGVZHUHFRPPRQLQZDJHDQGKRXUOLWLJDWLRQ Kucher v. Domino’s Pizza, Inc., 2017 WL 2987216, at *6 (S.D.N.Y. May 22, 2017) (approving notice by mail, e-mail, text PHVVDJHDQGZRUNSODFHSRVWLQJ Bhumithanarn, 2015 WL 4240985, at *5. Plaintiffs seek to provide notice of the lawsuit and opt-in procedures to potential class members, in English and Spanish,4 via the following methods: (1) first-class mail to their last NQRZQDGGUHVVHV WH[WPHVVDJHWRWKHLUlast known FHOOSKRQHQXPEHUV e-mailing to their last known e-PDLODGGUHVVHV (4) the posting of the Notice and Consent forms on Plaintiffs’ counsel’s websites with an option to execute opt-in consent forms electronically online SXEOLVKLQJDQRWLFHLQWKHORFDO6SDQLVKODQJXDJHQHZVSDSHUV:HVWFKHVWHU+LVSDQRDQG(O6RO and (6) posting the Notice and Consent forms in a conspicuous location in each workplace, 4 English language versions of the proposed notices are attached here as exhibits. Plaintiffs propose to translate into Spanish such notices as may be approved by the Court, to file the Spanish language versions with the Court should the Court so require, and to distribute the notices in both languages to potential opt-in plaintiffs. 13 61 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 14 of 17 including the Larchmont office and the Newport worksite. Of these methods, only workplace posting would impose even a nominal burden on Defendants, and courts have recognized that such posting is an effective and efficient mechanism for informing current employees about the lawsuit. Bittencourt v. Ferrara Bakery & Café, Inc., 310 F.R.D. 106, 118 (S.D.N.Y. 2015) (collecting cases). Notice via several methods would be especially important in effectuating notice in this case, where there was high employee turnover and several class members are already known to have moved. See Bhumithanarn:/ DW %DUUDJDQ'HFO 27. D. Six Years is the Appropriate Notice Period In cases involving New York Labor Law claims, in addition to FLSA claims, courts in this District routinely authorize a six-year notice period. See, e.g., Fonseca v. Dircksen & Talleyrand, Inc.:/ DW 6'1<$SU Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 410 (S.D.N.Y. 2012) (collecting cases) see also Lopes v. Heso, Inc., 2017 WL 4863084, at *2-6 (E.D.N.Y. Oct. 27, 2017). The rationale is that “even where claims are untimely under FLSA, they may shed light on the appropriateness of certifying a class action under the NYLL.” Guaman v. 5 M Corp., 2013 WL 5745905, at *5 (S.D.N.Y. Oct. 23, 2013) see also Salomon v. Adderley Indus., 847 F. Supp. 2d 561, 566 (S.D.N.Y. 2012) (noting that “it is in the interest of judicial economy to provide notice covering both the three-year FLSA claims and six-year New York Labor Law claims” where such notice “may aid in making a subsequent determination as to whether a class should be certified under New York law”). Here, Plaintiffs have asserted claims under the New York Labor Law and have indicated, in the First Amended Complaint, their intention to seek certification of a Rule 23 class for those claims. See Am. Compl. By authorizing a six-year notice period at this stage, the Court will not only effectuate 14 62 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 15 of 17 notice to potential opt-in plaintiffs for the FLSA class, but also provide both parties with an efficient means to evaluate their positions with respect to an anticipated NYLL class. E. Plaintiffs’ Proposed Notices Should Be Approved A copy of the notice that Plaintiffs propose to send by mail and e-mail to prospective class members is attached to the motion as Exhibit 6. A copy of the notice that Plaintiffs propose to send via text message to prospective class members is attached as Exhibit 7. These notices inform potential opt-in plaintiffs in neutral language of the nature of the action, their right to participate in it by filing a written consent with the Court, and the consequences of joining or declining to join the action. They are consistent with forms of notice that have been approved in this District. See Salomon, 847 F. Supp. 2d at 566-67 (discussing common components of notice). The notices should be provided in both English and Spanish to meaningfully effectuate notice to prospective class members. IV. CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that this Court: • conditionally certify a collective action under the Fair Labor Standards Act and order notice sent to potential members of a class of all current and former landscapers, grounds keepers, and maintenance staff employed by Rosann Landscape Corp., Rosann Land Improvement Ltd., A.F.A. Management Corp., and/or Ana Maria Birlescu (“Defendants”) after August 24, 2011 • order Defendants to disclose to Plaintiffs’ counsel, within 15 days of the entry of this Order, the names, compensation rates, dates of employment, last known addresses, last known cell phone numbers, and last known e-mail addresses, in Excel spreadsheet format, of all individuals currently or formerly employed by Defendants since August 24, 15 63 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 16 of 17 2011 (“Potential Opt-in Plaintiffs”) • authorize Plaintiffs’ counsel to distribute to Potential Opt-in Plaintiffs, in English and Spanish, the Notice of Lawsuit, Text Message Notice of Lawsuit, and Consent to Sue, annexed hereto as Exhibits 6, 7, and 8, respectively,5 by the following methods: (1) first- class mailiQJRIWKH1RWLFHRI/DZVXLWDQG&RQVHQWWR6XHWRWKHLUODVWNQRZQDGGUHVVHV (2) text messaging of the Text Message Notice of Lawsuit to their last known cell phone QXPEHUV H-mailing of the Notice of Lawsuit and Consent to Sue to their last known e- mDLODGGUHVVHV SRVWLQJRIWKH1RWLFHRI/DZVXLWDQG&RQVHQWWR6XHRQ3ODLQWLIIV’ counsel’s website(s) with an option to execute opt-LQFRQVHQWIRUPVHOHFWURQLFDOO\RQOLQH DQG SODFLQJDQRWLFHLQWKH:HVWFKHVWHU+LVSDQRDQG(O6ROQHZVSDSHUV • order Defendants to post, within 5 days of the date of entry of this Order, the Notice of Lawsuit and Consent to Sue, in English and Spanish, in a conspicuous place or places at Defendants’ workplace, sufficient to give all current employees of Defendants an opportunity to view such documents. At a minimum, the documents shall be posted at the site where Defendants’ employees congregate for meal breaks at the Newport development in Jersey City, NJ and the Lefrak City development in Queens, NY, as well as Defendants’ corporate headquarters in Larchmont, NY, until June 1, 2018 • authorize Plaintiffs’ counsel to send a follow-up text message and postcard to any Potential Opt-in Plaintiffs who have not responded 30 days after the mailing of the initial QRWLFH and 5 English language versions of the proposed notices are attached to the accompanying memorandum of law as exhibits. Plaintiffs propose to translate into Spanish such notices as may be approved by the Court, to file the Spanish language versions with the Court, and to distribute the notices in both languages to potential opt-in plaintiffs. 16 64 Case 7:17-cv-06453-CS Document 33 Filed 12/14/17 Page 17 of 17 • allow completed Consent to Sue forms to be filed on behalf of Potential Opt-in Plaintiffs until June 1, 2018. Such an order would not only enable Plaintiffs and Potential Opt-in Plaintiffs to meaningfully assert their rights under the labor laws but also promote judicial economy in the administration of these matters. 17 65 66 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 1 of 24 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ______: Jose Barragan Contreras, Juan Alonzo Orellana, : and Jorge Yepez : : Individually, and on behalf of all others similarly : situated as Class Representatives, : : Plaintiffs, : : Case No.: 17-cv-06453 (CS) v. : : CLASS AND REPRESENTATIVE Rosann Landscape Corp., Rosann Land : ACTION Improvement Ltd., A.F.A. Management Corp., : and Ana Maria Birlescu : : Defendants. : ______: PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO CERTIFY A RULE 23 CLASS AND APPOINT CLASS COUNSEL 67 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 2 of 24 TABLE OF CONTENTS I. Introduction……………………………………………………..…………………………3 II. Statement of the Case………………………………………...……………………………3 III. A Class Should be Certified Pursuant to Fed. R. Civ. P. 23……………………………….6 A. Numerosity………………………………………………………………………...7 B. Commonality……………………………………………………………………..10 C. Typicality………………………………………………………………………...13 D. Adequacy………………………………………………………………………...16 E. Common Questions of Law and Fact Predominate Over Individual Issues, and a Class Action is Superior to Other Methods of Adjudicating the Case…………...18 IV. Plaintiffs’ Counsel Should be Appointed Class Counsel……………………………...…22 V. Notice Should be Sent to the Class………………………………………………………23 VI. Conclusion……………………………………………………………………………….23 2 68 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 3 of 24 I. INTRODUCTION For many years, Defendants have held lucrative contracts to provide landscaping and maintenance services for various entities affiliated with the LeFrak family real estate conglomerate, including Newport in Jersey City, New Jersey – the self-described “largest and most successful mixed-use community in the world”1 – and major residential developments in New York State. Defendants’ handsome profits from these contracts have been augmented all along by the illegally low wages they pay to the predominately immigrant workforce who meticulously maintains these prestigious properties. Named Plaintiffs Jose Barragan Contreras, Juan Alonzo Orellana, and Jorge Yepez, along with opt-in Plaintiffs Javier Ibarra, Rafael Aguilar, Isaac Yepez, and Agustin Iniguez, seek to recover their own owed wages, as well as wages on behalf of all other current and former landscaping, grounds keeping, and/or maintenance employees who worked for any of the Defendants from August 24, 20112 to the present (“Class”). II. STATEMENT OF THE CASE Defendants pay a flat hourly wage rate to all members of the proposed Class, which they euphemistically refer to as the “budget” rate, for reported hours of work up to 40 in a week. See Excerpt of Transcript of Deposition of Ana Maria Birlescu on behalf of Rosann Landscape Corp., dated May 1, 2018 (“Birlescu 5/1/18 Tr.”) (Ex. L), at 77:11-20. For hours of work over 40, Defendants either pay the same hourly “budget” rate, see id., or an even lower hourly rate. The degree of underpayment for overtime hours turns on whether or not the employee is officially on 1 https://www.newportnj.com. 2 This date represents six years from the filing of the Complaint in this matter. 3 69 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 4 of 24 payroll. For employees who receive a payroll check issued through Paychex (“Payroll Employees”), the payroll check typically compensates them for up to 40 hours of work at the “budget” rate; in weeks when they worked over 40 hours, Payroll Employees also receive a second, non-payroll check for their overtime hours, which are paid at an hourly rate lower than they were paid for the first 40 hours. See, e.g., Ex. I (Defendants’ weekly pay worksheet indicating 40 hours worked by Plaintiff Barragan and Bernardo Torres and corresponding Paychex payroll journal) (highlighting added); Ex. W (Defendants’ weekly pay worksheet indicating 43 hours worked by Plaintiff Barragan and Bernardo Torres and corresponding Paychex payroll journal and second, non-payroll checks) (highlighting added). For all other employees (“Non-Payroll Employees”), Defendants pay all reported hours, including overtime hours, at the single “budget” rate on a single, non-payroll check.3 See, e.g., Ex. J (weekly pay worksheets and time sheets showing, e.g., Plaintiff Juan Orellana and Braulio Jimenez being paid $575 in weeks when they were reported as working 40 hours (“budget” rate of $14.375 per hour)); Ex. X (weekly pay worksheets and time sheets showing Plaintiff Orellana and Braulio Jimenez being paid $690 in weeks when they were reported as working 48 hours (same “budget” rate of $14.375 per hour)) (highlighting added); Ex. V (copies of corresponding paychecks) (redacted). Defendants’ internal records of employees’ hours and pay, which they refer to as “weekly pay worksheets,” purport to show – for all members of the proposed class – a different, 3 In Defendants’ “weekly pay worksheets,” the column labeled “expected pay” is the amount Defendants paid. See Birlescu 5/1/18 Tr., at 126:11-18 (“Q: Is it correct that in any given week no matter how much the column for total pay on the weekly worksheet said . . . the amount that Rosann Landscape would actually pay the worker would be the expected pay column? A: I think so, yes.”). For Payroll Employees, who received two checks, the row immediately above the row containing their names indicates how much Defendants paid on each check. That is, the “EXPECTED” column in the upper row reflects the amount paid through the Paychex payroll check and the “PAID#” column reflects the amount paid through the non-payroll company check. This interpretation is corroborated by the paychecks themselves. 4 70 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 5 of 24 lower “regular” rate of pay and an “overtime” rate of pay, neither of which matches the “budget” rate. See Exs. I, J, X. Defendants never actually pay employees based on these fictional “regular” and “overtime” rates, however; indeed, the Excel formula Defendants use to calculate each employee’s weekly pay depends solely on the budget rate, with no reference whatsoever to the purported “regular” and “overtime” rates. See Birlescu 5/1/18 Tr., at 126:11-18 (“Q: Is it correct that in any given week no matter how much the column for total pay on the weekly worksheet said . . . the amount that Rosann Landscape would actually pay the worker would be the expected pay column? A: I think so, yes.”); Exhibit 3B to Rule 30(b)(6) Deposition of Rosann Landscape Corp., dated May 1, 2018 (Ex. K) (Excel spreadsheet showing that “expected pay” (column AA) is calculated by adding regular hours (column Q) plus overtime hours (column R) and multiplying the total by a single “budget” rate, e.g. 15). Thus, Defendants have a uniform policy that in fact fails to provide employees with the NYLL required one-and-a-half times their regular rate of pay for overtime hours. In addition, Defendants do not pay any of their employees a spread of hours premium for days on which they work over 10 reported hours, see, e.g., Ex. C, at 3-4 (showing that when Braulio Jimenez was reported as working 51 hours, including a 10.5-hour day, he was paid $561 (reflecting $11 per hour “budget” rate), and when he was reported as working 42 hours, with no days over 10 hours, he was paid $462 (reflecting the same $11 per hour “budget” rate)), and do not issue employees a written notice of their pay rates and other terms of employment at the time of their hiring, or a wage statement notice with each payment of wages, specifying, inter alia, the number of hours worked and the applicable pay rates. These uniform policies, in derogation of NYLL requirements, merit Class-wide treatment. Further, Defendants required, suffered and permitted Plaintiffs to work hours for which 5 71 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 6 of 24 Plaintiffs were never compensated. Plaintiffs regularly arrived at Defendants’ work sites at least 20-30 minutes prior to their official “on the clock” start time and were required to unload equipment and prepare for their landscaping and maintenance duties. After the end of their official “on the clock” end time, Plaintiffs were again required to clean up and re-load equipment. Finally, Plaintiffs were often required to travel between Defendants’ work sites during the course of a work day and such work time was not included in Plaintiffs’ official “on the clock” hours. Plaintiffs received no compensation whatsoever for their labor performed during these “off the clock” time periods. These illegal employment practices were applied uniformly to the proposed Class in this action. III. A CLASS SHOULD BE CERTIFIED PURSUANT TO FED. R. CIV. P. 23. The proposed Class is ascertainable and readily defined, as all current and former landscaping, grounds keeping, and/or maintenance employees who worked for any of the Defendants from August 24, 2011, to the present. Indeed, this Court has already conditionally certified a Fair Labor Standards Act collective action on behalf of a class with an identical definition, apart from the relevant time period, and Defendants have identified and produced sufficient time and pay records pertaining to the members of the proposed Class to demonstrate Defendants’ uniform employment practices. A class action may be maintained pursuant to Fed. R. Civ. P. 23 if the class meets the four prerequisites of Fed. R. Civ. P. 23(a)(1)-(4) and fits one of the categories set forth in Fed. R. Civ. P. 23(b). Pursuant to Fed. R. Civ. P. 23(a), “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses 6 72 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 7 of 24 of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” The First Amended Complaint and the evidence submitted in support of this motion demonstrate that the proposed class satisfies the Rule 23(a) prerequisites and qualifies under Rule 23(b)(3), as discussed in more detail below. While “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage,” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013), the Court must determine that each Rule 23 requirement has been met and resolve those factual disputes necessary to do so, id.; In re IPO, 471 F.3d 24 (2d Cir. 2006). In this Circuit, “where a collective action under the FLSA that is based on the same set of facts has been approved there is an inclination to grant class certification of state labor law claims.” Garcia v. Pancho Villa’s of Huntington Village, Inc., 281 F.R.D. 100, 104-05 (E.D.N.Y. 2011); see also Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 163 (S.D.N.Y. 2008) (“[C]ourts in the Second Circuit routinely certify class action[s] in FLSA matters so that New York State and federal wage and hour claims are considered together.”) (collecting cases). The proposed Class in this case satisfies all of the requirements of Rule 23. a. Numerosity In the Second Circuit, “numerosity is presumed at a level of 40 members.” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). Here, the proposed class contains approximately 80 members, and no countervailing considerations exist that would tend to make traditional joinder of so many individuals more practicable here than in the cases in which the presumption developed. See Declaration of Jose Barragan Contreras, dated Dec. 6, 2017 (Dkt. 33-1); Rosann Landscape Corp. Contact List (Ex. A); Email Correspondence with Defense Counsel (Ex. B) (highlighting added to identify Class members not included in Ex. A); Example 7 73 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 8 of 24 Rosann Landscape Corp. Weekly Pay Worksheets (Ex. C) (highlighting added to identify Class members not included in Exs. A or B). Defendants have failed to provide complete and accurate contact information for employees who worked for Defendants within the last three years, as required by this Court’s Order certifying a FLSA collective action, see Transcript of Proceedings, dated Feb. 21, 2018 (Dkt. 47), attributing their failure to the transient nature of the Plaintiff Class,4 see Excerpt of Transcript of Proceedings, dated March 12, 2018 (Ex. M) (defense counsel referring to Defendants’ employees as “gypsies”). While the tooth-pulling nature of Plaintiffs’ efforts to retrieve contact information from Defendants – and Defendants’ ultimate, if piecemeal, disclosure of more information, after repeated assertions by defense counsel that none existed – gives Plaintiffs reason to doubt that the whereabouts of so many Class members are in fact unknown or unknowable to Defendants, they nevertheless agree that the difficulty involved in contacting the proposed Class supports a finding that the joinder of all potential plaintiffs is impracticable in this case. Even the limited amount of employee contact information that Defendants disclosed to Plaintiffs demonstrates that Class members are geographically dispersed in various towns in New York and New Jersey, rendering joinder infeasible. See Exs. A, B; see McLaughlin, 224 F.R.D. at 308-09 (noting that “identifiability and geographic proximity are certainly necessary for joinder to be practicable, but the presence of those factors alone is not 4 Defendants supplied a telephone number for only 2 of the 36 individuals they initially admitted to employing from August 2014 onward, and a mailing address for only 22 (4 of which resulted in mail that was returned as undeliverable). Defendants eventually disclosed an additional five phone numbers (including the phone number of Efrain Flores, who has been the supervisor for as long as Defendant Birlescu can remember and has a company-issued phone) and three new names; provided the contact information for an individual (Stephen Schmitt) inquired about by Plaintiffs, whom Defendants had not identified; and confirmed the employment of two individuals inquired about by Plaintiffs, whom Defendants had not identified (who Defendants claim were probably employed for one day). See Exs. A, B. 8 74 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 9 of 24 sufficient to render joinder practicable” and concluding that employees who lived in various towns throughout Massachusetts lacked sufficient geographic concentration to overcome the presumption of numerosity) (emphasis in original). Plaintiffs have since come to know that Defendants intentionally withheld information about the conditionally certified FLSA class. In their “Contact List” and subsequent additions, Defendants failed to provide a phone number or address for Agustin Iniguez, despite the fact that supervisor Efrain Flores clearly had Mr. Iniguez’s phone number and requested (and received) Mr. Iniguez’s address in March, see Exs. A, B; Declaration of Agustin Iniguez, dated June 27, 2018 (“Iniguez Decl.”) ⁋⁋ 14-15 and accompanying text messages between Agustin Iniguez and Efrain Flores (Ex. N), failed to identify or provide contact information for Roger Flores, who was subsequently identified at depositions as a foreman, see Birlescu 5/1/18 Tr., at 83:19-20, and admitted in depositions to deleting the names of their current employees from their discovery production, because “I [Ana Maria Birlescu] don’t think you should know about them,” Birlescu 5/1/18 Tr., at 58:19-60-4. Even more egregiously, supervisor Efrain Flores contacted at least one member of the FLSA class, Mr. Iniguez, prior to the Court-approved notice being distributed, instructed him to ignore the papers would he would be receiving, and promised that if Mr. Iniguez did not join the lawsuit, Mr. Flores would arrange a job for him. See Iniguez Decl. ⁋ 16. Though Mr. Iniguez was undeterred and filed an opt-in form, others in the same circumstances would likely have chosen not to participate in the case. Where, as here, Defendants are actively obstructing potential plaintiffs from joining the action, courts have recognized that traditional joinder is even more difficult than the number of Class members alone would suggest. See Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 161- 64 (S.D.N.Y. 2008) (noting that “employees may feel intimidated about volunteering to 9 75 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 10 of 24 participate in an opt-in collective action” and that “it may be that in the wage claim context, the opt-out nature of a class action is a valuable feature lacking in an FLSA collective action, insofar as many employees will be reluctant to participate in the action due to fears of retaliation”); Jankowski v. Castaldi, 2006 U.S. Dist. LEXIS 4237, at *2 (E.D.N.Y. Jan. 13, 2006); Guzman v. VLM, Inc., 2008 U.S. Dist. LEXIS 15821 (E.D.N.Y. Mar. 2, 2008) (finding that low FLSA opt-in rate may be explained by possibility of employer intimidation and should not limit class certification); Myers v. Mem’l Health Sys. Marietta Mem’l Hosp., 2017 U.S. Dist. LEXIS 60430 (S.D. Ohio Apr. 20, 2017) (finding that defendant-employer’s efforts to intimidate and dissuade employees from joining collective and class action frustrated purpose of FLSA and state labor law). b. Commonality To satisfy the commonality requirement, Plaintiffs’ claims must “depend upon a common contention . . . of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Here, Defendants’ practices of using the “budget rate” to avoid their obligation to pay premium pay for hours worked in excess of 40 during a week; failing to pay a spread of hours premium; and failing to provide written hiring notices and wage statements are demonstrably class-wide. As described above, Defendants pay their landscaping employees a single hourly “budget” rate for all reported hours up to 40. Defendants themselves consider their pay practices with respect to the calculation of wages to be class-wide, as Defendant Birlescu explained at the 30(b)(6) deposition of Rosann Landscape Corp. See Birlescu 5/1/18 Tr., at 77:16-20 (Q: “So in all cases to calculate the amount that the company is going to pay, you take the total number of 10 76 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 11 of 24 hours that the employee worked and multiply by a set budget rate?” A: “Yes.”). The pay records show, however, that Defendants did make a distinction between Payroll Employees and Non- Payroll Employees in this regard: they continued to pay Non-Payroll Employees the “budget” rate for all hours over 40, but they paid Payroll Employees an even lower hourly rate for their overtime hours. This distinction does not defeat commonality, however, and simply goes to the calculation of damages for the affected workers. See Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 154-55 (S.D.N.Y. 2002) (finding no defect of commonality or typicality where the prospective class members did different jobs that calculated overtime pay using different methods, among other factual variations). Even if the Court were to credit Defendants’ unsubstantiated claim that they pay an extra hour at the “overtime” rate when employees work more than 10 hours in a day, see Excerpt of Transcript of Deposition of Ana Maria Birlescu on behalf of Rosann Landscape Corp., dated May 3, 2018 (“Birlescu 5/3/18 Tr.”) (Ex. P), at 75:14- 76:8 – a claim which is flatly contradicted by Defendants’ own time and pay records – Defendants are admitting that they apply their pay policies on a uniform basis to the Class as a whole. Thus, the questions of whether Defendants’ methodology for calculating pay violates the New York Labor Law with respect to the payment of overtime and spread of hours premium are each susceptible to a single answer. Similarly, Defendants failed to provide their landscaping employees with the hiring notices and wage statement notices required by the NYLL. Plaintiffs requested all documents Defendants provided to them upon their hiring, see Request Numbers 10-14, Exhibit D (RFPs to RLC), but Defendants produced no hiring notices, see Responses 10-14, Exhibit E (Defendants’ responses). Defendants’ practice of hiring employees without providing the required notice applied to all Class members. See Birlescu 5/3/18 Tr., at 111:21-112:22 (Defendant Birlescu 11 77 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 12 of 24 testifying that she only recorded employees’ wage rates on internal pay worksheets until April or May 2017, when she also began recording it on the “LS 72” form5). Similarly, Plaintiffs requested all documents provided to them with each payment of their wages, see Plaintiffs’ Requests for Production of Documents to Defendant Rosann Landscape Corp. Nos. 15-19 (Ex. D), but Defendants produced no arguably responsive documents apart from copies of checks, see Defendants’ Responses No. 15-19 (Ex. E); Ex. F (checks produced by Defendants). Plaintiffs’ own records and subpoenaed materials from Paychex, Inc. and T.D. Bank confirm that the checks received by employees never contained all the information required by the NYLL. See, e.g., Ex. G (example paychecks received by Plaintiffs Barragan, Orellana, and Yepez); Ex. V (example subpoenaed checks from T.D. Bank) (redacted); Zhi Yong Zheng v. Nanatori Japanese Rest. Corp., 2017 U.S. Dist. LEXIS 3699 (E.D.N.Y. Jan. 9, 2017) (finding that provision of inaccurate pay stubs constituted violation of NYLL wage statement requirement). Finally, Plaintiffs’ “off-the-clock” claims are likewise susceptible to common proof – namely, the Exxon Mobil credit card statements tending to show the times Plaintiffs began performing principal work activities on certain days; the EZ Pass records showing the times work vehicles incurred tolls as employees went from one worksite to another or left work; and the testimony of Plaintiffs about what they did and when they did it. All information exchanged thus far in discovery supports Plaintiffs’ contention that Defendants’ practice of recording hours worked only between the hours of 7 a.m.-3:30 p.m. was company-wide, and that this practice resulted in undercounting the number of hours employees actually worked across the board. See, e.g., Excerpt of Service Agreement between Newport Associates Development Company and 5 Defendants have yet to produce any such alleged documents, but even assuming that they exist and are legally compliant, they were not provided to Class members for the vast majority of the relevant time period. 12 78 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 13 of 24 Rosann Landscape Corp., dated March 1, 2014 (Ex. H) (detailing the landscaping services to be provided at Newport and providing that straight time labor rates are based on a schedule of Monday-Friday, 7am-3:30pm); Excerpt of Transcript of Deposition of Jose Barragan Contreras, dated Apr. 25, 2018 “Barragan Tr.” (Ex. O), at 111:12-24 (Plaintiff Barragan testifying that supervisor Efrain Flores taught him to fill out the time sheets from 7am-3:30pm for work in Newport); see also Iniguez Decl. ⁋⁋ 5-9 (both crews engaged in preparations for the day’s work prior to 7:00am and continued working after 3:30pm). Defendants’ insistence that no off-the- clock work occurred, if accepted, is in essence an assertion of a uniform labor policy; that is, an asserted “company policy” that all work was to take place during employees’ official schedule, see Declaration of Ana Maria Birlescu, dated Jan. 17, 2018 (“Birlescu Decl.”) ⁋ 12 (“Company policy was that set up and take down time was to be accomplished during employees’ regular working hours, which were 7am to 3:30pm for [Plaintiff Barragan’s] crew”) (Dkt. 43), and Defendant Birlescu testified at the Rule 30(b)(6) deposition of Rosann Landscape Corp. that the official schedule was uniform across the company, see Birlescu 5/3/18 Tr., at 77:12-77:20 (“Q: What time did work at Rosann Landscape start? A: 7. Q: At what time was – did it finish? A: 3:30. Q: And did it vary by the day of the week? A: Not really. Q: Did it vary by location? A: Not really.”6). Under either Plaintiffs’ or Defendants’ version of the facts, off-the-clock work – or the lack thereof – occurred on a company-wide basis, making Class treatment entirely appropriate. c. Typicality Typicality is satisfied “when each class member’s claim arises from the same course of 6 The evidence shows that this “official” schedule applied to work performed at the Newport work site, with more variable hours reported for work performed in Manhattan, Queens, New Rochelle, and Larchmont. Nevertheless, these variations applied uniformly to all workers when they were assigned to work at those locations. 13 79 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 14 of 24 events and each class member makes similar legal arguments to prove the defendant’s liability.” Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993); Spicer v. Pier Sixty LLC, 269 F.R.D. 321, 337 (S.D.N.Y. 2010) (finding commonality and typicality easily satisfied where all class members were subject to the same pay policies). The named Plaintiffs performed the same job duties as the members of the proposed Class, with Plaintiff Jose Barragan performing some additional duties as well – in particular, driving Defendants’ vehicles and transporting employees to and from work, relaying instructions from Defendant Birlescu to the members of his crew, and reporting back to Defendant Birlescu about the activities and hours of his crew. Plaintiff Barragan’s additional duties do not defeat typicality here, where it is undisputed that he also performed the same kinds of manual labor that all other members of the Class performed, see Barragan Tr., at 109:13-24 (Plaintiff Barragan testifying that he cut grass, weeded, pruned, and cleaned roads); Excerpt of Transcript of Deposition of Juan Orellana, dated Apr. 12, 2018 (“Orellana Tr.”) (Ex. Q), at 83:4-5 (Plaintiff Orellana testifying that among Plaintiff Barragan’s responsibilities were driving the truck, spreading, and watering flowers); Rosann Landscape Corp. work order dated Apr. 22, 2015 (Ex. R) (approved work order indicating that Johao Gomes, Juan Orellana, Agustin Iniguez, and Jose Barragan cleaned up, pruned, fertilized, cultivated plants, and cut grass on 6th Street and other locations), and where he was underpaid in the same manner as other Class members. Defendants’ course of conduct toward Plaintiffs was typical of their course of conduct toward other members of the Class. Plaintiffs Orellana and Yepez were “Non-Payroll Employees,” who were paid with by single weekly check, and Plaintiff Barragan was a “Payroll Employee” who received a payroll check via Paychex as well as a second weekly pay check. Their claims with respect to spread of hours pay and notice violations are identical to the claims 14 80 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 15 of 24 of potential Class members. Thus, for on-the-clock and notice issues, Plaintiffs’ claims are typical of those of the Class. See Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 154- 55 (S.D.N.Y. 2002) (finding no defect of commonality or typicality where the prospective class members did different jobs that calculated overtime pay using different methods, among other factual variations in the plaintiffs’ claims). Similarly, Plaintiffs’ off-the-clock claims are based on time spent on various activities – such as loading and unloading equipment – outside of the “official” 7:00 a.m. to 3:30 p.m. schedule at Newport, or in transit between work sites, for which employees were not compensated, and for which common proof exists. In addition to these off-the-clock claims, which are typical of the class, Plaintiff Barragan also has off-the-clock claims for time he spent transporting Defendants’ employees to and from work and fueling up Defendants’ vehicles and equipment; these are differences of degree, not of kind. Defendants’ asserted defense that all work at Newport, including loading and unloading of equipment, was to take place between 7:00 a.m. and 3:30 p.m. supports a finding that Defendants uniformly applied a common policy to the Class with respect to the hours of work, rendering Plaintiffs’ claims typical. The fact that Plaintiffs Barragan, Orellana, and Yepez were employed by Defendants for long, medium, and short periods of time, respectively, makes them particularly appropriate representatives of a Class whose members’ tenure at the company also varied widely. See In re REA Express, Inc., 10 B.R. 812 (Bankr. S.D.N.Y. 1981) (finding that proposed class representatives satisfied typicality requirement in part because they collectively covered the range of claim sizes pertaining to the proposed class). Plaintiffs’ claims differ from Class members’ only in the precise amount of damages to which they are entitled as a result of Defendants’ common course of conduct, and thus satisfy the 15 81 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 16 of 24 typicality requirement of Rule 23. See Robidoux, 987 F.2d at 936-37 (“When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.”); Morris v. Alle Processing Corp., 2013 U.S. Dist. LEXIS 64534, at *10 (E.D.N.Y. May 6, 2013) (“Differences among class members as to the number of hours worked, the type of work performed, and the amount of pay received ‘concern the amount of damages to which any individual class member might be entitled if and when liability is found, not the amenability of plaintiffs’ claims to the class action form.”) (quoting Flores v. Anjost Corp., 284 F.R.D. 112, 127 (S.D.N.Y. 2012)); Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 127-128 (S.D.N.Y. 2011) (finding typicality satisfied “despite differences in damages” and noting that “[w]here the named plaintiff as well as members of the proposed class all have similar claims arising from the same scheme, the typicality requirement is satisfied regardless of whether different facts underlie each class member’s claim”); Whitehorn v. Wolfgang’s Steakhouse, Inc., 275 F.R.D. 193, 199 (S.D.N.Y. 2011) (“‘[D]ifferences among the Plaintiffs as to the number of hours worked, the precise work they did, and the amount of pay they received concern the amount of damages to which any individual Plaintiff might be entitled,’ but do not defeat typicality for Rule 23 purposes.”). d. Adequacy Plaintiffs Barragan Contreras, Orellana, and Yepez have already demonstrated their willingness and ability to prosecute this action by, inter alia, attending the Court-ordered mediation, producing documents and responding to Defendants’ discovery demands, giving their depositions – two depositions, in fact, for Mr. Orellana – and engaging with counsel surrounding the formulation of settlement demands. They have marshalled the case through discovery, 16 82 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 17 of 24 including discovery sought on behalf of potential opt-in and Class Plaintiffs, and considerable motion practice. There are no known conflicts between the named Plaintiffs and any Class member. Defendants’ arguments about the inadequacy of Plaintiff Barragan Contreras, given his role as a foreman, are unavailing under the circumstances here, where the common policies being challenged were all applied to Plaintiff Barragan Contreras in the same manner they were applied to the other Plaintiffs and the Class as a whole, such that his interests and Class members’ interests are coextensive. See Latino Officers Ass’n v. City of New York, 209 F.R.D. 79, 90 (S.D.N.Y. 2002) (finding that supervisory employees were adequate representatives of non- supervisory class members); Staton v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2003) (affirming finding of adequacy of representation by supervisory employees of non-supervisory employees). Even if the Court elects not to designate Mr. Barragan as a representative, however, the Court should still certify a class with Plaintiffs Orellana and Yepez as representatives. Central States Southeast and Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care, LLC, 504 F.2d 229, 241 (2d Cir. 2017) (“[W]e note that only one of the named Plaintiffs is required to establish standing in order to seek relief on behalf of the entire class.”). Defense counsel attempts to discredit both Mr. Orellana and Mr. Yepez by accusing them of “perjured testimony” (Dkt. 59, at 2), yet provides no support for this accusation – as there is none. He also blames Mr. Yepez for not knowing his or his co-workers’ rates of pay, even though Defendants flouted their legal obligation under the NYLL to provide their employees with that information, and falsely characterizes Mr. Yepez as failing to seek any relief apart from payment for “off-the- clock” hours and compensation at his “basic hourly rate” (Dkt. 59, at 2), even though Mr. Yepez identified on multiple occasions that he is also owed overtime, see Excerpt of Transcript of Deposition of Jorge Yepez, dated Apr. 23, 2018 (“Yepez Tr.”) (Ex. S), at 9:12-14 (stating that 17 83 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 18 of 24 “the payments were for 40 hours, which are the regular, regular schedule, so they should have paid us 1.5 for extra hours that should have been paid.”); id. at 26:16-19 (“So if I worked Monday through Saturday from 7 to 3:30, that will be 48 hours. Regularly should have been only 40 hours, so what happened to the other 8 hours?”). Moreover, “a plaintiff need not have expert knowledge of all aspects of the case to qualify as a class representative,” In re Vivendi Universal, S.A. Sec. Litig., 242 F.R.D. 76, 88 (S.D.N.Y. 2007) (citations omitted), but rather must be “aware of the basic facts underlying the lawsuit and . . . not . . . likely to abdicate his obligations to fellow class members,” Wagner v. Barrick Gold Corp., 251 F.R.D. 112, 118 (S.D.N.Y. 2008) (citations omitted). For the legal bases of their claims, Plaintiffs “are entitled to rely on the expertise of their counsel.” Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 372 (S.D.N.Y. 2007). e. Common Questions of Law and Fact Predominate Over Individual Issues, and a Class Action is Superior to Other Methods of Adjudicating the Case. According to Fed. R. Civ. P. 23(b)(3), a class action may be maintained if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and . . . is superior to other available methods for fairly and efficiently adjudicating the controversy.” The predominance requirement is a more demanding version of the Rule 23(a) commonality requirement. Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 372 (S.D.N.Y. 2007) (citing Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 623- 24 (1997)). In making these findings, courts should consider “(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; 18 84 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 19 of 24 and (D) the likely difficulties in managing a class action.” Id. There are currently seven named and opt-in Plaintiffs in the case, with almost complete factual overlap between their claims and the claims of potential class members. “[P]redominance is satisfied where . . . the ‘central issue’ is whether defendants had a ‘uniform policy or practice’ of denying wages for all hours worked, overtime wages, and spread of hours compensation.” Morris, 2013 U.S. Dist. LEXIS 64534, at *12 (quoting Garcia, 281 F.R.D. at 108). This is precisely the situation in the instant case. The same questions of law and fact will need to be decided, whether 80 individuals are poised to benefit or “only” seven, such that considerations of consistency and judicial economy weigh heavily in favor of class certification. Indeed, one would think it would be Defendants’ preference as well to litigate these issues once and for all, rather than to have the specter of future lawsuits haunting them for years to come.7 The issues that are subject only to individualized proof – such as the particulars of the housing accommodation provided to Plaintiff Barragan by Defendants – are minor and tangential as compared to the bulk of the issues, which are applicable to the class as a whole and subject to generalized proof.8 In similar circumstances, courts typically conclude that “[a]lthough 7 Defendants seem to be operating under the mistaken assumption that if Plaintiff Barragan is not selected as a Class representative, or is excluded from the Class for some reason, his claims will be dismissed altogether from this action and he would need to initiate a new, separate lawsuit. Plaintiffs are hard-pressed to imagine how or why that would occur, since Plaintiff Barragan has federal claims as well as state claims arising out of a common nucleus of operative fact. See, e.g., Colon v. Major Perry St. Corp., 2013 U.S. Dist. LEXIS 93021, at *22 (S.D.N.Y. July 2, 2013) (certifying a FLSA collective action for building supers and finding that the named plaintiff could also, within the same action, individually assert his claims arising from his additional work as a handyman). 8 Even the issue of whether the value of housing accommodation provided by Defendants should be included in the calculation of the regular rate is likely not isolated to Plaintiff Barragan, as the contact information for potential opt-in plaintiffs supplied by Defendants indicates. See Ex. A (address for Class member Rafael Perez listed as Defendants’ Larchmont address). 19 85 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 20 of 24 determinations as to damages will require individualized inquiries here, such inquiries will not bar certification because common liability issues otherwise predominate.” Morris, 2013 U.S. Dist. LEXIS 64534, at *13; see also Moreira v. Sherwood Landscaping Inc., 2015 U.S. Dist. LEXIS 43919 (E.D.N.Y. Mar. 31, 2015) (granting motion for class certification in landscaping case involving overtime claims). The Class is composed primarily of low-wage immigrant workers, some of whom worked for Defendants for brief durations of time and speak little or no English. See Birlescu 5/1/18 Tr., at 59:18-21; Yepez Tr., at 7:3-4; Orellana Tr., at 8:23-9:6; Barragan Tr., at 8:22-23. For these individuals, the financial and logistical challenges inherent in vindicating legal rights through litigation would be exacerbated, and Defendants have already shown themselves willing and able to devote considerable financial resources to their defense. Courts have recognized that factors such as these render class certification particularly appropriate. See Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) (noting that potential class members were “economically disadvantaged, making individual suits difficult to pursue”); McLaughlin v. Liberty Mut. Ins. Co., 224 F.R.D. 304, 309 (D. Mass. 2004) (noting the lack of financial means and incentive to pursue claims on an individual basis); Scott v. Aetna Servs., 210 F.R.D. 261, 267 (D. Conn. 2002); Yapuna v. Global Horizons Manpower, Inc., 254 F.R.D. 407, 416 (E.D. Wa. 2008) (“It is undisputed that without this class action, many, if not most, . . . class members would not be in a position to bring their individual claims. The amount that could be recovered by a particular employee would be too small to justify individual actions by individual employees. A class-wide litigation of the common questions will reduce litigation costs and promote greater efficiency.”) Defendants have attempted to make much of the fact that there are currently “only” seven Plaintiffs, but given the characteristics of this case and the overt obstruction of the opt-in process 20 86 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 21 of 24 by Defendants, the low opt-in rate weighs in favor of certifying a Rule 23 class. See McLaughlin, 224 F.R.D. at 309 (noting that “the fact that most plaintiffs have not taken even the simple step of opting in to the FLSA litigation [in a related case] confirms that joinder would not be a practicable means for pursuing their claims”); Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 346 (S.D.N.Y. 2004) (in finding class action superior, noting that proposed class members “seem to possess relatively small claims ‘unworthy of individual adjudication due to the amount at issue’” and that they “may fear reprisal and lack familiarity with the legal system”); Scott, 210 F.R.D. at 268 (certifying Rule 23 in case where “only” 22 out of 281 class members opted in to FLSA collective). An opt-out class would make it less fraught for individuals still employed by Defendants, lured by Defendants’ promises of employment, uncertain about the immigration consequences of affirmatively identifying themselves to the court system, or simply daunted by the paperwork required to opt in, to recover owed wages. See McLaughin, 224 F.R.D. at 309 (“Many courts have suggested that the employer-employee relationship is of such a nature that an employee ‘may feel inhibited to sue making joinder unlikely.’”). Importantly, it would also ensure that Defendants do not benefit from – and are not perversely incentivized to continue – violating their legal obligations to maintain basic personnel records, flouting Court Orders directing them to effectuate notice and produce documents, and attempting to coerce individuals not to pursue their legal rights. Under the circumstances, the relatively low FLSA opt-in rate in this case signals the heightened importance of certifying a Rule 23 class. Certifying an opt-out class – with the potential of a cy pres award on behalf of Class members who cannot ultimately be located – would ensure that Defendants still face full liability for their labor law violations, despite their best efforts to evade it. See McGreevy v. Life Alert Emergency Response, Inc., 258 F. Supp. 3d 380 (S.D.N.Y. 2017); Sewell v. Bovis Lend Lease, Inc., 2013 U.S. Dist. LEXIS 47526 21 87 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 22 of 24 (S.D.N.Y. Mar. 29, 2013); Plotz v. NYAT Maint. Corp., 2006 U.S. Dist. LEXIS 4799 (S.D.N.Y. Feb. 6, 2006). Plaintiffs are not aware of any other litigation by or against members of the Class, or of class members’ interests in individually controlling the prosecution of separate actions. As this Court will need to adjudicate the same issues of fact and law, whether the case is limited to the existing seven Plaintiffs or expanded to include all class members, it is highly desirable to concentrate the litigation here, both to avoid unnecessary duplication of judicial resources and to fulfill the remedial nature of the labor laws by ensuring the broadest possible recovery to affected workers. Nothing about the proposed Class would make it particularly unwieldy to manage in one litigation; to the contrary, very little would change about the action in its current form, except the total amount of Defendants’ liability and the number of individuals who could potentially recover. IV. PLAINTIFFS’ COUNSEL SHOULD BE APPOINTED CLASS COUNSEL. In appointing class counsel, the Court must consider (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1)(A), and may consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class,” Fed. R. Civ. P. 23(g)(1)(B). Plaintiffs request that their counsel, David Tykulsker & Associates and Worker Justice Center of New York, be appointed co-class counsel. Both firms and the individual attorneys of record in the case have experience handling claims of a similar nature to those asserted in this case, are knowledgeable about the applicable law, have handled this litigation since its inception, and have 22 88 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 23 of 24 demonstrated their willingness to devote resources to representing the class. See Declaration of David Tykulsker, dated June 28, 2018 (Ex. T); Declaration of Robert McCreanor, dated June 28, 2018 (Ex. U). Plaintiffs are unaware of any reason not to appoint their attorneys as class counsel. V. NOTICE SHOULD BE SENT TO MEMBERS OF THE CLASS. For a class certified under Rule 23(b)(3), the Court “must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). The notice must state (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). Id. Plaintiffs request that, upon the Court’s determination of this motion, Plaintiffs be permitted to submit for the Court’s review and approval a proposed notice in accordance with the above stated requirements and in conformity with such notices typically approved by the Courts in this jurisdiction, and that Defendants be ordered to provide complete contact information for all Class members to effectuate the individual notice required by Rule 23. VI. CONCLUSION This case is exactly the kind of case for which Rule 23 was designed, where the Defendants have engaged in company-wide pay practices that violate Plaintiffs’ and Class members’ rights, yet the value of most Class members’ claims is not high enough to warrant bringing litigation on an individual basis. Certifying an opt-out Class, the requirements of which 23 89 Case 7:17-cv-06453-CS Document 70 Filed 06/28/18 Page 24 of 24 are handily satisfied, would ensure maximum recovery for the low-wage workers affected by Defendants’ employment practices, for whom recovery of an amount too low to justify litigation would still make a financial impact. Respectfully submitted, WORKER JUSTICE CENTER OF NY /s/ Robert McCreanor Robert McCreanor Maureen Hussain 9 Main Street Kingston, NY 12401 845-331-6615 ext. 1007 [email protected] [email protected] DAVID TYKULSKER & ASSOCIATES David Tykulsker 161 Walnut St. Montclair, NJ 07042 (973) 509-9292 [email protected] ATTORNEYS FOR PLAINTIFFS Dated: June 28, 2018 24 90 UCLA UCLA Public Law & Legal Theory Series Title A Critical Reflection on Law and Organizing Permalink https://escholarship.org/uc/item/473524bg Authors Cummings, Scott Eagly, Ingrid Publication Date 2001-02-02 Peer reviewed eScholarship.org Powered by the California Digital Library 91 University of California 92 A CRITICAL REFLECTION ON LAW AND ORGANIZING * ** Scott L. Cummings and Ingrid V. Eagly Over the last decade, poverty law scholars and practitioners have engaged in a lively debate about the relationship between law and social change. What has emerged from this dialogue is a new community-based approach to progressive law- yering that combines legal advocacy and grassroots action in a form of practice that this Article terms “law and organizing.” The law and organizing model privi- leges movement politics over law reform efforts and suggests that lawyers should facilitate community mobilization rather than practice in the conventional mode. In the academy, this model has attracted heightened attention from legal scholars dissatisfied with the potential of litigation efforts to produce meaningful social change. On the ground, lawyers have deployed organizing tactics to achieve sig- nificant gains for marginalized communities. Yet, although it holds out rich pos- sibilities, the law and organizing paradigm is still largely untested as a practical strategy and has not been subjected to close academic scrutiny. This Article initi- ates a critical reflection on law and organizing by providing a historical account of its evolution, examining how poverty lawyers are incorporating organizing into their day-to-day practice, and analyzing some of the structural, practical, and ethi- cal issues posed by this new approach. INTRODUCTION...... 444 I. THE EVOLUTION OF THE LAW AND ORGANIZING MOVEMENT...... 450 A. The Progressive Critique of Law...... 451 B. The Postmodern Critique of Lawyers...... 456 C. The Emergence of Community Organizing...... 460 D. The Fusion of Law and Organizing...... 465 II. LAW AND ORGANIZING AS PROGRESSIVE LEGAL PRACTICE ...... 469 A. Workers’ Rights ...... 470 B. Environmental Justice ...... 473 C. Community Development...... 476 III. THE LIMITS OF LAW AND ORGANIZING...... 479 A. The Myth of Organizing...... 480 * Staff Attorney, Community Development Project, Public Counsel Law Center, Los Angeles, California. J.D., Harvard Law School, 1996. ** Coordinating Attorney, Immigrant Domestic Violence Project, Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA), Los Angeles, California. J.D., Harvard Law School, 1995. The authors would like to thank Richard Abel, Sameer Ashar, Gary Blasi, Catherine Elkes, Julia Figueira-McDonough, Derek Jones, Larry Salomon, Dominique Snyder, and Jonathan Zasloff, as well as the Open Society Institute’s Center on Crime, Communities & Culture and the Skadden Fellowship Foundation. 443 48:3 Cummings & Eagly 93 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 444 48 UCLA LAW REVIEW 443 (2001) 1. Unpacking Organizing ...... 480 2. Limitations of Local Organizing as a Social Change Strategy...... 484 3. Hierarchy and Identity Conflicts in Organizing Practice...... 488 B. The Tensions Between “Law” and “Organizing”...... 490 1. Law Versus Organizing: The Perils of Privileging an Organizing-Centered Approach...... 490 2. Lawyers as Organizers: The Dilemma of Role Duality ...... 493 3. Law as a Vehicle for Organizing: The Problem of Client Coercion ...... 495 C. The Practical Difficulties of Law and Organizing...... 498 1. Obstacles to Client Organizing...... 498 2. Constraints on Law and Organizing Practitioners ...... 500 D. The Ethics of Law and Organizing ...... 502 1. Establishing an Attorney-Client Relationship ...... 503 2. Confidentiality...... 506 3. Conflict of Interest and Scope of Representation...... 510 4. Unauthorized Practice of Law...... 513 CONCLUSION: TOWARD A NEW SOCIAL CHANGE PRAGMATISM ...... 516 INTRODUCTION What role should lawyers play in broader movements for social change? Can progressive lawyers use the law to restructure deeply ingrained political and economic relationships and reorient power in favor of subordinated groups? Can the law empower marginalized communities by offering alter- native normative visions, raising awareness of injustice, or providing oppor- tunities for grassroots mobilization? Over the years, legal practitioners and theorists have offered multiple, often conflicting, answers to these questions, always struggling to define the connection between law and social justice. In the 1950s and 1960s, lawyers used a litigation-centered approach to challenge legalized segregation through class action lawsuits brought against the backdrop of community mobiliza- tion and media images of racist brutality.1 The 1970s saw the advent of com- plex public law litigation in which lawyers used ongoing judicial intervention 1. See, e.g., RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA’S STRUGGLE FOR EQUALITY (1975); ALDON D. MORRIS, THE ORIGINS OF THE CIVIL RIGHTS MOVEMENT: BLACK COMMUNITIES ORGANIZING FOR CHANGE (1984); CLEMENT E. VOSE, CAUCASIANS ONLY: THE SUPREME COURT, THE NAACP, AND THE RESTRICTIVE COVENANT CASES (1959). 48:3 Cummings & Eagly 94 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 445 to bring about reform in public institutions such as prisons and mental hos- pitals.2 Both of these strategies privileged the law generally, and litigation specifically, as a mechanism for social change.3 However, the 1970s also witnessed a nascent critique of litigation- focused social change strategies, as scholars and practitioners began to offer alternative models for progressive legal work. In his influential article, Stephen Wexler argued against the idea that rights enforcement by legal aid lawyers would significantly improve the conditions of the poor. Instead, he contended, lawyers should assist poor persons to organize on their own behalf.4 Similarly, Gary Bellow posited a model of legal aid practice that emphasized political action and viewed litigation as ancillary to a broader social change strategy.5 The 1980s and 1990s were a period of transition for poverty lawyers. While some scholars continued to argue that practitioners should emphasize community mobilization,6 a changing political, economic, and intellectual 2. See Abram Chayes, Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4 (1982); Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976); Donald L. Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institu- tions, 1983 DUKE L.J. 1265. 3. The establishment of the federally funded Legal Services Corporation (LSC) in the 1970s reinforced the importance of legal strategies to redress poverty. See generally EARL JOHNSON, JR., JUSTICE AND REFORM: THE FORMATIVE YEARS OF THE OEO LEGAL SERVICES PROGRAM (1974). 4. See Stephen Wexler, Practicing Law for Poor People, 79 YALE L.J. 1049, 1053 (1970) (“If all the lawyers in the country worked full time, they could not deal with even the articulated legal problems of the poor. . . . In this setting the object of practicing poverty law must be to organize poor people, rather than to solve their legal problems.”). One of the original purposes of legal services programs instituted under the Office of Economic Opportunity (OEO) in 1964 was the promotion of organizing among groups of poor people. See Roger C. Cramton, Crisis in Legal Services for the Poor, 26 VILL. L. REV. 521, 524–25 (1980–1981); Roger C. Cramton, Delivery of Legal Services to Ordinary Americans, 44 CASE W. RES. L. REV. 531, 587 (1994) [hereinafter, Cramton, Delivery of Legal Services]; Louise G. Trubek, Reinvigorating Poverty Law Practice: Sites, Skills and Collaborations, 25 FORDHAM URB. L.J. 801, 806 (1998) (noting that “[o]rganizing clients and educating people on rights has been advocated since the 1960s”). For descriptions of the evolution of early OEO legal services programs, see Ingrid V. Eagly, Community Education: Creating a New Vision of Legal Services Practice, 4 CLINICAL L. REV. 433, 436–40 (1998); Marc Feldman, Political Lessons: Legal Services for the Poor, 83 GEO. L.J. 1529, 1558–82 (1995); and Alan W. Houseman, Political Lessons: Legal Services for the Poor—A Commentary, 83 GEO. L.J. 1669, 1669–83 (1995). 5. See Gary Bellow, Turning Solutions into Problems: The Legal Aid Experience, 34 NLADA BRIEFCASE 106, 121–22 (1977) (arguing that legal aid lawyers should adopt a “political perspec- tive, directed toward specific changes in particular institutions that affect the poor” and use the method of “focused case” pressure in combination with community organizing and legislative advo- cacy to promote systemic change). 6. See Richard Abel, Lawyers and the Power to Change, 7 LAW & POL’Y 5, 8–9 (1985) (claiming that the “law must be subordinated to other modes of activism” and highlighting exam- ples of lawyers working with organizers as “achievements that could inspire and guide future efforts”); Steve Bachmann, Lawyers, Law, and Social Change, 13 N.Y.U. REV. L. & SOC. CHANGE 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 95 446 48 UCLA LAW REVIEW 443 (2001) landscape began to fundamentally reshape the debate on social change practice. The Reagan revolution of the 1980s ushered in an era of hostility to government-sponsored antipoverty programs, cutbacks in legal services, and retrenchment on civil rights issues,7 forcing advocates to confront new constraints on their ability to press for social reform. The 1990s, in turn, brought welfare reform,8 additional attacks on legal services,9 and unprece- dented wealth accumulation,10 leading many poverty lawyers to move away from litigation strategies and instead to focus on community-based efforts to redress economic inequality.11 These material changes coincided with a marked reconfiguration of the role of progressive lawyers in the academic literature. Poverty law scholars, concerned about the potential for lawyer domination within the attorney-client relationship, expressed their dissat- isfaction with traditional litigation-centered advocacy strategies and argued that lawyers should seek to empower marginalized clients by privileging cli- ent narratives and promoting client political agency.12 1, 4 (1984–1985) (stating that “[o]rganized masses of people, not lawyers, play the critical roles [in social change], and the significant victories (or losses) occur outside the sphere of law”). 7. See Douglas J. Besharov, Introduction to LEGAL SERVICES FOR THE POOR: TIME FOR REFORM xxiii (Douglas J. Besharov ed., 1990) (stating that the LSC budget was cut by almost one- third during the Reagan Administration); Ruth Margaret Buchanan, Context, Continuity, and Differ- ence in Poverty Law Scholarship, 48 U. MIAMI L. REV. 999, 1028–31 (1994) (describing the impact of Reagan conservatism on welfare, legal services, and civil rights). 8. See Robert Pear, Clinton to Sign Welfare Bill that Ends U.S. Aid Guarantee and Gives States Broad Power, N.Y. TIMES, Aug. 1, 1996, at A1 (describing the new welfare reform plan that effectively eliminated the guarantee of cash assistance to poor children, gave states authority to run their own welfare to work programs, established a lifetime limit of five years for welfare payments to any family, and instituted strict work requirements). 9. In 1995, Congress tried again to abolish the LSC, and succeeded in cutting funding by one-third and increasing the restrictions on the type of work that can be preformed by LSC attorneys. See Legal Services Survives, Barely, N.Y. TIMES, May 6, 1996, at A14. Another major source of funding for legal services programs, Interest on Lawyers Trust Accounts, has been threatened by a U.S. Supreme Court decision prompted by a suit brought by a conservative Texas- based organization, the Washington Legal Foundation. See Linda Greenhouse, $100 Million in Legal Services Funding Is Placed in Doubt by a Supreme Court Ruling, N.Y. TIMES, June 16, 1998, at A18. 10. See Richard W. Stevenson, In a Time of Plenty, the Poor Are Still Poor, N.Y. TIMES, Jan. 23, 2000, § 4 (Week in Review), at 3 (noting that, despite the fact that the United States is cur- rently experiencing the longest economic expansion on record, the income growth of the wealthiest Americans has been much greater than that of the poor, and the poverty rate has not fallen below the 12 percent barrier, as it has in previous periods of economic expansion). 11. See, e.g., Mario Salgado, Building a Community Economic Development Unit, 28 CLEAR- INGHOUSE REV. 981, 982 (1995) (indicating that 20 percent of the more than 300 legal services programs across the country had devoted significant resources to community economic develop- ment); Ann Southworth, Business Planning for the Destitute? Lawyers as Facilitators in Civil Rights and Poverty Practice, 1996 WIS. L. REV. 1121, 1147 (describing the results of a survey of civil rights and poverty lawyers in Chicago that found a significant shift in lawyers’ roles away from rights enforce- ment and toward planning activities that facilitated community development). 12. See infra Part I.A–B. 48:3 Cummings & Eagly 96 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 447 It is against this backdrop that scholars and practitioners—recognizing that innovative advocacy is required to address the needs of the poor in this prosperous postwelfare, post–civil rights era—have begun to revisit the ques- tion of what role the law and lawyers should play in struggles for social justice. What has emerged is a politically revitalized approach to progres- sive legal practice: the “law and organizing” movement.13 Unique to the law and organizing paradigm is its insistence that law- yers can advance social justice claims and shift power to low-income con- stituencies through a particular type of legal advocacy—one that is intimately joined with, and ultimately subordinate to, grassroots organizing campaigns. This model both builds upon and departs from previous discussions of law and social movements by presenting sophisticated theoretical analyses and concrete practical examples of how legal advocacy and community organiz- ing can be integrated as a credible social change strategy. In general, this new framework offers a vision of social change directed by community- based organizations in which lawyers are ancillary to the definition and implementation of a transformative agenda. Accounts of law and organiz- ing suggest that progressive lawyers should de-emphasize conventional legal practice and instead focus their efforts on facilitating community mobi- lization.14 Specifically, lawyers seeking to improve the conditions of poor clients are encouraged to supplement conventional litigation strategies with community education programs,15 link the provision of legal services with 13. Law and organizing includes varied practical strategies and incorporates different views about the relative importance of legal work. See generally GERALD P. LÓPEZ, REBELLIOUS LAW- YERING: ONE CHICANO’S VISION OF PROGRESSIVE LAW PRACTICE (1992); Jennifer Gordon, We Make the Road by Walking: Immigrant Workers, the Workplace Project, and the Struggle for Social Change, 30 HARV. C.R.-C.L. L. REV. 407 (1995); Lucie E. White, To Learn and Teach: Lessons from Driefontein on Lawyering and Power, 1988 WIS. L. REV. 699. 14. Some have suggested that, in its most radical form, the law and organizing model equates the role of lawyer to that of organizer and largely rejects the provision of legal services. See Sophie Bryan, Personally Professional: A Law Student in Search of an Advocacy Model, 35 HARV. C.R.-C.L. L. REV. 277 (2000). [The law and organizing] model elevates organizing above legal advocacy, largely rejects the provision of legal services, and regards attorneys as limited skill providers. Its underlying attitude toward attorneys is negative and is grounded in the premise that the permitted contribution of attorneys to an organizing effort should be inversely propor- tional to their traditional social status. Id. at 279; see Buchanan, supra note 7, at 1044 (stating that “[a]t its most extreme, [law and organizing] equates the lawyers’ role to that of an organizer, while minimizing or eliminating the need for a reliance on the lawyer’s specialized legal knowledge” and that “[o]ne must consider the effects of this radical abandonment of the lawyer’s traditional role on the lawyer’s legitimacy and credibility, and consequently her ability to gain access to communities of disempowered clients”). 15. See Eagly, supra note 4, at 451–54, 472–79 (arguing that lawyers should supplement traditional legal strategies with community education). 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 97 448 48 UCLA LAW REVIEW 443 (2001) membership in organizing groups,16 and become directly involved in organ- izing campaigns.17 In recent years, the concept of law and organizing has attracted signifi- cant attention among academics, clinicians, practitioners, students, and phil- anthropic foundations. In the legal academy, a diverse range of scholarship has been associated with the emerging law and organizing model.18 Classes are being taught at major law schools on law and organizing19 and confer- ences are being held to discuss the merits of law and organizing strategies.20 16. See Gordon, supra note 13, at 443 (describing a program in which participation in organizing activities is required in exchange for legal services). 17. See, e.g., William P. Quigley, Reflections of Community Organizers: Lawyering for Empowerment of Community Organizations, 21 OHIO N.U. L. REV. 455 (1995) (arguing that com- munity organizing must be a critical component of poverty law advocacy). 18. See, e.g., JOEL F. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM: A THEORY OF LAW REFORM AND SOCIAL CHANGE (1978); LÓPEZ, supra note 13; MICHAEL W. MCCANN, RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBIL- IZATION (1984); Abel, supra note 6; Gary L. Blasi, Litigation on Behalf of the Homeless: Systematic Approaches, 31 WASH. U. J. URB. & CONTEMP. L. 137 (1987); Raymond H. Brescia et al., Who’s in Charge, Anyway? A Proposal for Community-Based Legal Services, 25 FORDHAM URB. L.J. 831 (1998); Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for Environ- mental Poverty Law, 19 ECOLOGY L.Q. 619 (1992); Michael J. Fox, Some Rules for Community Lawyers, 14 CLEARINGHOUSE REV. 1 (1980); Gordon, supra note 13; Muhammad I. Kenyatta, Community Organizing, Client Involvement, and Poverty Law, MONTHLY REV., Oct. 1983, at 18; Karl E. Klare, Toward New Strategies for Low-Wage Workers, 4 B.U. PUB. INT. L.J. 245 (1995); Richard Klawiter, ¡La Tierra Es Nuestra! The Campesino Struggle in El Salvador and a Vision of Community- Based Lawyering, 42 STAN. L. REV. 1625 (1990); Quigley, supra note 17; Ann Southworth, Collec- tive Representation for the Disadvantaged: Variations in Problems of Accountability, 67 FORDHAM L. REV. 2449 (1999); Julie A. Su, Making the Invisible Visible: The Garment Industry’s Dirty Laun- dry, 1 J. GENDER, RACE & JUST. 405 (1998); Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. REV. L. & SOC. CHANGE 535 (1987–1988); White, supra note 13; see also Videotape: So Goes a Nation: Lawyers and Communities (New York Lawyers for the Public Interest & Stein Center for Ethics and Public Interest Law at Fordham University School of Law 2000) (on file with the Fordham Urban Law Journal). 19. For example, Professor Lucie White has a student-faculty reading group on law and organizing at Harvard Law School; Professor Gerald López is teaching Community Outreach, Education, and Organizing at New York University Law School; and the UCLA School of Law’s Program in Public Interest Law and Policy has a seminar for second-year students with an organizing module. 20. On February 25, 2000, a group of lawyers, activists, academics, and students gathered at the UCLA School of Law for “A Conference on Law and Organizing,” sponsored by the Program in Public Interest Law and Policy. Participants in the Conference included: Frances Lee Ansley, Professor of Law, University of Tennessee College of Law; Greg Asbed, Coalition of Immokalee Workers; Luke Cole, General Counsel, The Center on Race, Poverty and the Environment; Jennifer Gordon, Lecturer, Yale Law School; Jaribu Hill, Program Director, Mississippi Center for Workers’ Human Rights; Roy Hong, Executive Director, Korean Immigrant Workers Advocates (KIWA); Clara Luz Navarro, Project Director, Mujeres Unidas y Activas; Lucie White, Professor of Law, Harvard Law School; and Steve Williams, Executive Director, People Organized to Win Employment Rights (POWER). Panelists discussed the conceptual bases and practical examples of the law and organizing model. In November 1995, Harvard Law School hosted a conference entitled “Political Lawyering: Conversations on Progressive Social Change” in which panelists 48:3 Cummings & Eagly 98 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 449 The idea that lawyers should work with grassroots organizing campaigns rather than engage in traditional forms of poverty lawyering is also influenc- ing the direction of poverty law practice.21 The law and organizing model has been successfully implemented by a growing number of nonprofit organ- izations around the country and has garnered the attention of the founda- tion world, which is more regularly supporting programs that combine legal advocacy with community organizing.22 As further measure of the appeal of law and organizing, increasing numbers of young lawyers are engaging in organizing activities23 and attending training on organizing techniques.24 discussed a variety of approaches to community lawyering, including the law and organizing model. See Symposium, Political Lawyering: Conversations on Progressive Social Change, 31 HARV. C.R.- C.L. L. REV. 285 (1996). 21. See, e.g., Peter Edelman, Responding to the Wake-Up Call: A New Agenda for Poverty Lawyers, 24 N.Y.U. REV. L. & SOC. CHANGE 547, 558 (1998) (encouraging attorneys to “make new alliances and build new relationships with organizers”); Poverty Law and Community Legal Clinics: A View from Parkdale Community Legal Services, 35 OSGOODE HALL L.J. 595, 599 (1997) (arguing that community organizing is essential to the effective functioning of community-based legal services clinics); Hina Shah, Symposium on Labor and Immigration, 6 ASIAN L.J. 217, 217 (1999) (emphasizing the importance of lawyers acting as organizers in order to empower immi- grant workers). 22. For example, foundations sponsoring fellowships for young public interest lawyers, including the Skadden Fellowship Foundation, the Open Society Institute, the Echoing Green Foundation, and the National Association of Public Interest Law (NAPIL), have supported numer- ous projects involving law and organizing work. The Mott Foundation has funded the Welfare Law Center in New York to provide legal backup for the organizing efforts of grassroots groups, including POWER and the Association of Community Organizations for Reform Now (ACORN). See Welfare Law Ctr., New Workfare Organizing Project Opens: Mott Foundation Grant to Welfare Law Center Supports Five Groups, at http://www.welfarelaw.org/mottgrt.html (last visited Jan. 14, 2001). The MacArthur Foundation has awarded a “genius grant” to attorney Jennifer Gordon for her groundbreaking law and organizing work. See The MacArthur Found., Complete List of MacArthur Fellows, available at http://www.macfdn.org/programs/fel/complete_list_2.htm (last visited Jan. 14, 2001). The Liberty Hill Foundation in Los Angeles has funded a number of organizing projects that have involved collaborations with attorneys. See Liberty Hill Found., at http://www.libertyhill.org (last visited Jan. 15, 2001). 23. For example, 60 percent of 1998 NAPIL Equal Justice Fellows indicated in a survey that they had either “extensive” or “significant” experience with community education or organ- izing work. See Ingrid V. Eagly, Training Materials for 1999 NAPIL Conference (on file with authors). Less than 10 percent had “limited” or “no experience” in these areas. See id. This increase in law and organizing is occurring despite restrictions on grassroots tactics, including lobbying, public demonstrations, advocacy training, and certain organizing activities, imposed upon lawyers employed by LSC-funded agencies. See 45 C.F.R. § 1612.1 (2000). Innovative LSC attorneys have been able to operate in ways that complement organizing efforts through permissible activities such as providing “legal advice or assistance to eligible clients who desire to plan, estab- lish or operate organizations.” Id. § 1612.9. 24. For example, at NAPIL’s Annual National Leadership Development Training, public interest Fellows receive training in “areas that are important to the development of a future public interest lawyer, such as fundraising, media relations, community organizing and coalition-building.” NAPIL, National Leadership Development Training, available at http://www.napil.org/HOME.html (last visited Sept. 24, 2000). In the 1999 training, three sessions were held on law and organizing, 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 99 450 48 UCLA LAW REVIEW 443 (2001) Law and organizing holds out rich possibilities for social change and sets forth a new role for lawyers concerned with challenging the underlying structural causes of poverty and powerlessness. In practice, the increased focus on organizing work has generated concrete benefits for poor communities. Law and organizing advocates have played significant roles in curbing abu- sive employment practices, securing the passage of strong workers’ rights laws, enacting living wage and first-source hiring ordinances, and prevent- ing hazardous waste dumps from being located in poor communities. Yet, law and organizing is in need of fuller theoretical analysis and practice-based examination. Precisely because of the increased attention it has received, it is incumbent upon scholars and practitioners to think through the implications of law and organizing and map the challenges that lawyers practicing in organizing contexts face. Perhaps most significantly, a critical assessment of the law and organizing paradigm is necessary to initiate a deeper discussion of the parameters of effective social change lawyering. Part I of this Article presents a historical overview of the law and organizing movement. Next, Part II explores how law and organizing has been effectively applied in the areas of workers’ rights, environmental jus- tice, and community development. Part III examines the structural ten- sions of the law and organizing approach, discusses practical barriers to its implementation, and analyzes the ethical issues faced by law and organizing advocates. The Conclusion calls for further evaluation of the law and organ- izing model in order to strengthen its practical application and generate a more fluid conception of social change lawyering—one that allows poverty lawyers to draw on a variety of different advocacy techniques, including organizing, to advance social justice. I. THE EVOLUTION OF THE LAW AND ORGANIZING MOVEMENT Law and organizing has emerged as an important movement within progressive legal circles. In order to understand how it has gained such prominence and evaluate its potential as a social change strategy, this part provides an overview of its historical evolution. In particular, this part traces the law and organizing movement to three related developments: (1) the progressive critique of the law generally, and litigation specifically, as a social change vehicle; (2) the postmodern critique of lawyers as social change agents; and (3) the heightened interest in models of community-based organ- izing campaigns. and trainers included both community organizers and lawyers heavily engaged in organizing work. See 1999 Leadership Development Training Agenda (on file with authors). 48:3 Cummings & Eagly 100 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 451 A. The Progressive Critique of Law One of the defining features of post–civil rights progressive legal schol- arship has been its skepticism toward law as a vehicle for social change. This disaffection with the law has been fueled, in part, by the critical legal studies (CLS) challenge to mainstream jurisprudence.25 Beginning in the late 1970s, CLS adherents leveled a deconstructionist critique26 of legal liberal- ism,27 arguing that the dominant legal regime perpetuated inequities in the 25. For a general discussion of the critical legal studies (CLS) movement, see ANDREW ALTMAN, CRITICAL LEGAL STUDIES: A LIBERAL CRITIQUE (1990); CRITICAL LEGAL STUDIES (James Boyle ed., 1992); CRITICAL LEGAL STUDIES (Allan C. Hutchinson ed., 1989); MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES (1987); THE POLITICS OF LAW: A PRO- GRESSIVE CRITIQUE (David Kairys ed., 1982) [hereinafter THE POLITICS OF LAW]; ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT (1986); Allan C. Hutchinson & Patrick J. Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 STAN. L. REV. 199 (1984); Mark V. Tushnet, Critical Legal Studies: A Political History, 100 YALE L.J. 1515 (1991); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781 (1983). 26. Deconstruction is a method of reading texts, initially employed by the French post- structuralist theorist, Jacques Derrida, see generally JACQUES DERRIDA, OF GRAMMATOLOGY (Gayatri Chakravorty Spivak trans., Johns Hopkins Univ. Press 1976) (1967), that was frequently used by CLS scholars as a way of identifying a hierarchy of values in established legal doctrine and “inverting the hierarchy” in order to liberate previously submerged and marginalized viewpoints. See GARY MINDA, POSTMODERN LEGAL MOVEMENTS: LAW AND JURISPRUDENCE AT CEN- TURY’S END 116–18 (1995); see also Peter C. Schanck, Understanding Postmodern Thought and Its Implications for Statutory Interpretation, 65 S. CAL. L. REV. 2505, 2524 (1992) (describing Derrida’s deconstructive method as involving “a rigorous analysis of a given work or body of work for the purpose of demonstrating that the arguments supporting its apparent thesis, a particular proposi- tion within the work, or a meaning usually attributed to it can also support contrary or alternative theses, propositions, or meanings”). Professor J.M. Balkin discussed the technique of deconstruc- tion in the following terms: Described in its simplest form, the deconstructionist project involves the identification of hierarchical oppositions, followed by a temporary reversal of the hierarchy. Thus, to use Derrida’s favorite example, if the history of Western civilization has been marked by a bias in favor of speech over writing we should investigate what it would be like if writing were more important than speech. . . . In so doing, we reverse the privileged posi- tion of speech over writing, and temporarily substitute a new priority. J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743, 746 (1987). 27. See MINDA, supra note 26, at 113 (describing “liberal legalism” as “the label CLS attaches to mainstream law and legal scholarship,” which promotes “the values of autonomy and individual self-interest”); Mark Hager, Against Liberal Ideology: A Guide to Critical Legal Studies, 37 AM. U. L. REV. 1051, 1053 (1988) (reviewing KELMAN, supra note 25 (“‘Liberalism,’ as criticized by CLS, is the all-pervasive public philosophy of democracy within capitalism, a philosophy which postulates both descriptively and normatively a world of self-serving individuals competing for gratification in a fair and well-ordered market, a market by means of which the crucial social choices are made.”); Jonathan Turley, Introduction, The Hitchhiker’s Guide to CLS, Unger, and Deep Thought, 81 NW. U. L. REV. 593, 601–02 (1987) (describing general features of liberalism). Gerald Wetlaufer has stated that “liberalism” is comprised of four beliefs: (1) the social universe is comprised of individu- als who are essentially independent and autonomous of one another and who should be 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 101 452 48 UCLA LAW REVIEW 443 (2001) social order by privileging certain normative categories over others.28 The project of CLS was to demystify the power hierarchies embedded in liberal individual rights discourse by showing the indeterminacy of legal rules29 and the inherently political choices underlying the current legal order.30 CLS evolved as an oppositional critique of traditional legal thought that employed a method of analysis known as “trashing”31 to expose the law as “politics by other means.”32 Although many within the CLS movement viewed their work as a self-conscious effort to strengthen the connection between law and social justice,33 the force of the CLS critique encouraged later scholars and prac- understood to pre-exist society and the state; (2) those individuals are by their nature, and ought to be, free and, indeed, their liberty and autonomy may be the first principles from which we ought to work; (3) among the most basic rights, freedoms, and liberties that those individuals may hold is the right of property and, within a particular realm, the right to choose freely; and (4) the proper role of the state is to protect the rights of these indi- viduals and to provide a mechanism for the mediation of their conflicting desires. Gerald B. Wetlaufer, Systems of Belief in Modern American Law: A View from Century’s End, 49 AM. U. L. REV. 1, 9 (1999); see also LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIB- ERALISM (1996); Scott Cummings, Affirmative Action and the Rhetoric of Individual Rights: Reclaiming Liberalism as a “Color-Conscious” Theory, 13 HARV. BLACKLETTER L.J. 183, 187–90 (1997) (describ- ing the tenets of liberalism). 28. See MINDA, supra note 26, at 115 (stating that early 1980s CLS scholarship was devoted to showing “how legal doctrine, as a manifestation of the ideology of liberalism, contributed to an unjust, hierarchical social structure”); Martha Minow, Law Turning Outward, TELOS, Fall 1987, at 79, 84–85 (1987) (stating that CLS sought to show how “particular interest groups, social classes, or entrenched economic institutions benefit from legal decisions despite the indetermi- nacy of the legal doctrines”); see also MORTON J. HOROWITZ, THE TRANSFORMATION OF AMERI- CAN LAW 1780–1860 (1977) (describing how legal doctrine developed to support American corporate interests and industrialization). 29. See MINDA, supra note 26, at 110 (stating that CLS scholars “argued that there are no foundations for grounding otherwise indeterminate law because law and its doctrines were philosophically committed to contradictory norms and policies”); see also UNGER, supra note 25, at 7 (describing the development of constitutional law and constitutional theory as the “discovery of indeterminacy through generalization”); Minow, supra note 28, at 84 (stating that the “critical scholar seeks to demonstrate the indeterminacy of legal doctrine: any given set of legal principles can be used to yield competing or contradictory results”). See generally ROBERTO MANGABEIRA UNGER, KNOWLEDGE AND POLITICS (1975); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976); Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 BUFF. L. REV. 209 (1979). 30. See Hutchinson & Monahan, supra note 25, at 206. 31. “Trashing” has been defined as a process of criticism through which scholars “tak[e] legal argument and doctrine and ‘demystify[ ]’ the language to uncover its hidden meaning.” Turley, supra note 27, at 603; see also Mark G. Kelman, Trashing, 36 STAN. L. REV. 293 (1984). 32. David Kairys, Legal Reasoning, in THE POLITICS OF LAW, supra note 25, at 11, 17; see also John Henry Schlegel, Notes Toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies, 36 STAN. L. REV. 391, 411 (1984). 33. See, e.g., UNGER, supra note 25, at 15–22 (arguing for the use of “deviationist doctrine”—an approach to legal analysis that, in contrast to legal formalism, explicitly takes into account ideological controversies regarding the proper organization of society—as a means to fos- 48:3 Cummings & Eagly 102 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 453 titioners to turn away from legal advocacy and embrace political action as the most effective mechanism to promote social change. That is, as CLS pro- ponents exposed the politicized nature of legal doctrine in order to create space for the discussion of alternative institutional arrangements,34 they simul- taneously laid the foundations for a new orientation toward social change practice that privileged mass mobilization over law reform efforts. The CLS contention that the law merely codified the outcome of struggles over politi- cal power supported the view that real institutional change was possible only through direct action. Law reform strategies, in contrast, were incapa- ble of achieving fundamental social change because the law was circum- scribed within the existing political order and thus could not address the core issue of unequal power. From this perspective, achieving social trans- formation required mass movements, not legal advocacy.35 As a result of the CLS critique, the perceived utility of law as a tool of broader reform was undermined.36 The progressive critique of law led to an increased emphasis on the primacy of mass mobilization and popular protest as the basis for political and economic change.37 In this climate of general skepticism toward the ter a more vibrant and inclusive discussion about the nature of democracy); Peter Gabel & Paul Harris, Building Power and Breaking Images, 11 N.Y.U. REV. L. & SOC. CHANGE 369, 376 (1983) (stating that a critical approach to the law can be used to “expand[] political consciousness through using the legal system to increase people’s sense of personal and political power”). Note, however, that Cornel West has criticized the CLS movement’s disengagement from the political sphere, lamenting “the paucity of sustained reflection by critical legal theorists regarding strategies and tactics for effective social change in the larger culture and society.” See CORNEL WEST, KEEP- ING FAITH 203 (1993). 34. See MINDA, supra note 26, at 113–14. 35. See, e.g., Anthony V. Alfieri, The Antimonies of Poverty Law and a Theory of Dialogic Empowerment, 16 N.Y.U. REV. L. & SOC. CHANGE 659, 671–73 (1987–1988) (drawing upon the work of CLS scholars to debunk the “myth” that the law “can be marshaled into an effective instrument to alleviate poverty”); Bachmann, supra note 6, at 4, 10–11, 21 (stating that lawyers have a limited role to play in implementing social change, which depends primarily on class mobilization and social struggle, and finding that “[t]he lawyer’s role is more the oiler of the social change machine than its motor; the motor of the machine remains masses of people”). 36. Of course, CLS scholars did not abandon law as mechanism of social transformation. See, e.g., ROBERTO MANGABEIRA UNGER, WHAT SHOULD LEGAL ANALYSIS BECOME? 2 (1996) (claiming that a “reoriented practice of legal analysis” can be used to “advance, through cumulative institutional change, the democratic project”). In addition, scholars aligned with the Critical Race Theory movement, who have criticized CLS “trashing,” have maintained that legal rights can play an important role in struggles to achieve racial justice. See, e.g., WEST, supra note 33, at 201; PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 150–52 (1991); Kimberlé Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimi- nation Law, 101 HARV. L. REV. 1331 (1988); Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 HARV. C.R.-C.L. L. REV. 301 (1987). 37. See, e.g., Cole, supra note 18, at 648. Poor people and people of color also understand that most problems faced by their communities are not legal problems, but political and economic ones . . . . Thus, a 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 103 454 48 UCLA LAW REVIEW 443 (2001) law’s transformative potential, scholars outside of CLS began to focus spe- cifically on the inability of litigation to produce meaningful reform.38 Liti- political tool is required to change that decision: a community-based movement to bring pressure on the person or agency making the decision. Id. 38. See, e.g., RICHARD DELGADO & JEAN STEFANCIC, FAILED REVOLUTIONS: SOCIAL REFORM AND THE LIMITS OF LEGAL IMAGINATION (1994) (analyzing the limits of achieving social reform through law); HANDLER, supra note 18, at 232–33 (arguing that law reform efforts are incapable of producing fundamental social change); MICHAEL W. MCCANN, TAKING REFORM SERIOUSLY: PERSPECTIVES ON PUBLIC INTEREST LIBERALISM 200 (1986) (“Legal tactics not only absorb scarce resources that could be used for popular mobilization . . . [but also] make it difficult to develop broadly based, multi-issue grass-roots associations of sustained allegiance.”); ARYEH NEIER, ONLY JUDGMENT: THE LIMITS OF LITIGATION IN SOCIAL CHANGE 19 (1982) (“[Litigation] is an effort that is probably doomed to fail and that should fail unless judges can be persuaded that compelling principles of corrective justice require them to enter territory ordinarily outside their province.”); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 341 (1991) (arguing that social reformers often succumb to the “lure of litigation” rather than providing real political reform); STUART A. SCHEINGOLD, THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE 6–7 (1974) (claiming that activist lawyers embrace a simplistic view of the efficacy of courts to create change that prevents them from taking a more realistic political approach); GIRARDEAU A. SPANN, RACE AGAINST THE COURT: THE SUPREME COURT AND MINORITIES IN CONTEMPORARY AMERICA 5 (1993) (arguing that the structural role of the U.S. Supreme Court is one that ensures the “continued subordination of racial minority interests”); STEPHEN L. WASBY, RACE RELATIONS LITIGATION IN AN AGE OF COMPLEXITY 110 (1995) (criticizing civil rights organizations for concentrating on “issues like school desegregation that are more nearly subject to remedy by litigation, instead of attacking redistributive problems which may be more important for the people they believe they serve”); see also Derrick Bell, Foreword, The Civil Rights Chronicles, 99 HARV. L. REV. 4, 24 (1985) (“[R]eal progress can come only through tactics other than litigation.”); Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U. L. REV. 337, 384 n.182 (1978). Unless public interest lawyers find ways of pursuing shorter term legal gains without encouraging dependency and blunting both individual and organized client initiatives to deal with their own problems, they will substantially undermine the possibility of the sorts of political activity essential to any long term resolution of the inequities that bur- den their clients. Id.; see also Quigley, supra note 17, at 468 (“One of the weaknesses of litigation is the inherent limitation of the judicial system when called upon to produce social reform.”); Klawiter, supra note 18, at 1681–83 (stating that “courts have little power (and, increasingly, less willingness) to ameliorate or eliminate systemic abuses” and “are reluctant (if they were ever prone) to endorse and order redistributive measures,” and noting that “conventional litigation approaches limit the tools for fighting injustice” because decisions often are not implemented, the beneficiaries often are unaware of the outcomes, or the decisions “fail to challenge institutional structures and cogni- tive faculties that sustain subordination”). It should be emphasized that conservative political attacks on public interest lawyers also played a critical role in diminishing reliance on litigation as a social change strategy. In particular, during the 1980s, conservative challenges to liberal law reform efforts forced many poverty law practitioners to search for alternative means to assist low- income clients. See Buchanan, supra note 7, at 1029–31 (discussing Reagan-era attacks on legal services, civil rights, and environmental litigation, and attempts to stack the judiciary with politically conservative judges who were not receptive to progressive legal advocacy); Eagly, supra note 4, at 438–40 (describing cutbacks in LSC funding and advocacy restrictions imposed during the 1980s); see also MARK KESSLER, LEGAL SERVICES FOR THE POOR 9 (1987); Richard L. Abel, 48:3 Cummings & Eagly 104 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 455 gation was problematic, its critics argued, “because it discourage[d] client initiatives, divert[ed] resources away from more effective strategies, and [left] larger social change undone.”39 Thus, instead of the heroic image of attorneys using the courts to “redistribute power to subordinated groups,”40 litigation-based strategies came to be viewed as impediments to social change due to their potential to “co-opt social mobilization.”41 Some legal scholars, such as Joel Handler, argued that public interest litigation was an incrementalist reform strategy that could not “disturb the basic political and economic organization of modern American society.”42 Others, like Richard Abel, Lucie White, and Jennifer Gordon, offered a stronger argument against litigation-centered strategies. They contended that litigation was not only ineffective, but also potentially dangerous. In particular, Abel argued that litigation undermined social change move- ments by reinforcing poor clients’ feelings of powerlessness and dispersing social conflict into individualized legal claims.43 White contended that Law Without Politics: Legal Aid Under Advanced Capitalism, 32 UCLA L. REV. 474, 547–48 (1985); Samuel Jan Brakel, Legal Services for the Poor in the Reagan Years, 17 CLEARINGHOUSE REV. 190 (1983); Matthew Diller, Lawyering for Poor Communities in the Twenty-First Century, 25 FORDHAM URB. L.J. 673, 673–74 (1998); Alan W. Houseman, A Short Review of Past Poverty Law Advocacy, 23 CLEARINGHOUSE REV. 1514, 1520–21 (1990); William P. Quigley, The Demise of Law Reform and the Triumph of Legal Aid: Congress and the Legal Services Corporation from the 1960’s to the 1990’s, 17 ST. LOUIS U. PUB. L. REV. 241, 255–59 (1998). 39. Ann Southworth, Lawyers and the “Myth of Rights” in Civil Rights and Poverty Practice, 8 B.U. PUB. INT. L.J. 469, 470–71 (1999) Ann Southworth goes on to summarize the leftist critique of public interest litigation as follows: [Critics] worry about the distribution of power between lawyer and client, disincentives for lawyers to defer to their clients’ preferences, and psychological costs to clients of working with professionals. Critics also question whether formal legal change ever sig- nificantly alters social and institutional arrangements where political momentum does not already support such change. They assert that legal strategies legitimate unjust social and political arrangements by narrowly defining the range of remediable grievances and emphasizing individual disputes over systemic injustice. Id. at 495 (citations omitted). 40. White, supra note 13, at 755. 41. Id. at 757. 42. HANDLER, supra note 18, at 232–33; see also JACK KATZ, POOR PEOPLE’S LAWYERS IN TRANSITION 195–96 (1982); ROSENBERG, supra note 38, at 336–43; HARRY P. STUMPF, COMMUNITY POLITICS AND LEGAL SERVICES: THE OTHER SIDE OF THE LAW 273–81 (1975); Kevin R. Johnson, Lawyering for Social Change: What’s a Lawyer to Do?, 5 MICH. J. RACE & L. 201, 210 (1999). 43. See Abel, supra note 6, at 8–9 (stating that “the inherently individualistic quality of bour- geois legal rights tends to undermine collectivities rather than build them” and that “law must be subordinated to other modes of activism and other disciplines; indeed, legal means of resolving problems should be avoided whenever possible, for they tend to reinforce the client’s experience of powerlessness”). In other contexts, Richard Abel has argued that informal justice mechanisms have the effect of treating disputants as atomized individuals, dispersing societal level class and structural conflict and focusing instead on individual claims. See Richard L. Abel, Introduction to 1 THE POLITICS OF INFORMAL JUSTICE 1, 6–7 (Richard L. Abel ed., 1982); Richard L. Abel, 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 105 456 48 UCLA LAW REVIEW 443 (2001) litigation was experienced as a “hostile cultural setting,”44 which effectively “silenced” poor people by requiring the repackaging of client grievances in a form the court could understand.45 Gordon claimed that litigation under- mined organizing efforts by reinforcing reliance on lawyers and co-opting potential community leaders by paying them off with a settlement or judg- ment award.46 These scholars were joined by others who agreed that litigation “contribut[ed] to the very subordination it purport[ed] to rem- edy.”47 As a result of these critiques of conventional law reform models, scholars and activists began to seek alternative methods of social change practice that de-emphasized litigation and promoted community-based politi- cal action. B. The Postmodern Critique of Lawyers In the late 1980s and early 1990s, the connection between law and social change was further attenuated as scholars initiated a critique of the Conservative Conflict and the Reproduction of Capitalism: The Role of Informal Justice, 9 INT’L J. SOC. L. 245 (1981). Other scholars have echoed Abel’s critiques. See Alfieri, supra note 35, at 684 (stating that the “narrow treatment of cases as distinct unrelated disputes, without reference to larger class continuities, sacrifices a valuable opportunity to unmask domination and promote counter hegemony by organizing around legal controversy”); Bachmann, supra note 6, at 31–32 (“Public interest lawyering takes power from people and gives it to attorneys. It increases the sense of helplessness and frustration on the part of the many, and disguises realities of political struggle and creates false consciousness.” (citations omitted)); Wendy Brown, Rights and Identity in Late Modernity: Revisiting the “Jewish Question,” in IDENTITIES, POLITICS, AND RIGHTS 85, 118 (Austin Sarat & Thomas Kearns eds., 1995) (critizing liberal rights discourse for converting “social problems into matters of individualized, dehistoricized injury and entitlement”); Cole, supra note 18, at 650–51 (arguing that taking a case into court might disempower the community and its residents and hinder organizing efforts); Sally Engle Merry, Wife Battering and the Ambiguities of Rights, in IDENTITIES, POLITICS, AND RIGHTS, supra, at 271, 305 (critizing rights- based spousal abuse antiviolence programs as “individualizing, reinforcing the idea that the woman alone is responsible”); Louise G. Trubek, Embedded Practices: Lawyers, Clients, and Social Change, 31 HARV. C.R.-C.L. L. REV. 415, 416 (1996) (claiming that the “political efficacy critique” of legal services practice states that “narrow, case-by-case lawyering cannot effectively improve the overall situation of poor people”). 44. White, supra note 18, at 542; see also Quigley, supra note 17, at 470 (stating that “[a]nother difficulty in utilizing litigation in empowerment is the clash of cultures between the legal system and the powerless or group members”). 45. See White, supra note 18, at 543–44; see also Klawiter, supra note 18, at 1682. 46. See Gordon, supra note 13, at 438–39. 47. Klawiter, supra note 18, at 1681. Others have noted additional drawbacks to litigation strategies. See Quigley, supra note 17, at 467 (stating that litigation does not usually further the goal of empowerment and should therefore be avoided because it is potentially “harmful to the growth and development of [a community] organization”); see also Blasi, supra note 18, at 142 (criti- cizing the development of litigation strategies divorced from the lived experiences of the poor and advocating that lawyers engage in “empirical field research” by spending “time on the streets and in the welfare office waiting rooms” in order to craft an effective litigation strategy to redress the needs of the homeless). 48:3 Cummings & Eagly 106 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 457 traditional role of poverty lawyers.48 Drawing on postmodern social the- ory,49 these scholars began to detail the deficiencies of conventional poverty law practice, paying special attention to how lawyers tended to dominate poor clients within the context of the attorney-client relationship.50 At its 48. The scholarship that emerged during this time described varied models of progressive lawyering—rebellious, political, critical, and collaborative—while generating discussions about the relationship between poverty law theory and practice. See, e.g., LÓPEZ, supra note 13; Lois H. Johnson, The New Public Interest Law: From Old Theories to a New Agenda, 1 B.U. PUB. INT. L.J. 169 (1991); Symposium, supra note 20; Symposium, Theoretics of Practice: The Integration of Progressive Thought and Action, 43 HASTINGS L.J. 717 (1992); Louise G. Trubek, Critical Lawyering: Toward a New Public Interest Practice, 1 B.U. PUB. INT. L.J. 49 (1991); Lucie E. White, Collaborative Lawyering in the Field? On Mapping the Paths from Rhetoric to Practice, 1 CLINICAL L. REV. 157 (1994). 49. See Gary L. Blasi, What’s a Theory For?: Notes on Reconstructing Poverty Law Scholarship, 48 U. MIAMI L. REV. 1063, 1088–92 (1994) (critiquing the reliance by poverty law scholars on postmodernism); Buchanan, supra note 7, at 1046–59 (analyzing how postmodern concepts of power, subjectivity, and politics have been incorporated into the new poverty law scholarship); Joel F. Handler, Postmodernism, Protest, and the New Social Movements, 26 LAW & SOC’Y REV. 697, 704–10 (1992) (describing how postmodernism has transformed the focus of legal scholarship); William H. Simon, The Dark Secret of Progressive Lawyering: A Comment on Poverty Law Scholarship in the Post-Modern, Post-Reagan Era, 48 U. MIAMI L. REV. 1099, 1111–14 (1994) (discussing the influence of postmodernism on poverty law scholarship). For a discussion of postmodern social theory, see generally STEVEN BEST & DOUGLAS KELLNER, POSTMODERN THEORY: CRITICAL INTERROGATIONS (1991); STEVEN BEST & DOUGLAS KELLNER, THE POSTMODERN TURN (1997) [hereinafter BEST & KELLNER, THE POSTMODERN TURN]; DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1990); FREDRIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM (1991); and POSTMODERNISM & SOCIAL THEORY (Steven Seidman & David G. Wagner eds., 1992). For a discussion of postmodernism and legal theory, see MINDA, supra note 26, and Stephen M. Feldman, The Politics of Postmodern Jurisprudence, 95 MICH. L. REV. 166 (1996). 50. See LÓPEZ, supra note 13, at 22–23 (describing the “regnant” idea of legal services prac- tice by highlighting Jonathan, a poverty lawyer who “tends to treat his clients like 8 year olds” and does not involve them in basic decision making regarding their case); Alfieri, supra note 35, at 692 (describing how lawyers control the “production of discourse,” which excludes the client’s voice); Anthony V. Alfieri, Disabled Clients, Disabling Lawyers, 43 HASTINGS L.J. 769, 811–28 (1992) (criticizing lawyers’ use of a “victimization strategy” in disability hearings to characterize poor clients as dependent, incompetent, and deviant); Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2107, 2123–2130 (1991) [here- inafter Alfieri, Reconstructive Poverty Law Practice] (arguing that poverty lawyers routinely “silence” poor clients by committing “interpretive violence”—that is, by excluding client narra- tives from the litigation process and, instead, imposing stories of client passivity and powerlessness that reinforce lawyer domination); Anthony V. Alfieri, Speaking Out of Turn: The Story of Josephine V., 4 GEO. J. LEGAL ETHICS 619, 621 (1991) (discussing “the lawyer’s willingness to dominate the rationality and discourse of the attorney-client relation”); Barbara Bezdek, Silence in the Court: Participation and Subordination of Poor Tenants’ Voices in Legal Process, 20 HOFSTRA L. REV. 533, 536 (1992) (describing the systemic silencing of poor tenants); Gay Gellhorn, Law and Language: An Empirically-Based Model for the Opening Moments of Client Interviews, 4 CLINICAL L. REV. 321, 323 (1998) (stating that the failure of the legal interviewer to recognize a client’s attempt to convey important information “contributes to the phenomenon of the legal services lawyer’s silencing of clients and unwitting role in the maintenance of an unjust societal status quo”); Christopher P. Gilkerson, Poverty Law Narratives: The Critical Practice and Theory of Receiving and Translating Client 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 107 458 48 UCLA LAW REVIEW 443 (2001) most strident, the critique of lawyer domination viewed poverty lawyers as active impediments to social change, disempowering clients by controlling litigation strategies and disregarding client stories.51 Poverty lawyers were characterized as potential “oppressors” who actually contributed to the sub- ordination of their disadvantaged clients by forcing them to rely on the law- yers’ expertise.52 Stories, 43 HASTINGS L.J. 861, 911–14 (1992) (discussing how lawyers typically “squeeze” client stories into “abstract, universalized narratives” in a way that disempowers clients); Richard D. Marsico, Working for Social Change and Preserving Client Autonomy: Is There a Role for “Facilitative” Lawyering?, 1 CLINICAL L. REV. 639, 646 (1995) (describing the “paradox of social change lawyering” in which lawyers seeking to help poor clients risk subordinating them by forcing reli- ance on the lawyers’ expertise); Lucie E. White, Goldberg v. Kelly on the Paradox of Lawyering for the Poor, 56 BROOK. L. REV. 861, 861 (noting that by speaking for their clients, poverty lawyers silence their clients’ voices and reproduce their subordination); White, supra note 18, at 545 (arguing that “in practice, welfare litigators often subordinate their clients’ perceptions of need to the lawyers’ own agendas for reform”); see also Robert D. Dinerstein, A Meditation on the Theoretics of Practice, 43 HASTINGS L. REV. 971, 983 (1992) (questioning whether poverty law scholars have fairly characterized lawyers as “professional oppressors” of their clients); William L.F. Felstiner & Austin Sarat, Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions, 77 CORNELL L. REV. 1447, 1451 (1992) (“[The] predominant image of the attorney-client relationship is one of professional dominance and lay passivity.”); Louise G. Trubek, Lawyering for Poor People: Revisionist Scholarship and Practice, 48 U. MIAMI L. REV. 983, 987 (1994) (noting that one of the insights of the new poverty law scholarship is that lawyers need to pay attention to poor clients’ stories); Steven L. Winter, Cursing the Darkness, 48 U. MIAMI L. REV. 1115, 1129 (1994) (stating that “[t]he crux of the postmodern critique of the attorney-client relation- ship . . . is that quite a lot of oppression happens in the name of abstract humanist values such as democracy, autonomy, and equality”). 51. See Binny Miller, Give Them Back Their Lives: Recognizing Client Narrative in Case Theory, 93 MICH. L. REV. 485, 486 (1994) (noting that poverty law theorists argue that “client voices have been muted by the narratives that lawyers tell on their behalf”); Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 CLINICAL L. REV. 427, 439 (2000) (stating that poverty law scholars have highlighted how lawyers perpetuate passive images of clients by controlling the way clients are depicted through the process of representation); see also LÓPEZ, supra note 13, at 49; Alfieri, Reconstructive Poverty Law Practice, supra note 50, at 2123–30; Gilkerson, supra note 50, at 911–14. But see Cathy Lesser Mansfield, Deconstructing Reconstructive Poverty Law: Practice-Based Critique of the Storytelling Aspects of the Theoretics of Practice Movement, 61 BROOK. L. REV. 889, 891–93 (1995) (claiming that the criticism of poverty lawyers for ignoring client stories is misguided). 52. See Paul R. Tremblay, Rebellious Lawyering, Regnant Lawyering, and Street-Level Bureaucracy, 43 HASTINGS L.J. 947, 949 (1992) (describing the focus of recent poverty law scholarship on lawyer domination); see also Blasi, supra note 49, at 1088; Cole supra note 18, at 649; Quigley, supra note 17, at 464–65, 474, 477–78. Many have advocated a client-centered approach to legal advocacy that places greater value on client stories. See, e.g., DAVID A. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH (1991); Naomi R. Cahn, Inconsistent Stories, 81 GEO. L.J. 2475, 2503–05 (1993); Clark D. Cunningham, A Tale of Two Clients: Thinking About Law as Language, 87 MICH. L. REV. 2459 (1989); Stephen Ellmann, Client- Centeredness Multiplied: Individual Autonomy and Collective Mobilization in Public Interest Lawyers’ Representation of Groups, 78 VA. L. REV. 1103, 1128–1129 (1992); Alex J. Hurder, Negotiating the Lawyer-Client Relationship: A Search for Equality and Collaboration, 44 BUFF. L. REV. 71 (1996); Michelle S. Jacobs, People from the Footnotes: The Missing Element in Client-Centered Counseling, 27 GOLDEN GATE U. L. REV. 345 (1997); Nancy D. Polikoff, Am I My Client?: The Role Confusion of a Lawyer Activist, 31 HARV. C.R.-C.L. L. REV. 443, 459–460 (1996). 48:3 Cummings & Eagly 108 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 459 For these scholars, the antidote to client subordination was client empowerment.53 In order to facilitate empowerment, it was necessary to reaffirm the client’s capacity as an agent of social change and challenge the “myth” of client passivity and dependency.54 Some sought to define a stronger role for clients within the attorney-client relationship by creating space for client stories inside and on the margins of the litigation process.55 Others advocated actively enlisting client groups in the struggle for social reform.56 The most influential scholars in this regard have been Gerald López and Lucie White. Both have urged lawyers to cede control over community change strategies in order to foster client empowerment. For instance, López challenged the “regnant” conception of poverty law practice by making the radical suggestion that professional legal skills should not be privileged over 53. See LÓPEZ, supra note 13, at 74–82 (promoting client self-help and community empower- ment as the goals of rebellious poverty law practice); Alfieri, supra note 35, at 665 (“[E]mpowering the poor should be the political object of poverty law.”); Johnson, supra note 48, at 184–85 (describing the goal of lawyers under White’s model as facilitating client empowerment); Klawiter, supra note 18, at 1683–89 (advocating a “community-based” approach to poverty law advocacy designed to facilitate community education and mobilization); Piomelli, supra note 51, at 440 (claiming that “the most significant common theme” of the new poverty law scholarship “is its commitment to more active client participation in the framing and resolution of disputes” and noting that poverty law scholars have emphasized the importance of “active collaboration between attorneys and clients”); Simon, supra note 49, at 1102 (“The prescribed goal of the new [poverty law] scholarship is ‘empowerment’ or enhancing the autonomy of the client.”); Tremblay, supra note 52, at 951–53 (stating that rebellious lawyering is “lawyering that seeks to empower subordi- nated clients” by promoting “client voice” and encouraging clients to organize politically); White, supra note 18, at 538 (arguing for more flexible strategies to facilitate client mobilization and empowerment); Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L. REV. 1, 50 (1990) (describing the case of Mrs. G. as “emancipatory language practice”); White supra note 13, at 760–65 (describing the goal of “third dimensional” lawyering as helping subordinated groups learn how to engage in acts of public resistance and challenge); see also Linda S. Durston & Linda G. Mills, Toward a New Dynamic in Poverty Client Empowerment: The Rhetoric, Politics, and Therapeutics of Opening Statements in Social Security Disability Hearings, 8 YALE J.L. & FEMINISM 119 (1996); Anita Hodgkiss, Petitioning and the Empower- ment Theory of Practice, 96 YALE L.J. 569 (1987). 54. See Alfieri, supra note 35, at 673. 55. See id. at 698–711; Alfieri, Reconstructive Poverty Law Practice, supra note 50, at 2131–45; White, supra note 18, at 545–46. 56. See, e.g., LÓPEZ, supra note 13, at 47–56 (discussing how to foster collaboration between lawyers and community members as “co-eminent practitioners” of social change); see also Cole, supra note 18, at 661–62 (defining client empowerment as “creating in the client community the dynamics of democratic decision making, accountability, and self-determination—ideals which one would like to create in society” and helping “community members solve their own problems”); Klawiter, supra note 18, at 1684–85, 1688–89 (advocating for a collaborative lawyering practice that “moves toward involving subordinated people themselves in the process by more consciously imagining their potential contributions and executing strategies with their concerns in mind” and emphasizing the need for lawyers to “work actively with the affected community to mobilize their support and, more importantly, their participation at all stages”). 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 109 460 48 UCLA LAW REVIEW 443 (2001) client problem-solving skills—or “lay lawyering.” Instead, López argued that lawyers, clients, and other community members should work together in non- hierarchical relationships to challenge existing systems of power.57 Similarly, White leveled a sustained critique against the effectiveness of conventional legal practice, which she characterized as “first-dimensional” lawyering.58 White suggested that lawyers should address the most insidious aspects of subordination by facilitating a conversational process designed to empower clients to articulate their own life stories and transform themselves into more potent political actors.59 By shifting the analysis away from results-oriented legal strategies and toward process-oriented client empowerment, these schol- ars displaced lawyers as the focal point of social change practice and further undermined the legitimacy of law reform tactics. However, in the end, one of the most provocative and influential con- tributions of López and White was not simply their emphasis on empower- ment, but the method that they proposed to achieve it. Specifically, their work marked the first time that scholars went beyond the mere recitation of the importance of integrating law and popular movements to offer a practi- cal vision of how lawyers could achieve social change through community organizing. C. The Emergence of Community Organizing By the early 1990s, legal scholars had rejected the law as a vehicle for social transformation, challenged the privileged position of lawyers in social change strategies, and actively encouraged lawyers to work with other com- munity members to seek local, nonlegal solutions to poverty. The collec- tive force of these multilayered critiques of conventional practice ignited the search for alternative models of progressive lawyering. Beginning with the work of López and White, the vision of community-based advocacy that emerged held out community organizing as a critical component. Over the past several decades, community organizing has emerged as a self-conscious social justice movement with the primary goal of “community building.”60 The movement has focused on fostering grassroots participation 57. See LÓPEZ, supra note 13, at 30–82. 58. White, supra note 13, at 755–57. 59. See id. at 760–66; see also White, supra note 48, at 157 (stating that “third dimensional” lawyering “seeks to enable poor people to see themselves and their social situation in ways that enhance their world-changing powers”). 60. See GARY DELGADO, BEYOND THE POLITICS OF PLACE: NEW DIRECTIONS IN COM- MUNITY ORGANIZING 15 (1997). For a general discussion of community organizing, see PETER BACHRACH & MORTON S. BARATZ, POWER AND POVERTY: THEORY AND PRACTICE (1970); NEIL BETTEN & MICHAEL J. AUSTIN, THE ROOTS OF COMMUNITY ORGANIZING 1917–1939 48:3 Cummings & Eagly 110 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 461 in local decision making, coordinating the strategic deployment of com- munity resources to achieve community-defined goals, and building community-based democratic organizations led by local leaders who advo- cate for social and economic change.61 In practice, community organ- izations have worked at the local level to create more equitable social and economic policies, redistribute resources to low-income communities, and empower marginalized constituencies by giving voice to their concerns.62 As a result of the community organizing movement, there are now more than six thousand community organizations in the United States.63 Movement historians have pointed to its many accomplishments, including the develop- ment of skilled community-based leaders and national community organizing networks, the refinement of replicable community organizing models, and numerous successful campaigns that have effectively shifted the balance of power toward disadvantaged communities.64 The birth of the modern community organizing movement is generally associated with the work of Saul Alinsky.65 Beginning in the 1930s, Alinsky’s (1990); DOUGLAS P. BIKLEN, COMMUNITY ORGANIZING: THEORY AND PRACTICE (1983); KIM BOBO ET AL., ORGANIZING FOR SOCIAL CHANGE: A MANUAL FOR ACTIVISTS IN THE 1990S (2d ed. 1996); GEORGE BRAGER ET AL., COMMUNITY ORGANIZING (2d ed. 1987); ROBERT FISHER, LET THE PEOPLE DECIDE: NEIGHBORHOOD ORGANIZING IN AMERICA (Irwin T. Sanders ed., 1984); ROSS GITTELL & AVIS VIDAL, COMMUNITY ORGANIZING: BUILDING SOCIAL CAPITAL AS A SOCIAL DEVELOPMENT STRATEGY (1998); SI KAHN, HOW PEOPLE GET POWER: ORGANIZING OPPRESSED COMMUNITIES FOR ACTION (1970); SI KAHN, ORGANIZING: A GUIDE FOR GRASSROOTS LEADERS (1982); CLARENCE KING, ORGANIZING FOR COMMUNITY ACTION (1948); JACQUELINE B. MONDROS & SCOTT M. WILSON, ORGANIZING FOR POWER AND EMPOWERMENT (1994); THE O.M. COLLECTIVE, THE ORGANIZER’S MANUAL (1971); ORGAN- IZING FOR COMMUNITY WELFARE (Mayer N. Zald ed., 1967); RACHELLE B. WARREN & DONALD I. WARREN, THE NEIGHBORHOOD ORGANIZER’S HANDBOOK (1977); and Dave Beckwith & Cristina Lopez, Community Organizing: People Power from the Grassroots, available at http://comm- org.utoledo.edu/papers97/beckwith.htm (last visited Jan. 21, 2001). 61. See DELGADO, supra note 60, at 15 (quoting DAVE BECKWITH, INTRODUCTION TO ORGANIZING (1991)). 62. See id. at 3–4. 63. See id. at 3. 64. See id. at 3–4, 47–49 (highlighting the major accomplishments of community organizing). 65. See SAUL ALINSKY, REVEILLE FOR RADICALS (1946); SAUL ALINSKY, RULES FOR RADICALS (1971); MARION K. SANDERS, THE PROFESSIONAL RADICAL: CONVERSATIONS WITH SAUL ALINSKY (1970); see also SANFORD D. HORWITT, LET THEM CALL ME REBEL: SAUL ALINSKY—HIS LIFE AND LEGACY (1989); Frank Riessman, The Myth of Saul Alinsky, DISSENT, July–Aug. 1967, at 469. Although Saul Alinsky has received much of the credit for the modern community organizing movement, historians generally trace the roots of community organizing to earlier efforts. See Harry C. Boyte, Community Organizing in the 1970s: Seeds of Democratic Revolt, in COMMUNITY ORGANIZATION FOR URBAN SOCIAL CHANGE: A HISTORICAL PERSPECTIVE 217, 223 (Robert Fisher & Peter Romanofsky eds., 1981) [hereinafter COMMUNITY ORGANIZATION FOR URBAN SOCIAL CHANGE]; see also JANE ADDAMS, TWENTY YEARS AT HULL HOUSE (1910); BETTEN & AUSTIN, supra note 60; Robert Fisher, From Grass-Roots Organizing to Community Service: Community Organization Practice in the Community Center Movement, 1907–1930, in 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 111 462 48 UCLA LAW REVIEW 443 (2001) “Back-of-the-Yards” organization in Chicago focused on organizing poor people through the development of neighborhood “organizations of organ- izations” that brought together local unions, churches, and service clubs.66 The central tenets of “Alinskyism” included building local power through the strategic mobilization of poor people, developing indigenous leadership to articulate specific community interests, and ensuring that organizing efforts evolved organically out of the needs of local communities.67 Alinsky’s organ- izing efforts were focused on geographically discrete neighborhoods and sought to influence the decisions of local governments regarding the allocation of resources.68 The Alinsky model was extended by Fred Ross, the director of Alinsky’s Industrial Areas Foundation,69 who developed the Community Service Organization in the 1940s to organize Latinos in the Southwest.70 Ross, who later worked alongside César Chávez in the farm worker organizing effort,71 is credited with instituting an organizing approach based on issues— which was distinct from the Alinsky model of organizing local institutions— and developing innovative organizing structures.72 Despite the work of these early community organizing pioneers, it was not until the advent of the political and cultural ferment of the 1950s and 1960s that community organizing emerged as a “full-scale movement.”73 During this period of intense social change, increased private funding for community organizations and a decline in municipal services created an atmosphere ripe for local organizing efforts.74 As a result, the number of organizations serving low-income constituencies grew significantly and community organizing emerged as a potent political force.75 Most signifi- COMMUNITY ORGANIZATION FOR URBAN SOCIAL CHANGE, supra, at 33; Robert Fisher, Neighborhood Organizing: The Importance of Historical Context, available at http://comm-org.utoledo.edu/ papers96/fishercon.htm (1995). 66. See DELGADO, supra note 60, at 9; see also HARRY C. BOYTE, THE BACKYARD REVOLU- TION: UNDERSTANDING THE NEW CITIZEN MOVEMENT 49 (1980); Boyte, supra note 65, at 223. 67. See Boyte, supra note 65, at 223–25; see also ROBERT BAILEY, JR., RADICALS IN URBAN POLITICS: THE ALINSKY APPROACH (1974); DELGADO, supra note 60, at 10–11; GARY DELGADO, ORGANIZING THE MOVEMENT: THE ROOTS AND GROWTH OF ACORN 21 (1986). 68. See DELGADO, supra note 60, at 21. Harry Boyte also notes that Alinsky viewed organ- izing as a means of building community-based organizations and was willing to employ creative tactics and strategies in an all-out effort to win organizing campaigns. See Boyte, supra note 65, at 224. 69. See DELGADO, supra note 67, at 21–23 (discussing the Industrial Areas Foundation). 70. See BOYTE, supra note 66, at 93–94; DELGADO, supra note 60, at 11. 71. See BOYTE, supra note 66, at 94. 72. See Boyte, supra note 65, at 229; see also DELGADO, supra note 60, at 12. Gary Delgado notes that among Fred Ross’s innovations were the membership organization, house meetings, and concrete systems for “volunteer recruitment, donor development, and political support.” See id. at 11–13. 73. DELGADO, supra note 60, at 12. 74. See id. at 12–13. 75. See id. 48:3 Cummings & Eagly 112 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 463 cantly, the civil rights movement highlighted the grassroots organizing work of a diverse array of groups working to end Jim Crow segregation and achieve political and economic equality76—the Congress of Racial Equal- ity,77 the Student Nonviolent Coordinating Committee,78 the Southern Christian Leadership Conference,79 Students for a Democratic Society,80 and the Black Panthers.81 Due to the national prominence achieved by these organizations and the success of grassroots campaigns such as the Montgomery Bus Boycott,82 community organizing came to be recognized as an important social change strategy. The contours of community organizing shifted in the 1970s. Com- munity organizers, faced with corporate opposition to reform, shrinking institutional resources, and flagging memberships, sought to broaden their constituencies by building coalitions beyond neighborhood boundaries. In particular, some organizers worked to develop national organizing cam- paigns to align the majority of Americans against the narrow interests of powerful corporations and their government sponsors.83 This “majority- strategy” was adopted by the National Welfare Rights Organization (NWRO)84 and was central to the development of groups such as the 76. See DELGADO, supra note 67, at 14–18; MORRIS, supra note 1; FRANCES FOX PIVEN & RICHARD A. CLOWARD, POOR PEOPLE’S MOVEMENTS: WHY THEY SUCCEED, HOW THEY FAIL 181–258 (1979); see also WINI BREINES, COMMUNITY ORGANIZATION IN THE NEW LEFT: 1962– 1968 (1982); Kenneth Clark, The Civil Rights Movement: Momentum and Organization, DAEDALUS, Winter 1965, at 95. For a discussion of the civil rights movement, see generally TAYLOR BRANCH, PARTING THE WATERS: AMERICA IN THE KING YEARS, 1954–63 (1988); JOHN DITTMER, LOCAL PEOPLE: THE STRUGGLE FOR CIVIL RIGHTS IN MISSISSIPPI (1994); MANNING MARABLE, RACE, REFORM AND REBELLION: THE SECOND RECONSTRUCTION IN BLACK AMERICA, 1945–1982 (1984); CHARLES M. PAYNE, I’VE GOT THE LIGHT OF FREEDOM: THE ORGANIZING TRADITION AND THE MISSISSIPPI FREEDOM STRUGGLE (1995); and ROBERT WEISBROT, FREEDOM BOUND: A HISTORY OF AMERICA’S CIVIL RIGHTS MOVEMENT (1990). 77. See AUGUST MEIER & ELLIOT RUDWICK, CORE: A STUDY IN THE CIVIL RIGHTS MOVEMENT, 1942–1968 (1975). 78. See CLAYBORNE CARSON, IN STRUGGLE: SNCC AND THE BLACK AWAKENING OF THE 1960S (1981); HOWARD ZINN, SNCC: THE NEW ABOLITIONISTS (1985). 79. See MORRIS, supra note 1, at 77–138. 80. See DELGADO, supra note 67, at 18–21. 81. See EARL ANTHONY, PICKING UP THE GUN: A REPORT ON THE BLACK PANTHERS (1970); THE BLACK PANTHER PARTY (RECONSIDERED) (Charles E. Jones ed., 1998); THE BLACK PANTHERS SPEAK (Philip S. Foner ed., 1970). 82. See MORRIS, supra note 1, at 51–63. 83. See BOYTE, supra note 66, at 52–53; Boyte, supra note 65, at 229; see also Harry Boyte, A Democratic Awakening, SOC. POL’Y, Sept.–Oct. 1979, at 8. 84. See Boyte, supra note 65, at 229; George A. Wiley, Building a New Majority: The Movement for Economic Justice, SOC. POL’Y, Sept.–Oct. 1973, at 3. For a history of the welfare rights movement, see generally NICK KOTZ & MARY LYNN KOTZ, A PASSION FOR EQUALITY: GEORGE A. WILEY AND THE MOVEMENT (1977), and PIVEN & CLOWARD, supra note 76, at 264. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 113 464 48 UCLA LAW REVIEW 443 (2001) Association of Community Organizations for Reform Now (ACORN).85 Although the turbulence of the 1970s led to the evolution of different approaches to community organizing,86 the trend was toward building large- scale organizations that would advance national agendas.87 The 1980s ushered in an era of neoconservative politics that shifted the direction of community organizing away from large-scale mobilization and toward less confrontational local strategies, such as community eco- nomic development and the cultivation of alliances with economic and political elites.88 In response to declining public services, this period also gave rise to a proliferation of diverse community organizations seeking to shoulder the burden created by dwindling government funds.89 In the 1990s, as the number of community organizations continued to grow, increasing diversity in urban areas, combined with a groundswell of reac- 85. See BOYTE, supra note 66, at 93 (noting that ACORN emerged as a “mass-based, multi- issue citizen organization”); DELGADO, supra note 67, at 47–48 (stating that ACORN sought to organize a “majority constituency” in order to establish control of local institutions by low- and moderate-income people); see also Wade Rathke et al., ACORN: Taking Advantage of the Fiscal Crisis, SOC. POL’Y, Sept.–Oct. 1979, at 35. 86. See DELGADO, supra note 60, at 1 (stating that the types of organizing structures that evolved included: “individual membership organizations of low to moderate-income people; issue- based organizations of existing organizations; and church-based organizations”). 87. See Boyte, supra note 65, at 228–31; see also John Mollenkopf, Neighborhood Politics for the 1980s, SOC. POL’Y, Sept.–Oct. 1979, at 24, 26 (arguing that effective political mobilization required neighborhood organizations to build coalitions “across ethnic groups, issues areas, and between neighborhoods and the labor movement” in order to rebuild the national Democratic party). 88. See Robert Fisher, Community Organizing in the Conservative ’80s and Beyond, SOC. POL’Y, Fall 1994, at 11, 13–18. For a discussion of the economic context of organizing in the 1980s, see STEVE BURGHARDT, THE OTHER SIDE OF ORGANIZING: RESOLVING THE PERSONAL DILEMMAS AND POLITICAL DEMANDS OF DAILY PRACTICE 7–21 (1982). As a result of this shift toward community economic development, a substantial literature emerged analyzing its impact and implementation. See generally EDWARD J. BLAKELY, PLANNING LOCAL ECONOMIC DEVELOP- MENT: THEORY AND PRACTICE (1989); CHALLENGING UNEVEN DEVELOPMENT: AN URBAN AGENDA FOR THE 1990S (Philip W. Nyden & Wim Wiewel eds., 1991) [hereinafter CHALLENG- ING UNEVEN DEVELOPMENT]; COMMUNITY DEVELOPMENT IN PERSPECTIVE (James A. Christenson & Jerry W. Robinson, Jr. eds., 1989); COMMUNITY ECONOMIC DEVELOPMENT: PERSPECTIVES ON RESEARCH AND POLICY (Burt Galaway & Joe Hudson eds., 1994); JOHN P. KRETZMAN & JOHN L. MCKNIGHT, BUILDING COMMUNITIES FROM THE INSIDE OUT: A PATH TOWARD FINDING AND MOBILIZING COMMUNITY ASSETS (1993); NEAL R. PEIRCE & CAROL F. STEINBACH, ENTERPRISING COMMUNITIES: COMMUNITY-BASED DEVELOPMENT IN AMERICA, 1990 (1990); DAVID P. ROSS & PETER J. USHER, FROM THE ROOTS UP: ECONOMIC DEVELOPMENT AS IF COMMUNITY MATTERED (1986); HERBERT J. RUBIN & IRENE S. RUBIN, COMMUNITY ORGANIZING AND DEVELOPMENT (1992); THEORIES OF LOCAL ECONOMIC DEVELOPMENT: PERSPECTIVES FROM ACROSS THE DISCIPLINES (Richard D. Bingham & Robert Mier eds., 1993); URBAN ECONOMIC DEVELOPMENT (Richard D. Bingham & John P. Blair eds., 1984); AVIS C. VIDAL, REBUILDING COMMUNITIES: A NATIONAL STUDY OF URBAN COMMUNITY DEVELOP- MENT CORPORATIONS (1992). 89. See Fisher, supra note 88, at 18. 48:3 Cummings & Eagly 114 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 465 tionary political initiatives targeted at communities of color,90 led to the expansion of organizing activities around issues of race and other identity categories.91 The heightened focus on organizing in communities of color, especially in immigrant communities, resulted in the adoption of innova- tive organizing techniques that drew upon international models.92 Toward the end of the decade, activists began to discuss local community organizing strategies in the context of increasing globalization,93 and a new effort emerged to organize multiracial coalitions to press a unified economic and political agenda against corporate interests.94 D. The Fusion of Law and Organizing In the late 1980s and early 1990s, as the community organizing move- ment confronted the challenges posed by Reagan-era cutbacks and demo- graphic change, it also began to generate increased attention from progressive legal scholars and practitioners. Although the idea that lawyers should facilitate community organizing was not entirely new, this period was char- acterized by a different orientation toward organizing practice. Organizing 90. For example, in 1996, California passed Proposition 209, a statewide initiative elimi- nating affirmative action. See California Civil Rights Initiative, CAL. CONST. art. I, § 31(a) (“The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”). In addition, California eliminated affirmative action in the state university system. See Amy Wallace & Dave Lesher, UC Regents, in Historic Vote, Wipe Out Affirmative Action, L.A. TIMES, July 21, 1995, at A1. California also passed Proposition 187, an initiative that denied welfare services, nonemergency medical treatment, and public schooling to immigrants living in the state illegally. See B. Drummond Ayres, Jr., Californians Pass Measure on Aliens: Courts Bar It, N.Y. TIMES, Nov. 10, 1994, at B7 (discussing Proposition 187 and related legal challenges). Federal welfare reform laws also targeted immigrant groups. See Illegal Immi- grant Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8 U.S.C. and 18 U.S.C.). 91. See DELGADO, supra note 60, at 29–45; see also FELIX G. RIVERA & JOHN L. ERLICH, COMMUNITY ORGANIZING IN A DIVERSE SOCIETY (1992). 92. In particular, many organizers began to use popular education theories in carrying out their organizing efforts. Founded by the Brazilian educator Paulo Freire, popular education teaches that adults learn best when placed in nonhierarchical, interactive settings in which they are able to define the parameters and goals of the learning sessions. See PAULO FREIRE, PEDA- GOGY OF THE OPPRESSED (Myra B. Ramos trans., 1970); PAULO FREIRE, THE POLITICS OF EDUCATION: CULTURE, POWER, AND LIBERATION (Donald Macedo trans., 1985); see also MARY ANN HINSDALE ET AL., IT COMES FROM THE PEOPLE: COMMUNITY DEVELOPMENT AND LOCAL THEOLOGY (1995); John L. Hammond, Popular Education as Community Organizing in El Salvador, 26 LATIN AM. PERSP. 69 (1999). 93. See DELGADO, supra note 60, at 22. 94. See id. at 20; see also Alexander Cockburn, New and Left Are Not Oxymoronic, L.A. TIMES, Apr. 20, 2000, at B11 (describing the formation of a new radical movement in America that is internationalist and anticorporate). 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 115 466 48 UCLA LAW REVIEW 443 (2001) became the centerpiece of a new theory of progressive lawyering that sought to empower low-income communities,95 and an emerging base of scholar- ship began to focus on studying international and domestic law and organizing projects. In her seminal article, White described the successful apartheid-era organizing efforts of black South Africans living in a small farming commu- nity called Driefontein to resist a government program that mandated relocation to settlement camps in remote rural areas.96 Similarly, López high- lighted organizing as a critical component of his “rebellious idea of law- yering against subordination”—promoting the work of progressive lawyers who organized immigrants against deportation efforts, established house- keeping cooperatives, and coordinated community-based family services.97 López also provided a detailed description of a “lay lawyer at work,” portraying him as actively involved in a tenant organizing group that engaged in voter registration drives, community education, door-to-door canvassing, and ten- ant mobilization.98 Gordon, who has been an especially influential prac- titioner in the law and organizing movement, founded the Workplace Project in Hempsted, New York.99 By demonstrating how law and organizing could be effectively used to redress the concrete problems of immigrant workers, the Workplace Project became widely recognized as an innovative model of social change practice. As it has evolved, the law and organizing model represents a set of dis- parate approaches, rather than a unified theory of progressive legal practice. That is, there have been varied descriptions of what it means to engage in law and organizing. Steve Bachmann articulated an early version of law and organizing practice in describing his work on behalf of ACORN. According to Bachmann, the promise of legal assistance could be used to encourage people to join an organizing group, while litigation was sometimes necessary to defend an organization against a lawsuit or help it exit from an unproductive campaign.100 David Luban offered another incipient version of law and organizing practice, arguing that lawyers must maintain a “sub- 95. See Ruth Buchanan & Louise G. Trubek, Resistances and Possibilities: A Critical and Practical Look at Public Interest Lawyering, 19 N.Y.U. REV. L. & SOC. CHANGE 687, 691 (1992) (describing one of the central tenets of the new poverty law scholarship as “encourag[ing] organi- zation and collective efforts by clients”). 96. See White, supra note 13. 97. LÓPEZ, supra note 13, at 30–38. 98. See id. at 275–329. Underscoring his interest in organizing, López devotes an entire chapter of his book on progressive lawyering to exploring the tensions between “orthodox” and “life-sized” organizing. See id. at 331–79. 99. See Gordon, supra note 13, at 428–37. 100. See Steve Bachmann, Bachmann & Weltchek: ACORN Law Practice, 7 LAW & POL’Y 29, 33 (1985). 48:3 Cummings & Eagly 116 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 467 ordinate role” when working with organizing groups, emerging to assist only when “a legal strategy fits in with a street strategy.”101 He claimed that a “lawyer qua lawyer” could play an important role in “political organizing” by using legal action to accomplish specific group aims, augment the group’s morale by attaining a legal victory, and catalyze collective action.102 More recently, scholars have departed from these conceptions, sug- gesting that lawyers should not only use their legal skills to assist organizing groups, but that they should also engage directly in organizing activities to empower client communities. For example, López and White have pro- moted community organizing in an attempt to loosen lawyers’ affinity for traditional legal practice and to encourage them to “think outside the box” by embracing a more diverse set of organizing skills.103 Thus, in many instances, they depict lawyers employing organizing techniques, instead of legal ones.104 Gordon has offered a particularly comprehensive vision of law and organizing practice. She argues that there are “three interesting and under- explored possibilities for how to use law” in grassroots organizing work.105 First, law can be used “as a draw” to bring new members into an organization that has larger organizing and reformist goals.106 The promise of legal 101. DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 389 (1988). 102. Id. 103. See LÓPEZ, supra note 13, at 74–78 (advocating that lawyers engage in education and encourage self-help); White, supra note 13, at 760–66 (encouraging lawyers to use popular education techniques). Others have advocated similar positions. See Cole, supra note 18, at 667– 68 (stating that “[e]nvironmental poverty lawyers must be as comfortable holding a house meeting or a press conference as going into court”); Eagly, supra note 4, at 472–79 (urging poverty lawyers to engage in community education); see also Carrie Menkel-Meadow, Ethics and Professionalism in Non-Adversarial Lawyering, 27 FLA. ST. U. L. REV. 153, 160–61 (1999) (stating that lawyers can play many less traditional roles, including “convening meetings of interested groups,” as well as engaging in “‘consensus building,’ strategic planning, joint problem solving, community educa- tion, public conversations and meeting facilitation”). 104. See, e.g., LÓPEZ, supra note 13, at 30–38 (describing “rebellious lawyers” whose work included organizing immigrants to lobby against unfair immigration laws); White, supra note 18, at 546–63 (highlighting speak-outs and group theater as means for poverty lawyers to foster client empowerment); see also Klawiter, supra note 18, at 1687 (arguing that in a “community-based” model of legal practice, lawyers adopt organizing skills, such as facilitating critical reflection and strategic planning by community members). 105. Jennifer Gordon, Lecturer, Yale Law School, Address at the UCLA School of Law Conference on Law and Organizing (Feb. 25, 2000). 106. See id.; see also Gordon, supra note 13, at 442 (discussing how the lure of legal services served as an “effective means for bringing workers into” the Workplace Project). This method of drawing members into an organization through the provision of services has been an effective means of strengthening a group’s membership base. See, e.g., PIVEN & CLOWARD, supra note 76, at 301–05 (discussing the National Welfare Rights Organization’s use of special grant campaigns to attract new members by promising the organization’s assistance in obtaining special welfare benefits). 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 117 468 48 UCLA LAW REVIEW 443 (2001) assistance on a discrete case can motivate a worker to come to a workers’ meeting at which she will be exposed to the broader educational and organizing activities of the group. Second, the law can be used as a “meas- ure of injustice.”107 For instance, as part of educational efforts, workers can be asked to analyze how their own experiences may diverge from what the law defines as basic legal protections. In this way, a discussion of legal issues can highlight discrepancies between the law as written and the law as lived by marginalized workers.108 The gap between the legal ideal and practical reality can then be used to chart a course for political action and commu- nity mobilization. Finally, the law can be used as “part of a larger organ- izing campaign”109 in which the ultimate goal is not to win a particular lawsuit, but rather to achieve specific organizing objectives and build power among unrepresented groups. According to this conception, the law serves as a strategic mechanism to support or advance organizing campaigns in practical ways—for example, by filing a lawsuit to call attention to a broader structural issue or to put pressure on an employer or industry to undertake systemic reforms.110 Although the contours of law and organizing practice remain fluid, one thing is clear: The law and organizing movement has created a decisive break in poverty law scholarship and firmly established the idea that build- ing connections with community organizing campaigns is a critical compo- nent of social change advocacy. Over the last decade, the proponents of law and organizing have successfully incorporated scholarship from diverse sources to develop what is now one of the most influential models of progressive legal practice. The evolution of law and organizing has infused a new energy into debates about poverty law advocacy by urging practitioners to move away from conventional modes of practice and challenging them to meas- ure the results of their efforts by the extent to which they are successful in shifting power to the poor. As the next part of this Article describes, the emergence of the law and organizing paradigm has prompted the formation 107. Gordon, supra note 105. 108. For example, Gordon has suggested that a discussion of worker health and safety could start with the government’s nonenforcement of the Occupational Safety and Health Administra- tion requirements. This would highlight what steps immigrant workers would have to take to close the gap between the ideal of legal protection and the reality of worker vulnerability. See Gordon, supra note 13, at 435–36. 109. Gordon, supra note 105. 110. See id.; see also HANDLER, supra note 18, at 209–20 (discussing the “indirect” benefits of litigation in promoting broader client goals such as community mobilization); Eric Mann, Radical Social Movements and the Responsibility of Progressive Intellectuals, 32 LOY. L.A. L. REV. 761, 766 (1999) (noting that the class action lawsuit against the Los Angeles Mass Transit Authority was “an essential tactic” in building a Bus Riders Union, but that the lawsuit was always “subordi- nate to our overall [organizing] objectives”). 48:3 Cummings & Eagly 118 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 469 of new collaborations, the implementation of innovative advocacy projects, and the direct participation of increasing numbers of clients in successful social change efforts. II. LAW AND ORGANIZING AS PROGRESSIVE LEGAL PRACTICE The relationship between poverty law scholarship and practice has been a dynamic one. As law and organizing has evolved as a field of academic inquiry, it has drawn upon the experiences of poverty law practitioners at the same time that it has influenced the direction of their work. Three distinct practice areas identified with the law and organizing movement have emerged: workers’ rights, environmental law, and community develop- ment.111 As this part highlights, poverty lawyers in these contexts have used an organizing-centered approach to foster client empowerment and achieve important client victories. 111. Although law and organizing has been applied most prominently in these three prac- tice areas, lawyers have used a law and organizing approach to address other substantive issues. For example, housing lawyers have combined tenant organizing and legal advocacy to combat displacement and slum housing. See, e.g., Gary Bellow, Steady Work: A Practitioner’s Reflections on Political Lawyering, 31 HARV. C.R.-C.L. L. REV. 297, 299 (1996) (discussing the organization of eviction-free zones to prevent the displacement of low-income housing tenants); Cole, supra note 18, at 679–82 (discussing Gary Bellow’s work organizing tenants to improve substandard housing conditions); Teresa Cordova, Community Intervention Efforts to Oppose Gentrification, in CHALLENG- ING UNEVEN DEVELOPMENT, supra note 88, at 25, 36 (discussing community-based efforts to fight gentrification); Judith E. Koons, Fair Housing and Community Empowerment: Where the Roof Meets Redemption, 4 GEO. J. ON FIGHTING POVERTY 75 (1996) (describing the use of legal advocacy and community mobilization to resist the displacement of African American community residents due to redevelopment). Currently in Los Angeles, the Figueroa Corridor Coalition for Economic Justice—comprised of legal services lawyers, community organizers, union representatives, and other community activists—has initiated a housing preservation campaign that has adopted a law and organizing strategy in an effort to maintain quality affordable housing units in the rapidly developing Figueroa Corridor area between downtown Los Angeles and the University of Southern California. In addition, law and organizing has been used in the area of welfare rights, see, e.g., KOTZ & KOTZ, supra note 84, at 258–59 (discussing the coordination between welfare rights organizing and litigation efforts); Welfare Law Ctr., Organizing and Litigation: Joint Strategies to Secure Protections for Workfare Workers, at http://www.welfarelaw.org/Org&Lit.htm (last visited Jan. 13, 2001) (describing how litigation can support organizing around workfare issues), domestic violence advocacy, see, e.g., Stacy Brustin, Expanding Our Vision of Legal Services Representation— The Hermanas Unidas Project, 1 AM. U. J. GENDER SOC. POL’Y & L. 39, 49–58 (1993) (describing a program that incorporated organizing in the representation of domestic violence survivors), criminal justice (for example, the Seattle Public Defender’s Equality and Criminal Justice Project has organized families of offenders against racial profiling), immigrant rights (for example, CHIRLA has mounted major organizing campaigns against restrictive immigration legislation, such as Propo- sition 187), and homelessness (for example, the Chicago Coalition for the Homeless has organized homeless populations to oppose vagrancy and panhandling ordinances). 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 119 470 48 UCLA LAW REVIEW 443 (2001) A. Workers’ Rights The law and organizing model has been most prominently applied as a strategy for improving the conditions of low-wage workers.112 Practitio- ners in the field of workers’ rights have combined litigation and workplace organizing techniques to pressure employers to enforce wage and hour requirements, workers’ compensation laws, occupational health and safety regulations, child labor protections, and antidiscrimination laws.113 The current version of law and organizing in the workplace draws upon the tradition of labor organizing.114 Like their union counterparts, law and organizing proponents seek to build collective bargaining power in order to create more equitable working conditions. Yet, despite the strong connections to the union movement, workplace law and organizing advo- cates have been forced to venture outside the scope of conventional labor law practice for a variety of reasons. Most importantly, the declining power of unions—particularly in the low-wage employment sector—has height- ened the need for alternative workplace organizing tactics.115 Much of the current law and organizing activity in the workplace context has therefore 112. For example, at the recent UCLA School of Law Conference on Law and Organizing, see supra note 20, all of the panelists who spoke on the use of law and organizing, except for one, were focused on workplace issues. 113. See, e.g., Gordon, supra note 13, at 441–45; Klare, supra note 18, at 272. For an important example of law and organizing in the workers’ rights context, see Su, supra note 18. 114. See generally JEREMY BRECHER, STRIKE! (1972); ELIZABETH FAUE, COMMUNITY OF SUFFERING AND STRUGGLE: WOMEN, MEN, AND THE LABOR MOVEMENT IN MINNEAPOLIS, 1915– 1945 (1991); ERIC MANN, TAKING ON GENERAL MOTORS (1987); ORGANIZING TO WIN: NEW RESEARCH ON UNION STRATEGIES (Kate Bronfenbrenner et al. eds., 1998) [hereinafter ORGANIZ- ING TO WIN]; ARTHUR B. SHOSTAK, ROBUST UNIONISM: INNOVATIONS IN THE LABOR MOVE- MENT (1991); see also BOYTE, supra note 66, at 104–25. Labor lawyers are important precursors to the current generation of law and organizing practitioners, who focus on enforcing legal rights enacted as a result of the labor movement. See Abel, supra note 6, at 7 (noting that “[l]abor law offers an attractive model for progressive practice: the client is organized already and endowed with substantial resources (both economic and political), and the body of law is highly elabo- rated”); Bachmann, supra note 6, at 11–17 (discussing achievements of labor movement in the 1930s); Quigley, supra note 17, at 460 (citing a discussion with Wade Rathke, one of the founders of ACORN, who noted that the best organizational lawyers tend to “come out of the union tradi- tion”). As advocates committed to the goal of advancing workplace organizing campaigns, labor lawyers continue to merit recognition as important examples of practitioners working within the law and organizing model. However, it should be noted that labor lawyers typically have a differ- ent relationship to organizing campaigns than law and organizing practitioners. Labor lawyers, under the direction of union leaders, provide legal assistance to facilitate union organizing. Law and organiz- ing practitioners, in contrast, often directly participate in organizing work. 115. See ROBERT POLLIN & STEPHANIE LUCE, THE LIVING WAGE: BUILDING A FAIR ECONOMY 4–5 (1998) (noting the decline in union membership since its postwar peak in the 1950s); Stephen Franklin, Union Refrain Starts to Move to an Ethnic Beat, CHI. TRIB., Oct. 13, 1999, § 3, at 1 (citing statistics that union membership now stands at 13.9 percent of the work- force, down from 20.1 percent in 1983). 48:3 Cummings & Eagly 120 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 471 sought to bring the protections and advantages of unionization to the nonunionized workforce.116 This effort has been particularly important in industries in which labor has a weak presence, such as the garment industry, or in areas in which unionization would be impractical, such as domestic work or day labor. Not coincidentally, these industries are also comprised of large numbers of undocumented immigrants and workers employed on a part- time or contingency basis, who are particularly vulnerable to exploitation by employers.117 Recently, there has been a coordinated effort by activists and lawyers to generate new strategies to advance the interests of these marginalized workers.118 One of the most significant outcomes of this collaboration has been the emergence of the workers’ center as a model for promoting greater workplace equity. These centers have been established by independent community organizers and union leaders seeking to promote a stronger cul- ture of labor insurgency by tapping into existing grassroots workplace organizing initiatives, especially in immigrant communities.119 The goal of the union-sponsored centers is “to provide political and ideological support for unionization among disenfranchised low-wage workers” and to promote “union organizing campaigns in their communities.”120 Unions such as the Union of Needletrades, Industrial and Textile Employees (UNITE!) and the Service Employees International Union have instituted workers’ centers that provide job skills training, English-as-a-second-language classes, work- ers’ rights courses, and organizing opportunities for immigrant workers.121 These centers have become increasingly important as labor leaders have moved to expand the recruitment of immigrant members.122 The workers’ center approach has been adapted to the legal services context by innovative law and organizing practitioners. The most frequently cited example in this regard has been the Workplace Project, which aims to 116. See Gordon, supra note 13, at 429; see also Peggie R. Smith, Organizing the Unorgani- zable: Private Paid Household Workers and Approaches to Employee Representation, 7 N.C. L. REV. 45 (2000). 117. See Lora Jo Foo, The Informal Economy: The Vulnerable and Exploitable Immigrant Work- force and the Need for Strengthening Worker Protective Legislation, 103 YALE L.J. 2179 (1994); Laura Ho et al., (Dis)Assembling Rights of Women Workers Along the Global Assembly Line: Human Rights and the Garment Industry, 31 HARV. C.R.-C.L. L. REV. 383 (1996); Su, supra note 18. 118. See Klare, supra note 18, at 267, 272; see also Jeremy Brecher, Organizing the New Workforce, Z MAG., Jul.–Aug. 1998, at 67. 119. Although some early centers were started without union support, more recent centers have received union backing. See Immanuel Ness, Organizing Immigrant Communities: UNITE’s Workers Center Strategy, in ORGANIZING TO WIN, supra note 114, at 89. 120. Id. at 91. 121. See id. at 93–95. 122. See Franklin, supra note 115, at 1; Steven Greenhouse, Labor, Revitalized with New Recruiting, Has Regained Power and Prestige, N.Y. TIMES, Oct. 9, 1999, at A14. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 121 472 48 UCLA LAW REVIEW 443 (2001) mobilize low-income immigrant workers to challenge abusive workplace practices,123 while supporting a broader effort by workers’ centers to “build a new labor movement.”124 At the Workplace Project, legal representation is linked to organizing by restricting legal services to those workers who agree to become active participants in the organization.125 During the course of the representation, the client works with a team comprised of an organizer, a counselor, and a lawyer that focuses not only on redressing that particular client’s legal problem, but also on implementing a strategy to fight collec- tively for better working conditions.126 The form of this advocacy is varied and can involve picketing employers who violate wage and hour laws or engaging in strategic actions to consolidate popular support for stronger workers’ legislation.127 The lawyer’s role in the organizing process is restricted, as the provision of legal services is combined with the education and organizing components of workers’ center membership.128 Other organizations have developed alternative structures and strate- gies for integrating law and organizing to redress workplace injustice. For example, the Asian Pacific American Legal Center (APALC), a legal organization with no organizers on staff, has creatively utilized the skills of lawyers to form partnerships with clients in order to lay the groundwork for a grassroots leadership base.129 APALC’s lawyers have worked to educate their clients about the court system, the legislative process, and larger political and economic issues. As a result, clients have become involved in activities such as speaking with the press, providing testimony at public 123. See Gordon, supra note 13, at 428. 124. Id. at 429. Elsewhere, Gordon has described the goal of the Workplace Project as educating immigrant workers on the “realities of power and politics,” and linking these workers’ groups to broader union and nonunion organizing campaigns around issues of workers’ rights. See Jennifer Gordon, Immigrants Fight the Power, NATION, Jan. 3, 2000, at 6, 19. This reformist agenda is carried out through community organizing and outreach efforts designed to raise workers’ consciousness about the interconnected nature of their workplace problems and to empower them to solve problems through organizing efforts that redress systemic abuses. See Gordon, supra note 13, at 430–37. 125. See Gordon, supra note 13, at 443–45. 126. See id. at 443–44. 127. See JENNIFER GORDON, THE CAMPAIGN FOR THE UNPAID WAGES PROHIBITION ACT: LATINO IMMIGRANTS CHANGE NEW YORK WAGE LAW 3–9 (Carnegie Endowment for Int’l Peace, Int’l Migration Policy Program, Working Paper No. 4, 1999), available at http://www.ceip.org/files/PDF/imp_wp4gordon.pdf (describing the Workplace Project’s campaign to secure passage of the Unpaid Wages Prohibition Act); see also Gordon, supra note 13, at 430– 33 (describing the Workplace Project’s organizing program); Gordon, supra note 124, at 17 (discuss- ing the Workplace Project’s legislative advocacy). 128. See Gordon, supra note 13, at 443–45. 129. See Telephone Interview with Muneer Ahmad, Staff Attorney, Asian Pacific American Legal Center (Oct. 10, 2000). See generally Su, supra note 18. 48:3 Cummings & Eagly 122 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 473 hearings, and participating in policy advocacy.130 The Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA), a community-based organiz- ing group, has utilized its limited legal staff to form partnerships with estab- lished legal organizations to advocate on behalf of low-income workers. For example, when a restrictive ordinance was passed in Los Angeles barring day laborers from soliciting work from passing drivers, CHIRLA’s Day Laborer Organizing Project131 partnered with the Mexican American Legal Defense Fund to successfully challenge the ordinance on constitutional grounds.132 These efforts, which have focused heightened public attention on the conditions of low-wage workers, are representative of the influence of the law and organizing movement on workplace advocacy. B. Environmental Justice Law and organizing has also played a significant role in the development of the environmental justice movement.133 In order to mobilize low-income clients to challenge the disproportionate placement of environmental haz- ards in their neighborhoods,134 lawyers have engaged in a community-based 130. See Telephone Interview with Muneer Ahmad, supra note 129. 131. For background on the Day Laborer Organizing Project, see Ctr. for Cmty. Change, Day Laborers Organize in Los Angeles, available at http://www.communitychange.org/organizing/ 20chirla.asp (last visited Jan. 13, 2001). 132. See CHIRLA v. Burke, No. CV 98-4863-GHK, 2000 U.S. Dist. LEXIS 16520, at *6–43 (C.D. Cal. Sept. 12, 2000) (finding Los Angeles County’s ordinance too broad, unduly vague, and in violation of the First and Fourteenth Amendments); see also David Rosenzweig, Federal Judge Voids Ban on Soliciting by Day Laborers, L.A. TIMES, Sept. 15, 2000, at B1. Julia Greenfield’s work at the Lawyers’ Committee for Civil Rights in San Francisco (LCCRSF) offers another example of law and organizing practice. Part of her work has focused on providing legal research and analysis to support POWER’s organizing campaigns. For example, POWER began an organizing action against the Department of Human Services’ policy of rotating workfare workers between different workfare jobs every three months. This was seen by POWER as being both union busting—in that it damaged POWER’s ability to organize these workers—and harmful to workfare participants whose ability to be hired to permanent positions would be reduced because of the rotation system. Greenfield’s role as the attorney was to research legal issues related to union busting and civil service hiring policies. She was thus able to assist POWER’s leadership in understanding how the law impacted their organizing strategy. See Telephone Interview with Julia Greenfield, NAPIL Equal Justice Fellow, LCCRSF (Sept. 28, 2000). 133. For a discussion of the environmental justice movement, see generally Cole, supra note 18; Willie A. Gunn, From the Landfill to the Other Side of the Tracks: Developing Empowerment Strategies to Alleviate Environmental Injustice, 22 OHIO N.U. L. REV. 1227 (1996); Richard J. Lazarus, Pursuing “Environmental Justice”: The Distributional Effects of Environmental Protection, 87 NW. U. L. REV. 787 (1993); and R. Gregory Roberts, Comment, Environmental Justice and Community Empowerment: Learning from the Civil Rights Movement, 48 AM. U. L. REV. 229 (1998). 134. See Gunn, supra note 133, at 1227–28; see also GEN. ACCOUNTING OFFICE, REPORT NO. RCED-83-168, SITING OF HAZARDOUS WASTE LANDFILLS AND THEIR CORRELATION WITH RACIAL AND ECONOMIC STATUS OF SURROUNDING COMMUNITIES (1983); Vicki Been, Locally Undesirable Land Uses in Minority Neighborhoods: Disproportionate Siting or Market Dynamics?, 103 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 123 474 48 UCLA LAW REVIEW 443 (2001) approach that downplays litigation135 and emphasizes grassroots efforts to empower community residents as political actors.136 By integrating main- stream environmental and poverty law advocacy with organizing, practitioners have raised awareness about environmental racism and effectively prevented the siting of environmental hazards in low-income communities of color.137 In this way, law and organizing tactics have contributed to the formation of a broad-based environmental justice movement that addresses the political and economic causes of environmental problems. For example, while an attorney at the California Rural Legal Assistance Foundation, Luke Cole engaged in a broad range of strategies, including community organizing, to remedy environmental problems faced by the poor. In Kettleman City, California, Cole worked with community leaders to organize meetings of neighborhood residents seeking to oppose the building of a toxic waste incinerator. The residents initiated a letter-writing cam- paign138 and established a core leadership group that mobilized the community into action.139 This strong organizing effort, in conjunction with legal actions taken by Cole, played an important part in defeating the incinerator project.140 Other examples underscore how law and organizing strategies can be effectively deployed to combat environmental racism. For instance, the Golden Gate Law and Justice Clinic worked with community-based organi- zations to halt the development of a power plant in the largely African American Bayview-Hunters Point section of San Francisco.141 Against the YALE L.J. 1383, 1406 (1994); Vicki Been, What’s Fairness Got to Do with It? Environmental Justice and the Siting of Locally Undesirable Land Uses, 78 CORNELL L. REV. 1001, 1001–09 (1993); Paul Mohai & Bunyan Bryant, Environmental Injustice: Weighing Race and Class as Factors in the Distribu- tion of Environmental Hazards, 63 U. COLO. L. REV. 921, 921–23 (1992); Peter L. Reich, Greening the Ghetto: A Theory of Environmental Race Discrimination, 41 U. KAN. L. REV. 271, 275–80 (1992). 135. For example, while acknowledging the protections provided by environmental legisla- tion, Luke Cole argues that the enforcement of environmental laws, by itself, will not alter the practice of siting environmental hazards in poor communities. See Cole, supra note 18, at 635–54. In particular, he states that environmental laws reflect political decisions that are resistant to legal solutions and that typically operate to reinforce existing political and economic inequities. See id. at 648–49; see also Roberts, supra note 133, at 245–46. 136. See Cole, supra note 18, at 621, 636–39; see also Roberts, supra note 133, at 255–67; Naikang Tsao, Note, Ameliorating Environmental Racism: A Citizens’ Guide to Combatting the Discriminatory Siting of Toxic Waste Dumps, 67 N.Y.U. L. REV. 366, 379–417 (1992). Communities for a Better Environment, a San Francisco-based organization, is another example of a group that integrates environmental litigation and community organizing to improve conditions in low-income communities. 137. See Cole, supra note 18, at 673–78. 138. See id. at 675. 139. See id. at 676–77. 140. See id. at 678. 141. See Diane Schwartz, Environmental Racism: Using Legal and Social Means to Achieve Environmental Justice, 12 J. ENVTL. L. & LITIG. 409, 422–29 (1997). 48:3 Cummings & Eagly 124 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 475 backdrop of threatened legal action, community groups organized strident opposition to the proposed plant at numerous administrative hearings, coor- dinated studies demonstrating its potentially deleterious health and economic consequences, and ultimately forced the city to adopt a resolution, crafted by community groups and their lawyers, that prevented the placement of any power generation facilities in the community.142 In St. James Parish, Louisiana, local activists established a grassroots organization that held edu- cational forums for community residents, participated in local governmental hearings, and collaborated with attorneys to defeat the siting of an environ- mentally hazardous plant in a predominantly African American community.143 Professor Shelia Foster has discussed how a coalition of lawyers and community-based organizations in Chester, Pennsylvania worked to stop the clustering of commercial waste facilities in a low-income, African Ameri- can neighborhood.144 The Chester case study focused on the multifaceted strategy these organizations used to challenge the siting of a waste steriliza- tion plant and soil incineration facility in a community that was already home to various environmental hazards.145 In particular, the proposed sitings galvanized community residents to form an organization, Chester Residents Concerned About Quality of Life, that convened meetings with govern- ment and industry leaders, disrupted the operations of existing waste facili- ties, worked with public interest attorneys to challenge the issuance of site permits, and lobbied city council to increase the burden on companies seek- ing to locate hazardous facilities in Chester.146 As a result of these efforts, community residents and their legal representatives were able to block the location of the soil incinerator.147 These examples reflect a trend among environmental justice advocates toward de-emphasizing litigation strategies in favor of integrated law and organizing approaches. The increasing application of law and organizing techniques in the environmental context has led to coordinated challenges 142. See id. at 425–28. 143. See Roberts, supra note 133, at 257–65. 144. See Shelia Foster, Justice from the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement, 86 CAL. L. REV. 774 (1998). 145. See id. at 811. 146. See id. at 811–22. 147. To emphasize the inadequacy of litigation without a strong local organizing base, Sheila Foster contrasts the unsuccessful legal challenge to the sterilization plant with the grass- roots political campaign that culminated in the city council’s passage of a local ordinance that effectively blocked the soil incineration facility. See id. at 815–22. In her conclusion, Foster calls for environmental decision-making reforms that incorporate stronger community participation and points to the Chester experience as an example of the ways community groups are using direct political action to “establish a grassroots base to influence environmental decision-making in their community.” Id. at 838. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 125 476 48 UCLA LAW REVIEW 443 (2001) against unfair hazardous waste sitings that have protected the health of low- income communities and promoted the development of the environmental justice movement. C. Community Development Although the primary focus of law and organizing practitioners has been to develop ways to integrate litigation strategies with community organizing campaigns, the law and organizing model has also been applied by transactional lawyers in the area of community economic development (CED). In particular, CED lawyers have provided legal representation to community-based organizations engaged in grassroots mobilization efforts around a variety of issues affecting low-income workers. The relationship of CED to the law and organizing movement is par- ticularly important given the recent attention CED has received as an anti- poverty strategy.148 During the past decade, poverty lawyers have reoriented their priorities to include the provision of transactional legal assistance to community-based organizations working to revitalize low-income neighbor- hoods.149 Traditional CED lawyering encompasses a broad set of practices that includes developing affordable housing and commercial projects,150 as 148. See generally Brian Glick & Matthew J. Rossman, Neighborhood Legal Services as House Counsel to Community-Based Efforts to Achieve Economic Justice: The East Brooklyn Experience, 23 N.Y.U. REV. L. & SOC. CHANGE 105 (1997); Jeffrey S. Lehman & Rochelle E. Lento, Law School Support for Community-Based Economic Development in Low-Income Urban Neighborhoods, 42 WASH. U. J. URB. & CONTEMP. L. 65 (1992); Peter Pitegoff, Law School Initiatives in Housing and Community Development, 4 B.U. PUB. INT. L.J. 275 (1995); Ben Quinones, CED on the Job, 27 CLEARING- HOUSE REV. 773 (1993); Benjamin B. Quinones, Redevelopment Redefined: Revitalizing the Central City with Resident Control, 27 U. MICH. J.L. REFORM 689 (1994); Michael H. Schill, Assessing the Role of Community Development Corporations in Inner City Economic Development, 22 N.Y.U. REV. L. & SOC. CHANGE 753 (1996–1997); Janine Sisak, If the Shoe Doesn’t Fit . . . Reformulating Rebellious Lawyering to Encompass Community Group Representation, 25 FORDHAM URB. L.J. 873 (1998); Lucie E. White, Feminist Microenterprise: Vindicating the Rights of Women in the New Global Order?, 50 ME. L. REV. 327 (1998). Because of the collaborative nature of community economic development (CED) work, it has been touted by some legal scholars as an important model for facilitating client and community empowerment. See, e.g., Louise G. Trubek, The Worst of Times . . . and the Best of Times: Lawyering for Poor Clients Today, 22 FORDHAM URB. L.J. 1123, 1131, 1135 (1995). 149. See Daniel S. Shah, Lawyering for Empowerment: Community Development and Social Change, 6 CLINICAL L. REV. 217, 217 (1999) (noting that recently “lawyers in legal service organi- zations, law firms, and law school clinics have increasingly engaged in community development practice”). 150. See generally ABA FORUM ON AFFORDABLE HOUS. & CMTY. DEV. LAW, THE CUTTING EDGE OF AFFORDABLE HOUSING SOLUTIONS AND COMMUNITY DEVELOPMENT INITIATIVES (2000); Angela Mulkerin Christy, Affordable Housing: Nonprofits Bring Concrete Benefits to Affordable Housing Transactions, 8 J. AFFORDABLE HOUSING & COMMUNITY DEV. L. 29 (1998); Kristin A. DeKuiper & Richard J. Tetrault, Using Tax Exempt Bond Financing in Conjunction with 48:3 Cummings & Eagly 126 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 477 well as structuring community-based nonprofit organizations, child care cen- ters,151 businesses,152 and financial institutions.153 An increasing number of CED lawyers have expanded the scope of their practice to support community-based organizing campaigns for eco- nomic justice. Law and organizing in the CED context has focused on the provision of transactional legal assistance to community organizing groups working to create jobs and remove barriers to employment for low-wage workers.154 For instance, CED lawyers have assisted community organizations the Low Income Housing Tax Credit, 6 J. AFFORDABLE HOUSING & COMMUNITY DEV. L. 288 (1997); Shawn Luther & Jason Yuts, Housing Pioneers and Affordable Housing Joint Ventures: Forging a New Frontier or Straying from the Well-Traveled Path?, 5 J. AFFORDABLE HOUSING & COMMUNITY DEV. L. 261 (1996); Schill, supra note 148; Elizabeth A. Taylor, Note, The Dudley Street Neighborhood Initiative and the Power of Eminent Domain, 36 B.C. L. REV. 1061 (1995). 151. See generally Peter Pitegoff, Child Care Enterprise, Community Development, and Work, 81 GEO. L.J. 1897 (1993). 152. See generally SUSAN R. JONES, A LEGAL GUIDE TO MICROENTERPRISE DEVELOPMENT: BATTLING POVERTY THROUGH SELF-EMPLOYMENT (1998); Brad Caftel, Helping Microenterprise Programs Succeed, CED EXCHANGE, June 1993, at 1; Margaret Beebe Held, Developing Microbusinesses in Public Housing: Notes from the Field, 31 HARV. C.R.-C.L. L. REV. 473 (1996); Susan R. Jones, Self-Employment: Possibilities and Problems, in HARD LABOR: WOMEN AND WORK IN THE POST-WELFARE ERA 76 (Joel F. Handler & Lucie White eds., 1999) [hereinafter HARD LABOR]; Susan R. Jones, Small Business and Community Economic Development: Transactional Law- yering for Social Change and Economic Justice, 4 CLINICAL L. REV. 195 (1997); Lewis D. Solomon, Microenterprise: Human Reconstruction in America’s Inner Cities, 15 HARV. J.L. & PUB. POL’Y 191 (1992); Robert E. Suggs, Bringing Small Business Development to Urban Neighborhoods, 30 HARV. C.R.-C.L. L. REV. 487 (1995). For a discussion of cooperative development, see Scott L. Cummings, Developing Cooperatives as a Job Creation Strategy for Low-Income Workers, 25 N.Y.U. REV. L. & SOC. CHANGE 181 (1999); David Ellerman & Peter Pitegoff, The Democratic Corporation: The New Worker Cooperative Statute in Massachusetts, 11 N.Y.U. REV. L. & SOC. CHANGE 441 (1982–1983); and Lewis D. Solomon & Melissa B. Kirgis, Business Cooperatives: A Primer, 6 DEPAUL BUS. L.J. 233 (1994). See also BRETT FAIRBAIRN ET AL., CO-OPERATIVES & COMMUNITY DEVELOPMENT: ECONOMICS IN SOCIAL PERSPECTIVE (1991); STIMULATING COOPERATIVE ECONOMIC DEVELOPMENT IN LOW-INCOME COMMUNITIES (Patricia Logan et al. eds., 1981). 153. See generally Rochelle E. Lento, Community Development Banking Strategy for Revitalizing Our Urban Communities, 27 U. MICH. J.L. REFORM 773 (1994); Christoher Jordan Heisen, Comment, Community Development Lite: An Economic Analysis of the Community Development Financial Institutions Act, 39 HOW. L.J. 337 (1995). 154. An important distinction between law and organizing in the CED context as opposed to workers’ rights law and organizing practice is that CED lawyers tend to provide transactional legal assistance—typically in the areas of real estate, corporate law, tax, and contracts—to community-based organizations engaged in organizing work. This type of transactional lawyering has been discussed by scholars writing about law and organizing work. See, e.g., Abel, supra note 6, at 8 (“[L]awyers can help organizations to act autonomously by providing technical skills and training organization staff and members.”); Bachmann, supra note 100, at 38–39 (discussing how Steve Bachmann’s law firm acted as corporate house counsel for ACORN, providing assistance on issues of corporate and tax law); Bachmann, supra note 6, at 23 (stating that the lawyer’s role advising organizations on corporate and tax issues facilitates grassroots mobilization); Cole, supra note 18, at 663–67 (discussing the representation of community-based organizations); Lucie White, “Democracy” in Development Practice: Essays on a Fugitive Theme, 64 TENN. L. REV. 1073, 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 127 478 48 UCLA LAW REVIEW 443 (2001) across the country to negotiate, draft, and secure the passage of living wage ordinances, which have set wage floors that have lifted scores of working people out of poverty.155 In one notable example, lawyers at Greater Boston Legal Services collaborated with a coalition of labor, clergy, and community activists, to secure the passage of the Boston Jobs and Living Wage Ordi- nance.156 Other legal organizations have played critical roles in researching and drafting local first-source hiring agreements, which typically require city contractors to hire low-income workers from local communities. CED law- yers at the Legal Aid Foundation of Los Angeles worked with a community organizing group, Action for Grassroots Empowerment and Neighborhood Development Alternatives (AGENDA), to draft an agreement with a major entertainment studio requiring it to train and hire low-income workers in exchange for public subsidies earmarked for the studio under a government- sponsored redevelopment project.157 CED practitioners have also helped coalitions of union representatives, grassroots organizers, and community resi- dents to negotiate worker buy-outs of manufacturing companies and struc- ture employee-owned businesses.158 These CED law and organizing efforts have had far reaching conse- quences for low-income communities and have begun to change the contours of CED practice. By collaborating with community organizations to chal- lenge structural inequities through grassroots political action, CED practi- tioners have contributed to efforts to raise wages, increase job security, and 1076 (1997) (stating that “a community organizer or transactional lawyer [can] practice in ways that erode, rather than enhance, her clients’ power”). In contrast to CED lawyers, workers’ rights advocates usually combine organizing with “litigation” tactics to help low-wage workers. That is, they represent individuals or groups of aggrieved workers in suits against employers for wage and hour violations, health and safety problems, and workplace discrimination or harassment. Another difference is that, while workers’ rights advocates typically seek to protect vulnerable workers from unlawful termination or substandard working conditions, the goal of CED lawyering is to increase the number of stable, living wage jobs in low-income communities and to establish adequate job training and social service programs to allow low-wage workers to access new opportunities. Thus, although CED and workers’ rights lawyers often advocate on behalf of the same constituencies, they use different legal techniques, work with different types of clients, and pur- sue different, albeit complementary, goals. 155. See Selena Spain & Jean Wiley, The Living-Wage Ordinance: A First Step in Reducing Poverty, 32 CLEARINGHOUSE REV. 252 (1998); see also POLLIN & LUCE, supra note 115. 156. See Telephone Interview with Monica Halas, Attorney, Greater Boston Legal Services (Feb. 17, 2000). 157. See Nona Liegeois et al., Helping Low-Income People Get Decent Jobs: One Legal Services Program’s Approach, 33 CLEARINGHOUSE REV. 279, 286–89 (1999). The Los Angeles Alliance for a New Economy’s Accountable Development Project has also combined legal advocacy and grassroots organizing to ensure that publicly subsidized redevelopment projects benefit low-income communities. See L.A. Alliance for a New Econ., at http://www.laane.org (last visited Jan. 20, 2001). 158. See Telephone Interview with Ken Gladston, Director, Inter-Valley Worker Ownership Project (Nov. 18, 1999). 48:3 Cummings & Eagly 128 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 479 expand ownership opportunities for poor workers. In addition, the develop- ment of law and organizing initiatives has led many CED lawyers to move away from traditional market-based business development strategies and, instead, use their transactional legal skills to support movements for eco- nomic justice. Part II has reviewed how the law and organizing model has been employed to improve conditions for low-wage workers and protect the environmental integrity of low-income communities. Advocates in the areas of workers’ rights, environmental justice, and community develop- ment have embraced a new approach to social change lawyering that empha- sizes the relationship between legal advocacy and community-defined organizing goals, and leverages the power of grassroots action to win bene- fits for poor clients. Nonetheless, further practice-based reflection is neces- sary to better understand the potential—and the limits—of the law and organizing paradigm. III. THE LIMITS OF LAW AND ORGANIZING The development of law and organizing has fundamentally altered the terrain of progressive legal practice. By highlighting the value of organiz- ing, the model has challenged the ingrained habits of legal services practi- tioners and has led to a more flexible and multifaceted vision of effective lawyering for the poor. Furthermore, by questioning the privileged position of lawyers within social movements, law and organizing proponents have reclaimed the centrality of community members in shaping social change. Most significantly, law and organizing has forced poverty lawyers to evaluate the effect of their efforts using a new calculus—one that defines success by asking whether legal advocacy has empowered client communities. However, as law and organizing is still in its early stages, there has been little opportunity for a sustained dialogue, informed by practical expe- rience, on the appropriate scope and application of the model. In advo- cating for the integration of law and organizing, scholars have omitted the type of critical analysis of organizing practice that they have so deftly leveled against litigation-based approaches. This omission has truncated academic discussions of law and organizing and impacted poverty law prac- titioners working to implement organizing methods on the ground. As a step toward generating a more nuanced examination of law and organizing, Part III explores the limitations of an organizing-centered approach and suggests new directions for scholarship and advocacy. In par- ticular, it offers a critique of organizing practice, examines tensions between the “legal” and “organizing” components of an integrated model, discusses 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 129 480 48 UCLA LAW REVIEW 443 (2001) the practical challenges of implementing a law and organizing project, and analyzes ethical issues faced by lawyers working in organizing contexts. A. The Myth of Organizing In the law and organizing scholarship, organizing itself is promoted as a technique that can effectively advance social justice in a way that conven- tional lawyering cannot. Law and organizing proponents argue that if lawyers can learn to integrate organizing into their day-to-day legal practice, radical change is more likely to occur. However, while its advantages have been richly detailed, the limitations and complexities of organizing have not been sufficiently addressed. Therefore, as organizing is further incorporated into the tactics of progressive lawyers, it is important to generate a balanced view of its strengths and weaknesses so that advocates can more thought- fully engage in law and organizing practice.159 This part begins this task by discussing three critical issues in community organizing: the lack of clear distinctions among community-based practices, the limitations of local social change strategies, and the potential of organizing to marginalize race, gender, and other identity issues. 1. Unpacking Organizing One of the critical issues that law and organizing practitioners must grapple with is the ambiguous meaning of organizing. What are the ele- ments of organizing practice? Which organizing methods should be employed in different circumstances? Although these questions have challenged com- munity activists for decades, there has been inadequate attention focused on differentiating the array of techniques that organizers draw upon in their day-to-day work. Instead, there is a tendency to use the term “organizing” loosely, causing tactical confusion and organizational inefficiency. The absence of a framework for distinguishing these different practices makes it difficult for lawyers to evaluate their role in diverse grassroots contexts.160 Therefore, a more systematic effort is needed to generate a typology of community-based techniques that will guide the development of coherent law and organizing strategies. 159. Scholar-activists have already started to examine some of the tensions of grassroots practice. See, e.g., DELGADO, supra note 60, at 49–52 (detailing some of the limitations of com- munity organizing); LÓPEZ, supra note 13, at 331–79 (critiquing “orthodox” organizing); White, supra note 48, at 167–69 (examining recurring tensions found in grassroots initiatives). 160. White has called for the development of “typologies, or models, or theories that map out a range of opportunities for collaboration” between lawyers and community groups. White, supra note 48, at 161. 48:3 Cummings & Eagly 130 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 481 Organizing is often used as shorthand for a range of community-based practices, such as organization building, mobilization, education, conscious- ness raising, and legislative advocacy.161 To begin to disaggregate these dif- ferent techniques, it is useful to examine the distinction between community mobilization and organizing articulated by Frances Fox Piven and Richard Cloward.162 During the welfare rights movement, they argued that institu- tional change would most likely occur if welfare recipients were mobilized to engage in disruptive tactics, such as descending upon local welfare offices in large numbers to demand benefits.163 They contrasted this vision of mobi- lization with the model employed by George Wiley, head of NWRO, who sought to organize the poor through the development of a stable institutional structure with dues-paying members who could exert their col- lective power to challenge welfare policies.164 This distinction between mobi- lization as short-term community action and organizing as an effort to build long-term institutional power, while perhaps obscuring areas of overlap between the two concepts, nevertheless provides an initial framework for beginning to identify different roles for law and organizing practitioners. For instance, lawyers in the mobilization context might advise activists on the legality of different tactics,165 while lawyers in the organization-building context might counsel groups on the steps necessary to establish member- ship associations. Distinctions have also been made between organizing and popular edu- cation.166 In particular, the defining feature of the Alinsky organizing model 161. Further distinctions could be made. For instance, media advocacy and get-out-the-vote drives are sometimes important aspects of larger community-based campaigns. See also Janice Perlman, Grassroots Empowerment and Government Response, SOC. POL’Y, Sept.–Oct. 1979, at 16, 16 (noting three separate approaches employed by neighborhood organizations: (1) “[T]hey can use direct action to pressure existing elites and institutions for greater accountability;” (2) “they can seek electoral power in order to replace the existing elites and institutions;” or (3) “they can bypass existing arrangements and establish self-help or alternative institutions such as cooperatives or community development corporations”); Simon, supra note 49, at 1108–11. 162.See PIVEN & CLOWARD, supra note 76, at 284–85; see also DELGADO, supra note 67, at 32–34. 163.See PIVEN & CLOWARD, supra note 76, at 275–78. Frances Fox Piven and Richard Cloward viewed this strategy as encompassing techniques such as “‘welfare rights information campaigns,” the exhortation of “potential welfare recipients to seek the aid that was rightfully theirs,” and “the mobilization of marches and demonstrations to build indignation and militancy among the poor.” Id. at 284. 164. See id. at 287–96. 165.See Bachmann, supra note 6, at 22 (describing how lawyers are necessary to advise com- munity groups on the first amendment right to protest). Attorneys assisting in organizing efforts frequently act as legal observers at pickets and protests. See Telephone Interview with Tori T. Kim, Attorney, KIWA (Sept. 27, 2000). 166.See MYLES HORTON & PAULO FREIRE, WE MAKE THE ROAD BY WALKING: CON- VERSATIONS ON EDUCATION AND SOCIAL CHANGE (Brenda Bell et al. eds., 1990); see also 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 131 482 48 UCLA LAW REVIEW 443 (2001) popularized in the 1940s is organizing to win, despite the fact that winning might involve the organizers making the key decisions about how to achieve the desired end. Popular education, on the other hand, has evolved as a process of nonhierarchical learning through which people analyze problems on their own so that they may arrive at a more critical understanding of the mechanisms of power and oppression. This understanding may then form the basis for collective action; however, it is the process of arriving at this understanding, rather than the action taken as a result, that constitutes the core of the popular education technique. Although education may be used as a precursor to organizing activities, organizing does not necessarily involve education, and not all education work is geared toward organizing.167 There- fore, law and organizing practitioners must approach educational work dif- ferently than other organizing situations. For example, in order to facilitate an educational session, a lawyer should expect to employ a broad range of planning and coordination skills, such as meeting facilitation and curricu- lum development.168 Another practice frequently associated with community organizing is legislative advocacy. Although many efforts to influence legislation have an organizing component, it is important to disaggregate the concepts in order to better understand the different levers for applying political pres- sure. An example of effective legislative advocacy by the Workplace Project highlights this point. By organizing aggrieved Latino workers and building political coalitions with sympathetic constituencies, Workplace Project organizers were able to help win the passage of stringent employer penalties for nonpayment of wages.169 In this effort, the Workplace Project relied on a variety of community-based techniques, including education,170 media pressure,171 and signature gathering.172 In addition, organizers and community members worked together to draft legislation and conduct lob- Katherine Sciacchitano, Union, Organizing, and Democracy: Living in One’s Time, Building for the Future, DISSENT, Spring 2000, at 75, 80–81 (describing the debate between Myles Horton of the Highlander Center and Paulo Freire over the differences between education and organizing). 167. A similar distinction could be made between organizing and the consciousness-raising method discussed in feminist literature, see, e.g., Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Women’s Movement, 61 N.Y.U. L. REV. 589, 602 (1986), which is employed to facilitate a deeper understanding of the constructed nature of gender relations in order to foster personal empowerment among women. 168.See Eagly, supra note 4, at 460–72; see also White, supra note 13, at 767 (describing third dimensional lawyering that involved facilitating “informal conversations between the organizer and villagers, the development of [a] health clinic and [a] legal clinic, and the strategizing work that the lawyer did jointly with the villagers and the negotiating committee”). 169.See GORDON, supra note 127, at 7–9. 170.See id. at 23. 171.See id. at 16–17. 172.See id. at 24–26. 48:3 Cummings & Eagly 132 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 483 bying visits with key legislators. These varied practices suggest different roles for lawyers engaged in legislative work. In particular, practitioners supporting the efforts of a community-based organization to change the law might explain the technical aspects of the existing legal regime, research how other jurisdictions have dealt with similar issues, assist in drafting leg- islation, and help the organization understand and negotiate the legislative process. Not only does organizing practice comprise a range of different tech- niques, it also takes place within disparate institutional contexts. In his recent work on organizing, Gary Delgado, one of the founders of ACORN, highlights three principal community organizing structures: (1) the direct membership model, (2) the coalition model, and (3) the institutionally based model.173 These structures vary in terms of their constituencies and methods, and often organizers working within these structures employ a combination of tactical strategies. Groups using the direct membership model are generally small, geographically based organizations of low- and moderate-income members that aim to increase their political power through direct action, including organized protests, strategic pressure, and media campaigns.174 Coalitions, in contrast, are issue-based groupings of existing organizations that seek to mobilize their members to change public policy through lobbying, public hearings, and electoral work.175 Institutionally based organizations, which tend to be affiliated with religious institutions, focus on developing strong indigenous leaders who use public pressure and nego- tiation strategies to influence local politics.176 Law and organizing practice can vary depending on the type of institu- tional arrangements chosen by community groups. In a direct membership organization the lawyer might be asked to provide limited legal assistance to members. Frequently such services are promoted as a benefit of member- ship and used as a method to draw new members. For instance, a group focused on welfare reform might offer a free consultation with a lawyer on benefits issues in order to attract welfare recipients as members. Coalition 173.See DELGADO, supra note 60, at 17. Through her work with clinical students, White has also identified different types of community-based initiatives: (1) state-sponsored initiatives, such as Head Start; (2) initiatives founded by a charismatic neighborhood leader; (3) charitable projects; (4) initiatives that promote an ideology, such as literacy or welfare rights; and (5) grassroots self-help initiatives, such as Alcoholics Anonymous. See White, supra note 48, at 164– 66. She has described different roles for lawyers working with such groups, including the lawyer as “mediator,” “fund-broker and financial adviser,” “historian, observer, critic,” and “networker.” Id. at 166. 174. See DELGADO, supra note 60, at 17. 175. See id. 176. See id. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 133 484 48 UCLA LAW REVIEW 443 (2001) organizations, in contrast, might find it useful for lawyers to share their knowledge of a particular specialized issue. For example, a coalition focused on immigrant rights would need a lawyer to explain existing immigration laws and interpret new legislative proposals. Finally, lawyers working with an institutionally based organization might be asked to analyze local redevelopment laws or the rules governing municipal decision making in order to strengthen the organization’s ability to influence political decisions affecting the allocation of local resources. Organizing must therefore be understood as encompassing a diverse range of methods and institutional forms. Although the analytic distinc- tions outlined in this part are schematic and do not fully capture the fluid nature of organizing work, they are nevertheless important for beginning to sharpen discussions of law and organizing practice. To move forward, these distinctions must be elaborated, challenged, and brought to life with practice- based examples. Sophisticated practitioners have already begun this process by providing models of coordinated law and organizing advocacy that deftly integrate different community-based techniques to achieve clearly defined strategic goals. For instance, the Workplace Project and Make the Road by Walking, a community-based organization in Bushwick, Brooklyn, both use organizing, education, media pressure, and legislative advocacy to advance their workers’ rights agendas.177 Similarly, the Metropolitan Alliance in Los Angeles has recently launched a Jobs and Health Care Campaign that thoughtfully combines an array of techniques—demonstrations, an electoral campaign, organization-building, and education—to increase quality jobs and expand job training programs in low-income communities. Yet, despite these examples of model practices, many community activists continue to adopt the rhetoric of organizing without having developed an understanding of the complexity of community-based practices. In order for lawyers to tar- get their legal resources in a way that advances community projects, a more intricate typology of organizing methods is needed. At the moment, the picture of what organizing is—as well as what it is not—is still incomplete. 2. Limitations of Local Organizing as a Social Change Strategy The law and organizing model privileges local organizing as the cen- terpiece of social change practice. Relying significantly on postmodern 177.See GORDON, supra note 127, at 9–30; Gordon, supra note 13, at 430–37; Telephone Interview with Andrew Friedman, Codirector, Make the Road by Walking (Sept. 28, 2000); Make the Road by Walking, at http:www.maketheroad.org (last visited Sept. 28, 2000). 48:3 Cummings & Eagly 134 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 485 conceptions of political action,178 which have emphasized small-scale resis- tance against subordination,179 law and organizing proponents have viewed organizing as capable of fostering the type of local grassroots participation that leads to community empowerment.180 Yet, while the ideal of local action has appealed to progressive scholars and activists, it has also been the subject of criticism by those who contend that, as a political strategy, it fails 178. See Buchanan, supra note 7, at 1061–62 (highlighting poverty law scholarship as reflec- tive of postmodern conceptions of political action, noting particularly that White’s Mrs. G. illustrates “the powerful potential of everyday practices as sites of resistance and transformation”); Handler, supra note 49, at 713 (characterizing White’s scholarship as adopting a postmodern orientation toward politics). López and White, for instance, have self-consciously drawn upon postmodern theory to ground their calls for community-based legal practice. See LÓPEZ, supra note 13, at 41– 43 (adopting postmodern conceptions of power and constructed identity to support his contention that rebellious lawyers should seek to empower poor clients by valuing their stories and problem- solving skills); Lucie E. White, Seeking “ . . . The Faces of Otherness . . . ”: A Response to Professors Sarat, Felstiner, and Cahn, 77 CORNELL L. REV. 1499, 1504 (1992) (noting that, despite its drawbacks, Michel Foucault’s notion of power makes possible “a politics of resistance”); see also Blasi, supra note 49, at 1087 (critiquing postmodern poverty law scholarship for focusing “too narrowly . . . on the individual lawyer/client microworld”); Simon, supra note 49, at 1102 (arguing that the postmodern scholarship equates political action with the achievement of “micro-victories over oppression”). 179. See BEST & KELLNER, THE POSTMODERN TURN, supra note 49, at 276 (stating that there has been a movement “from a macropolitics that focused on changing the structure of the economy and state to a micropolitics that aims to overturn power and hierarchy in specific institu- tions and to liberate emotional, libidinal, and creative energies repressed by the reality principle of bourgeois society”); CARL BOGGS, THE END OF POLITICS: CORPORATE POWER AND THE DECLINE OF THE PUBLIC SPHERE 213 (2000) (arguing that postmodernism is “oriented mainly toward the micro politics of everyday life” and “tends to dismiss in toto the realm of macro politics and with it an indispensable locus of any large-scale project of social transformation”); Boaventura da Sousa Santos, The Post Modern Transition: Law in Politics, in THE FATE OF LAW 79, 114–18 (Austin Sarat & Thomas Kearns eds., 1991) (arguing that postmodernism has generated a politics “of micro-revolutionary practices” that fight against “monopolies of interpretation”). Steven Best and Douglas Kellner argue that numerous theorists associated with postmodernism have advocated various forms of local political action. For example, they note that postmodern theorists Ernesto Laclau and Chantal Mouffe have called for multiple local struggles against subordination. See BEST & KELLNER, THE POSTMODERN TURN, supra note 49, at 272–73. See generally ERNESTO LACLAU & CHANTAL MOUFFE, HEGEMONY AND SOCIALIST STRATEGY: TOWARD A RADICAL DEMOCRATIC POLITICS (1985). They also claim that other theorists, such as Foucault, Jean- Francois Lyotard, and Richard Rorty, have rejected “utopian visions of liberation, global politics, and attempts at large-scale transformation . . . in favor of an emphasis on piecemeal reforms and local strategies.” BEST & KELLNER, THE POSTMODERN TURN, supra note 49, at 272. Foucault, who has been a significant figure in the evolution of poverty law scholarship, is particularly notable for his depiction of power as an all-pervasive force that can be resisted by marginalized human subjects in small ways in the course of their day-to-day lives. See id. at 275. See generally MICHEL FOUCAULT, POWER (Robert Hurley et al. trans., 2000); MICHEL FOUCAULT, POWER/ KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS 1972–1977 (Colin Gordon et al. trans., 1980). Finally, Best and Kellner also highlight Gilles Deleuze & Félix Guattari as theorists who have adopted postmodern micropolitics. See BEST & KELLNER, THE POSTMODERN TURN, supra note 49, at 276. See generally GILLES DELEUZE & FÉLIX GUATTARI, ANTI-OEDIPUS (1983). 180. See supra note 53. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 135 486 48 UCLA LAW REVIEW 443 (2001) to offer a coherent challenge to the larger institutional structures that pro- duce poverty and inequality. Critics of localism have expressed concern about measuring the success of political action by an empowerment standard and have wondered whether local, neighborhood-based efforts can ultimately generate a viable progres- sive social movement. Carl Boggs, for example, has questioned the effective- ness of local organizing in light of the increasing consolidation of corporate power and the growing importance of global economic and political decision- making structures.181 He argues that “[o]ne of the great ironies of the past two decades is that large-scale, macro, and global issues are increasingly met with local, often individual or privatized, outlooks and ‘solutions’ which is yet another testament to political futility.”182 Handler has put forth a simi- lar critique of the “new social movements,” which he describes as “the archetypal form of postmodern politics—grass roots, protest from below, solidarity, collective identity, affective processes—all in the struggle against the established order outside the ‘normal’ channels.”183 Handler suggests that these grassroots initiatives lack a comprehensive alternative social vision, which ultimately prevents them from developing institutional structures and challenging the hegemony of liberal capitalism.184 Community development scholars have leveled similar critiques against localism, arguing that social change strategies focused on geographically discrete communities cannot sufficiently address the problems of racial isolation and poverty concentration that are generated by broader regional dynamics.185 Community organizers 181. See, e.g., BOGGS, supra note 179, at 226–28 (arguing that, in an era of “corporate colonization,” the new social movements, which emphasize local action, cannot serve as transfor- mative social vehicles because the “main locus of new movements has been in civil society, outside of or peripheral to the routine elements of the political system, consistent with the postmodern emphasis on micro, localized, and dispersed zones of resistance”); see also CARL BOGGS, SOCIAL MOVEMENTS AND POLITICAL POWER: EMERGING FORMS OF RADICALISM IN THE WEST (1986). For a discussion of the process of globalization, and its impact on economic and political struc- tures, see generally NOAM CHOMSKY, PROFIT OVER PEOPLE: NEOLIBERALISM AND GLOBAL ORDER (1999); GEORGE SOROS, THE CRISIS OF GLOBAL CAPITALISM (1998); and Fredric Jameson, Taking on Globalization, NEW LEFT REV., July–Aug. 2000, at 49. 182. BOGGS, supra note 179, at 19. 183. Handler, supra note 49, at 719. 184.Id. at 719–28. In a related vein, several scholars have critiqued the left’s embrace of identity politics as an abandonment of larger political visions of social transformation. See TODD GITLIN, THE TWILIGHT OF COMMON DREAMS 141–65 (1995); RUSSELL JACOBY, THE END OF UTOPIA 29–66 (2000); RICHARD RORTY, ACHIEVING OUR COUNTRY 75–107 (1998). 185. See John Foster-Bey, Bridging Communities: Making the Link Between Regional Economies and Local Community Development, 8 STAN. L. & POL’Y REV. 25, 32–34 (1997); see also WILLIAM PETERMAN, NEIGHBORHOOD PLANNING AND COMMUNITY-BASED DEVELOPMENT: THE POTEN- TIAL AND LIMITS OF GRASSROOTS ACTION 167–71 (2000) (arguing that it is a mistake to focus urban planning strategies exclusively on the local neighborhood level). 48:3 Cummings & Eagly 136 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 487 have also voiced concerns about the limitations of place-based neighbor- hood action strategies.186 These criticisms raise legitimate questions about the efficacy of local organizing movements. How can local victories be leveraged into systemic, long-term changes in political and economic structures? How can local efforts be forged into a broader social movement? Although much atten- tion has been focused on the benefits that grassroots organizing has pro- duced for low-income communities, scholars and practitioners must begin to think more expansively about how community-based action can be linked to large-scale reform. Increasingly, activists are working to connect local efforts to larger social change goals in ways that point to new directions in community organizing practice. For example, Fran Ansley has described the efforts of the Tennessee Industrial Renewal Network to address the impact of economic globalism on vulnerable factory workers by cultivating cross-border alliances and engag- ing in grassroots advocacy around issues of free trade.187 In Los Angeles, groups such as the Figueroa Corridor Coalition for Economic Justice and the Metropolitan Alliance have initiated organizing initiatives to address housing and job creation issues on a regional level. Community and stu- dent organizing against sweatshops has also produced large-scale change by forcing some multinational clothing companies to take steps toward reforming labor practices.188 In another example of broad-based advocacy, the Workplace Project has successfully leveraged local organizing to improve state law protections for low-wage workers.189 The challenge facing law and organizing practitioners is to build upon these efforts in order to define more precisely the ways community-based organizing can change broader political and economic structures to benefit marginalized communities. Future scholarship should be devoted to expli- cating the links between local organizing and larger institutional reform. In addition, as innovative practitioners continue to develop more effective mechanisms for addressing the complex dynamics of regional and transnational 186.See DELGADO, supra note 60, at 19 (noting that by the mid-1980s, many community organizations were in crisis due, in part, to the recognition of “the inherent limits of a local, geo- graphically based organizing model”). But see DELGADO, supra note 67, at 228–31 (addressing this criticism of community organizing and offering suggestions for building local organizing into a social movement). 187.See Fran Ansley, Afterword: What’s the Globe Got to Do With It?, in HARD LABOR, supra note 152, at 207, 219–20. 188. See, e.g., Marc Cooper, No Sweat: Uniting Workers and Students, A New Movement Is Born, available at http://past.thenation.com/issue/990607/0607cooper.shtml (June 7, 1999). 189. See GORDON, supra note 127, at 7–9. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 137 488 48 UCLA LAW REVIEW 443 (2001) poverty, an effort must be made to disseminate these models to a wide audi- ence of progressive scholars and advocates. 3. Hierarchy and Identity Conflicts in Organizing Practice A final critique of organizing practice is its potential to marginalize issues of race, gender, sexual orientation, and other identity categories. Of course, traditional poverty law work is often fraught with complicated iden- tity dynamics that perpetuate group hierarchy. However, while there has been a discussion of the ways that conventional legal advocacy reinforces power inequality among different groups,190 there has been little exam- ination of racism and other forms of subordination in the context of an organizing-centered approach. Despite its progressive orientation, community organizing has not been immune from the same type of bias and discrimination prevalent in the dominant society.191 Commentators have criticized traditional organizing tactics that marginalize the concerns of people of color, women, gays, lesbi- ans, and disabled persons.192 The labor organizing movement, which has focused on creating class solidarity among the working poor, also has a history of ignoring identity-based interests.193 Similarly, the civil rights movement, another precursor of modern organizing practice, has often been 190. See, e.g., Alfieri, Reconstructive Poverty Law Practice, supra note 50, at 2123 (stating that poverty lawyers often silence “the empowering voices of client struggle, a silencing tied to the denigration of client difference delineated by class, ethnicity, gender, race, sexual preference, and disability”). 191.See DELGADO, supra note 60, at 4 (“Locked in the old paradigm of the neighborhood group, traditional CO [community organizing] runs the risk of replicating the same power relations as the dominant society in terms of race, gender, and sexual orientation.”); Francis Calpotura & Kim Fellner, The Square Pegs Find Their Groove: Reshaping the Organizing Circle, available at http://comm-org.utoledo.edu/papers96/square.html (last visited Oct. 20, 2000). The labor movement, the New Left and the organizing discipline that Saul Alinsky built, despite their luster, also engendered many flaws of the larger society, notably the dominance of white males in the power structures of their own organizations. The dissonance between stated principle and practice stoked the demand by activist women, people of color, and later gays and lesbians and the disabled, that the movement itself live up to its rhetoric or, in some cases, rethink its verities and structures. Id. But see Michael Miller, “Beyond the Politics of Place”: A Critical Review, available at http://comm- org.utoledo.edu/papers96/miller.html (last visited Jan. 21, 2001) (claiming that Delgado unfairly characterizes traditional community organizing’s treatment of race and other identity issues). 192. See, e.g., BURGHARDT, supra note 88, at 109–35; DELGADO, supra note 60, at 50. 193. See, e.g., ROBERT H. ZIEGER, AMERICAN WORKERS, AMERICAN UNIONS, 1920–1985, at 168–92 (1986); Marion Crain & Ken Matheny, “Labor’s Divided Ranks”: Privilege and the United Front Ideology, 84 CORNELL L. REV. 1542, 1542–43 (1999) (arguing that the American labor movement has remained “steadfast” in its belief that class-based consciousness is the most impor- tant form of group solidarity, ignoring identity-based interests, such as race, gender, disability, and sexual orientation). 48:3 Cummings & Eagly 138 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 489 criticized for its patriarchal structure and its marginalization of black women’s issues.194 These power dynamics have been reflected in the institutional composition of community organizations. The Alinsky model of organizing has been historically characterized by the dominance of white male organiz- ers, which critics charge has limited the diversity of issues addressed by sub- merging the interests of other groups.195 In addition, Delgado notes that only two decades ago community organizers were debating whether to allow women to become lead organizers.196 To be sure, the organizing environment has significantly improved, as women and people of color have increasingly assumed leadership positions in organizing groups.197 For example, organizers of color have developed new strategies for redressing racial injustice, establishing organizational configurations focused on police violence, environmental racism, immigrant rights, and workplace discrimination.198 Community-based formations have also developed that concentrate on the particular issues confronting women of color.199 However, such change has been slow and organizational hierar- chy persists.200 The practical application of certain types of community-based tech- niques can also perpetuate hierarchy. For example, the method of popular education frequently employed by community organizers has traditionally focused on economic injustice and de-emphasized issues of race, gender, sexual orientation, or disability. Furthermore, popular education tends to rely on organic group discussions that often include the expression of stereotypes and prejudices by group members. Although some facilitators 194. See, e.g., BELL HOOKS, FEMINIST THEORY: FROM MARGIN TO CENTER 1–6 (1984) (arguing that both the civil rights movement and the women’s rights movement have marginal- ized issues facing women of color); see also Kimberlè Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139. 195.See Calpotura & Fellner, supra note 191 (stating that characteristics of Alinsky-based organizing practice “have included a pragmatic focus on issues that are ‘immediate, specific and win- nable,’ and the dominance of white male organizers, albeit ones of tremendous intellect and energy”). 196. See DELGADO, supra note 60, at 50. 197.See Francis Calpotura, The View from the Ground: Organizers Speak Out on Race, COLOR LINES, Summer 2000, at 17–18 (highlighting the grassroots work of prominent organizers of color). 198. See DELGADO, supra note 60, at 30–45. Progressive labor organizers have also begun to deploy a new organizing model that intersects with “struggles around racism, sexism, and hetero- sexism.” Dorian T. Warren & Cathy J. Cohen, Organizing at the Intersection of Labor and Civil Rights: A Case Study of New Haven, 2 U. PA. J. LAB. & EMP. L. 629, 630 (2000). 199. For example, in Los Angeles, Strategic Actions for a Just Economy organizes women of color around economic justice issues. 200. See DELGADO, supra note 60, at 50 (arguing that the concerns of women, people of color, and members of the gay and lesbian community “still only receive cursory acknowledgment in many of the organizations and networks”). 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 139 490 48 UCLA LAW REVIEW 443 (2001) choose to address these issues directly, proscriptions against popular educa- tors imposing their own views are interpreted by many to disallow such chal- lenges by outsiders. As a result, regressive ideas can be disseminated by group members and incorporated into the fabric of the educational process.201 The fact that the theoretical and practical imperatives of education work can reinforce hierarchy in this way underscores the need for an approach that is sensitive to how power circulates in grassroots settings. Moreover, lawyers should not assume that grassroots practice will deliver them from the grips of identity conflict. To the contrary, like their regnant counterparts, law and organizing practitioners must exercise constant vigilance in navigating the shoals of racism, sexism, and homophobia. B. The Tensions Between “Law” and “Organizing” As poverty lawyers continue to explore alternative law and organizing approaches, they must also confront some of the inevitable tensions between the lawyering and organizing components of an integrated model. In particu- lar, they must address the tradeoffs between organizing and conventional legal practice, role confusion among lawyer-organizers, and the potential for client coercion in the law and organizing context. 1. Law Versus Organizing: The Perils of Privileging an Organizing- Centered Approach The law and organizing movement has evolved from a critique of litigation-centered poverty law practice.202 Scholars have argued that, rather than focus on piecemeal litigation for individual clients, lawyers should engage in grassroots political interventions to challenge injustice. To achieve this end, organizing has been privileged as a social change strategy while the relative importance of traditional lawyering has been de-emphasized. Thus, descriptions of model law and organizing programs have presented a narrow and arguably inconsequential role for conventional lawyers, while high- lighting the community empowering methods of organizers. Although this critique of the regnant model has succeeded in breaking the spell of lawyer- driven social change, it has done so by diminishing the viability of traditional 201. There are, of course, skillful facilitators who are able to address racist or sexist views that emerge during group discussions. There are also progressive popular education materials that provide techniques for dealing with instances of intragroup conflict. However, as White has noted, allowing “participants to work out their internal power relationships on their own” may cause “external hierarchies” to be replicated within the group. White, supra note 48, at 168. 202. See supra Part I.A. 48:3 Cummings & Eagly 140 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 491 practice. The attenuation of the connection between conventional legal services and social change raises two major concerns. First, exaggerating the ineffectiveness of traditional legal interventions minimizes the significant institutional restructuring that legal advocacy has achieved. Indeed, creative litigation and court-ordered remedies have changed many aspects of the social, political, and economic landscape.203 An analysis that obscures this fact truncates progressive legal practice by closing off poten- tial avenues for redress. In addition, the suggestion by proponents of law and organizing that lawyers should act as organizers, facilitators, and educators would require that less time be spent providing conventional representation to low- income clients,204 who are already drastically underserved.205 As it stands, 203. See, e.g., Nan D. Hunter, Lawyering for Social Justice, 72 N.Y.U. L. REV. 1009, 1011–17 (1997) (claiming that the use of litigation has had a “culture-shifting” effect by advancing civil rights on behalf of people of color, women, gays, and lesbians); Martha Minow, Law and Social Change, 62 UMKC L. REV. 171, 171–73 (1993) (arguing that law reform efforts have contributed to significant social change); see also R. SHEP MELNICK, BETWEEN THE LINES: INTERPRETING WELFARE RIGHTS (1994) (emphasizing the importance of law reform efforts in the welfare rights context); Karen L. Loewy, Lawyering for Social Change, 27 FORDHAM URB. L.J. 1869, 1871–84 (2000) (describing different ways the law can be employed to achieve social change). 204. Some would argue that this concern is overstated given that organizing work has been a small component of poverty law practice since the inception of legal services programs. See, e.g., Abel, supra note 38, at 578–79. The Legal Services Corporation devoted less than five percent of its time to lobbying in 1979, and Congress subsequently prohibited LSC lawyers from participating in any activ- ity designed to influence legislation. The obstacles to community organizing are even greater. Legal aid lawyers in the United States have done hardly any organizing, prefer- ring litigation because of his higher visibility, quicker results, and greater legitimacy; in addition, their professional skills are more obviously indispensable in the courtroom. Id.; see also Southworth, supra note 39, at 484 (noting the results of interviews with 69 Chicago public interest lawyers in 1993 and 1994 showing that the lawyers had assisted in community organ- izing and education activities in 20 of 137 litigation matters they had handled in the two years prior to the study); Tremblay, supra note 52, at 970 (stating that although “[w]riters have been implor- ing poverty lawyers to pursue empowerment and collective mobilization for more than twenty years . . . rebelliousness remains the exception, and not the norm”). However, the poverty law schol- ars and practitioners who participated in the recent Fordham School of Law “Conference on the Delivery of Legal Services to Low-Income Persons” found that “[i]n these times of limited funds for legal services for low-income people,” it is crucial for lawyers to maximize their effectiveness and “not end up doing social work, or organizing, or other work for which the lawyer is untrained.” Recommendations of the Conference on the Delivery of Legal Services to Low Income Persons, 67 FORDHAM L. REV. 1751, 1767 (1999) [hereinafter Recommendations]. 205. See ABA CONSORTIUM ON LEGAL SERV. & THE PUB., LEGAL NEEDS AND CIVIL JUS- TICE: A SURVEY OF AMERICANS 11 (1994) (stating that 61 percent of moderate-income respondents with legal problems had no interaction with the legal system); Alan W. Houseman, Civil Legal Assistance for the Twenty-First Century: Achieving Equal Justice for All, 17 YALE L. & POL’Y REV. 369, 402 (1998) (finding that existing legal assistance programs meet no more than one-fifth of the legal needs of the poor); see also Cramton, Delivery of Legal Services, supra note 4, at 543–44 (“[L]ess than 1 percent of U.S. lawyers are engaged full time in representing poor people or otherwise unrep- resented interests in civil matters.”); Greg Winter, Legal Firms Cutting Back on Free Services for 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 141 492 48 UCLA LAW REVIEW 443 (2001) there are only six thousand full-time legal services staff lawyers to meet the legal needs of the forty-five million persons who are income-eligible for free legal services.206 Each day, poor people flood legal services offices seeking assis- tance in accessing welfare benefits, contesting discriminatory employment terminations, petitioning for political asylum, resisting unlawful evictions, obtaining restraining orders from abusive spouses, and recovering illegally withheld wages. Given the scarcity of resources in legal aid programs, a shift toward an organizing-centered approach would result in a reduction of basic services to these clients. In the end, this type of resource reallocation may be beneficial—it may, as law and organizing advocates argue, ultimately allow poverty law- yers to effect greater institutional reform. However, it would be short-sighted to undertake such a shift without a careful evaluation of how law and organ- izing relates to existing legal services priorities.207 This evaluation should be Poor, N.Y. TIMES, Aug. 17, 2000, at A1 (describing the decrease in pro bono services in the wake of law firm salary increases). This concern about the reduction of conventional legal services is heightened by broader trends in poverty law practice. In particular, legal services offices are increas- ingly moving toward a model of “unbundled legal services,” providing pro per assistance, computer kiosks, ghostwriting, and limited representation. See Mary Hellen McNeal, Having One Oar or Being Without a Boat: Reflections on the Fordham Recommendations on Limited Legal Assistance, 67 FORDHAM L. REV. 2617, 2617 n.1 (1999) (“‘[L]imited legal assistance,’ also called unbundling or discrete task assistance, . . . is generally understood to be legal assistance that includes only selected tasks from the full range of lawyering provided in the traditional attorney-client relationship.”). This shift away from full-service representation and toward unbundled legal services has attracted considerable support. See Margaret Martin Barry, Accessing Justice: Are Pro Se Clinics a Reasonable Response to the Lack of Pro Bono Legal Services and Should Law School Clinics Conduct Them?, 67 FORDHAM L. REV. 1879, 1891 (1999) (finding that pro se programs have become “a popular response to the lack of legal assistance”); Houseman, supra, at 402 (calling for “increasing the flexibility of the civil justice system and expanding the options available to people seeking legal help, including hot lines and assistance to those proceeding pro se” (citation omitted)); Recommendations, supra note 204, at 1777–78 (calling on the courts and the legal profession to “explore innovative efforts to assist pro se litigants”). In many ways, law and organizing reflects a similar impulse to move away from the full-service model of client advocacy to reach larger numbers of poor clients. 206.See Paul R. Tremblay, Acting “A Very Moral Type of God”: Triage Among Poor Clients, 67 FORDHAM L. REV. 2475, 2481–82 (1999) (noting that the “resulting arithmetic shows one lawyer for every 9000 financially eligible poor persons”). 207. Paul Tremblay has begun this process of determining appropriate legal services priori- ties, applying a “risk/reward” analysis to evaluate the potential advantages and disadvantages of four different forms of practice: individual case representation (ICR), focused case representation (FCR), law reform, and mobilization lawyering. See Tremblay, supra note 206, at 2511–14. He finds that mobilization lawyering, which “eschews traditional forms of representation, such as litigation or legislative advocacy, in favor of political community organization,” id. at 2503, has the advantage of facilitating community empowerment, but suffers from the disadvantage of being “enormously speculative” in comparison to the other three practice visions, see id. at 2511–12. He concludes as follows: If the mobilization advocates are right, political work is far more useful, immediately and in the long run, than ICR, FCR, or law reform. Their arguments imply that the daily skirmishes that engage most legal services lawyers today will tend to be less frequent once 48:3 Cummings & Eagly 142 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 493 grounded in an empirical analysis of the relative effectiveness of conven- tional legal practice and law and organizing activities. Thus, to advance the dialogue on social change lawyering, scholars and practitioners must move beyond discussions of law and organizing that merely magnify the deficiencies of traditional legal tactics and instead begin to articulate a new type of interdisciplinary collaboration. 2. Lawyers as Organizers: The Dilemma of Role Duality Attempting to define the proper role for lawyers within an organizing context generates complicated, often conflicting, responses. Lawyers should be organizers, it is argued, because their legal skills provide them with unique insights and community cachet, yet, these very same qualities, it is warned, might also impede organizing by disempowering clients. This ambivalence has contributed to role confusion among law students and legal services prac- titioners who struggle to justify their professional status as lawyers amid lin- gering doubts about the very relevance of legal advocacy to social change efforts.208 Scholars and practitioners have given varied justifications for lawyer involvement in organizing efforts. White has argued that “fluency in the law—that is, a deep practical understanding of law as a discourse for articulating norms of justice and an array of rituals for resolving social conflict—will greatly improve a person’s flexibility and effectiveness at ‘third dimensional’ work.”209 She has further suggested that “[k]nowledge of the law’s procedural rituals will give the [subordinated] group access to a central arena for public resistance and challenge.”210 López has claimed that profes- sional lawyers bring an additional dimension to social change work, distinct from—although not superior to—the “lay lawyering” skills of their clients.211 Gordon has viewed lawyer participation in organizing work instrumentally, power is more equitably distributed. The offsetting consideration, though, is that the like- lihood of success is far less certain than with any of the other three visions. Where one can predict the individual victories that ICR achieves, one cannot, in today’s political envi- ronment, be sanguine about mobilization. Id. at 2514. 208. See, e.g., Bryan, supra note 14, at 279 (writing as a law student about to embark on her legal career and expressing dissatisfaction with the idea of pursuing the law and organizing model because it “fails to envision a meaningful role for lawyers in social change movements”); Feldman, supra note 4, at 1539 (“Legal services lawyers experience considerable uncertainty and ambiva- lence about whether they are or should be litigators, facilitators, social workers, or community educators and organizers”). 209. White, supra note 13, at 765. 210. Id. 211. See LÓPEZ, supra note 13, at 43–44. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 143 494 48 UCLA LAW REVIEW 443 (2001) acknowledging the usefulness of the law as a “draw” for new organizing group participants,212 but minimizing the lawyer’s actual participation in organ- izing work.213 Other practitioners have provided similar explanations of the role of lawyers in organizing efforts, suggesting that their professional title lends a certain prestige that attracts community members into organizing cam- paigns,214 and that lawyers possess special skills that facilitate organizing.215 Yet, these justifications are not completely satisfying. In contrast to the arguments in favor of lawyer-organizers, one could just as easily claim, based on the general distrust of lawyers at the grassroots level, that lawyers are singularly ill-equipped to organize. As many progressive legal scholars have suggested, a lawyer’s penchant for narrow, legalistic thinking and tendency to dominate community settings can undermine his effectiveness as an organ- izer. For example, White has acknowledged that “[i]t is also possible . . . that professional identification as a lawyer can narrow one’s strategic imagination” and has suggested that “[p]erhaps the best arrangement is for lawyer-outsiders to work side by side with outsiders trained in other fields.”216 Furthermore, by the nature of their education and professional status, most lawyers are highly invested in the existing system and not well positioned to advocate for radi- cal structural change.217 Taken together, the arguments of law and organizing proponents paint a contradictory picture: They suggest that lawyers possess special skills that facilitate organizing, while simultaneously maintaining that lawyer knowledge is not superior to “lay” knowledge and that lawyers should play only a very minor role in organizing efforts because of their potential for overreaching. Despite their criticisms of conventional lawyering, law and organizing advo- cates ultimately argue that it is precisely a lawyer’s technical sophistication that makes him valuable in grassroots settings. For instance, at the Work- place Project, although lawyers are trained to work in teams with organizers, they are eventually asked to use their legal skills to file lawsuits when initial organizing efforts are unsuccessful.218 White’s justification for lawyer involve- ment relies explicitly on the value of a lawyer’s “fluency in the law.” López 212. See Gordon, supra note 105. 213.See Gordon, supra note 13, at 443–44. 214. See Telephone Interview with Sameer Ashar, Clinical Fellow, New York University Law School (Sept. 27, 2000) (noting that legal training can provide the organizer with increased credibility). 215. See Telephone Interview with Andrew Friedman, supra note 177 (stating that a legal edu- cation allows organizers to have a better understanding of the economic and political system and to identify organizing targets for the group). 216. White, supra note 13, at 765. 217. Of course, many organizers who train at elite organizing academies must address similar issues. 218. See Gordon, supra note 13, at 444. 48:3 Cummings & Eagly 144 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 495 has also suggested that a lawyer’s knowledge of litigation strategies is an important component of his ability to effect social change.219 Thus, on the one hand, progressive lawyers are urged to move away from regnant forms of conventional lawyering and embrace grassroots organizing strategies to pro- mote social change. On the other hand, they are told that one of the principal reasons they are valuable in these grassroots efforts is that they have profes- sional status as lawyers. While the positional ambivalence of lawyer-organizers may foster a self-critical awareness that enhances their ability to work in grassroots set- tings,220 it can just as easily produce a sense of role confusion that is demor- alizing and causes them to doubt their own efficacy. This ambivalence can also have negative consequences for clients by encouraging lawyers to engage in organizing activities without a clear sense of purpose. In addi- tion, the lack of role definition can actually inhibit effective collaboration with community organizers, who might think it presumptuous for lawyers to believe that they can, with minimal training, implement sophisticated organizing projects. Moreover, as this Article discusses in more detail, the dual role of lawyer-organizer raises a variety of ethical concerns.221 In order to address the problems of role confusion and generate a stronger vision of integrated advocacy, lawyer-organizers must define the relationship between their intersecting identities in a way that values each of their distinct con- tributions to social change. 3. Law as a Vehicle for Organizing: The Problem of Client Coercion One of the arguments in favor of law and organizing has been that it is less susceptible to professional domination than conventional legal representation and, therefore, a better vehicle to achieve client empowerment. Proponents have contended that law and organizing places client interests at the center 219. See LÓPEZ, supra note 13, at 32. 220. See Polikoff, supra note 52, at 471 (arguing that a lawyer’s engagement in activist political efforts may sustain her sense of purpose and enhance her ability to make connections between her legal work and larger social change efforts). 221. Some advocates have called for the complete separation of the roles of lawyer and activist to avoid these problems, although the practical barriers to enforcing such a separation have not been explored. See id. at 468–70 (noting that “client-centered counseling and participation in politi- cal decision making cannot occur simultaneously” and advocating for a type of practice in which the lawyer is always “aware that the activist or organizer role is different from that of a lawyer”); see also Bruce A. Green & Martha Matthews, Report of the Working Group on Rendering Legal Assistance to Similarly Situated Individuals, 67 FORDHAM L. REV. 1801, 1809 (1999) (noting that many members of the Working Group of poverty law practitioners and scholars “expressed the view that, because of potential . . . conflicts, a lawyer should not simultaneously serve as an organizer and as a legal representative”). 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 145 496 48 UCLA LAW REVIEW 443 (2001) of social change activities and correctly positions lawyers as ancillary to those efforts. Yet, in practice, law and organizing advocates may also engage in strategies that involve professional overreaching and impinge upon client autonomy. Ensuring that organizing efforts truly advance an agenda that reflects the needs and desires of low-income and minority communities is a difficult task, especially when privileged professionals, such as lawyers, begin to play critical roles. In the same way that lawyers may use their technical sophistication and legal knowledge to disempower clients, they may also use organizing to achieve goals that are not aligned with community interests. For example, scholars and practitioners have suggested that one of the primary uses for law in organizing contexts is to draw community members into organizing movements. Based on his work with ACORN, Bachmann has noted that litigation can be an effective mechanism of fostering com- munity participation in organizing campaigns.222 By promising community residents individual benefits through legal advocacy, a community-based organization can lure people into organizing efforts.223 Similarly, Gordon has advocated using legal services as a draw for organizing campaigns. At the Workplace Project, in order to receive legal services, clients must agree to participate in organizing activities.224 Other community-based law and organizing groups, such as Make the Road by Walking, implement similar strategies, requiring individuals to become members of the organization before services, such as legal representation, are provided.225 The imposition of an organizing model on clients who are seeking legal services raises questions about lawyer domination and paternalism.226 Are these clients really interested in being organized, or are they agreeing to do so only because they have no other means of obtaining needed legal serv- ices?227 White has cited several examples from practice of participants who 222. See Bachmann, supra note 100, at 33. 223. See id. 224. See Gordon, supra note 13, at 443. 225. See Telephone Interview with Andrew Friedman, supra note 177. Andrew Friedman, however, stresses that it is made clear to potential participants that they should not join the organi- zation solely to receive legal services. If someone in need of legal representation is not interested in engaging in the group’s mission, referrals are provided so that that individual can secure counsel elsewhere. See id.; see also Ctr. for Cmty. Change, Point of Entry: Organizing Low-Income People, available at http://www.communitychange.org/organizing/point12.htm (last visited Jan. 14, 2001) (describing a law clinic offered to draw new membership to the grassroots group Community Voices Heard). 226. See, e.g., Mansfield, supra note 51, at 929 (arguing that low-income clients seek out poverty attorneys “because they have legal problems,” not because they need “normative validation or conveyance”). 227. Even among those who support the use of “law as a draw,” there is concern that individuals will join the membership group solely to seek legal services. From an organizing standpoint, this is problematic because it is very difficult to determine who is an “active member” 48:3 Cummings & Eagly 146 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 497 agree to receive unwanted services because of lack of resources to seek out alternatives. For instance, students have attended literacy classes using popular education despite the fact that they viewed these classes as “an intrusion—an unwanted attempt to indoctrinate them with out-dated Marx- ist propaganda.”228 Similarly, homeless shelter residents required to attend an empowerment support group “resented having to pay for their shelter with what they viewed as an intrusion into their personal lives.”229 Even when clients have voluntarily agreed to engage in organizing activities, it is not clear that the outcome will be free of lawyer domina- tion.230 Lawyers practicing in organizing contexts may be reluctant to cede control in group settings and restrain their more adept verbal skills in order to advance client empowerment. Even skillful facilitators may subtly impose their own ideas and political agendas on the marginalized communities they are working to organize. It is therefore important that organizing is not portrayed as an intrinsi- cally client-empowering form of practice. The postmodern critique of lawyers imposing their own views on their clients is equally applicable in the law and organizing context: Just as poverty lawyers must be careful not to use their technical sophistication and legal knowledge to disempower clients, they must also guard against reifying the concept of organizing and using it to advance a social change agenda that does not reflect the needs and desires of client communities. Indeed, it is necessary for thoughtful practitioners to develop mechanisms to ensure that community members participate in and thereby deserving of the organization’s limited legal services. Even worse, organizers fear that the mere fact that individual legal services are offered will dilute the organizing potential of the group by offering the hope that the problems will be resolved by the lawyer. See Telephone Inter- view with Julia Greenfield, supra note 132. 228. White, supra note 48, at 167. 229.Id. 230. See id. (asking whether it is “possible for the leaders of a grassroots initiative to encour- age collective reflection without subtly imposing their own values on the group”). It is interesting to note how CED law and organizing practitioners differ from their litigation counterparts with respect to the issue of lawyer domination. In the CED version of law and organizing, lawyers typically contribute technical legal advice in a context in which—due to the collaboration between the community groups and their counsel—there is much less potential for lawyer overreaching. See Southworth, supra note 11, at 1154–63. For instance, they negotiate, draft, and revise agree- ments structured by client groups, and provide general assistance on nonprofit corporate matters that concern community-based organizations. Since CED advocates in these settings work to facili- tate the goals articulated by the client groups, there is less concern that they will undermine the organizing effort by imposing counterproductive views. Moreover, although they are often inti- mately involved in organizing campaigns, typically CED lawyers are not responsible for setting the organizing agenda. See Sisak, supra note 148, at 891. This arrangement is distinct from descrip- tions of law and organizing in other contexts, in which the community-based practitioner often takes on a significant organizing role. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 147 498 48 UCLA LAW REVIEW 443 (2001) organizing campaigns out of a commitment to collective action rather than a feeling of coercion. C. The Practical Difficulties of Law and Organizing In the bustle of day-to-day practice, lawyers are confronted with a complicated set of barriers to the effective implementation of the law and organizing model. In particular, practitioners must address the challenges of reaching hard-to-recognize populations and implementing their programs in the face of institutional constraints. 1. Obstacles to Client Organizing As lawyers increasingly rely on an organizing-centered model, it is important to recognize that certain groups of clients are less able to par- ticipate in organizing activities for a variety of reasons unrelated to their desire to organize. There are many types of clients historically assisted by poverty law attorneys who would be difficult to organize under any circum- stances, such as persons with severe disabilities, health problems, or substance abuse issues. Similarly, undocumented immigrant clients might be unre- sponsive to an organizing approach because their involvement in organizing efforts could bring them to the attention of Immigration and Naturalization Service officials and thus subject them to deportation.231 Practitioners must also be mindful of the fact that many client groups do not have sufficient common interests to engage in the collective activi- ties required by law and organizing. For example, lawyers working in the family law context often represent low-income clients with an array of complex, case-specific issues related to divorce, custody, child support, pater- nity, and domestic violence. Similarly, in some areas of immigration law, such as asylum and refugee cases, clients face unique barriers to entering the United States that require attention on an individual basis. Low-income clients face a host of other practical impediments to par- ticipating in organizing efforts. Persons who are the sole providers for their families, for instance, may be unable to fit additional tasks into already challenging work and family schedules. Those who work evenings or week- ends would also be unable to attend meetings that assume a traditional work model. Another problem is the transience of very poor populations, which makes it difficult to reach them with traditional organizing techniques, such 231.See Telephone Interview with Mirna Torres, Immigration Staff Attorney, Catholic Charities, N.M. (June 1, 2000). 48:3 Cummings & Eagly 148 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 499 as home visits and mailings.232 Community groups implementing the law and organizing model should seek to accommodate the participation of these hard-to-organize populations by providing support to facilitate their involve- ment, such as child care, disability accommodations, flexible meeting sched- ules, and free transportation. Nonetheless, because many organizations lack resources to provide these supportive services on a regular basis, sustained involvement of such individuals remains difficult.233 It is useful to examine the practical difficulties in organizing domestic violence survivors as an example of client barriers to organizing. Clients escaping abusive relationships can be so busy participating in various legal and social service activities—such as petitioning for divorce, requesting restraining orders, testifying in criminal proceedings, attending counseling, and applying for public benefits—that they find little time to become mean- ingfully involved in organizing. Lawyers must also consider whether the safety of these women would be jeopardized by requiring them to engage in organizing efforts, because domestic violence survivors must take great care in leaving the home, making phone calls, and going to community meet- ings. Once women have escaped their abusive situation, some may be inter- ested in participating in organizing activities, but ongoing issues of safety and a need to hide their identity might impede organizing efforts. Indeed, many domestic violence shelters impose strict limitations on residents’ movement in order to protect them from abusers.234 Thus, as this example suggests, practitioners must be sensitive to how the circumstances of par- ticular client groups impose obstacles to effective organizing. In particular, as lawyers continue to experiment with organizing-centered approaches, they 232. See Ctr. for Cmty. Change, The Nature of the Challenge, available at http:// www.communitychange.org/organizing/nature12.htm (last visited Jan. 13, 2001). 233. Success in organizing certain populations also varies according to geographic region. For example, organizing strategies that work with client populations in urban areas are often not feasible in rural areas where clients are unable to access public transportation or common forms of communication. 234. Innovative law and organizing efforts may alleviate some of these issues and allow for the successful implementation of domestic violence organizing projects. For example, the Ayuda domestic violence legal services program in Washington, D.C. has worked effectively with survi- vors of domestic violence to form an organizing and leadership group called Hermanas Unidas. See Brustin, supra note 111. LUCHA, a domestic violence program created by legal services attor- neys in Florida, requires that survivors participate in educational classes in exchange for legal services, with the goal that such educational work will lead to organizing. See Virginia P. Coto, LUCHA, The Struggle for Life: Legal Services for Battered Immigrant Women, 53 U. MIAMI L. REV. 749, 755–57 (1999). CHIRLA’s Immigrant Domestic Violence Project, which allows clients to join a weekly support group, offers another example of law and organizing in the domestic violence context. Participation in the support group, which is led by a trained counselor working in tan- dem with an attorney, is seen as an important link between the women’s healing and their even- tual participation in CHIRLA’s larger organizing campaigns. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 149 500 48 UCLA LAW REVIEW 443 (2001) must do so with a keen awareness of the context-specific nature of their advocacy. 2. Constraints on Law and Organizing Practitioners Lawyers working in organizing contexts also face unique challenges related to the nontraditional nature of their practice. One of the most fre- quently cited concerns among lawyer-organizers is that it is extremely diffi- cult to coordinate legal and organizing work. Law practice, whether litigation or transactional, has its own special pressures and deadlines. When legal work needs to get done, a lawyer’s ethics will require that it takes priority over any organizing obligations, creating inevitable tensions. Furthermore, as organizers cannot engage in the practice of law,235 the dual role of “law and organizing” necessarily falls on the lawyers. Therefore, lawyers who desire to be actively involved in both pursuits need to be skilled at managing their time and prioritizing work assignments. This balancing can be especially diffi- cult when organizers are not entirely supportive of a community-based law- yer’s legal work and put pressure on her to abandon some aspects of her legal assistance in order to attend organizing meetings and events. A related challenge arises with respect to the competition between law- yers and organizers for scarce client time. Lawyers working with organizers on the same issues with the same community members often find that conflicts develop regarding how the time and efforts of those community members should be allocated. For example, one lawyer explained that she is involved in a litigation effort on behalf of garment workers who were previously politically active.236 In particular, the clients were leaders in a community-based effort to establish the first multiethnic workers’ center in Los Angeles. However, now that the workers are heavily involved in litigation and their trial is approaching, they attend evening and weekend meetings with their lawyers, which frequently conflict with the scheduled meetings of the workers’ center. The demands of their work, combined with the litigation, have made them miss these organizing sessions, much to the disappointment of the organizers coordinating the workers’ center effort.237 235. See infra Part III.D.4. 236. See Telephone Interview with Julia Figueira-McDonough, Staff Attorney, Legal Aid Foundation of Los Angeles (LAFLA) (June 2, 2000). 237. The demands of the legal work on the clients’ time are heightened as a result of the ideals of client participation and empowerment, which frequently overwhelm the clients, making them unable to participate in other forms of political action. See id. 48:3 Cummings & Eagly 150 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 501 Another difficulty for law and organizing practitioners is the reality of resource constraints.238 Although lawyers in traditional legal contexts must also work under conditions of scarcity, organizing groups—unlike traditional legal services providers—are apt to spend their limited funds in ways that reinforce their organizing mission, rather than on costs associated with legal casework. As a result, organizing groups may not allocate sufficient resources to defray costs for items of importance to lawyers, such as malpractice insur- ance, litigation expenses, continuing legal education trainings, and research materials.239 The absence of adequate funds for professional development is a particular concern for recent law graduates in need of mentoring and supervision. Many lawyers who personally engage in organizing work are also likely to face difficulties in implementing organizing projects due to insufficient training on organizing techniques.240 In contrast to professional organizers who often enroll in rigorous training academies to refine their organizing skills,241 most law graduates have no formal instruction in organizing. Although some aspects of organizing can be readily apprehended by law- yers, the varied conceptual bases, practical strategies, and institutional forms of organizing practice put a lawyer with no organizing training at a disadvantage. Lawyers must therefore learn to respond creatively to the day-to-day constraints and practical barriers that arise when working in an organizing context. By developing effective mechanisms for addressing these issues, law and organizing practitioners can better serve hard-to-organize constituencies 238. “The average staff size for a local community organization is 4 people, and budgets average in the $120,000–160,000 range. Even for organizations with a strong membership base, there is very little funding to stabilize and expand. Funding tends to be spotty and inconsistent.” DELGADO, supra note 60, at 4–5. 239. A law and organizing practitioner could respond to the problem of resource scarcity in different ways. One option would be to accept a limited number of routine legal cases. For exam- ple, she could decide only to represent individuals in small claims court—the routinization of such work would allow her to represent clients without a great deal of support or training. Another solution would be to seek assistance for legal work from outside of the organization, including from both the private and public interest bars. This way, she could receive backup legal support through cocounseling arrangements and gain access to libraries and brief banks. The disadvantage of seek- ing external legal support is that the outside supervising attorney usually does not have actual responsibility for the case and thus is not invested in ensuring quality representation or in being available in emergency situations. Tori Kim, the only attorney at KIWA, an organizing group in Los Angeles, has found that the reality of seeking supervision from sources outside her organiza- tion can be difficult, especially as a recent law graduate. She has tried to meet this challenge by forming a legal advisory board and, for more complex cases, seeking cocounsel from nonprofit legal organizations. See Telephone Interview with Tori T. Kim, supra note 165. 240. See Green & Matthews, supra note 221, at 1809 (“[L]awyers do not necessarily possess the skills to be effective organizers.”). 241. See DELGADO, supra note 60, at 25–28. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 151 502 48 UCLA LAW REVIEW 443 (2001) while structuring the type of institutional support necessary to implement this nontraditional approach. D. The Ethics of Law and Organizing Surprisingly absent from the growing dialogue on law and organizing is any examination of the ethical challenges created by this form of practice.242 Some might consider any discussion of ethical restrictions in the context of progressive legal work to be inherently regnant and stifling of creative advocacy on behalf of marginalized clients. Indeed, commenta- tors have argued that public interest lawyers should not be bound by the ethical rules, which were designed with traditional modes of practice in mind.243 Nonetheless, as lawyers become more involved in organizing move- ments, it would be irresponsible to ignore the ethical implications of this 242. There is a growing body of scholarship describing ethical dilemmas in public interest work, but no specific analysis of the ethical concerns of lawyer-organizers. See, e.g., Johnson, supra note 42, at 217–23 (discussing some of the limitations placed on public interest lawyers by the ethical rules); Shauna I. Marshall, Mission Impossible?: Ethical Community Lawyering, 7 CLINICAL L. REV. 147, 179–206 (2000) (exploring how ethical rules affect “community lawyering” for poor people); Trubek, supra note 4, at 808 (mentioning the variety of ethical and professional issues that confront lawyers trying to engage in collaborative practices). In addition, although the ethi- cal difficulties posed by public interest lawyers working together with social workers has developed significantly as a topic of research, no equivalent discussion has emerged regarding the ethics of lawyers’ collaboration with organizers. See, e.g., Paula Galowitz, Collaboration Between Lawyers and Social Workers: Re-Examining the Nature and Potential of the Relationship, 67 FORDHAM L. REV. 2123, 2134–47 (1999) (examining some of the factors in the professional roles of social workers and lawyers that may inhibit collaboration); Sandra Nye, From a Lawyer-Social Worker—Some Thoughts on Confidentiality and Other Matters, PRAC. DIG., Fall 1984, at 33, 34 (1984) (arguing that working both as a social worker and as a lawyer is “clinically” impossible); Randye Retkin et al., Attorneys and Social Workers Collaborating in HIV Care: Breaking New Ground, 24 FORDHAM URB. L.J. 533 (1997) (discussing the ethical issues raised in the context of lawyers collaborating with social workers to serve HIV positive clients); Heather A. Wydra, Note, Keeping Secrets Within the Team: Maintaining Client Confidentiality While Offering Interdisciplinary Services to the Elderly Client, 62 FORDHAM L. REV. 1517, 1523–30 (1994) (examining confidentiality issues faced by lawyers working with social workers on elder law issues). The development of model protocols for lawyers to meet their ethical duties in the organizing context proves to be much more difficult than in the social work context. Whereas social workers have their own ethical cannon that can be used to identify potential conflicts in specific situations, organizers are not bound by profes- sional ethics rules. 243. See, e.g., Marshall, supra note 242, at 176 (arguing that the values of community lawyers are “not always consistent with the values guiding the ethical codes” and discussing a vari- ety of critiques of the current structure of the ethical rules); Southworth, supra note 39, at 496–97 (finding that, in violation of the ethical rules, many public interest attorneys do not follow their clients’ expressed interests or goals); Christine Zuni Cruz, On the Road Back In: Community Law- yering in Indigenous Communities, 5 CLINICAL L. REV. 557, 586 (1999) (claiming that the current structure of the ethical rules does not envision the obligations of public interest lawyers represent- ing community groups). 48:3 Cummings & Eagly 152 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 503 practice.244 Indeed, it has long been held that the same ethical standards apply to lawyers working in legal services programs as to lawyers in law firms.245 This part highlights several of the most prominent ethical challenges that arise in the context of law and organizing: determining when an attorney- client relationship is established, maintaining client confidentiality, address- ing conflict of interest and scope of representation problems, and avoiding the unauthorized practice of law.246 1. Establishing an Attorney-Client Relationship Lawyers working in an organizing context often confront issues related to the difficulty of determining when an attorney-client relationship has been established. This is especially true for lawyers engaged in the type of law and organizing practice in which significant organizing responsibilities are assumed by the lawyer. Unlike traditional legal services lawyers who work within the confines of their legal offices, only meeting potential clients 244. See Bruce A. Green, Foreword, Rationing Lawyers: Ethical and Professional Issues in the Delivery of Legal Services to Low-Income Clients, 67 FORDHAM L. REV. 1713, 1722 (1999). Those who are concerned about serving the legal needs of low-income persons ought to give thought to: (1) how applicable laws and ethical rules governing the practice of law restrict their options; (2) how best to practice within the context of ethical and legal restrictions; and (3) whether efforts should be made to improve the applicable legal and ethical restrictions to promote better and more effective work on behalf of low-income clients. Id. 245. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 324 (1970) (finding that lawyers in legal services organizations have a “primary obligation of loyalty” to their clients and are required “to act in accordance with the Code of Professional Responsibility”); ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 1309 (1975) (finding that ethical standards apply to lawyers working for government-funded legal assistance programs for indigents); see also Borden v. Borden, 277 A.2d 89, 92–93 (D.C. 1971) (“We are reluctant ever to make an exception from the professional norm for attorneys employed by the government or others who provide legal representation without compensation from the client because then we might encourage a misapprehension that the special nature of such representation justifies departure from the profes- sion’s standards.”), overruled in part by In re Estate of Tran Van Chuong, 623 A.2d 1154 (D.C. 1993). 246. In analyzing these ethical rules, this part refers to the Model Code of Professional Respon- sibility and the Model Rules of Professional Conduct. See MODEL CODE OF PROF’L RESPONSIBILITY (2000); MODEL RULES OF PROF’L CONDUCT (2000). The Model Code of Professional Responsibility contains Ethical Considerations (EC), which are aspirational goals for attorneys, as well as Disci- plinary Rules (DR), which are mandatory standards. As of 1999, more than two-thirds of jurisdictions had adopted the Model Rules of Professional Conduct. See CTR. FOR PROF’L RESPONSIBILITY, ABA, ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT vii (1999) [hereinafter ANNOTATED MODEL RULES]. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 153 504 48 UCLA LAW REVIEW 443 (2001) during intake interviews,247 attorneys operating in the field as organizers come into contact with potential clients on a daily basis. Precisely because of the fact that lawyer-organizers have increased community contact in a variety of settings—including at meetings, trainings, social events, protests, and pickets—they are more frequently approached by community members with questions of a legal nature. To complicate matters even further, it is often unclear whether community members approaching these attorneys are seek- ing legal advice. Lawyer-organizers must be extremely careful in their interactions with community members because their conversations, however brief, might establish an attorney-client relationship.248 In general, when a lawyer gives specific legal advice that is reasonably relied on by a layperson, most courts have found that the provision of such advice is sufficient to establish an attorney-client relationship.249 Even in cases in which the attorney did not intend to establish such an obligation, did not charge any fees, and did not sign a retainer, courts have found that an attorney-client relationship, or, at least, a fiduciary obligation, existed.250 Once such a relationship is estab- 247. See Catherine J. Lanctot, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 DUKE L.J. 147, 170 (1999). In the traditional setting of a lawyer’s office, there is little mystery about this aspect of the formation of a professional relationship. The layperson comes to the office of the law- yer and expressly asks the lawyer to perform legal services, most commonly by describing a set of facts and asking either for specific legal advice or for the lawyer’s assistance in accomplishing a particular objective. Id. 248. See MODEL RULES OF PROF’L CONDUCT pmbl. para. 15. [F]or purposes of determining the lawyer’s authority and responsibility, principles of sub- stantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. Id.; see also RESTATEMENT (THIRD) OF GOVERNING LAWYERS § 26 (1998). A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the per- son’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of con- sent to do so, and the lawyer knows or reasonably should know that the person reasona- bly relies on the lawyer to provide the services. Id. Some states have adopted statutes that define the attorney-client relationship. See, e.g., CAL. EVID. CODE § 951 (West 1998) (providing that an attorney-client relationship is established when a layperson “consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity”). 249. See Lanctot, supra note 247, at 161; Marshall, supra note 242, at 182; see also Perkins v. W. Coast Lumber Co., 129 Cal. 427, 429 (1900) (“When a party seeking legal advice consults an attorney at law and secures that advice, the relation of attorney and client is established prima facie.”); In re Bristow, 301 Or. 194, 201–02 (1986) (finding that the fact that the attorney pro- vided legal advice gives rise to an attorney-client relationship). 250. See, e.g., Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978) (“The fiduciary relationship existing between lawyer and client extends to preliminary 48:3 Cummings & Eagly 154 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 505 lished, lawyers are required to conform to the range of duties inherent in the attorney-client relationship, including confidentiality, competence, and loyalty. Consider the complications that can arise when a lawyer, acting as an organizer, is asked a question that requires legal knowledge.251 For example, what would happen if, in the context of an organizing drive, a worker approaches a lawyer-organizer and asks her what he should do regarding his workplace injury? If the organizer were not a lawyer, the organizer’s respon- sibilities with respect to the question would be limited. However, because the organizer in this situation is a lawyer—and likely was approached by the worker precisely because of her lawyer status—a different set of considera- tions apply. Any advice given to the worker by the attorney would likely be viewed as legal advice and, if reasonably relied on by the worker, could be sufficient to establish an attorney-client relationship. Accordingly, the attorney would need to explain the range of legal options available to the individual—filing a worker’s compensation claim and, if a certain product or machine caused the injury, perhaps also filing a civil claim against the manufacturer. Any relevant restrictions, such as a statute of limitations or notification requirements, should be mentioned. The lawyer would also need to obtain any specific facts relevant to the case that would influence the type of legal advice required. And, of course, the lawyer’s ethical obligations, consultation by a prospective client with a view to retention of the lawyer, although actual employ- ment does not result.”); Herbes v. Graham, 536 N.E.2d 164, 165 (Ill. App. Ct. 1989) (finding an attorney-client relationship was formed after a 90-minute initial meeting, despite the fact that legal advice was not given and a fee was not paid). See generally MODEL RULES OF PROF’L CON- DUCT pmbl. para. 15. [T]here are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be estab- lished. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact. Id. 251. Lawyer-organizers interviewed for this Article frequently expressed uncertainty about whether they are always acting as lawyers—and therefore bound by the rules of professional responsibility—or whether they can periodically put aside their lawyering role to assume that of an organizer. Should they introduce themselves at community meetings as organizers? As residents? As coalition members? Or, are they required to identify themselves as lawyers? Furthermore, if they do not self-identify as lawyers, yet community members know of and call on their legal expertise, are they nonetheless functioning as lawyers? See Telephone Interview with Mary Anderson, Staff Attorney, Chicago Coalition for the Homeless, Law Project (Oct. 18, 2000); Telephone Interview with Julia Greenfield, supra note 132. Although experienced lawyer-organizers may find it easy to move between the roles of lawyer and organizer in day-to-day practice, how they are judged under the attorney’s ethical code is a more complex matter. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 155 506 48 UCLA LAW REVIEW 443 (2001) such as confidentiality and conflict of interest, would attach to the conver- sation with the worker.252 Another area in which ambiguity regarding attorney-client relation- ships occurs is in the context of lawyers providing training for community members to pursue their legal claims on a pro se basis. Law and organizing practitioners frequently offer educational courses that teach self-help strate- gies for addressing legal problems. Lawyer-organizers working in these con- texts should be careful to explain to participants that they are not providing legal advice in order to avoid crossing the line into individualized, fact-specific consultations with participants.253 Otherwise, the lawyer runs the risk of establishing an attorney-client relationship and being bound by the numer- ous obligations that such a relationship entails. 2. Confidentiality Confidentiality is a central tenet of the legal profession. A lawyer is required to maintain the confidentiality of all attorney-client communications and may not reveal any information related to the representation of a client to third parties.254 The duty of confidentiality applies to all information 252. As other commentators have noted, when information is given out by a lawyer, com- munity members place extra trust that the advice given is correct and that the lawyer will follow her ethical mandates with respect to the information. See Marshall, supra note 242, at 184. Shauna Marshall argues that, despite the fact that a lawyer may provide a disclaimer that confidentiality does not attach and legal advice is not being provided, it is important to recognize that clients do place trust in the attorney—trust that whatever information given out about the housing laws is correct, trust that the lawyer will help guide the group toward effective self-help and lay advocacy strategies, and trust that the lawyer will not disclose information to any of the participants’ landlords. Id. 253. See STATE BAR OF CAL., PRO PER ASSISTANCE MANUAL: A MANUAL FOR LEGAL SERVICES AND PRO BONO PROGRAMS, OFFICE OF LEGAL SERVICES 15 (1994) (providing that, in pro se educational settings, “once the legal information is tailored to address an individual’s spe- cific situation, the practice of law is involved” (citations omitted)); see also Marshall, supra note 242, at 183 (arguing that if a proper disclaimer is made in a group educational session, the client could not “reasonably” believe that an attorney-client relationship was established); Helen B. Kim, Note, Legal Education for the Pro Se Litigant: A Step Towards a Meaningful Right to Be Heard, 96 YALE L.J. 1641, 1658–60 (1987) (warning that lawyers conducting classes for pro se litigants must take steps to disclaim an attorney-client relationship). 254. See generally MODEL CODE OF PROF’L RESPONSIBILITY DR 4-101(B)(2000); MODEL RULES OF PROF’L CONDUCT R. 1.6. Under the rule of confidentiality, an attorney may reveal confidential information if the client consents after full disclosure. See MODEL CODE OF PROF’L RESPONSIBILITY DR 4-101(C)(1), EC 4-2; MODEL RULES OF PROF’L CONDUCT R. 1.6(a). In addi- tion, under the Model Code of Professional Responsibility, the lawyer may reveal (1) the intention of the client to commit a crime and the information necessary to prevent the crime or (2) infor- mation necessary to establish or collect a fee. See MODEL CODE OF PROF’L RESPONSIBILITY DR 4- 101(C)(3), (C)(4). Under the Model Rules of Professional Conduct, confidential information may be revealed to the extent necessary (1) to prevent the client from committing a criminal act that 48:3 Cummings & Eagly 156 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 507 obtained during the course of representation, regardless of the source.255 Con- fidentiality rules can apply even in situations in which the lawyer receives confidential information, but does not take on representation or perform legal services for the prospective client.256 Perhaps the most perplexing confidentiality issues emerge when law- yers and organizers collaborate on a common project.257 A good illustration of how such ethical tensions could arise is found in the Workplace Project, which uses a multidisciplinary staff to provide legal services. When an indi- vidual comes to the Workplace Project for assistance, he first meets with an organizer and describes his workplace problem, which may or may not be amenable to a legal solution.258 The organizer describes the way that the Workplace Project operates, including its organizing mission. Next, the cli- ent meets with a nonlawyer counselor who also listens to the client’s prob- lem. In deciding how to respond to the client’s concerns, the counselor might consult with a lawyer on staff. If the client is found to have a com- plex problem, the client will meet with a team of advisors, including the attorney, organizer, and counselor.259 Through the course of these strategy sessions, the team decides whether legal action is necessary.260 If the client’s case is accepted for legal representation, the team continues to work together on the matter.261 would result in imminent death or substantial bodily harm or (2) in certain circumstances regard- ing a conflict, between the lawyer and client, such as criminal charges or a civil claim. See MODEL RULES OF PROF’L CONDUCT R. 1.6(b). 255. In addition, the ethical rule of confidentiality applies not only to the lawyer working on the case, but also to all of the lawyer’s associates in the legal office. See Galowitz, supra note 242, at 2135–36. 256. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 90-358 (1990) (“Infor- mation imparted to a lawyer by a would-be client seeking legal representation is protected from revelation or use under Model Rule 1.6 even though the lawyer does not undertake representation of or perform legal work for the would-be client.”); MCCORMICK ON EVIDENCE § 88, at 208 (Edward W. Cleary ed., 3d ed. 1984) (“Communications in the course of preliminary discussion with a view to employing the lawyer are privileged though the employment is in the upshot not accepted.”). 257. See, e.g., State Bar of Cal. Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 1995-141 (1995). [T]he provision of non-legal services [together with traditional legal services] presents the potential for the erosion of the privilege and the loss of confidentiality resulting either from a blurring of the distinction between the provision of legal and non-legal services or from the rendition of services by nonlawyers. Id. 258. See Gordon, supra note 13, at 443. 259. See id. at 443–44. 260. See id. at 444. 261. See id. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 157 508 48 UCLA LAW REVIEW 443 (2001) While the interdisciplinary team approach to working with the client is appealing for a variety of reasons,262 this form of advocacy raises serious questions regarding the protection of client confidentiality. In order to include nonlawyer organizers within the scope of confidentiality protec- tions, strict procedures—similar to those in place at a law firm—must be established before collaboration begins.263 Protocols regarding how con- fidential information must be handled should be reduced to writing so that all parties involved, including clients, organizers, and lawyers, understand the rules that apply to the collaboration.264 A lawyer who fails to create such procedures exposes herself to possible discipline.265 Furthermore, law- yers working together with organizers on legal matters must provide training for the nonlawyer organizers regarding confidentiality rules and explain that their work on legal matters must comply with the lawyer’s ethical respon- sibilities. At all times, the attorney must carefully supervise and remain responsible for the organizer’s work product and conduct.266 262. In recent years, there has been an increased interest in multidisciplinary practice. This trend is apparent throughout the legal profession, not only within the field of social change law- yering. See generally Gary A. Munneke, Dances With Nonlawyers: A New Perspective on Law Firm Diversification, 61 FORDHAM L. REV. 559 (1992); Deborah L. Rhode, Professionalism in Perspective: Alternative Approaches to Nonlawyer Practice, 22 N.Y.U. REV. L. & SOC. CHANGE 701 (1996). 263. While a lawyer may supervise nonlawyers on legal matters, such an arrangement should only be done under the strictest of circumstances in which the lawyer ensures that the nonlawyer’s conduct conforms with the professional obligations of the lawyer. See MODEL CODE OF PROF’L RESPONSIBILITY DR 4-101(D), 7-107(J) (2000); MODEL RULES OF PROF’L CONDUCT R. 5.3 (2000). 264. See Galowitz, supra note 242, at 2148. For both ethical and role issues, it is useful to identify and discuss possible conflicts at the beginning of the relationship. . . . [T]here should be a written document, translated into the languages of the office’s client population, that outlines for both the staff and the cli- ents how and when information will be shared. Id. (internal citations omitted). See generally State Bar of Cal. Standing Comm. on Prof’l Respon- sibility & Conduct, Formal Op. 1979-50 (1979) (providing that attorneys who work with nonat- torneys must ensure that these employees understand their obligations not to disclose client confidences or secrets and that any failure to guard against such disclosures could result in profes- sional discipline). 265. See D.C. Bar Legal Ethics Comm., Op. 282 (1998). The failure to put these measures into effect, or allowing the nonlawyer assistant to vio- late the obligations imposed by the Rules, can result in discipline of a lawyer supervising the employee so long as the lawyer has knowledge of the conduct and fails to take action to avoid or mitigate the violation. Id. 266. See MODEL RULES OF PROF’L CONDUCT R. 5.3 cmt. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to dis- close information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. Id. 48:3 Cummings & Eagly 158 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 509 Lawyers collaborating with organizers in this manner might ask the client to sign a waiver of confidentiality. However, consent to disclosure of confidential information is extremely problematic because such consent may only be sought if it is in the best interests of the client,267 there is full dis- closure,268 and the client’s consent is knowing and voluntary.269 Not only will it be difficult to explain to a client the many possible scenarios that could arise as a result of such a waiver, but it is also questionable whether such a waiver is voluntary when made in a situation in which organizing is a required condition to receiving legal services.270 One solution to the client confidentiality dilemma is to entirely sepa- rate the legal work from that of the organizing work and not involve any organizers in the lawyering process.271 Under such a model, clients must be informed of the potential consequences of sharing their confidential information with individuals outside the attorney-client relationship, such as organizers. In addition, steps should be taken to ensure that other aspects of the representation, such as the physical setup of client meetings and the location of client’s files, are conducive to maintaining the client’s privacy.272 267. See RESTATEMENT (THIRD) OF GOVERNING LAWYERS § 113 (1998) (“A lawyer may use or disclose confidential client information when the lawyer reasonably believes that doing so will advance the interests of the client in the representation.”). 268. Confidences may be revealed if the client consents after full disclosure. See MODEL CODE OF PROF’L RESPONSIBILITY DR 4-101(C)(1), EC 4-2; MODEL RULES OF PROF’L CONDUCT R. 1.6(a). 269. See Ass’n of the Bar of the City of N.Y. Comm. on Prof’l and Judicial Ethics, Formal Op. 1997-2 (1997) (providing that consent to a waiver of confidentiality must be voluntary); see also State Bar of Cal., Standing Comm. on Prof’l Responsibility and Conduct, Formal Op. 1989- 115 (1989) (providing that even a valid waiver would not “protect the lawyer from a malpractice action by the client if the conflict prevented the lawyer from performing competently” and that if the waiver were drafted to protect the lawyer from malpractice liability, “the mere execution of it would subject the lawyer to discipline”). 270. See Ass’n of the Bar of the City of N.Y. Comm. on Prof’l and Judicial Ethics, Formal Op. 1997-2 (noting that the attorney must consider whether the client “perceives, accurately or not, that in the absence of consent, he will not be able to secure legal assistance” and that the lawyer “‘should be particularly sensitive to any element of submissiveness on the part of their indigent clients’” (citation omitted)). 271. As a result of confidentiality and other related ethical concerns, KIWA has established a strict separation between the legal and organizing work. See Telephone Interview with Tori T. Kim, supra note 165. According to Kim, this separation of the attorney’s work from that of the organizing staff has resulted in practical benefits. For example, at one point an organizer was rep- resenting an individual in an administrative hearing, which is proper for nonlawyers in California. Opposing counsel believed that something the organizer did was ethically improper for an attorney and, incorrectly believing that Kim supervised the organizer, he threatened to report Kim to the State Bar. The fact that Kim’s practice was separate from KIWA protected her in this instance. See id. Other organizations, such as Make the Road by Walking, have also made the decision to separate legal work from that of the organizing work by not allowing organizers to participate in legal cases. See Telephone Interview with Andrew Friedman, supra note 177. 272. See STATE BAR OF CAL., supra note 253, at 16. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 159 510 48 UCLA LAW REVIEW 443 (2001) 3. Conflict of Interest and Scope of Representation The ethical rules of conflict of interest and scope of representation provide important guidance for law and organizing practitioners in deter- mining the proper path to follow when working with community members and organizations. It has long been held that the lawyer has a duty of loy- alty to her clients.273 Accordingly, the lawyer may not allow her personal interests, the interests of other clients, or the interests of third parties to interfere with her representation of the client.274 If interests of a third party potentially conflict, the lawyer may accept representation only if the lawyer reasonably believes that the client’s interests will not be negatively affected and if the client consents after full disclosure.275 Even if a third party is paying for the client’s legal services, the third party may not interfere with the attorney-client relationship.276 273. See CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 4.1, at 146 (1986) (“[T]he client-lawyer relationship in the United States is founded on the lawyer’s virtually total loyalty to the client and the client’s interests.”); MODEL RULES OF PROF’L CONDUCT R. 1.7 cmt. 1 (“Loy- alty is an essential element in the lawyer’s relationship to a client.”). 274. See MODEL CODE OF PROF’L RESPONSIBILITY EC 5-1 (2000). The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Nei- ther his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client. Id. (citation omitted). These rules also require that lawyers avoid allowing their professional judg- ment from being influenced by broader public interest goals that may be inconsistent with client interests. See, e.g., Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470 (1976) (discussing desegregation litigation as an example of public interest work in which the goals of the public interest litigators diverged from those of the plaintiffs). 275. See MODEL CODE OF PROF’L RESPONSIBILITY DR 5-101(A), 5-105(A); MODEL RULES OF PROF’L CONDUCT R. 1.7. 276. If a third party is paying the attorney for his services, the attorney may only continue with the representation if (1) the client consents after consultation, (2) the third party does not interfere with the lawyer’s representation of the client, and (3) the client’s confidential informa- tion is not revealed to the third party. See MODEL CODE OF PROF’L RESPONSIBILITY DR 5-107(A), (B); MODEL RULES OF PROF’L CONDUCT R. 1.8(f); see also MODEL CODE OF PROF’L RESPONSIBILITY EC 5-23. Some employers may be interested in furthering their own economic, political, or social goals without regard to the professional responsibility of the lawyer to his individual cli- ent. Others may be far more concerned with establishment or extension of legal principles than in the immediate protection of the rights of the lawyer’s individual client. . . . Since a lawyer must always be free to exercise professional judgment without regard to the interests or motives of a third person, the lawyer who is employed by one to represent another must constantly guard against erosion of his professional freedom. Id. (footnote omitted). See generally Green, supra note 244, at 1732–33 (finding that questions are frequently raised in the public interest context regarding the potential conflict caused by restric- tions and requirements imposed by those who support the work financially). 48:3 Cummings & Eagly 160 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 511 Under the scope of representation rules, the attorney must allow the client to articulate his objectives and to make any key decisions regarding his substantive legal rights.277 In contrast, the attorney has the responsibility of making final decisions regarding questions of legal strategy.278 However, the attorney must consult with the client regarding the means by which client objectives will be pursued.279 In general, “the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.”280 Tension between the interests of the client and the interests of the organizers is one of the principal ways in which ethical dilemmas arise. Consider, for example, a situation in which lawyers and organizers are work- ing together on a matter and a decision must be made regarding whether to file an action on behalf of a client in state or federal court. Each option offers advantages and disadvantages, but after learning that the potential for recovering damages is greater in federal court, the client expresses his desire to pursue the federal remedy. The attorney also feels that, as a matter of strat- egy, federal court is preferable because the federal law on the matter is more favorable to the client and the judges in federal court have a history of find- ing in favor of clients in similar situations. However, the organizers do not agree. The federal court is a good distance away from the community in which the events occurred, and the organizers believe that this will prevent mass mobilization around the suit. The organizers are adamant that the suit be filed in the local state court so that it can be used as the centerpiece of an organizing campaign. The attorney in the hypothetical is in a difficult situation. If she decides to file in state court, despite the fact that both she and the client believe that federal court is the preferable forum, she risks violating her ethical duties as an attorney. Although the state filing might be best from the organ- izing standpoint, the attorney must properly give the authority to make deci- sions regarding the goals and objectives of the case to the client, not to the organizers.281 Furthermore, she must not allow a third party to influence the 277. See MODEL CODE OF PROF’L RESPONSIBILITY DR 7-101(A), EC 7-7, 7-8; MODEL RULES OF PROF’L CONDUCT R. 1.2(a). 278. See MODEL CODE OF PROF’L RESPONSIBLITY EC 7-7; MODEL RULES OF PROF’L CON- DUCT R. 1.2 cmt. para. 1. 279. See MODEL RULES OF PROF’L CONDUCT R. 1.2(a). 280. Id. R. 1.2 cmt. para. 1. 281. Some scholars have argued that the lawyer should properly move beyond the interests and goals of the individual client to consider the effect of a decision on the entire community. See Zuni Cruz, supra note 243, at 575 (noting that the “lawyer should consider both the impact on the client and on the community”); see also Margaret Chon, Multidimensional Lawyering and Professional 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 161 512 48 UCLA LAW REVIEW 443 (2001) course of the litigation and must insist on pursuing the client’s goals zeal- ously, within the bounds of the law,282 applying her best tactical judgment as an attorney. Lawyers working with community-based organizations or organized groups of community residents are also likely to encounter conflicts of inter- est in their work.283 Although the rules are clear that lawyers representing entities are obligated by the dictates of the organization’s “authorized con- stituents,”284 commentators have noted that discerning who those constituents are in grassroots organizations can be difficult.285 This difficulty is heightened when lawyers representing organizations face situations in which members who once agreed on the group’s direction divide into competing factions with conflicting agendas. These internecine battles can escalate into power struggles over the group’s leadership. Lawyers advising groups in this sce- nario are often approached by group members complaining of the machina- tions of a competing faction and asking for advice on how to oust their rivals. If the lawyer in this case is not careful—which may happen if she has developed strong relationships with all of the group members over a Responsibility, 43 SYRACUSE L. REV. 1137, 1138–39 (1992) (arguing that lawyers have respon- sibilities not only to clients, but also to the courts and society). Other commentators have argued that, in the interest of “empowerment,” the lawyer must allow the community to dictate legal strategy. See, e.g., Zenobia Lai et al., The Lessons of the Parcel C Struggle: Reflections on Community Lawyering, 6 UCLA ASIAN PAC. AM. L.J. 1, 26 (2000) (contending that the community’s deci- sions on legal strategy are just as valid of those of the attorney). 282. See MODEL CODE OF PROF’L RESPONSIBILITY EC 7-19 (“The duty of a lawyer to his cli- ent and his duty to the legal system are the same: to represent his client zealously within the bounds of the law.”); MODEL RULES OF PROF’L CONDUCT pmbl. para. 2 (“As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”). 283. See, e.g., Stephen Ellmann, Client-Centeredness Multiplied: Individual Autonomy and Collective Mobilization in Public Interest Lawyers’ Representation of Groups, 78 VA. L. REV. 1103 (1992); Deborah L. Rhode, Class Conflicts in Class Actions, 34 STAN. L. REV. 1183 (1982); Southworth, supra note 18. 284. MODEL RULES OF PROF’L CONDUCT R. 1.13. 285. See Southworth, supra note 18, at 2464–65: If the client is an organization, whether formal or not, the lawyer is charged with repre- senting that organization rather than any of its constituents, and conflicts within the entity generally are to be resolved by reference to the organization’s internal structure. Where the organizational structure is clear, this doctrine offers relatively simple answers about how lawyers should discern the client’s interests and preferences; ordinarily, the lawyer looks to the officers for answers. Ethics doctrine, however, offers little guidance about representing groups that are just beginning to take shape and groups whose decision making processes fail to protect those whom the organization is designed to serve. In matters where the client organization lacks reliable internal governance procedures, law- yers are left to the ambiguous application of the “entity” theory to a group whose interests may be difficult to discern, whose constituencies may have conflicting interests, and/or whose members cannot agree, or have not yet agreed, on mechanisms for resolving disagreements. Id. 48:3 Cummings & Eagly 162 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 513 long period of time and has a personal stake in the organization’s work—she might find that her attempts to broker a truce place her in the middle of an irresolvable conflict. It has been suggested that conflict of interest problems could be avoided by carefully crafted client retainers. For example, the attorney could draft a “limited retainer” explaining to the client that the attorney will only con- tinue to represent him so long as the client’s interests do not diverge from broader public interest or community organizing goals.286 Alternatively, the client could be asked to sign a “prospective waiver” in which the client would waive any conflicts of interest that might evolve in the future between the lawyer-organizer and the client.287 Yet, whether such contracts would be found valid by a court of law remains unclear.288 The simplest strategy for averting conflicts is for the lawyer to avoid simultaneously serving as an organizer and a legal representative.289 4. Unauthorized Practice of Law The growing collaboration between lawyers and organizers on both legal and nonlegal matters necessitates a discussion of what is known as the “unauthorized practice of law” (UPL).290 UPL proscriptions consist of both 286. The American Civil Liberties Union has used such a retainer. See Marshall J. Breger, Accountability and the Adjudication of the Public Interest, 8 HARV. J.L. & PUB. POL’Y 349, 350–51 (1985). 287. See id. at 351. 288. See Acad. of Cal. Optometrists, Inc. v. Superior Court, 51 Cal. App. 3d 999, 1006 (1975) (finding that contracts that violate the professional ethics of an attorney are void). In recognition of the fact that Model Rule of Professional Conduct 1.7 on conflicts of interest is not sufficiently clear regarding whether such waivers are permissible, one of the goals of the ABA’s Ethics 2000 Commission is to clarify within the rule “when it is impermissible even to seek a client’s consent to a conflict of interest.” In addition, the comment “might be expanded to address such issues as prospective conflict waivers.” See Ctr. for Prof’l Responsibility, Ethics 2000—Proposed Work Plan—Issues to be Considered, available at http://www.abanet.org/cpr/wkpliss.html (last visited Jan. 1, 2001). 289. See Green & Matthews, supra note 221, at 1809 (suggesting that, in order to avoid potential conflicts, “a lawyer should not simultaneously serve as an organizer and as a legal representative”). 290. Unauthorized practice of law (UPL) rules have evolved primarily to “protect the public from the consequences of inexpert legal services.” ANNOTATED MODEL RULES, supra note 246, at 453; see also MODEL CODE OF PROF’L RESPONSIBILITY EC 3-1 (2000) (“The prohibition against the practice of law by a layman is grounded in the need of the public for integrity and competence of those who undertake to render legal services.”). But see Deborah L. Rhode, The Delivery of Legal Services by Non-Lawyers, 4 GEO. J. LEGAL ETHICS 209, 230 (1990) (arguing that the risk to con- sumers from unauthorized practice of law has been overstated). In addition, such laws are intended to protect “the integrity of the judicial system” and provide “a means for regulation of the [legal] profession.” ANNOTATED MODEL RULES, supra note 246, at 453. There is no single understanding of what it means to engage in the “practice of law.” See id. at 454; see also HARRY J. HAYNSWORTH, 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 163 514 48 UCLA LAW REVIEW 443 (2001) state laws criminalizing UPL activities on the part of nonlawyers as well as ethical rules that create disciplinary sanctions against attorneys who facili- tate UPL.291 Almost all states have UPL statutes that limit “the practice of law to those who have been licensed by the government and admitted to the state’s bar association after meeting certain requirements of education, examination, and moral character.”292 “UPL statutes usually proscribe three broad categories of activity: (1) representing another in a judicial or admin- istrative proceeding, (2) preparing legal instruments or documents that affect the legal right of another, and (3) advising another of their legal rights and responsibilities.”293 Under the ethical rules, the lawyer is prohibited from assisting nonlawyers in the performance of any activity that constitutes UPL.294 Several different aspects of law and organizing practice raise UPL con- 295 cerns. First, UPL issues emerge when lawyers train lay organizers on legal topics. For instance, several law and organizing projects provide educa- tional courses that teach community leaders about the law.296 When con- MARKETING AND LEGAL ETHICS: THE RULES AND RISKS 98 (1990) (describing how the deter- mination of whether something constitutes UPL is a question of law rather than an ethics issue); Rhode, supra, at 211 (discussing the different approaches to defining the unauthorized practice of law adopted by the states). Rather, courts have developed a variety of different explanations of what constitutes work that should be reserved for members of the bar. See ANNOTATED MODEL RULES, supra note 246, at 454. In general, courts examine situations on a case-by-case basis. See id. Some courts inquire whether the activity engaged in requires legal skill and knowledge greater than that of the average individual. See id. Other courts have adopted a standard that focuses on whether the matter in question concerns “binding legal rights or remedies.” Id. Yet another test asks whether the activity engaged in is one that is generally understood to be something performed by lawyers. See id. For a critical discussion of UPL rules, see Barlow F. Christensen, The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors—Or Even Good Sense?, 1980 AM. B. FOUND. RES. J. 159 (1980), and Joaquin G. Avila, Comment, Legal Paraprofessionals and Unauthorized Practice, 8 HARV. C.R.-C.L. L. REV. 104 (1973). 291. See Derek A. Denckla, Nonlawyers and the Unauthorized Practice of Law: An Overview of the Legal and Ethical Parameters, 67 FORDHAM L. REV. 2581, 2581 (1999). 292. Id. 293. Id. at 2588. 294. See MODEL CODE OF PROF’L RESPONSIBILITY DR 3-301(A); MODEL RULES OF PROF’L CONDUCT R. 5.5(b) (2000). 295. To date, discussions regarding nonlawyer practice have been limited to issues related to unrepresented persons, document preparers, paralegals, and legal technicians. See Green & Matthews, supra note 221, at 1814 (relying on a definition of nonlawyer practice found in an ABA Commission Report). 296. For example, LAFLA and the San Fernando Valley Neighborhood Legal Services both conduct such a course for workers to provide representation before the California Labor Com- missioner. In addition, these agencies have prepared a manual for workers, in English and Spanish, on the procedures of the Labor Commission. See Telephone Interview with Julia Figueira- McDonough, supra note 236. Other programs have conducted similar trainings. DELGADO, supra note 60, at 40 (describing the La Mujer Obrera project in El Paso); Coto, supra note 234, at 755– 57 (describing the LUCHA program in Miami); Eagly, supra note 4, at 451–72 (describing the 48:3 Cummings & Eagly 164 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 515 ducting these programs for nonlawyers, attorneys must be aware of their obligation to avoid facilitating UPL. Although attorneys can provide the nonlawyer students with valuable background information on legal issues,297 they must be careful not to engage in proscribed activities, such as instruct- ing nonlawyers on how to provide legal representation in court, prepare legal documents, or advise others regarding their legal rights. UPL can also occur when attorneys provide backup support for organizers advising com- munity members through means such as telephone hotlines, radio call-in pro- grams, or community fairs. If the lawyer finds that the organizer is dispensing individualized legal advice in these forums and does nothing to prevent it, this could constitute the facilitation of UPL in violation of the ethical rules. Finally, UPL concerns arise when lawyers and organizers collaborate on a legal matter. Although an organizer can legitimately work with a lawyer as a legal assistant, the lawyer must carefully delegate tasks and remain ultimately responsible for the organizer’s work product.298 Moreover, the attorney must ensure that the nonlawyer complies with the lawyer’s ethical standards. If the lawyer fails to do this and the nonlawyer engages in unsupervised legal practice, the lawyer exposes herself to possible disciplinary sanctions. As this discussion demonstrates, attorneys working in interdisciplinary law and organizing contexts face significant ethical challenges. Indeed, as many commentators have noted, the ethical rules are so restrictive that they have largely inhibited lawyer collaboration with persons trained in other areas.299 Under such an ethical regime, law and organizing practitioners Women’s Law Project of the Legal Assistance Foundation of Chicago); Gordon, supra note 13, at 428–37 (describing the Workplace Project). 297. Indeed, the ethical rules encourage attorneys to educate laymen on the workings of the law. See MODEL CODE OF PROF’L RESPONSIBILITY EC 2-2 (“The legal profession should assist lay- persons to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that fre- quently arise.”). 298.See ABA Comm. on Ethics and Prof. Responsibility, Informal Op. 1274 (1973) (“Use of legal assistants such as the ‘senior advocates’ is permissible when the lawyer delegates the tasks and remains responsible for their work.”). 299. See Galowitz, supra note 242, at 2145 (“Generally, the practice of the legal profession itself reflects an individualistic, non-collaborative view.”). Some commentators have even sug- gested that the current structure of the ethical rules makes lawyer-nonlawyer partnerships impossi- ble: “true multiprofessional offices remain beyond the range of feasibility, despite the fundamental appeal of the concept of holistic problem solving centers.” Munneke, supra note 262, at 573. In recognition of the need for expanded collaboration in the legal field, the ABA’s Special Com- mission on Multidisciplinary Practice is examining possible changes to Model Rules of Professional Conduct 5.4 and 5.7 that would enhance the ability of lawyers to work more closely with nonlaw- yers. See Michael Jonathan Grinfeld, A Tangled Web, CAL. LAW., June 2000, at 39, 39–40. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 165 516 48 UCLA LAW REVIEW 443 (2001) must pay close attention to how they structure relationships with their organizing counterparts and vigilantly monitor their involvement in grass- roots activities. CONCLUSION: TOWARD A NEW SOCIAL CHANGE PRAGMATISM The law and organizing movement has energized discussions of pro- gressive lawyering by outlining a community-oriented approach to social change that links legal advocacy with grassroots organizing efforts. The theoreticians and practitioners of law and organizing have developed a model that privileges movement politics over litigation strategies and locates the seeds of social transformation squarely within marginalized communities. Rather than remaining entrenched in traditional poverty law practice, law and organizing proponents have highlighted innovative techniques designed to foster community empowerment. This Article has reviewed the evolution of the nascent law and organ- izing movement and identified specific contexts in which the law and organizing model has been successfully applied. Specifically, in the areas of workers’ rights, environmental justice, and community development, the combination of organizing techniques with more traditional forms of legal advocacy has led to the development of strategies that have effectively redressed problems faced by low-income constituencies. For example, law and organizing practitioners have succeeded in increasing the wages of poor workers, creating job training and placement programs for the unemployed, and protecting communities of color from environmental contaminants. However, despite the broad appeal of law and organizing, the movement is still in its early stages. Although the advantages of law and organizing have been presented in the academic literature, the actual practice has not yet been tested in a variety of contexts, scrutinized by reflective practitioners, and evaluated by critical scholars. This paucity of analysis has resulted in wasted resources, client dissatisfaction, and lawyer disillusionment. In order to initiate a critical reflection on law and organizing, this Article has highlighted the challenges that have emerged from this type of work. In particular, this Article has argued that law and organizing prac- titioners need to pay special attention to the distinctions between different forms of organizing strategies, develop mechanisms to connect local organizing to broader institutional reform, and be aware of the possibility that organizing practice can reinforce group hierarchy. Additionally, advocates must negotiate tensions in law and organizing practice that can lead to decreased client services, lawyer-organizer role confusion, and client coercion. Finally, law and organizing practitioners confront a series of 48:3 Cummings & Eagly 166 CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) Law and Organizing 517 practical and ethical dilemmas in implementing their programs that demand creative and well-informed responses. As law and organizing continues to evolve as a form of poverty law practice, a more focused effort must be made to evaluate its strengths and weaknesses, examine its tensions, and use these analyses to chart new direc- tions for practice. Future scholarship in this area should address the struc- tural, practical, and ethical concerns raised in this Article. In the end, the dynamism generated by law and organizing advocates should continue to infuse debates about the future of progressive lawyering and the contours of legal pedagogy. However, this dynamism should be tempered by a thought- ful consideration of the difficulties of this approach. Most significantly, law and organizing should not be promoted as an idealized model for producing meaningful social change. Instead, law and organizing should be viewed as an important tool—albeit one fraught with its own inherent limitations and contradictions—that practitioners can use to complement more conventional legal strategies. With this understanding, progressive lawyers can begin to move away from one-dimensional modes of advocacy and toward a more pragmatic, multifaceted vision of social change practice. 48:3 Cummings & Eagly CummingsEagly HCRFinal.doc (02/02/01 12:39 AM) 167 168 California Law Review Volume 95 | Issue 5 Article 3 10-31-2007 Public Interest Lawyers and Resistance Movements Sameer M. Ashar [email protected] Follow this and additional works at: http://scholarship.law.berkeley.edu/californialawreview Part of the Law Commons Recommended Citation Sameer M. Ashar, Public Interest Lawyers and Resistance Movements, 95 Cal. L. Rev. 1879 (2007). Available at: http://scholarship.law.berkeley.edu/californialawreview/vol95/iss5/3 Link to publisher version (DOI) http://dx.doi.org/https://doi.org/10.15779/Z389412 This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact [email protected]. 169 170 Public Interest Lawyers and Resistance Movements Sameer M. Ashart INTRODUCTION A major strand of social justice activism, both within and outside the U.S., finds purpose in opposition to the economic, political, and social conditions of globalization and neoliberalism. In these campaigns, targeting both the state and powerful private entities, these numerous, loosely-linked movements of resistance1 both confront and creatively make use of legal structures, including courts, elected officials, and regulatory agencies. 2 The adversarial campaign for Copyright C 2007 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t Assistant Professor of Law and Director of the Immigrant and Refugee Rights Clinic, City University of New York (CUNY) School of Law. Thanks to Muneer Ahmad, Anthony Alfieri, Susan Bryant, Janet Calvo, Shruti Gohil, Jennifer Gordon, Saru Jayaraman, Kevin Johnson, Stephen Loffredo, Gerald Lopez, Louise Trubek, and Michael Wishnie for their comments and encouragement. Special thanks to Scott L. Cummings for his engagement in this project and to Anand Das, Mary Louise Frampton, Angela Harris, Margaretta Lin, and Jeff Selbin for their work in organizing the conference at which this article was presented. I also appreciate the support of the PSC-CUNY Research Foundation, the CUNY School of Law Professional Development Committee, and Deans Kristin Booth Glen, Mary Lu Bilek, and Michelle Anderson of CUNY and Dean Karen Rothenberg of the University of Maryland School of Law, as well as the able research assistance of Jota Borgmann, Eileen Choi, and Hollis Pfitsch. This article is dedicated to the late Floriberto Hernandez, who initiated the campaign described in this article and passed away suddenly, before its successful completion. It is also dedicated to Floriberto's colleagues at the Restaurant Opportunities Center of New York, including Saru Jayaraman, Fekkak Mamdouh, and Sekou Siby, who made the work described below possible. I. See Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 CALIF. L. REV. 741, 763-64 (1994) (citing EDWARD SAID, CULTURE AND IMPERIALISM 209-20 (1993) (defining "resistance culture" as including both the reconstitution of the culture and identity of a subordinated population and an intervention into the dominant culture in efforts to transform it)). 2. Critics call this structural framework "liberal legalism." See Wendy Brown & Janet Halley, Introduction, in LEFT LEGALISM/LEFT CRITIQUE 5-25 (Brown & Halley eds., 2002) [hereinafter LEFT LEGALISM]. The framework is animated by the political vision of classical liberalism-"democratic constitutionalism rooted in abstract individualism," id. at 5-and married to the implementing force of legalism, which "translates wide-ranging political questions into more narrowly framed legal questions." Id. at 19. 1879 171 1880 CALIFORNIA LA W REVIEW [Vol. 95:1879 immigrant workers in New York against a corporate chain of high-end restaurants that began in August 2003 and lasted eighteen months, is the subject of this article. It included a range of legal and extralegal pressure tactics initiated by both sides, including direct action protests, lawsuits in state and federal court, and charges before the National Labor Relations Board. It ended with the negotiation of a comprehensive settlement agreement between the worker-members of the Restaurant Opportunities Center of New York (ROC- NY)-a worker center based in Manhattan-and the corporation. Part I offers a brief description of the socio-economic landscape in which immigrant workers labor in U.S. urban centers, with a particular focus on workers in the restaurant industry. Part II describes the key players-the ROC- NY organizers, the lawyers and law students of the CUNY Immigrant and Refugee Rights Clinic, and the restaurant workers themselves-and provides a short history of the campaign. Embedded in this section is a discussion of the limits and promise of legal remedies in improving the conditions of work for immigrant labor. In Part III, I define the parameters of the role that public interest lawyers played in the campaign. This role definition is of particular interest to me because progressive public interest lawyers have struggled in recent years with critiques of their work from both ends of the political spectrum 3 and have received diminished institutional support for the legal representation of the poor.4 Other scholars have described encounters between resistance movements and law in great detail and with rich analysis.5 While the broader implications and limitations of "liberal legalism" inform the backdrop of this article, this article primarily focuses on progressive public interest lawyers-the conflicted agents of the legal system, sympathetic to the methods and goals of resistance movements but bound by the forms of the legal establishment. This article offers a study of one campaign in which lawyers collaborated with a resistance movement and examines both the dangers and the promises of this approach to public interest lawyering. 3. See Martha Minow, Lawyeringfor Human Dignity, 11 AM. U. J. GENDER SOC. POL'Y & L. 143 (2002-2003) (discussing the challenges to progressive public interest lawyers in the present historical moment); Martha Minow, PoliticalLawyering: An Introduction, 31 HARV. C.R.-C.L. L. REV. 287 (1996). 4. See Marc Galanter, "Old and In the Way ": The Coming DemographicTransformation of the Legal Profession and Its Implicationsfor the Provision of Legal Services, 1999 Wisc. L. REV. 1081, 1103-04 (1999) ("In the course of fifteen years [between 1982 and 1997], the relative share expended on civil legal services for the poor was halved." Id. at 1104.). 5. See, e.g., Balakrishnan Rajagopal, Limits of Law in counter-hegemonic globalization: the Indian Supreme Court and the Narmada Valley struggle, in LAW AND GLOBALIZATION FROM BELOW: TOWARDS A COSMOPOLITAN LEGALITY 183-217 (Boaventura de Sousa Santos & Csar A. Rodriguez-Garavito eds., 2005) [hereinafter LAW AND GLOBALIZATION FROM BELOW]; JOEL HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM (1978). 172 20071 LAWYERS AND RESISTANCE 1881 I IMMIGRANT LABOR IN U.S. URBAN CENTERS A. The RestaurantIndustry in New York City Unlike many other sectors of the service economy, the restaurant industry is an important site for worker organizing due to its size and because it offers poor immigrant workers access to living wage jobs. The industry is the largest private sector employer in the U.S. and one of the largest contributors to job growth in New York. It encompasses a wide range of business establishments, from small proprietorships to multinational corporate entities, at both the high- and low-ends of the market.6 Immigrant workers from the global South-Latin America, Africa, and South and East Asia-provide the industry with the bulk of its workforce. This is true especially in the low-skill, low-wage strata, and in the high-end segment of the industry as kitchen workers (or the "back of house" workers), table bussers, and runners between the kitchen and the dining floor (or the "front of the house").7 Restaurant work provides a basic level of income, in which even "back of the house" workers earn salaries that may keep them above the poverty line and allow them to support their families. Eventually, some workers transition to other higher-paying occupations within the industry. The path to employment in the industry is undefined and informal. Employers recruit workers mostly by word-of-mouth and training is largely on- the-job. There is a very low rate of union penetration in the industry 8 and organizing workers is difficult in part because of the high turnover-new workers constantly arrive and workers are fired or change jobs frequently. Some employers use the workers' immigration status to maintain control over the workforce, resist organizing drives, and keep wages and benefits low-a practice particularly prevalent for the "back of the house" work that immigrants of color are generally relegated to the high-end segment of the industry. 6. National Restaurant Association, Restaurant Industry Facts, May 25, 2007, http://www.restaurant.org/researh/ind-glance.cfin (last visited Aug. 14, 2007). 7. See RESTAURANT OPPORTUNITIES CENTER OF NEW YORK & NEW YORK CITY RESTAURANT INDUSTRY COALITION, BEHIND THE KITCHEN DOOR: PERVASIVE INEQUALITY IN NEW YORK'S THRIVING RESTAURANT INDUSTRY 5-8 (2005) [hereinafter BEHIND THE KITCHEN DOOR], www.rocny.org/documents/RocNY final_compiled.pdf(last visited Aug. 14, 2007). 8. Less than one percent of the workforce in the restaurant industry in New York is unionized. See Sarumathi Jayaraman, ROCing the Industry: Organizing Restaurant Workers in New York, in THE NEW URBAN IMMIGRANT WORKFORCE: INNOVATIVE MODELS FOR LABOR ORGANIZING 143 (Sarumathi Jayaraman & Immanuel Ness eds., 2005) [hereinafter THE NEW URBAN IMMIGRANT WORKFORCE]. 173 1882 CALIFORNIA LAW REVIEW [Vol. 95:1879 B. Undocumented Workers and the Decline of Unionization Immigrant labor supports the restaurant industry in New York and a large portion of the workforce is undocumented. As of March 2004, there were 11.1 million undocumented immigrants. 9 Just over seven million undocumented immigrants were in the workforce, constituting about 4.9 percent of all U.S. workers. 10 Over sixty percent of undocumented workers work for less than twice the minimum wage, in contrast with only a third of all U.S. workers."I Undocumented workers constitute just under 10 percent of the forty-three million low-wage workers in the U.S. 12 Although there are cases of "super- exploitation" in which workers are enslaved or assaulted by their employers, most undocumented workers operate in everyday sweatshop conditions, including consistent underpayment of wages for regular hours and overtime, health and safety violations, and hierarchical relationships of power in the workplace marked by low-intensity verbal abuse, and racial and sexual harassment. 13 Although undocumented immigrants have been a part of the U.S. workforce throughout its history, the movement of workers across national borders has accelerated since 1982 as a result of economic crises in the global South and the growth of the service economy in the U.S. in the 1990s. These intensified migration patterns are one thread in the phenomenon of "economic globalization," which, according to economist Jagdish Bhagwati, "constitutes integration of national economies into the international economy through trade, direct foreign investment (by corporations and multinationals), short-term capital flows, international flows of workers and humanity generally, and flows of technology." 14 Most critiques of globalization are rooted in opposition to the "neoliberal" vision of globalization (also called the "Washington Consensus"), derived from the 1980s agreement between the International Monetary Fund, the World Bank, and the U.S. Treasury Department on a general set of policies imposed upon borrower nations in the developing world. The neoliberal program is one of fiscal austerity and cutbacks in social programs, privatization of nationalized industries, often in the area of natural resources such as water and precious metals, and market liberalization through lowered trade barriers and less government intervention in the workplace and in transactions between 9. JEFFREY S. PASSEL, PEW HISPANIC CENTER, THE SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S. 1 (2006), http://pewhispanic.org/reports/report.php?ReportlD=61 (last visited Aug. 14, 2007). 10. See generally id. 11. JEFFREY S. PASSEL, ET AL., UNDOCUMENTED IMMIGRANTS: FACTS AND FIGURES 2 (2004), http://www.urban.org/uploadedPDF/1000587_undoc-immigrants-facts.pdf (last visited Aug. 14, 2007). 12. See generally id. 13. See JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR IMMIGRANT RIGHTS 14-15 (2005). 14. See JAGDISH BHAGWATI, IN DEFENSE OF GLOBALIZATION 3 (2004). 174 2007] LA WYERS AND RESISTANCE 1883 private actors.15 As a result, economic and social conditions in developing nations have deteriorated since the program's inception. This "pushed" migrants north, largely to the U.S. and Europe. 16 The structural economic shift in receiver countries from manufacturing to service production combined with the strategies used by U.S. businesses to weaken labor solidarity have "pulled" migrants across borders without documentation.' 7 Further, the growth of the "informal economy"'18 in tandem with the expansion of service production in large urban cities created strong demand for low-wage workers in jobs characterized by contingency and insecurity. 19 This form of neoliberal globalization helped create the immigrant low- wage sector of the U.S. economy. The U.S. and other countries of the north undercut worker protection regimes at home and abroad. While the Washington Consensus was imposed by the IMF and the World Bank on the countries of the global South, governments in the global North reduced regulation of 20 employment relationships and undercut collective bargaining; 15. See JOSEPH E. STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS 53 (2002). During the transition from colonialism to independence, many countries in the global South adopted economic programs that were a mix of free market and governmental command and control policies. These newly independent nations sought to provide income support and other social benefits to the people, to control their own natural resources and essential industries through public ownership, and to aggressively intervene in relationships between employers and workers, especially in industries marked by prior colonial exploitation. Through a combination of internal failure due to corruption and cronyism, external pressure by private entities and lending institutions in the U.S. and Western Europe, and the collapse of the patron states of the Communist bloc, these countries suffered through a succession of economic crises. Policy-makers, economists, and multinational corporations in the global North were hostile to the efforts of these nations to erect legal walls around industries, natural resources, and cheap labor and gained the leverage necessary to impose the conditions of the Washington Consensus in the 1980s and 1990s. 16. See Rosemary J. Coombe, The CulturalLife of Things: AnthropologicalApproaches to Law and Society in Conditions of Globalization, 10 AM. U. J. INT'L L. & POL'Y 791, 797-801 (1995); Alejandro Portes & Jozsef Borocz, Contemporary Immigration: Theoretical Perspectives on its Determinants and Modes of Incorporation, 23 INT'L MIGRATION REV. 606, 607-09 (1989) (describing current migration as a product of historical patterns of contact and penetration between sending and receiving countries and criticizing push-pull theories that focus solely on contrasts in living standards or governmental action). 17. See Frank Munger, Conclusion: Democratizing Poverty, in LABORING BELOW THE LINE: THE NEW ETHNOGRAPHY OF POVERTY, Low-WAGE WORK, AND SURVIVAL IN THE GLOBAL ECONOMY 295 (2002). 18. See Saskia Sassen, The Informal Economy: Between New Developments and Old Regulations, 103 YALE L.J. 2289 (1994). 19. See id. at 2294-99 ("The groups of service industries that were the driving economic force in the 1980s were characterized by greater earnings and occupational dispersion, weak labor unions, and mostly unsheltered jobs in the lower-paying echelons." Id. at 2294.). 20. See Bruno Caruso, Immigration Policies in Southern Europe: More State, Less Market, in LABOUR LAW IN AN ERA OF GLOBALIZATION 299, 303 (Joanne Conaghan, et al. eds., 2002) (describing the interaction between enforcement of labor laws and immigration in southern versus Northern Europe) (hereinafter LABOUR LAW IN AN ERA OF GLOBALIZATION]. The Reagan Administration made no secret of its antipathy to organized labor and accelerated deregulatory initiatives in various industries. Funding of federal labor law enforcement in the U.S. has not kept up with inflation and increases in the numbers of covered employees and businesses. ANNETTE 175 1884 CALIFORNIA LAW REVIEW [Vol. 95:1879 simultaneously, undocumented immigration came to underpin the informal 2 economy. 1 In receiving countries, employers use pre-existing gender and ethnic hierarchies for structuring the workplace and creating relations of inequality between groups of workers.22 To avoid expulsion, undocumented immigrants often refrain from attempts to enforce their labor rights, while 23 employers do not report undocumented workers to immigration authorities. This informal, often unstated, mutual agreement between employer and employees works through word-of-mouth recruitment processes to perpetuate the chain of undocumented immigration to the global North 4 The movement of immigrants to the U.S. coincides with the growth of the economy unregulated by the government-that is the informal sector-in terms of worker protection, taxation, and, in some cases, even consumer protection. Legitimate employers subject to the full range of government regulation are increasingly intertwined with and resemble businesses in the informal sector, especially in the low-wage segment of the economy. 25 This change in the relationships between employers and employees in both the regulated and unregulated sectors of the economy is a result, at least in part, of the weakening union movement in the U.S. The declining power of labor unionism in the BERNHARDT & SIOBHAN MCGRATH, ECONOMIC POLICY BRIEF: TRENDS IN WAGE AND HOUR ENFORCEMENT BY THE U.S. DEPARTMENT OF LABOR, 1975-2004, (Sept. 2005), http://www.brennancenter.org/dynamic/subpages/downloadfile._8423.pdf (last visited Aug. 14, 2007) ("Our analysis indicates that over the past three decades, enforcement resources and activities of the U.S. Department of Labor have either stagnated or declined, at the same time that the number of workers and workplaces in the country has expanded. In combination, these two trends indicate a significant reduction in the government's capacity to ensure that employers are complying with the most basic workplace laws." Id. at 1.). 21. See Gordon, supra note 14, at 46 ("[U]ndocumented immigrants' fear of deportation and their lack of legal status make them particularly likely to gravitate toward the underground economy, made up of businesses that operate on cash with little regard for government regulations." Id. at 46.). 22. Occupational segregation was a focus of a successful deportation defense in In re Herrera-Priego, U.S. D.O.J. E.O.I.R. July 10, 2003 (Lamb, Immigration J.), available at http://www.lexisnexis.com/practiceareas/immigration/pdfs/web428.pdf (last visited Aug. 14, 2007) and discussed further by lead attorney Michael J.Wishnie, Introduction: The Border Crossed Us, 28 N.Y.U. REv. L & Soc. CHANGE 389, 389 (2004). The workplace was composed of Latino, Chinese, and Polish workers who did different kinds of work and were subject to varying levels of attention by immigration enforcement authorities during a workplace raid. See Laura Ho et al., (Dis)assemblingRights of Women Workers Along the Global Assembly Line: Human Rights and the Garment Industry, 31 HARV. C.R.-C.L. L. REV. 383 (1996) (discussing the low status of women workers on the economic ladder). See also Julie A. Su, Making the Invisible Visible: The Garment Industry's Dirty Laundry, I J. GENDER RACE & JUST. 405, 411 (1998) (describing the challenge of bridging Thai and Latino garment workers in opposition to exploitative employers). 23. See Michael J.Wishnie, supra note 23, at 389-94 (describing the correlation between labor disputes in workplaces and immigrant enforcement raids); Lori A. Nessel, Undocumented Immigrants in the Workplace: The Fallacy of Labor Protection and the Need for Reform, 36 HARV. C.R.-C.L. L. REV. 345,401 (2001). 24. See Caruso, supra note 21, at 311-12 (describing the situation in Italy). 25. See Gordon, supra note 14, at 48. 176 2007] LAWYERS AND RESISTANCE 1885 workplace throughout the second half of the twentieth century hinged on at least two factors: (1)the mobility of corporations and the implicit use by employers of a large mass of unorganized workers in developing countries to gain bargaining leverage over American unions, and (2) the transformation of manufactured production from fixed geographic contexts to more flexible, contingent, and multi-jurisdictional forms of production. 26 As capital has flowed south and highly unionized segments of the American economy has relocated to nations with cheaper labor costs, the importation of migrant27 workers from developing nations has become the de facto policy of the U.S. and accelerates the de-unionization of a workforce with limited collective bargaining power.28 The state simultaneously constructs heavily-policed borders29 and adopts a schizophrenic tolerance of undocumented workers in the U.S. 30 The specter of indiscriminately enforced immigration laws meets the needs of employers and weakens collective action among workers. 31 Finally, immigrant workers are excluded from full protection of U.S. labor laws or are hired under temporary work and subcontractor employment arrangements, further undermining organizing and preventing workers from holding 32 deep- pocketed employers liable for violations of labor and employment laws. 26. BEVERLY J. SILVER, FORCES OF LABOR: WORKERS' MOVEMENTS AND GLOBALIZATION SINCE 1870 3-5, (2003) (describing and then criticizing "race to the bottom" arguments). Although Silver argues against the inevitability of weakened labor movements, she indicates that the fundamental shift in the world economy, which prevents profits in the corporate centers of the global North from reaching mobilized working classes in newly industrialized nations of the global South may sow unrest and preempt labor-management cooperation regimes in manufacturing. Id. at 168-70. Labor in the service industries of the global North, such as restaurant workers, will instead achieve some measure of countervailing power through creative mobilization against highly profitable target employers, like high-end restaurant chains. Id. at 170- 73. 27. See infra text accompanying notes 43-47. 28. Frances Raday, The Decline of Union Power--StructuralInevitability or Policy Choice, in LABOUR LAW IN AN ERA OF GLOBALIZATION, supra note 20, at 353, 361-62 ("It is no secret that the concept of employment is a legal construct with a status element not wholly determinable by agreement between the parties. Hence, the possibility of using workers' services without entering into an employment relationship with them is as much a consequence of law as of economic factors") (citing George Gonos, The Contest Over "Employee" Status in the Postwar U.S.: The Case of Temporary Help Firms, 31 LAW & Soc. REV. 81, 83 (1997)). 29. David Graeber, The New Anarchists, in A MOVEMENT OF MOVEMENTS 202, 206 (Tom Mertes ed., 2004) ("[T]he neoliberal vision of 'globalization' is pretty much limited to the movement of capital and commodities, and actually increases barriers against the free flow of people, information, and ideas-the size of the US border guard has almost tripled since the signing of NAFTA.... This is another thing to bear in mind when people talk about the decline of 'sovereignty' in the contemporary world: the main achievement of the nation-state in the last century has been the establishment of a uniform grid of heavily policed barriers across the world." Id.). 30. See infra note 42. 31. See Graeber, supra note 29. 32. See infra text accompanying notes 120-124; Laura Ho et al., supra note 22, at 409-10; Bruce Goldstein et al., Enforcing Fair Labor Standards in the Modern American Sweatshop: Rediscovering the Statutory Definition of Employment, 46 UCLA L. REV. 983, 997-1002 (1999) 177 1886 CALIFORNIA LAW REVIEW [Vol. 95:1879 C. ImmigrationEnforcement and Immigrant Workers While undocumented workers like those ROC-NY organized often do not enjoy the protections of the labor and employment laws, they find themselves subject to increasingly stringent enforcement by immigration statutes. Recent enforcement initiatives by government agencies threaten immigrant workers with arrest and detention (local police authority to enforce federal immigration law),33 termination of employment (Social Security Administration's new proposed "no match" rules),34 and loss of the ability to drive to work (federal (describing the vertical disaggregation of the garment industry for the purpose of avoiding liability for legal violations). 33. In 2002, the Department of Justice reversed its long-held view that immigration enforcement is exclusively a function of the federal government and deemed local law enforcement officials to have "inherent authority" to enforce immigration law. See Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. PA. J. CONST. L. 1084, 1090-91 (2004); Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, 31 FLA. ST. U. L. Rav. 965, 1003 (2004) (The DOJ's position "creaties] a thousand borders-the result of allowing local authorities to decide for themselves whether to enforce immigration laws and then having those local authorities be bound by different state laws that affect their enforcement authority." Id.); After joint local-federal immigration raids, immigrant communities remain distrustful of local government agencies, including the police. Terry Golway, Back Into the Shadows, N.Y. TIMES, Feb. 20, 2005, § 14NJ, at 1; Local agencies are increasingly invoking the 1996 changes in the Immigration and Nationality Act to request federal training in immigration enforcement and are reporting non-citizens with minor offenses to immigration officials. Paul Vitello, Path to Deportation Can Start With a Traffic Stop, N.Y. TIMES, Apr. 14, 2006, at Al; Some police officers oppose such deputization practices. Joe Cantlupe, Proposal Targets Migrants' offenses; Police Say They Lack Resources to Make Arrests, SAN DIEGO UNION-TRIB., Nov. 29, 2003, at Al; The FBI database--to which state and local police have access-now holds immigration information in addition to criminal activity; police officers are encouraged to make immigration arrests, whether the infractions are criminal or civil, including arrests of student-visa violators. Wishnie, State and Local Police Enforcement, supra note 33, at 1095-97. The Court held in US. v. Brignoni-Ponce,422 U.S. 873, 887 (1975), that "Mexican appearance" was a "relevant factor" in an INS stop. Such racial profiling, a widespread practice in immigration enforcement, is extended to local police who cooperate with the federal government. Wishnie, State and Local Police Enforcement of Immigration Laws, supra, at 1102-05; Muzaffar A. Chishti, The Role of States in US. Immigration Policy, 58 N.Y.U. ANN. SuRv. AM. L. 371, 374 (2004) ("Local law enforcement officers, untrained in the complexities of immigration regulations, are more likely to use race or ethnicity as a substitute for reasonable cause." Id.). 34. In June 2006, U.S. Immigration and Customs Enforcement (ICE) proposed new rules regarding employers' responsibilities upon receipt of a letter from the Social Security Administration (SSA) indicating the lack of a match between an employee's social security number and government records. Safe-Harbor Procedures for Employers Who Receive a No- Match Letter, 71 Fed. Reg. 34281-01 (June 14, 2006) (to be codified at 8 C.F.R. § 274(a)). Under the pending rules, employers would be required to take a number of steps possibly leading to the termination of an employee. National Immigrant Law Center, DHS Announces It Has Finalized "Safe Harbor Procedures for Employers Who Receive a No-Match Letter" Rule, Aug. 10, 2007, http://www.nilc.org/immsemplymnt/SSARelatedInfo/ssa002.htm (last visited Aug. 15, 2007). If these steps are not taken within a certain period of time, the employer is assumed to have "constructive knowledge" of an employee's lack of authorization to work in the U.S. and could face fines and penalties. Id. These rules, if adopted, will provide employers with a legal justification for the termination of immigrant workers involved in organizing. Under current law, 178 2007] LAWYERS AND RESISTANCE 1887 and state changes in eligibility for driver's licenses). The 1996 amendments to the Immigration and Nationality Act, 36 as well as the heightened profile of immigration enforcement in local communities since 9/11, accelerated the detention and deportation of immigrants.37 Deportations rose 12 percent between 2005 and 2006 to 189,924, part of an overall 75 percent increase between 2000 and 2006.38 Since the 1996 amendments, immigration enforcement authorities focus on the detention and deportation of immigrants with criminal convictions, including legal permanent residents. This disproportionately impacts communities targeted by police enforcement activity. 39 After 9/11, the government targeted male Arab and South Asian Muslim immigrants through a series of enforcement initiatives with collateral effects in other communities. Most recently, immigration authorities re- SSA is not permitted to share "no-match" data with ICE. However, DHS is seeking access to SSA records for the purpose of more efficient border patrol enforcement. See Press Release, Office of the Press Secretary, U.S. Department of Homeland Security, DHS Announces Federal Regulations to Improve Worksite Enforcement and Asks Congress to Approve Social Security "No Match" Data Sharing (June 9, 2006), available at http://www.dhs.gov/xnews/releases/press_release._0925.shtn (last visited Aug. 14, 2007). 35. The Real ID Act requires that states confirm social security numbers or proof of ineligibility prior to issuing drivers' licenses. Pub. L. 109-13 § 202(c)(1)(C) 106 Stat. 231 (2005). See Raquel Aldana & Sylvia R. Lazos Vargos, "Aliens" in our Midst Post 9/11: Legislating Outsiderness Within the Borders, 38 U.C. DAVis L. REv. 1683 (2004) (discussing fear of arrest and deportation in immigrant communities as a result of passage of Real ID Act); Maria Pab6n L6pez, More than a License to Drive: State Restrictions on the Use of Driver's Licenses by Noncitizens, 29 S. I!!. U. L. J. 91 (2004) (survey of state restrictions on immigrant access to driver's licenses). 36. See Nancy Morawetz, Understandingthe Impact of the 1996 DeportationLaws and the Limited Scope of ProposedReforms, 113 HARv. L. REV. 1936 (2000). 37. See Sameer M. Ashar, Immigration Enforcement and Subordination: The Consequences of Racial Profiling After September 11, 34 CONN. L. REV. 1185, 1197 (2002); Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law after September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. ANN. SURv. AM. L. 295, 297-98 (2002); Approximately 13,000 Arab and South Asian Muslims have been placed in deportation proceedings since 9/11. Andrea Elliot, Study Finds City's Muslims Growing Closer Since 9/11, N.Y. TIMES, Oct. 5,2004, at B4. 38. Nina Bernstein, Immigrants Go from Farms to Jails, and a Climate of Fear Settles In, N.Y. TiMES, Dec. 24, 2006, § 1, at 21 (describing increased immigration enforcement activity). 39. See Morawetz, supra note 36, at 1945-46 ("The likelihood of deportation is greater in communities that are subject to elevated levels of police activity and in which people are more likely to be arrested and prosecuted." Id.). 40. See, e.g., 66 Fed. Reg. 48334-48335 (Sept. 20, 2001) (to be codified at 8 C.F.R. § 287.3(d)) (detention extended from 24 hours to 48 in general and to a "reasonable period of time" during national emergencies); Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities, 67 Fed. Reg. 19,508- 19,511 (Apr. 22, 2002) (to be codified at 8 C.F.R. §§ 236 and 241) (in communicado detention for legitimate law enforcement purposes); U.S. Immigration and Customs Enforcement, Fact Sheet, Changes to National Security Entry/Exit Registration System (NSEERS) (Dec. 1, 2003); Akram & Johnson, supra note 37, at 331 (noting that approximately 1000 immigrants were swept into custody in the days following 9/11); Ashar, supra note 37, at 1186-91 (describing arrest of detainee in a mosque); Elliot, supra note 37; Kevin R. Johnson, September 11 and Mexican Immigrants: Collateral Damage Comes Home, 52 DEPAUL L. REV. 849 (2003) (describing effects of recent enforcement initiatives in 179 1888 CALIFORNIA LA W REVIEW [Vol. 95:1879 on undocumented workers, mostly Latino, with an aggressive program focused 41 of workplace raids. Aggressive immigration enforcement policies and a weakened worker protection regime resulting from accelerated neoliberal globalization in the last twenty years left immigrant workers vulnerable to both the state and exploitative employers. Immigrant workers are trapped by their need to migrate across national borders for survival, as nations attempt to wall off their territorial boundaries and bear down upon those who have already crossed over. The enforcement-only legislation adopted in late 200642 is a continuation of a failed immigration policy. The U.S. Border Patrol doubled the number of agents in the Southwest region from 4,000 to 8,000 between 1994 and 1998. 43 During this time, the death toll of migrants at the border increased, the duration of migrants' stay in the U.S. increased, unauthorized immigration increased, and the use and cost of immigrant smugglers increased.44 Heightened intensity Latino immigrant communities); 78 No. 46 Interpreter Releases 1809, 1816 (Dec. 3, 2001) ("voluntary" interviews of 5000 young men from certain countries); James Stemgold & Diana Jean Schemo, A Nation Challenged: Foreign Students; 10 Arrested in Visa Cases in San Diego, N.Y. TIMES, Dec. 13, 2001, at B 1 (first arrests of immigrant students for violations of their visas); Dan Eggen, Deportee Sweep Will Start with Mideast Focus, WASH. POST, Feb. 8, 2002, at AOl (arrest of 6000 men from certain countries with final orders of deportation); DOJ Office of Inspector General, The Immigration and Naturalization Service's Removal of Aliens Issued Final Orders, Report No. 1-2003-004, Appendix B (Feb. 2003) (immigration violations entered into national criminal database to facilitate local enforcement of immigration law); 8 C.F.R. § 264.1 (forced registration of non-immigrants from certain countries); Nurith C. Aizenman & Edward Walsh, Immigrants Fear DeportationAfter Registration: Number of Mideast, Muslim Men Rises Sharply, WASH. POST, July 28, 2003, at A01 (around 80,000 men submitted to "Special Registration" and thousands put into deportation proceedings); Rights Working Group, Secret Hearings and Detentions, http://www.rightsworkinggroup.org/.q=SecretHearings (last visited Aug. 14, 2007) (hundreds of immigrants deported without due process). 41. See, e.g., Bernstein, supra note 38; Julia Preston, U.S. Raids 6 Meat Plants in ID Case, N.Y. TIMES, Dec. 13, 2006, at A24; Nicholas Riccardi & Nicole Gaouette, Employers' immigration pains, L.A. TIMES, Dec. 17, 2006, at 37. The crackdown on undocumented inunigrants coincided with deliberation in Washington, D.C. on comprehensive immigration reform and as the Bush Administration's guest worker proposals were attacked from the right by anti-immigrant politicians and organizations. Political performance, rather than actual threats to national security, seems to drive immigration enforcement at this time. See Muneer Ahmad, A Rage Shared by Law: Post-September 11 Racial Violence as Crimes of Passion, 92 CALIF. L. REV. 1261, 1317-27 (2004) (discussing the effect of post-9/l 1 governmental racial profiling on private hate crime perpetrators); David Cole, Enemy Aliens, 54 STAN. L. REV. 953, 954-59 (2002) (discussing sacrifice of the liberties of a minority group to further the purported security interests of the majority); Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. REV. 1575, 1582-83 (2002) (describing signals sent to the public by government law enforcement). Cumulatively, post-9/l I enforcement initiatives have eroded workers' right to free association and their ability to organize in the workplace. See also Ruben J. Garcia, Labor's Fragile Freedom of Association Post-9/JJ, 8 U. PA. J. LAB. & EMP. L. 283 (2006); Wishnie, supra note 33, at 1104. 42. See Secure Fence Act, Pub. L. No. 109-367, 120 Stat. 2638 (2006). 43. See THOMAS R. ELDRIDGE ET AL., 9/I1 AND TERRORIST TRAVEL: STAFF REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE U.S. 99 (Aug. 21, 2004). 44. See BELINDA 1. REYES ET AL., PUBLIC POLICY INSTITUTE OF CALIFORNIA, HOLDING THE LINE? THE EFFECT OF THE RECENT BORDER BUILD-UP ON UNAUTHORIZED IMMIGRATION 180 2007] LAWYERS AND RESISTANCE 1889 of immigration enforcement is a cyclical phenomenon, dependent upon a number of factors, including the state of the economy and actual and imagined threats to national security. 45 However, the basic framework of national territoriality remains unchanged,46 even as neoliberal globalization lowered barriers for the movement of capital and goods across borders. II A CASE STUDY OF ORGANIZED RESISTANCE: THE RESTAURANT OPPORTUNITIES CENTER OF NEW YORK The organizers and worker-members of ROC-NY, with the essential contributions of public interest lawyers, attached the face of a discrete corporate entity to the abstract macropolitical conditions described in the preceding part. The ROC-NY campaign against the restaurant corporation involved a number of actors and took many turns. A description of the main players in the campaign and the conduct of the campaign follows in the next sections. A. The Organizers The ROC-NY organizers envisioned the campaign with the workers who approached them and drove its progress through the eighteen month duration. They arose from the ashes of the World Trade Center to pursue an ambitious program of worker activism in the restaurant industry in New York City. The organizers drew from strategies established by preceding worker centers, especially in their use of law and lawyers, but also originated novel direct action and law reform techniques to advance their cause. 1. The Origins of ROC-NY In the aftermath of 9/11, the local of the Hotel Employees and Restaurant Employees International Union ("HERE"), which represented restaurant workers at Windows on the World at the top of the World Trade Center, started a support group for surviving workers and families. The leaders of the group transformed it from a source of emotional support to a model of collaboration between workers, organizers, and lawyers. Immigrant labor organizer Saru Jayaraman and three surviving Windows on the World workers 47 agreed in viii-xi (2002), available at http://www.ppic.org/main/publication.asp?i= 58 (last visited Aug. 14, 2007). 45. See Kevin R. Johnson, Open Borders, 51 UCLA L. REv. 193,244 (2003). 46. See MAE NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA (2004) ("[T]he interstate system, aimed at achieving order and peace, was based on 'crustacean' borders. That changed, among other things, how nation-states regulated migration. Rigid border controls, passports, and state restrictions on entry and exit became the norms for governing emigration and immigration." Id. at 10.). 47. ROC-NY Deputy Director Fekkah Mamdouh was a key member of the leadership 181 1890 CALIFORNIA LA W REVIEW [Vol. 95:1879 2002 to lead the new organization on the condition that they could undertake aggressive and targeted workplace justice campaigns. Additionally, the leaders expressed interest in originating a worker-directed research and public policy program. The union recruited Jayaraman because she created an innovative model of organizing and advocacy at the Workplace Project, founded by Jennifer Gordon in 1992.48 The story of immigrant workers in exurban Long Island, New York, embodied in the creation and development by Gordon and her colleagues of the Workplace Project, gained resonance in law and organizing circles as the phenomenon of immigrant labor spread to all comers of the U.S. and the labor movement grew to view immigrant organizing as necessary for its survival and growth. Jayaraman created a program that built on Gordon's original vision, drawing on an extensive study of various models of law and organizing across the country, and with her new colleagues at ROC-NY 49 adapted her team-based organizing model for New York's restaurant industry. The organization produced several successful early campaigns. In July 2002, a few months after the founding of ROC-NY, it launched its first campaign against the owner of Windows on the World. After 9/11, the owner moved quickly to open a new non-union restaurant in Times Square. 50 The team, a leader in the workplace at Windows, and a complement to Jayaraman, who had limited experience in the industry prior to 2002. 48. See Jennifer Gordon, We Make the Road By Walking: Immigrant Workers, The Wor place Project, and the Struggle for Social Change, 30 Harv. C.L.-C.R. L. Rev. 407, 428-37 (1995) (describing the founding of the Workplace Project). 49. See Saru Jayaraman, La Alianza Para La Justicia: A Team Approach to Immigrant Workers Organizing, in THE NEw IMMIGRANT URBAN IMMIGRANT WORKFORCE, supra note 8, at 85-104. Like Gordon, Jayaraman used popular education methods at the Workplace Project to expand the scope of what workers understood to be possible through solidarity and collective action. She also made clear that public policy reform, with the leadership of the workers themselves, was an explicit and early goal of her work at the Workplace Prqject, just as it had been for Gordon. See id. at 90-91; Gordon, supra note 13, at 115-41 (detailing Gordon's work). However, at the Workplace Project Jayaraman departed from a drop-in law clinic model in favor of more focused campaigns. Jayaraman organized teams of immigrant workers from multiple workplaces by industry. She proposed that a consensus be reached on a larger public policy campaign through discussion across teams. Individual workers would bring campaign proposals to the team, which would in turn consider several proposals and decide whether to initiate a given campaign. These were not the easiest cases or those that ensured the highest degree of worker self- help. Rather, they were chosen because the problems addressed were prevalent and oppressive in the industry, because the worker or workers who proposed the campaign compelled others to support them through their contributions and commitment to the group, or if the target employer was a bad actor of whom an example could be made through media work to raise rights consciousness in immigrant communities and standards of employment in the industry. Jayaraman also organized support from within the legal and labor fields for the Workplace Projects' goals. She recruited pro bono and public interest attorneys to support the campaigns through litigation and administrative advocacy. In addition, she worked extensively with the Association for Union Democracy against locals that were not responsive to complaints made by immigrant workers at union shops. 50. See id. at 145-46. 182 2007] LAWYERS AND RESISTANCE 1891 surviving formerly unionized Windows on the World workers were not welcomed at the Times Square establishment because it was a non-union restaurant. ROC-NY moved quickly and used a combination of direct action and media advocacy tactics to pressure the owner into hiring some of his former workers from the World Trade Center with a similar package of wages and benefits. Then, the organization worked with attorneys at the Puerto Rican Legal Defense and Education Fund (PRLDEF) and with the New York University Immigrant Rights Clinic (NYU-IRC) to target a famous diner frequented by prominent New Yorkers on the Upper Eastside. The parties also worked together for improving the working conditions at a greengrocer in Brooklyn. In both cases, ROC-NY and its allies obtained good results. The organizers and workers' committees of ROC-NY soon signaled the scope of their ambition by adding new strategies to their work. They moved forward with plans to open a worker-owned high-end restaurant. The cooperative would demonstrate the viability of a business model in which profits are shared throughout the job hierarchy. Early in ROC-NY's existence, and based on their analysis of the industry and their experience with the early campaigns, the organizers decided to focus their workplace justice campaigns on the high-end portion of the sector in New York, especially the corporate chains, on the theory that aggressive standard- setting at the top would have an industry-wide effect. 51 In tandem with the workplace justice campaigns, ROC-NY proposed legislation in the City Council that would strengthen enforcement of wage and hour laws in the restaurant industry. ROC-NY issued a 50-page industry analysis with policy recommendations in 2005, which provided the basis or "findings" for the legislation. 52 On the basis of the report, the organization initiated a dialogue with an employers' group, the New York State Restaurant Association.53 The legislation would allow workers to use violations of wage and hour laws to make the case for revocation of restaurant licenses granted by the city. The organization's ambitious agenda and its power grew quickly with each successive initiative and campaign. 2. The Worker Center Movement in the U.S. Upon its founding in 2002, ROC-NY joined a growing worker center 51. ROC-NY members were also key participants in the "$5.15 is Not Enough" Coalition with the Working Families Party, which succeeded in raising the minimum wage in New York in 2004 in spite of a gubernatorial veto. See Restaurant Opportunities Center of New York, Programs-Policy Work, http://rocny.org/programs-policywork.htm (last visited Aug. 15, 2007). 52. See ROC-NY, Proposed Responsible Restaurant Licensing Bill (Jan. 2007) (on file with author); BEHIND THE KITCHEN DOOR, supra note 7. See generally ROC-NY, Programs- Research Work, http://rocny.org/programs-researchwork.htm (last visited Aug. 15, 2007). 53. See Steven Greenhouse, In $8 Billion Restaurant Industry, a Study Finds Mostly 'Bad Jobs',N.Y. TIMES, Jan. 25, 2005, at B7. See also Leslie Casimir, Say Minoritiesget Worst Eatery Jobs, N.Y. DAILY NEWS, Jan. 25, 2005, at 9. 183 1892 CALIFORNIA LAW REVIEW [Vol. 95:1879 movement in the U.S., composed of community-based non-profit organizations that pursued localized economic justice campaigns outside the legal framework of the National Labor Relations Act (NLRA).54 Worker centers cropped up at the margins of the workforce, vastly dwarfed by the financial and political power, and legal standing of the unions. Organizers and workers came together in some cases in explicit opposition to unions-which remained officially anti- immigrant through the 1990s55-and in other cases to fill the empty space left by an institution in decline and under attack by employers and the state. Many worker centers harnessed cultural and ethnic solidarity within immigrant communities 56 to propel campaigns for social and economic justice. Organizers, without the institutional standing and outside of the regulatory framework limiting unions, 57 adopted more confrontational direct action tactics against employers, including public demonstrations and media advocacy targeted at customers and neutral suppliers and buyers.5 8 Additionally, worker centers were unafraid to engage in intra-community campaigns, challenging 54. See 29 U.S.C. §§ 151-69 (2000); JANICE FINE, WORKER CENTERS: ORGANIZING COMMUNITIES AT THE EDGE OF THE DREAM (2006); Alan Hyde, New Institutions for Worker Representation in the United States: Theoretical Issues, 50 N.Y.L. SCH. L. REV. 385 (2005). Boaventura de Sousa Santos notes the turn in the global North from working class parties and labor unions toward a plurality of modes of organization and methodologies with social transformative goals. Boaventura de Sousa Santos, Beyond Neoliberal Governance: The World Social Forum as Subaltern Cosmopolitan Politics and Legality, in LAW AND GLOBALIZATION FROM BELOW 29,43 (Boaventura de Sousa Santos & Crsar A. Rodriguez-Garavito eds., 2005). 55. See Marion Crain & Ken Matheny, Labor's Identity Crisis, 89 CALIF. L. REV. 1767, 1775, 1828-29 (2001); Jim Pope, Next Wave Organizing and the Shift to a New Paradigmof Labor Law, 50 N.Y.L. SCH. L. REV. 515, 533 (2005-06); The pro-immigrant stance of organized labor coincided with the election of John Sweeney in 1995. Peter T. Kilbom, Why Labor Wants The Tired and Poor, N.Y. TIMES, Oct. 29, 1995, at E3. Unions are now actively seeking immigrant members, directly and through immigrant organizations. See also Stephen Franklin, Farm union helps in recruitingand hiring immigrant workers, Hous. CHRON., Apr. 19, 2006, § Business, at 3; Steven Greenhouse, Labor Federation Forms a Pact with Day Workers, N.Y. TIMES, Aug. 10, 2006, at A18. 56. See Fine, supra note 54, at 5 (indicating that the worker center classification includes a range of organizations, including those serving African-Americans, mixed immigrant and non- immigrant populations, and workfare recipients but that the vast majority of the organizations serve immigrant communities). 57. See Julie Yates Rivchin, Building Power Among Low-Wage Immigrant Workers: Some Legal Considerationsfor Organizing Structures and Strategies, 28 N.Y.U. REV. L. & Soc. CHANGE 397, 410-16 (2004) ("[T]he [NLRA]'s strict regulation of organizing tactics may present difficulties for a workers' center, and even undermine the ability of a campaign to meet the center's overall goals. The NLRA prohibits secondary boycotts under most circumstances, places restrictions on picketing, and also limits the way in which racial issues can be addressed in union certification election campaigns." Id. at 410 (citations omitted)). 58. Congress, the courts, and the NLRB have sought to regulate labor organizations' secondary boycott, see 29 U.S.C. §158(b)(4)(B) (prohibiting union actions against third parties), and picketing activities. See also Int'l Hod Carriers Local 840, 135 N.L.R.B. 1153 (1962) (interpreting 29 U.S.C. § 158(b)(7) as placing restrictions on the time and purpose of pickets). Worker centers have successfully evaded the labor organization classification, and the corresponding legal limits placed on their campaign tactics, through effective defensive advocacy before the NLRB. See infra note 129. 184 2007] LAWYERS AND RESISTANCE 1893 immigrant employers who used race (or skin color), class, and caste-based hierarchies to keep workers in line. 59 Over time, unions adopted some of the workplace and community organizing methodologies of worker centers, as well as their emphasis on organizing immigrant workers and their use of confrontational tactics against employers, especially the unions that form the new Change to Win coalition. 60 Worker centers have been innovative at the margins of the field, outside of the bureaucratic strictures and biases of unions and the regulatory regime established by business and government to contain labor organizing. Law school clinics were among the first legal organizations to collaborate with worker centers. 6 1 In New York, the clinic in which I work-the City University of New York School of Law Immigrant and Refugee Rights Clinic (CUNY-IRRC)-has been engaged by worker centers such as Andolan Organizing South Asian Workers,62 Domestic Workers United, 63 ROC-NY, 59. The white male leadership of most unions through the 1990s downplayed race and gender-based concerns within the movement and at worksites. See Pope, supra note 56, at 530 ("Most union officials shied away from alliances with social movements like the civil rights movement and the women's movement, viewing them as threats both to the stability of collective bargaining relationships and to their own job security as aging white men at the helm of increasingly diverse and female organizations." Id. (citation omitted)). This stance together with the antipathy held by unions against immigrants, ensured that worker centers, such as Chinese Staff and Workers Association and Andolan Organizing South Asian Workers, would lead the fight against intra-community racism, classism, and caste-ism. 60. For background on Change to Win campaigns, see, e.g., William Glanz, Union Targets Janitorsfor Organizing, WASH. TIMES, Jan. 26, 2006 at CIO; Jim Newton, Hotel Campaign Signals Labor's Ascent in L.A., L.A. TIMES, Mar. 27, 2006, at 1. 61. The model of providing worker centers with outside legal counsel on federal litigation through clinical legal education was originated by Michael J. Wishnie and Nancy Morawetz, law professors and co-directors of the NYU School of Law Immigrant Rights Clinic (NYU-IRC), in early collaborations with Chinese Staff and Workers Association, National Mobilization Against Sweatshops, and Andolan. See also infra note 63. 62. Andolan, which means "movement" in several South Asian languages, is a community group of low-wage immigrant South Asian workers. Andolan seeks to empower its members by educating them about their workplace rights, advocating for living wages, raising public awareness surrounding abusive industry conditions--particularly in the areas of domestic, restaurant, and retail work, and litigating against exploitative employers. See Andolan, About Us, http://andolan.netlabout-us.htm (last visited Aug. 15, 2007). See also Albor Ruiz, Battling Diplo Abuse of Workers in Homes, N.Y. DAILY NEws, Oct. 7, 2004, at 4 (highlighting Andolan's campaign against diplomatic immunity, which shields diplomats from prosecution when they employ housekeepers and nannies and violate labor laws). 63. Domestic Workers United (DWU) represents members in an industry that includes more than 600,000 women in the greater New York Metropolitan area. DWU was founded by workers and organizers with the Women Workers Project of Committee Against Anti-Asian Violence. DWU engages in a variety of organizing and lobbying activities, including recent efforts to promulgate a standard domestic worker contract throughout New York that would provide for a living wage and dignified employment. See Chisun Lee, Domestic Disturbance, VILLAGE VOICE, Mar. 19, 2002, at 31-32, 35 (profiling DWU's attempts to organize domestic workers during recent rights awareness campaign); Ai-jen Poo & Eric Tang, Center Stage: Domestic Workers Organizing in the Global City, in THE NEW URBAN IMMIGRANT WORKFORCE 105-18, supra note 8; DWU Homepage, http://www.domesticworkersunited.org/ (last visited Aug. 15, 2007). 185 1894 CALIFORNIA LA W REVIEW [Vol. 95:1879 New York Taxi Workers Alliance, 64 and the Workplace Project in campaigns against exploitative conditions of work. Organizers enjoy working with law school clinics because students bring a high level of energy, focus, and progressive political commitments to the work. I have found that most collaborations with worker centers have significantly advanced my learning goals with students: (1) building a knowledge base in a substantive area of law; 65 (2) developing students' capability to define their role between the parameters set out in the rules of professional responsibility and the needs presented by the clients and organizers with whom we work; and (3) preparing students for contemporary public interest practice, including strategic campaign development and media and policy advocacy. 66 Overall, these collaborations have benefited all parties involved and the students have experience early in their careers with some of the complexities of the use of law to advance the interests of poor people. 3. Worker Centers and Lawyers Organizers, and the public interest lawyers with whom they work, view the use of law to advance collective action and social change with ambivalence and sometimes even hostility. 67 Worker centers' use of lawyers has been conditional and experimental, partly due to this shared skepticism about how law might undermine collective action, and it is therefore difficult to generalize about a single model of collaboration. For example, when organizers observed 64. The Taxi Workers' Alliance was founded in 1998 when it coordinated a massive 40,000 driver strike in New York City. See BiJu MATHEW, TAXI!: CABS AND CAPITALISM INNEW YORK CITY (2005); Somini Sengupta, Deploring GiulianiProposals, Cabbies Shun Faresfor a Day, N.Y. TIMES, May 14, 1998, at Al; Hilary Russ, Making Change: OrganizingDrivers, CITY LIMITS MAGAZINE, July-Aug., 2002, available at http://www.citylimits.org/contentlarticles/viewarticle.cfin?articleid=2787 (last visited Aug. 15, 2007). Currently, the Alliance represents approximately 6,000 membcrs and works to promote economic and civil rights for taxi drivers. In 2004, the Alliance successfully lobbied the NYC Taxi and Limousine Commission to increase taxi fares by 26%. See Michael Luo, Taxi Commission Backs a 26% Rise for Fares in City, N.Y. TIMES, Mar. 31, 2004, at Al. The alliance is currently involved in a campaign to block the installation of GPS trackers in all NYC taxi cabs. See Pete Donohue, DOI To Delay launch of Space Age Cabs, N.Y. DAILY NEWS, Mar. 20, 2006, at 3. The alliance was invited to join the New York City Central Labor Council in 2006. See Steven Greenhouse, Taxi Workers'Alliance May Join Labor Group, N.Y. TIMES, Nov. 14, 2006, at B3. 65. Wage and hour law is quite accessible to law students and relatively uncomplicated at its core. Further, the cases have allowed students to gain incremental proficiency in more challenging parts of the field, such as anti-discrimination law and the intersection of employment and immigration law. 66. There is much more to say on the benefits and challenges of these collaborations for clinical legal education and the development of public interest law and these arguments are partly the focus of my other scholarly work. 67. See Scott L. Cummings & Ingrid V. Eagly, After Public Interest Law, 100 Nw. U. L. REv. 1251, 1277-81 (2006); Scott L. Cummings & Ingrid V. Eagly, A CriticalReflection on Law and Organizing, 48 UCLA L. Rev. 443, 450-60 (2001). 186 2007] LA WYERS AND RESISTANCE 1895 that lawyers and individual legal action take workers' attention away from larger campaigns, the relationship is altered in both current and future campaigns. Filings, reports, and studies of worker centers indirectly reveal the wide range of lawyering activities nested, to varying degrees, within larger organizing strategies. These activities can be roughly classified into three categories of legal work: claim-centered, organizing-centered, and policy advocacy-centered. Lawyers did claim-centered work-legal advocacy with the aim of winning damages for individual or groups of workers who worked under unlawful conditions-in the earliest collaborations with worker centers and continue to do so with great success. Increasingly, lawyers have done organizing-centered work-legal advocacy to promote and defend workplace organizing and the tactical use of direct action protests against target employers-as worker centers have undertaken more ambitious campaigns with more sophisticated adversaries. Lawyers continue to engage in policy advocacy-centered work-legal analysis, drafting of reports and petitions, and lobbying to government agencies and elected officials-both at the behest of, and independent of, worker centers. The following examples are meant to illustrate rather than provide an exhaustive survey of the field: 68 (a) Claim-centered legal work Heightened awareness of degraded working conditions and the creative use of law to drive direct action and media campaigns by worker centers led to the revived enforcement of the Fair Labor Standards Act (FLSA)69 and state wage and hour laws. Numerous worker centers collaborated with lawyers to bring wage and hour actions on behalf of their members in federal, state, and local courts. Attorneys at the Asian American Legal Defense and Education Fund (AALDEF), working with the Chinese Staff and Workers Association (CSWA)70 in New York, and the Asian Pacific American Legal Center, working with the Garment Worker Center 71 in Los Angeles, successfully litigated to expand 68. Please note that this is a partial list and does not reflect all of the dedicated attorneys and organizations working to protect the rights of immigrant workers. 69. See 29 U.S.C. §201 etseq. 70. See generally Peter Kwong, Chinese Staff and Workers' Association: A Model for Organizing in the Changing Economy?, 25 Soc. POL'y 30 (1994). See also Steven Greenhouse, Lawsuit Accuses Fashion House of Running Sweatshops, N.Y. TIMES, June 8, 2000, at B10, (CSWA organized with the named plaintiffs to bring a class action lawsuit filed by AALDEF against Donna Karan); Andrew Hsiao, 100 Years of Hell-Raising: the Hidden History of Asian American Activism in New York City, VILLAGE VOICE, June 23, 1998, at 67 (CSWA instigated demonstrations against Street Beat, a sportswear company, in conjunction with a lawsuit filed by AALDEF). 71. See Victor Narro, Impacting Next Wave Organizing: Creative Campaign Strategies of the Los Angeles Worker Centers, 50 N.Y.L. SCH. L. REV. 465, 471-81 (2005-06). 187 1896 CALIFORNIA LAW REVIEW [Vol. 95:1879 manufacturers' liability for wage and hour violations by subcontractors in the garment industry. Lawyers, especially staff attorneys at the Legal Aid Society- Employment Law Center of San Francisco (LAS-ELC), limited the scope of the application of the 2002 Hoffman Plastic decision.7 2 There have been parallel efforts to limit the applicability of Hoffman7 in the context of employment discrimination cases. 3 (b) Organizing-centered legal work Lawyers filed Unfair Labor Practice charges pursuant to the NLRA against employers engaged in retaliatory actions against workers participating in worker center campaigns. Lawyers also attempted to defend nascent independent union organizing drives under the NLRA. First Amendment attorneys at the New York Civil Liberties Union and from several private law firms defended the rights of worker centers to engage in public demonstrations and also defended defamation actions using state provisions prohibiting "strategic lawsuits against public participation," or Strategic Lawsuit Against Public Participation (SLAPP) suits. 7 Lawyers and law students at CUNY-IRRC participated in "know your rights" programs with immigrants to help them enforce their own rights through negotiations with employers and pro se actions in small claims court. Lawyers at the MALDEF and the American Civil Liberties Union 72. See Singh v. Jutla & C.D. & R.'s Oil, Inc., 214 F.Supp.2d 1056 (N.D. Cal. 2002) (plaintiff represented by LAS-ELC, National Immigration Law Center, and pro bono attorneys from Brobeck, Bribeck, Phleger & Harrison, LLP; Hoffman Plastic does not bar undocumented immigrants from recovering back pay for work already performed); Christopher Ho & Jennifer C. Chang, Drawing the Line After Hoffman Plastic Compound, Inc. v. NLRB: Strategies for Protecting Undocumented Workers in the Title VII Context and Beyond, 22 HoFsTRA LAB. & EMp. L. J. 473,496 (2005) (discussing cases that limit the Hoffinan Plastic holding in context of FLSA, Workers' Compensation, and tort cases). See also Flores v. Amigon, 233 F.Supp.2d 462 (E.D.N.Y. 2002) (plaintiff represented by Urban Justice Center and civil rights firm Koob & Magoolaghan); Zeng Liu v. Donna Karan Int'l, Inc., 207 F.Supp.2d 191 (S.D.N.Y. 2002) (plaintiff represented by AALDEF & employment firm Outten & Golden). 73. See Rivera v. NIBCO, Inc., 364 F.2d 1057, rehearingand rehearingen banc denied, 384 F.3d 822 (9th Cir. 2004), cert. denied, 544 U.S. 905 (2005) (LAS-ELC represented plaintiffs and NELP and National Employment Lawyers Association submitted amicus briefs; discovery of immigration status would chill immigrant workers' exercise of legitimate right to remedies under Title VII); Ho & Chang, supra note 72, at 497-517 (discussing Title VII cases interpreting Hoffman Plastic and legal theories to limit its holding). 74. See N.Y. C.P.L.R. 3211, 3212 (McKinney 2007); N.Y. Civ. RIGHTS LAW §§ 70-a, 76-a (McKinney 2007). 75. We have partnered with the Latin American Workers Project in Brooklyn and the Queens Community House ESL program in Jackson Heights, New York. 188 20071 LAWYERS AND RESISTANCE 1897 (ACLU) litigated on behalf of the National Day Laborer Organizing Network against anti-solicitation and anti-loitering laws in numerous localities. 6 (c) Policy advocacy-centered legal work Attorneys at organizations such as the National Employment Law Project (NELP) and the National Immigration Law Center (NILC) led impact litigation (both affirmative and defensive, in the instance of Hoffman Plastic and the cases that have followed) and policy-making initiatives. Additionally, they documented the activities of7 7worker centers and the impact of legal changes on immigrants. Attorneys and law students with NYU-IRC and CUNY-IRRC served as legislative counsel to worker centers such as Domestic Workers United 78 and ROC-NY, respectively. Attorneys at NELP, 79 ACLU,80 NYU-IRC, 8' and a student labor 76. See Victor Narro, Impacting Next Wave Organizing: Creative Campaign Strategies of the Los Angeles Worker Centers, 50 N.Y.L. SCH. L. REV. 465, 487-95 (2005-06). 77. See, e.g., NELP, Holding the Wage Floor: Enforcement of Wage and Hour Standards for Low-Wage Workers in an Era of Government Inaction and Employer Unaccountability (2006), http://www.nelp.org/docUploads/Holding%20the%20Wage%2OFloor2%2Epdf (last visited Aug. 15, 2007) (providing data on violations common to specific industries and suggesting recommendations for legislative and organizing campaigns); NELP, Analysis of Certain Key provisions of HR 4437 (Sensenbrenner-King) Impacting Worker Centers (2006), http://www.nelp.org/docUploads/analysis%20oP/20certain%20key/o2Oprovisions%2Epdf (last visited Aug. 15, 2007) (highlighting an expanded definition of smuggling and preemption of state and local laws designed to support day labor centers among other provisions). See generally NELP, Immigrant Worker Project, http://www.immigrant- nonstandard.org/page.php?section=immigrant&page=index (last visited Aug. 15, 2007); NILC Immigrants & Employment Index, http://www.nilc.orglimmsemplymnt/index.htn (last visited Aug. 15, 2007) (including a Hoffman amicus curiae brief and resource material for immigrant workers, organizers, and legal advocates). 78. NYU-IRC provided legislative counsel to DWU on a new municipal law that strengthened local regulation of employment agencies for nannies. See Steven Greenhouse, New Protectionsfor Nannies are Approved by Council, N.Y.TMES, May 15, 2003, at B3. 79. See Inter-American Court of Human Rights (IAC) OC-18 (2003), translated excerpt of decision available at http://www.immigrant- nonstandard.org/page.phpsection=immigrant&page=human-rights-translated (last visited Aug. 15, 2007) (amicus brief filed by NELP, Professor Sarah Cleveland of University of Texas School of Law, Professor Beth Lyon of Villanova University School of Law, NILC, and Northwest Worker Justice Center; case brought by Mexico against U.S. in reaction to the Supreme Court holding in Hoffman Plastic and the consequent limits on rights of immigrant workers in U.S.). 80. See Petition Alleging Violations of the Human Rights of Undocumented Workers by the U.S. (Nov. 1, 2006), available at http://www.aclu.org/images/asset-upload file946_27232.pdf (last visited Aug. 15, 2007) (filed with IAC by ACLU, University of Pennsylvania Transnational Legal Clinic, and NELP on behalf of immigrant workers pursuant to the Universal Declaration of Human Rights). 81. See Michael J. Wishnie, Immigrant Workers and the Domestic Enforcement of InternationalLabor Rights, 4 U. PA. J. LAB. & EMP. L. 529, 543-57 (2002); Mexico NAO No. 01- 01 (Feb. 2002) (petition filed pursuant to North American Agreement for Labor Cooperation 189 1898 CALIFORNIA LAW REVIEW [Vol. 95:1879 rights organization at Yale Law School 82 collaborated on petitions with worker centers on behalf of workers before international organizations, such as the Inter-American Court of Human Rights, and tribunals created under procedures set out in trade-based treaties, such as the labor side agreement to the North American Free Trade Agreement. 83 These attorneys also litigated international law claims on behalf of immigrant8 4 workers in domestic courts through the Alien Tort Claims Act. The collaborations produced particular dynamics in the tripartite relationship between organizers, workers, and attorneys with varying levels of 8 5 associated collective action, client empowerment, and lawyer accountability. In some cases, lawyers developed strategies pursued by worker centers. In other cases, organizers and workers led the way. Worker centers employed lawyers both affirmatively and defensively. Nearly all of the lawyers involved in the early collaborations with worker centers were public interest lawyers, 8 6 employed by non-profit organizations or associated with law school clinics. B. The Lawyers After organizers are approached by individuals or groups of workers with [NAALC] by CSWA and National Mobilization Against Sweatshops [NMASS] against New York State Workers' Compensation Board due to delays in the adjudication of injured workers' claims). 82. See Mexico NAO No. 9804 (1998), Canada NAO No. 9802 (1998) (petitions filed pursuant to the NAALC by workers' rights coalition against the collaboration between U.S. immigration and labor enforcement agencies). 83. See Katherine Van Wezel Stone, Labor and the Global Economy: Four Approaches to Transnational Labor Regulation, 16 MICH. J. INT'L L. 987, 1024-25 (1995) (critique of cross- border monitoring approach used in NAALC). The International Labor Rights Fund (ILRF), which collaborates extensively with organized labor, and Professor Lance Compa of the Cornell School of Industrial and Labor Relations were important progenitors of the use of international law and tribunals on behalf of U.S. workers. See generally Lance Compa, UNFAIR ADVANTAGE: WORKERS' FREEDOM OF ASSOCIATION IN THE U.S. UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS (2004); ILRF campaign materials, availableat www.laborrights.org (last visited Aug. 15, 2007). 84. See Wishnie, supra note 81, at 538-43. 85. These categories are derived from the analysis set out by Cummings and Eagly, see supra note 67, After Public Interest Law at 1268-82. 86. This is changing as more private law firms become involved in class action wage and hour litigation. E.g., Outten & Golden, Shelly's New York/Fireman Hospitality Group Withheld Tips, Minimum Wages, and Overtime Case, http://www.outtengolden.com/firm/practice/class- actions/#225 (last visited Aug. 15, 2007) (Outten & Golden and co-counsel AALDEF are currently representing worker-members of ROC-NY in a class action against an upscale Midtown Manhattan restaurant); Leiff Cabraser, Practice Areas: Employment Law, http://www.lieffcabraser.com/practice-areas.htm#employment (last visited Dec. 26, 2006) (describing 2002 case in which the firm represented assembly line workers at Perdue Farms chicken plants and settled for $10 million). However, public interest lawyers will remain attorneys of first resort for worker centers for reasons set out in Section III.B, infra (noting willingness of lawyers for worker centers to resist conservative interpretations of the professional responsibility rules). 190 20071 LAWYERS AND RESISTANCE 1899 grievances that advance the larger organizational goals, formulate a campaign, and develop the legal components of the planned initiative, they survey the landscape and usually scramble to identify effective and politically progressive lawyers with whom to collaborate. I highlight the identity and commitments of members of the legal team in the ROC-NY campaign, the broader landscape of public interest law in which organizers recruit lawyers, and the legal constraints under which the campaign operated to further develop an understanding of the collaboration between organizers, workers, and lawyers in this instance. 1. Clinic as Lawyer In August 2003, ROC-NY approached CUNY-IRRC about joining the campaign and representing the workers from the corporate restaurant chain in a wage and hour action. The employment law landscape at public interest legal organizations was fairly limited at that time. PRLDEF and AALDEF had individual attorneys focused on employment matters. However, the Legal Aid Society of New York (the largest provider of legal services to the poor in the city), the New York Legal Assistance Group, and Legal Services of New York (a provider with offices throughout the city) had yet to start employment law units. NELP was involved in a large grocery delivery workers case and national support activities (discussed above), but could not offer individual representation for worker center campaigns. ROC-NY confronted a limited choice of legal counsel in part because of federal prohibition on funding for legal services for undocumented immigrants and for any kind of litigation other than direct service provisions to individual clients. 87 The strategic and triaged focus of legal services on benefits issues for the very poor, rather than employment law matters for the working poor, exasperated the prohibition on funding for legal services. 88 NELP and NILC were in the midst of a challenging reinvention from serving as back-up centers for legal services offices to becoming independent, self-funded providers of legal services. Additionally, the legal defense funds modeled on the formative NAACP-LDF example focused on civil rights issues, such as employment discrimination and school desegregation, before focusing more centrally on legal services for immigrants and workers. Although other state law schools were under pressure to abandon confrontational legal advocacy that departed from individual direct service provision, 89 and the Pataki and Giuliani administrations tried to curb the 87. See David Luban, Taking Out the Adversary: The Assault on Progressive Public- Interest Lawyers, 91 CALIF. L. REV. 209, 220-26 (2003). 88. See Juliet M. Brodie, Post-Welfare Lawyering: Clinical Legal Education and a New Poverty Law Agenda, 20 WASH. U. J. L. & POL'Y 201, 225 (2006) (discussing the need to adapt legal services for individuals pushed into the low-wage labor market by welfare reform). 89. See Luban, supra note 87, at 236-41. 191 1900 CALIFORNIA LAW REVIEW [Vol. 95:1879 progressive bent of the CUNY School of Law, 90 administrators, faculty, and students at CUNY Law as well as other progressive allies in New York encouraged the clinics to engage in creative public interest advocacy. 91 CUNY- IRRC included immigrant labor cases on its docket due to the efforts of former Dean Kristen Booth Glen, who viewed organized labor as an important stakeholder in a public law school, and the advocacy of the Labor Coalition, which was comprised of students who worked within the labor and immigrant rights movement prior to law school. The students were the lead attorneys on this case. Although I helped them prepare for performance moments in litigation, such as initial client interviews, reviewed all of their work, and led discussions about our legal strategies, the students developed primary relationships with the workers and organizers, negotiated with opposing counsel, and spoke in court and to the NLRB. After the clinic agreed to represent ROC-NY, three third-year clinic students92 began interviewing workers and collecting documentation about their claims. 9a I note their backgrounds here because it is relevant to their commitment to a cause that is larger than the lawsuit or their own experience in the clinic. One of these students had been an organizer with 1199 SEIU, the activist affiliate of the Service Employees International Union (SEIU) in New York, and had spent time working on political solidarity campaigns in Central America. All three students worked for law firms during the school year, one with workers' compensation lawyers and the other two with the firm representing the local of the Communication Workers of America (CWA). Two of the students were White and one was Latina; two of the students were bilingual Spanish/English speakers and one only spoke English. 94 Within the clinic, two other students 90. Conservative media outlets, such as the NEw YORK POST and the CITY JOURNAL (a quarterly issue by the Manhattan Institute), regularly called on Governor Pataki, Mayor Giuliani, and the CUNY Board of Trustees to shut down the law school in the last decade. See Heather Mac Donald, CUNY Could Be GreatAgain, CITY JOURNAL, Winter 1998, availableat http://www.city- journal.orghtml/8lcuny-could.htm (last visited Aug. 15, 2007) (CUNY Law is "irredeemably rotten" with its "1960s-style curriculum in political organizing and consciousness-raising"); Editorial, Close CUNY Law School, N.Y. POST, January 19, 1999, at 28, CUNY Before the Bar, N.Y. POST, Dec. 8, 2002, at 24; Editorial, The School We Don't Need, N.Y. POST, May 3, 2003, at 14. 91. See, e.g., Stephen Loffredo, Poverty Law and Community Activism: Notes from a Law School Clinic, 150 U. PENN. L. REV. 173, 189-96 (2001) (describing a collaboration between a CUNY clinic and a grassroots organization of welfare recipients). 92. Students ranked the cases on which they wanted to work (in the CUNY-IRRC that year, the choice was between asylum, Violence Against Women Act, and immigrant worker cases) and they were assigned to teams on the basis of those preferences. 93. Emily Grajales, William Massey, Johnda Powers, and, later, Jesse Gribben constituted the first student team from CUNY-IRRC to work on this case and draft the complaint. 94. Hollis Pfitsch, Sebastion Riccardi, and Greg Sharma-Holt constituted the second team and negotiated the settlement agreement. This team was composed of a student with a background in organized labor, another who had worked with immigrant workers at a non-profit in the Northwest prior to law school, and a third student who had worked with ACORN. 192 2007] LA WYERS AND RESISTANCE 1901 worked on a new wage and hour case with five worker-members of a nascent worker center at Asociaci6n Tepeyac-a social services organization composed of Mexican-Christian congregations in New York City and led by a priest featured in numerous news reports discussing the loss of undocumented people at the World Trade Center on 9/1l1.95 That case, also on behalf of restaurant workers, was filed in state court in December and settled shortly thereafter. One of those students also had a background as a labor organizer prior to law school, and joined the team working on the ROC-NY case as it moved into discovery. All four students on the case in that academic year understood why the clinic was engaged in this collaboration with ROC-NY. The students with labor backgrounds recognized that the litigation would advance the campaign to improve the conditions of work at a prime target restaurant in the high-end segment of the industry, rather than viewing the campaign as adjunct to the litigation. One student, who had a part-time job with a workers' compensation firm, was won over by the emphasis on collective action after attending her first protest in front of the restaurant. This student buy-in was an essential element of the collaboration's success, the result of their prior political commitments and the public interest-oriented environment of CUNY Law. The students worked relentlessly on the case against a big law firm. As a first step, students drafted memoranda on the applicable legal 96 framework and possible claims under FLSA, New York wage and hour law, common-law tort and contract claims, and the National Labor Relations Act. The three-student team started a grueling schedule of interviews with the sixteen workers who participated in the ROC-NY campaign against their employer. These interviews took place before and after the weekly meeting of the workers' committee at the organization, often simultaneously in multiple rooms, with the English-only speaker either focused solely on the English- speaking workers or working in tandem with a ROC-NY interpreter. The team synthesized the evidence gleaned from interviews and studied the workers' documents, including piles of pay stubs dating back up to ten years and copies of weekly time schedules substantiating workers' names and assigned shifts. On the basis of this partial factual record, the team calculated unpaid wages over the duration of each worker's employment. Their analysis demonstrated that while the workers consistently worked eight to ten hours per shift, they only received pay for a seven-hour shift. The students determined that the workers could recover for unpaid overtime pay under federal and state statutory claims and for unpaid straight-time wages under common-law contract claims. Though we could not fully substantiate a racial discrimination claim in this suit, we learned that the head chef at the restaurant allegedly called the workers 95. See, e.g., Edward Lewine, Making Mexicans His Mission, N.Y. TIMES, Apr. 5, 1998, at 14-1. 96. See N.Y. LAB. LAw §§ 650-665; 12 NYCRR 142. 193 1902 CALIFORNIA LA W REVIEW [Vol. 95:1879 "stupid Mexicans" and arbitrarily threatened their jobs. The students estimated that unpaid wages and corresponding liquidated damages totaled approximately $360,000. The consistency of underpayment of a few hours of wages every day for each worker (a seemingly informal system used by the bosses to exploit their least-paid employees and maximize corporate profits) gave us confidence we could prove these wage violations. We were unsure if a court would award our clients the entirety of liquidated damages to which they were untitled under state and federal law. The employer's systemic violations seemed an indication of a lack of good faith (the standard for liquidated damages under the federal statute), though we understood that courts may hesitate in awarding non-wage income to workers. Because we did not deem that punitive damages for our less central tort claims held much promise for our clients at trial and because these damages were indeterminate, we did not include them in our initial estimate. The team also researched the employer's corporate structure and identified the parent corporation and its officers, who were then named as joint defendants with the lower-level managers in the restaurant. The students developed a unified factual narrative that described the conditions for all of the back-of-the-house workers at the restaurant, as well as individual factual narratives for each worker in the suit. At the end of this initial phase of interviewing, legal analysis, and narrative development, the team filed a thirty-page complaint against the employer with five claims in federal district court. 2. The Promiseof Law-Legal Underpinningsof the ROC-NY Litigation To a certain extent, the law offered the workers relief that justified a litigation strategy in the campaign. The lawsuit underpinning the campaign in the ROC-NY case study stemmed from violations of four sets of laws: FLSA, New York State wage and hour law, state contract and tort common law, and the NLRA. Additionally, two governmental agencies became implicated in the campaign, the U.S. Department of Labor (U.S. DOL) and the NLRB. Together, these laws and agencies (and a few others not implicated in the campaign such as the state labor enforcement agency and federal and state health and safety regulations) form the web of legal protection offered by the state to low-wage workers, including immigrants. Congress passed FLSA in 1938, setting a floor for wages and a ceiling on hours for non-unionized workers.9 7 The statute 97. See 29 U.S.C. § 201 et seq. The statute also included prohibitions on child labor and retaliation by employers against employees who complain of violations. FLSA specifically excluded agricultural and domestic labor, largely as a result of compromise with senators from the South where African-Americans constituted the vast majority of workers in these sectors. See also Baher Azmy, Unshackling the Thirteenth Amendment: Modern Slavery and a Reconstructed Civil Rights Agenda, 71 FORDHAM L. REv. 981, 1041-43 (2002) (discussing historical exclusions and limitations of FLSA in light of its grounding in the Commerce Clause rather than the anti-slavery Reconstruction Amendments); Marc Linder, Farm Workers and the Fair Labor Standards Act: 194 2007] LAWYERS AND RESISTANCE 1903 delegated enforcement authority to U.S. DOL but also provided for a private right of action in federal courts; there was no administrative exhaustion requirement. 98 New York State designated the state Department of Labor and the N.Y. Attorney General's office to enforce its wage and hour law. Currently, New York State requires employers pay a higher minimum wage than that required under FLSA.99 Both the federal and state statutory wage and hour scheme stem from common-law contract and tort law, including breach and unjust enrichment, though the statutory schemes do not preempt common-law claims. The NLRA passed for the protection of workplace campaigns for collective bargaining, followed by the Taft-Hartley amendments to the Act passed at the behest of employers.' 00 A number of legal academic commentators indicate that the pro-labor provisions of the NLRA are rendered ineffective by interpretations of the Act by the court.10 1 Additionally, commentators note the overall ineffectiveness of the administrative agencies charged with enforcing labor laws. 102 These critiques have shaped the advocacy strategies used by workers centers and lawyers. Racial Discriminationin the New Deal, 65 TEx. L. REV. 1335, 1371-80 (1987) (discussing FLSA legislative history). 98. See 29 U.S.C. § 216. 99. The minimum wage in New York is $7.15 as of January 1, 2007. See N.Y. LAB. LAw § 652. 100. See generally Steven E. Abraham, How the Taft-Hartley Act Hindered Unions, 12 HOFSTRA LAB. L.J. 1 (1994); Cynthia L. Estlund, The Ossification of American Labor Law, 102 COLUM. L. REV. 1527, 1533-34 (2002); Nelson Lichtenstein, Taft-Hartley: A Slave-Labor Law?, 47 CATH. U. L. REV. 763 (1998). 101 . See Mark Barenberg, The PoliticalEconomy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 HARv. L. REv. 1379, 1412-30 (1993); Michael C. Harper, The Case for Limiting Judicial Review of Labor Board Certification Decisions, 55 GEO. WASH. L. REV. 262, 298 & n. 163 (1987); James J. Brudney, Reflections on Group Action and the Law of the Workplace, 74 TEX. L. REV. 1563, 1575-1580, 1588-1591 (1996) (summarizing Supreme Court decisions which restricted the collective bargaining process-particularly after 1970, and theorizing the Court's refusal to adhere to NLRA policy); Karl E. Klare, JudicialDeradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 MINN. L. REV. 265, 291-93 (1978). 102. E.g., Marc Linder, Closing the Gap Between Reich and Poor: Which Side is the Department of Labor On?, 21 N.Y.U. REV. L. & Soc. CHANGE 1 (1993) (criticizing the DOL's regulatory definition of FLSA's salary test). See also Clyde Summers, Effective Remedies for Employment Rights: Preliminary Guidelines and Proposals, 141 U. PA. L. REv. 457, 531-33 (1992) (summarizing the problems of agency enforcement of labor laws, including Title VII, NLRA, FLSA, OSHA, and Workers Compensation); Id. at 545-46 ("Government agencies are too often hobbled by budget limitations and too vulnerable to political appointees who are unsympathetic to the substantive rights meant to be protected."). There are approximately eighty million workers covered by FLSA, and only 946 DOL investigators; federal enforcement alone is not enough to enforce FLSA to the fullest extent possible. Brieffor the Secretary of Labor as Amicus CuriaeSupporting Appellants, Bailey v. Gulf Coast Transp., Inc. 280 F.3d 1333 (11 th Cir. 2001) (No. 01-12379), available at http://www.dol.gov/sol/media/briefsbaileyvgulfcoast(A)-6- 10-2002.htm (last visited Aug. 15, 2007) (supporting a private right of action for FLSA's anti- retaliation provision). See also Bernhardt & McGrath, supra note 20. 195 1904 CALIFORNIA LAW REVIEW [Vol. 95:1879 3. The Limits of Law - Undermining Collective Action Apart from the specific critiques of labor law and enforcement agencies, many commentators, in and out of the academy, make a broader critique of the atomistic nature of remedies offered by public interest lawyers. The sustained "internal" progressive critique 10 3 has spurred marked shifts in practice, as have the theoretical critiques emanating from the legal academy. Impact litigation and legal services strategies were built on a foundational commitment to rights and "rights talk," which gained importance in public interest lawyering as a result of the expansive interpretations of rights offered by the Warren Court and successive legislative victories in the areas of employment discrimination, fair housing, and voting rights. Critical legal scholars, such as Duncan Kennedy and Roberto Unger, spearheaded a critique of adjudication and questioned its centrality in the construction of social systems. 104 Building on the work of legal realists, they argued that all legal arguments are reducible to policy arguments, including both legal and normative-rights reasoning.'0 5 Thus, lay-rights discourse, or "rights talk," slipped into politically-contingent indeterminate balancing. 106 In light of the inherent indeterminacy of legal reasoning, using adjudication to define and resolve social and economic disputes by left lawyers had the effect of legitimizing and reinforcing an established political structure, 107 the same structure constructed for managing and oppressing poor people. The dependence of public interest lawyers on rights-strategies was also dangerous because the judiciary would turn against less powerful segments of the populations, such as poor people, when the underlying politics turned against those populations.10 8 Mark Tushnet argued that legal victories and losses endangered progress in the political realm and that rejected rights claims would drop out of the political sphere.'°9 Political scientist Stuart Scheingold, 103. The conservative critique of public interest law is well known and well documented (even as right-wing movements have entered the arena of impact litigation for social change). See generally Luban, supra note 87. 104. See generally DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIECLE) (1997); Roberto Unger, The Critical Legal Studies Movement, 96 HARV. L. REV. 561, 567-76 (1983) (setting forth critiques of objectivism and formalism in legal thought and process). 105. See Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in LEFT LEGALISM, supra note 2, at 196-97. 106. See id. at 212. 107. See Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 TEX. L. REV. 1563, 1581-86 (1984) ("[E]xisting rights-thinking attributes a 'falsely concrete' or frozen character to what are always contingent or merely possible social phenomena." Id. at 1581). 108. The welfare rights movement suffered through this political dynamic, in which advocates successfully used judicial action to create a right to due process when the government attempted to end subsistence payments to poor people, Goldberg v. Kelley, 397 U.S. 254 (1970), which process was later proscribed by efficiency concerns when the progressive moment passed in Mathews v. Eldridge, 424 U.S. 319 (1976). 109. See Mark Tushnet, The Critique of Rights, 47 SMU L. REV. 23, 27-29 (1993). But see Scott Barclay & Shauna Fisher, Cause Lawyers in the First Wave Same Sex MarriageLitigation, 196 2007] LAWYERS AND RESISTANCE 1905 laid the basis for this critique with his work The Politics of Rights in which he drew on case studies of legal reform movements to conclude that the dependence of progressive movements on incremental rights-based strategies would imperil more fundamental political shifts achievable through collective action.110 Critical labor scholars have focused on the negative impact of individualized rights claims on collective organizing strategies in the workplace."'1 Twenty-five years of multi-pronged and powerful criticism directed at legal rights based strategies convinced many public interest lawyers that such strategies were politically contingent, imperiled long-term success, and preempted collective action.'12 Out of the critique of rights evolved the critique of litigation. The poverty lawyering literature of the 1980s and early 1990s related stories of individual resistance in remote forums, such as the local legal services office or the individual welfare hearing." 3 These narratives were presented as evidence of a in CAUSE LAWYERS AND SOCIAL MOVEMENTS 84-100 (Austin Sarat & Stuart Scheingold, eds. 2006) (discussing the positive effects on a grassroots movement of an unsuccessful litigation strategy). 110. See STUART SCHEINGOLD, THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY AND POLITICAL CHANGE (1974). Gerald Rosenberg made a similar critique from a different political position and argued that the legalization of political movements has ultimately disserved political movements and impaired legal institutions. See GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991). I ll. See, e.g., Katherine Van Wezel Stone, The Legacy of Industrial Pluralism: The Tension Between Individual Employment Rights and the New Deal Collective BargainingSystem, 59 U. CHIC. REV. L. 575, 638 (1992). 112. It is important to note that critical legal scholars were centrally focused on the advancement of left causes within and outside the legal academy and the debate was, on an underlying theoretical level, about strategy and tactics rather than goals. Some scholars incorporated the insights of the critical legal scholars in their work while arguing for continued engagement in concrete projects for social justice. See, e.g., Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectivesfrom the Women's Movement, 61 N.Y.U. L. REV. 589 (1986) (documenting the interrelationship between rights and politics from experience in a particular social movement); Ed Sparer, FundamentalHuman Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement, 36 STAN. L. REV. 509 (1984) (challenging critical legal scholars to reconnect their doctrinal analysis to progressive social movements). 113. Two scholars who skillfully deployed client narratives to facilitate theoretical interventions into public interest practice were Gerald Lopez and Lucie White. In REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1989), Lopez criticized lawyers representing poor communities for undercutting community leadership and minimizing lay knowledge. See generally GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1989). Lawyers in poor communities set out to do good, but as a result of their own race and class assumptions and the dominant assumptions of the legal profession, their work only exacerbates the conditions of powerlessness felt by their clients. Lopez effectively brought Derrick Bell's race and class critique of the Brown v. Board of Education impact litigation strategy to frontline legal services offices. See Derrick A. Bell, Jr., Serving Two Masters: IntegrationIdeals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470 (1976). Lopez developed a set of tactical changes that could transform poverty lawyering and advance a community empowerment agenda with a foundation in lay lawyering and leadership. Meanwhile, White internalized critical legal scholarship and applied the insights of feminist 197 1906 CALIFORNIA LAW REVIEW [Vol. 95:1879 new kind of resistance strategy, in which clients reversed the traditional power dynamic and led lawyers in advocacy efforts on the basis of their knowledge, dignity, and courage."14 The central moving force in narratives of poverty lawyering was no longer that of idealistic lawyers of the NAACP Legal Defense and Education Fund who entered Southern courthouses and racked up legal victories. 115 These figures were replaced by clever and courageous clients and organizers who out-maneuvered agency personnel, lawyers, and judges, often in spite of their own attorney's inaction or mistaken strategic choices, l6 The underlying theory (or implication) of social change was that poor people could transform communities and entrenched legal systems through their assertions of power against bureaucrats and lawyers. The themes of the legal academic literature were manifested in the field by a move away from professionalism to "lay lawyering" T17-poverty lawyers and community advocates less focused on litigation and law reform as a means of redress and instead oriented toward participation in local, non-legal efforts for social change. It also signaled a departure from formal legal norms to softer informal theory and postmodern political and literary thought in her analysis of selected case studies. Such cases include an African-American woman who speaks truth to power in her welfare hearing, see Lucie E. White, Subordination, Rhetorical Survival Skills and Sunday Shoes: Notes on the Hearing of Mrs. G, 38 BUFF. L. REV. 1 (1990), or the plaintiff class in a welfare suit that used speak-outs and the homeless people who used street theater to build community. See Lucie E. White, Mobilizationon the Marginsof the Lawsuit: Making Spacefor Clients to Speak, 16 N.Y.U. REV. L. & Soc. CHANGE 535, 546-63 (1987-88). See also Peter Gabel & Paul Harris, Building Power and Breaking Images: CriticalLegal Theory and the Practiceof Law, 11 N.Y.U REV. L. & Soc. CHANGE 369 (1983). These legal academic interventions had a sustained and widespread impact on public interest law, from impact litigation to frontline legal services offices, both directly through the work itself and indirectly through the internalization of their insights by law students filtering into varied practice settings. See generally Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 CLINICAL L. REV. 427 (2000) (analyzing the theoretical insights of Lopez, White, and Anthony V. Alfieri, refuting critiques, and surveying applications of the work). However, the impact was also uneven, as the extension and application of the ideas and the implementation of innovative tactics and strategies were left to a wide range of practitioners. It cannot be said that lawyering is no longer "regnant." It seems predestined that there will always be regnant lawyers who pursue established modes of practice and rebellious lawyers who deliver legal services in new forms to more effectively achieve social justice ends. In considering innovative approaches to public interest law in the current context, it is essential to understand the pervasive influence of these scholars on the evolution of practice over the last two decades. See Joel F, Handler, Postmodernism, Protest, and the New Social Movements, 26 LAW & Soc'Y REV. 697 (1992); Cummings & Eagly, A CriticalReflection on Law and Organizing,supra note 67, at 456-60. 114. See Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of ClientNarrative, 100 YALE L.J. 2107 (1991). 115. See generally RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (2004). 116. See White, Subordination, Rhetorical Survival Skills and Sunday Shoes, supra note 113. 117. See Orly Lobel, The Paradox of Extra-legal Activism: Critical Legal Consciousness and Transformative Politics, 120 HARV. L. REV. 937, 959-62 (2007) (critically discussing the concept of"lay lawyering"). 198 2007] LAWYERS AND RESISTANCE 1907 "normativities,"1 18 through which it is assumed that nongovernmental organizations, rather than the state, would generate norms that advance social justice. Scholars emphasized extralegal activism rather than litigation or legislative strategies and decisively rejected established narratives about the centrality of the public interest lawyer in movements for social change. 19 This significantly influenced the construction of the role of the public interest lawyer and, for some, sowed doubts in the minds of public interest lawyers about their own efficacy and nurtured the fear that they quell, rather than nurture, collective action. Adjudication and law reform, particularly in the area of immigrants' rights, has only confirmed the suspicions of progressive activists about the viability of law as an instrument for social justice. In the 2002 decision in Hoffman Plastic Compounds, Inc. v. NLRB, 120 the Supreme Court found that the NLRB could not impose its most effective penalties-reinstatement of employees who terminated in retaliation for involvement in organizing as well as lost wages for the time that they would have been employed absent the retaliatory termination-against employers if the prevailing workers were undocumented. 121 Although the Hoffman Plastic decision has been interpreted narrowly by immigrant worker advocates and most governmental agencies and courts, 122 the decision could alternatively be read to fit into the broader trend of weakened statutory protection for vulnerable communities. 123 By denying a 118. See id. at 978-82 (discussing the perils of a retreat by progressives to the extralegal sphere). 119. See Cummings and Eagly, supra note 67. 120. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) (foreclosing the NLRB from awarding backpay to undocumented workers). 121. See id. 122. See National Labor Relations Board, Procedures and Remedies for Discriminatees Who May Be Undocumented Aliens after Hoffman Plastic Compounds, Inc. (July 19, 2002), http://www.nlrb.gov/gcmemo/gc02-06.html (last visited Aug. 15, 2007); Employment Standards Administration Wage and Hour Division, U.S. Department of Labor, Fact Sheet #48: Application of U.S. Labor Laws to Immigrant Workers: Effect of Hoffman Plastic decision on laws enforced by the Wage and Hour Division, http://www.dol.gov/esa/regs/compliance/whd/whdfs48.htm (last visited June 18, 2005) ("The Department's Wage and Hour Division will continue to enforce the FLSA and MSPA without regard to whether an employee is documented or undocumented. Enforcement of these laws is distinguishable from ordering back pay under the NLRA." Id.). 123. In the U.S. specifically, the Supreme Court has used a series of techniques to strip private individuals of their ability to enforce civil rights laws, such as by expanding the scope of sovereign immunity and the scope of compelled arbitration under the Federal Arbitration Act, while reducing the availability of implied rights of action and attorneys fees. See Pam Karlan, Disarming the PrivateAttorney General,2003 U. ILL. L. REV. 183 (2003). Sylvia Law analyzed the federalism "revolution" in Supreme Court jurisprudence and surveyed the negative impact on workers and other vulnerable populations. See Sylvia Law, In the Name of Federalism: The Supreme Court's Assault on Democracy and Civil Rights, 70 U. CIN. L. REv. 367 (2002). In Alexander v. Sandoval, 532 U.S. 275 (2001), the Court decided that individuals do not have a private right of action for discriminatory disparate impact on the basis of race, ethnicity, or national origin against recipients of federal funding under Title VI. The Buckhannon (2001) court curtailed the private enforcement of civil rights statutes by imposing a narrow definition of 199 1908 CALIFORNIA LAW REVIEW [Vol. 95:1879 particular remedy to undocumented workers, five justices of the Supreme Court have weakened employment protections for "unauthorized workers," which might force immigrant workers to rely on individual contractual arrangements 124 with their employers, rather than collective action or statutory protection. The decision is part of a broader movement to take labor disputes out of the 125 public and collective sphere and put them into the realm of private law. Employers gain greater power over workers when labor disputes are individualized and the state remains on the sidelines. In the ROC-NY campaign, we attempted to mobilize sometimes hostile state power, both through adjudication and agency enforcement against the employer. CUNY-IRRC brought the case on behalf of the ROC-NY worker- members in federal court rather than state court because discovery guidelines were more stringent, federal judges had lower caseloads since they try to move cases off their dockets as quickly as possible, and federal magistrate judges usually took charge of discovery and issued schedules and orders quite expediently. 126 However, some federal judges resented having simple wage and 27 hour cases on their dockets, especially in the Southern District of New York. 1 Additionally, judges were averse to the direct action and media advocacy methodologies used during the campaigns of which the litigation was a part, "prevailing party" for the purpose of determining defendant's liability for plaintiff's attorneys' fees. See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001). In Alden v. Maine, 527 U.S. 706 (1999), the Court denied a private claim under the Fair Labor Standards Act against the State of Maine on the basis of state sovereignty. Each of these cases narrows the range of civil rights litigation that may be brought by private litigants. 124. See WILLIAM B. GOULD, INTERNATIONAL LABOR STANDARDS: GLOBALIZATION, TRADE, AND PUBLIC POLICY (Robert J. Flanagan & William B. Gould IV eds., 2003) ("[The Hoffman Plastic] ruling which creates an incentive for American employers to employ workers to whom labor law protection is denied constitutes a compelling argument in favor of the proposition that the West, and particularly the U.S., is not concerned with the plight of vulnerable immigrant workers who hail from the poor nations but rather the interests of entrepreneurs within our borders." Id. at 95). 125. See Marianne Staniunas, All Employees Are Equal, But Some Employees Are More Equal Than Others, 6 U. PA. J. LAB. & EMp. L. 393, 399-400 (2004) (noting that employers seek out undocumented workers because of their inability to seek enforcement of statutory labor protections). See generally Katherine Stone, The Post-War Paradigm in American Labor Law, 90 YALE L.J. 1509 (1981) (arbitration has successfully removed labor disputes from the public sphere, preventing the development of a more vigorous class consciousness in the labor movement). 126. Additionally, and not of minor significance for a law school clinic, expedient discovery advanced pedagogical goals in exposing the student team to pre-trial procedure during the time that they were in the clinic. Michael J. Wishnie, Clinical Professor of Law at Yale Law School, shared this insight with me based on his experience at NYU-IRC. 127. One federal judge lectured the attorneys and parties in a wage and hour case, that I litigated with NYU-IRC, about the fact that he was used to adjudicating large-scale corporate litigation and that we did not belong in his courtroom. In spite (or because) of his feelings, he took a personal role in settlement negotiations and pushed the parties hard to come to an agreement, in a way that could be said to have benefited the immigrant worker plaintiffs. 200 20071 LAWYERS AND RESISTANCE 1909 especially if evidence existed of coordination between organizers, plaintiffs, and lawyers. 28 The hostility of the courts to these methods is likely to increase as use of coordinated litigation and organizing strategies spread. Our opponents attempted to use the Taft-Hartley provisions of the NLRA to curb the direct action methods of organizers, including the protests in front of the restaurants. The corporation engaged ROC-NY in negotiations at one point during the campaign, only to break them off after drafting a joint memorandum of understanding that included improved conditions for all workers. Shortly after ROC-NY returned to the front of the restaurants with signs and megaphones, the employer filed a charge with the NLRB alleging violation of the Taft-Hartley provisions. The NLRB fast-tracked investigation of the charge, as they are required to do for employers under the provision (the workers' Unfair Labor Practice charges alleging surveillance and intimidation had been filed months earlier and did not receive fast-track treatment by the agency). Under those provisions, entities that do not represent a majority of the employees in a workplace cannot demand improved wages and benefits for all workers through protests. 129 It is viewed as illegitimate to work towards improving conditions for all workers when one only represents a minority of the workforce. The standard emphasis on official worker representation (and the corresponding barriers to establishing union representation through elections) operates here to prevent activist workers and worker centers from demanding better conditions for all. ROC-NY negotiated a settlement of the charge with the NLRB and adjusted its direct action strategy to engage in the labor-intensive activity of distributing leaflets during lunches and dinners at the restaurant entrances, which was permitted under the NLRA. 13 Federal court hostility to direct action and media advocacy and the NLRB's diligent 128. In a recent CUNY-IRRC wage and hour case on behalf of a domestic worker, a federal magistrate judge, who delayed adjudication of our motions to compel discovery, acted quickly when defendants complained to the court about demonstrations in front of a small business that they own. The worker was ordered to appear before the judge for an evidentiary hearing in which she was questioned about her membership in the worker-center that was organizing the protests as well as her prior knowledge of the events. Defendants did not allege a specific legal theory that would allow the court to prohibit First Amendment activities, but the court was quick to impute a jury-tainting theory, which it ultimately rejected on the basis of clear contrary precedent in the district. Lopez v. Meluzio et al., No. 05-00009 (E.D.N.Y. Aug. 23, 2006) (order adopting report and recommendation of magistrate denying defendants' motion for injunctive relief). 129. See29U.S.C. §158(b). 130. One of the CUNY-IRRC students linked ROC-NY with an experienced labor lawyer, Dan Clifton, who successfully defended the organization before the NLRB. He recently achieved a significant victory for the organization and worker centers around the country by convincing the NLRB that ROC-NY is not a labor organization and thus is not required to meet the filing burdens under the Labor-Management Reporting and Disclosure Act. 29 U.S.C. § 401 et seq. (1959) (amended 1987); 29 U.S.C. § 402(i) (defining "labor organization"), §§ 431-441 (setting forth reporting requirements). More importantly, worker centers are not bound by the NLRA's constraints on secondary boycotts and picketing. See supra note 58. 201 1910 CALIFORNIA LAW REVIEW [Vol. 95:1879 investigation of allegations against worker centers are only two examples of the general antipathy of legal institutions towards the use of legal tactics to advance collective action as well as extralegal tactics coordinated with litigation. In the ROC-NY campaign, the concern about the limits placed by law on collective action was resolved by the construction of a tripartite relationship between lawyers, workers, and organizers. The organizers were essential in helping the legal team gather evidence to mount an effective case, in ensuring client participation in the litigation, and in preventing employer cooptation of the workers over the long course of litigation. These challenges were compounded as the number of plaintiffs in the litigation increased. The rules of professional responsibility individualize the lawyer-client relationships by, for example, prohibiting the influence of third-parties (organizers) in legal decision-making and by creating an attorney-client privilege that a third party risks piercing when present at meetings.13' This individualized construction is deeply embedded in popular and legal culture. 132 The presence of the organizers as a kind of political and practical intermediary between lawyers and clients in the ROC-NY campaign test the boundaries of the traditional lawyer- client relationship. While CUNY-IRRC was careful in meeting the formal requirements of the rules and keeping legal decision-making within the relationship between lawyers and clients, we also understood that the organizers had developed the overall campaign strategy with the workers' consent. In delineating lawyer-client decision making, we could either reject the influence of the organizers or learn to discern the boundaries between lawyer-client, lawyer-organizer, and client-organizer decision making. We chose the latter. This naturally led to multiple communications and complications, including disagreements between the lawyers and organizers as to the timing and terms of settlement initiatives to be taken on behalf of the workers. We were careful not to influence workers against their prior political commitments to ROC-NY and the larger campaign and actually tried to promote such values within our decision-making structure. The workers 131. See, e.g., N.Y. LAWYER'S CODE OF PROFESSIONAL RESPONSIBILITY Disciplinary Rule (DR) 5-107 [1200.26] (B) ("Unless authorized by law, a lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal service for another to direct or regulate his or her professional judgment in rendering such legal services, or to cause the lawyer to compromise the lawyer's duty to maintain the confidences and secrets of the client under DR 4- 101 [1200.19](B)." Id.). 132. The Code also prohibits lawyers from taking cases in which their exercise of professional judgment may be affected by their own personal interest. See id. at DR 5-101. Applied stringently, this rule would be grounds for disciplinary sanctions against most public interest lawyers, on both the right and the left. However, the organized bar seems to accept some degree of deviation from the formal rules to accommodate public interest legal activities that legitimize the profession and mitigate the public perception that lawyers serve a fundamentally mercenary and amoral function in society. See AUSTIN SARAT & STUART SCHEINGOLD, Cause Lawyering and the Reproduction of ProfessionalAuthority: An Introduction, CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES 3-5 (1998). 202 2007] LAWYERS AND RESISTANCE seemed to understand these dynamics, partly due to their prior experience and worker leadership of the campaign. C. The Workers While the lawyers and organizers planned, drafted, argued, and negotiated from within the confines of our offices and in courtrooms and agency conference rooms, the workers worked. They continued coping with difficult and unlawful conditions, as well as pressure from both the organizers to participate in the campaign and from their bosses to desist. ROC-NY and the lawyers needed to rely on leadership from amongst the worker-members in the campaign and the leaders' ability to nurture a critical mass of workers willing to withstand the short-term benefits offered by the employer and stay in the fight through completion. 1. Leaders There was a dividing line in the restaurant: immigrants of color worked in the "back of the house"-in lower-level positions in the kitchen and as bussers and runners on the main floor-and mostly white employees worked in the front of the house tending directly to diners. The immigrant employees at the restaurant were largely from Mexico and Central America. They had varied levels of English proficiency and of experience in the industry, though they were required to demonstrate skills or to have been endorsed by other trusted workers to be hired. They had decent salaries that were well above poverty line wages. They ate restaurant food standing up during short breaks and the chef would make some of the workers hamburgers at the end of the night depending on his mood. Floriberto Hernandez was one of the fluent English speakers amongst the workers and a favorite of the bosses. It was also Mr. Hernandez who accompanied another worker to file a complaint against the bosses with the U.S. DOL and when there was no action by U.S. DOL, he led a group of workers to ROC-NY to protest about the lack of overtime and straight-time pay at the restaurant. He calmly and clearly communicated their complaints about management and the ways in which the working conditions were unjust. The ROC-NY organizers quickly understood that he had the respect of the other workers and that he understood the organization's broader goals, which went beyond improving conditions at a single restaurant. As the campaign progressed, Mr. Hernandez, working closely with Siby Sekou, a ROC-NY organizer who had the initial contacts within the restaurant, helped maintain the morale of workers. When workers at another restaurant owned by the parent company approached ROC-NY, organizers conferred with Mr. Hernandez on how to expand the campaign while maintaining group cohesion and the allegiance of the original workers, who were being challenged by adverse working conditions and the public demonstrations on their behalf in front of the workplace. 203 1912 CALIFORNIA LA W RE VIEW [Vol. 95:1879 2. Retaliation and Cooptation After the employer received a demand letter but prior to filing the complaint, managers attempted to convince individual workers to sign release agreements provided by the U.S. DOL that would prevent them from filing private causes of action in court. The workers indicated that the agency arrived at the restaurant with advance notice to the employer and interviewed a very small number of workers. They said that the chosen interviewees were coached by the head chef and the personnel manager to provide employer-friendly testimony (one of the plaintiffs had been asked to interpret for the managers during those coaching sessions). After the restaurant noticed that some of the workers retained the clinic as their legal counsel and that a lawsuit would be filed in federal district court, the head chef and personnel manager met with individual workers to sign the release agreements (written in both English and Spanish) indicating that their sole means of redress for wage and hour violations would be through the agency and not through a private right of action in court. Some of our clients signed the release agreements, others took the papers home with them to show the organizers and lawyers, and still others refused to sign on the spot (Mr. Hemandez was one such worker). Essential for momentum in court and in the overall campaign, the legal team developed a viable theory under which all of the workers could remain in the suit through the common-law claims in spite of some having signed the U.S. DOL release agreements. We thought that while the subset who signed the agreements were now precluded from pursuing federal and state wage and hour claims in court, they could still sustain contract and tort claims and remain part of the plaintiff group. The workers told us that individuals involved in the campaign were being given fewer hours of work, that they were under heavier surveillance than usual by agents of management, and that a few of them had been interrogated about their involvement with ROC-NY. As a result of these reports, the student team filed unfair labor practice charges with the NLRB on the grounds that these practices were intended to retaliate against workers for their involvement in "concerted activity," which is explicitly protected under federal law. 133 Conscientious NLRB staff initiated an investigation of the employer, though it remained unclear throughout the campaign whether the agency could impose penalties of any significance. At worst, the team viewed the NLRB charges as another legal front in the campaign with the consequence of increasing the cost to the employer of legal services. 134 The consequences of retaliation were more 133. See 29 U.S.C. § 158(a). 134. The team was not aware of the nature of the fee arrangement between the employer and the large law firm that it used. It is possible that the fim was receiving flat fees for services rather than billing by the hour. The senior attorney on the case, who was also the managing attorney of the firm's New York office, had a long-term relationship with the founder and C.E.O. of the parent company and related this to the team to indicate his delegated authority in 204 2007] LA WYERS AND RESISTANCE 1913 severe for one of our clients, who was fired by the corporation on the basis of his inclusion in a letter from the Social Security Administration (SSA) indicating that his name did not match the social security number in their database. Though the team generated legal arguments against termination on the basis of a no-match letter, it served as a source of prima facie legal leverage that the employer could use to intimidate workers involved in organizing campaigns, which has only gotten worse as SSA proceeded to draft more stringent no-match rules.' 35 Students quickly learn that one of our key legal roles in these campaigns was to undertake rapid response to allegations of retaliation by the workers, including interviewing the affected worker and organizers who usually first learn of the incident and communicating quickly and strongly with opposing counsel. Workers who feel that lawyers and organizers will not leave them completely vulnerable (because they remain quite vulnerable despite our best efforts) are more likely to participate in campaign activities and resist employer coercion. Leadership and preservation of critical mass were two key attributes that sustained the workers through the 18-month campaign. The organizers focused on leadership identification and development and worked closely with Mr. Hernandez until he passed away in July 2004. CUNY-IRRC was especially focused on the cohesion of the plaintiff group, though we only had an indirect role subsidiary to that of the organizers in nurturing our clients' collectivity. We worked hard to prevent law and legal process from splitting the group apart. The fact that we acted defensively after the employers had apparently co- opted the U.S. DOL investigation and convinced workers to sign release agreements indicates to me, in retrospect, that neither the organizers nor the lawyers had effectively nurtured cohesion and accountability until later in the campaign. D. The Campaign Both sides ground out the struggle, exchanging the advantage at various points in 2004. While CUNY-IRRC tended to the federal litigation and the NLRB investigation, ROC-NY was building a campaign to bring the workers' complaints to the full attention of the employer and the public. The organization put together a series of raucous demonstrations in front of the restaurant with the support of student groups and allied worker centers. The organizers met with the workers in the campaign on a regular basis, usually on Sunday afternoons, to develop consensus around their demands and the means by which the campaign would be conducted. The students negotiated a discovery schedule with defense counsel, striking a compromise between our speedier schedule and their lengthened negotiations. 135. See supra note 34. 205 1914 CALIFORNIA LAW REVIEW [Vol. 95:1879 timeline. The team drafted and transmitted interrogatories and document requests for the defendants. They also interviewed the plaintiffs and drafted responses to interrogatories and document requests on their behalf. Defense counsel asked virtually the same questions of each of the sixteen workers but chose to scramble the interrogatories and document requests so that the team could not prepare a single template response to their discovery requests. Defendants refused to answer our clients' discovery requests without a confidentiality agreement that would forbid the legal team and the workers from sharing any information provided by the restaurant to ROC-NY or HERE, the restaurant worker's union with which ROC-NY was associated. Defendants seemed most resistant to providing employee rosters and wage levels for workers at the restaurants because of their fear that such information would serve to unionize their workforce. In response, CUNY-IRRC moved to compel discovery responses without the confidentiality agreement. At the second status conference, the federal judge expressed puzzlement over our clients' refusal to sign the broad confidentiality agreement proposed by the defendants;' 36 he referred the issue to a magistrate judge and directed us to negotiate provisions to which our clients could agree. 137 The court confirmed its hostility to any kind of public law agenda in this suit when it refused to allow us to depose any managers other than direct line supervisors in the restaurant. Our theory was that this system of underpayment was a corporate policy and had been implemented in multiple restaurants owned by the same corporation. Additionally, the C.E.O. of the corporation was a man who was in the news frequently and maintained a positive reputation in New York and international social and political circles despite these conditions of employment at his restaurants. From the beginning, the organizers focused on attaching a corporate face to unlawful conditions of employment and these discovery skirmishes represented our effort for preserving that possibility and defending against the individualization and privatization of the litigation. While the legal team was engaged in discovery disputes with defense counsel, ROC-NY continued its program of demonstrations in front of the restaurant. Additionally, workers from other restaurants owned by the parent 136. We counseled our clients to refuse to sign a broad confidentiality agreement for political reasons - because they may choose to reveal information that they acquire in civil litigation to ROC-NY or HERE - and for practical reasons - because organizers might help them interpret and understand materials turned over by defendants. 137. It was at this hearing that the judge-angered at one point by his perception that plaintiffs were being unreasonable and having recently been assigned a related case about work conditions at another of the parent company's restaurants-lectured the legal team on what he viewed as its role. He said derisively that the lawyers were not to use a case in his court to advance a cause or to transform overall conditions in the industry. He instructed the team to litigate the individual case and not to be unreasonable in negotiations. I was momentarily speechless since the primary reason we had taken the case was to transform conditions in the industry. 206 2007] LA WYERS AND RESISTANCE 1915 company started speaking with the organization about more egregious wage and hour violations, as well allegations of employment discrimination and the creation of a hostile environment for some workers. These workers included both back and front of the house workers and 38 ROC-NY was able to identify attorneys for these new groups of workers. 1 The defendants engaged in negotiations sporadically, depending on the legal and political leverage they felt they had in the moment. The restaurant filed a defamation case against ROC-NY and its individual staff in state court on the basis of signs and statements made by organizers during the demonstrations. An attorney with the Urban Justice Center Community Development Project, who was also ROC-NY's nonprofit corporate counsel, located an excellent pro bono First Amendment attorney from the New York office of Davis, Wright & Tremaine to defend the organization in state court. The attorney filed a strategic lawsuit against public participation motion1 39 in opposition to the suit and defeated the restaurant's attempt to secure a preliminary injunction against the demonstrations. The Taft-Hartley charge that the corporation filed against ROC-NY and the consequent legal imperative for the NLRB investigation 140 caused the corporation to suspend negotiations. After the charge was settled with the assistance of experienced pro bono labor counsel, 141 ROC-NY was able to devise new direct action methods against the restaurant, and as it came closer to the time when their managers would be deposed, the corporation seemed more amenable to settlement negotiations. The retention of experienced pro bono counsel and their successful defense 42 neutralized the corporation's efforts to attack ROC-NY on new fronts. 1 After a year of direct action, media advocacy, and legal offense and defense, the campaign against the parent company and the counter-campaign initiated against ROC-NY were taking a toll on both sides. Tragically, five days after he was deposed in the federal case, 38-year-old Floriberto Hernandez passed away from dehydration caused by a diabetic condition of which he was unaware. His co-workers and the organizers at ROC-NY were hit hard by the loss and brought a poster-sized picture of him to each Sunday worker meeting, hoping to inspire and animate the campaign. Lawyers on both sides started 138. Tony Lu and Haeyoung Yoon with the Community Development Project of the Urban Justice Center filed a second wage and hour suit and Alex Reinert, an associate with the private civil rights law firm of Koob & Magoolaghan, represented workers before the Equal Employment Opportunity Commission on discrimination grounds. 139. See supra note 75. 140. Discussed supra Sec. II.B.3. 141. See supra note 130. 142. The corporation also tried to pressure ROC-NY through less formal means. The well- known C.EO. sent letters to ROC-NY's funders, emphasizing that the sympathetic support center for 9/1l workers and families had morphed into a Marxist activist group. These letters had no discernible effect on the organization's sources of funding, though it was hard for ROC-NY to know whether reduced grants or severed funding relationships were the indirect result of the restaurant's corporate campaign against the organization. 207 1916 CALIFORNIA LA W REVIEW [Vol. 95:1879 moving toward a basic agreement on major issues, after it became clear that the principals were interested in resolving the conflict. A new student team initiated a series of conference calls with opposing counsel and drafted an omnibus settlement agreement on behalf of our clients, as well as the groups of workers at the other subsidiary restaurants. The settlement agreement was fairly unique for a worker center to win through a campaign because, in addition to $164,000.00 in unpaid wages for the workers (both for our clients and those from the other restaurants who had joined later in the campaign), ROC-NY secured guaranteed sick days and paid vacation for all employees of the restaurant and some measure of job security for our clients for one year following the execution of the agreement. The identity of the high-end restaurant corporation and these broader benefits brought press coverage of the 43 settlement in the New York Times. 1 The campaign was far from a victory march, even with the favorable outcome we secured. Workers were in and out of the campaign, and the organizers were juggling multiple priorities and were attacked-through legal and non-legal means-throughout the eighteen month period. The lawyers were constantly scrambling to maintain capacity and coordinate amongst a large, legal team stitched together as a result of new developments. As a lawyer and a teacher of law students, I felt challenged by the scope of the work and the unorthodox structure of our relationships with workers, organizers, and co- counsel. We also felt energized by our involvement in something larger than a single case before a skeptical judge and we tried to harness that energy and construct a role for ourselves in relation to the resistance movement. III IMPLICATIONS FOR PUBLIC INTEREST LAW In this part, I draw a set of modest conclusions based on the description of the role of public interest lawyers in the campaign described above. The scope of our participation in the collaboration was highly contingent and context- specific and that is why I call these conclusions "modest" and possibly limited in application to other sites and subjects of struggle. However, it is also clear to me that an understanding of the complexities of this collaboration between public interest lawyers and a modem resistance movement can help shape our practice going forward, just as past interventions have shaped practice up to this point. To that end, first, I note some of the discontinuities with the established definition of the role of public interest lawyers, second, I revisit the literatures describing lawyer domination of clients and the critique of rights and rights-talk in light of our experience in the campaign, and, third, I discuss the 143. See Steven Greenhouse, Two Restaurants to Pay Workers $164,000, N.Y. TIMES, Jan. 12, 2005, at B3. See also Lynda Richardson, Public Lives: For the Kitchen Help, She Stands the Heat, N.Y. TIMES, Jan. 21, 2005, at B4. 208 2007] LAWYERS AND RESISTANCE 1917 specific role of public interest lawyers in relation to globalized social movements. Though there is no certain path to efficacy for public interest lawyers, it undoubtedly runs through the work of ambitious and energized movement organizations. A. Discontinuities Legal scholarship celebrates the role of lawyers and judges in social justice movements while social science research remains ambivalent. 1 Even self-critical legal scholarship, in the Gerald Lopez/Lucie White thread, emphasizes the importance of lawyers and amplifies the impact of the mistakes that they make in relationships with poor clients and social justice movements. Undoubtedly, articulating legal violations and filing complaints and charges in this campaign formed essential steps in conferring legitimacy on the complaints of the worker-members of ROC-NY. However, unlike conventional public interest law, the legal work was not central to the larger campaign or to the effort for building organizational capacity to improve working conditions in the restaurant industry. The organizers and workers themselves defined the problem area, chose targets within the industry, and directed public protest and media advocacy with lawyers supporting these activities through affirmative and defensive legal action. Another distinction between this campaign and more traditional social justice advocacy by lawyers is that government was not the target of litigation and direct action. 145 Instead, the resistance campaign was built around protest against a corporation that engaged quite directly in the exploitation of immigrant workers. This must increasingly be the case, as government social welfare functions are stripped or outsourced and individuals are coerced into the market for low-wage labor. Somewhat paradoxically, litigation and protest against private actors advanced initiatives to bring the state back into the relationship between workers and employers in the restaurant industry. 146 Both within the clinic and among the organizers, we regarded the state-represented by city council members and governmental agency personnel-as an audience of the campaign. Organizers and lawyers viewed the state as unreliable for a variety of reasons, including their general perception that the government was hostage to private interests on account of political patronage concerns and a pervasive 144. See Rajagopal, supra note 5, at 184-85. 145. Louise Trubek marked this transition in public interest law in the context of her discussion of the changing work of the Center for Public Representation in Wisconsin. See Louise Trubek, Old Wine in New Bottles: Public Interest Lawyering in an Era of Privatization, 28 FORDHAM URB. L.J. 1739 (2001). 146. For examples of the legislative successes of worker centers in New York, see Greenhouse, supra note 79 (Domestic Workers United campaign); Michael Luo, Taxi Commission Backs a 26% Rise For Fares in City, N.Y. TIMES, Mar. 31, 2004, at Al (NY Taxi Workers' Alliance campaign). 209 1918 CALIFORNIA LA W REVIEW [Vol. 95:1879 ideological affinity for the ascendancy of the "free market" among policymakers and judges. The workers did not rely on the state for various reasons, including their experience with the U.S. DOL in this campaign and the overarching fear of immigration enforcement. However, the lawyers and organizers understood that ultimately only the state could check the power of a large number of employers in an industry that was largely non-unionized. The workplace justice campaign also supported ROC-NY's research agenda in spotlighting violations of state and federal laws in the industry, which in turn supported its legislative agenda to empower the state to revoke restaurant licenses because of wage and hour law violations. Each of these distinct campaigns reinforced the other and fit into a larger effort to reconfigure the allocation of power in the industry. ROC-NY launched these initiatives to change the incentive structure in the restaurant industry, which was biased heavily against workers, and to encourage state intervention on the side of workers. The lawyers used their expertise, with an understanding of larger political and economic shifts, in service of this greater resistance agenda. Though the context of the legal work in the campaign may have been discontinuous with certain traditional modes of public interest legal advocacy (impact litigation, legal services, lawyer as organizer), the core legal work remained the same, whether nested in a resistance campaign or in one of the more traditional modes. It may be that a lawyer's knowledge and skills base are modified in accordance with the identity of the targets of a campaign and the relative sophistication of those targets. But the instinct to provide zealous advocacy in an adversarial context remains constant and is perhaps, in light of the relative diminishment of the state's role in economic relationships, more important than in any preceding moment in recent history. B. Accountability to Clients The fear pervading progressive legal practice, that lawyers would dominate their clients and social justice movements, has encouraged efforts to move social justice work out of law offices and the courts. 147 In this campaign, unlike in many of the stock stories from the poverty lawyering literature, government was not the target of legal action. Lawyers were less likely to 148 subordinate clients on behalf of the welfare or criminal justice systems. Instead, organizers and workers held lawyers accountable, and we were relatively free to engage in the work without inhibition and fear that they would dominate their individual or organizational clients. 149 147. See Lobel, supra note 117. 148. See supra text accompanying notes 114-117. 149. Gary Bellow best captured the possibilities of a dynamic and committed relationship between lawyer and client to which the team aspired: Alliance seems as good a word as any to describe this relationship because alliances generate bonds and dependencies and are grounded, at least in aspiration, in forms of 210 2007] LAWYERS AND RESISTANCE 1919 15 To be sure, this redirection of power was not easy or unproblematic. 0 There were times during the campaign when some members of the legal team resorted to assertions of the professional responsibility rules to ensure that the workers were not subverted by the organizers, especially in legal decision- making. When we approached the organizers mid-campaign in disagreement with their decision not to open negotiations with the employer, we felt caught between our professional obligations, our intuitions, and the larger goals for which we were fighting. Optimizing the balance of power between lawyers, workers, and organizers is of course a project that is far from resolved, especially in light of the challenges that the rules of professional responsibility pose for these relationships. Difficulties in this area have arisen in all of the collaborations between lawyers and worker centers in which the model has predominated. Although the instances of conflict we faced were difficult (and perhaps exacerbated by the rapidity of developments and the small size of ROC-NY's organizing staff) it was our overall sense that the plaintiffs in the legal cases understood the methods and goals of the larger campaign, the importance of organizational capacity-building, and that recovery of unpaid wages was the central component of an overall strategy. The lawyers who drew 5 on the experience of labor lawyers' 1 rather than the experience of a respect and mutuality that are far more personal and compelling, for many of us who do political legal work, than the demands of some notion of client-centered lawyering, no matter how strongly held. Alliance also seems to offer an ideal that permits us to talk seriously about purposive judgment-when and whether to intervene or to seek influence-in situations in which one has unequal power in a relationship. The ideal of alliance avoids oversentimentalized and categorical attitudes-my client, the victims, the hero-toward clients. Such an orientation seems necessary in any honestly mutual relationship and is especially important when working with groups in which issues of which faction one serves constantly arise, and where humor, patience, and a genuine fondness for and realism about the individuals involved are often all one has to maintain one's bearings until some particular storm subsides. Gary Bellow, Steady Work: A Practitioner'sReflections on PoliticalLawyering, 31 HARV. C.R.- C.L. L. REV. 297, 303 (1996) (citations omitted). An additional consideration that arises in this context is whether lawyers are in-house with their client organization or situated in an independent practice setting. The lawyers in this campaign were based in offices outside of the movement organization and, thus, had limited power in organizing and organizational capacity-building, though the team was cognizant of the opportunities and constraints facing the organization. Cf Jennifer Gordon, Law, Lawyers, and Labor: The United Farm Workers' Legal Strategy in the 1960s and 1970s and the Role of Law in Union Organizing Today, 8 U. PENN. J. LAB. EMPL. L. 1, 47-49 (2005) (discussing creation of the union's legal department five years after its establishment and thus subordinate to the union's larger goals; in-house legal department strengthened rather than weakened lawyer accountability). 150. For a discussion of similar problems, see Austin Sarat & Stuart A. Scheingold, What Cause Lawyers Do For, and To, Social Movements, in CAUSE LAWYERS AND SOCIAL MOVEMENTS, supra note 109, at 2-3 (discussing constraints imposed by social movements on affiliated lawyers). 151. It is necessary to represent groups of relatively powerless people rather than individuals and that this devotion to collective representation did not disempower individuals but was necessitated by the adversarial context in which we fought. See Gordon, supra note 149, at 10-44 (describing the collaboration between UFW organizers and lawyers). 211 1920 CALIFORNIA LAW REVIEW [Vol. 95:1879 conventional public interest lawyer focused on an individual client or a class of individual clients were better able to cope with the shifting balance of power between lawyers, organizers, and workers. The collective representation frame allowed lawyers to temper the formalism of the professional responsibility rules and to weather the52 periodic marginalization of lawyers within campaign decision-making. 1 C. The Role of Rights and Rights Talk The lawyers and organizers in the campaign were familiar with the perspective of critical race theorists such as Patricia Williams and Kimberle Crenshaw, and the participants' actions reflected their more abstract conceptual perspective of the broader socio-economic challenges they faced. They had an understanding of the constructed and contingent nature of law slanted in favor of power, but they refused to give up rights and rights talk, which helped them win protections and gains for the workers. 53 Such a focus on entitlements is inconsistent with parts of the legal and political science literatures on the efficacy of rights and rights talk. 154 That body of work underemphasizes the role that the particular cultural, economic, and political contexts play in determining the appropriateness of an entitlement-based approach.15 5 Our campaign continuously centered its attention "on the importance of political mobilization for the success of rights-centered strategies."' 156 Contrary to the argument against adversarial models of lawyering made by advocates of governance models, 157 this style of lawyering places rights within the context 152. See Stephen Ellmann, Client-Centeredness Multiplied: Individual Autonomy and Collective Mobilization in Public Interest Lawyers' Representation of Groups, 78 VA. L. REV. 1103 (1992) (Ellmann discusses the challenges of group representation in a non-union context and develops tactics with which to approach the problem of collective representation in a highly individualized profession. It is important to do more work along these lines (as well as the work being done by Jennifer Gordon to map the collaborations between lawyers and activist unions) to alter the professional self-conception of public interest lawyers). 153. See PATRICIA WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991); Kimberle Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in AntidiscriminationLaw, 101 HARV. L. REV. 1331 (1988). 154. See supra Sec. II.B.3. 155. See Rajagopal, supra note 5, at 170. But see Martha Minow, Interpreting Rights: An Essayfor Robert Cover, 96 YALE L.J. 1860 (1987) ("Nonetheless, I worry about criticizing rights and legal language just when they have become available to people who had previously lacked access to them. I worry about those who have, telling those who do not, 'you do not need it, you should not want it.' But, rather than trash rights, I join in the efforts to reclaim and reinvent them. Whether and how to use words to constrain power are questions that should be answered by those who lack it. For this task, rights rhetoric is remarkably well-suited. It enables a devastating, if rhetorical, exposure of and challenge to hierarchies of power." Id. at 1910). 156. de Sousa Santos & Rodriguez-Garavito, Law, Politics, and the Subaltern in Counter- hegemonic Globalization in LAW AND GLOBALIZATION FROM BELOW, supra note 5 at 15 (2005). 157. See, e.g., Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342 (2004); William Simon, Solving Problems vs. Claiming Rights: The PragmatistChallenge to Legal Liberalism, 46 WM. & 212 2007] LAWYERS AND RESISTANCE 1921 of a larger political struggle and is a necessary prerequisite to the participation of workers and organizers in less adversarial and more deliberative political structures, such as policy-making bodies and non-governmental58 organizations, with representatives of the state and private entities.' Further, in the specific case of immigrant workers, the assertion of rights through litigation can, at least partly, compensate for their lack of legal status as they attempt to assert countervailing power159 in their workplaces and communities. Aggressive immigration enforcement makes it more difficult for immigrant workers to claim a form of "de-nationalized" citizenship through social and economic participation. 160 However, active participation in rights- based campaigns and in organization-building strengthens the sense of membership in American communities and the solidarity of some of the immigrant workers. 161 Rights-based campaigns advance the goals of organizers to motivate and unite immigrant workers while also enabling lawyers to draw on sub-cultures of resistance to alter the legal and political process, sometimes in ways that might make social justice more attainable in subsequent campaigns. D. Social Movements There would have been no campaign in which public interest lawyers could participate in the absence of the movement organization in this case study. Movements complicate and amplify the work of public interest lawyers. We provide essential functions to movement organizations and we depend upon them for the nurturing of cohesive groups of people willing to fight to improve their workplaces and communities. Public interest lawyers and movement organizations have much to gain from collaboration but it is important to think carefully about the role that each will play in the other's work and for there to be a common set of political commitments and approaches. The understanding of the lawyer's role and the set of commitments shared in the ROC-NY campaign are delineated below. MARY L. REV. 127 (2004). 158. de Sousa Santos & Rodriguez-Garavito, supra note 156, at 16. 159. See generally Karl Klare, Countervailing Workers' Power as a Regulatory Strategy, in LEGAL REGULATION OF THE EMPLOYMENT RELATION, Ch. 3 (Hugh Collins et al. eds., 2000). 160. See Linda Bosniak, Citizenship Denationalized,7 IND. J. GLOBAL LEGAL STUD. 447, 461-62 (2000) ("Yet, the fact that aliens enjoy these rights does not mean that their formal or nominal legal status vis-i-vis the political community in which they reside has changed. When citizenship is understood as formal legal membership in the polity, aliens remain outsiders to citizenship: they reside in the host country only at the country's discretion; there are often restrictions imposed on their travel; they are denied the right to participate politically at the national level; and they are often precluded from naturalizing. Furthermore, they symbolically remain outsiders to membership in the polity." Id. at 462 (citations omitted)). 161. See Gordon, supra note 14, at 156-73 (discussing the solidarity effects of rights talk and assertion and the creation of a new, more collective, immigrant identity). 213 1922 CALIFORNIA LA W REVIEW [Vol. 95:1879 1. Lawyers as IntermediariesBetween Movements and the State Lawyers can help movement organizations resist cooptation by the state and facilitate fragile collaborations with agencies. 162 In this campaign, lawyers represented the worker-members of ROC-NY in federal court; the organization never appeared before the judge, who appeared uncomfortable with the idea that an individual lawsuit might be nested in a larger organizing campaign involving direct action and media advocacy. ROC-NY could draw on the legitimacy of a legal complaint for underpinning its direct action and media advocacy program, without submitting to the court's jurisdiction and its rules. Lawyers were also essential in defensive litigation when ROC-NY was named as a party in cases before a state court and the NLRB. Worker centers may resist using lawyers as intermediaries with governmental agencies, as organizers may seek to decentralize lawyers in campaigns and gain recognition from legislators and other political actors as the leading representatives of workers. It is shortsighted, however, to do so, as lawyers, in addition to possessing technical skills that can be of use in policy advocacy, can help movement organizations maintain distance from governmental and private entities, which in turn might help organizations remain oppositional and retain movement vitality. 163 If lawyers understood and were properly trained in law school clinics and public interest organizations to act as intermediaries between movement organizations and the state, those organizations might feel more comfortable entrusting them with this essential role. 2. A Global TransformativeParadigm of Social Change and Cross-racial 162. See Lobel, supra note 117, at 942-59. 163. See FRANCES Fox PIVEN AND RICHARD CLOWARD, POOR PEOPLE'S MOVEMENTS: WHY THEY SUCCEED, How THEY FAIL 1-40 (1979) (describing how protest movements lose power through institutional accommodation and coercion). Lobel accurately depicts the fear of cooption as a driving force in the acceptance or rejection by movement organizations of social justice strategies. Cooption has driven organizers and lawyers toward extralegal activism. However, I would not characterize the campaign described in this article or many of the legal collaborations with worker centers as a retreat from the law and toward civil society, as Lobel does. See Lobel, supra note 117, at 961-62. In fact, movement organizations usually prevent their lawyers from yielding to the psychosocial allure of softer informal normativities (which characterize the non-adversarial and discursive governance structures advocated by Lobel and others, see supra note 157). For most people, even lawyers, public confrontation is a more challenging enterprise than collaborative negotiations and the solidarity and direct action tactics of movement organizations embolden lawyers. Correspondingly, lawyers represent movement organizations in courts and legislatures on basic terms set by organizers and workers and allow the organizations to resist cooption while remaining engaged in law reform projects. See Sheila Foster, Justice from the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement, 86 CALIF. L. REv. 775, 826-41 (1998) (illustrating the potential dialectic between political participation/law reform and transformative movement politics in the context of an environmental justice case study). 214 2007] LAWYERS AND RESISTANCE 1923 64 Solidarity Worker centers such as ROC-NY embrace a new paradigm of social change and cross-racial solidarity.165 The civil rights movements, anti-colonial liberation struggles, and the radical labor movements are the historical antecedents of these organizations, which frequently turn to their forebears for inspiration and guidance. But in terms of their organizational structure and issue selection, contemporary organizers use an original approach that reflects cognizance of current conditions. Conceptually, the paradigm is global-linked to networks of advocates in multiple areas and across national borders 166-and transformative, rooted in a radical democratic vision of the participation of members, which includes citizen and non-citizen and largely people of color, in politics. 167 Most worker centers conceptualize its work as opposed to the forces of neoliberal globalization, which adversely affects poor people by constructing ways in which their very presence in a location is illegal, by effectively forcing them to labor under worsening conditions created by deregulated market forces. The centers are in ideological, if not actual, communion with activists who oppose a World Bank-sponsored dam in India, indigenous people demanding economic and social rights in Chiapas, and AIDS activists in South Africa fighting for access to affordable generic drugs. 168 These movement organizations demolish the false dichotomy advanced by the Old Left between radical politics and identity politics 169 by focusing on the interaction between 164. The ideas in this section in part reflect the work of Families for Freedom (FFF), a movement organization with which CUNY-IRRC collaborates but that is not a workers center. Founded in 2002, FFF is a New York-based non-profit organization that defends and supports immigrant communities against the federal government's aggressive detention and deportation policies. See FFF website homepage, http://www.familiesforfreedom.org (last visited Aug. 15, 2007). 165. Angela Harris describes this paradigm from a legal theoretical standpoint, in which default identity characteristics, such as race, gender, and sexual orientation, are neither ignored nor do they serve as the central organizing principle of social movements. Supra note 1, at 783-84. Instead, as Robert Chang argues, "people of color" solidarity in the service of a progressive agenda must be built on the basis of a new subject position, one that comes with political commitments and through struggle. See Robert Chang, The End of Innocence or PoliticsAfter the Fall of the Essential,45 AM. U. L. REV. 687, 690-94 (1996). This substantive radical democratic project is central to the movement organizations described in this article, see id. at 692. 166. See Fran Ansley, Inclusive Boundaries and Other (Im)possible Paths Toward Community Development in a Global World, 150 U. PA. L. REv. 353, 405-11 (2001) (setting forth an aspiration for globalized social movements in the U.S.). 167. Movement organizations such as ROC-NY, pursue the radical democratic engagement of its members in politics, not in grassroots activism outside of the sphere of the political process. See Lobel, supra note 117, at 963-64 (discussing the robust political engagement of the "M- stream" from the desiccated extra-political self-organization of the "L-stream" to define "civil society" and consigning grassroots activists to the latter) (citing Charles Taylor, Invoking Civil Society, in WORKING PAPERS AND PROCEEDINGS OF THE CENTER FOR PSYCHOSOCIAL STUDIES I- 17)). 168. See generally de Sousa Santos and Rodriguez-Garavito, supra note 158. 169. See, e.g., TODD GITLIN, THE TWILIGHT OF COMMON DREAMS: WHY AMERICA IS WRACKED BY CULTURE WARS (1996). 215 1924 CALIFORNIA LA W REVIEW [Vol. 95:1879 70 racial, economic, and political subordination. 1 The membership itself is global and in some cases constituents have direct ties to movements in their countries of origin. Their project includes leadership development so that their members may testify as to their own conditions of life and work and demand remedies in courts and legislatures. They make strong and constant efforts to maintain a diverse membership; their members are allies who work to realize common aims, not components of a coalition with contingent common interests. 171 The organizations search for groups of plaintiffs in litigation or witnesses in legislative efforts across racial and immigration status lines. Though the late addition of new groups of workers in the ROC-NY campaign complicated matters by allowing some workers to benefit disproportionately from the longer participation and endurance of other workers, the organizers pushed hard to include the new workers-both for attacking the parent corporation at multiple restaurants and because the new groups included not just Latino but also South Asian immigrants, and therefore more accurately represented the workforce of the corporation. .Worker centers such as ROC-NY have a clear picture of the way in which immigration status or constructed illegality 172 harms their membership and weakens their organizing efforts, but they view this as a condition to challenge and change, rather than a limit on the issues and members they may embrace. Though deportation and detention remains a possibility for most of the membership, the organizers attempt to keep workers engaged in political struggle and endeavor to protect members when immigrant enforcement is used as a tactical offensive. Leaders make every effort to minimize distinctions between members based on their legal status, because organizers recognize that the restaurant worker detained after going to a Special Registration interview is no more "innocent" or "guilty" than the janitor who committed a crime and already served time in a state prison.173 They see these individuals and families as part of a united struggle against a system of constructed illegality and racial subordination-and their organizational structures and targets of social change reflect that central mission. The global, transformative paradigm expands the scope and ambition of 170. See Penelope Andrews, Globalization, Human Rights, and Critical Race Feminism: Voices from the Margins, 3 J. GENDER RACE & JUST. 373, 395-99 (2000) (discussing critical race feminism application in international human rights); Cornel West, The Role of Law in Progressive Politics,43 VAND. L. REV. 1797 (1990). 171. See generally Victor C. Romero, Rethinking Minority Coalition Building: Valuing Self-sacrifice, Stewardship, and Anti-subordination, 50 VILL. L. REv. 823 (2005) (discussing the difficulties of coalition-building and proposing first principles that might overcome those challenges). 172. See Ngai, supra note 46, at 56-90 (discussing the construction of illegality through deportation policy). 173. See supra text accompanying notes 34-43. 216 2007] LA WYERS AND RESISTANCE 1925 public interest lawyers. 174 As in corporate law, the global alliances and ambitions of clients cause lawyers to think and act globally, for example, by filing complaints on behalf of worker-members with international tribunals and including international law claims in federal complaints.175 These collaborations with global, transformative organizations may also encourage more substantive interaction between public interest lawyers across borders, which has remained limited to date, with American lawyers tending to use international mechanisms unilaterally but failing to engage progressive legal allies outside of the U.S. 176 The expansive and energized political vision of networked social movement organizations has much to offer public interest lawyers. It is up to us to identify and develop relationships of trust with specific organizations and to collaboratively advance successive campaigns of resistance. CONCLUSION Far from signaling a retreat from the legal and political process, the changing dynamic between public interest lawyers and resistance movements reflects a healthy mutual engagement--one with the potential to achieve both parties' substantive goals more effectively than traditional models of public interest lawyering would allow. Even as the state and powerful private entities assert the entrenched prejudices of liberal legalism against resistance movements, these movements reshape public interest lawyering, and law more generally, through innovative collaborations. There is tension and stress in these relationships, as is to be expected in any partnership between hard-headed and driven actors operating within a set of firmly established constraints. Public interest lawyers can negotiate professional constraints in collaborations with resistance movements and collectively it is within our capacity to carry out our moral and professional responsibility for the advancement ofjustice. I hope that this description and interpretation, in some small way, evokes faith in our potential to achieve justice in an otherwise callous and heartbreaking historical moment. 174. Lucie White describes an aspirational "third dimension" model that sets a benchmark for what public interest lawyers can hope to achieve in collaboration with movement organizations. See Lucie White, To Learn and Teach: Lesson from Driefontein on Lawyering and Power, 1988 Wis. L. REv. 699, 760-68 (1988). 175. See supra notes 80-85. 176. See generally Rhonda Copelon, The Indivisible Framework of International Human Rights: A Source of Social Justice in the US., 3 N.Y. CITY L. REv. 59 (1998) (discussing the potential impact of international law applications in the U.S.). 217 1926 CALIFORNIA LA W REVIEW [Vol. 95:1879 218 LAWYERS AS RESOURCE ALLIES IN WORKERS' STRUGGLES FOR SOCIAL CHANGE E. Tammy Kim* PRELUDE It's 9:00 a.m., and lower Manhattan wakes to another day of busi- ness. As livery trucks and coffee-toting commuters rush down the block, a group of men gathers in the basement of an old brick building.Soon, the space, a nonprofit workers' center, buzzes with brisk conversation in Spanish, English, and Mixteco, an indigenous Mexican language. Around a crowded pair of oblong tables, a community organizer starts the meeting. The men are kitchen workers from a number of restaurants. They have little in common except for their work and their potentially immi- nent unemployment. Months ago, they organized collectively to demand fair treatment and just compensationfrom their employers, but their de- mands have been met with threats. In the latest of a series of retaliatory actions, the employers have issued an ultimatum against the workers-if they do not abandon their organizingand legal claims, then they will be fired. In two hours' time, the earliest shift of workers will face their em- ployers and this fate. Many of these workers are my clients in a federal wage-and-hour lawsuit. I know they are meeting this morning to discuss the situation, but I am not with them. I am in my office, considerably anxious, won- dering what will happen. What will the workers decide? How angry, hurt, and worried do they feel? How will they find new jobs in this ailing economy? How will they pay rent and feed their families? I learnedjust last night about this retaliatory move. In response, I emailed a letter to opposing counsel stating that I interpreted their cli- ents' actions as potentially unlawful retaliation.Beyond that, I could do little. No rhetoric of rights or legal prohibition can prevent workers from actually suffering employers' illegal acts. In contrast to my legal response, the plaintiffs in our case immedi- ately reached out to theirfriends at related restaurantsand requested this morning's meeting with the organizers. Unwilling to give up their fight for respect and legally mandated pay, they face their likely firings while seizing the opportunity to increase awareness among similarly affected * Staff Attorney, Community Development Project, Urban Justice Center; Adjunct Professor, The Cooper Union. Previously, the author was a Lecturer at Yale University and a Judicial Clerk to the Honorable Janet Bond Arterton, U.S. District Judge, Dis- trict of Connecticut. The author received herJ.D. from New York University School of Law and her B.A. from Yale University. 219 HeinOnline -- 13 N.Y. City L. Rev. 213 2009 214 NEW YORK CITY LAW REVIEW [Vol. 13:213 workers and to brainstorm creative strategies to combat the bosses' tactics. Despite my availability to attend this morning's meeting, the organizers and workers decided to meet on their own. I understand the wisdom of this, as they have in mind something bigger than legal remedies. It's now 3:00p.m., and I learn that my clients were all fired. I also learn that they are more determined than ever to contest unfair condi- tions and to support other workers in parallelstruggles. As they press on, we lawyers engage in the daily tasks of litigation, seeking to represent the workers and support their organizing as best we can. INTRODUCTION This is community-based workers' rights lawyering as I know it. In the present paper, I draw on my work at the Community Devel- opment Project of the Urban Justice Center ("CDP") to present and endorse a model of community lawyering in an organizing context. In the first section, I trace the contours of the CDP lawyering model and its workers' rights litigation practice, which, in the sec- ond section, I characterize as "resource-ally lawyering."1 In lauding this model's fittingness to workers' rights lawyering, I endorse it over blurrier models that maintain less distinction between the roles of lawyers and organizers. I also discuss how the resource-ally model can lead us out of what Orly Lobel has called the "paradox of extralegal activism," according to which a romantic notion of "activism" has, in the minds of many, come to replace "law" as the primary vehicle for social change. 2 The CDP community lawyering model, I argue, allows lawyers to do what they are best equipped to do, while avoiding the pitfalls of pessimistic self-skepticism or the exaggerated separation and idealization of non-legal activities. Then, in the third section, I apply the theoretical to the day-to- day, comparing the CDP workers' rights model to that of "in- house" community lawyering, where lawyers and organizers are em- I The model I propose is a relative of the "facilitative" model. Indeed, Richard Marsico's notion of facilitative lawyering lends itself well to the community organizing context. In his words, "[f]acilitative lawyering contains elements of both collaborative and client-centered lawyering. However, it is somewhat less self-consciously political than full collaborative lawyering and seeks to preserve a more clearly defined role for attorneys as attorneys. Facilitative lawyering recognizes more of a risk to client auton- omy in social change lawyering than the client-centered model admits, and carves out an appropriately more limited role for attorneys. In addition, facilitative lawyering includes many of what might be considered more collaborative behaviors." Richard D. Marsico, Working for Social Change and Preserving Client Autonomy: Is There a Role for "Facilitative"Lawyering, 1 CLUNcAL L. REv. 639, 639-40 (1995). 2 See Orly Lobel, The Paradox of Extralegal Acivism: Critical Legal Consciousness and Transformative Politics, 120 HARv. L. REv. 937, 974 (2007). 220 HeinOnline -- 13 N.Y. City L. Rev. 214 2009 2009] LAWYERS AS RESOURCE ALLIES 215 ployed by the same community organization or workers' center. I argue for resource-ally lawyering over the in-house model based on the interpersonal, logistical, and ethical demands of our daily work. I. WORKERS' RIGHTS LAWYERING IN THE URBAN JUSTICE CENTER'S COMMUNITY DEVELOPMENT PROJECT In the CDP, we strive to operate in dynamic relation to the individuals and communities we serve. Our lawyering is imbued with geographic and cultural context as well as a broad vision for social change. At its best, our model takes client partnerships seri- ously while preserving the lawyer's role, respecting organizing, and being careful not to overreach. The CDP works on cases and other matters shaped and driven by members of grassroots organizations in the diverse neighbor- hoods of New York City. Our website describes our mission as follows: The Community Development Project (CDP) of the Urban Jus- tice Center formed in September 2001 to provide legal, techni- cal, research and policy assistance to grassroots community groups engaged in a wide range of community development ef- forts throughout New York City. Our work is informed by the belief that real and lasting change in low-income, urban neigh- borhoods is often rooted in the empowerment of grassroots, community institutions.3 Composed of researchers, lawyers, paralegals, development and technical assistance staff, the CDP has grown into a team of nearly 20. Significantly, the CDP has never had any organizers on staff. Plaintiffs'-side workers' rights litigation is one of the many practice areas in the CDP.4 The workers' rights lawyers handle mostly group and some individual cases in the areas of wage-and- hour, discrimination, right-to-organize/collective action, and work- ers' compensation claims. The cases are referred to the CDP by 3 Urban Justice Center, Community Development Project Home Page, http:// www.urbanjustice.org/ujc/projects/community.html (last visited Nov. 28, 2009). 4 The lawyers in the CDP are divided into litigators and transactional attorneys, with litigators working in the substantive areas of workers' rights, consumer debt, housing rights, healthcare access, and foreclosure prevention. To date, CDP workers' rights lawyers have included Molly Biklen, Raymond Brescia (founder of the CDP), David Colodny, Benjamin Holt, Carmela Huang, Tammy Kim, Megan Lewis, Tony Lu, Amy Tai, Haeyoung Yoon. This practice area has been heavily influenced by the lawy- ering model of the Immigrant Rights Clinic at New York University School of Law, founded by Professor Nancy Morawetz and previously co-directed by Professor Michael J. Wishnie, who now directs a similar clinic at Yale Law School. 221 HeinOnline -- 13 N.Y. City L. Rev. 215 2009 216 NEW YORK CITY LAW REVIEW [Vol. 13:213 community groups-mainly workers' centers and industry-specific workers' organizations-that initially meet with the workers to un- derstand their claims and build an organizing strategy. In other words, the organizers and workers have decided on a specific role and purpose for the CDP legal team in advance. The workers' legal cases fit into larger campaigns for restaurant workers' rights, wo- men workers' rights, or increased entitlements for domestic work- ers, for example, and have the potential to impact caselaw. Figure 1 illustrates how community groups incorporate our le- gal services into their multi-pronged campaigns. Community outreach/education Community organization/group Research and policy Campaign or Members oLitigation and legislation movement goal L ______Protests and other direct action Media and other While the CDP's work for these community organizations or groups is significant, litigation is not the sole means or end in a community group's campaign for social change.' In our workers' rights cases, the community organization, client-members of the organization, and CDP lawyers cooperate to achieve legal and non- legal goals. Ideally, the legal work reflects harmony among clients, organizers, the organization itself, and us lawyers. In tandem with the litigation, the organizers or community group engage in re- lated, non-legal work-from assembling supportive pickets and press conferences to accompanying client-workers to meetings and serving as interpreters. The lawyers do not participate in the forma- tion of organizing strategies; nor are they involved with protests or other direct actions. The CDP attorneys manage multiple lines of communication between and among participants in this framework: worker-clients, the community group and its organizers, CDP lawyers, and pro bono law firm lawyers, with whom the CDP partners in larger-scale 5 As Sameer Ashar has observed, "unlike conventional public interest law, the le- gal work [i]s not central to the larger campaign or to the effort for [in the case of restaurant workers] building organizational capacity to improve working conditions in the restaurant industry." Sameer M. Ashar, Public Interest Lawyers and Resistance Movements, 95 CAL. L. REv. 1879, 1917 (2007). 222 HeinOnline -- 13 N.Y. City L. Rev. 216 2009 2009] LAWYERS AS RESOURCE ALLIES 217 federal litigation. (See Figure 2.) While our immediate focus is the case at hand, and while our ethical duty remains to the individual worker-clients, CDP lawyers take into account the community group's organizing goals as much as practicable. The CDP serves a diverse range of worker-centered commu- nity groups. These include the National Mobilization Against Sweatshops, a workers' center located on the Lower East Side of Manhattan and in downtown Brooklyn; the Chinese Staff and Workers Association, a workers' center located in Manhattan and Brooklyn Chinatowns; Domestic Workers United, a group support- ing and led by New York City-area domestic workers; Andolan, a Queens-based, mostly domestic workers' group; and the Restaurant Opportunities Center of New York, which supports restaurant workers' organizing. Many of these organizations epitomize "non-traditional or- ganizing efforts by community-based worker centers"6 and a "com- prehensive effort to build a new labor movement to fight against exploitation of immigrants and other working-class people."7 While the groups we support are located in and focused on New York City, they are conscious of large-scale social, political, and eco- nomic conditions,' and "conceptualize [their] work as opposed to the forces of neoliberal globalization"'' and the "worsening condi- tions created by deregulated market forces."10 The CDP is distinct from agencies with organizers on staff (represented in this volume by CASA de Maryland), as the crux of the CDP model is the extralegal partnership between CDP attor- neys and community groups or organizations. To be sure, each model has its joys and challenges. On balance, however, and as fleshed out in the following sections, I argue that the CDP's model has distinct advantages from the perspective of workers' rights lawy- ering and community-based legal advocacy. 6 Victor Narro, Finding the Synergy Between Law and Organizing:Experiences From the Streets of Los Angeles, 35 FoRHAm URnB. L.J. 339, 341 (2008). 7 Id. at 342. 8 For example, some of the groups supported by the CDP belong to the national Break the Chains Alliance, which calls for the elimination of the punitive employer sanctions provision under the Immigration Reform and Control Act of 1986. See Break the Chains, Employer Sanctions, http://www.breakthechainsnow.org/em- ployer%20sanctions.htm (last visited Nov. 28, 2009). See also Michael J. Wishnie, Prohibitingthe Employment of UnauthorizedImmigrants: the Experiment Fails, 2007 U. CHI. LEGAL F. 193 (2007). 9 Ashar, supra note 5, at 1923. 10 Id. 223 HeinOnline -- 13 N.Y. City L. Rev. 217 2009 218 NEW YORK CITY LAW REVIEW [Vol. 13:213 II. USING A RESOURCE-ALLY LAWYERING MODEL TO MOVE BEYOND TRADITIONAL LEGAL SERVICES AND THE CRITIQUE OF EXTRALEGAL ACTIVISM In the last 75 years, perceptions of public interest lawyering and the progressive function of law have shifted dramatically. The middle of the twentieth century saw an acceptance of the primacy of law in enacting social change.11 Impact litigators were highly visi- ble, and the legislature and courts were receptive to their progres- sive ideas-indeed, the paradigmatic proofs are the oft-cited New Deal Labor and Civil Rights movements. 12 Legal services attorneys enjoyed a trickle-down ascendancy; they could take heart in their connection to the large-scale cases that seemed to be transforming America. Individual and community clients were grateful to secure representation from these attorneys. During the following decades, critical evaluation justly problematized this view.'" Most of us are now familiar with these criticisms, which have hardened into the stereotypical image of an authoritative, domineering attorney, single-minded in his adher- ence to legal solutions. This attorney always wears a suit, remains in his office, and condescends to clients and their agendas. He be- lieves strongly that the vindication of legal rights is the culmination of struggle. Two parallel strands of thought emerged in reaction to this traditional mode of rights lawyering. First, on the micro-level, came Gerald L6pez's "rebellious lawyering" critique, which jolted indi- vidual lawyers from their entrenched practices." Rebellious lawyer- ing gave rise to productive self-reflection and external critiques, resulting in the now canonical models of collaborative lawyering, client-centered lawyering, and critical lawyering 5 In addition to revising our thinking about the lawyer-client relationship, rebel- lious lawyering led to the development of alternative lawyering models, including community-based law offices, lawyering con- 11 See Lobel, supra note 2, at 946. 12 Id. at 942. 13 Id. at 948. 14 See GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PRO- GRESsrVE LAw PRACriCE (1992). 15 See, e.g., Louise G. Trubek, Embedded Practices:Lawyers, Clients, and Social Change, 31 HARv. C.R.-C.L. L. REv. 415, 416 (1986); Lucie E. White, To Learn and Teach: Les- sons from Driefontein on Lawyering and Power, 1988 Wis. L. REv. 699, 740-42 (1988); Marsico, supra note 1, at 639-40; Narro, supranote 6, at 339 n.l. For a comprehensive bibliography of literature on law and organizing, see generally Loretta Price & Melinda Davis, Seeds of Change: A BibliographicIntroduction to Law and Organizing,26 N.Y.U. REv. L. & Soc. CHANGE 615 (2000-01). 224 HeinOnline -- 13 N.Y. City L. Rev. 218 2009 20091 LAWYERS AS RESOURCE ALLIES 219 nected to community organizing, and community development ad- vocacy. These models reflected a distrust of the law and a "view that the law is not capable of protecting the interests of the poor and subordinated."1 6 On the macro-level, the "critique of rights," as articulated by Mark Tushnet, warned against overreliance on potentially pyrrhic legal victories. 7 At the heart of the critique of rights was an episte- mic legal indeterminacy thesis-that "nothing whatever follows from a court's adoption of some legal rule," 8 and that "[p] rogressive legal victories occur.., because of the surrounding social circumstances."19 This critique, like its rebellious counter- part, reoriented public interest attorneys, bringing community members, community organizers, and social and political factors into daily practice concerns. In recent years, decades after the rebellious and rights-based critiques first emerged, thinkers and practitioners are revisiting them. Commentators observe that, driven to their logical conclu- sions, these critiques have led to an unproductive pessimism about the law and "role confusion" on the part of community lawyers.2" Lawyers are now unduly skeptical of their own discipline and too eager to take up other mantles, including organizing and strategic planning. As one scholar has pointed out: The new scholarship chides poverty lawyers to be reflective- indeed humble-about their own pretentions to change the world .... Yet at the same time, the new vision of collaboration can be understood to authorize well-meaning lawyers to intrude into the few spaces where poor people can work out their own 21 strategies and priorities. As lawyers qua lawyers, according to this argument, we have abdi- cated our status as "autonomous agent[s], [who] also ha[ve] views and principles that deserve recognition and expression,"22 yet we feel free to advise on other matters. Our devaluing of the legal 16 Michael Diamond, Community Lauyering: Revisiting the Old Neighborhood, 32 COLUM. HUM. RTS. L. REx'. 67, 107 (2000). 17 Mark Tushnet, The Critique of Rights, 47 SMU L. REV. 23, 24 (1993). 18 Id. at 32. 19 Id. 20 Regarding lawyers and clients, the rebellious call to reject lawyer-client hierar- chy and to respect the cultural and communal factors that shape our lawyering re- mains important. Social justice lawyers must be vigilant against the creep of privilege (whether based on education, class, race, gender, sexuality, or language) and the temptation to dominate the client. 21 Lucie E. White, Collaborative Lauyering in the Field? On Mapping the Paths from Rhetoric to Practice, 1 CLINIcAL L. REv. 157, 159-60 (1994). 22 Diamond, supra note 16, at 114. 225 HeinOnline -- 13 N.Y. City L. Rev. 219 2009 220 NEW YORK CITY LAW REVIEW [Vol. 13:213 realm may have also produced an overly optimistic view of extrale- gal activism, which assumes a clear separation between legal and and takes for granted that non-lawyers are im- non-legal spheres 23 mune to the dangers of cooptation and other threats to progress. So where are we now, given this vacillating trajectory? If schol- ars are correct in calling "community lawyer" a "highly recogniza- ble catchphrase [that] masks a series of philosophical problems as well as some very complicated practical ones, "24 then are we forced to choose between an orthodox but clear-cut legal services model and a fuzzy, undefined community model? The answer is "no." We should chart a middle ground between regressively traditional, "regnant" lawyering 25 and an unbounded lawyering model comprising the roles of organizer, counselor, and friend. I argue that the CDP resource-ally model, by which lawyers support community organizing through legal representation of members of external grassroots organizations, is ideal for commu- nity-minded lawyers. To adopt a well-established term, the CDP sees lawyers as "facilitators" who should perform "work that is sup- portive of, but not directly involved in, the work the client is seek- ing to accomplish. '26 Adding to this facilitative model, I employ the term "resource ally" to denote that the CDP's model, and our work- ers' rights practice in particular, involves third-party community or- ganizers and the attendant demands and benefits of tripartite lawyering. Operating as resource allies, the lawyers in the CDP avoid role confusion and are able to focus on what they do best. Separated, but not isolated, from non-legal community organizations, lawyers at the CDP provide legal services upon request and as needed. As distinct but accessible entities, therefore, we are able to prioritize our most basic and fundamental duty-to be excellent in our craft. However, there remains an additional prong of the critique of extralegal activism-that the separation of law and activism roman- ticizes and overestimates the power of local organizing to effect widespread change, given the oppressive meta-structures of global- 23 For example, Orly Lobel warns of the dangers of prioritizing extralegal activism at the risk of excluding possible legal remedies: "the [extralegal] strategies embraced by new public interest lawyers have not been shown to produce effective change in communities, and certainly there has been no assurance that these strategies fare comparatively better than legal reform." Lobel, supra note 2, at 977. This argument is addressed infra. 24 Diamond, supra note 16, at 112. 25 See LPEZ, supra note 14, at 23-28. 26 Marsico, supra note 1, at 660. 226 HeinOnline -- 13 N.Y. City L. Rev. 220 2009 2009] LAWYERS AS RESOURCE ALLIES ization. 27 This is an important but hardly fatal criticism. First, one cannot be sure that community groups' local initiatives have as mi- nor an impact on larger structures as the critique of extralegal ac- tivism ascribes to them. In our experience, community organizations are conversant in the politics and economics of globalization, and members are encouraged to connect their daily experiences to these realities, fostering activism that has a global vision. Moreover, community groups that prioritize organizing rarely reject the law altogether; rather, they are savvy about de- ploying the various tools at their disposal, including legal ones, which is where we come in. According to our lawyering model, it is up to workers and community organizers to "identify the diverse ways in which some legal regulations and formal structures contrib- ute to socially responsible practices while others produce new ' 2 forms of exclusion and inequality, ' and up to us to provide legal assistance to resolve discrete legal problems and attack structural injustices. We have found that the CDP's separation of law and or- ganizing offers a pragmatic response to the "myth of law" as much as to the "myth of activism;" our collaborative model neither over- emphasizes the law's place in social movements nor pretends that organizing efforts have no need for the law. III. THE BENEFITS OF THE CDP MODEL COMPARED TO INDIVIDUALIZED AND IN-HOUSE LAWYERING MODELS My objective in this section is to compare two approaches to community lawyering. Because of this narrow focus, I do not dis- cuss traditional legal services lawyering; nor do I intend to thereby criticize or undermine it.29 I will comment briefly, though, on the necessity of private employment litigation and the general benefits of group workers' rights litigation. 27 See Lobel, supra note 2, at 974. 28 Lobel, supra note 2, at 979. 29 In praising our model, I do not mean to "exaggerat[e] the ineffectiveness of traditional legal interventions [or] minimize[ ] the significant institutional restructur- ing that legal advocacy has achieved." Scott L. Cummings & Ingrid V. Eagly, A Critical Reflection on Law and Organizing,48 U.C.L.A. L. REv. 443, 491 (2001). I also recognize that one drawback of community lawyering is that we serve fewer people-potentially an ethical problem given the incredible need for individual legal services. However, I would argue that community lawyering is necessary and, when conducted in balance with traditional legal services, "constitutes a justifiable, justice-based allocation of re- sources away from clients' short-term needs and in favor of a community's long-term needs." Paul R. Tremblay, Rebellious Lawyering, Regnant Lawyering and Street-Level Bu- reaucracy, 43 HASTINGS L.J. 947, 950 (1992). 227 HeinOnline -- 13 N.Y. City L. Rev. 221 2009 222 NEW YORK CITY LAW REVIEW [Vol. 13:213 A. Litigating Group Workers'Rights Cases For a number of socio-political and legal reasons, workers- especially low-wage workers-rely more and more on private legal mechanisms. As others have previously noted, 30 inadequate govern- mental and union responses to workers' rights violations have made it often ineffectual for workers to seek out "business un- ions" 31 or agencies like the State Department of Labor and the Na- tional Labor Relations Board.32 Many have opined that "[f] ederal, state, and local governments have no coherent strategy for enforc- ing the rights of workers who participate in the underground econ- omy."33 Thus, low-wage workers, while not forsaking governmental agencies altogether, have turned increasingly to mainstream em- ployment law, bringing wage-and-hour claims under the Fair Labor Standards Act ("FLSA") and, in our jurisdiction, the New York La- bor Law ("NYLL"). Several factors augur in favor of bringing FLSA/NYLL cases on behalf of groups of workers. First, as suggested in the narrative prelude to this article, workers are strengthened and encouraged by one another to stand up for their rights and to navigate tempo- ral and emotional demands of litigation. 30 See, e.g., Jennifer Gordon, We Make the Road by Walking: Immigrant Workers, the Workplace Project, and the Struggle for Social Change, 30 HARv. C.R.-C.L. L. REv. 407 (1995); Julie Yates Rivchin, Building Power Among Low-Wage Immigrant Workers: Some Legal Considerationsfor Organizing Structures and Strategies, 28 N.Y.U. REv. L. & Soc. CHANGE 397 (2004); Cummings & Eagly, supra note 28. See also Narro, supra note 6. "Despite the strong connections to the union movement, workplace law and organiz- ing advocates have been forced to venture outside the scope of conventional labor law practice for a variety of reasons. Most importantly, the declining power of unions, particularly in the low-wage employment sector, has heightened the need for alterna- tive workplace organizing tactics .... This effort has been important in industries where labor has a weak presence .... These industries are also comprised of large numbers of undocumented immigrant workers who are employed on a part-time or contingency basis and who are particularly vulnerable to employer exploitation." Id. at 340-41. 31 The goals of workers' centers contrast with those of a "'business unionism' model that focuses on serving dues-paying members, immediate material interests, and using the political process to protect jobs and economic interests." Rivchin, supra note 30, at 401. However, there is movement toward bridging the divide between unions and workers' centers. For example, in 2008, the New York City Central Labor Council, a union umbrella group, embraced the Taxi Workers Alliance and Domestic Workers United, two non-union workers' organizations. See Steven Greenhouse, Labor Needs to Improve Conditions for Nonunion Workers, Official Warns, N.Y. TIMES, June 23, 2008, available at http://www.nytimes.com/2008/06/23/nyregion/23workers.html. 32 This is to say nothing about the forces of globalization and the criminalization of certain categories of immigrants in the United States, which are areas beyond the scope of this article. But see Gordon, supra note 30, at 424-27 (describing the threat of globalization on workers' rights in the domestic U.S. context). 3 Id. at 416-17. 228 HeinOnline -- 13 N.Y. City L. Rev. 222 2009 20091 LAWYERS AS RESOURCE ALLIES 223 Second, because federal wage-and-hour litigation can be costly and time-consuming, it is more efficient to do multiple-plaintiff cases. Similarly, the attorneys' fees provisions of the NYLL and FLSA make group cases (with greater potential damages) more ap- pealing to plaintiffs'-side lawyers hoping to recover for their time. Third, and on a more principled note, pursuing group cases allows us to overcome the "sustained 'internal' progressive cri- tique:"34 that the "atomistic nature of remedies offered by public interest lawyers" 35 undermines collective action and disperses so- cial conflict.36 By lawyering on behalf of groups of workers in com- munity contexts, we avoid perpetuating the separation and isolation of workers and defeating possibilities for mass mobiliza- tion and resistance. Moreover, to the extent group litigation con- nects to organizing, we lawyers can view wage-and-hour cases "not [as] endpoints but rather moments in broader campaigns to stimu- late collective action and leverage political reform."3 7 We learn about developments in labor organizing from our community part- ners, and, after earning their trust, are often asked to engage in a diversity of lawyering tasks beyond litigation, including legislative and policy work. There is a related, underappreciated benefit: our multifaceted interactions with community groups and individual clients prevent burnout and mitigate boredom, neglected but sig- nificant professional hazards. Yet group representation also poses difficulties, since our re- sponsibility as lawyers flows to each individual. Members of a plain- tiff group rarely share the same employment histories, claims, and litigation goals. And when divergent views arise, we must manage client conflicts and occasionally find alternate counsel for those whose interests require separate advocacy. Moreover, in cases in- volving dozens of workers and multiple languages, the banal tasks of communication, coordinating meetings, and group decision- making become formidable challenges. To mitigate these problems, a group of workers may designate representative plain- tiffs for purposes of making settlement decisions and communicat- 34 Ashar, supra note 5, at 1904. 35 Id. 36 Cummings & Eagly, supra note 29, at 455 (citing Richard Abel, Lawyers and the Power to Change, 7 LAw & PoL'Y 5 (1985)). We also avoid the crisis-oriented "inherent rescue preference in neighborhood legal services offices," which keeps "poverty lawy- ering . .. more or less conservative." Tremblay, supra note 29, at 970. 37 Scott L. Cummings, Hemmed In: Legal Mobilization in the Los Angeles Anti-Sweatshop Movement, 30 BERKELEYJ. EMp. & LAB. L. 102, 105 (forthcoming 2009), available at http://escholarship.org/uc/item/5k94h2nk. 229 HeinOnline -- 13 N.Y. City L. Rev. 223 2009 224 NEW YORK CITY LAW REVIEW [Vol. 13:213 ing general information to the lawyers." For our part, we prioritize individual lawyer-client relationships while staying attuned to group dynamics. By maintaining this orientation, we maximize the overall benefits of group litigation. B. Lawyering in Support of Organizing: Why COP Isn't "In-House" Counsel To date, "law and organizing" has occupied a fractional space in the community-lawyering discourse. While there are now a handful of articles and books describing law and organizing prac- tices and fleshing out their challenges, none have offered a typol- ogy of law and organizing structures or discussed their benefits and drawbacks. The literature has assumed an "in-house" model of law and organizing, where lawyers and organizers are employed by the same organization and coexist under one umbrella.39 This assump- tion is perhaps due to the fact that the Workplace Project (repre- sented in this volume),4" which began with an in-house structure, has been the touchstone for legal discussions of law and organiz- ing.41 Instructively, the founder of the Workplace Project has since criticized the in-house provision of legal services, stating that after two years of hosting a legal clinic: "[w] e have come to realize that this is not how we want the Project to function. Instead, we now see organizing immigrant workers as both our end goal and our core 4 2 strategy. As described above in Section I, the CDP resource-ally model can be conceptualized in the following diagram: 38 However, a lawyer representing multiple clients must receive informed, written consent in order to make a settlement in the aggregate on behalf of the group of clients. MODEL RULES OF PROF'L CoNDucr R. 1.8(g) (2009). 39 See, e.g., Gordon, supra note 30; Narro, supra note 6. Sameer Ashar and Richard Marsico also analyze dynamics between community groups, worker-clients, and law- yers, but do so in the law school clinical, pedagogical context. See generally Ashar, supra note 5; Marsico, supra note 1. The literature also includes important case studies that illuminate the concerns faced by lawyers working in law and organizing contexts. However, these articles do not explore relational models of lawyering in depth. See, e.g., Julie A. Su, Making the Invisible Visible: The Garment Industry's Dirty Laundry, 1 J. GENDER RACE & JusT. 405 (1998). 40 See Nadia Marin Molina & Jaime Vargas, The Role of Legal Service in Workers' Or- ganizing, 13 N.Y. CIry L. REv. (2010). 41 See Gordon, supra note 30. Virtually all subsequent writing on law and organiz- ing cites Gordon's articles in some capacity.[b ] 42 Id. at 430. Gordon also notes, " y continuing to offer legal services to anyone who will sign the contract, perhaps we have done little more than create a facade of collective action. Instead, we should build an organization with a culture of organiz- ing rather than a culture of legal services, to which workers could come when they were ready to fight for better working conditions." Id. at 445. 230 HeinOnline -- 13 N.Y. City L. Rev. 224 2009 20091 LAWYERS AS RESOURCE ALLIES 225 The CDP workers' rights attorneys, in partnership with pro bono co-counsel, develop relationships and interact continuously with the overlapping entities of member-clients, staff organizers, and the community group itself. These are not always easy connections to maintain, but they are ultimately fruitful and rewarding. In the next section, I discuss the practical and methodological benefits of our resource-ally model over the in-house counsel model. For the sake of clarity, I simplify certain distinctions and assume that the overall lawyering responsibilities of both sets of lawyers are basically equivalent. 1. Excellence and Role Confusion Lawyers working in-house at community organizations will tend to be pulled in many directions. Sharing the same office with organizers, their physical space will be energetic but potentially dis- tracting, as members of the community organization arrive for meetings, workshops, classes, and other events. If organizers are short-staffed, they may ask the lawyers to help with a variety of tasks. Although this is an exciting environment, it can make lawyer- ing difficult. There are times, when meeting with clients at work- ers' centers, that I have occasion to babysit, color posters, and set up tables and chairs. I am grateful to do this work and be made welcome in these spaces. Yet, at the end of the day, I can return to my office and to tackle research, writing, and other quotidian legal tasks. After all, I have been hired for a reason, and I must respect my clients' "right to choose to retain an attorney to perform cer- tain tasks."43 43 Marsico, supra note 1, at 657. 231 HeinOnline -- 13 N.Y. City L. Rev. 225 2009 226 NEW YORK CITY LAW REVIEW [Vol. 13:213 The spatial boundary inherent to the CDP model prevents us from engaging in activities we are not trained to do. Generally speaking, law school does not train us "to deal with the non-legal aspects of social or economic problems or, for that matter, with any form of multi-dimensional problem-solving,"" and while we should learn to think in broader, more diverse ways, we should also be humble about how much we can realistically accomplish. In-house lawyers, working so intimately and on a daily basis with organizers and members, may find it difficult to resist contributing organizing strategies or press and policy ideas, or responding to clients' crisis situations.45 Even when a community group tries to maintain sepa- ration between in-house lawyers and organizers, it may be impossi- 4 6 ble, as a practical matter, to do SO. Separation can also benefit the clients. As noted above, indi- viduals in a group of plaintiffs may disagree on case strategies or harbor personal apprehensions related to the litigation. Conflicts may also emerge over organizing tactics surrounding a lawsuit. To the extent clients perceive a demarcation between lawyers and or- ganizers, they are more likely to express concerns and anxieties- to lawyers about organizing, or to organizers about lawyering. 2. Resource Allocation The reality of public interest organizations is that activities may be planned and ranked according to available funding. For an in-house organization, funding streams for legal services and or- ganizing may overlap. Due to the relatively higher salaries of law- yers and the considerable costs of litigation, organizations may tend to provide more resources to in-house lawyering than organizing. 44 Diamond, supra note 16, at 76. 45 Even in situations with organizational separation, lawyers may be tempted to fulfill social services tasks. Scott Cummings describes howJulie Su, the primary lawyer for the imprisoned Thai workers in the El Monte sweatshop campaign, recruited vol- unteer English as a Second Language ("ESL") teachers, made doctor appointments for her clients, and helped them find housing and jobs in addition to her legal work on the case. Cummings, supra note 37, at 121. We should acknowledge that lawyers usually have neither the training nor the resources to provide for their clients in this manner. 46 Organizers and directors of organizations, nevertheless, try their best to institute a separation between the group's legal and organizing work. Cummings and Eagly cite Make the Road New York as one example of an organization that pursues this approach. See Cummings & Eagly, supra note 29, at 509 n.271 (quoting a telephone interview with Andrew Friedman, co-director of Make the Road New York ("MRNY"), about MRNY's decision to separate legal and organizing work by not allowing or- ganizers to participate in legal cases). 232 HeinOnline -- 13 N.Y. City L. Rev. 226 2009 20091 LAWYERS AS RESOURCE ALLIES 227 While the CDP occasionally fundraisesjointly with community- group partners, it is responsible only for its own operations. As re- source allies unengaged in organizing, the CDP lawyers are spared the challenge of choosing between handling another workers' rights case and hosting an additional day of pickets against a bad employer. The client-community group members and the CDP team of attorneys can therefore make separate, strategic decisions about resource allocation. At the same time, resource conflicts arise from the fact that the CDP serves many different community groups with substantial litigation needs. Resource shortages are endemic to public interest offices generally, and the CDP is no exception. To maximize our effectiveness, CDP attorneys may select cases based on likelihood of success or legal impact. The CDP workers' rights team also relies on community organizations to prioritize potential cases for litigation. 3. Ethics Writers have already commented on the numerous ethical is- sues that arise in the context of community lawyering generally, and law and organizing in particular.47 My contribution to this scholarship is to argue that, while these issues affect both in-house lawyers and resource-ally lawyers, the separation afforded by the CDP model makes our ethical worries less acute. One frequently discussed ethical issue concerns the prohibi- tion against communicating with a represented party.48 Consider the following hypothetical: in a workers' rights case, a demonstra- tion is held in front of the defendant-employer's home. The defen- dant's attorney raises this issue with the presiding judge, who immediately reproaches the plaintiffs public interest attorney for having orchestrated the protest. The judge accuses plaintiffs coun- sel of having used the protesters as agents to "communicate" with the represented defendant-employer during the protest, in viola- 47 See, e.g., Cummings & Eagly, supra note 29, at 502-16 (describing ethical consid- erations of establishing an attorney-client relationship, confidentiality, conflict of in- terest, scope of representation, and avoiding unauthorized practice of law for lawyers who use a law and organizing model); see generally Ashar, supra note 5. 48 "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another law- yer in the matter, unless the lawyer has the consent of the other lawyer or is author- ized to do so by law or a court order." MODEL RuLEs OF PROF'L CONDUCr R. 4.2(a) (2009). 233 HeinOnline -- 13 N.Y. City L. Rev. 227 2009 NEW YORK CITY LAW REVIEW [Vol. 13:213 tion of ethics rules, even though the demonstration had been planned by the workers' center to which the plaintiff belongs. Were a CDP lawyer faced with this situation, she would have no qualms explaining that the CDP is distinct from the workers' center and that the CDP was uninvolved in coordination of the protest. Indeed, CDP attorneys do not organize, attend, or other- wise take part in any direct actions connected to CDP cases. But how would in-house lawyers defend themselves against such a charge, however ill-founded? A judge would likely be incredulous at the in-house lawyers' disassociation from their organizer-cowork- ers, as the protest would have been organized in the name of the community group that employs both the organizers and lawyers. A second important ethical concern is attorney-client privi- lege.49 The presence of community-group organizers, like anyone else, at client meetings ordinarily pierces attorney-client privilege. However, this is not true when organizers serve as interpreters, which they are often needed to do. Lawyers in the CDP routinely rely on bilingual organizers to interpret from, for example, Span- ish to English and vice versa, and we make clear that the organizers are there to play this interpretive role. By comparison, in the in- house lawyering context, because of the fluidity and spatial coinci- dence of legal and extralegal interactions, organizers present at lawyer-client meetings may initially begin as interpreters but then slip inadvertently into an organizing posture, endangering attor- ney-client privilege. This only infrequently arises in the CDP's cases, since the meetings we attend with our clients tend to have a deliberately legal tenor. Another issue is that of third-party influence. Ethical rules limit outside influence over client decision-making by requiring lawyers to take direction only from their clients and by prohibiting lawyers from receiving payments from third parties.5 ° In an organi- zation that coordinates both in-house litigation and organizing 49 For a discussion of how the City University of New York School of Law's Immi- grant & Refugee Rights Clinic addressed concerns about attorney-client privilege in a workers' rights organizing campaign with the Restaurant Opportunities Center of New York, see Ashar, supra note 5, at 1910. 50 See Trubek, supra note 15, at 434. The Model Rules of Professional Conduct also provide guidance on a lawyer's duty to a client when payment for legal services is made by a party other than the client. "A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives in- formed consent; (2) there is no interference with the lawyer's independence of pro- fessionaljudgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6." MODEL RuLES OF PROF'L CONDUCT R. 1.8(0 (2009). 234 HeinOnline -- 13 N.Y. City L. Rev. 228 2009 2009] LAWYERS AS RESOURCE ALLIES 229 campaigns, could certain legal decisions be influenced or deter- mined by the timing and aim of the organizing work? The answer is presumably "yes," and in-house attorneys must be vigilant to pre- serve client autonomy in decision-making. The CDP, too, has faced such situations: there have been instances when a community group wants to schedule a press conference to announce the filing of a workers' rights case when the court complaint is not yet ready, posing potential harms to the workers' legal claims while poten- tially benefiting the organizing campaign. The ensuing conversa- tion among workers, organizers, and attorneys can be difficult, as we lawyers must prioritize our clients and the integrity of their complaint. Whether working as resource allies or in-house counsel, "we could either reject the influence of the organizers or learn to discern the boundaries between lawyer-client, lawyer-organizer, and client-organizer decision-making."51 In general, we choose the latter path, navigating these relationships and weighing priorities to find workable solutions compatible with our duty to the clients. The ethical prohibition of unauthorized practice of law ("UPL") is a fourth challenge. A public interest practice will invari- ably involve some counseling over the telephone, conducting know-your-rights workshops, and engaging in various forms of community education. With this comes the possibility of UPL by unsupervised paralegals, organizers, and other non-attorneys, who may have extensive legal knowledge and insight into clients' problems but are nonetheless prohibited from practicing law-that is, applying law to facts.52 Because the CDP has relationships with non-legal groups, we know that advocates and organizers in those groups may find it difficult to distinguish between lawyering and talking to workers about their claims in general terms, especially when it comes to seemingly straightforward matters like statutes of limitations or potential damages. Organizations where in-house counsel and organizers work together, faced with staff members' overlapping spheres of action and possible confusion on the part of clients, may find it that much harder to prevent instances of UPL by organizers and other non-attorney staff. Finally, in extreme situations, ethical issues could arise from 51 Ashar, supra note 5, at 1910. 52 Trubek, supra note 15, at 435. Again, the Model Rules of Professional Conduct comment on the unauthorized practice of law by non-lawyers. "A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so." MODEL RuLES or PROF'L CONDUCr R. 5.5(a) (2009). 235 HeinOnline -- 13 N.Y. City L. Rev. 229 2009 230 NEW YORK CITY LAW REVIEW [Vol. 13:213 workers' decisions to engage in unlawful protest actions." The eth- ical rules tightly circumscribe lawyers' counseling of clients as to intended illegal acts, but, from an organizing standpoint, aggrieved workers may feel the need to resort to such strategies. With or- ganizers and lawyers in the same group, the in-house lawyers would likely learn about and be forced to counsel workers against even relatively minor illegalities, such as trespass or disorderly conduct, which could constrain organizing options. As resource allies, by contrast, CDP lawyers are generally not consulted about organizing strategies and therefore avoid facing this dilemma (although we would similarly have to counsel against unlawful actions if pressed). 4. Power and Hierarchy It is well recognized that individual legal services can be used as a "draw" to bring members into organizing, as clients may per- ceive that "[f1inding a lawyer to resolve the problem presents the least risk and the biggest possible benefit."5 4 A worker may initially be drawn to a group or organization because of her own legal problem, but then become interested in the larger organizing cam- paigns run by that group or workers' center. However, workers seeking individual legal services may not always wish to participate. Organizing is hard work, and it presents no sure path from A to B. It also requires a lot of time and personal energy, as opposed to entrusting a case to a lawyer for litigation. Some of the organizers I work with are selective about inviting lawyers to meetings and other gatherings, observing that workers may rely too much on lawyers and possess an inflated trust in the legal system. A separation between law and organizing, therefore, can promote opportunities for leadership development and the mutual strengthening of groups of workers, a particularly impor- tant goal in hostile political climates. 55 The resource-ally model also mitigates the perception that lawyers are driving the organiz- ing agenda or that legal and organizing authority is vested in the 53 Diamond, supra note 16, at 125. The Model Rules of Professional Conduct state: "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal conse- quences of any proposed course of conduct with a client and may counsel or assist client to make a good faith effort to determine the validity, scope, meaning or appli- cation of the law." MODEL RuLEs OF PROF'L CONDUCT R. 1.2(d) (2009). 54 Gordon, supra note 30, at 439-40. 55 Sameer Ashar notes that especially in an anti-immigrant environment, "active participation in rights-based campaigns and in organization-building strengthens the sense of membership in American communities and the solidarity of some of the immigrant workers." Ashar, supra note 5, at 1921. 236 HeinOnline -- 13 N.Y. City L. Rev. 230 2009 20091 LAWYERS AS RESOURCE ALLIES same person.56 We can apply what we have learned from critiques of legal services to this scenario: "[U]ust as poverty lawyers must be careful not to use their technical sophistication and legal knowl- edge to disempower clients, they must also guard against reifying the concept of organizing and using it to advance a social change agenda that does not reflect the needs and desires of client communities."57 The rejoinder to my view is that the CDP's separation of law from organizing represents a return to the disengaged traditional legal services model. As one critic has noted: "[a] key component of the [legal services] model to serve the poor is a separate staff attorney office that provides services for no cost; this aspect relates to the concept that the poor are a unified group and require attor- neys with specialized knowledge."58 Could this criticism-that sepa- ration between lawyerly professionals and community groups reifies identity and power disparities-apply to the CDP's resource- ally model as well? Perhaps, but it is equally possible that the group affirmation facilitated by community groups acts as an antidote to these hierarchical threats. Moreover, our generation of community lawyers is more sensitive to these potential drawbacks. In the CDP, for example, while remaining secure in our role as lawyers, we re- late to our clients on a personal level, wearing street clothes, avoid- ing legalese, and speaking in our clients' languages (Spanish, Chinese, and Korean, among others) as much as possible. We meet with clients at the community organizations and workers' centers to which they belong. We also attend our partner groups' social events, where we meet clients' and organizers' families and friends, and bring ours along, too. None of these measures eliminate barriers completely, but this is not necessarily a bad thing. Again, as explained above, our cli- ents enlist CDP attorneys to work on their cases and campaigns precisely because we bring something different to the table. Our professional knowledge and skills allow us to play a partnering role 56 See Diamond, supra note 16, at 124 ("When the functions of attorney and orga- nizer are combined in one person, several difficulties may surface. For instance, the group may lose the benefit of the independent perspectives provided by the lawyer and the organizer. Indeed, there may be no other person to provide an effective counterpoint to the lawyer/organizer's positions. Without this counterpoint, the visi- bility and centrality of a lawyer increases, along with his or her ability to influence group decision-making."). Id. 57 Cummings & Eagly, supra note 29, at 497. 58 Trubek, supra note 15, at 436. 237 HeinOnline -- 13 N.Y. City L. Rev. 231 2009 232 NEW YORK CITY LAW REVIEW [Vol. 13:213 in their struggles, and it is a pleasure and honor to do so, even in a limited manner. IV. CONCLUSION In this article, I make a theoretical and practical case for why lawyers should consider using a resource-ally lawyering model in the workers' rights context. I begin by outlining this model as prac- ticed by the CDP. Second, I attempt to explain the historical con- text in which community lawyering has developed and how the resource-ally model fits into this framework, and argue that the CDP model responds effectively to the paradox of extralegal activ- ism. In the third section, after a brief note on group litigation, I advocate for the resource-ally model over in-house community lawyering along the axes of specialization, resource allocation, eth- ics, and power dynamics. By arguing for resource-ally lawyering, my intention is not to criticize the important work of in-house lawyers and their commu- nity organizations. I seek instead to deepen our understanding of different models of tripartite lawyering, a topic deserving nuanced analyses and an enlarged presence in legal scholarship. Above all, I hope to engage community lawyers in productive reflection and dialogue about our work, with the goal of advancing our clients' interests and greater social change. 238 HeinOnline -- 13 N.Y. City L. Rev. 232 2009 New York State Rules of Professional Conduct RULE 1.6. Confidentiality of Information (a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless: (1) the client gives informed consent, as defined in Rule 1.0(j); (2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or (3) the disclosure is permitted by paragraph (b). “Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates. (b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime; (3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud; (4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm; (5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or (6) when permitted or required under these Rules or to comply with other law or court order. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure or use of, or unauthorized access to, information protected by Rules 1.6, 1.9(c), or 1.18(b). 239 RULE 1.7. Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that either: (1) the representation will involve the lawyer in representing differing interests; or (2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. RULE 4.2. Communication With Person Represented By Counsel (a) In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law. (b) Notwithstanding the prohibitions of paragraph (a), and unless otherwise prohibited by law, a lawyer may cause a client to communicate with a represented person unless the represented person is not legally competent, and may counsel the client with respect to those communications, provided the lawyer gives reasonable advance notice to the represented person’s counsel that such communications will be taking place. (c) A lawyer who is acting pro se or is represented by counsel in a matter is subject to paragraph (a), but may communicate with a represented person, unless otherwise prohibited by law and unless the represented person is not legally competent, provided the lawyer or the lawyer’s counsel gives reasonable advance notice to the represented person’s counsel that such communications will be taking place. RULE 5.3. Lawyer’s Responsibility for Conduct of Nonlawyers (a) A law firm shall ensure that the work of nonlawyers who work for the firm is adequately supervised, as appropriate. A lawyer with direct supervisory authority over a nonlawyer shall adequately supervise the work of the nonlawyer, as appropriate. In either case, the degree of supervision required is that which is reasonable under the circumstances, taking into account factors such as the experience of the person whose work is being supervised, the amount of work involved in a particular matter and the likelihood that ethical problems might arise in the course of working on the matter. 240 (b) A lawyer shall be responsible for conduct of a nonlawyer employed or retained by or associated with the lawyer that would be a violation of these Rules if engaged in by a lawyer, if: (1) the lawyer orders or directs the specific conduct or, with knowledge of the specific conduct, ratifies it; or (2) the lawyer is a partner in a law firm or is a lawyer who individually or together with other lawyers possesses comparable managerial responsibility in a law firm in which the nonlawyer is employed or is a lawyer who has supervisory authority over the nonlawyer; and (i) knows of such conduct at a time when it could be prevented or its consequences avoided or mitigated but fails to take reasonable remedial action; or (ii) in the exercise of reasonable management or supervisory authority should have known of the conduct so that reasonable remedial action could have been taken at a time when the consequences of the conduct could have been avoided or mitigated. RULE 5.4. Professional Independence of a Lawyer (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm or another lawyer associated in the firm may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons; (2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that portion of the total compensation that fairly represents the services rendered by the deceased lawyer; and (3) a lawyer or law firm may compensate a nonlawyer employee or include a nonlawyer employee in a retirement plan based in whole or in part on a profitsharing arrangement. (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (c) Unless authorized by law, a lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal service for another to direct or regulate the lawyer’s professional judgment in rendering such legal services or to cause the lawyer to compromise the lawyer’s duty to maintain the confidential information of the client under Rule 1.6. (d) A lawyer shall not practice with or in the form of an entity authorized to practice law for profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a member, corporate director or officer thereof or occupies a position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. RULE 5.5. Unauthorized Practice of Law (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. (b) A lawyer shall not aid a nonlawyer in the unauthorized practice of law. 241 242 ABA Model Rules of Professional Conduct Client-Lawyer Relationship Rule 1.6 Confidentiality Of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; (6) to comply with other law or a court order; or (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. 243 Transactions With Persons Other Than Clients Rule 4.2 Communication With Person Represented By Counsel In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Client-Lawyer Relationship Rule 1.7 Conflict Of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing 244 CO-COUNSEL AGREEMENT This agreement is entered into on [DATE] by Catholic Migration Services (“CMS”) and XYZ Firm (the “Firm”). CMS and the Firm (collectively, the “Parties”) enter into this agreement in order to lay out the terms of their co-counsel arrangement with regard to the matter described below. I. MATTER INVOLVED AND COUNSEL FUNCTIONS This agreement concerns representation of Clients A, B, and C and any others whose identity may subsequently become known and who may retain the Parties as counsel (collectively, the “Plaintiffs”), in an action in the United States District Court for the Southern District of New York against Wage Thief, LLC, and some of its owners, managers, and affiliates (collectively, the “Defendants”), for violations of wage and hour laws arising out of the Plaintiffs' employment. CMS and the Firm will serve as co-counsel in this matter. II. THE PLAINTIFFS’ RELATIONSHIP TO THE PARTIES A. The retainer agreements to be signed by the Plaintiffs specify in greater detail the conditions under which CMS and the Firm have agreed to represent the Plaintiffs. B. Any dispute between a Plaintiff and one or more of the Parties shall be governed by the Plaintiff client retainer agreements. III. COSTS, FEES AND RELATED EXPENSES A. Costs 1. CMS and the Firm shall each pay the following out-of-pocket costs each incurs, subject to reimbursement from a subsequent cost and fee award from the court, a damages award, or a settlement: (a) Copying (b) Long distance telephone and facsimile line charges (c) Mailing/delivery fees (d) Travel (e) Printing (f) Meetings with clients 2. The Firm shall pay the following out-of-pocket costs incurred, subject to the approval of Managing Partner at XYZ Firm, in the course of the litigation, subject to reimbursement from a subsequent cost and fee award from the court, a damages award, or a settlement. (a) Transcripts 245 Co-Counsel Agreement (b) Court reporters and depositions (c) Filing and witness fees (d) Expert fees (e) Translation and Interpretation fees 3. CMS and the Firm each agree to absorb costs that are incurred in normal office operation, e.g., local telephone calls, copying, word processing, secretarial or support staff time (including overtime), food, transportation, and legal research fees. 4. The Parties shall consult each other before significant expenditures related to the case are undertaken. B. Division of Fees 1. References to fees or attorneys’ fees herein refer to reasonable attorneys’ fees arising from time billed by attorneys, paralegals and other support staff in this matter. 2. Each Party has the sole discretion not to seek recovery of any or all costs it has incurred and not to seek recovery for any or all hours spent on this matter by the employees of the Party. The Parties retain this discretion whether costs and fees become the subject of a court award or part of a settlement. 3. If a settlement agreement including attorneys’ fees is reached, the Parties, unless they agree otherwise, will divide the attorneys’ fees based on a pro rata share of fees that would reasonably be included in a motion for attorneys’ fees.1 4. If attorneys’ fees are awarded by the court and the court does not specify the amount of fees being awarded to CMS and the Firm, respectively, the Parties will divide the fees based on their pro rata share of fees that would reasonably be included in a motion for attorneys’ fees. 5. CMS may request that the Firm donate attorneys’ fees recovered by the Firm in this matter, but the Firm retains full discretion as to whether to make any such donation. The Firm recognizes that the recovery of attorneys’ fees and the donations of fees are necessary for CMS to continue to serve low-income New York residents with similar problems. IV. DECISION-MAKING AND COUNSEL FUNCTIONS A. CMS and the Firm will serve as co-counsel in the matter; they will exercise joint control over the Plaintiffs’ representation and will have joint decision-making authority. The Firm will have primary responsibility for the performance of the work required by the representation, and CMS will assist in the performance of the required work. The Firm will be the primary contact with the clients and the court unless otherwise agreed by the Parties in 1 CMS and the Firm will attempt to calculate fees based on the reasonable hourly rates normally awarded for the type of work in question in the relevant judicial district. Page 2 of 3 246 Co-Counsel Agreement particular instances. Except when infeasible, the Parties shall notify each other promptly of all significant developments and consult in advance about any significant decisions attendant to those developments. The Parties agree to work diligently to seek to ensure that the other Party is fully informed at all times about the status of the case and the courses of action that are being considered and followed. B. The Parties shall consult with each other prior to submitting any filings, briefs, motions, letters or other formal legal documents to any court on the Plaintiffs’ behalf. C. The Parties, unless they have agreed otherwise, shall consult with each other prior to any material communications with any opponents in the matter or with any counsel representing such opponents. V. GENERAL MATTERS A. All documents pertaining to this matter that are submitted to any court on the Plaintiffs’ behalf during the life of this agreement shall list the attorneys for CMS and the Firm as counsel for the Plaintiffs. B. CMS will have primary responsibility for public education concerning the case, including issuing any related press releases and responding to any press inquiries. The Firm shall retain discretion with respect to its own internal and external publicity regarding the case. VI. TERMINATION AND MODIFICATION OF AGREEMENT This agreement shall be binding upon the Parties and their respective legal representatives and successors. It shall not be modified except by written agreement of the Parties. Date:______Catholic Migration Services Date: ______Managing Partner XYZ Firm Page 3 of 3 247 248 Case 1:14-cv-02657-DLC-KNF Document 329-1 Filed 10/18/17 Page 1 of 4 NOTICE OF OVERTIME PAY CLASS ACTION LAWSUIT AGAINST BLOOMBERG L.P. TO: All persons who worked as Analytics Representatives for BLOOMBERG L.P. in New York at any time between April 14, 2008 and the present. RE: Lawsuit against BLOOMBERG, L.P. for unpaid overtime wages. I. PURPOSE OF THIS NOTICE The purpose of this Notice is to tell you about a lawsuit filed by several former Analytics Representatives against Bloomberg, L.P. called Roseman et al. v. Bloomberg L.P. You are receiving this notice because Bloomberg's records indicate that you were an Analytics Representative during part of the period between April 14, 2008 and the present. This Notice will tell you about your rights in this lawsuit. II. WHAT THE LAWSUIT IS ABOUT The lawsuit claims that defendant Bloomberg violated New York state law by failing to pay Analytics Representatives for any hours worked over forty in a pay week and failing to pay overtime wages. The lawsuit seeks unpaid overtime wages, plus liquidated damages, prejudgment interest, attorney's fees and other costs. Bloomberg denies that it violated New York state overtime law. For example, Bloomberg denies that it was required to pay Analytics Representatives overtime because they were properly classified as exempt from overtime requirements based on the nature of their job duties. III. THE CLASS On September 21, 2017, the Court certified a class including the following individuals: all current and former employees of Bloomberg, L.P. who worked as Representatives in the Analytics Department in New York who were not paid overtime for hours over forty in one or more weeks at any time between April 14, 2008 and the present ("Analytics Representatives"). IV. WHO IS IN THE CLASS Everyone who meets the class definition is now a member of the class in this case. You do not need to file any form to be a member of the class and participate in this case as a Class Member. You are a Class Member: x even though you were paid a salary. x even if you have already received a settlement payment from another overtime class action against Bloomberg. x even if you do not have records of your hours of work. V. HOW TO EXCLUDE YOURSELF IF YOU DO NOT WANT TO BE PART OF THIS CASE You do not have to do anything to remain in the case. This section provides you with instructions on how to exclude yourself from the case, if you wish to file your own separate lawsuit against Bloomberg or for any other reason. While you are not obligated to be part of the case, you should understand that: 249 xCase This 1:14-cv-02657-DLC-KNF Notice has been sent to over 1,400 Document current and 329-1 former Filed Analytics 10/18/17 Reps. Page 2 of 4 x If you wish to remain in the case your name will not be publicly disclosed or filed with the Court. x Neither Bloomberg nor your current employer can retaliate against you for remaining in this case. x Discovery in this case has concluded and if you remain in the case Bloomberg will not ask to take your deposition or expect you to produce documents. To be excluded from this case, you must sign the attached Opt-Out Statement and mail it to the plaintiffs' lawyers at the address indicated on the Statement. To be effective, the Opt-Out Statement must be mailed and postmarked by no later than [date 60 days from mailing]. If you exclude yourself from this case, you will retain the right to start your own lawsuit against Bloomberg. You should be aware that all claims are subject to a statute of limitations. VI. THE EFFECT OF PARTICIPATING IN THIS CASE If you do not return the attached Opt-Out Statement by [insert date], you will automatically be included in the class and you will be bound by any decision on the New York state claims in this case, whether it is favorable or unfavorable. If the case is successful you will be eligible to share in any money received in the lawsuit (either through a decision of the Court or through a settlement). If the case is unsuccessful, you will not receive a recovery. If you do not exclude yourself from the state claims, you are agreeing to designate named plaintiff Alexander Lee as your representative for overtime wage claims under the laws of New York the below listed attorneys from and Getman Sweeney & Dunn, PLLC as your attorneys to make decisions on your behalf concerning this case. VI. NO RETALIATION AGAINST ANYONE WHO PARTICIPATES IN THIS CASE The law prohibits Bloomberg from retaliating against you, discharging you, or in any manner discriminating against you because you participate in the lawsuit or have in any other way exercised your rights under the law. VII. YOUR LEGAL REPRESENTATIVE IF YOU DO NOT EXCLUDE YOURSELF FROM THIS LAWSUIT If you do not exclude yourself from this lawsuit or file your own appearance as described below, you will be represented by plaintiffs' attorneys listed below: Dan Getman Lesley Tse Artemio Guerra Getman Sweeney & Dunn, PLLC 260 Fair St. Kingston, NY 12401 845-255-9370 (PHONE) / 845-255-8649 (FAX) [email protected] http://www.getmansweeney.com 250 CaseThe attorneys 1:14-cv-02657-DLC-KNF for the plaintiffs will be paid Document on a contingency 329-1 feeFiled basis 10/18/17 if they are successfulPage 3 of at 4 trial or through settlement. The attorneys will seek to be paid either up to 1/3 of the fund generated by their work or their earned fees which will be recovered separately from Bloomberg, whichever is greater. The Court will determine the fairness of any fees to be awarded if plaintiffs are successful. If you wish to be represented by your own lawyer, you may hire one at your own expense. If you do hire your own lawyer, you have the right to enter an appearance in the lawsuit through that attorney if you choose. If you do not enter a notice through another attorney, you will be represented by Getman, Sweeney & Dunn, PLLC, as described above. VIII. FURTHER INFORMATION Plaintiffs' Complaint, Defendant's Answer, the Court's opinions, and various other documents filed in this lawsuit are available for inspection on plaintiffs' counsel's website www.getmansweeney.com or by contacting plaintiffs' counsel at 845-255-9370. If you have any questions about this Notice, the lawsuit, or the procedure for participating in or opting out of the lawsuit, you may contact plaintiffs' attorneys at 845-255-9370 or visit their website at www.getmansweeney.com. THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE HONORABLE DENISE COTE, U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK. THE COURT HAS TAKEN NO POSITION IN THIS CASE REGARDING THE MERITS OF PLAINTIFF'S CLAIMS OR OF THE DEFENDANT'S DEFENSES. PLEASE DO NOT CONTACT THE COURT, THE COURT'S CLERK, OR THE JUDGE. 251 Case 1:14-cv-02657-DLC-KNF Document 329-1 Filed 10/18/17 Page 4 of 4 OPT-OUT STATEMENT DO NOT SUBMIT THIS FORM IF YOU WANT TO BE PART OF THIS CASE! YOU SHOULD SUBMIT THIS FORM ONLY IF YOU DO NOT WISH TO REMAIN A CLASS MEMBER. I wish to opt out of the class in the above captioned matter. I understand that by opting out, I will be excluded from the class, and will neither benefit if the Plaintiffs win or settle their overtime pay case against Bloomberg L.P. Nor will I forfeit or release any claims I may have against Bloomberg, if Plaintiffs in this case do not win. I understand that by opting out, I am free to bring a separate lawsuit for my state law overtime claims, and that lawsuit will be undertaken at my own expense and at my own risk. I understand that Counsel for the Class will not represent my interests if I opt out. I make this decision of my own free will and not because I have been pressured to do so or because I fear retaliation in this case. I understand that a class member’s name does not appear on the public docket of this case, but that by opting out, my opt-out form (not including social security number) will be placed on the public record of the docket in this case. PRINT NAME: SOCIAL SECURITY NUMBER: SIGNATURE: SEND (FOR FILING WITH THE COURT) TO PLAINTIFFS' COUNSEL AT: Getman, Sweeney & Dunn, PLLC 260 Fair St. Kingston, NY 12401 MUST BE COMPLETED IN FULL, MAILED AND POSTMARKED BY NO LATER THAN [DATE] WE ADVISE YOU TO KEEP A COPY FOR YOUR RECORDS—YOU MAY WISH TO MAIL RETURN RECEIPT REQUESTED. 252 CaseCase 1:17-cv-04555-RMB1:14-cv-02657-TPG Document 40-123-9 Filed 05/01/1507/28/17 Page 23 of 34 NOTICE OF YOUR RIGHT TO JOIN A LAWSUIT AGAINST BLOOMBERG, L.P. [insert date of mailing] Dear Current or Former Analytics Representative for Bloomberg, L.P.: Enclosed is a Consent to Sue form allowing you to join a lawsuit that has been filed by Eric Michael Roseman (the “named plaintiff”) on behalf of Analytics Representatives, Analytics Specialists, and Advanced Analytics Specialists in Bloomberg’s Financial Product Sales and Analytics. The lawsuit seeks unpaid overtime wages and liquidated damages. The lawsuit is being heard by the U.S. District Court for the Southern District of NY. The U.S. District Court, which is hearing this case, has entered an order authorizing Getman & Sweeney to send you this notice informing you of your right to file a Consent to Sue form in order to join this case. If you do not join this lawsuit, you will not be able to receive any share of any settlement or judgment that the Representatives may obtain under federal law. If you do join the lawsuit you will be bound by the result, whether favorable or unfavorable. You will not be obligated to pay the lawyers for their costs or legal fees to participate, except that the Court may award the lawyers’ fees either as a share of any fund awarded to the class or based on their billings to be paid by Bloomberg if the case is successful. If the case is unsuccessful, the lawyers will be paid nothing and you will not owe any money for attorneys’ costs or fees. What this lawsuit is about: The lawsuit claims that Bloomberg failed to pay the Plaintiffs overtime premium pay at the rate of time and one half for those work weeks where they worked in excess of forty hours in violation of the Federal Fair Labor Standards Act. The lawsuit seeks back pay and liquidated damages. Bloomberg does not agree that it violated the law and the Judge who will hear the case has not made any decision yet about who is right. Who can join this lawsuit: If you are a current or former Analytics Representative for Bloomberg who worked at any point in the last three years, you may file a Consent to Sue form, in order to have your federal FLSA claims heard as part of this case. The case is also brought as a class action under New York Labor Law for Representatives who worked from April 14, 2008 to the present; however, the availability of a class action to handle state claims has not yet been decided by the Court. You are entitled to join this case even though Bloomberg paid you on a salary basis. No retaliation: The law prohibits retaliation against employees for exercising their rights under the FLSA. Therefore, you may not be terminated or subjected to discrimination in any manner because of your exercise of rights under the FLSA, including by joining this lawsuit. Bloomberg has specifically assured the Court that it will not retaliate against any Representatives who opt-in to this case. Although Bloomberg disputes the claims raised in the case, it recognizes the Representatives’ right to pursue these claims. 253 CaseCase 1:17-cv-04555-RMB1:14-cv-02657-TPG Document 40-123-9 Filed 05/01/1507/28/17 Page 34 of 34 How to join: To join the case and be represented by the lawyers who are handling this case, you must fill out and return the enclosed Consent To Sue form by fax, email or mail to: Getman & Sweeney, 9 Parodies Lane, New Paltz, NY 12561. Fax: 1 (888) 461-1832. Email: AnalyticsParalegal@ getmansweeney.com. Your Consent form must be postmarked or delivered no later than [insert date 60 days from mailing]. You have the right to be represented by your own lawyer if you wish. More detailed information can be learned by calling the lawyers representing the Analytics Representatives at 845-255-9370, or by viewing the lawyers’ website at GetmanSweeney.com. Questions? Contact Getman & Sweeney at 845-255-9370 or E-mail: [email protected] - 2 - 254 Case 1:17-cv-04555-RMB Document 23-2 Filed 07/28/17 Page 2 of 4 Getman, Sweeney & Dunn, PLLC 260 Fair St., Kingston, New York 12401 Tel (845) 255-9370 / Fax (845) 255-8649 Dear Current or Former Installations Representative or Installations Coordinator at Bloomberg L.P.: On [insert date], you were mailed a Notice of Your Right to Join a Lawsuit Against Bloomberg, L.P. and a Consent to Sue form. If you want to participate in the lawsuit to recover unpaid wages against Bloomberg you must return the attached Consent to Sue form no later than [insert date] to: Getman, Sweeney & Dunn, PLLC, 260 Fair Street, Kingston, NY 12401. If you have any questions, contact Getman, Sweeney & Dunn, PLLC at (845) 255-9370. 255 Case 1:17-cv-04555-RMB Document 23-2 Filed 07/28/17 Page 3 of 4 [ATTACH CONSENT TO SUE FORM] THIS YOUR RETURN ENVELOPE DETACH ALONG THIS PERFORATION Getman, Sweeney & Dunn, PLLC 260 Fair St. Kingston, New York 12401 256 Case 1:17-cv-04555-RMB Document 23-2 Filed 07/28/17 Page 4 of 4 Getman, Sweeney & Dunn, PLLC 260 Fair St. Kingston, New York 12401 Overtime lawsuit against Bloomberg See other side for details 257 258 Faculty Biographies 259 260 Rob McCreanor Rob McCreanor is an attorney with more than 15 years legal practice experience, including over a decade of managing non-profit public interest organizations and civil legal services programs. He has represented individuals and groups in housing, employment, consumer and immigration matters, frequently in close partnership with grassroots community organizing campaigns, and has served as lead counsel in class and collective actions, large multi-plaintiff cases and impact oriented legal advocacy initiatives. Preferred email address: [email protected] Magdalena Barbosa Over the last nine years, Magdalena has worked on behalf of low wage and immigrant workers. Prior to joining Catholic Migration Services, Magdalena worked at the labor/employment firm, Gladstein, Reif & Meginniss. She also worked as a supervising attorney at Make the Road New York, a leading New York community organization that builds the power of working class and immigrant communities. At Make the Road, Magdalena oversaw employment legal services at its offices in three boroughs and provided support to campaigns that combat workplace exploitation. She also maintained her own active caseload primarily involving cases of unpaid wages. Prior to her work at Make the Road, Magdalena worked in the employment law units at MFY Legal Services and Legal Services of New Jersey, where she handled wage and hour, discrimination, unemployment matters and represented clients in administrative proceedings, and state and federal courts. Preferred email address: [email protected] Maureen Hussain As a staff attorney at HVJC, Maureen Hussain currently serves as plaintiffs' counsel in several large, collective and class action employment matters pending in U.S. District Court. She previously worked as a Kaufman Public Service fellow and staff attorney at Catholic Migration Services in Brooklyn and Queens, NY, where she represented individuals in employment, immigration, and housing matters in both state and federal court and administrative proceedings. Maureen served as law clerk to U.S. Magistrate Judge Debra Freeman in the Southern District of New York. Preferred email address: [email protected] 261 Artmemio Guerra Artmemio Guerra represents workers in large-scale wage and hour litigation matters, primarily collective and class actions, throughout the United States. Before joining the firm he was the coordinating attorney of the Immigrant Worker Rights Project at Catholic Migration Services in Queens, New York, where he represented low-wage workers in wage and hour litigation and managed a collaborative effort with the Occupational Safety and Health Administration and the U.S. Department of Labor to educate workers about their rights. For over ten years, he worked as a community organizer and advocate organizing janitors, homeowners, and low-income tenants. Preferred email address: [email protected] 262 Notes Pages