Leaders, followers, and free riders: the community lawyer's dilemma when representing non-democratic client organizations.

• Author: Diamond, Michael

1. INTRODUCTION

   Democratic participation in decision making is a recurring ideal in many aspects of our society. (1) We are encouraged to vote for candidates for public office; (2) to voice our opinions to our representatives on matters of societal importance; (3) to become involved in civic and social organizations; (4) and to address common concerns through interactive debate and conduct. (5) There is often, however, a considerable dissonance between the participatory ideal and the reality. this is particularly true in reference to community groups in low-income neighborhoods. (6) There is a body of commentary that values the importance of democratic participation over the success of community groups in their legal struggles, but the literature suffers from a narrow and incomplete perpective. (7) One important problem is that it emphasizes legal representation only in the context of the democratic ideal and not with reference to the needs of community groups as they actually exist and function. Moreover, the literature fails to recognize that there are many types of groups and that the ideal of democratic participation is not a one-size-fits-all imperative that suits the goals and modus operandi of each type. (8)

   This article will explore various aspects of the dissonance between the democratic ideal and the reality of groups in disenfranchised and disempowered communities. We will discuss the intersection of democracy and community action by examining the sociology of groups and the social psychology of leaders and followers. We will also examine the role of, and choices presented to, an attorney working in a community and for local community groups.

   When a lawyer contemplates accepting or continuing the representation of a group from a disempowered community, she must consider much more than the legal merits of the particular matter presented. Before taking on a client a lawyer might consider, for example, whether the group is expressing legitimate community needs. (9) Often a lawyer will look for evidence of broad member participation in the group's decision-making process. (10) The latter issue is particularly important when the lawyer identifies herself as a lawyer who represents community interests in combatting poverty and oppression. (11)

   The goal of participatory democracy must itself be subjected to careful examination. (12) In much of the commentary on community lawyering, achieving the goal of democratic participation is considered to be a worthy object in its own right. (13) There is little or no critical examination of whether such participation is a prerequisite to meaningful social change or even whether participatory democracy is always an aid to such change. The consideration of these questions raises several subsidiary issues that also have received scant attention in the literature. For example, what role should an attorney play when she becomes aware of self-aggrandizing manipulation or autocratic rule by a leader in a community group? Should she attempt to foster democratic participation when it might jeopardize substantive outcomes that are generally desired by the membership? Do the rules of professional responsibility provide adequate guidance to an attorney who observes such manipulation or autocracy? In essence, the question is whether the maintenance of democratic participation must be part of the mission of a community lawyer.

   Our conclusion is that the value of participatory democracy is not a given. Rather, it is a function of the nature and goals of a particular group at a particular time and is not a sine qua non of group representation. Lawyers may recognize the legitimacy of groups and their leaders even in the absence of democratic participation. They need not demand, encourage or expect such participation as a prerequisite for beginning or continuing the representation. Regardless of the presence of a participatory process, there are also issues of whether the lawyer must be concerned about discovered manipulation or self-aggrandizement by a group's leaders and whether she must confront such behavior on behalf of the group. Unfortunately, the Model Rules of Professional Responsibility (14) provide little-to-no guidance on how a lawyer should act in such situations.

   Because the nature of an association and the relationship between its members and leaders will have a significant effect on a lawyer's role in representing it, we examine some of the concepts surrounding the formation and functioning of groups. The remainder of Part I will describe the ideal of democratic participation and juxtapose it against two narratives of community group interactions. Part II explores group and organization theory. It will examine what differentiates an aggregation of individuals from a group and will discuss concepts of followership and free riding. Part III will examine the problems these issues present to a lawyer dedicated to community representation. We will survey the existing legal literature on the relationship of lawyers to groups and point out the gaps in the analyses. We will also examine the ethical considerations relevant to group representation and identify the significant shortcomings of the Model Rules as they pertain to a community group practice. In Part IV, we lay the foundation for a new ethic of group representation for the community lawyer, one that distinguishes between issues of client autonomy as an end and substantive changes in physical conditions and power relationships in communities. This ethic also takes into account the characteristics of groups and their leaders, and addresses the relationship of democratic participation to legal representation in the community context.

   1. The Idealized Vision

      The embodiment of an effective community group involves people who come together, either spontaneously or at the urging of an organizer, (15) in a participatory collaboration, (16) to address injustices its members face in common. (17) The resulting interaction should foment both new ideas and a sense of personal stake in the process and in the outcome. Group members discuss their common concerns, educate themselves about the issues and decide on appropriate action. (18) The ideal envisions leadership emerging from among the participants with the leaders being recognized as such by an informed and active membership. (19) The leaders would speak for the group and help it to shape its purposes and activities. (20) The membership might also seek the involvement of outsiders to assist them in their development and help to create and implement strategies to combat the problems that brought them together.

      Unfortunately, community groups in poor communities rarely develop in this manner. (21) While many groups coalesce around perceived problems and evolve into effective and democratic organizations, there are also many cases in which groups and their activities are exploited by their apparent leaders, by adversaries, occasionally by allies and sometimes by group members themselves. (22) In discussing democracy and outcomes, we will examine the nature of groups and of democratic participation, (23) the meaning and efficacy of group leadership and the issues of followership, free riding and exploitation. (24) We will explore the tensions between democratic participation and successful outcomes (25) and the ethical and political dilemma of a lawyer who represents a group with a non-democratic or exploitive leadership. (26) In some cases, the autocracy or exploitation may, nevertheless, lead to the achievement of the group's purposes. (27) In other cases, it merely serves the self-aggrandizing purposes of the leader at the expense of the membership and of the community. (28)

   2. Setting the Stage

      Much of the current literature on community lawyering both legal and non-legal, focuses on the relationship between law and oppression, on the role of leaders and on the process of group goal setting and decision making. (29) Some of the literature focuses on the role of lawyers who represent community groups involved in such struggles, emphasizing the nature of the lawyer-client relationship. (30) The questions with which we began this essay, however, have received little attention.

      Consider the following two situations, (31) one concerning an ad hoc group and the other concerning an institutional group. In each case, one individual dominates the group but the nature of the dominance, and its results, differ in each situation. These differences highlights some of the important questions we hope to address.

      A sevety-five-unit apartment building has long been occupied by low-income residents, most of whom are immigrants, some of whom are undocumented, and many of whom do not speak English. The building is in a neighborhood that has been rapidly gentrifying and the owner wants to sell it to someone who will likely convert it to luxury apartments or to a condominium. In furtherance of this goal, the owner has not re-rented apartments that have become vacant when a tenant moved out and has not made improvements to the building. Maintenance has been cut to the bare minimum necessary to preserve habitability. The tenants had been organized by a now-deceased resident who led them in initiating a rent strike and in filing various administrative proceedings against the owner, most of which were conducted pro se. The owner has instituted landlord/tenant actions against the tenants and has sought permission from the local rent-control agency to evict the tenants due to the owner's desire either to substantially renovate the building himself or to sell it to someone who will renovate it. The struggle has continued with several ebbs and flows for a considerable period and multiple pieces of litigation were proceeding simultaneously. The possibility of a settlement emerged and a judge, seeking a solution to the seemingly endless litigation, suggested to the group that they retain...