Protest Lawyering

• Author: Eliana Geller
• Position: J.D., Georgetown University Law Center (expected May 2023); B.A., University of Michigan (2016)
• Pages: 715-736

Protest Lawyering

ELIANA GELLER*

INTRODUCTION

A superficial search of the term “lawyers as protestors” suggests that lawyers

serve a limited role in protest movements. In this limited view, lawyers may serve

as counselors to putative protestors, either preemptively informing protestors of

their legal rights or providing pro bono defense services to protestors who have

been arrested or otherwise entangled with the legal system due to protest activ-

ity.

1

See, e.g., Know Your Rights: Protestors’ Rights, AM. C.L. UNION, https://www.aclu.org/know-your-

rights/protesters-rights/#im-attending-a-protest (last visited Dec. 9, 2021) [https://perma.cc/DAF7-BM3G];

Marisa M. Kashino, These DC Lawyers and Legal Groups are Offering Free Help to Protestors,

WASHINGTONIAN (June 5, 2020), https://www.washingtonian.com/2020/06/05/these-dc-lawyers-and-legal-

groups-are-offering-free-help-to-protesters/ [https://perma.cc/5NWU-MAFJ]; McKenzie Jean-Philippe, How

Protestors Can Find a Lawyer Offering Free Representation, OPRAH DAILY (June 4, 2020), https://www.

oprahdaily.com/life/a32757714/how-to-find-free-lawyers-for-protesters/ [https://perma.cc/8V4D-CWQV].

Historically, lawyers have also played a meaningful role in social protest

movements through litigation.

2

As litigators, these lawyers have had “a direct

line to change through law making.”

3

Although these roles are critically impor-

tant, the conception of lawyers as participating in social and political protest

through either pro bono defense services or affirmative litigation is stunted in its

imagination of lawyers’ capacity to affirmatively participate in protest. To a cer-

tain extent, this conception seems natural. Given that they are uniquely positioned

to represent clients, it follows logically that as “officers of the law,” lawyers

would effectively engage in protest on behalf of private clients. However, it

appears equally sound that lawyers—precisely as officers of the law—share a

unique ethical responsibility to actively engage in protest beyond the “traditional”

lawyer role.

4

This note argues that lawyers are ethically duty-bound to join certain protest

movements through a historical and conceptual exploration of how lawyers have

* J.D., Georgetown University Law Center (expected May 2023); B.A., University of Michigan (2016).

© 2022, Eliana Geller.

1.

2. See Jayanth K. Krishnan, Lawyering for a Cause and Experiences from Abroad, 94 CALIF. L. REV. 575,

575–76 (2006) (“As the civil rights movement gained momentum in the 1950s and 1960s, a group of talented

lawyers—including Thurgood Marshall, Constance Baker Motley, Jack Greenberg, and others—rose in promi-

nence by using litigation to champion the rights of minorities.”); James E. Moliterno, The Lawyer as Catalyst

of Social Change, 77 FORDHAM L. REV 1559, 1559–61 (2009) (“These law giants made their social change

through litigation, proposal of new legislation, and creating new modes of legal analysis—all fairly traditional

lawyer role activities . . . .”).

3. Moliterno, supra note 2, at 1560.

4. Cf id. at 1561 (considering the idea that “lawyer qualities, natures, and tendencies” may qualify lawyers

as effective agents of social change outside the traditional lawyer role).

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been, and ought to be, involved in dealing with issues of tyranny, liberty, and sov-

ereignty. To inform this analysis, Part One will examine protest as part of the

American legal fabric and the role that lawyers have played in weaving that fab-

ric’s foundation, dating back to the pre-Revolutionary period. Part Two will dem-

onstrate how lawyers are uniquely positioned to participate in protest movements

as “protest lawyers,” by emphasizing the specific legal skills and expertise that

enable them to do so. Lastly, Part Three argues that lawyers share in an ethical

responsibility to engage in protest lawyering as embodied by the preamble to the

American Bar Association’s Model Rules of Professional Conduct.

Protest lawyering reimagines the capacity of lawyers to serve as officers of the

law. While lawyers who counsel protestors and engage in affirmative litigation

are often associated with public interest law,

5

empowering the sizeable number

of lawyers unengaged with this work in a professional capacity creates a legion

of legal officers during those times when they are most dire. In doing so, this note

seeks to encourage and equip lawyers across the entire profession to leverage

their status and expertise in furtherance of strengthening American democracy

and safeguarding civil rights and liberties—particularly for those among us who

have been systemically disenfranchised.

I. PROTEST AND THE AMERICAN LEGAL FABRIC

Throughout the seventeenth century, the British government promulgated a se-

ries of charters that expressed the respective terms of grants to operate the colo-

nies.

6

In their plain language, some of these charters explicitly guaranteed the

rights and immunities of emigrating colonists as free and natural subjects of

Great Britain. Take, for example, the Second Charter of Virginia (1609), which

explicitly declared that

[A]ll and every the Persons being our Subjects, which shall go and inhabit

within the said Colony and Plantation . . . shall HAVE and ENJOY all

Liberties, Franchizes, and Immunities of Free Denizens and natural Subjects

within any of our other Dominions to all Intents and Purposes, as if they had

been abiding and born within this our Realm of England, or in any other of our

Dominions.

7

5. See Scott L. Cummings, The Internationalization of Public Interest Law, 57 DUKE L.J. 891, 893, 899–

900 (2008).

6. See, e.g., The Second Charter of Virginia—1609, in 7 THE FEDERAL AND STATE CONSTITUTIONS,

COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW OR

HERETOFORE FORMING THE UNITED STATES OF AMERICA 3790, 3790–3802 (Francis Newton Thorpe ed., 1909);

The Charter of Maryland—1632 in 3 id. at 1677–86; Grant of the Province of Maine—1639 in id. at 1625–37;

Charter of Massachusetts Bay—1629 in id. at 1846–60.

7. The Second Charter of Virginia—1609, supra note 6. at 3800.

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