This blog is the first of two parts. Part 1 unpacks the attorney privilege and considers how it can affect attorney-client relationships. Part 2 explains the impact of power differentials, identities, and attorney privilege on advocacy and offers suggestions to strengthen the law school curriculum.
By Hazel Caldwell-Kuru
Associate Editor, Vol. 21
Author’s Note: The following article requires some working knowledge of racial privilege and the impact of identity.
“Look – the bottom line is, I’m really not comfortable with you talking to the family. I mean, have you even talked about your positionality and identity in law school?” The social worker on our pro bono case asked.
I pulled the phone away from my ear and stared at it in indignation. Consider my privilege? How undergrad!
Two days later, my car full of white girls, I drive down 8 Mile Road – despite the social worker’s warning – to meet with our client’s family. I begin reflecting on the exchange with the social worker and my reaction: Had we spent any time on positionality, identity or privilege in our 1L year? Not really, I decide. But was such a discussion necessary? And if so, when could we have even fit it in?
At the client’s home for an interview with the student about their school expulsion case, we chat with the family about school, football, cake baking. When the conversation turns to business, the dynamics shift.
We are no longer polite white strangers, now we are polite white attorneys. When we speak, the family falls silent. As the student’s mother speaks, I interrupt for precision: nailing down pronouns, hammering for details, flipping through my legal notepad to lay the foundation for our defense.
The mother shows us a video of her child falling to the floor and covering his head to protect against an aggressor’s kicks. I suddenly hesitate: recognizing and reflecting on the deeply personal nature of the questioning and uncomfortably aware of both my authority to ask for any other information I want, and the deep difference between my lived experience and that of the child in front of me.
Upon hearing about the lack of involvement from the school administrators, I finally ask about the race of the aggressors and the administrators. On seeing the number of individuals involved, hearing that the lead aggressor came “with his crew,” and learning that the boy threatened to “shoot [our student] with a .40 after school,” we hone in on the potential gang-related activity and ask about school safety.
In an unrelated case, I begin preparing a witness for her testimony. I suspect that she has suffered domestic violence because I see no other reason why she would voluntarily leave her home to become homeless, but I am unsure. My prepared questions require hearsay, and I have to lay groundwork to introduce evidence by asking about her feelings and thoughts at the moment of the abuse and at the moment after.
When I call her to ask, I freeze. My questions, innocuous in Times New Roman, suddenly seem outrageously personal. But they are necessary for the case. I push forward and she shocks me with her level of detail. I am near tears in the law school commons at the sound of her voice breaking as I force her to revisit her fears. Her thoughts center on things I’ve never had to think about before: leaving an abuser to become homeless, the shame of telling her family, how she will find a quiet place to call in for our hearing.
Can I ask her to talk about this personal of an experience? Who am I to ask her to relive this abuse?
I wonder in the school expulsion case – if we had been there in a capacity other than as [white] student-attorneys, would this family have confided differently, perhaps more openly to start? Fortunately, we caught racial details and were able to use them in later negotiations to achieve a favorable outcome, but what did we miss because of the client’s discomfort or assumptions about us and our perceived identity?
In the domestic violence case, instead of too little information, I received too much information, information I was unprepared to handle. How do you respond when, between your sips of Starbucks, someone tells you they thought their boyfriend was going to actually pull the trigger? What do you say to reassure them that you’re empathetic (when really you have no similar story) without interrupting their story or disempowering their voice?
There is a gap between attorneys and their clients, which is not discussed or explicitly taught in 1L classes. This gap affects our ability to be the strongest advocates that we can be.
First, what I am calling a “gap” between attorney and client is actually something most people would consider a privilege. After all, a lawyer’s position is inherently one of authority: the title itself underscores the attorney’s distance from the actual legal issue and instead their authority as an officer of the court.
This gap in identities is a privilege and a tool of the attorney. Consider routine tasks like:
- Making a phone call (and the information that the other side is willing to give, or the actions they are willing to take, to avoid a lawsuit)
- Writing a letter (which are often pedantic and purposefully written to distance the attorney emotionally and intellectually from the client)
- Signing and sending boilerplate complaints (consider especially the effect of companies that send out massive numbers of notices and complaints which appear legal, but which often ignore key legal procedures and would not be enforceable if taken to court)
- Speaking to a judge (and the immediate credibility that attorneys have, over the clients they represent, especially, for example, in the criminal law context)
The same authority that might hurt dynamics with marginalized clients is probably the same authority that attracts many individuals to the lawyering profession.
All too often, however, this distance between attorney and client doesn’t lead to a courtroom victory, it leads to injustice. Read how in Part 2.
 Consider also other indicators of privilege: It is no secret that the law is a mostly white (88%), male (70%) and well-to-do. In fact, in Big Law, one of the largest employers of Michigan Law school graduates, only 4.8% of attorneys were black in 2005.