This blog is the second 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

Impact on Advocacy
This issue – the attorney-client dynamic given respective positionalities, identities and privileges – must be explored in the 1L curriculum.

The current lack of discussion:

• increases distrust of the legal system among racial minorities,
• disempowers minorities from seeking legal remedies or help,
• delegitimizes the legal system due to an overall lack of participation by racial minorities,
• reinforces stereotypes about racial minorities (i.e., that they’re unintelligent or inarticulate) when the attorney is the one unable to effectively interact with the client,
• leaves out pertinent information when fact-finding due to, inter-alia, mistrust of authority or legal systems, or the client’s perceptions during the intake or subsequent client interview,
• leads to a disassociation of the attorney from the client (e.g., not returning phone calls or cutting conversations short due to a lack of mutual understanding), and
• prevents minorities from seeking a legal education because they and their families’ experiences with the legal system have been hurtful rather than healing.

Potential Spaces to Disrupt These Narratives
How do we stop the gaps between lawyers and clients? Between racial minorities and the legal system? Should attorneys, like critical race theorists, lead with a “story of I” at client intakes?  Would that be an effective bridge between the two – or would such a story underscore the difference between our listener and our self?

Would that even be professional?  And if no, then how does that reflect on the word “professional?” Should we change what we perceive to be professional, in light of the problems with communicating and connecting with clients?

The answers to these questions, and the incumbent training, must come in the 1L year, before we idealistic young attorneys are set loose to our first internships, where the majority of us –even those on the “firm path”- end up in public interest positions with direct client contact.

The 1L curriculum is currently silent on the compounding of racial privilege and the status of attorney in client dynamics. However, there is space for a discussion.

For example, a discussion could have occurred in contracts when we discussed unconscionability in Williams v. Walker-Thomas Furniture. Williams, a poor, black, single mother of seven children, bought multiple items from the Walker-Thomas Furniture store on an installment payment plan. Williams did not realize that her payments were being distributed pro rata across the purchase of each item. So even though Williams paid timely for five years, when Williams defaulted on one payment, the Walker store demanded back every item she had ever bought, because not one of them had ever been fully paid off. The court found this contract invalid under UCC §2-302 for both the procedural unconscionability in negotiating the terms of the contract, and the substantive unconscionability of the actual terms of the contract.

Our class considered how an individual might be unable to negotiate the terms of a contract. We emphasized that the general public, rather than, say a venture capitalist or an angel investor lacks the knowledge, experience and resources to actually negotiate common legal instruments, such as cell phone contracts, rental agreements, and privacy terms of internet websites. We noted that even when individuals gather together, they may still not be able to seek remedies. See AT&T Mobility LLC v. Concepcion (enforcing an arbitration clause that denied class certification for cell phone buyers).

A second conversation could have occurred in my criminal law class, when we read State v. Williams (Wash. Ct. App. 1971). In that case, parents of a seventeen-month old toddler were found guilty of statutory manslaughter because they were deemed grossly negligent for not taking their child to medical services in time to keep a toothache from becoming life-threatening gangrene. A showing that the parents had followed ordinary caution would have been an effective defense to negligence. However, the courts (and the class) summarily decided that the Native American parents had acted unreasonably by not pursuing medical care earlier.

I was cold-called to explain the standard for reasonableness and apply it there. I argued that the Native American parents had a legitimate concern for avoiding state medical care: such care would be reported to child protective services, and given the context of native child removal, the parents were reasonably distrustful of the state. There was no discussion of how the identities of the parties involved could have shaped their relationship to their attorney, the law, or justice.

Some other spaces in the 1L curriculum for considering these issues might include:

• Civil Procedure, perhaps when discussing Rule 26(b) (Scope of Discovery, Attorney-Client Privilege)
• Legal Ethics
• A new practicum or seminar that is designed specifically to assist students with cross-cultural lawyering theory and skills.

Instead, our class discussions failed to truly consider how a racial minority, even given the opportunity to bargain or receive legal advice, may feel intimidated or distrustful of the process, of the system’s enforcement of contracts and law, and of their own attorney.

Unfortunately, even a cursory consideration of this issue reveals that such exploration would not fall neatly into any specific category. Rather, such considerations should be infused throughout each aspect of legal practice and education, beginning in the first year.