Volume 35

Protest Lawyering

by Eliana Geller

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 activity. Historically, lawyers have also played a meaningful role in social protest movements through litigation. As litigators, these lawyers have had “a direct line to change through law making.” Although these roles are critically important, 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 certain 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.

This note argues that lawyers are ethically duty-bound to join certain protest movements through a historical and conceptual exploration of how lawyers have been, and ought to be, involved in dealing with issues of tyranny, liberty, and sovereignty. 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 fabric’s foundation, dating back to the pre-Revolutionary period. Part Two will demonstrate 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, 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.

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