untitled

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COLLABORATIVE LAWYERING IN

TRANSNATIONAL HUMAN

RIGHTS ADVOCACY

ENJAMIN

OFFMAN AND

ARISSA

AHLSING

The practice of transnational human rights lawyering to date has

been largely divorced from many of the contributions of U.S. poverty

and environmental justice lawyers who have adopted critical law-

yering methodologies seeking to amplify community power and serve

their clients’ visions of justice. This paper is a first step towards trans-

lating those critical lawyering methodologies into practical guidance

for transnational human rights advocates. The paper begins by draw-

ing out common themes from the critical lawyering methodologies. It

then discusses how the dominant methodology for human rights ad-

vocacy fails to incorporate these critical lawyering methodologies,

and how the primary critiques of human rights advocacy do not pro-

vide practical guidance for practitioners interested in instituting more

critical methodologies. The authors draw upon their own experiences

as practitioners supporting indigenous communities in the Amazon

struggling against multinational oil companies, and the lessons of the

critical methodologies, to then present a practical and detailed guide

for implementing an effective model of “transnational collaborative

lawyering.” The paper concludes with a series of questions to guide

further refinement of this methodology.

NTRODUCTION

For years, cause lawyers, particularly those working on poverty

and environmental justice issues, have cast a critical eye upon the

* Marissa Vahlsing and Benjamin Hoffman are human rights lawyers from the United

States. Marissa is a Staff Attorney with EarthRights International and Benjamin, formerly

an Amazon Staff Attorney with EarthRights International, is now a Clinical Teaching Fel-

low at Columbia Law School’s Human Rights Clinic. This paper stems from their work

with EarthRights International, supporting indigenous communities in legal struggles re-

lated to the adverse consequences of resource extraction and mega-development projects

in the Amazon and the Andes. This article is a product of countless discussions and meet-

ings that started while still in law school — with their clinical instructors, professors, and

peers — and that have continued with their current supervisors, colleagues, and clients.

The content of this paper was presented and discussed at a workshop of academics and

practitioners held at Harvard Law School on April 1, 2013. Marissa and Benjamin would

like to thank all of the people who participated in these discussions, sharing their wisdom

and encouragement, and those who provided comments on earlier drafts of this article. In

particular, they would like to thank their law school clinical instructors, Tyler Giannini and

Susan Farbstein, whose mentorship and guidance has been foundational to the develop-

ment of the ideas presented in this article.

255

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256 CLINICAL LAW REVIEW [Vol. 21:255

practice of lawyering and the lawyer—client relationship.

They have

raised questions regarding the role of the lawyer in the clients’ strug-

gle and the possibility that the lawyer might prioritize a legalistic vi-

sion of justice at the expense of the clients’ visions and needs.

address these concerns, cause lawyers have considered the ways in

which adopting a particular methodology based upon critical reflec-

tion—be it client-centered-, community-, rebellious-, or collaborative

lawyering—might empower communities and serve their clients’ vi-

sions of justice. To date, however, the practice of transnational human

rights lawyering—whether it involves human rights advocacy via pub-

lic campaigns or impact litigation—has been largely divorced from

many of the contributions of theorists and practitioners of these criti-

cal models of lawyering. International human rights lawyers have

made important efforts to adjust their practice to incorporate this cri-

tique,

but the critique has yet to be translated into robust practical

guidance for human rights advocates, and common challenges to com-

munity lawyering in the transnational rights context—whether geo-

graphic, linguistic, political, or cultural—have often frustrated the

effort for greater incorporation. Lawyers and theorists need to devote

more attention to considering and developing more robust models of

collaborative and community lawyering in the international human

rights context. This paper is a first step in developing that model.

We begin with a discussion of critical lawyering methodologies

that cause lawyers working on poverty and environmental issues in

the United States have adopted, drawing out common themes. We

then discuss how the dominant methodology for transnational human

rights advocacy fails to incorporate these critical lawyering methodol-

ogies, and the frustrations we have felt as practitioners as a result. We

argue that the existing critique of human rights advocacy focuses on

the macro level rights-based discourse; does not supply a micro level

critique of the mechanics of the lawyer-client relationship; and does

not provide practical guidance for practitioners interested in institut-

ing more critical methodologies. Drawing upon our own experiences

When using the term “lawyer client relationship” we are also referring to the rela-

tionship between lawyers and entire communities. We recognize that the terms “lawyer”

and “client” are themselves imperfect as they result from framing a problem as a legal

problem — in turn discursively producing “lawyers” and “clients” as actors. That said, we

use those terms cautiously here for the sake of simplicity.

See infra Section II.

See, e.g., Caroline Bettinger-Lopez, David Finger, Meetali Jain, JoNel Newman, Sa-

rah Paoletti & Deborah Weissman, Redefining Human Rights Lawyering Through the Lens

of Critical Theory: Lessons for Pedagogy and Practice, 18 G

. J.

OVERTY

L. & P

’

337 (2011); Melissa E. Crow, From Dyad to Triad: Reconceptualizing the Lawyer-Client

Relationship for Litigation in Regional Human Rights Commissions, 26 M

ICH

. J. I

’

1097 (2005).

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Fall 2014] Transnational Collaborative Lawyering 257

as practitioners and the lessons of the critical methodologies, we pre-

sent a practical and detailed guide for implementing an effective

model of “transnational collaborative lawyering.” We conclude with a

series of questions to guide further refinement of this methodology.

While we have written this paper with an eye towards its critical

application in diverse contexts, we are well aware that the paper is

firmly grounded in our own practice. We are human rights and envi-

ronmental rights lawyers whose work has primarily involved support-

ing indigenous communities in the Amazon in their struggles against

multinational oil companies. Thus, when we use the term “commu-

nity” in this paper, we are referring to communities as groups of peo-

ple situated similarly in time, space, geography and culture who are

confronted, collectively, by adverse environmental or human rights

impacts. The paradigmatic example in our work is the indigenous

community that is already situated in its territory with deep ancestral

roots to its environment who is affected by the arrival of an oil com-

pany on its land. We use this notion of community as a heuristic de-

vice for two reasons. First, more often than not, the resource rich

environments where multinational corporations seek to exploit oil or

minerals are located in areas indigenous communities call home. Sec-

ond, this is the type of community and situation with which we have

the most experience. We recognize that this paradigm represents just

one of a multitude of possible “communities” that may call upon a

lawyer for support. Similarly much of our work has involved litigation

against companies in courts in the United States, and thus litigation

features prominently in the strategies that we analyze.

Our work has shown us that many obstacles present in transna-

tional human rights advocacy are variants of problems that are present

in the domestic context. Consequently, much of the work of applying

the critical lawyering methodologies in the human rights context is

one of translation. Where transnational strategies present qualitatively

different obstacles, we aim to bring new and creative thinking to over-

come those obstacles. We use this article to start the tasks of transla-

tion and developing new thinking to model collaborative lawyering in

transnational human rights advocacy.

Our approach is to articulate a practical framework for imple-

menting the critical lawyering methodologies at key moments in the

lawyer-client relationship. The ideas that follow represent our effort

to identify potential strategies available to transnational human rights

lawyers to provide a more collaborative form of representation. We

hope that readers will embrace the ethos motivating these ideas, and

at the same time discuss and critique them.

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258 CLINICAL LAW REVIEW [Vol. 21:255

I. C

OLLABORATIVE

, C

RITICAL

AND

OMMUNITY

AWYERING

EXTS AND

OSSIBILITIES

A. Common Themes In Critical Lawyering Methodologies

Over the past three decades, cause lawyers,

theorists and clini-

cians have developed a rich body of literature devoted to both

problematizing and reimagining the lawyer-client relationship and its

potential for empowerment as well as for subjugation. Professor Lucie

White’s seminal piece, Subordination, Rhetorical Survival Skills, and

Sunday Shoes: Notes on the Hearing of Mrs. G.,

highlighted the possi-

bility of collaborative narrative and strategy-building between the

lawyer and client as a point of inflection for addressing deeply rooted

structural inequalities. Gerald P. Lopez’s book,

EBELLIOUS

AW -

YERING

: O

HICANO

’

ISION OF

ROGRESSIVE

RACTICE

also drew attention to the problems with traditional models of poverty

lawyering as a professional service, and envisioned instead a collabo-

rative, rebellious, form of lawyering that was inclusive and sought so-

cial justice.

“In this collaborative vision,” many clinical scholars

found, “an alternative to the hierarchical, objectifying terms of the

traditional lawyer/client relationship.”

Louise G. Trubek provides some guidelines for what a more col-

laborative form of lawyering could look like. In Critical Lawyering:

Toward a New Public Interest Practice,

Trubek outlines a proposal for

what she terms “critical lawyering.” According to Trubek, critical le-

gal practice involves two elements: “seeking to empower oppressed

groups and individuals and initiating a trajectory of change towards a

more just society.”

Attorneys can empower people in two ways: first,

We use the terms “cause lawyer” and “collaborative lawyering” as placeholders for

what we recognize is a much more complex vocabulary that tracks theories about three

dimensional lawyering, rebellious lawyering, community lawyering, client-centered advo-

cacy, and critical lawyering. Some of those distinctions are discussed herein, however, a

detailed taxonomy is beyond the scope of this paper, as we are not situating our proposal

within any particular one of these theories, but rather, drawing lessons from all of them.

See generally Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday

Shoes: Notes on the Hearing of Mrs. G., 38 B

UFFALO

L. R

. 1 (1990).

See also Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons

of Client Narrative, 100 Y

ALE

L.J. 2107 (1991); Anthony V. Alfieri, The Antinomies of

Poverty Law and a Theory of Dialogic Empowerment, 16 N.Y.U. R

. L. & S

. C

HANGE

659 (1988); Gerald P. Lopez, The Work We Know So Little About, 42 S

TAN

. L. R

. 1

(1989); Gerald P. Lopez, Lay Lawyering, 32 UCLA L. R

. 1 (1984); Lucie E. White,

Goldberg v. Kelly on the Paradox of Lawyering for the Poor, 56 B

ROOK

. L. R

. 861

(1990).

Lucie E. White, Collaborative Lawyering in the Field - On Mapping the Paths from

Rhetoric to Practice, 1 C

LIN

. L. R

. 158 (1994-1995).

See generally Louise G. Trubek, Critical Lawyering: Toward a New Public Interest

Practice, 1 B.U. P

. I

. L.J. 49 (1991).

Id. at 50.

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Fall 2014] Transnational Collaborative Lawyering 259

“individually, within a supportive attorney-client relationship;” sec-

ond, “through the process of organizing groups and encouraging them

to speak out in the public sphere.”

Similarly, those who employ the framework of “community law-

yering” begin with the assumption that inequality of power relations is

one of the principal causes of the perpetuation of poverty, exploita-

tion, and the deprivation of fundamental human rights.

As a result,

proponents of community lawyering argue that legal advocacy should

support the efforts of communities to challenge that inequality

through their own actions. In other words, the purpose of community

lawyering is to “enable a group of people to gain control of the forces

which affect their lives.”

The lawyer’s support can take a variety of

forms depending on the goals of the community, the lawyer’s relation-

ship with the community, and the particular context for the struggle,

but the aim is always to amplify the power of the community.

Al-

though these campaigns and strategies need not necessarily involve

legal challenges,

or even lawyers, the recognition that given systems

of legal rules drive outcomes for people’s lives often raises questions

of a legal nature when social change is a goal. Law is always there,

even when organizing.

The literature seeking a more critical, collaborative, and non-hi-

erarchical theory and practice of lawyering converges around at least

one clear point: joint empowerment is key. We use the term “joint”

because this empowerment should flow in two (or more) directions:

with the lawyer and the client collaborating towards a shared vision.

The client or client community amplifies the power of the lawyer or

Id.

See, e.g., Purvi Shah & Chuck Elsessor, “Community Lawyering,” A Conversation

with Joseph Phelan of Organizing Upgrade (June 1, 2010), available at http://www.organiz-

ingupgrade.com/2010/06/social-justice-lawyering.

William P. Quigley, Reflections of Community Organizers: Lawyering for Empower-

ment of Community Organizations, 21 O

HIO

N.U.L. R

. 455, 455-56 (1995).

We recognize that the terms “power” and “empowerment” are fraught with critique

and with varied meaning. See, for example, the works of Giorgio Agamben, Michel Fou-

cault, and John Gaventa. By using the term “empowering,” we do not wish to imply that

the communities or individuals themselves are not already exercising power or capable

thereof, but we wish to speak in terms of degrees and types of power — and recognize the

very real, material, experienced, dearth of power that many of the communities and indi-

viduals whose human, civil and environmental rights are violated, have, vis- `a-vis the insti-

tutions that affect their lives. Here, we intend the term “empowerment” to serve as a

device for discussing the amplification, assertion, and/or shifting of power that people al-

ready possess.

For example, some communities with whom we have worked have relied primarily

on direct action to leverage their bargaining power with the government and oil compa-

nies. See, e.g., Andrew Miller, The U’wa Nation Will Continue our Peaceful Protest, (April

26, 2014), available at http://amazonwatch.org/news/2014/0426-the-uwa-nation-will-con-

tinue-our-peaceful-protest.

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260 CLINICAL LAW REVIEW [Vol. 21:255

advocate as much as the lawyer amplifies the power of the client.

Thus, even as the lawyer works with the client to identify, map, and

think strategically about the legal and political forces that are driving

outcomes in her daily life, the client can help the lawyer to understand

how she is also the product of her own legal, political and social con-

text—including her biases and limitations.

Whether framed as “third-dimensional” lawyering

or “rebel-

lious lawyering”

or community lawyering, community or client em-

powerment is a critical means, and end, of these practices. Luke W.

Cole makes this point explicit in his article Empowerment as the Key

to Environmental Protection: The Need for Environmental Poverty

Law.

Recognizing that poor people bear the lion’s share of environ-

mental burdens (pollution, contamination, and location of power

plants), Cole proposes a model of environmental poverty lawyering

that focuses on empowerment and mass mobilization.

In doing so,

Cole reminds cause lawyers that “pollution will not be stopped by

people who are not being polluted.”

Only those whose rights are at

risk can stop environmental rights abuse. Thus, “the lawyer who

wants to serve pollution’s victims must put her skills to the task of

helping those people organize themselves and must try to understand

their conception of the environmental problem.”

This notion is con-

gruent with Trubek’s call for more supportive lawyer-client relation-

ships—where the lawyer works with the client (or client community)

to understand (not just legalistically, but also emotionally) the experi-

ence of the client (or client community).

Much of the literature regarding community or collaborative law-

yering emerges from contexts where lawyers work closely and directly

with their clients. These texts envision close client collaboration in the

planning and implementation of legal strategies, frequent communica-

tion, a mutual understanding of goals, and willingness by the lawyer to

be flexible and support the strategies chosen by the client.

While

certainly not without its challenges,

the lawyer is aided in these ef-

Lucie E. White, To Learn and Teach: Lessons from Driefontein on Lawyering and

Power, 1988 W

. L. R

. 699, 760-66 (1988).

ERALD

P. L

OPEZ

, R

EBELLIOUS

AWYERING

: O

HICANO

’

ISION OF

ROGRES-

SIVE

RACTICE

113 (1992).

Luke W. Cole, Empowerment as the Key to Environmental Protection, 19 E

COLOGY

L.Q. 619 (1992).

Id. at 633.

Id. at 649.

Id.

See id. at 661-63.

The lawyer must be familiar with a variety of different strategies, understand the

effectiveness of those strategies with respect to achieving concrete benefits for the commu-

nity, and find ways to support the community in implementing those strategies in such a

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Fall 2014] Transnational Collaborative Lawyering 261

forts through his or her presence within the community, frequent par-

ticipation in community meetings, or regular meetings with individual

clients living in close proximity to the lawyer.

Over time, lawyers

devoted to this methodology can develop a wide variety of legal skills

ranging from civil litigation in defense of constitutional rights to crimi-

nal defense for protest activities, and can thus shape their representa-

tion according to the specific community need.

As lawyers and advocates, how can we do this in concrete terms?

What changes can we make to the practice of lawyering to make it

more collaborative, more critical? Trubek provides six key steps: (1)

encourage participation, (2) personalize the issues, (3) be skeptical of

bureaucracy, (4) be unbiased in approach to advocacy arenas, (5) or-

ganize with other lawyers and (6) apply feminist and anti-racist analy-

ses.

Trubek’s suggested pathways guide us in our thinking about

steps we could take as cause lawyers who work on transnational cases.

B. The Short-Comings Of Human Rights Theory

Human rights, human rights advocacy, and human rights “law-

yering” have all faced critique. Both Makau Mutua and David Ken-

nedy launched important critiques of the “imperialism” of the

primarily Western human rights discourse and the often misguided ef-

forts of Western advocacy groups who, in their hasty or short-sighted

efforts to “save victims,” often do more harm than good.

Other criti-

ques take issue with the focus on civil and political rights (which

mainly deal with liberty and participation in political life) at the ex-

pense of “newer” second and third generation rights (such as the right

to healthcare, housing, or a healthy environment).

Much of this crit-

way that the community itself, and the lawyer, amplify their power in the process. This is

by no means an easy task (as the literature analyzed demonstrates).

See, e.g., Cole, supra note 17, at 655-59 (describing community-based lawyering in

the context of anti-poverty advocacy).

Lawyers working with the Center for Constitutional Rights, for example, in addition

to using legal strategies proactively to advance the law and guarantee the human and con-

stitutional rights of affected communities, also regularly provide direct criminal defense to

those arrested for engaging in civil disobedience and other protest activities.

Trubek, supra note 49.

See Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42

ARV

. I

’

L.J. 201, 214-17 (2001); David Kennedy, The International Human Rights

Movement: Part of the Problem?, 15 H

ARV

. H

. R

. J. 101, 102 (2002); Guyora Binder,

Cultural Relativism and Cultural Imperialism in Human Rights Law, 5 B

UFF

. H

. R

. L.

. 211, 217 (1999); Ivan Illich, To Hell with Good Intentions, Address to the Conference

on Inter-American Student Projects, Cuernavaca, Mexico (April 20, 1968), available at

http://www.swaraj.org/illich_hell.htm

See, e.g., Philip Alston, Economic and Social Rights, in H

UMAN

IGHTS

: A

GENDA FOR THE

EXT

ENTURY

137, 152-53 (Louis Henkin & John Lawrence Hargrove

eds., 1994).

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262 CLINICAL LAW REVIEW [Vol. 21:255

icism has occurred on the macro level—focusing on problematizing

the dominate human rights discourse as Western and imperializing

and the efforts of Western activists as paternalistic and misplaced.

Very little of the critique has examined the mechanics of the advocate-

client relationship

when the advocate acts as a lawyer.

Instead, theorists have treated human rights law and human

rights practice as different from other forms of cause lawyering. This

has generated what Bettinger-Lopez et al., have called a human rights

“exceptionalism,” so that human rights clinics and classes are often

separate from other legal and practice areas in law schools. But, as

Bettinger-Lopez and her colleagues point out, this “justification for an

‘exceptionalism’ for human rights within the clinical field—that

human rights clinics are different and therefore require a different

pedagogy and set of lawyering tools—is overinflated.” Moreover, “as

a newer clinical discipline, human rights clinics have yet to incorporate

many of the traditional critical legal theory principles in scholarship

and in practice.”

Like Bettinger-Lopez and her colleagues, we want

transnational human rights lawyers and advocates to consider ques-

tions regarding theory and practice that domestic poverty lawyers

have already asked.

C. Lawyering In The Transnational Context

Thus far, transnational human right lawyering has followed a sig-

nificantly different model than the collaborative, critical, and commu-

nity based lawyer models we outlined above. Lawyers based out of

international or regional offices learn of particular rights violations

(often in a different country), travel to that region to collect informa-

tion, and offer the affected communities a limited set of strategies to

address their situation based on the particular expertise of that organi-

zation—e.g. report-writing, submission of communications to treaty

bodies, litigation before international or national courts—and that or-

ganization’s mission. This is the same model many law school human

rights clinics use. This model is in sharp contrast to clinical practice

taught and used in domestic poverty law and community lawyering

clinics.

As observers of, and participants in, the model of human rights

lawyering described above, we have often been critical of—and at

The term “advocate-client relationship” is used in this context, rather than “lawyer-

client relationship,” mainly because the human rights work being critiqued need not neces-

sarily involve litigation or legal representation, and rather often involves “advocacy” such

as report writing or international solidarity campaigns.

Bettinger-Lopez et al, supra note 3 at 394.

See id. (describing an “exceptionalism” for human rights in the clinical field).

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Fall 2014] Transnational Collaborative Lawyering 263

times frustrated by—the legal representation we provide. We often

feel limited in the legal strategies that we can offer communities by

issues of jurisdiction, statutes of limitations, or other legal doctrines.

Other times, we are concerned that the legal strategies we implement

fail to capture the full nature or tell the full story of the problems

facing client communities. And frequently, we have found that possi-

ble remedies do not entirely coincide with community goals or with

the harm that communities have suffered. The representation usually

involves only minimal client participation and in some cases we have

studied, the result of the representation—a settlement ending a law-

suit—has torn the community apart.

Experience has taught us that

implementing the current models of human rights lawyering, without

more, has the potential to make client communities feel even further

disempowered.

Part of the problem stems from the transnational nature of the

advocacy. Much of our experience has come from supporting commu-

nities that have been affected by violations of international human

rights

perpetrated by large multinational corporations or by state se-

curity forces with the complicity of multinational corporations. Under

some circumstances, local or national strategies may be appropriate

for addressing such situations, but in many cases, effective efforts to

achieve justice, accountability, or compensation require transnational

strategies.

These strategies, however, have often been problematic.

For example, consider litigation in U.S. courts under the Alien

Tort Statute, 28 U.S.C. § 1350, a strategy that we have often sup-

ported. Litigation under the statute is complex, drawn-out over many

years, and results hinge on minute issues of civil procedure. In many

cases, the principal legal struggle concerns questions of international

law and federal jurisdiction—issues such as the mens rea standard for

aiding and abetting under international law or the ramifications of the

difference between corporate and natural personhood. Briefing and

arguing these questions can take years. During this time, the stories

of the clients (the merits, or facts) hardly come to light. In such in-

stances, we have had to explain to clients that the question at hand is

no longer (or not yet) about whether or not they have suffered the

harms they claim to have suffered, but rather about whether or not

the court will agree with them that having suffered those harms is le-

See, e.g., P

ERU

: U

NDERMINING

USTICE

(Al Jazeera, People & Power 2012) available

at http://vimeo.com/47488389 (discussing Monterrico Metals case and settlement in Peru).

We give the term “international human rights” its most expansive meaning. We thus

include economic, social, cultural rights and the right to a healthy environment in this defi-

nition, giving struggles for environmental justice a place in this discussion.

See Keck & Sikkink, A

CTIVISTS

EYOND

ORDERS

: A

DVOCACY

ETWORKS IN

N-

TERNATIONAL

OLITICS

, 1998.

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264 CLINICAL LAW REVIEW [Vol. 21:255

gally significant in a U.S. court. This can have the effect of obscuring,

rather than highlighting, the wrongs for which they seek recognition

and redress.

When you combine these battles over legal minutia with the phys-

ical distance between the legal forum and the communities, and the

resource constraints that inhibit plaintiffs’ lawyers from making fre-

quent visits to the community, the struggle to vindicate clients’ rights

and remedy harms more closely resembles a battle between highly-

educated and elite lawyers than an effort to empower the community.

The existing critique of human rights advocacy simply does not

provide a sufficient guide for dealing with these concerns in practice.

However, drawing upon the lessons of the critical methodologies that

we have examined, and our own experiences as practitioners, we can

begin to articulate a guide for collaborative lawyering in transnational

human rights advocacy.

II. C

HANGING

RACTICE AND

NGAGEMENT

: K

OMENTS AND

ONSIDERATIONS IN THE

RANSNATIONAL

AWYER

LIENT

ELATIONSHIP

A. Toward a Shared Vision of Justice

At the outset, it should be apparent that in order to achieve “col-

laboration,” it is essential that the lawyer and the client work towards

a common goal. In this respect, one of the fundamental challenges for

human rights lawyers is that the goals of the lawyer or his organization

may not directly align with the goals of the client, often a foreign com-

munity. For example, if meanings of “justice” or “the good life” vary

across cultures, and do not have a shared meaning, how can one com-

munity’s vision of justice or the good life be expected to map perfectly

onto the visions of an outside advocate?

To pretend that notions of

“right,” or “good,” or “just” share singular meanings across cultures

would be to make the type of universalist assumption of the sort

human rights law and activists are often criticized for making.

Indeed, community goals will likely never align perfectly with the

goals of the international non-governmental organization (NGO) or

law firm. And there is no reason to expect that they should. Advo-

cates are usually drawn to these communities, not because of a pre-

existing connection or social bond, but simply because those commu-

nities are affected by human rights violations and the advocate is sym-

pathetic to their struggles. It would be romanticizing the community

to believe that the community’s goals were exactly the same as the

See, e.g.,G

USTAVO

STEVA

& M

ADHU

URI

RAKASH

, G

RASSROOTS

OSTMODERN-

ISM

: R

EMAKING THE

OIL OF

ULTURES

(Zed Books 1998).

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Fall 2014] Transnational Collaborative Lawyering 265

NGO’s, and romanticizing the NGO to assume that it is only inter-

ested in community empowerment. We propose, then, that—even if it

is not likely that communities and outside advocates share identical

goals—it is possible to converge around a joint, or shared, vision of

justice that communities and NGOs can pursue together. Articulating

this joint vision and preparing the roadmap for getting there, then,

invites collaboration.

An example from our own practice is illustrative. While support-

ing an indigenous community’s efforts to respond to a series of oil

spills in its territory, the community—through several large commu-

nity meetings attended by both leaders (mostly male) and adult

women—asked for our support in negotiating with the company to

receive both higher wages to perform forest-clearing services for the

oil company and higher remuneration in a servitude agreement. While

our representation initially involved environmental remediation and

compensation for harms suffered as a consequence of the spills, the

more immediate goal of securing better wages became the most im-

portant and salient issue for the community. These goals quickly sup-

planted the goal that had originally drawn our support. To a certain

extent, responding to the community’s request would serve the goal of

empowerment: the indigenous community felt vulnerable by virtue of

the arrival of the foreign oil company and the impact it had had on

their lives, and our legal support and advice would be an important

means of assisting the communities to take control of their relation-

ship with the company. On the other hand, institutionally and person-

ally, it was difficult to support two strategies that we believed would

ultimately facilitate oil extraction, distract from the harms already

caused by the company to the environmental health of the commu-

nity, and do nothing to prevent future abuses.

Thinking as lawyers, we identified the ways in which the oil com-

pany was likely “stringing” along the community by running out the

clock on the statute of limitations for potential claims. On the other

hand, we recognized that the act of negotiating with the company gave

the community a sense that it was an equal partner with the com-

pany—exercising its agency and autonomy. Given this seeming con-

flict between values and strategies, the goal of our engagement

became seeking out and acting upon goals and strategies where our

skill set and principles matched up with those of the community. In

this sense, we identified, and operationalized, a shared vision. We

spent time with the community mapping out their history with the

company and with government actors. We emphasized the impor-

tance of statute of limitations—placing a legal marker on the timeline.

We spoke with them about their interest in increasing their bargaining

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266 CLINICAL LAW REVIEW [Vol. 21:255

power by understanding labor and contract law, and we put them in

touch with local lawyers who could assist with that effort. Negotiating

the disparity and the interconnectivities between our culture and vi-

sion and theirs became a productive asset rather than a hindrance.

We begin with the premise then that differing goals between the

community and the human rights advocate are an inherent part of the

lawyer-community relationship in the transnational human rights con-

text. It follows that a human rights lawyer is not always going to be

able to be “on tap,” waiting to serve whatever goal the community

chooses in a given moment—and to a degree here, we depart from

some of the literature regarding community- or empowerment-law-

yering. The lawyer instead looks to work with the community and sup-

port a shared vision of justice. We believe that identifying and seeking

this shared vision of justice, beyond any abstract notion of empower-

ment, is the principal goal of the collaborative human rights lawyer

through the representation—and the end to which the lawyer owes

ultimate allegiance. The lawyer looks for collaboration with the com-

munity in pursuing a shared goal that is, necessarily, jointly informed

by the lawyer’s own vision of social change.

But the fact that communities and their lawyers must focus on

their convergence around a shared vision rather than come together

with an identical goal, does not render the lessons of community or

collaborative lawyering any less useful in this context. On the con-

trary, it is precisely under these circumstances that the lessons are

most important. Without an honest and frank understanding of the

interests, goals, and backgrounds of both parties, affected communi-

ties and lawyers alike could easily be treated as mere pawns in the

other’s struggle for social change.

B. Introducing Yourself And Offering Support

1. Risks Of Undermining Community Power

One of the most salient takeaways from the collaborative law-

yering literature is the importance of identifying and managing power

dynamics embedded in the lawyer-client relationship. In our view, we

must attend to the power relationship inherent in the mere arrival of

the lawyer in the community even before discussing power in direct

interaction between the lawyer and the clients. Some communities

receive support from a variety of allies, including NGOs and indige-

nous federations, and may already have developed a plan of action or

community vision that provides the basis for either accepting or re-

jecting the lawyer’s offer of support. In many situations, however,

communities may be relying on their own strategies to respond to

human rights violations, or may see the arrival of the lawyers as one of

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Fall 2014] Transnational Collaborative Lawyering 267

their few chances of winning external support for their struggle. In this

latter context, and on occasion in the former as well, the arrival of a

foreign NGO or lawyer proposing a particular strategy as a means of

addressing the human rights violation has the potential to be a dis-

empowering and even coercive experience if the lawyer is not aware

of these dynamics. The risks are even greater in situations where the

lawyer first engages with affected individuals outside the context of a

community meeting.

Even the most conscientious attorney runs the risk of coercing

the client into accepting a particular strategy if the strategy is

presented as a “take-it-or-leave-it” offer of the lawyer’s assistance.

Often, this “take-it-or-leave-it” offer is not because the lawyer be-

lieves that one strategy is the only way to move forward. Rather, the

lawyer is often limited by his/her organization’s mission, source of

funds, or even own academic and professional formation. For exam-

ple, we have bar licenses in the United States, and thus the menu of

legal strategies that we can offer to communities, on our own, is lim-

ited to litigation in the United States or before international human

rights bodies. At times then, in merely expressing our own organiza-

tional or professional limitations, we run the risk of exerting some

pressure on communities to adopt strategies that may not align pre-

cisely with their own vision for how best to affect change.

An example from our own experience here may be helpful. We

were working with an indigenous community in the central Peruvian

Amazon that was facing persistent oil extraction and contamination

on their lands. We had come to talk with them about supporting their

struggle against a powerful U.S. oil company, and about the possibility

of using litigation in the United States to do so. But the community

had a different idea for how best to achieve reparation for the con-

tamination they were confronting. Drawing upon the history of their

relations with the oil companies in their territory, and wary of adopt-

ing any strategy that could take years to resolve, the leaders proposed

instead a plan of peacefully taking over the oil wells, forcing the com-

pany to turn off its machinery, and using their own voices and bodies

to make their grievances known, with the end of reaching a negotiated

solution with the company. They turned to us, and they said: “and

you, doctores, you will be a part of our legal commission when we take

over the wells, right?”

In this particular circumstance, our vision of justice closely al-

igned with theirs. Of course we wanted to support them; of course we

wanted to accompany them in their strategies for vindicating their

rights against companies that had been repeatedly spilling crude oil

into their water supply. And we wanted this support to have no limi-

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268 CLINICAL LAW REVIEW [Vol. 21:255

tations. But we also knew that we could not do what they had asked

of us. While we expressed to the community that we would like to

accompany them in whatever strategies they chose, we had key limita-

tions as lawyers from the United States. We would eagerly support

the community in its legal strategies on the international level, but we

were afraid that we were unable to represent them in any criminal

defense cases in Peru should they be arrested when they take the di-

rect action. Our representation simply could not extend that far.

It was difficult to anticipate what affect those words would have

on the community. Would the leaders discard the option of taking the

wells based on their concern for the government prosecution of pro-

test activity and our inability to provide them with criminal defense?

Would they revisit the strategy that we were proposing, even though

they weren’t convinced it would be the best strategy, just to keep us

involved? As soon as we had expressed our limitations, we realized

how limited we were in our goal of helping the community shift the

balance of power. At the precise moment when the community was

considering a strategy of exercising its power, we started stepping

away. How could we really expect to accompany the community in

vindicating its human and environmental rights if our representation

was limited to the contours of our bar licenses?

2. Power-Respecting Strategies At Initial Meetings

The risk of community disempowerment counsels in favor of law-

yers building capacity, either within their own organization or through

partnerships with allies, in order to offer a community more than one

particular strategy to respond to the human rights violation it faces.

For example, after this experience, we suggested to our organization

that they hire a Peruvian lawyer, and they did. The lawyer and his or

her organization should develop a funding model that allows for flexi-

bility, and does not depend entirely on contingency fee arrangements

that necessarily contemplate civil litigation, or funding grants that ex-

plicitly limit the type of strategies that the organization can pursue.

The lawyer may have expertise in a particular strategy, such as litiga-

tion, and may be committed to that strategy as the most effective

means of addressing a particular rights violation, but the lawyer must

also be highly aware of the limitations of that strategy and explore the

myriad reasons why such a strategy might not be appropriate in a

given community. When an alternative strategy may be called for, the

lawyer might help the community to identify local actors who possess

the skill set necessary to provide the needed support. Here, exploring

the possibility of collaborative litigation models—in which lawyers

from one country assist lawyers in another country—either with

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Fall 2014] Transnational Collaborative Lawyering 269

human or economic resources, is also an option for lawyers to ex-

plore.

Regardless of what option the lawyer and the client collec-

tively choose to pursue, the lawyer should be a student of social

change and the diverse options and strategies available for advocacy.

Lawyers should share these strategies with communities in workshops

upon the lawyer’s arrival in the community and throughout the law-

yer’s continued engagement.

One possibility that we have explored is the use of the initial and

introductory workshops as a space to share histories (both the com-

munity’s and the lawyers’) through dynamic exercises. This can serve

to both situate the problem that the community has identified and to

give the lawyers a chance to take Cole’s invitation to “try to under-

stand” their collective “conception” of the problem. One technique

that we used was to work with the community to draw a timeline of

events that the members view as critical to the emergence of the prob-

lem. The community can then articulate and develop its own narra-

tive of harm and identify key moments in space and time that the

community wants the lawyer to come to comprehend and understand

on a personal level. In turn, during these initial workshops, the law-

yers might take the opportunity to share with the community their

own motivation for being there and to bring some of their history with

them.

Another key exercise that we have used in the initial strategic

discussions with the communities is mapping relevant actors and strat-

egies. The mapping exercise seeks to identify all the actors that influ-

ence the situation facing the communities and then to discuss the

motivations of each of these actors and the different points of pressure

available to affect those actors. Once completed, this map can serve as

the basis for identifying particular legal or advocacy strategies that

might be adopted, and for understanding how these strategies interact

with one another, impacting multiple actors.

In our own experience, we have coupled this mapping exercise

with a workshop that we run on “how corporations think,” as we tease

out the motivations of the company actor. We have found that these

workshops provide us with an opportunity to explain how we are well

positioned to understand how corporations think and behave, because

See, e.g., EarthRights International, Tanzanian Maasai Villagers Win Fight For Infor-

mation about Land-Grabs and Forced Eviction against Luxury Boston Safari Company,

(April 22, 2014), available at http://www.earthrights.org/media/tanzanian-maasai-villagers-

win-fight-information-about-land-grabs-and-forced-eviction-against (discussing Foreign

Legal Assistance Actions as a potential tool for collaborative litigation).

For additional resources on tactical mapping methodology, see Douglas A. Johnson

& Nancy L. Pearson, Tactical Mapping: How Nonprofits Can Identify the Levers of

Change, T

ONPROFIT

UARTERLY

92 (2009).

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270 CLINICAL LAW REVIEW [Vol. 21:255

we, as lawyers, were trained with the same rules and professional for-

mation as were the lawyers for those corporations, and because corpo-

rations are often “creatures” of the legal system we call home.

Through these exercises, we exchange conceptualizations and narra-

tives with the community, and in the process, we begin constructing a

shared narrative, combining elements from each of our experiences.

This narrative directly influences the discussion of appropriate strate-

gies and the ends they might serve.

The aim of both these initial and of subsequent collaborative ses-

sions is: determining if there is a shared vision of justice; that can be

developed into a plan of action; that resonates with the goals and situ-

ation of the community; and that can be calibrated to community

needs. Much of the information covered in the workshops will likely

be familiar to the community based on the community’s existing

knowledge of strategies of resistance. Other ideas and arguments may

be new. Hopefully, the community will be adding new strategies to

the list of options with which the lawyer is familiar, creating a mutual

learning environment for lawyer and community. The lawyers and the

community can discuss these options in detail, with the lawyer clearly

identifying the particular strategies where his or her organization

would be able to provide support, the areas where the support of

other allies or partners should be sought, and the lawyer’s frank rec-

ommendation on a course of action based on the information con-

veyed by the community. Where the community elects to pursue a

strategy outside the realm of the lawyer’s expertise or vision for social

change, the lawyer may offer to help facilitate connections with other

organizations that can be of greater assistance. In this sense, it is im-

portant for us to consider not only what type of lawyers and lawyering

we engage in, but also about how we can best build our networks and

organizational resources to enable us to diversify and expand the

menu of tools and possibilities that we can offer to communities.

C. Developing And Signing The Retainer

We believe that signing a retainer agreement is a pivotal moment

in the lawyer-client relationship, and the process by which parties ne-

gotiate and agree on a retainer should be fundamentally changed in

the transnational lawyering framework. The retainer agreement is a

contract that articulates the precise nature of the relationship between

the lawyer and the client. As such, the retainer agreement presents a

perfect opportunity for a frank discussion about the goals and expec-

tations of both parties, and an opportunity to put in writing the com-

mitments that each side is making in formalizing the relationship. For

lawyers committed to collaborative lawyering, it is problematic that

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Fall 2014] Transnational Collaborative Lawyering 271

lawyers write retainer agreements, for the most part, without commu-

nity input. The lawyer’s autonomy in determining the contours of the

agreement is often a requirement for receiving lawyers’ services. We

take the position that the retainer can and should be a collaborative

undertaking for the lawyer and clients: an opportunity to exchange

and negotiate hopes, expectations, and shared commitments. It

should be viewed as a dialogue rather than as words on a page; as a

basis for establishing a relationship to which each is committed and

bound.

Change is thus needed both at the level of process and content.

As a matter of process, the lawyers and the client community should

negotiate the retainer in a collaborative exchange. If the lawyer feels

that certain terms are necessary, she should present those terms indi-

vidually and justify them to the community. The community should

have an opportunity to put forward its own terms for discussion. The

exchange at this level should be designed to bring the expectations of

both parties to the forefront, and for the document that emerges to be

a reflection of this process, rather than a mere procedural necessity.

As a matter of content, in addition to the traditional terms re-

garding costs and the power of the attorney to act on behalf of his or

her clients, at minimum, the retainer agreement should also address

the legal strategy that is contemplated by the relationship, and most

importantly, the goals of the community in pursuing that legal strat-

egy. The vast majority of retainer agreements that lawyers prepare in

anticipation of litigation presume that the ultimate goal of the repre-

sentation is monetary compensation. This assumption informs a num-

ber of the attorney’s steps in the development of the legal strategies,

and effects such essential decisions as whether the lawyer recom-

mends that the client accept a settlement offer. In many circum-

stances, however, monetary compensation may not be the

community’s primary goal in pursuing a legal strategy. Indeed, legal

strategies could serve a number of goals in pursuit of the community’s

own understanding of justice for example, environmental remediation,

an end to a company’s operations in a given area, a public apology, a

chance to demand justice in a courtroom—and the lawyer can design

specific strategies to serve those different goals. It is essential in at

least three different ways for lawyers and communities to identify

these goals at the outset of the representation. First, it allows the law-

yer to calibrate the legal strategies to specifically serve the end identi-

fied. Second, it ensures that the lawyer is genuinely interested in

providing the support contemplated. This step, for example, may

cause a number of lawyers working for for-profit law firms to walk

away if it becomes apparent that the community is not principally con-

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272 CLINICAL LAW REVIEW [Vol. 21:255

cerned with monetary compensation. This reinforces the importance

of seeking diversified funding sources so that non-profit or pro bono

lawyers can continue to offer such support. And third, it avoids stress-

ful conflicts down the line, including fracturing community unity, that

emerge when the litigation becomes a struggle only for monetary

compensation, the consequences of which the community did not ade-

quately consider at the time they signed the retainer.

Once this exchange takes place, the lawyer and the client should

draft the retainer such that, in addition to laying out the shared goals

of the parties, the retainer also lays out their mutual commitments. In

this sense, we are inspired by the common practice in Peru of drafting

up convenios. Convenios are a record of a collaboration and conver-

sation between two or more actors who agree to undertake a project

together. In the convenio, the parties outline what they expect to be

their shared commitments and individual tasks and contributions.

Lawyers and client communities can also use the retainer agree-

ment as an opportunity to discuss procedures to be relied upon in the

future, anticipating potential issues that are likely to emerge. Under-

standing that community priorities can change over time, a retainer

agreement could contemplate a procedure by which community goals

are reassessed at determined intervals to ensure that current strategies

serve the ultimate goals of the community. To give another example,

if the lawyer feels strongly that certain voices from the community,

such as those of women, be included in the community decision-mak-

ing process, that lawyer can negotiate with the community of proce-

dures to be included in the retainer as part of the community’s

commitment in the relationship. The lawyer and the client might con-

template and discuss any number of such procedures at the outset to

facilitate a strong lawyer-client relationship down the line.

D. Special Considerations Involved in Working with a

Client Community

1. Recognizing both Individual and Collective Interests

A special consideration that lawyers must confront when working

with communities, rather than individuals, affected by human or envi-

ronmental rights violations, is how to address the special nature of

One potential roadblock that U.S. lawyers might face in adopting this new model of

collaboratively drafting the retainer is that lawyers often arrive in the communities with

the finalized retainer pdf-ed and printed out, ready to be signed. Given the remoteness of

some communities and the limited electrical or technological capacity, it might seem im-

practical to do anything but finalize and print out the retainer beforehand. It is for this

reason that we always bring a battery powered portable printer with us when we travel to

the communities.

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Fall 2014] Transnational Collaborative Lawyering 273

collective harms. The lawyer-client model dictated by Professional

Ethics does not ask, or tell us, about what it means to be a community

lawyer or instruct us how to advocate for a remedy to rights violations

experienced by collectivities. In the field of human rights, this model is

particularly limiting. Indeed, the model of lawyering that presupposes

that lawyers will advocate zealously for the client as an individual

alone, with an individualized injury, does not easily accommodate the

many ways in which individuals are situated within communities with

communal injuries and visions of justice. This is especially true when

it comes to the impacts of mining and oil companies, which generate

collective as well as individual harms.

We propose that the individual-centric lawyer-client model is it-

self an outgrowth of the American legal imagination that problemati-

cally focuses on personal/individual rights—or rights that attach to the

individual client—while ignoring common or collective rights that at-

tach to a community.

That model asks us to consider our clients as

individuals without ever taking into account their placement within a

larger community. It forgets to ask what the consequences of individ-

ual decisions to seek justice, or to choose a certain strategy, might

have upon the greater community. That model ignores, the contribu-

tions of political theorists and anthropologists who have taken pains

to question and deconstruct the sanctity of the “rational rights bearing

individual” and to look instead at the ways in which individuals should

not be understood to be particularized singular entities, but rather ex-

ist both within, and as, relationships to others. Indeed, individuals are

always individuals situated within communities that bear upon their

subjectivity. Communities are complex hammocks of relationships,

and pulling on one thread will affect everyone.

The myopia of the American legal system and the limitations of

the individualized lawyer-client model become obvious when one con-

siders a common situation in our work: the existence of multiple sepa-

rate communities affected by oil or mineral extraction in a particular

zone. Although a great number of communities in that region might

likely be affected to some extent by the extraction, the U.S. legal dic-

tates of statutes of limitations, causation, or injury-in-fact, all of which

analyze an individual’s potential cause of action, may act to limit the

As a means of comparison, many Latin American countries provide for collective

rights, such as the right to a healthy environment or to self-determination and provide for

judicial procedures to vindicate those rights in the collective. See, e.g., Benjamin Hoffman

and Marissa Vahlsing, Institutionalizing Transformative Legal Service Provision: Histories

and Possibilities from the United States and Latin America; Course Paper: Legal Profes-

sion—Delivery of Legal Services (Fall 2010) Professor Jeanne Charn; February 25, 2011.

On file with authors.

See, e.g., E

STEVA

& P

RAKASH

, supra note 34.

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274 CLINICAL LAW REVIEW [Vol. 21:255

lawyer’s ability to work with the communities as collectivities, or even

to work with several communities at all. In such circumstances, jus-

tice, rather than being shared or collective, becomes partial, severed,

or disjointed.

Even when it might be possible to bring a class action in the

above scenario—or to bring a claim on behalf of a community as a

juridical entity whose interests the lawyer can serve without passing

through individuals as representatives

—a whole host of questions

arise that throw the individual-centric lawyer-client model into disar-

ray. For example, as lawyers working with “class” communities, we

must ask whose “interests” are we supposed to be zealously represent-

ing. The answer, of course, is the class’s interest. But, whose voice is

being heard and channeled into the “interests” of the class? Who

speaks for the community? When we discuss “community” in this

context, are we often really referring to the “male community” or the

“leaders of the community”? Both are wholly inadequate if we pur-

port to represent collective interests.

In many of the communities with which we have worked, it is

most often the men, and the men only, who speak “on behalf of” the

community or dialogue with the lawyers. This should cause us to

question whose narrative is being captured when we tell a “commu-

nity’s” story in a legal document, and whose narrative goes untold.

Yael Tamir speaks to this in her essay, “Siding with the Underdogs”

the notion of group rights as it is often used. . .presupposes that

“the group” is a unified agent. . .Consequently, internal schisms

and disagreements are perceived as a threat to the ability of the

group to protect its rights. . .group rights strengthen dominant sub-

groups within each culture and privilege conservative interpreta-

tions of culture over reformative and innovative ones.

When one works with indigenous communities in Latin America,

it is critical to partner with the corresponding “indigenous federation”

for that region. These federations are often gatekeepers to the com-

munities and also speak on the communities’ behalf. The leaders of

these federations, however, bring their own personal or political inter-

ests to bear upon the situation and strategy in a way that is not always

supported by the community itself.

To fully and honestly confront this dilemma, transnational law-

In Peru, for example, indigenous communities are considered juridical persons and

can publically register as such. Art. 89, P

OLITICAL

ONSTITUTION OF

ERU

(1993); Decreto

ley 22.175 (Ley de Comunidades Nativas y de Desarrollo Agrario de las Regiones de Selva

y Ceja de Selva), Art. 7 (Peru).

Yael Tamir, Siding with the Underdogs, in I

ULTICULTURALISM

AD FOR

OMEN

? 47 (Susan Moller Okin ed. 1999).

Id.

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yers will have to divest themselves of any romanticized notion that

communities, especially indigenous communities, are not complex, in-

ternally diverse, and contradictory. Anthropologist, Linda Tuhiwai

Smith makes the point that as westerners we tend to believe that au-

thenticity is static and unchanging, hence the difficulty in determining

what are communities’ interests.

The purpose of commenting on such a concept as what counts as

‘authentic’ is used by the West as one of the criteria to determine

who really is indigenous, who is worth saving, who is still innocent

and free from Western contamination. There is a very powerful ten-

dency in research to take this argument back to a biological ‘essen-

tialism’ related to race, because the idea of culture is much more

difficult to control. At the heart of such a view of authenticity is a

belief that indigenous cultures cannot change, cannot recreate

themselves and still claim to be indigenous. Nor can they be compli-

cated, internally diverse or contradictory. Only the West has that

privilege.

Smith’s question is one of the reasons why we have often won-

dered if anthropologists might be better situated to organize commu-

nities into collective action. The nature of the legal profession—and

the practical requirement that a lawyer be connected to their email

and their ECF account to meet necessary court filing deadlines—

makes it difficult for us to be in-house counsel for a community. Un-

like anthropologists, lawyers rarely have the time to live among com-

munities long enough to know their interests and their positions and

to account for conflicting interests and positions within that same

community. While difficult, this task is not impossible.

2. Assessing Community Positions And Priorities

The transnational collaborative lawyer must seek to represent the

interest of the community as a whole, while recognizing that that in-

terest might be complex and internally contradictory. At various

times in the representation, the lawyer will have to gauge the position

of the community as an entity distinct from its individual members.

As a philosophical matter, this proposition is particularly difficult. As

a practical matter, while not uncomplicated, the task is usually man-

ageable, as the lawyers defer to the community’s existing decision-

making structures. The community has often developed and adopted

these structures over time in order to ensure both that the community

can come to decisions on issues that require a single community posi-

tion, and that such decisions are viewed as legitimate within the com-

INDA

UHIWAI

MITH

, D

ECOLONIZING

ETHODOLOGIES

74 (London: Zed Books

1999).

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276 CLINICAL LAW REVIEW [Vol. 21:255

munity. We should treat these structures with significant deference,

but that does not mean we should not raise questions about participa-

tion or take steps to ensure that all voices are heard.

As suggested above, the traditional decision-making structures of

the community might suffer from a particular gender, racial, socioeco-

nomic, or age-related bias that may cause the lawyer to question

whether or not the arrived upon decision in a given instance is an

accurate reflection of the position of the entire community. In the

indigenous communities where we have worked, for example, consen-

sus-based community decisions were reached in community-wide as-

semblies at which no women were present. These observations should

cause the lawyer to question whether or not the decisions adequately

consider, and include the opinions of the marginalized voices.

Where the lawyer believes that purported community decisions

may suffer from a particular bias, the lawyer may use creative strate-

gies to assess the opinions of the marginalized voices. For example,

while one member of the legal team participates in the all-male assem-

bly, another member of the team may assist the women of the commu-

nity in the preparation of food for the assembly, and in the process,

conduct an informal meeting of those women present to cover the

same issues being discussed in the assembly. To the extent that this

process reveals opinions and ideas that would otherwise be excluded

from the community dialogue, the lawyer can attempt to create spaces

in the existing procedures for those voices to be heard. These types of

strategies allow the concerns for bias to be tested, and potentially

even addressed, without openly disrupting the existing decision-mak-

ing structures. Should these strategies, however, reveal a degree of

bias that causes the lawyer to question whether he or she could hon-

estly rely on the existing decision-making structures to faithfully re-

present the interest of the community, then the lawyer and the

community may need to modify the operative structures as part of an

honest negotiation, taking care to avoid heightening any existing vul-

nerability that this type of modification may have on the particular

group involved.

3. Working With Community Leaders To Facilitate Interactions

With The Community

Strong community leadership and local organizing are essential

elements for community empowerment and for the implementation of

nearly any effective legal strategy.

Given the limits of the lawyer’s

expertise and legitimacy in the area of community organizing—espe-

See Quigley, supra note 12 at 456.

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Fall 2014] Transnational Collaborative Lawyering 277

cially in the transnational context—lawyers need the assistance of

community leaders to accomplish legal strategies. Indeed, Earth

Rights International values this element enough to devote over a third

of its focus and resources to the specific task of training community

leaders in human rights and environmental justice advocacy

strategies.

When engaging with the community then, it is important for the

lawyer to seek out and build collaborative relationships with key lead-

ers within the community. These leaders will become vital allies in the

tasks of translating the lawyer’s communications with the community,

working to organize the community around key steps, and collecting

necessary information from the community to guide the work of the

lawyer.

While as a practical necessity the lawyer will rely heavily on these

leaders for the implementation of legal strategies, the lawyer must si-

multaneously be cautious to avoid facilitating the concentration of

power in certain leaders to the exclusion of the empowerment of the

entire community. The leader will often be tasked with speaking for

the community, and the lawyer should always understand and con-

sider the steps that the leader has taken to gauge the community opin-

ion. Here, we use the term leaders not just to mean those who are

already in the position of being leaders, elected or otherwise, but also

those who play leadership roles behind the scenes or who are still de-

veloping their leadership potential. For this reason, we have found it

particularly valuable to develop relationships with women who are

respected in the community, such as madres indigenas,

or to work

with younger adult members of the communities who take an interest

in their community’s struggle and seek to develop their personal and

academic capacity in order to be able to advocate for the community

down the road.

4. Community Participation In The Implementation Of Legal

Strategies

While apparent from the theoretical discussion above,

it is im-

portant to emphasize here as well that the community must be in-

volved in as much of what the lawyer does as possible. Active

community involvement not only serves the goal of building the ca-

pacity of the community to actively defend itself, but also has the po-

See E

ARTH

IGHTS

CHOOLS

, http://www.earthrights.org/training.

In our experience, a number of indigenous communties in the Peruvian Amazon

provide for the position or cargo of the madre indigena (translated as the “indigenous

mother”). The madre indigena is usually considered a very knowledgeable female elder.

Section II.A., supra.

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278 CLINICAL LAW REVIEW [Vol. 21:255

tential to radically improve the quality of the legal strategy being

implemented. Indeed, it will rarely be the case that the lawyer’s voice

will be the more effective call for justice. The lawyer should approach

community engagement with humility and openness to learn from the

community. Empowerment, in this respect, can be multi-directional.

Unfortunately, given the transnational nature of the legal strategies

implemented in this area of advocacy, community participation is

often one of the first things that lawyers sacrifice for its practical diffi-

culties. It is precisely because of the alien nature of the transnational

strategies implemented that lawyers must give even greater attention

to the task of involving the community in the legal strategy, otherwise

the strategy will quickly become something that a lawyer implements

on behalf of a community, rather than with the community.

It is thus incumbent on the lawyer to conduct workshops and

trainings, and convene working groups within the community, to en-

sure that the community is informed, involved, and committed to the

strategy being implemented. This process begins with the lawyer’s

first visits to the community and continues through the decision to

implement a particular legal strategy, through the drafting of the com-

plaint, and through each step of the developing legal struggle. Given

sufficient time and will, the complaint could be developed in concert

with the community; thus making the most compelling arguments and

representing communities’ priorities. Ensuring community participa-

tion may require significantly more work and creative thinking, but

this is precisely the work that ensures that the lawyer-client relation-

ship follows a more collaborative model.

5. Working with Social Movements and Activists

Throughout this paper, we have focused much of our attention on

addressing issues that relate to working with communities like those

we work with in the Amazon—groups of people similarly situated in

space, geography and time, and experiencing collective harms to their

environmental and human rights. We recognize, however, that this is

only one sort of community contemplated by the term.

Another example is the community formed by social movements

and activists that come together in solidarity around a particular

cause. These communities differ from the paradigmatic communities

described above in that they often cohere around a cause rather than

a collective experience of rights violations. Here, we are talking about

social movements as communities. The social movement can com-

prise activists from various countries and backgrounds, journalists,

academics, campaigners, organizers, and yes, even lawyers. Some of

the members of these activist communities, of course, also themselves

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Fall 2014] Transnational Collaborative Lawyering 279

might be members of communities affected by human rights violations

but they are also part of a larger community of solidarity.

Theorists and practitioners who were active during the civil rights

and welfare rights movements have much insight into how to work

with these already mobilized communities to develop legal strategies

and goals in a collective fashion,

and it is beyond the scope of this

paper to discuss the ways in which supporting social movements might

require a different type of engagement. We flag this point here, how-

ever, to highlight that the structure, composition, experiences, and

participation of communities can vary substantially depending on the

context, and there is not any one approach to community engagement

that will work in every context. Additionally, the geographic commu-

nities that are usually considered as those “directly affected” by a

human rights violation may be part of a larger social movement com-

munity which the lawyer may be called on to support. The lawyer

should be conscious of the composition of the community, and the

multiple communities present in a given situation, when designing a

strategy for community engagement.

E. Resolving The Legal Strategy

How a legal strategy gets resolved is often the most salient take-

away from the lawyer’s representation. As highlighted above in the

section regarding retainer agreements,

there are a number of rea-

sons why a community might decide to bring a particular legal strat-

egy; while filing a legal complaint might serve some of these reasons,

such as raising public awareness regarding a particular rights violation,

in many other cases the goal is necessarily linked to an anticipated

final result, such as a negotiated settlement or a court judgment. Ac-

cordingly, the lawyer must do significant work from the very begin-

ning of her engagement to discuss the precise goals of the community,

the potential final outcomes of any legal strategy, and how that final

outcome will impact the community in the future.

The lawyer cannot merely assume that economic compensation

paid directly to affected individuals is the only, or even principal, goal.

The communities that we have worked with that have decided to liti-

gate have often been interested in receiving some combination of in-

junctive and monetary relief to help the community as a whole

respond to the violation. An important part of the injunctive relief

that oil-affected communities in the Amazon often seek is a meaning-

ful remediation of their land and water sources and access to clean

See, e.g., A

RTHUR

INOY

, R

IGHTS ON

RIAL

: T

DYSSEY OF A

EOPLE

’

AWYER

(1983).

See supra Section III.C.

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280 CLINICAL LAW REVIEW [Vol. 21:255

water. Indigenous communities that we have supported have also in-

tended for the litigation to help advance their plan de vida (life plan),

which includes goals in areas such as health, education, the environ-

ment, and economic development. Communities of survivors of

Apartheid in South Africa have expressed a desire for litigation to

bring new economic and career opportunities to a population de-

prived of such opportunities for years. It might surprise lawyers

trained in the United States to learn that for some communities, direct

compensation to individual survivors is often considered as a secon-

dary goal at best.

With transnational litigation, the most probable positive outcome

for the case is a negotiated settlement. The flexibility involved in the

crafting of a negotiated settlement allows a particularly promising op-

portunity for the litigation to directly serve the goals of the commu-

nity. Settlement negotiations, however, carry their own set of

obstacles.

First, settlement negotiations and agreements are often so highly

confidential that practitioners and communities alike are unable to en-

gage in open debate about them. As a result, the lessons to be learned

are inaccessible for those who might seek to learn from them. For

example, a community might be under an obligation not to discuss or

share their own experiences with litigation, negotiation, or settlement,

with neighboring communities, making collective action, learning, and

mass mobilization even more difficult.

Second, once a monetary offer is on the table, it is easy for the

lawyer’s approach in crafting a settlement to shift from one of re-

sponding to the previously articulated community goals, to one of get-

ting the best deal for one’s clients or one’s community. Delegated

negotiators from the community feel a similar pressure, reluctant to

return to their communities empty handed. Given the difficulties in

successfully litigating transnational human rights cases, lawyers may

conclude that a settlement offer, even one that is inconsistent with

communities’ articulated goals, is the best outcome the community

can achieve through litigation. In these circumstances, the lawyer may

wish to recommend settlement to his or her clients.

This hypothetical situation is typical of many settlement negotia-

tions, and carries with it a number of significant problems. First, en-

gaging with the company on the company’s own terms often

immediately closes off the possibility of achieving a settlement that

directly meets the goals of the community. For example, companies

are often more interested in funding development projects than they

are in undertaking the remediation sought by oil-affected communi-

ties because they view remediation thus as an acknowledgement of

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Fall 2014] Transnational Collaborative Lawyering 281

the problem of contamination in the first place. Second, while even a

small, confidential, monetary settlement in the abstract may seem like

a better deal for the community than running the risk of receiving

nothing through continued litigation, a lawyer’s genuine commitment

to the community’s articulated goals in pursuing litigation might lead

her to the opposite conclusion. Indeed, in certain circumstances, a

confidential monetary settlement that falls outside of the community’s

original goals has the potential to cause significant internal turmoil

and even fracture the community.

These considerations counsel caution in pursuing settlement ne-

gotiations, and highlight the need for close community participation in

the process. Great vigilance and unity is necessary to maintain control

of the settlement negotiations, and the lawyer has a significant role to

play in keeping the control of the process in the hands of the commu-

nity. The community has its own substantial responsibilities in staying

committed to its goals in bringing the litigation, a task that is difficult

enough without the added pressure of their lawyers pushing an un-

planned-for resolution.

ONCLUSION

This paper was motivated by three broad questions which also

guided our examination: How can the lawyer-client engagement be

more empowering, more collaborative? How can collaboration get us

to a shared vision of justice and a joint strategy for getting there?

And how can that vision and strategy get us back to collaboration?

We have highlighted some of the most critical texts in understanding

the collaborative lawyering methodology, and have presented a series

of ideas that we have developed over a few short years of practice. As

we mentioned from the outset, the ideas we have presented are in-

tended as an initial effort to identify potential strategies available to

the transnational human rights lawyer to provide a more collaborative

form of representation. They are intended to be met with critical re-

flection and to fuel a conversation and heightened focus on collabora-

tive transnational human rights advocacy. As a result, rather than end

this paper with a series of traditional conclusions, we end with a non-

comprehensive series of questions that we continue to grapple with,

and which we hope will guide further investigations.

• What methodology can be used by the lawyer to safeguard

against coercing a community into the adoption of any partic-

ular strategy?

• How should the lawyer address requests for support for strat-

egies with which the lawyer does not agree?

• What options and opportunities are available for financing

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282 CLINICAL LAW REVIEW [Vol. 21:255

this type of collaborative lawyering to expand the possibilities

for the type of representation provided and to limit the mone-

tary considerations influencing the lawyer’s engagement?

• What “tech-fixes” and practical fixes can be incorporated into

improving communication and collaboration with client

communities?

• How can the norms of professional ethics be criticized and

improved to contemplate the possibility of collaborative law-

yer-client relationships in a transnational setting (so that one

might appreciate and represent collective interests rather than

individual interests)?

• How should the lawyer address the common task of determin-

ing the position of “the community,” and the possibility of dif-

fering views within that community, and the possibility that

the community position can shift over time?

• What strategies are available to the lawyer for engaging with

community ideas that are wholly anti-democratic and/or anti-

egalitarian? When is it appropriate to challenge those ideas?

How can those ideas be challenged?

• What steps can be taken to develop strong collaborative rela-

tionships with key points of contact within the community?

How should the lawyer approach working with those contacts

so as to avoid facilitating the concentration of power in a few

leaders at the expense of the empowerment of the entire

community?

• How can empowerment be multi-directional in a transnational

setting, and what practices can be implemented to facilitate

this level of exchange?

• In the context of settlement negotiations, what strategies can

be implemented to ensure that the community maintains con-

trol of the terms and process of the negotiation? How can the

lawyer work with the community to ensure that the commu-

nity stays committed to its goals in bringing the litigation?

How should the lawyer deal with the potentially changing ar-

ticulation of the community goals?

• How should the lawyer address a situation in which the best

interests of the community with which the lawyer is working

are in direct conflict with other neighboring communities that

are similarly situated?

• What happens to the lawyer-community relationship after a

case is finished or settled? Can or should the lawyer remain

involved in community affairs, and in what role?