November 2018 | Around the ABA

How to advise clients on civil disobedience

From the Boston Tea Party to the civil rights movement to Black Lives Matter to #MeToo, civil disobedience is woven into America’s fabric. And lawyers have played a major role in it, representing clients “who are willing to sacrifice some of their own freedom and take a risk to point out injustice,” said William Quigley, a civil and human rights lawyer and professor at Loyola University of New Orleans Law School. He was one of the panelists on the ABA webinar, “Civil Disobedience 101: Adding the Defense to Your Practice.”

Just as there are risks for those who engage in civil disobedience, there are risks for lawyers who represent them.

“Before you get involved in adding civil disobedience to your practice, it is important to consider that there are possibilities of legal malpractice that can arise out of these types of actions,” said panelist Chuck DiMare, a professor at the University of Massachusetts Amherst. “Lawyers can be indicted and may be sued for negligent misrepresentation, violations of consumer protection statutes, fraud, breach of contracts, violations of civil rights of various kinds, among other things.”

DiMare and Quigley, along with Bina Ahmad, a public defender in New York, talked about some of the legal concerns in starting a civil disobedience practice and what you need to know in representing your clients.

Quigley focused on the First Amendment rights, Necessity Defense and Reverse Nuremberg Defense used in the defense of civil disobedience cases. He said people’s First Amendment rights are often violated because they are arrested wrongfully for protesting on sidewalks or sitting in. “In my experience, local law enforcement doesn’t really always understand when First Amendment protections really entitle people to in terms of protesting outside of big events or outside of courts,’’ Quigley said.  

To explain the Necessity Defense, he said to imagine walking down the street, seeing a house on fire and a child standing in an upper window needing help. “You break down the door and rescue the child,” he said. “Breaking down the door is a crime, but it’s a small crime compared to the big harm that was going to happen.” The Necessity Defense is difficult to raise in federal courts but it’s been used successfully in some state courts, he said.

Quigley explained the Reverse Nuremberg Defense as “I had to do it.” People who use this defense, he said, feel they have an obligation to act despite government disapproval. “If people had not resisted in Germany, the Civil War, voting rights, things might have proven differently,’’ he explained.

DiMare focused on avoiding legal malpractice and landmines, looking specifically at the six law practice areas commonly needed in civil disobedience cases:

  1. Criminal Law and Procedure (state and federal law). Whether you’re doing a training for those who might be involved in a protest action or if you’re giving legal advice and counsel to those involved in protest actions, you need a working knowledge of criminal law and procedure. Know the potential penalties commonly used to prosecute activists either on the state or federal level. Also, be aware of the various trial options — do you go before a judge, a jury or plea bargain?

  2. Civil rights and constitutional law (state and federal law). “If the police overstep their bounds,” DiMare said, “you can sue for illegal search and seizures, denial of First Amendment rights, illegal arrests, excessive force and physical brutality.”

  3. Personal injury and tort claims. Clients need to understand that they may be sued for destroying property, files, desks and offices.

  4. Higher education and K-12 Law. DiMare said most students involved in protests ultimately are not convicted of violations of law; but they might be expelled from school. Be aware of picketing codes, free speech zones, discipline codes and how the 14th Amendment due process clause applies to private and public universities.

  5. Labor and employment law (state and federal). Employees, particularly in the private sector, can be fired for participating in civil disobedience actions. Participation can affect hiring and security clearances, and there are union and nonunion distinctions.  

  6. Immigration law; crimes and collateral consequences of an arrest/conviction. For international students, “immigration law defines convictions differently than state or federal court might,” DiMare said. “Even if there is not a conviction, immigration might take it as a conviction that could result in a deportation or a student might not be allowed back in the country because of a plea bargain situation. There are a lot of collateral consequences you have to consider.”

Ahmad provided a checklist of recommendations for lawyers taking on civil disobedience clients:

Advising clients before they protest

  • Emphasize the importance of collective solidary of a group. 
    • “If part of the group is white male activists who may say they know their rights and that they can argue back and feel they can say what they want to police,” Ahmad explains, “it’s important to remember that that attitude elevates the risk for other people in the group – blacks, Hispanics, LGBT, transgender – and they are more likely to pay a heavier price for a police encounter than a white male citizen.”
  • Prepare to encounter police, be arrested, held for 24 hours until your arraignment and post bail
    • Clear outstanding warrants in all jurisdictions
    • Carry prescription medications in their original pharmacy container
    • Memorize emergency contact numbers (family, job, lawyer), or write them on your body
    • Have an emergency plan (child care, pets, job)
    • Do not carry anything you do not want in police hands (weapons, drugs, unlocked phone, politically sensitive information)
    • Carry government/school ID if you have it
  • Know the risks
    • Be particularly careful if you are not a citizen, particularly if you are undocumented, if you are on probation or parole, if you have an open criminal case or a lengthy record
  • Know your rights
    • If stopped by the police – “Am I free to leave?’’
    • If not free to leave – “Are you detaining me?”
    • If being detained – “I wish to remain silent”
    • If being searched – “I do not consent to this search,” while physically not resisting
    • If arrested – “I’m not talking without my lawyer,” and stay silent
  • Advise clients they can legally film the police but they should do it from a safe distance

  • Be careful not to physically interfere with what is happening

  • Check with an attorney before posting online any photos/video you take as they can contain sensitive legal information. The person doing the filming should not take part in the action so as not to risk arrest, which could risk the footage being destroyed.

If you are keeping track of the protest or if you learn of your client’s arrest

  • Make every effort to find out where your client is being held and call to immediately invoke their right to counsel.
  • Advise clients to call you (if they can) to inform you of where they are, and if there are any urgent issues you need to move on, such as a need for medical attention.

The program was moderated by Eleanor Southers, a former practicing attorney who now operates Professional Legal Coaching in Santa Cruz, Calif. It was sponsored by ABA Center for Continuing Legal Education, Center for Human Rights, Criminal Justice Section, Division for Public Services, Law Practice Division, Pro Bono and Public Service, Section of Civil Rights and Social Justice, Section of Dispute Resolution, Section of State and Local Government Law, Solo, Small Firm and General Practice Division and the Young Lawyers Division.