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LAWYERS, CLIENTS, AND THE
“THIRD PERSON IN THE ROOM”
Gary Blasi*
INTRODUCTION........................................................................................................................1
I. WHAT ROOM?..................................................................................................................3
II. WHO IS INVITED INTO THE ROOM, AND FOR HOW LONG?.............................................4
III. WHO IS IN THE ROOM ALREADY?....................................................................................6
IV. INTERPRETING SILENCE, GIBBERISH, AND CACAPHONY.................................................7
INTRODUCTION
Muneer Ahmad’s Interpreting Communities: Lawyering Across Language
Difference1 succeeds admirably on two levels. First, Ahmad presents a careful
analysis of a much neglected topic, the role of interpreters in mediating the
relationship between a lawyer and a client who must overcome the most funda-
mental of communication barriers—language difference. He challenges the
uninformed view of a mechanical, black box ideal of interpretation, in which
the role of the interpreter is to translate “exactly” the words of lawyer and
client, as both impossible and undesirable. He then goes on to consider
other possible ideal roles for interpreters before arriving at his preferred
choice: the interpreter as linguistic and cultural expert. This conception fits
neatly with a notion that has taken shape within the community of practicing
interpreters and the academic field of interpreter studies: community inter-
preting. Ahmad describes this practice as “an interstitial enterprise that
inhabits the many points of more routine contact between minority-language
speakers and majority-language institutions, service providers, and power
brokers.”2 “Community interpreting,” he explains, “blurs the boundaries of
traditional interpreters, frequently embracing cultural brokering, advocacy
and conciliation as part of the interpreters’ project.”3 Ahmad’s analysis
* Gary Blasi, Professor of Law, UCLA School of Law. Copyright © 2008 Gary Blasi and
the UCLA Law Review.
1. Muneer I. Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54
UCLA L. REV. 999 (2007).
2. Id. at 1066.
3. Id. (citing Roda P. Roberts, Community Interpreting Today and Tomorrow, in THE
CRITICAL LINK: INTERPRETERS IN THE COMMUNITY (Silvana E. Carr et al. eds., 1995)).
2 56 UCLA LAW REVIEW DISCOURSE 1 (2008)
of the problem of interpretation in lawyering is a substantial contribu-
tion to the literature on lawyering theory. But the contributions of the
piece to lawyering theory go further.
Ahmad’s second significant contribution to lawyering theory is his
use of interpretation as a metaphor and the setting of interpretation as a
source of analogies that might illuminate for reexamination conceptions
of collaborative lawyering. He observes:
The interpreter visibly marks outside influences, considerations, and
concerns that animate all lawyer-client relationships. She literally
embodies the third person who, by virtue of her effect on both the
lawyer and the client, shapes and alters the content and form of
lawyer-client communication. But even when the lawyer and
client speak the same language, even when there is no interpreter
present, there is always a third person in the room. Absent an inter-
preter, both lawyers and clients still draw upon or are otherwise
influenced by actors and forces that, while not physically
manifested in the interview room, profoundly affect the lawyer-
client relationship.4
Ahmad has several suggestions that derive from this analysis. First,
lawyers must go beyond understanding literal translation of words to
develop greater cultural competence and pay increased attention to the
cultural contexts in which client problems are embedded. Second, the
example of community interpreters provides a useful analog for considering
more robust relationships with third parties who may bring different and
complementary expertise to the problem-solving enterprise. Third, the
limitations of interpretation suggest additional reasons for lawyers them-
selves to acquire facility with the language and the culture of the
communities in which they practice—a facility that cannot be outsourced
and can only truly be acquired through immersion.
The further value of the lawyer-interpreter-client triad analog and of
the metaphor of “the room” in which the interaction takes place depends
on context. Every encounter between two or more people is, of course,
affected by others not present either in the space or at the time. But using
the source analog and the metaphor also can help reveal some issues
that are often obscured in adjectives such as client-centered,5 rebellious,6
4. Id. at 1003.
5. David A. Binder & Susan C. Price, LEGAL INTERVIEWING AND COUNSELING: A
CLIENT-CENTERED APPROACH (1977).
6. Gerald P. López, REBELLIOUS LAWYERING: ONE CHICANO’S VISION OF PROGRESSIVE
LAW PRACTICE (1992).
Lawyers, Clients, and the "Third Person in the Room" 3
transformative,7 reconstructive,8 collaborative,9 and community10 lawyering. I
discuss below some of these issues and the questions suggested by extending
the metaphor of linguistic and cultural interpretation. My aim is not to
critique Ahmad’s piece, but to demonstrate how his framing of interpreta-
tion can help sharpen some issues that have engaged scholars of lawyering
for disempowered clients and communities for decades.
I. WHAT ROOM?
Ahmad points out the limitations of conceiving of the space of the
lawyer-client interaction as the interview room, which he describes as
representing a “domesticated lawyer-client relationship.”11 “Breaching the
client interview room and liberating the lawyer-client relationship from it,”
he continues, “frees us to imagine new configurations of lawyers, clients, and
communities. Such a crowd could never fit in the traditional interview
room.”12 Certainly, the interpreters and other third parties have roles to
play beyond the interview room or the lawyer’s office. But having breached
this boundary, should we set others? Who should set them?
For example, in the case of an individual client facing eviction, should
the lawyer inquire into every possible sphere in which a client may
operate: her family and friends, her neighbors, her social network, her
employer, and her workplace support systems? Perhaps. Certainly, this
inquiry might help break the narrow frame of eviction law and the
immediate circumstance of an eviction complaint requiring a response.
This inquiry could help the lawyer ascertain if the eviction follows
nonpayment of rent following either an illegal firing or a termination from
government benefits that might be remedied. Maybe the fact that family or
neighbors can accommodate the client for a short time will change the
lawyer’s calculation of prospects for a settlement. Possibly the landlord in
question is a notorious slumlord and the subject of organizing by a group
7. Louise G. Trubek, Lawyering for Poor People: Revisionist Scholarship and Practice, 48 U. MIAMI.
L. REV. 983, 992 (1994).
8. Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client
Narrative, 100 YALE L.J. 2107 (1991).
9. Lucie E. White, Collaborative Lawyering in the Field? On Mapping the Paths From Rhetoric
to Practice, 1 CLINICAL. L. REV. 157 (1994); see also Ascanio Piomelli, Appreciating Collaborative
Lawyering, 6 CLINICAL L. REV. 427, 441 (2000).
10. Christine Zuni Cruz, [On The] Road Back in: Community Lawyering in Indigenous
Communities, 5 CLINICAL L. REV. 557 (1999).
11. Ahmad, supra note 1, at 1078.
12. Id.
4 56 UCLA LAW REVIEW DISCOURSE 1 (2008)
of tenants—a fact that will make proving a habitability defense in this
case much easier, and could provide a form of social solidarity of which
the client may have been unaware.
Who should decide these boundary questions? Too often they are set
by the institutional framework, often itself the product of unequal access to
legal services. A high-volume eviction defense office will tend to parse
every case down to the same essentials, regarding everything unrelated to
the eviction else as extraneous.13 Only the wealthy or the very lucky can
find lawyers willing to explore all the dimensions of a case, of which the
immediate legal dimension is always but one. Of course, this observation
assumes that a client desires something more from the lawyer than attend-
ing to the immediate legal problem at hand. As much as the aspiring
collaborative lawyer might want to see herself as a fully engaged multidimen-
sional problem-solver, even as a friend, this aspiration may be frustrated.
As Ahmad writes, “[i]t is one thing to say that the lawyer-client relationship
is a dialogical one; it is quite another to assume that both parties are equally
interested or invested in it.”14 Perhaps the best any lawyer can do is to ask
whether these are areas the client would like to consider exploring together,
without suggesting that the unwilling client is somehow insufficiently
lawyer-centric.
II. WHO IS INVITED INTO THE ROOM, AND FOR HOW LONG?
Most lawyers will agree, and the rules of professional conduct15
mandate, that the client controls who may have access to lawyer-client
communications. It is, of course, possible that a collaboration can emerge
among lawyer, client, and third parties mutually agreed upon that does
not depend on the disclosure of lawyer-client communications. Clearly,
permissible disclosure would make the project more truly collaborative.
At the same time, overextending the analogy beyond the linguistic
interpreter can lead to serious practical legal problems. While an inter-
preter or other person “serving as an agent of either attorney or client to
facilitate communication,”16 is generally within the protection of the
13. I base this observation on my experience as a legal aid lawyer who cofounded an eviction
defense office in Los Angeles that handled about 10,000 cases per year and as an academic
who went back to evaluate the institution some years later.
14. Ahmad, supra note 1, at 1077.
15. MODEL RULES OF PROF’L CONDUCT R. 1.6 (2007).
16. People v. Osorio, 75 N.Y.2d 80, 84 (1989).
Lawyers, Clients, and the "Third Person in the Room" 5
lawyer-client privilege,17 the presence of arguably inessential third parties
risks waiver of that privilege.18 Thus, once a lawyer-client relationship
is established, the degree of collaboration, and with whom, are plainly
subject to veto by the client, who controls the flow of otherwise
privileged communications.
But can a lawyer who privileges collaborative lawyering impose collabo-
ration as a condition of the representation in the first place? There is
some irony in refusing legal assistance to clients who are insufficiently
collaboration-centric. From a different perspective, this may be seen as
turning away clients who are insufficiently lawyer-centric to meet the
lawyer’s standards or priorities. We can imagine a client saying, “Look,
I appreciate your willingness to do more and your suggestions about getting
involved with my neighbors, but I have other urgent matters to attend to
and what I really need from you is to keep me and my family from being
put on the street on Thursday.” To which a dedicated collaborative lawyer
might respond, “I’m sorry, but we cannot represent everyone, so we have
chosen to represent those who will work with others with the same prob-
lems, because it allows us to help more people with our limited resources.”
Certainly, very thoughtful progressive practitioners and scholars have
advocated conditioning the provision of legal services on a client’s
willingness to do more than be the passive recipient of services.19 This
notion seems less harsh and contradictory when the context is one in which
other clients from subordinated groups are already engaged in the struggles
around some of the same issues and are, in effect, already “in the room.” In
this sense, it is not the lawyer who is turning away an insufficiently
collaborative prospective client, but those past or present clients who
already have decided to collaborate, and to whom the dedicated collabora-
tive lawyer seeks to be accountable.
17. See, e.g., Allied Irish Banks v. Bank of Am., 240 F.R.D. 96, 103 (S.D.N.Y. 2007)
(interpreters); United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) (accountant); City & County
of San Francisco v. Superior Court, 231 P.2d 26 (Cal. 1951) (physician).
18. See, e.g., CAL. EVID. CODE § 912(a) (West 2007) (privilege waived if holder of
privilege “without coercion, has disclosed a significant part of the communication or has
consented to disclosure made by anyone”); CAL. EVID. CODE § 912(d) (disclosure does not waive
privilege “when disclosure is reasonably necessary for the accomplishment of the purpose for which
the lawyer . . . was consulted”); FED. R. EVID. 511 (“A person upon whom these rules confer a
privilege against disclosure of the confidential matter or communication waives the privilege if
he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure
of any significant part of the matter or communication.”).
19. For example, the Workplace Project on Long Island, about which Jennifer Gordon has
written so compellingly, required those receiving help with wage and hour claims to also complete
a Workers’ Course. JENNIFER GORDON, SUBURBAN SWEATSHOPS 114 (2005).
6 56 UCLA LAW REVIEW DISCOURSE 1 (2008)
III. WHO IS IN THE ROOM ALREADY?
Recasting the metaphor from one in which the lawyer and the client
together decide who to invite into the room for collaboration to one in
which a potential client seeks entry into a room already occupied by lawyers
and their client-collaborators may be helpful. But only to a point. Ahmad
writes in a tradition of critique of a particular practice: legal services and
poverty law as it emerged in the 1970s. Critics like Tony Alfieri,20
Jerry López,21 and Lucie White22 demonstrated to the satisfaction of just
about everyone that a particular style of poverty lawyering—what López
called “regnant” lawyering”23—was flawed by elitism that could create
lawyer-client relationships that only further subordinated and disempow-
ered clients.24 Ironically, in all of this critical literature, the focus is on
lawyers and how they choose to practice—and, more specifically, whom
they invite into the collaborative space. With the lawyer out of the
room, this literature would be about something else, like organizing, politics,
general theories of representation and democracy, or when it makes sense
to invite lawyers into the process.
When legal services are dispensed as a service to which the rules of the
market apply—as in the representation of corporations and wealthy
individuals—lawyers are called in as needed, and for purposes specified by
the client. It is certainly true that once this happens, the client (and the
other third parties that the client has determined are relevant to the enter-
prise) may lose a degree of control. But at least the decision to allow a
lawyer into “the room” is unilaterally that of the client: the opposite of the
prototypical legal services context.
There are, of course, some situations in which poor people are organized
into unions, community organizations, churches, or other entities able to pool
resources to hire lawyers. Labor-side lawyers, including those representing
unions comprised exclusively of low-wage workers and members of
subordinated groups, are not accustomed to having much voice in deciding
matters of collaboration. As with their employer-side counterpart attorneys,
they generally do what they are asked to do by their clients and with the
collaborators selected by the clients.
20. Alfieri, supra note 8.
21. López, supra note 6.
22. White, supra note 9.
23. López, supra note 6, at 23–24.
24. Id.
Lawyers, Clients, and the "Third Person in the Room" 7
This emphatically does not mean that issues of misplaced power
and subordination simply disappear in the context of workers, unions, and
lawyers. Rather, the same questions are simply transposed to another set
of relationships. The danger becomes not one of subordination of
client by lawyer, but of subordination of members by union leaders or
organizers, who may also be far removed from the situations of ordinary
workers and even less likely than poverty lawyers to listen to the voices
of the working poor. A lawyer taking direction from union leadership in a
nondemocratic union may in fact be further from representing the actual
interests of poor union members than the legal aid lawyer to whom the
same people may turn for help with their other legal problems.
The risks and tensions that arise in labor law also exist in law and
organizing approaches beyond the labor context. Appearances of democ-
racy are often deceiving. A poverty lawyer collaborating with a community
organization may feel or appear either rebellious or collaborative, but may
in fact rarely interact with grassroots members. Indeed, some would see too
much interaction as a necessary feature of collaboration with organizations
in order to avoid undermining legitimate community leadership. As a
result, the lawyer may have little way of knowing that the leadership with
whom she interacts really only represents a tiny clique with narrow interests
that conflict with those of the organization’s membership and the broader
community.25 A principled collaborative lawyer might make a point to find
out something about the internal dynamics of the organization and the
communities it purports to represent. And then that same principled
collaborative lawyer might impose a condition that inverts the more usual
demand that clients work with an organization: The lawyer might refuse to
work with organizations that do not agree to actually collaborate with and
truly represent their own members. Just as this approach only works with
poor people, however, it also only works with poor organizations, unable to
afford the alternative of a lawyer with different principles.
IV. INTERPRETING SILENCE, GIBBERISH, AND CACOPHONY
Theories of practice that emerged from critiques of poverty law practice
bear the limitations of historical context. Most poverty law practice has been
based on the geography of access. The Legal Services Corporation, for
25. Michael Diamond & Aaron O’Toole, Leaders, Followers, and Free Riders: The Community
Lawyer’s Dilemma When Representing Non-Democratic Client Organizations, 31 FORDHAM
URB. L.J. 481 (2004).
8 56 UCLA LAW REVIEW DISCOURSE 1 (2008)
example, provides funding to organizations that have “service areas”
that are as precisely defined as any census tract, voting precinct, or
school district.26 Progressive critiques of poverty law practice have
generally made the same implicit assumption about the locations of people
with whom lawyers might work: a geographically contiguous community
one can see on a map. Similarly, progressive critiques have most often
been concerned with those practices that effectively silence client
voices that are otherwise not difficult to hear. But what if the communi-
ties are ones of common interest but not of geography, or if those whose
voices that should be heard cannot speak with sufficient clarity or
volume to be understood?
The definition of “public interest law” for the Epstein Program in
Public Law and Policy at the UCLA School of Law includes the rep-
resentation of future generations.27 Presumably, most people would agree
that legal work that contributes to reducing particular harms of global
warming falls within the ambit, even if many of those harms will not be
seen in this century. The same might be said of work to protect animals
from suffering or the preservation of endangered species. Of course,
theoreticians of collaborative lawyering might set these aside as outliers.
All theories, even Newton’s physics, are limited to some context.
But consider other examples more directly related to the desire to help
improve the lives of poor and subordinated people: foster children across a
state whose fates are linked by being determined largely by actions and
inactions in the state capitol;28 prisoners with serious and chronic mental
illness and addiction diseases deprived of basic health and mental health care
throughout a state’s correctional system; people with severe mental
disorders who are homeless and unable to obtain the meager public benefits
to which they are potentially entitled because of bureaucratic barriers that
pose a hurdle equivalent to that of a staircase to a paraplegic. All of these
people are very poor; the vast majority are people of color and members
of other subordinated groups. And all of these examples are real.29 What
26. 45 C.F.R. 1634.3(d).
27. David J. Epstein Program in Public Interest Law & Policy: Admissions,
http://www.law.ucla.edu/home/index.asp?page=2642 (last visited Mar. 18, 2008).
28. See Martha Matthews, Ten Thousand Tiny Clients: The Ethical Duty of Representation in
Children’s Class-Action Cases, 64 FORDHAM L. REV. 1435 (1996).
29. Angela R. v. Clinton, LRC-91-415 (E.D. Ark. filed July 3, 1991), consent decree
vacated, 999 F.2d 320 (8th Cir. 1993), settlement approved, LRC-91-415 (E.D. Ark. Oct. 14, 1994),
cited in Matthews, supra note 28, (class action on behalf of children in allegedly substandard
foster care in Arkansas against then Governor of Arkansas); Plata v. Schwarzenegger, C01-
1351 THE, N.D. Cal., and Coleman v. Schwarzenegger, E.D. Cal. (class actions against California
Lawyers, Clients, and the "Third Person in the Room" 9
do the critiques of traditional poverty law practices and alternative visions
of rebellious, collaborative, community lawyering have to offer a lawyer
confronting such situations? Not much, at least not directly. To be sure, one
can try to extend the principles at work behind these critiques, including
their valorizing of important values and goals of client autonomy,
antisubordination, empowerment, collaboration, and building community.
But this extension, or even the need for it, receives little attention from
the critics themselves. In fact, it was this incompleteness I saw in works
by Alfieri, Lopez, and White that motivated me to write my first aca-
demic piece after leaving a practice devoted primarily to representing
homeless people in Los Angeles.30 Unfortunately, limitations of the author
and the piece itself resulted in that article being seen as opposing the
critiques of some versions of poverty law practice, rather than as a com-
plaint about the incompleteness of both the critiques and the alternatives
proposed.31
Ahmad’s article and the metaphor from interpretation provide an
opportunity to rethink these fundamental questions of how lawyers and
others can be true to their antisubordination principles in hard cases.
These principles require attention to at least two dangers when lawyers
(and organizers or community leaders) interact with people with regard to
whom lawyers have unwarranted relative power. The first danger is that
lawyers will, consciously or unconsciously, pursue their own goals rather than
those of clients who are unable to hold their own, even when the lawyer
invites dialog. The second danger is that lawyers will act on seriously
incomplete information about what might constitute progress for the client’s
case because they are insufficiently informed about contexts or consequences.
When it comes to problems of legal work with and on behalf of collections
of people for whom the prototype of community organizing is difficult to
apply or even imagine, the standard critiques of poverty law simply avoid
the question of what to do. Some purists might even suggest that these
marginalized clients’ situations are not appropriate realms for progressive
on behalf of state prisoners denied adequate health care and mental health care, respectively);
Rensch v. Board of Supervisors, Los Angeles Superior Court No. C595155 (representative
taxpayer action on behalf of mentally and developmentally disabled applicants for welfare
under county program of general assistance).
30. See Gary L. Blasi, What’s a Theory For?: Notes on Reconstructing Poverty Law Scholarship,
48 U. MIAMI L. REV. 1063 (1994) and Piomelli, supra note 9 (correctly observing that I had
incorrectly ascribed some of Tony Alfieri’s affinity for postmodernism to Jerry Lopez and
Lucie White).
31. See, e.g., Trubek, supra note 7, at 993.
10 56 UCLA LAW REVIEW DISCOURSE 1 (2008)
lawyering, leaving these foster children, prisoners, and homeless people with
severe mental disabilities to hope for other sources of change.
But perhaps most would suggest that there are still lessons from the
standard critique worth applying. For example, leaving aside for now
the unborn, animals, and the environment, it is nearly always possible to
help give voice to people, whatever the circumstance. Plainly, lawyers should
try to enable voices to which they can listen. Foster children, prisoners,
and homeless people know better than any intermediary what they want
to change in their own situations. They may have deep insights into some
of the institutional arrangements that contribute to the harms they
experience, and the kinds of remedies that would make a difference.
But, depending on individual capacity, in general or at particular points in
time, people may not have empirically correct information about what
changes are required at what levels of various systems in which they are
ensnared in order to get what they want. Foster children know a lot about
the value of keeping siblings together, but not as much about the effect of
caseloads on social workers. Prisoners may see as more important that more
prisons be built to reduce their overcrowded conditions than to reform a
parole system that sends thousands of parolees back to prison for techni-
cal parole violations (thus greatly both prison overcrowding and their own
risks of reincarceration after their release). Homeless people may want to
sue the welfare worker who turned them away and do not fully comprehend
that the welfare worker was required to apply nondiscretionary rules
adopted by bureaucrats who never see homeless people. Actual consultation
and collaboration to the maximum feasible extent is essential, but rarely
sufficient, to protect in these cases against the twin risks of the lawyer’s
self-interest and ignorance.
Ahmad’s piece suggests a further step of involving more broadly defined
community interpreters.32 If interpreters bring linguistic and cultural
expertise, surely there are other experts whose collaboration should be
valued, and not only those with advanced degrees (social workers, doctors,
teachers), but also those whose expertise comes from other sources, including
community and labor organizers or religious leaders. Ahmad points out the
similarities to “multidisciplinary,” “holistic,” and “community” lawyering
more generally.33 Certainly, these notions are not new to practitioners. I
do not know any public interests lawyers who would consider taking on
a project involving foster children, prisoners, or homeless people without
32. See Ahmad, supra note 1, at 1082–84.
33. Id. at 1082.
Lawyers, Clients, and the "Third Person in the Room" 11
engaging the help of others with expertise whom they judge to privilege in a
real way the best interests of the putative client group. True, this effort may
often be for the limited purpose of securing expert testimony for litigation
or legislative advocacy. But many lawyers go much further. They assume
that there are others closer to the nuances of the problem than they ever
can be. Some may even be consciously aware of the risks of lawyerly self-
interest intruding into decisions about remedies to pursue or settlements to
accept and, therefore, seek out people who can, at least to a degree, function
as surrogates for those the lawyer seeks to represent. In litigating large-scale
cases and seeking administrative remedies for homeless people with severe
mental illnesses, I sought out people with a track record not only of service to
but also of solidarity with the members of the putative class. I preferred
people who worked directly with those affected rather than leaders of
organizations or advocacy groups more removed from the client’s actual
situation. I sometimes asked them to join a case as co-plaintiffs (permitted
under California’s unique statute granting standing to taxpayers to challenge
government action34). Of course, there are no perfect surrogates. I could only
be certain that these individuals would, over the long haul and at the
moments of decision, be better positioned than I and other lawyers to make
the right decisions. Which brings us back to the earlier question: Who gets
invited into “the room” with the lawyer and the client, and according to
what principles?
In the case of interpreters, Ahmad suggests applying the rules applicable
to traditional experts in legal settings.35 But this proposal is not entirely
satisfying. Clearly, a lawyer wants to know that a collaborator or potential
partial surrogate has adequate knowledge of the matters at hand. But the
main risk with such third parties is not that they cannot solve the lawyer’s
problem of ignorance, but that they cannot solve the other major problems—
the intrusion of self-interest and the difficulty of achieving solidarity with
clients with whom one cannot literally collaborate. Here, there is much
more work to be done, work that would build on the foundational work by
progressive legal scholars and critics of poverty law practice to suggest how
to be true in practice to antisubordination principles when faced with hard
cases. Among the many contributions of Ahmad’s work in Interpreting
Communities are his suggestions for how we might proceed.
34. CAL. CIV. PROC. CODE § 526a (West Supp. 2008).
35. Ahmad, supra note 1, at 1059.
