Allo Podcast Enjoys. It's me James today and I am joined again by Mo. They are an educator, attorney, abolitionist, and they serve overlapping communities of activists, queer people, and prisoners. And we've heard from them before. We have from them about June eleventh, but today we're talking about something a little different. We're talking about redistributing power in the attorney client relationship.
How are you I'm doing okay. How are you, James?
I'm existing, I'm fine, I'm thriving. So, yeah, you wanted to talk today, he reached out to talk about this. I think it's a really interesting topic and it's one that like I've become increasingly more aware of in my coverage of some sort of different stuff that's various prosecutions, I guess in the US, and so I was very interested in this. Can you pups like start out by explaining what it is exactly that you want you wanted to discuss within the attorney client relationship.
Yeah, sure, I wanted to talk about building a trusting relationship with your attorney where you feel heard and respected and understand what you have a right to expect from your attorney and feel empowered to push for it. And this actually I want to address this both from the side of the client, particularly for people who are accused of criminal offenses, and I also want to speak a little bit to the people who may be representing folks
who are accused of criminal offenses. For people accused of criminal offenses, I want to make sure that anyone in that position really understands what you have a right to expect from that relationship and to feel really confident asking
for it. For people who are presenting individuals who are politically radical or people who are facing politically motivated prosecutions, I want those attorneys to feel safe and ethically empowered to practice criminal defense in a way that honors the goals of clients who may define their legal interests not with respect to only their own personal liability, but with respect to a larger set of principles or a larger community. Yeah.
I think, yeah, that's a very it's a good distinction to draw, and I think a good thing for people to be thinking about. So why is this sort of a topic that's important right now?
Well, so, I certainly don't want to say that participating in protests or in social movements is dangerous, or that it's even more dangerous than it has been in the past. But I am earned that we might be seeing some arrests and charges that are a little more unhinged than we've seen in a while. So this isn't new, but it may be new to a newer generation of activists.
And I think some of the community knowledge that was cultivated and held twenty or thirty years ago maybe outdated, or it might be inaccessible to folks who weren't involved back then, or maybe who weren't involved in things that were like subject to this level of state repression twenty
or thirty years ago. So that includes activists, but it also includes even very experienced criminal defense attorneys who maybe haven't interacted with these kinds of prosecutions, you know, for whatever reason, because they were doing a different area of practice, maybe because this was happening to the people they were representing in the geographic area where they practice, or like it wasn't happening at the time that they were practicing.
So I think that people on both sides of the attorney client relationship could benefit from considering that there are some maybe important and time tested methods of working to mount a collaborative defense in the context of a politically motivated prosecution.
Yeah, I think that's just to kind of piggyback off what you said. I think it's incredibly valuable. Often, like if you've been part of social movements, protest movements, what if you want to call it, like for a long time. Often we do have to learn things like the institutional
memory of movements can be quite short. And a lot of people have come to the protest movement now who were not, like in my own case, like involved in sort of the campaign against neoliberal globalization in the early two thousands, where we screwed up a lot and learned a lot, and some us are still around, and some of us are not, sadly yet because part of this grew ups that that happened, And like a lot of people, understandably,
right have been radicalized by having their bodily autonomy attacked, by seeing the cops continue to murder people after we all got in the streets and got shot with rubb
bullets to ask them to stop murdering people. Like all these things that have understandably made people realize that the institutional the institutions haven't really responded to their demands for basic human decency, and so yeah, they might find themselves out in the streets and government doesn't generally yield power willingly, and certainly government right now is doing everything to kind of take what little liberty and autonomy folks have and
slice into that. So it's very reasonable to consider these things. So if in this attorney client relationship, what would be some areas of friction or of maybe I'm phrasing that wrong, but like places where people might want to advocate for themselves in order to get an outcome that they desire.
Right well, so I'll certainly get more into the specifics, but I guess, you know, I want to talk about this because I am seeing disconnects between people in these relationships, and just from where I sit, I feel like I can see what's going wrong, and I think that there are some straightforward solutions, and I think that having compassion each party having compassion for the other can be really
useful here. So I think like one thing that's happening is that attorneys are very much educated to be confident unto the point of arrogance, and clients often either don't feel authorized to push back on their attorne. These ideas or they do an attorneys to then just maybe steamroll them.
And this is not entirely because attorneys are assholes. I think it is because criminal defense attorneys are very often taught to minimize their client's' legal liability by any means necessary, well, by any lawful means, I guess that's what I should say.
So for criminal defense attorneys who do not primarily work with movement aligned clients, this often means negotiating deals with the prosecution that involve cooperating with the state's investigation, handing over information on your confederates, putting the client in an isolated or adversarial position with their co defendants or co arrestees, or doing things that require a person to renounce or disparage the people or the communities that they've been involved
with that they come from. And I think it's true that using these kinds of tactics to minimize your own legal risk is very often what people charged with criminal offenses want. But that sort of approach is often at odds with movement values, and it's often totally inconsistent with what activists want. Activists want when they are facing charges, So, you know, trying to minimize legal consequences is you know, certainly always a part of our job, and it's often
a totally valid thing for lawyers to be doing. But the idea that an attorney's job is solely to mitigate legal fallout is not actually entirely accurate. What lawyers are supposed to do is work with the client to help the client articulate their goals, and then the attorney should use their expertise and their experience to help the client lawfully pursue those goals. And that's what attorneys are supposed
to do in every case. But I think it often becomes most salient when the client's goals are less focused on minimizing legal consequences and more focused on, for example, highlighting movement messages or acting in solidarity with other people who are facing similar charges. So, you know, again, I'm talking about this right now in the context of explicitly politically motivated prosecution, but frankly, the goals of the client have to lead in all cases.
Yeah, of course. So one thing that we've chatted, that little bit that I think maybe folks in some areas that I've looked at might not have been aware of. It's a concept of a joint defense. Could you explain for people who aren't familiar what that looks like.
So, a joint defense is a way of approach a legal case where there are multiple defendants or multiple arrestees. Typically in a criminal case, if you have multiple defendants, there's sort of a presumption that their interests are at odds with each other, that one of them or one or more of them is going to get thrown under the bus to reduce the punishment of one or more
of the others. When we're talking about something like a mass arrest or an arrest that takes place in the context of a social movement where there are multiple defendants, very often those people do not see their interests at being at odds with each other. Very often they see their interests as being unified, and so they want to act in solidarity with each other. And there are a bunch of reasons for for this that are legal, and
they're also political and social reasons. Right just in terms of people you know, having carrying social relationships, they often
have commitments to each other and to community. But politically, people often feel that their individual legal interests are less the important thing that's at stake and that the thing that's at stake is actually the health and welfare of their social movement, right, and that if they did do something like cooperate with the state's investigation, they would actually
be undermining their larger social movement goals. Legally, and this is really important legally, having a joint defense agreement or using a joint defense approach allows all of those people to work to get other in a privileged context, right because they share a unity of interest, and so they and their attorneys are able to work on legal strategy together, are able to do things like negotiate for non cooperating plea agreements as a block, are able to just have
you know, more eyes on the problem, more people doing legal research, more people drafting motions, right, and so in a very material sense, this is often a legal strategy. Working together actually leads to better legal outcomes for everybody involved.
So I want to be clear that this approach, both you know, using joint defense agreements and using that approach, but also just in terms of an individual attorney client relationship, acting in a way that's more collaborative is not just cosmetic, and it's not just something that makes you feel good. If you're someone who's committed to anti authoritarian principles in
a material way. Approaching the attorney client relationship in a way that is calculated to more fully incorporate the goals and expertise of the client or of many clients leads to better legal outcomes, less punitive outcomes. It leads to outcomes that are more closely aligned with client values, and it leads to outcomes that are better understood by the client, even if those outcomes are bad.
Right, yeah, yeah, at least the part of that process. I think a great example of joint defense that we discussed would be the j twenty case. Right, if I'm not mistaken, it was a group of folks who were tried together or who amounted to joint defense, I guess, against charges that were like fought against some Trump's inauguration.
It was something they were kettled in DC protesting Trump's inauguration, and there were more than two hundred people arrested in this mass arrest, and they had a very coordinated defense, and they all worked together, and ultimately, I'm going to say, in large part because they had so many eyes on the problem, they had so many people working on it, they were able to really go through discovery, go through the state's evidence against them, and find prosecutorial misconduct that
led to the favorable resolution of those cases. The other thing that they did is that they really all refused to cooperate with the state's investigation, which limited the harm that was done to larger social movements because it meant that people were not just rolling over on each other and giving the state information to which it was not entitled, right, like you know, information about people's relationships or interpersonal conflicts,
or you know, different kinds of First Amendment protected information that the state always wants to have about activists but which they actually are not entitled to, but which they often end up getting because people who are facing criminal charges, you know, sometimes will will offer that up in exchange for you know, what they hope will be some lenience.
I think that was a really good explanation of how these these techniques, like you say, they're not just cosmetic. It's not posturing or an aesthetic thing. It can result in material benefits as well as aligning with your moral desires. Can you explain substantively then, how this looks in an attorney client relationship, either with an individual or as a group now to your joint defense.
So, you know, like any other relationship that's predicated on anti authoritarian principles and shared values of mutual aid and self determination, it requires building trust. It requires clear expectations, honest communication, respect for each other's expertise and consent. And I think, you know, the piece that I think is sometimes missing is a real understanding from both parties that the accused is the person who has rights and liberty
on the line. The accused is the person whose goals matter. The accused is the person who needs to be able to make decisions about things like whether or not to accept a plea offer, whether or not to cooperate with the state, whether or not to go to trial, and whether or not to testify a trial. The attorney is presumably the person who has a lot of expertise with the law and a lot of experience with the legal system,
and that is valuable and important. But you know it, really I want people who are facing criminal charges to understand how much power they ought to feel comfortable exercising in this relationship. You know, it is up to the accused whether they want their attorney to take part in a joint defense strategy. Now we are seeing some stuff.
I have recently seen some bond conditions imposed on people facing criminal charges that appear to me to make it very difficult for attorneys to engage in a joint defense strategy because sometimes it looks like these co defendants are being forbidden from communicating with each other, and so you know, that is an interesting wrinkle. But one of the things that can mean is that it's up to the accused whether they need their attorney to go and argue to have that bond condition removed.
Right. Yeah, I haven't thought of that, but there are definitely especially if you are being proscuted in a group or it's alleged to you've conspired to do something illegal, then yes, that might be condition of your bond and that would make it very hard to do a joint defense. But like you said, that's when you should feel empowered to ask your attorney to stop that from being a thing.
Right, Right, the person who's facing charges gets to make these decisions, right And I'm saying, well, it's your right to decide whether to be involved in a joint defense. It's also your right to decide not to be. You can absolutely exercise your right to independent counsel, meaning the right to have an attorney who is not representing anyone else who's involved in your case, like who is not in any way connected to a co defendant or co arreste.
Now this is not to say that your attorney has to do everything you want and they're just a yes man, and that if they decline to do everything you instruct them to do, that you should fire them. You know, attorneys do have to operate under certain constraints, and this ranges from things like, you know, some law is not relevant to this case, right. I've occasionally had clients ask me to use the uniform Commercial Code to defend their
criminal cases, which is not a thing. And you know, I've also had clients ask me to like hold have a hearing or vile emotion at a time when like, procedurally that's not permissible. Right. So you know, you can't just do everything that the client says. But look, typically the attorney has control over legal strategy because you know,
as I said, presumably they have expertise with law. But like, even if you have decided that you're just going to defer to your attorney entirely in matters of strategy, or even if you have an attorney who's like not super comfortable involving you in strategy to the degree that like I might be at a minimum, the attorney needs to be able to explain their strategy to you and justify it right, so you know, again, there needs to be mutual trust and respect for each other, so expertise, they're
not just a mouthpiece. But if you feel like they're genuinely not listening to your goal or not helping you to understand what's happening, or they're actively disrespectful, it's really important for you to know you can fire your attorney.
Yeah. I think the one area of at least where I've become aware of this is somebody whose attorney was either refusing to or somehow was incapable of gendering them in the way that they would like to be gendered. And in cases like that, you have the right to ask your journey, you're your attorney, to use whatever pronouns you prefer, and to be referred to using those pronouns. Is that is that right?
Absolutely? Absolutely. I've certainly heard horror stories, and not just and I'll speak to this in a second. I have heard horror stories not just about public defenders, but also about private counsel being you know, casually racist, being misogynist, being transphobic, and you know, being ablest, being really disrespectful
and classist, particularly around things like transportation and childcare. So, you know, if you have an attorney who's just straight rude or being disrespectful or like being oppressive in some way, I would say, you know, the first step I suppose would be to bring it to their attention, and if they don't, if they are not responsive, you know, you should know that you do have a right to choose
your own attorney. Now I do understand that there are you know, financial issues with just choosing your own attorney, but particularly in the context of you know, movement related prosecutions, they're often not always, but often resources of their to you where people will either work to find you someone who can represent you pro bono or you know, will
raise money. And the other thing is that if you have a public defender, you can almost always have appointed council from another office if you have some kind of irretrievable conflict with your attorney.
So I think we should talk about public defenders a bit because I think sometimes people can think that like that they're sort of the worst option, or like the bargain basement choice or what have you.
Went.
In fact, there are some things you can get with a public defender you're very unlikely to get with private counsel and absolute Yeah, let's talk about how defenders a little bit.
Sure, I would love to. I love public defenders, especially in large cities that have what we would call institutional public defenders as opposed to you know, everyone takes a turn being a public defender for one week out of the year. You know, people who want to be public defenders do not go into public defense for the big bucks. They go into it because they care about defending people
and keeping people out of jail. And very often, you know, the people who are in those positions care very much and are really really well trained, and they are not dummies, and they will work really hard for you. And I do want to push back against the widespread perception that public defenders are not good attorneys. They very often are the best available option. You are often in very very good hands. Now, this isn't to say that you're never going to come across a public defender who is rude
or incompetent in some way, some way. But I would really really caution you against assuming that the public defender is not a super qualified, committed attorney. The other thing is that the offices of the public defender often have resources available to them that private counsel do not. You know, they have investigators, they have social workers, they have vouchers for public transportation, and all of those things are resources that I think can be very useful in supporting someone
who's facing criminal charges. So again, you know, certainly, if you're having some kind of interpersonal problem with your public defender or any attorney, I want you to feel really really empowered to address it and hopefully they're able to, you know, respond in a way that's appropriate and explain what's going on and you know, why things are happening in whatever way they are. But I think it would be a mistake to dismiss the public defender as a good option.
Yeah, yeah, I agree. I know some public defenders and some of them are really great people, very very committed, like you say, to keeping folks out of jail, which is his goal in a lot of these cases.
Some of my best friends are public defenders.
No, they don't and like people obviously will be. I guess a lot of people in some who are anti authoritarian right are going to be like less than positively aligned with any sort of institutions or or feel concerned about interacting with people who are part of these institutions, but like as far as those people exist within those institutions to keep people out of much worse institutions like jails.
I think a lot of people who do public defense really have the sense that they're, you know, that their mission is harm reduction, right, and they're prepared to operate in the confines of what are sometimes sort of leviathan bureaucracies in order to achieve that.
Yeah, and maybe a lot of folks would have run into it. I certainly know. I'm met a lot of public twenties in twenty twenty in the course of covering protest, and yeah, it is pretty clear that those folks were largely aligned with with good things, with stopping the state doing violence to people in all of the different ways that it does that. Well, is there anything else that you'd like us to get to with respect to these relationships people might have with their attorney.
Yeah, I say this. A lot attorneys have an obligation to give their clients their best understanding of what's going on, what paths are available to take, and the possible or
likely outcomes of each of those paths. Right, an attorney has an obligation to give you the best possible legal advice based on your articulated goals, their understanding of the law, their experience, and their clinical judgment, and their clients have no corresponding obligation to follow that advice, which can be frustrating from where I sit, but it is nevertheless a critical attribute of my work that I do not get
to make big decisions for other people. They get to make decisions that I would not make if I were allowed to make them, but I'm not. I think that, you know, I try to be really transparent with my clients about what my ethical commitments are, what I will do for them, what I'm not allowed to do for them. You know. I try to have those conversations in an ongoing way. I don't know that that's common practice. I think people are really busy and that's a hard practice
to maintain. But I want to encourage people who are in an attorney client relationship to initiate those conversations right. I guess. The only other thing I would say is, you know, if you have concerns with your lawyer, address those concerns immediately, because the farther into a case you are, the harder it is to have that conversation, and the farther into a case you are, the harder it is
to fire your lawyer. You have a right to choose your own attorney, but if you're, you know, one week out from going to trial, the judge may not allow
you to do it. Yeah, right, So yeah, I mean, I guess, I just I just wanted to tell anyone who's listening that if you are in a situation where you have to have a relationship with an attorney, you know, it's already probably kind of a bad situation, and you should be in a relationship where you feel like your lawyer is taking all of your goals seriously, which includes not just your straightforward legal goals, but movement support and solidarity.
And if your lawyer is disrespecting your goals, or disrespecting your identities, or disrespecting other kinds of ethical commitments you have, you can choose to find a different attorney, and there are resources available, and ultimately these decisions are yours, and then I had some resources that I wanted to be great. So for people who may be accused of criminal offenses, there's a really great book called The Tilted Guide to Being a Defendant, and if you google that you can
find a free pdf of it. I would also encourage people to reach out to and to become non lawyer legal workers, so people who have experience with jail support, people who have experience with court support, and with providing sort of community support to people who are facing charges.
If you are somebody who has an ongoing case, having a support committee that includes at least one legal worker can be just so critical in maintaining morale and in feeling supported, and in having the wherewithal to be an active participant in your own defense. And we do know that when people are active participants in their own defense, they have better legal outcomes.
Yes, I would imagine even if they don't have better legal outcomes, they have ones that are easier for them to understand. They're more satisfactory because of that.
Yeah, absolutely, absolutely, there are a lot of times when there are no good options on the table, don't. I want to be very clear, being an active participant in your own defense or having a really great attorney who really listens to you and respects your goals does not mean that you are not going to experience punishment or state repression. It means that you are going to have a better handle on what your options are and why
things are happening in the way that they are. So even if you end up in a situation that involves, you know, for example, spending time in carceral confinement, you will at least understand how you got there, and you will understand what the other possible options were. Right, you know, somebody might choose to endure punishment rather than cooperate with
the state. And even if that is not what most people would understand as a better legal outcome, it is an outcome that at least was more intentionally pursued than the alternative.
Yes, yeah, yeah, So where could people find these these non loyal legal workers if they wanted to add one, or if they know, if they wanted support from one.
If people wanted to find legal workers in their own community. I mean typically they're they're involved with movements. They might be associated with your local chapter of the National Lawyers Guild. They might be the people who are most active in jail support. If you really can't find anybody, you can call the National Lawyer's Guild Anti Repression Hotline if you
are actively facing charges. That number is two one two six seven nine two eight one one, and we can try to connect with you with appropriate legal resources in your community. That is one way that I would encourage people to reach out if you are facing charges and you're having a hard time connecting with legal resources. That hotline was mostly for federal federal cases and for federal repression, but if you call it, we will do our best
to connect you with appropriate resources wherever you are. And there are also some resources for lawyers that I wanted to hyppear, which are, first of all, the National Lawyer's Guild, which is a bar association for people who value human rights over property rights.
What a dark situation that this is the subset of human beings. Yeah, that the energy are great, some positive energy experiences.
What a dark situation that it hadn't occurred to me? How telling that was about lawyers as a whole.
Yeah, Yeah, when a subset of your professor, the subset of my profession is equally the dark and terrible people's we just have to try and be better. I guess.
The other thing that is available for attorneys who are interested is there's a book put out by the same people who wrote The Tilted Guide to Being a Defendant for attorneys, and it's called Representing Radicals. And that is I think available through AK Press.
You should buy it from a cap Press directly and not from Jeffrey Bezos in any way.
Thank you. But and the other thing is there are a lot of attorneys around the country who are more than happy to consult, to act as mentors, to share motions, to share legal research. The people who work in movement spaces as lawyers, are typically always prepared to share our experience and resources because we have a stake and other people becoming really good at this. You know. You know,
my goal is to have fewer clients. So if anyone is interested in helping me to achieve that goal, either by going to law school or by taking some of my clients or taking some of the people who might otherwise be my clients, please I would be delighted to shepherd you into movement defense.
Yeah, that would be great. If we have any little like budding movement defenders, how would they be able to find you.
Oh yes, if you would like to find me on the internet, please don't. But I do have a website that you can find if you google me. It is mo at Law, and I am pretty available if you reach out to me by email and have questions. Right, But generally when I come on these things, the only thing I have to plug is the concept of not talking to cops.
I wanted to do an episode on that. Maybe we'll do it one day. I think we should do an expanded how to not talk to Cops guide the.
I guess it's not just the concept of not talking to cops, it's actually the practice of not talking to cops.
And certainly, like it's somebody myself here lives on the border and has to deal with all kinds of different jurisdictions of cops on an almost daily basis, just in the travel I need to do to live my life. It can be complicated and scary, and if you're not a citizen, it becomes even more complicated and scary. So, oh yeah, that's the thing we should discuss.
Indeed, I would like to say that apart from some very very specific exceptions that involve being at borders or being subpoenaed to a federal granjurie. You never have an obligation to talk to cops, to answer their questions, or to cooperate with their investigations. That doesn't mean you can obstruct their investigations, but you absolutely have no affirmative obligation
to speak to police officers. And if they ask you, if they are trying to interrogate you or ask you questions, you can say I am going to remain silent and I want to speak to a lawyer. And if the FEDS show up at your house or call you on the phone, or come to your office or your place of work, you can say, I am represented by counsel. Please leave your name and number and my lawyer will call you.
Okay. Yeah, it's good to have scripts. I want to Yeah, I think we should. We should break down and detail some more scenarios. We should do it in another episode because it'll be maybe a bit longer. Yes, and yeah, I think folks, maybe I think everyone understands the concept, but the practice and there's that by tea given theirs.
Great. Yeah, And if you don't yet have an attorney and you feel uncomfortable saying I'm represented by counsel. You can just say, please leave your name and number and my lawyer will call you. And then you can call the National Lawyers Killed Anti Federal Repression Hotline at two and two six seven nine two eight one one and have a privileged conversation about your rights, risks, and responsibilities and we can connect you with an attorney in your area.
Yeah. That is excellent, actionable advice. Yeah, thank you so much for giving us so much of your time and help. Yeah, I really appreciate it. I'm sure everyone else does too.
Not at all, it's my pleasure. I am always available to come and talk to you about various the various rights of people accused of criminal offenses. Usually I am talking about your rights with respect to the state, but it has become really evident that I needed to talk about people's rights with respect to their own attorneys.
Yeah. It's empowering for people to hear this. So I'm glad we talked about it me too. It could happen here as a production of cool Zone Media.
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