Lauren Berkowitz

Lauren’s Essay

I worked at a nonprofit law firm in Seattle, Washington that represents unemployment
claimants in hearings, appeals, and court to obtain or maintain unemployment benefits.
The Firm consisted of three full-time attorneys, a network of volunteer attorneys, a
paralegal, an office manager, and numerous volunteers. The constant ring of the phone
and hum of the fax machine served as reminders of the sheer number of working people
facing the desperation of unjust working conditions or unexpected employment
discharge. Despite the Firm operating at full strength during the summer, sometimes with
all phone lines being used in hearings, we still turned people away, a reminder of the
current chasm between the numbers of people applying for unemployment benefits and
the few people who receive help from the Firm. And this firm only works with
unemployment cases –extrapolated to the greater legal world, the chasm only deepens.
One has only to consider the magnitude of the current systemic access failure to know
that the traditional firm or legal aid structure cannot provide access to all or substantially
all of those who need it. Instead, access to legal aid requires a new structure: community
organizing, lawyering, and political firms to address the needs of communities from
within, funded by wealthy entities that engage in wrongdoing.

Two critical areas in which services are entirely lacking within the current model are the
connection between legal services and public education on rights. In the context of the
Firm, I often struggled to distance myself from my union organizer past, where I
represented workers in their struggles to get their jobs back when illegally terminated for
protected concerted activity. I had to remind myself that these hearings were only for
unemployment benefits, not for full restitution. I referred clients to other attorneys and
hoped the clients would follow through on their own, but knew all too often that they
would not. In some of the more egregious cases, I wished I could drive wrongfully-
discharged workers to the appropriate lawyers myself, as I would have done as union
staff. Knowing the workers who deserved legal help the most, often coping with
debilitating illness, would not follow through on their own rendered the individual private
firm network ineffective. The FMLA is one law in which the employer’s liability arises
without the employee asserting his or her rights. Yet, employers clearly on notice of
potential FMLA-qualifying conditions frequently terminated employees. Given the
medical conditions that trigger the employer’s FMLA duties, most of these claimants will
never contact an FMLA attorney. My successful unemployment benefit hearings felt
hollow and meaningless in these cases. From this initial dismay at the lack of education
on workers’ rights was borne my idea of how to fill the ever-widening gap in legal aid
services.

To fill the legal aid chasm, we must stop applying a traditional law firm corporate model
to community issues; instead, we must recognize the power each community has to
identify and address its own legal issues. For example, to address the widening gap in
wrongful-termination and unemployment legal work highlighted by my experiences at
the Firm, I dream of building a unique workers’ rights law and organizing firm
representing employees in FMLA violations and using the proceeds to organize
communities against the next trend of attacks on workers. Trained community organizers
would work with the community to identify the most urgent and compelling legal issues
faced by a particular community. Organizers would identify and develop community
leaders who could continue the work of the organizers long after the firm had officially
moved to the next community. The organizers would engage in community asset
mapping to discover resources the community already has. Legal issues unable to be
resolved by the community itself would be referred to the firm. The funding for this firm
would come from contingency FMLA violation cases, shifting the cost of representation
and organizing to the companies who engaged in wrongdoing against their employees.
Finally, the firm’s political organizers would train the communities to demand legislative
solutions to the conditions that caused each community’s issue.

This model shifts the power from legal aid lawyers to the communities we serve,
empowering them to prevent and address the next issue. Community engagement would
give communities the desire and experience to produce more legal aid lawyers as well as
local and political leaders, increasing the number of service providers while reducing the
demand for services. Moreover, although I have described the model in reference to
employment issues, it could be applied to any number of access to justice issues,
whichever are most needed in a particular community at a particular time.