Lawyers, politics and defending justice

The American Bar Association recently urged all lawyers to advocate for the government's adherence to the rule of law. In this time of political controversy that threatens judicial independence, it is worth considering what the law is that lawyers are obligated to support and what is required of lawyers in fulfilling that responsibility.

Without a doubt, the rule of law is the foundation of democracy. A free society cannot be expected to exist without law administered through an independent judiciary. Yet, laws are not sacrosanct. Outmoded, discriminatory, and unconstitutional laws that end up on the books are appropriate subjects for criticism and challenge. Courts are not immune to criticism in applying the law and in rendering controversial decisions. There are deficiencies in the justice system that sometimes deserve positive criticism and active reform.

Lawyers are ethically permitted, and may be obligated, to criticize and challenge the law. A lawyer is not prohibited from advising the disobedience or violation of a law, rule or ruling of a court or other tribunal if the lawyer believes in good faith that the law is invalid. Lawyers are permitted to test the validity, scope, and application of the law by courts and governmental authorities alike. California Rule of Professional Conduct 1.2.1(b)(2); ABA Model Rules 1.2(d) and 8.4, Comment [6]. Nevertheless, in criticizing and challenging the law, it is a lawyer's duty to uphold the legal process and defend the rule of law.

The ABA's recent message states that the rule of law is a term that is often used but difficult to define. "The ABA rejects efforts to undermine the courts and the legal profession," (March 3, 2015). However, lawyers involved in all forms of public and private practice should have no difficulty understanding the ethical duty to uphold the rule of law. A distinction exists in the law governing lawyers between upholding the rule of law and supporting positive law promulgated by various branches of government, such as a law that promotes or detracts from DEI, or a law that regulates who may participate in women's sports or who qualifies for U.S. citizenship. The origin of this important distinction is American jurisprudence. While it might be considered by some as wishful thinking, a legal education should include (as it once did) an understanding of American jurisprudence and why it is the cornerstone of lawyer codes and professional responsibility.

Although there is disagreement among scholars about what the rule of law requires, it is generally understood that the separation of powers, judicial independence, and civil liberties are core elements of the rule of law. Lon Fuller, who was an architect of the ABA Model Code, a forerunner of the ABA Model Rules and the California rules, summarized that the "inner morality of law" requires that the law be generalized, stable, public, clear, and prospective. Fuller, "The Morality of Law" (1964). To these characteristics are added procedural principles that are equally indispensable to the rule of law. These include due process, equal access and accountability of those who govern and promulgate the law. The features of natural law are not simply aspirational thinking of judicial philosophers but are the result of historical experiences with the rule by law of authoritarian regimes.

The duty of lawyers to support the rule of law is embedded in the rules of professional conduct. Lawyers are expected to demonstrate respect for the legal system and for those who serve it. ABA Model Rules, Preamble [5] - "while it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process." Lawyers take an oath to support the Constitution and to maintain respect due to courts of justice and judicial officers. Business and Professions Code §§6067, 6068(a),(b). The rules the Supreme Court adopts under its inherent authority in regulating the practice of law are intended to protect the integrity of the legal system and promote the administration of justice, in addition to protecting the public and the legal profession. California Rule 1.0(a).

Upholding the rule of law requires protecting judicial independence. The judiciary functions as a check on executive and legislative authority. The justice system is often the sole means for holding those in power accountable. The decline of judicial independence and respect for the rule of law risks the loss of freedom and civil liberties. At times, these duties involve defending judges and courts unjustly criticized and taking steps to prevent intimidation and threats that undermine judicial independence. California Rule 8.2(a), Comment [1]; ABA Model Rule 8.2(a), Comment [3].

A current example is the activism against judges and the judicial branch by lawyers in both public and private practice. Regardless of a lawyer's political views, or the demands of a client or superior, the legal license prohibits instructing, assisting, or encouraging others, including government officials, to defy the rule of law. The fundamental duty to uphold the rule of law applies to all lawyers, including those serving in the White House, the military, and government agencies - including the Department of Justice and FBI.

The ethical duty to uphold the rule of law is epitomized by rules that prohibit lawyers from making factual statements that impugn the integrity of a judge or judicial officer that the lawyer knows to be false or has reckless disregard as to its truth or falsity, and conduct that is prejudicial to the administration of justice. California Rules 8.2(a) and 8.4. Recent proposals to amend the comments to these rules aim to clarify that attorney conduct, including speech, that may result in disciplinary action includes statements made with the intent to incite imminent lawless action against a judge or judicial officer, true threats of violence against them, and false statements of fact - or statements presented as opinion that imply verifiable false facts - about a judge or judicial officer, made with knowledge or reckless disregard of the truth. Applying an objective standard to statements impugning the integrity of a judge or judicial officer under Rule 8.2(a) (what a reasonable lawyer, considered in light of their professional functions, would do in the same or similar circumstances) is seen as striking a proper balance between a lawyer's right to criticize the judiciary and the lawyer's duty to uphold the rule of law.

Upholding the rule of law is not just about government. It is a fundamental responsibility of lawyers working for the government and in private practice to defend the rule of law and promote judicial independence. The integrity of the American system of justice depends on it.