Ethics in Brief: Obligation to Uphold the Rule of Law
By Timothy Casey
This edition of Ethics in Brief offers commentary about the role of lawyers in our society – specifically, the role of lawyers in upholding the “rule of law.”
A good starting point is to distinguish the “rule of law” from the rule of a king or dictator. As we approach our nation’s 250th anniversary, we should look back at the founding principles, one of which is the importance of the law. The driving force behind our constitutional democratic republic was a well-founded fear of autocracy, the rule of a king – King George of England, specifically – but the antipathy for autocracy extended to all kings. To assuage that fear, our Constitution divides power among the branches for the defined purpose of distributing power and minimizing the potential for autocratic rule.
In practical terms the rule of law means that no person is above the law; everyone is subject to the rule of the law. Political leaders must abide by the law and not act outside the law for a personal advantage.
Who stands guard to protect the rule of law? The short answer is lawyers. Lawyers stand alone as the only profession committed to protecting the rule of law. Other professions – doctors, nurses, accountants, architects, plumbers, electricians, and many others – reap the benefits of a society based on the rule of law. But none, aside from the legal profession, bears the responsibility of upholding the law. This core duty is embedded in the rules of professional conduct and codes regulating lawyers. (Bus. & Prof. Code § 6068(a) (lawyer’s duty to uphold the law); see also, Bus & Prof. Code § 6068(d) (prohibiting misleading statements); Rule Prof. Conduct, r. 1.2.1 (prohibiting assisting the client in a violation of law); Rule of Prof. Conduct, r. 1.16 (requiring withdrawal where the representation will result in a violation of law or ethical rules or where the representation is based on an unsupportable claim or defense); Rule Prof. Conduct, r. 3.3 (requiring candor to the tribunal regarding assertions of law and fact); Rule of Prof. Conduct, r. 8.3 (duty to report misconduct); Rule Prof. Conduct, r. 8.4 (prohibiting misrepresentation)).
Has the legal profession failed to uphold its prime directive? A new but growing literature describes “autocratic legalism” – the way current autocrats use law rather than violence to gain and maintain power by using legal authority to subvert constitutional checks and balances. (See, e.g., Kim Schepple, Autocratic Legalism, 85 Chi. L. Rev. 545 (2018)). Autocrats do no act alone; in the modern era, they employ lawyers. Perhaps it’s no surprise that lawyers – the very profession assigned to protect and preserve the “rule of law” – use their legal knowledge and skill to undermine foundational principles and promote autocracy. In a recent article, Professor Scott Cummings examines the motivations behind lawyers who seek to undermine the rule of law. (Scott L. Cummings, Why do Lawyers Attack the Rule of Law? Trajectories of “Trump Lawyers,” Int’l J. Legal Prof’n. Vol. 32, No. 1, 19-44 (2025)). Specifically, Prof. Cummings seeks to understand
the psychological factors and incentive structures that shape decisions by lawyers to cosign autocratic agendas. Are such lawyers driven by ideology, the lure of power and fame, or the promise of a specific position? . . . Are such lawyers radical at all or do they simply decide to maintain professional careers in changing political environments by zealously representing authoritarian leaders under the “ideology of advocacy”?
(Cummings, supra, at 20). Prof. Cummings focuses on the motivations of individual lawyers and concludes that lawyers succumb to attacking the rule of law for diverse reasons. (Cummings, supra, at 39). Some are blinded by commitment to partisan causes; some seek fame and relevance; some hope to receive political favors; some desire quid pro quo in the form of money or increased profiles or expanded business opportunities.
Some might argue that everyone, no matter how repugnant, deserves legal representation. Indeed, California law states that a lawyer has a duty to represent the oppressed and the defenseless. (Bus. & Prof. Code § 6068(h)). But that representation must fall within legal boundaries, and lawyers have a primary obligation to promote civil society by upholding the rule of law.
Challenges to the lawyer’s obligation to uphold the rule of law can arise in different contexts. For example, the lawyer might see a personal benefit to supporting a position antithetical to the rule of law. There might be personal gain in the form of support for a personal belief or in the form of professional notoriety – fame and fortune. In addition, the lawyer might succumb to false logic in advocating for the client – the lawyer might see the objectives and goals of the client as superseding the lawyer’s obligation to uphold the law. These contexts are not necessarily separate. A lawyer might take on a representation, in part, due to an alignment between the lawyer’s own beliefs and the cause of the client. In addition, the lawyer might be tempted to cross the line out of fear of losing the client to another lawyer – one more willing to blur or cross lines. These conflicts can emerge incrementally – a representation that begins as legitimate can erode into one promoting illegitimate objectives. Thus, the lawyer’s financial and business interests may conflict with the lawyer’s ethical and professional obligation to uphold the law.
In sum, every lawyer has a prime ethical obligation to uphold the rule of law. Our society depends on lawyers to act in a manner that promotes the foundational principles of our nation. We all lose when lawyers fail to uphold this responsibility.
