Making news this week: Speaking out for the rule of law

The rule of law is under siege and it’s incoming on all sides.

The judiciary, the Department of Justice, the intelligence community, and the State Department have all been rebuked repeatedly, undermining their legal and moral authorities. Our electoral process has been compromised and efforts to investigate the culprits, circumstances, and motives of the perpetrators have been resisted even as the intelligence community is in unanimous agreement that all signs point to Russian interference.

That’s not to mention attacks on the special prosecutor charged with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” as well as “any matters that arose or may arise directly from the investigation.”

If alarm bells are not going off by now, you probably skipped sixth-grade civics class or spent too much time in a banana republic.

In recent days, John Brennan, the former director of the CIA and an outspoken critic of the administration, had his security clearance revoked. This caused 13 former U.S. spy chiefs who served Democratic and Republican administrations to sign a joint letter supporting Brennan and, implicitly, the right to free speech, freedom from politicizing intelligence activities, and the integrity of their professional colleagues. Journalists, in the crosshairs of executive rebuke and repeatedly labeled “the enemy of the people,” are also joining hands in opposition. The Boston Globe and more than 300 newspapers with diverse political bents published editorials declaring “journalists are not the enemy.” Are you hearing the alarm bells from sources not prone to panic?

It’s time for the legal profession to voice its concerted opposition to the escalating assault on the rule of law. There are approximately 1.2 million licensed attorneys in the U.S. As the rule of law’s early responders and ultimate guardians, lawyers and other legal professionals have standing and a professional obligation to speak out with similar conviction, clarity, and unanimity as journalists and intelligence leaders in support of the Constitution. Doing so would not be a political statement, although everything these days seems to be politicized—or cast that way. It’s about the defense of the rule of law–the stitching that binds our democracy.

The foregoing call to arms is not to imply that lawyers have sat on their hands as the siege has intensified. Many, including ABA immediate past-president Hilarie Bass, have spoken out, and  everyday legal professionals around the country—and the globe—provide valuable services that reinforce adherence to the rule of law. But more must be done during these unusual and perilous times. If legal professionals are not swayed by higher angels to act, they should consider that failure to do so might ultimately result in most of them being out of business. There’s not a surfeit of lawyers in autocratic regimes.

The legal profession has regrettably allowed many in our society to conclude that they are already disenfranchised from the legal system and/or rendered unequal treatment by it. Consider that approximately 80 percent of Americans and two-thirds of all businesses cannot afford legal representation even when the need is acute. Absence of meaningful access to legal services (commonly called “the access to justice crisis”) is a cancer  that metastasizes when-as now-the public is encouraged to believe that “the system is rigged.” The same goes for sentencing disparity and other statistical evidence of unequal treatment based on color and ethnicity. Those inequities are exacerbated by social media, a lethal vehicle for dissemination of false information, vitriol, and dangerous stereotyping. The legal system certainly has its flaws, but it’s a different story altogether when those in high office sow doubts about its legitimacy. Consider that in late-May a Monmouth University poll found that 43 percent of Americans think the Mueller probe should end.

It’s precisely for that reason that then-ABA President Charles S. Rhyne in 1957 envisioned a national day to recognize the nation’s commitment to the rule of law, and why President Dwight Eisenhower declared the first national Law Day in 1958, noting “the clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”

Legal professionals are busy people. The stresses of their everyday lives are intense and amplified by the rapid change the long staid legal marketplace is witnessing. Many in the industry—especially recent entrants confronted with daunting education debt—are trying to stay afloat. Others are attempting to read the tea leaves where the industry is headed and how to prepare themselves. Pundits reflect upon the diminishing life expectancy of the billable hour, the incursion of the so-called Big Four accounting firms, and the impact of artificial intelligence on legal delivery. Worthy concerns, all. But they are a footnote to the ebbing strength of the rule of law. That’s why the legal industry must voice its commitment to protect and defend it.

The American Bar Association, trial lawyers, the legal academy, corporate counsel, law students, law firms, law companies, legal operations professionals, the legal tech community, and all that have a place in the legal industry’s increasingly large, diverse umbrella must answer democracy’s cry for help. Coming of age during the Vietnam/Watergate era, Crosby, Stills & Nash’s lyrics to “Long Time Gone” echo in my ears:

“Speak out, you got to speak out against the madness/You got to speak your mind, if you dare”

We can no longer sit on our collective hands and must join them in opposition to this unprecedented assault on the rule of law. To put things in legal-speak: Silence will result in irreparable harm and no adequate remedy at law will be available. Govern Yourself Accordingly.

Author

Mark Cohen is a lawyer, law professor, legal innovator and strategist, and founder of Legal Mosaic. 

Mark says of himself “I write about changes in the global legal marketplace”.

This post was first published on August 20, 2018 in the ABA Journal’s Your Voice as Time for the legal industry to speak out for the rule of law.