Don’t kill the lawyers, but sanction quite a few
Commonly understood as derisively condemning the legal profession, Shakesepeare’s “[t]he first thing we do, let’s kill all the lawyers” line from Henry VI arguably represents the exact opposite. According to a former Supreme Court justice, the Bard “insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government” — a necessary move because lawyers often serve as guardians of justice and bulwarks of democracy.
Certainly the thousands of lawyers persecuted in places like Pakistan over the past few decades, jailed for defending civil rights, have lived up to Shakespeare’s faith in them. On the other hand, members of the German bar infamously failed millions of Jews and others murdered by Nazi Germany. Closer to home, a handful of lawyers facilitated the legalization of torture under the Bush/Cheney Administration, recklessly disregarding their ethical obligations in the process.
Today, American lawyers must look in the mirror and ask why some of their own are willing to use the legal profession’s powerful expertise to lunge toward authoritarianism. How do we as law professors explain to our students, poised on the edge of joining the legal profession, the many baseless legal attempts — drafted and filed by lawyers — to overturn the 2020 election? How do we rationalize the ethical lapses by lawyers who violate Federal Rule of Civil Procedure 11, which stipulates that by signing a client’s pleading, lawyers certify that it is based on good-faith, non-frivolous facts and arguments, and not filed “for any improper purpose, such as to harass”?
It is essential to the administration of justice that lawyers avoid filing baseless claims to send political messages; otherwise, the law becomes indistinguishable from politics and loses the confidence of the people it governs, destabilizing democracy. To prevent such a dark journey, our legal system has procedural safeguards in place. For example, we teach our law students that filing a frivolous lawsuit can subject them to sanctions and/or discipline, because lawyers are not just hired guns, but officers of the court — as the initial gatekeepers of legitimate claims, they literally help guard the rule of law.
The meritless actions of the Attorney General of Texas and others last week represent modern decay in the American legal profession that needs to be clearly identified and addressed. These lawyers, all subject to their respective states’ ethical rules, filed suit to disenfranchise millions, arguing that officials in Michigan and elsewhere manipulated electoral outcomes. The lawsuit was particularly troubling for the legal profession because it was led by a state’s highest legal officer and joined by seventeen others — and was frivolous to the extreme. This lawsuit was so baseless that it took the U.S. Supreme Court a mere few sentences, citing Article III of the Constitution, to reject the 154-page empty motion.
Every first-year law student could see what legal commentators in the media expressed: that the Texas lawsuit was never going anywhere. So those of us who shepherd new lawyers into the profession were left with explaining this to our students: so why file it in the first place? Why would the highest legal officials in Texas and other states pursue a dead-end claim, one clearly violative of federal rules and their professional ethical obligations?
Why? Because the legal profession is not immune from the siren songs of power and politics. While these attorneys general and all the lawyers who filed frivolous electoral challenges weakened the legal profession and concomitantly our democracy through their actions, at least other attorneys helped uphold the rule of law — the judges across the nation, who, along with the high court’s justices, almost uniformly rejected all the empty electoral lawsuits with speed and alacrity.
We now urge our law students to choose which example they will follow as they enter the legal profession — those lawyers who believe in the Shakespearean vision of ethical lawyering, or those who follow darker paths. Our democracy may depend on their wise choices.
Njeri M. Rutledge, a professor of law at South Texas College of Law Houston, is a former prosecutor and an alumni ambassador with the OpEd Project. Follow her on twitter @NjeriRutledge
Rachel E. VanLandingham, a professor of law at Southwestern Law School, is a retired Air Force lieutenant colonel and former military attorney. Follow her on twitter @rachelv12