Introduction: The Rule of Law Is Not One Single Thing In A Nation—It Can Be Lost In Local Pockets Here And There.
The concept of the rule of law is often thought about and discussed in national terms—a given nation either follows the rule of law or it does not. This brief article makes a different observation and assertion: “The Rule of Law” isn’t an all-or-nothing concept across a nation. Rather, the rule of law—the integrity of the legal system in the real world, on the ground, for regular people—can vary dramatically in different local areas, be it different towns, different regions within a state, or different court systems within a state’s overall court system.
Related to this, this article makes a second observation and assertion: the rule of law in a given local area is not endangered by authoritarians or dictators strong-arming the entire judicial branch of government. Rather, the rule of law at the local level is endangered when local attorneys engage in misconduct in and through the courts in their everyday cases.
This article proposes the idea that the rule of law in any given local area or local court system is dependent upon the daily conduct of attorneys in local courts and how the local courts address attorney misconduct when local attorneys abuse the local judicial system. Stated differently, this article briefly examines how attorney misconduct at the local level can erode the rule of law in that local area, creating a void where the rule of law is broken or does not exist at all, negatively affecting not only individual people in cases but also the entire local community’s trust in the legal system. In other words, a local area can have lost the rule of law even if the rest of the state or country still maintains it.
Defining the Rule of Law in Practical Terms that Local People See in Local Cases and Local Courts.
Often discussed but rarely spelled out and unpacked, the rule of law encompasses several principles such as equality before the law (no one is above the law, and the law will treat everyone equally), procedural consistency (no arbitrary decisions), due process (notice and the opportunity to be heard before rights or property are taken), and decisions based solely on real facts (evidence, not speculation or hearsay) and legal standards (the actual law that exists in case law and statutes, for all to see, and an opportunity to appeal if legal error was made). These principles that comprise the rule of law are codified in the United States Constitution and the constitutions of the 50 states, as well as in federal and state statutes.
These principles are not abstract aspirations or platitudes, but they are always at risk of becoming mere empty words. They are practical necessities that ensure fairness and predictability in legal proceedings, which is the place where serious things happen: People are found guilty or innocent, or have their homes or property taken from them, or returned to them, or have their legal rights protected, or have their legal rights taken, or have their children taken, or returned, or protected. The rule of law is important because all of this is serious. It governs some of the most consequential events in life. As such, when the principles that are “the rule of law” are harmed, diminished, and compromised, the legal system fails to serve its foundational purpose for citizens.
This can occur at both the national as well as the local level, court by court, or town by town. And at the local level, the danger is not the national authoritarian or dictator, but rather the unethical attorney who engages in serial misconduct over time.
Localized Attorney Misconduct Erodes The Rule of Law at the Local Level.
Based on initial research to date (see citations at the end of this article), this paper observes and asserts that attorney misconduct in local courts can have disproportionate effects in harming the rule of law in that localized area. For example, when an attorney habitually disregards ethical standards—such as by having a practice of making false statements or omissions to the court, or by routinely manipulating and exploiting procedural rules and court deadlines—the fairness of proceedings is compromised for the citizens who are facing such an attorney.
This not only affects the immediate case but also results in changes to two norms of what is and is not accepted in that local area: A norm develops in which unethical conduct becomes allowable, excused, shrugged away, looked away from, or otherwise is allowed to exist without consequence: The unethical attorney gets away with the unethical conduct due to the development of a new norm: a generalized everyday acceptance of the unethical, especially from the particular attorney.
At the same time, another norm erodes: The rule of law. The norm of the rule of law starts to lose its practical meaning for the real participants facing the unethical lawyer. No laws have changed. No formal rules have changed. But a norm of misconduct now exists, and the norms that follow from the rule of law have been eroded if not lost, particularly in each and every case in which the unethical attorney engages in their misconduct.
The Complicity of Inaction: When Silence And Inaction By Other Attorneys And Judges Further Erodes The Rule of Law First Caused By The Unethical Attorney.
Similarly, based on initial research to date (again, see citations at the end of this paper), this article observes and argues that, in local areas, the rule of law is particularly at risk when the presence of an unethical attorney is compounded by the presence of opposing counsel and judges who, for whatever reason, allow, excuse, shrug away, look away from, or otherwise expressly or tacitly remain silent and inactive when the unethical attorney engages in misconduct. There are many reasons why this can occur. This article only briefly mentions a few of them.
On the one hand, there are psychological and financial factors in the local context, such as fear of losing business, being ostracized, or other professional repercussions for an opposing counsel who knows of misconduct but hesitates to address it by reporting it.
On the other hand, there are also systemic issues, such as inadequate oversight mechanisms, as well as the game theory problem that opposing counsel face—they know they will have repeat cases with the unethical attorney, time and time again, sometimes over decades, in a small local region or local court. Both self-interest and systemic factors can deter opposing counsel from reporting the unethical attorney’s misconduct.
The observation and assertion on this point is this: First it is the unethical attorney’s misconduct that harms the rule of law at the local level, and then it is the complicity of other attorneys and judges, for whatever reason, that compounds the harm, placing the general public that depends on the rule of law in the worst position possible: The rule of law has broken down at the local level, and the only people who can do anything about it are choosing not to.
The Rule Of Law And Variability in Each Micro-Judicial Ecosystem.
This paper asserts, subject to further research, that it is the first to present the concept of the Micro-Judicial Ecosystem, where the ecosystem defines the small area where the rule of law may be particularly robust or particularly lost: Be it a town, or a section of a city, or a region of a state, or a type of court within a state, it is the nature of the given ecosystem that matters.
For example, the unethical attorney may engage in their most egregious misconduct in one type of court (say, a state’s family court), but act appropriately in another court where misconduct is not tolerated (say, the state’s supreme court). Or, the unethical attorney may know that they can get away with things with one particular judge, but not another.
This paper suggests that it is these variables that define the relevant “local” ecosystem where attorney misconduct may be eroding the rule of law, and, given that it can occur even judge-by-judge in the same court system, the word “local” is not precise enough to express just where the rule of law can be lost: It can be lost even pocket-by-pocket in a given local area.
If an unlucky person has had the bad luck of drawing both the unethical attorney as opposing counsel, and the bad luck of drawing the judge in the area who looks the other way or minimizes misconduct, the person—a citizen whose rights are at stake—will be experiencing a loss of the rule of law not just “locally,” but in a “micro-judicial ecosystem” where the citizen, and his counsel, will have almost no practical ability to secure the rule of law in that particular case.
As a topic for a related paper, parallels can be seen between this and the “two-state” theory of the rule of law. (See pending paper.)
Local courts operate within—and may also have within them—even smaller micro-judicial ecosystems that can differ significantly from one another. In addition to those discussed above, factors such as resource availability, administrative practices, and community norms influence how legal proceedings transpire and how the law is applied and administered. Consequently, the rule of law may be robust in one locality while being substantially weakened in another. In other words, the issue is not just one of individual people; norms that keep the rule of law alive can become institutionalized in the court system itself, and in a town’s views of what courts are for, and are not. And norms that erode the rule of law can become embedded in court systems and local areas, too.
Game Theory (The Prisoner’s Dilemma) And Incentives and Disincentives Related to Misconduct By Attorneys.
Game Theory, sometimes known as the Prisoner’s Dilemma, is a theory that provides a framework for understanding the strategic decisions that attorneys make regarding whether to engage in, and respond to, misconduct. The theory and its application here are sufficiently complex to warrant an entire thesis; the academic literature discussing the elements of Game Theory and its application to various human scenarios is voluminous.
Here, this paper summarizes at an over-simplistic level to observe and assert this: In environments where unethical behavior by an attorney is rarely punished—in courts where attorneys know they can get away with misconduct—the perceived benefits of misconduct actions may often outweigh the risks. And where the attorney who engages in misconduct can have increasing confidence that others will not report the misconduct, the people that could step in, such as opposing counsel and judges, can find themselves concluding that it is increasingly difficult to confront the misconduct over time.
Again, this is a very simplistic application of Game Theory and the Prisoner’s Dilemma to the scenario of attorney misconduct in local areas and particular courts. That said, Game Theory begins to demonstrate a third norm that can occur at the local level: Repeated acts and repeated silence that create a self-reinforcing cycle over time where misconduct becomes a rational choice—and silence becomes a rational choice, too. All of which further degrades the legal system’s integrity—the rule of law—in that micro-judicial ecosystem within the local.
Some Specific Forms of Attorney Misconduct That Harm The Rule of Law.
Attorney misconduct manifests in various ways, and some is especially harmful. Here are some of the specific forms of attorney misconduct linked to specific harms to particular aspects of the rule of law:
• False Statements to Courts: Undermines the factual basis of court decisions.
• Concealing or Distorting Facts: Obstructs the court’s ability to ascertain the truth.
• Repeated Noncompliance with Court Orders: Erodes judicial authority and procedural order; prevents the court from enforcing the rules necessary for fairness.
• Procedural Gamesmanship: Exploits legal processes to disadvantage opponents unfairly.
• Filing Motions for Improper Leverage: Misuses legal tools to coerce or intimidate.
• Exploiting Biases: Invokes stereotypes and irrational animus to alter judicial outcomes unjustly and on the basis of prejudice and fear.
• Misuse of Informal Influence: Leverages relationships to avoid accountability; causes cases to get decided in the shadows, not by public law.
Each of these practices, when unchecked, contributes to a legal environment where outcomes are determined by manipulation rather than merit—endangering the rule of law.
Transparency Through Public Litigation that Exposes Attorney Misconduct as a Public Good for Accountability.
This article has discussed, above, the roles that opposing counsel and judges play in the context of attorneys who engage in misconduct that harms the rule of law. This article now also proposes and discusses that there can be an additional mechanism to protect the rule of law in the face of attorney misconduct at the local level: Public court litigation that provides transparency as to the misconduct of the unethical attorney, or, litigation brought by a person who has standing to bring to light the misconduct of the unethical attorney.
Such cases appear to be an important way to promote accountability and bring consequences to attorneys who engage in misconduct that is harmful to the rule of law. One of the reasons they appear to be important is this: They are independent of the other actors who should be stopping attorneys who are engaging in misconduct.
In other words, even if opposing counsel fails to stand up for the rule of law, and even if judges fail to do so, and even if a norm develops inside the local court that allows the unethical attorney to continue to engage in misconduct, the independent outside public lawsuit that exposes the unethical attorney can independently and successfully cause transparency, accountability, and truth as to the facts of what the unethical attorney is doing in the local court. Research indicates that one version of such public interest litigation is called “placed-document” public advocacy, or “artist-placed public document art” in that the evidence is placed in front of a court through traditional legal means to serve the public interest of protecting the rule of law in a given local area.
Stated differently, this paper proposes that, in the absence of effective internal misconduct enforcement by opposing counsel and judges, this type of independent public litigation can serve as an alternative additional means of exposing and addressing attorney misconduct, particularly in a local area.
There are several reasons for this, including that lawsuits are a catalyst for court proceedings that create public records, and including that lawsuits cause the court’s procedural rules to compel the defendant—the unethical attorney—to respond to the allegations in the public complaint. The defendant unethical attorney cannot look away or dodge; they must respond. The court cannot look away, either.
This is a public interest process that can bring attorney misconduct to light—and how the judicial system deals with it—for the general public to see and evaluate for itself. In several ways to be discussed in the next paper, this benefits the rule of law at the local level where the rule of law has been diminished by the unethical lawyer.
Conclusion: Reinforcing the Rule of Law Through Local Accountability.
The survival of the rule of law is not just a national or across-the-nation concept; it either endures or deteriorates pocket by pocket across a nation, local court by local court, town by town.
At the local level, it endures or fails not only depending on whether local attorneys are ethical or unethical, and whether the local courts allow norms of misconduct to develop and become concrete. This paper has argued that addressing attorney misconduct at the local level is crucial for the survival of the rule of law for everyday citizens—ensuring fairness, maintaining public trust, and upholding the foundational principles of the legal system that have been discussed in this paper.
Keeping the rule of law alive requires proactive measures at the local level, including refusals by judges and opposing counsel to look the other way when misconduct occurs.
Finally, this paper also argues that public lawsuits that factually document attorney misconduct are a way to provide independent transparency of attorney misconduct so that the public can see such misconduct, giving the local community and local courts an opportunity to resuscitate the rule of law in towns and courts where unethical attorneys and their misconduct have weakened the rule of law–the local rule of law.
Selected References
American Bar Association. Annotated Standards for Imposing Lawyer Sanctions. 2nd ed. Chicago: American Bar Association, 2019.
American Bar Association. 2020 ABA Profile of the Legal Profession. Chicago: American Bar Association, 2020.
United States Courts. “Strategic Plan for the Federal Judiciary: Issue 2 – Preserving Public Trust, Confidence, and Understanding.” Administrative Office of the U.S. Courts. Accessed May 2025.
Wiggins, Jameelah. “A Qualitative Study of Peer Reporting of Attorney Ethical Misconduct.” PhD diss., Walden University, 2020.
Albany Government Law Review. “Transparency as Justice: The Ethics of Public Attorneys and Judicial Seals.” Albany Government Law Review 6, no. 1 (2013): 32–78.
Associated Press. “Court clerk in Murdaugh murder trial charged with showing sealed photographs, perjury.” May 2025.
Reuters. “Ousted top federal prosecutor in Washington facing ethics probe.” May 2025.
Smith Legacy Law. “Can Applying Game Theory Help With Your Litigation Strategy?” April 13, 2023.
https://smithlegacylaw.com/resources/insights/can-applying-game-theory-help-with-your-litigation-strategy/(Smith Legacy Law)
United Nations Office on Drugs and Crime. “Judicial Misconduct and Public Confidence in the Rule of Law.” August 2019.
https://www.unodc.org/dohadeclaration/en/news/2019/08/judicial-misconduct-and-public-confidence-in-the-rule-of-law.html(UNODC)
American Bar Association. “Rule 8.4 Misconduct – Comment.”
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/comment_on_rule_8_4/(American Bar Association)