Abstract:

This article discusses how everyday attorney misconduct in and through our courts undermines the Rule of Law — especially when courts learn of the misconduct yet fail to act to end it. The article argues that such misconduct essentially creates a dual legal system — one for ethical attorneys and their clients, and another for unethical ones who exploit the system either for self-gain or to help unethical client.

The article also argues that judicial inaction in the face of attorney misconduct occurring in and through the courts may be seen as a type of public institutional complicity with that misconduct — misconduct that harms the public, hamstrings attorneys trying to represent their clients ethically, erodes judicial and legal legitimacy, and gives a power windfall to attorneys who are unethical — all at the expense of the Rule of Law.

Ultimately, preserving the Rule of Law is not just a function of a public resisting an authoritarian executive. It also requires everyday attorneys and everyday judges to reject unethical attorneys and provide active resistance to those who, for their own gain, are causing an internal decay of the courts and the Rule of Law.

I. A Definition of the Rule of Law

Defined simply, the Rule of Law is a foundational principle in constitutional democracies and republics because of these elements: it means that all people and institutions — including the government, courts, and private individuals — are subject to and accountable under the same law.

This includes two of its most famous explanations: the Rule of Law means that the law treats everyone fairly, and also that no one is above the law. At both a broader and more specific level, the Rule of Law includes additional core values of constitutional democracies such as not just fairness but equality before the law; equal access to courts; an independent judiciary; procedural fairness; and due process — fair notice and a fair opportunity to be heard before rights are lost, harmed, or taken away by the federal government or a state government.

II. The Role of Lawyers in Preserving the Rule of Law

To function properly, the Rule of Law needs the active support not only of the public but also of courts themselves — and the group of people given special access and privileges with respect to our public courts: attorneys, who are not just service providers. They are also officers of the court with heightened duties and responsibilities to the public, the courts — and the Rule of Law itself. Attorneys and lawyers play a unique role in the public legal system. As officers of the court, they are not only advocates for their clients but also gatekeepers for the actual integrity of legal proceedings. Their ethical obligations include honesty, candor, and respect for the process.

Because lawyers are given special privileges and access to the courthouse and to judges, they have power that no one else in the public has to shape — and often control — how courts, judges, and juries receive facts and interpret law.

This means that lawyer misconduct is not just misconduct that harms a particular case. If lawyers and attorneys lie, hide facts, distort facts, ignore court orders, drag out compliance with court orders, lie to opposing counsel, abuse procedural rules, harass, exploit, or otherwise systematically manipulate the public’s legal system, the public court’s ability to deliver what the Rule of Law stands for is compromised — not just in the particular case, but as to the institution of the courts overall.

It does not take an authoritarian executive branch to endanger the Rule of Law — it can be done by everyday attorneys who engage in misconduct as well, including for the following reasons.

III. Attorney Misconduct in and Through Courts

Attorney misconduct can take many forms beyond those briefly listed above: presenting false statements to the courts or to witnesses, concealing evidence, abusing discovery, and exploiting judicial blind spots — judges are not babysitters and do not have the time to micro-manage attorneys. Judges and courts expect attorneys to be ethical, not unethical. Consequently, the unethical attorney has ample bandwidth to operate improperly without being discovered — and this too undermines the Rule of Law.

The issue becomes especially serious when the misconduct is systemic or strategic. It is not simply a lapse in judgment or a borderline call in such cases. When an unethical attorney intentionally pursues a pattern and practice of deliberate manipulation of facts, law, and court orders, this diminishes public trust in the judiciary — if the public ever finds out.

It is all too easy for unethical lawyers to operate in the shadows of the courthouse, including by creating false patinas of compliance with court orders, and by always having a cover story that prevents the court from having clear evidence of misconduct.

VII. Judicial Responsibility and Institutional Legitimacy

While courts and judges do not have the responsibility to babysit attorneys to ensure ethical conduct in real-time, courts and judges do have the responsibility to act when evidence of misconduct comes to their attention.

Once courts and judges are made aware of attorney misconduct — including by reputation, if the lawyer has acted unethically for so long that they have a reputation in a small judicial community, such as in a small state — courts and judges have an institutional responsibility to act.

In many respects, this is no different than the duty of lawyers to report misconduct to state bars when they have evidence of misconduct or patterns of misconduct. Judicial inaction in the face of facts showing misconduct can also diminish — and eventually endanger — the Rule of Law.

Apart from harms caused by judicial inaction in a particular case — where a party loses the chance to have the Rule of Law applied — judicial inaction, especially in the face of credible allegations of repeated systemic misconduct, results in a system that is, in the public’s eyes, perhaps more interested in preserving its image as a sacred judicial place than in upholding its ideals and making sure they are actually applied correctly and concretely, on the ground, in real cases and in real time.

Over time, if many attorneys in a given judicial district or part of a state are engaging in misconduct — or if a few or even one attorney systematically engages in misconduct in and through the courts for decades — the result erodes public confidence and undermines the Rule of Law itself.

Perhaps this occurs only in that part of the state, or only in one area of the law, such as a special court for special cases — but either way, the Rule of Law itself has been compromised, and perhaps lost, if courts and judges decide to look the other way in order to preserve the Rule of Law in name but not in fact.

IV. When Attorney Misconduct Also Exploits Vulnerability, False Stigmas, and Stereotypes

A particularly unethical form of attorney misconduct occurs when an attorney engages not only in “normal” misconduct but also conceals it by intentionally and systematically exploiting a party’s physical or mental vulnerability — including through exploiting animus relating to false stigmas and stereotypes related to, for example, race, religion, sexual orientation, gender, disability, and mental illness.

When seen in its form that is often excused and looked away from, this type of attorney misconduct can involve the attorney invoking stigmas to subtly but fatally influence judges and juries. When attorneys unethically make up facts, innuendo, or smears about a person to weaponize disability or mental illness — either directly or through invocation of social bias or stigma — such lawyers destroy core parts of the Rule of Law in ways that, most often, can never be seen, because they are subtle and hidden.

V. First-Impression Public Advocacy Cases To Present Facts of Attorney Misconduct To The Public, To The Courts, and to State Bars

In rare instances that are significant to the preservation of the Rule of Law — and to the proper response to systemic attorney misconduct — it is possible, on some sets of facts, for attorneys themselves to bring lawsuits that, for the public interest, raise novel first-impression questions not yet decided by the courts about misconduct in the legal process that impacts not just one case, but the institution of the courts and the Rule of Law itself.

When these cases identify and make transparent for the public real and serious gaps in attorney accountability, they serve as important interventions — beyond the case — into the judicial system and the Rule of Law itself, to ensure that it can have a chance to exist in fact, on the ground, and not just as a platitude or slogan.

Such public interest cases serve the public good for the additional reason that they make transparent what is often concealed in the world of attorneys and courts, out of the public view. In other words, they highlight the real-world gaps between how the legal system is supposed to work, how we are told it works, and how it sometimes functions far less well in practice — not because of mistakes, and not because of judicial decisions with which some might disagree, but because of attorneys who engage in systematic misconduct, and courts too, if they choose to look away.

These lawsuits serve as a form of publicly transparent institutional critique from within. The cases present facts of systemic misconduct and properly place them before the court in a non-frivolous complaint — and then the question is: What will the court choose to do with it?

Such public interest cases, as a result, do not just make transparent and highlight — they constitute a type of test, perhaps a stress test in the public interest, as to whether the system — the judicial institution in the given state or district — will properly confront the facts consistent with the Rule of Law.

VIII. The Rule of Law as a Living Commitment

The Rule of Law can be reduced to a slogan or platitude — a sound bite to make the public feel good about its government and judicial system. It can also be reduced to procedural formality. It can also exist in some courts and not others.

It can exist when there are ethical attorneys on both sides of a case, and it can be destroyed if even one unethical attorney engages in a pattern and practice of misconduct for years in a small jurisdiction.

When attorneys subvert the Rule of Law through misconduct in and through our courts, and when courts then decline to address it by looking the other way, the Rule of Law is at risk of becoming, at least in that state or district, a phrase that is hollow at best and at worst a disingenuous lie to the public — a patina of righteousness concealing institutional rot.

Particularly in a small state, for example, the entire bar — and all the judges — know full well if an attorney has spent decades engaging in systematic attorney misconduct, in case after case, doing just enough spin and offering just enough excuses to let everyone look the other way instead of standing up for the Rule of Law.

In such places, attorneys who expose these dynamics — especially through well-grounded lawsuits that place legitimate questions before the courts — play a crucial role: they invite the legal system — the courts, judges, and other attorneys — to publicly demonstrate their choice between complicity with misconduct and standing up to it, to end it, so that no one else in the public is harmed, so that the courts are no longer harmed, and so that the Rule of Law in that state is no longer harmed — and so that the Rule of Law can then have the time it needs to heal after the attorney’s serial misconduct.

Conclusion:
Attorney misconduct in and through the courts does more than distort outcomes; it creates a two-tiered legal system that violates the fundamental promises of fairness and equality. The Rule of Law is not self-sustaining. It must be actively defended — by lawyers who act with integrity, by litigants who expose misconduct, and by courts that are willing to confront their own vulnerabilities. If the legal profession and judiciary fail to meet this obligation, the Rule of Law becomes a shell — an appearance of justice, without its substance. The task, then, is not merely to invoke the Rule of Law, but to live up to it — especially when it is most at risk. And it is not just at risk when an authoritarian attempts to place the executive branch over the judicial branch. It is also at risk if unethical attorneys systematically engage in misconduct over years and years, particularly in small judicial ecosystems such as particular courts in small states.