‘Our country will be broken if we do not have an unwavering commitment to the rule of law and the re-establishment of civility.’ So said Tim Powers, Managing Partner of Haynes and Boone, in an address to lawyers at the Texas-based firm earlier this year.
Powers was responding to what many in the legal profession see as President Donald Trump’s undermining of the principles of law both in the United States and globally in the form of the highly controversial travel ban, attacks on the judiciary and plans to scrap legal aid funding.
Encouraging the firm’s lawyers to speak out on upholding the rule of law, he said that these are challenging times that call for us ‘to demonstrate our character’ as lawyers and law firms.
Podcast: Should lawyers speak out on the rule of law?
He urged his partners to take a ‘leadership role with our clients and in our communities – to protect the rule of law and set an example of respect, civility and integrity.’
The room responded with an extended standing ovation. Powers said he got similarly positive feedback when he repeated his sentiments to more than 4,000 clients, including a great many in Texas and the energy sector. The only complaint came from a supermarket chain in upstate New York.
John Kiernan, President of the New York City Bar Association, believes the US legal profession as a whole is answering the call of conscience in the Trump era.
‘There is, of course, plenty of room within the legal profession for wide differences in policy,’ he says. ‘But when an administration advocates positions that are contrary to existing law, that fail to protect the vulnerable, and that impede the fair, orderly and efficient administration of justice then – regardless of politics – it is the responsibility of lawyers and bar associations as guardians of those pillars to speak out.’
US law firms and bar associations have been most outspoken on President Trump’s travel ban and his proposal to defund civil legal aid. Haynes and Boone, for example, was among many firms to dispatch its lawyers to airports around the US when thousands of travellers from Muslim nations found themselves blocked from entering the country by the first travel ban executive order in January 2017.
‘‘Despite the robustness of the US system, the words said by the President have immense influence outside its borders’
Within nine days, the American Bar Association House of Delegates passed a resolution, co-drafted by the New York City Bar and the American Bar Association’s International Section, calling on the President to withdraw his travel ban, and to take care that any executive order on immigration or terrorism respect international law.
Both the travel ban and the plans to cut legal aid funding fit Kiernan’s criteria for speaking out. Each placed new burdens on the administration of justice to the vulnerable. The attack on legal aid implicated the core role of the profession. The travel ban arguably violated existing law. In addition, the travel ban was nearly unique in provoking an outcry among elite law firms’ clientele in corporate America. ‘The view of [both] the business establishment and the business legal establishment is that the travel ban is bad for business,’ says Kiernan, and gave law firms license to speak their minds.
Kiernan is of the view that law firms may ‘make their own decisions about what their responsibilities are to speak out,’ because they are commercial enterprises whose partners and clients represent a wide diversity of views.
However, IBA President Martin Šolc takes a more stringent view. He believes that, if anything, law firms have stronger social obligations than individual lawyers. ‘Law firms are gathering people with a number of specialisations, they are very sophisticated, they have research capabilities. So would it be incorrect to say that it's much more efficient if lawyers fulfil that obligation through the law firms? I hope that more and more law firms around the world are increasingly aware of the social responsibility part of the work.’
Kiernan adds that associations of lawyers have a special duty to speak out – and his group has been a leading US voice of conscience on issues ranging far beyond legal services or the travel ban.The New York City Bar Association has been able to speak out on its core advocacy themes of civil rights, human rights and criminal justice. Among other things, the City Bar expressed qualms about Jeff Sessions’ historical commitment to the rule of law when he was nominated as Attorney General, sent a letter to Congress complaining of the Trump administration’s retreat from human rights, and decried America’s about-face on the Paris climate change agreement.
Perhaps surprisingly, the New York City Bar has devoted little attention to President Trump’s criticism of the judges in the Trump University and travel ban cases. Kiernan explained that the bar must pick its battles to be effective. Because these comments were purely rhetorical – and because they were swiftly and universally condemned – he regarded them as comparatively harmless.
‘I see the opposite of a crisis of judicial independence,’ says Kiernan. ‘I see a President making some extraordinarily inappropriate remarks, and the entire body politic of the US on both sides of the aisle expressing intense disagreement with him. And, most importantly, there isn't a shred of a sign that there's any intimidation of the judiciary in reaching judgment. It was statements not actions. It was statements that everybody disagreed with.’
Šolc agrees that a bar association must pick its shots, but the IBA chose to vociferously defend an independent judiciary from President Trump’s attacks. Šolc reasons that even a symbolic assault on judges in America may weaken the rule of law in other nations where democracy is more fragile, and where the US example could be used as a cover or pretext to corrupt a more vulnerable institution. It may also undermine the rule of law’s foundations by eroding popular support for the principle.
‘Despite the robustness of the system of the US, the words said by the President have immense influence outside [its] borders’, as well as damage within the country, argues Šolc.
In the long run, says Šolc, the most important indicator for the rule of law may be less what a judge thinks, than ‘what an ordinary citizen thinks’. Echoing Tim Powers’ speech at Haynes and Boone, Šolc urges lawyers who wish to make a difference to think about which local communities they might influence, and to educate them about the rule of law with the help of a model presentation that the IBA is in the process of preparing.