Speakers:

John Bellinger
Partner at Arnold & Porter, Co-Chair of the Global Law and Public Policy Group, former Legal Adviser for the US State Department and the National Security Council during the George W Bush Administration

Hon Justice Mark Livesey
President of the Court of Appeal of South Australia, Supreme Court of Australia, Member of the Executive of the IBA Judges’ Forum

Alka Pradhan
Human Rights Counsel at the Guantanamo Bay Military Commissions, Associate Counsel at the ICC, Co-Vice Chair, IBA Rule of Law Forum

Moderated by Jane Anderson, Co-Chair of the Forum for Government and Public Lawyers, and Frederica D’Alessandra, Co-Chair for the Rule of Law Forum

Introduction

The role of a lawyer is to represent a client’s interests within the boundaries of the law. When the client is the government, those boundaries can become blurred. Government lawyers must balance their duties as legal advisers with their obligations as officers of the court. How should lawyers navigate this tension, and what does it mean in practice to act as a ‘model litigant’ while upholding and defending the rule of law in the face of these challenges?

On 24 June, the IBA Forum for Government and Public Lawyers hosted a webinar exploring the challenges that government and public lawyers face in fulfilling potentially conflicting duties.

John Bellinger, Justice Mark Livesey and Alka Pradhan discussed their experiences in facing these challenges. The three panellists compared their jurisdictions, discussing the erosion of the United States’ rule of law regime, the trusted relationship between the bench and the bar in Australia, and how to manage dual obligations.

The webinar was supported by the IBA Judges’ Forum and the IBA Rule of Law Forum, and chaired by Jane Anderson, Co-Chair of the Forum for Government and Public Lawyers, and Frederica D’Alessandra, Co-Chair for the Rule of Law Forum.

This report outlines highlights from the discussion and guidance given to attendees in facing these challenges.

The sharp decrease of government lawyers in the United States since 2024

Co-chair Jane Anderson began the webinar by acknowledging the data demonstrating how many government lawyers have left their agencies in the US. Since 2025, the government has lost 10,000 lawyers, with one in five lawyers who were employed at the end of 2024 having since left. John Bellinger, former government lawyer, was asked to comment on the data and possible underlying causes.

John clarified that the data was from a New York Times article that reported on lawyers’ departures from the government in the first two years of the Trump administration. Most of the lawyers departed because they either did not feel comfortable pursuing Trump’s policies or had been dismissed by the administration. He emphasised that these were the lawyers who stood for the rule of law and highlighted that this was a dangerous time for the US, given the erosion of the rule of law.

The discussion considered how this is affecting the US judiciary, noting that it represented a ‘high point of the rule of law’ because, although lawyers were leaving, judges were taking a stand. It was noted that federal judges had challenged administrative actions and ruled against the Trump administration in 70 per cent of cases. He also noted that this resistance is not without consequence: Trump has attacked many judges on a personal level through social media platforms, leading to threats of violence, including against US Supreme Court judges who have given opinions contrary to his executive agenda.

Impact of the decline in the rule of law on the judiciary

Justice Livesey offered his perspective on the impacts of these challenges on the justice system.

He remarked that it was ‘breathtaking’ to see what has been going on in the US over the last few years. He shared John’s sentiment regarding the federal judges’ defiance after reading several rulings about court order violations and the threat of civil contempt against government agencies. He noted that, in Australia, it was uncommon for the judiciary to manage unrepresented litigants or sovereign citizens who take a contemptuous attitude, and that government lawyers were relied upon to bring order to the chaos. Justice Livesey concluded by acknowledging that Australia is not facing the existential threats that the American judiciary faces.

Impact of the decline in the rule of law on the executive branch

Frederica D’Alessandra shifted the discussion from the judiciary to the executive branch and asked Alka Pradhan to share her views on the challenges faced by government lawyers, which can lead them to contemplate resigning or risk being dismissed.

Alka prefaced her comments by noting that they were her own and did not reflect the views of the Department of Defense (DoD). Reflecting on her experience at the DoD, she highlighted the serious consequences of dismissing Judge Advocates General at a time when the US has expanded its use of military force over the past 18 months. She stressed that this was not only a dangerous time, but a crucial time not to dismiss lawyers. She further remarked that acting with impunity and without adequate checks or balances in this area of law was alarming to those who had worked in the sector for a long time. This problem does not only exist in the legal area; intelligence officers were being dismissed when their assessments failed to align with the President’s agenda. Alka underlined the peril of conducting operations to provide a temporary voting boost.

The phenomenon of government lawyers ‘twisting’ the law, to either serve the President’s agenda or maintain their employment, was raised. It was noted that some government lawyers were defiantly telling judges that ‘the President’s will is the law’. It was noted that nothing happening under this administration was ‘wholly new’. While the Trump administration has been subverting the law on a different scale, the manipulation of the law was a tool that they did not invent; it has been used by previous administrations.

Frederica asked John if he could highlight any trends in the national security sector. He remarked that, historically, judges in the US gave significant deference to Department of Justice (DoJ) lawyers who appeared before them, because the DoJ represents the government. In the past, those lawyers have been extremely careful about what they say, how they conduct themselves, and how they comply with orders. There is a presumption that there is regular order within the US government, especially in the national security sector, but this presumption and trust is breaking down.

John reiterated concerns about the departure of Judge Advocates General in the military. Contrary to what people may believe, military lawyers are committed to applying the laws of armed conflict and the Geneva Convention. He noted that leadership in the US, particularly from the Secretary of Defense and the President, is contributing to the negative tone towards government lawyers and there needs to be pushback.

What does it mean to be a model litigant?

Jane asked the panel what it means to be a model litigant. She shared what she believes is the US equivalent of model litigant principles: the 5Cs, which are: (1) competence; (2) candour; (3) civility; (4) credibility; and (5) curiosity. She explained that in the US, there is a presumption of regularity, that government lawyers can be taken ‘at their word’ which allows the courts to operate efficiently. Justice Livesey was asked to share his insights on what it means to be a model litigant within the Australian jurisdiction.

In Australia – and unlike in the US – there is no deference to government lawyers but instead a strong sense of mutual trust between the bench and senior government lawyers. Justice Livesey explained that the history of the model litigant standard is illustrated in the High Court of Australia case from 1912, Melbourne Steamship Co Ltd v Moorehead. It is referred to time and time again and ensures that the public powers are exercised for public good. There is ‘an obligation to act as moral exemplars’. Lawyers take these model litigant obligations extremely seriously.

The question was put to John and Alka, asking for their thoughts on the model litigant being the ‘moral exemplar’. Alka began by reinforcing to the attendees the unprecedented level of conflict that government lawyers are facing in the US. She stated that lawyers who work for the government must ‘toe the line’ of serving the executive but also uphold their professional duties to the bar and Constitution. Being a model litigant means different things and currently navigating that conflict is a challenge.

It was emphasised that government lawyers need to return to what the law is and not what the executive wants it to be and bring an end to the weaponisation of words to avoid further scrutiny from the judiciary. These trends are contributing to the current breakdown of credibility and trust between the bench and government lawyers. There must be a reckoning of where the line is for government lawyers, as there should not be a competition between upholding their professional obligations and adherence to the Constitution, and serving the executive.

John explained that government lawyers serve the interest of those making policy decisions. As in private practice, where a lawyer serves their clients, they are there as advocates or representatives. He acknowledged that this can be difficult for the career lawyers who are buffered from political administration to political administration. As a representative, government lawyers need to tell officials if their policy is legally out of bounds. If it is within legal bounds, but poor policy, lawyers must still advise the government on its implementation. John emphasised that this is what makes the job so difficult and why many lawyers have resigned; they cannot in good conscience advocate for a particular policy. Usually, a government lawyer exists to help the government do what it plans to do, unless the action is illegal; this is not what is currently happening in the US.

Panellists’ advice for the attendees facing similar challenges

The panellists were asked what advice they would give others in this type of situation, where they are torn between their oath to the bar and their role serving the government.

Alka advised that if government lawyers could stay inside and protect the law, she would urge them to do so. If a government lawyer is compromised, she urges them to whistleblow and resign. It was highlighted that the rule of law is bigger than the lawyer themselves, and that one action can have significant ramifications in government.

John referred to his 2017 article, ‘To Serve or Not to Serve’, (published in the Princeton Alumni Weekly). In the article, he separated government lawyers into three categories. The first was addressed to young lawyers, advising them to go into government and not shy away from public service. The second was directed at long-time government lawyers, whom he encouraged to stay as long as they could, given how much government needed their experience. John urged long-time lawyers to not lose confidence in government, or else ‘it would truly fall apart’. The final category was for lawyers who were considering serving as political appointees or ministers; he advised them they should not go into the Trump administration, given the moral weight of the position that could have consequences on their personal integrity and reputation.

Justice Livesey noted that it is difficult to do anything other than make high-level observations which are easier to state than to apply. However, he encouraged the lawyers to draw a distinction between the highest ethical standards and the proper interests of the government that they represent, acknowledging that the two are not necessarily in conflict. Occasionally, they will be, in which case the duty to the court must prevail. He further explained that even when these lines can be observed, some may still find it distasteful to follow their instructions. Administrations will change over time, and lawyers should always seek to play a central role in upholding rule of law values.

This webinar report was prepared by the IBA Legal Policy & Research Unit.