Volume 35

First Amendment and the Rule of Law: Lawyers and Their Duty to Democracy

by Claris Park

Courts have long protected attorneys’ First Amendment rights, although “speech by an attorney is subject to greater regulation than speech by others” and can be limited if it would significantly affect judicial proceedings. Because lawyers are obligated to be zealous advocates for their clients, they may brush against and test that limit. This can happen both within and outside of judicial proceedings, such as when attorneys speak publicly on behalf of their clients or engage in speech and conduct that the lawyer normally would not outside of their advocacy for their client.

However, in 2020 and 2021, multiple lawyers were sued for defamation, reprimanded, sanctioned, and in one instance, suspended from the bar for their statements related to the 2020 elections and former President Donald Trump’s claims that the election was rigged. Court flings and opinions repeatedly raised concerns that the lawyers may have jeopardized national security, public faith in U.S. democracy, and respect for and promotion of the rule of law. What, if any, consequences can lawyers expect to face when their zealous advocacy perpetuates further, broader, unquantifiable harm to the justice system?

This Note will argue that while previous frameworks have been appropriately hesitant to infringe on the First Amendment rights of lawyers, any future tests determining whether a lawyer’s conduct is protected by the First Amendment must incorporate a robustly informed evaluation of harm to public faith in the justice system. This is necessary not just to discipline attorneys acting in bad faith, but also to protect attorneys’ speech and to hold attorneys to their ethical obligation of furthering public trust in the rule of law.

Part I discusses the conduct of lawyers who defended President Trump’s allegations of election fraud and the legal actions taken against them by various parties. This section particularly focuses on the conduct of and actions taken against Rudy Giuliani and Sidney Powell. Part II gives a general overview of the relevant current framework used to determine whether the First Amendment protects a lawyer’s conduct. Part III briefly explains the obligations of lawyers under the current Model Rules of Professional Conduct. Part IV proposes an amended framework by which to determine whether a lawyer’s conduct is protected by the First Amendment. This framework is then applied to Sidney Powell’s speech and conduct in Part V.


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