Volume 35

The Attorney’s Duty to Democracy: Legal Ethics, Attorney Discipline, and the 2020 Election

by Alex Goldstein

American democracy is at a crossroads. According to some historians, the 2020 election and its aftermath have demonstrated that the Republican Party is “clearly an authoritarian party,” no longer committed to the ideals of democracy, free and fair elections, and the peaceful transition of power. The United States was listed as a “backsliding democracy” for the first time in the 2021 Global State of Democracy Report. The report referred to President Trump’s false assertions about the 2020 election as a “historic turning point” that “undermined fundamental trust in the electoral process.” Defining the threat that American democracy faces openly and honestly can allow legal and political institutions to treat this antimajoritarian movement with the seriousness and solemnity that is required. In discussing the need to protect democracy, this Note employs a “robust view of democracy,” first introduced by two University of Chicago professors and democracy scholars, Aziz Huq and Tom Ginsburg, which focuses on national, intermingling institutions rather than the mere existence of periodic elections.

The rise of right-wing authoritarianism has carried with it not just the threat of democratic backsliding, but potential democratic collapse, through efforts to subvert and overturn future elections. Although the United States escaped this fate in 2020, many signs point to a repeat scenario in future elections. Republican voters have embraced Donald Trump’s “Big Lie” that the 2020 election was stolen, and that Joe Biden was not legitimately elected. Right-wing media regularly parrots this false claim, relying on the myth of widespread voter fraud. Republican state legislatures have enacted a range of laws that “impose new or more stringent criminal penalties on election officials” and so-called “election subversion” laws that allow partisan officials to take over the responsibilities of nonpartisan election workers.

While election subversion remains an immediate threat to future elections, Republican politicians have also enacted policies that cause “democrac[y] to erode slowly, in barely visible steps” which could allow an “elected autocrat [to] maintain a veneer of democracy.” Although the courts appropriately applied the law in response to the Trump campaign’s 2020 election lawsuits, in recent decades conservative Supreme Court Justices have consistently opposed the rights of voters against state restrictions. Decisions gutting the Voting Rights Act, holding political gerrymandering nonjusticiable, upholding strict voter ID laws and voter purges that have a disparate impact on voters of color, and more have opened the floodgates for Republican politicians in state legislatures, where they hold unrepresentatively large amounts of power, to enact laws that will allow them to entrench their power for years to come. By October of 2021 alone, legislatures in 19 states enacted 33 laws that will make it more difficult to vote.

One potential solution is the enactment of federal voting rights and election protection legislation. However, given political conditions at the time of this writing, this remains unlikely. With the gutting of the seminal piece of voting rights legislation, inability to pass new federal voting laws, courts that have consistently refused to protect voting rights, and statehouses dominated by Republicans that have decided that winning elections is more important than democracy, few avenues remain to protect American democracy before it is too late.

One possible, but unexpected, institution that could serve as a guardrail for America’s struggling democracy is the legal profession; specifically, the legal ethics regime, which includes the American Bar Association, state bar committees, state judiciaries, and other institutions that enforce legal ethics rules.

This Note analyzes the actions of attorneys following the 2020 election to explain how the legal ethics regime can stand up to attorneys that abuse their positions in baseless attempts to overturn elections. State bars should apply a heightened standard of scrutiny when investigating potential ethical violations committed in furtherance of efforts to subvert democracy, because of democracy’s role as the core foundation of effective self-governance. This Note analyzes the roles that attorneys have played in facilitating democratic backsliding internationally to draw lessons for the American legal ethics regime. Utilizing these case studies as cautionary tales, this Note demonstrates with describes the need to hold attorneys accountable when they commit violations that cut to the core of American democracy.

Part I provides a brief overview of the legal ethics regime, including the role of the American Bar Association, state bars, courts, and the rules that have arisen most often in the context of the 2020 election. Part II describes the unique responsibility of attorneys to democracy, as reflected in their oath to the Constitution and the Model Rules. Part III explains the specific ethical violations that persisted during the Trump presidency and in the months following the 2020 election. It also summarizes the consequences that attorneys involved in efforts to subvert the 2020 election have received thus far. Part IV looks to the international context to demonstrate how attorneys have used their power to subvert democracy in Hungary and Brazil, drawing on these examples to better understand the role of lawyers in the United States. Part V explains that the legal ethics regime is well-suited to confront the violations committed by attorneys who engage in efforts to subvert democracy. It argues that potential attorney misconduct that strikes at the heart of democracy through unfounded attempts to overthrow elections and sow doubt in the democratic process should be subjected to heightened scrutiny. Ultimately, this Note concludes that, in the absence of meaningful Congressional action and unlikelihood of intervention by the Supreme Court, bar associations represent one of the last best guardrails for American democracy.

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