Impeaching Legal Ethics

Abstract

In the investigations, hearings, and aftermath of President Trump’s first impeachment, lawyer-commentators invoked the rules of professional conduct to criticize the government lawyers involved. To a large extent, these commentators mischaracterized or misapplied the rules. Although these commentators often presented themselves to the public as neutral experts, they were engaged in political advocacy, using the rules, as private litigators often do, as a strategic weapon against an adversary in the court of public opinion. For example, commentators on the left wrongly conveyed that, under the rules, government lawyers had a responsibility to the public to voluntarily assist in the impeachment, rather than recognizing that the rules rightly called on the government lawyers in question to serve the public good by preserving the president’s confidences while promoting lawful conduct. In misinforming the public about the nature of the law governing lawyers, these commentators made it more difficult to hold lawyers accountable in the future and undermined public confidence in the credibility of the profession. The law regulating lawyers’ professional conduct, popularly known as “legal ethics,” is a critical aspect of the rule of law. In order to hold lawyers accountable to the public, however, legal ethics needs to be treated as a serious branch of law, not misconceived as an infinitely malleable set of soft principles. After examining how the rules were manipulated, the illegitimacy of doing so, and the resulting harms, this Article considers what role lawyers, and the legal profession more generally, should play, especially in politically charged moments. It draws on theoretical debates about the role of the profession to argue that the legal profession can play an important role in preserving democracy. To ensure that it continues to do so, however, lawyer-commentators, who represent the profession as a whole, have a responsibility to explain the law and professional conduct rules to the public in a fair and neutral way.