Alex Goldstein, “The Attorney’s Duty to Democracy: Legal Ethics, Attorney Discipline, and the 2020 Election,” The Georgetown Journal of Legal Ethics 35, vol. 35, no. 4 (2022), 737-771.
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.
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.