Our Ethical Obligation as Guardians of the Rule of Law
Why protecting trust in our courts – through candor, civility, and civic engagement – is the defining ethical obligation of lawyers today.
By Kipp Mueller
In Marbury v. Madison, Chief Justice John Marshall established judicial review, asserting that our courts determine the constitutionality of the acts of the executive and legislative branches, thereby serving as a check. This was a critical missing piece in establishing a robust system of checks and balances – at least in theory.
Roughly thirty years later, following Marshall’s decision in Worcester v. Georgia, President Andrew Jackson allegedly said, “John Marshall has made his decision – now let him enforce it.”
Rule of law is far from a given. To the contrary, for nearly the entirety of human history, rule of law has been the exception. What has kept us from constitutional crisis are norms that can be sidestepped by tyrants: respect for democratic values, adherence to the Constitution, and deference to the rule of law.
We’re watching it crumble in real time. The President is issuing blatantly unconstitutional executive orders and ignoring the Office of Legal Counsel. Innocent people are being arrested, detained, and deported without due process. Court orders are being disregarded. Federal workers are being targeted for their political views. The Department of Homeland Security is sidestepping judicial warrants by using “administrative warrants” to target and investigate people solely based on their constitutionally protected speech.
Meanwhile, trust in our system is eroding faster than at any time in our history. One of the two major political parties in this country is falsely claiming that our election system is rigged, which is sowing distrust into the integrity and legitimacy of our democracy. Systems of government require legitimacy in the eyes of the people. Distrust is a cancer that is extraordinarily difficult to cure, and trust is a house of cards that can be easily toppled by bad faith opportunists seeking to incite rage to power.
Some of this is obviously beyond our control. But we can do our part to protect trust, decency, and integrity in our judicial system and in our society. The survival of the rule of law isn’t decided only in Washington. It’s decided in our offices and courtrooms every day.
This means integrity from the micro to the macro. From serving honest and complete discovery responses to our courtroom conduct, to electing judges and politicians with shared values and appreciation for the rule of law. Ethics is not an option – it’s the foundation of public trust in our system.
We are the gatekeepers, and our efforts to protect the sanctity of our institutions matter.
Integrity at the Micro Level: Everyday Ethics in Practice
The rule of law isn’t just protected in Supreme Court opinions or presidential actions. It’s protected in conference rooms, on meet-and-confer calls, and every time we sign our names to pleadings.
We all know attorneys who do not operate in good faith. They look for ways to game the system. They hide the ball. Discovery abuse is a microcosm of the same disrespect for the rule of law that we criticize at the national level. It obstructs the judicial system’s ability to fully develop the facts necessary to apply the law correctly.
While we have an ethical obligation to zealously advocate for our clients, we do so within the bounds of the law – both its text and its spirit. If a document is relevant and sought by opposing counsel, and there isn’t a legal basis for withholding it, turn it over. If an RFA is sufficiently clear, such that only a bad faith failure to understand a term could allow you to wiggle out and call the term “vague,” answer the request.
We are all hurting one another when we employ bad faith litigation practices. They can cascade across the industry as attorneys on both sides lose trust in one another and become jaded.
We need more truth in our world and in our judicial system. There is always a place for strategy when it comes to discovery, but ignoring or violating the Code of Civil Procedure is not strategy. It’s improper and it hurts our profession. Furthermore, more often than not, it’s far easier to reach resolution with opposing counsel when they know you have properly followed discovery rules. If they believe that you have not, they have an ethical obligation not to settle the case until they have all the facts and/or documents that you have been hiding. Being truthful and compliant with the law will put you in a better position to fight for your clients and put the case in a better position to reach a just result.
Similarly, all of us have a duty of candor to the courtroom. This is a sacrosanct duty on which our system heavily relies. No court has the time or ability to know your case as well as you do, and there are plenty of opportunities to overstate facts or misrepresent details. But the credibility of our system, as well as your and your client’s credibility, relies entirely on your candor. Earning juror trust means always maintaining that credibility in the courtroom. Thus, it is not only the right thing to be honest and truthful with the court – it is also strategically beneficial to do so, even if it means there are moments when you will have to acknowledge inconvenient truths.
We have to be willing to be courageous when it isn’t easy. For example, if we believe a client is not being truthful, it is our obligation to address it. We cannot file pleadings that we know contain lies or exaggerations, even if we are pressured by a client.
We need to call out misconduct within our ranks when we see it-within our own firms, by opposing counsel, or even by judges or jurors. If we see our peers using the legal system for improper means (such as to harass someone or as leverage to improperly pressure them), we need to call it out.
Integrity at the Macro Level: As Officers of the Court
About ten years ago, Donald Trump stated that federal district court judge Gonzalo Curiel had an “inherent conflict of interest” because he is of Mexican heritage, calling him “biased and unfair” without any relevant evidence. The Overton Window¹ has already slightly shifted as personally attacking judges has now become more accepted than ever before.
Such vile and reprehensible racist statements only serve to erode public confidence in our judicial system. We are the stewards of our judicial institutions. We have to defend our courts publicly and uniformly condemn attacks on judges (especially based on protected class).
It was also deeply disturbing to see the President criticize District Judge James Boasberg on Truth Social, calling him a “troublemaker” and “radical left” because of the judge’s rulings. This led to far-right provocateurs finding and doxing the identities of his family members, which subsequently led to Fox News host Jesse Watters attacking a federal judge’s daughter during one of his segments.
In 2020, United States District Court Judge Esther Salas’ son Daniel Anderl was murdered and her husband critically wounded by a disgruntled “anti-feminist” attorney named Roy Den Hollander.
While criticism is generally protected by the First Amendment, politicizing and publicizing the private lives of judges is a dangerous precedent that cannot be tolerated or normalized. We have an obligation to protect our judges by insulating them from politicization and by preventing doxing of them and their family members. We must proactively and passionately reject and work to prohibit any such encroachments upon our judiciary.
When the government ignores court orders, such as orders related to unconstitutional deportations of immigrants (to overseas prisons) without process, we have to be the ones on the front lines speaking out. Through our bar associations, public advocacy, amicus briefs, and in politics, we have to fight back and put pressure on the administration to respect the judiciary as a co-equal branch of government. Fighting for our Constitution and our judiciary is not political, because whether we follow the Constitution or whether our administration complies with court orders is not a political issue. Following the law and the Constitution is not conditional.
Protecting Fairness in our System
We also have an ethical obligation to protect fairness in our system, which in turn requires that we involve ourselves in politics. The reason that we have an affirmative ethical obligation to involve ourselves in politics is because fairness is constantly under attack.
Forced arbitration is robbing people of their constitutionally protected right to a jury. People are waiving this right without even knowing it, which in turn is further eroding the integrity of our court system. In 2024, Disney attempted to use a Disney+ subscriber arbitration clause to dismiss a wrongful death lawsuit, arguing that a streaming trial subscription and theme park ticket purchase waived the right to sue for a fatal allergic reaction.
We can resist these kinds of unscrupulous attempts to deprive people of their rights by participating in politics and by lobbying for the right to a jury. In turn, we can restore the people’s faith in our court system by making the system more fair and just. We must protect and fight for every person’s right to a jury trial.
Similarly, we are continually confronted with so-called “tort reform” bills – a euphemism for legislation aimed at restricting access to justice and shielding wrongdoers from accountability.
On the horizon is yet another effort to strip injured people of meaningful access to justice. Uber’s proposed ballot initiative would cap attorneys’ fees in auto cases so severely that contingency representation – often the only way working families can afford counsel – would effectively disappear.
We must support rule-of-law candidates – both judicial and legislative – to ensure that those in power respect the law and access to justice. Ultimately, laws are just words on paper. They do not enforce themselves. People in power can ignore them and, as we have now seen, can at times get away with it. If we retreat from civic engagement, we leave the rule of law in the hands of those who don’t believe in it. And if that happens, everything can be lost. Fighting for our Constitution and our judiciary is not political. Following the law is not conditional.
Integrity is the Antidote
We are watching the rule of law slowly erode as this administration continues to ignore constitutional and statutory obligations and norms. For the time being, there is not much we can do to control executive orders or the political rhetoric of others.
But we can fight for integrity. This is not abstract or beyond our control. It’s in how we draft discovery responses and how we speak to judges. It’s in our decisions to tell the truth or to exaggerate or omit. It’s whether we defend our courts when they are attacked. The rule of law survives not because of a single act or because of big speeches. It survives if all of us choose, every single day, to do the right thing and respect our judicial system as it deserves. That is both our obligation and our power.
Integrity is the immune system of our democracy. When it weakens, corruption spreads like an infection, and fairness and justice die with it. When it is strong, and when accountability and justice are built in, misconduct is identified early, contained quickly, and the system remains healthy enough to be worthy of the people’s trust and to serve the people it was designed to protect.
Likewise, if integrity is not enforced, abuse and corruption can quickly metastasize and spread. Our job is to immediately confront it wherever it appears – large or small – and to ensure that truth and the rule of law survive. Let’s remain vigilant and committed to this American experiment by protecting and fighting for the integrity of our system and by remaining steadfast in our commitment to justice for all.
1 “The Overton window is the range of subjects and arguments politically acceptable to the mainstream population at a given time.” (See, https://en.wikipedia.org/wiki/Overton_window)
Kipp Mueller is a trial attorney and former candidate for California State Senate. He is on the CAOC Board and is a member of the President’s Club. He is a partner at Brent & Fiol, LLP in Pasadena, California and specializes in cases against public utilities. He can be reached at kmueller@brentfiol.com.