The Critical Role of Legal Ethics in Preserving the Rule of Law

July 2026 By Adrienne Scheffey

The rule of law is delicately balanced on the shoulders of two core promises of the judicial system: (1) that counsel will be forthcoming and truthful in their advocacy;1 and (2) that the judicial arbiters of disputes will remain fair and impartial, without regard to their personal beliefs.2

Neither promise comes without conflict. Advocates must rely upon their clients and their own investigation to keep them informed, even when the facts or the law are harmful to their client’s position. Judges must set aside their personal political, religious, and moral views to decide cases under the law. When either of the key promises slip, the delicate balance that is the “rule of law” begins to erode. In a highly polarized political world, where many political battles are fought in the judiciary, it is no longer just attorneys who are scrutinizing the courts. The public is paying attention and deciding if what they see is “fair.” As the demands of litigation spill over into political battlegrounds, both lawyers and judges alike have slipped in upholding their promises, providing a front row seat for viewing the erosion of the rule of law.

While attorneys in private practice bear the same ethical duties as those who serve the public, prosecutors who represent the government are often held to a higher standard. As Justice Sutherland so aptly put it, a government attorney’s obligation “is not that it shall win a case, but that justice shall be done.”3 To that end, government attorneys often help raise the bar for private attorney compliance. Recently, however, many closely followed cases have seen the opposite result, with attorneys who represent the government shirking their duties and drawing the ire of courts across the country.

As one court recently explained, many courts are perceiving a general lack of candor by the government’s once-revered attorneys. This perception has led to “[a] loss of confidence in the Government lawyers who appear in this District. That is not just in the credibility of their presentations, but in the belief and understanding that lawyers for the Government are not just like other lawyers.”4

The sharp rebuke from the judiciary seems to have begun in late January, when a Minnesota federal judge ruled that the federal government had failed to comply with over 96 court orders, listing each in an addendum, and cautioning that“[t]his list should give pause to anyone—no matter his or her political beliefs—who cares about the rule of law.”5 Dozens of other judges around the country have since made similar findings, chastising government attorneys for not complying with orders or being forthcoming.6 While many disagree with the courts’ assessments of compliance when looking at the issues as a whole, the scope of noncompliance leaves little question that there has been a deterioration of the duty of candor among attorneys who appear to be more concerned about their clients’ opinions than their ethical obligations.

At the same time, when faced with a lack of candor, judges have taken to responding with sharper admonitions as one way to restore order. But that reaction, when it recurs across hundreds of cases, typically concentrated in a single politically charged area of law,7 creates the appearance that the judiciary has become an adversary of the executive and its attorneys rather than a neutral arbiter of disputes between parties. And while the notion may seem implausible, even this appearance of partiality may run afoul of the judiciary’s obligations.

When these sharp admonitions from the bench consistently appear in orders addressing the same topic with the same political bent, it empowers the litigants (and sections of the public) to believe that justice is not neutral. These beliefs are often bolstered, rightly or wrongly, when appellate courts scale back the tone or reasoning of district court rulings, and those appellate decisions are then cited as evidence of partisanship.8 This creates a deadlock, with one side believing that if an order is unfavorable, it is therefore partisan and it should not command deference. The inflamed rhetoric only feeds the judiciary’s belief that further sharp-toned orders are the only way to restore balance. These sharp-toned orders from the judiciary lead to the appearance of partiality because the orders often read as an opposition to the positions asserted by the government, not a neutral assessment of both sides. In these moments, the second broken promise emerges: the appearance of partiality from the courts.9

And when the courts and lawyers are adversaries, rather than advocates and neutral arbiters, further problems arise. Typically, where litigants do not comply with their candor requirements, courts may act as a check on the attorneys, holding sanctions and contempt hearings or referring them to the local disciplinary board. These efforts are watered down, however, when it appears that they are politically motivated. The judges and the attorneys are not designed to be in opposition, lobbing harsh rhetoric at one another. That is at odds with the nature of the judicial system.

And yet, the two sides are destined to remain in a deadlock without concessions on each side. Indeed, “the district court has only the power to refer a person for criminal contempt, not the power to prosecute it.”10 In other words, courts can refer a matter for contempt but cannot prosecute it, meaning that the enforcement of the judiciary’s own orders depends upon impartial enforcement of those orders by the same executive branch that is either the subject of the orders or that has been accused of flouting court orders.

Historically, the only way to break a deadlock between two branches of government has been through political upheaval. For example, during the Saturday Night Massacre of 1973, on President Nixon’s orders, his then attorney general defied subpoenas issued by a court seeking the now infamous tapes. But the people revolted, Congress stepped in, and the executive ultimately deferred to the judiciary. This shift has not yet occurred in the present day. Instead, the executive has doubled down, relying on its own ethical body to police its behavior and evade the oversight of state bar ethics compliance agencies (while Congress remains deadlocked on even nonpolitical issues).11

In short, when the judges must step forward and question the veracity of the information provided by the attorneys before them, the system begins to erode. It erodes further when a judicial order shows such clear exasperation as to make the reader question whether the decision was impartial. This is not how the system was designed to operate, nor is it conducive to its future success. The rule of law was never designed to be self-executing. It depends on participants—attorneys, judges, and litigants alike—to comply with the rules of engagement, including the ethical rules that apply to judges and attorneys.

While there are many avenues that may be explored to restore the rule of law, the best answer is not more rules. It is the acceptance and (when necessary) enforcement of existing ones, applied evenhandedly and without regard to which administration’s attorneys are before the court or which party’s judges are on the bench. State bars, Department of Justice leadership, appellate courts, and the private bar each have a role to play in applying that pressure—and the obligation to do so should not hinge on which party is in the majority. As such, to restore the rule of law, it seems a good place to start would be with the rules of ethics—which apply equally to all. It will be important in the coming years to preserve the neutrality of the state ethics bars across the country. Put simply, the bench needs to heighten its awareness of perceived partisanship and ensure it isn’t creating an unintentional sense of preference for one issue. At the same time, attorneys need to adopt stricter compliance with their own ethical rules, ensuring that they do not let the core tenets of the profession fall by the wayside simply to please a difficult (and potentially politically powerful) client.

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Notes