Defending the rule of law

By Dyan Ebert

I have been fortunate to practice my entire career with a firm that recognizes the importance of lawyers taking on leadership roles and giving back to the communities in which we live and work. The firm encourages—and I dare say even expects—lawyers to lend their time and talent to organizations that are dedicated to enhancing the community, addressing social and economic injustices, and improving the legal profession and the legal system. I am proud to say that throughout the last 27 years, I have had the honor of working with colleagues who have served as state, district, and local bar presidents; industry association board members and presidents; and nonprofit board members and presidents. 

I know that my firm is not unique in this regard. Lawyers are often regarded as leaders in their communities and are tapped to take on significant leadership positions with various organizations.

A civic duty

The events of the last year, however, have taught me that the most important leadership role that a lawyer has in our society does not bring with it a formal title or appointment. The most important professional obligation we have is to defend the rule of law. 

To be sure, the obligation to defend the rule of law is embedded in our Rules of Professional Conduct, which provide that “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” (Minn. R. Prof. Conduct, Preamble ¶6.)

The rule of law is the bedrock of our democracy. It permeates our society; it is part of our social compact and it ensures a fair and just society. John Adams wrote that a republic is “a government of laws, and not of men.” The fundamental proposition behind this statement is that no one is above the law and everyone must be treated the same under law. 

The American Bar Association explains the rule of law as 

[A] set of principles, or ideals, for ensuring an orderly and just society. Many countries throughout the world strive to uphold the rule of law where no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws, there are clear and fair processes for enforcing laws, there is an independent judiciary, and human rights are guaranteed for all.¹ 

One of my favorite ways to think of the rule of law is found in the U.S. Constitution, and is known as “the great promise:” Every man, woman, and child should be judged by the same legal rules and have access to the same public benefits, no matter the color of our skin, national origins, or gender. 

The Fair Response Committee

Of course, an independent judiciary is key to preserving the rule of law. To be truly independent, the judiciary must be free of undue influence and must remain committed to the protection of individual rights and liberties. Given the significant role the courts and judges play in the administration of justice, it is not surprising that they are often subject to criticism. But when criticism of judges’ rulings crosses the line into personal attacks or intimidation, or proves to be inaccurate and unjust, the public’s respect for our system of justice is undermined and it is our obligation to speak out.

To that end, I recently announced the re-invigoration of the MSBA’s Fair Response Committee. I am also excited to share that former MSBA Presidents Susan Holden and Paul Godfrey have agreed to serve as co-chairs of this important committee. 

The Fair Response Committee’s purpose is to encourage the legal profession to promote public confidence in the administration of justice by fostering public understanding and appreciation of the judicial system. As lawyers, we must do more than pay mere lip service to the rule of law; we must recognize that this obligation necessarily involves a duty to defend and preserve the independence of the judiciary. The Fair Response Committee is one small way that the MSBA can assist our members in fulfilling this important obligation. 

As former U.S. Supreme Court Justice Sandra Day O’Connor wrote, “Commitment to the rule of law provides a basic assurance that people can know what to expect whether what they do is popular or unpopular at the time.” We need to hold true to this commitment as we hear reports of the trial of the officer accused of murdering George Floyd. We need to be strong in our support of the people working in that courtroom—the judge, the lawyers, the clerks, and the court reporter and bailiffs. We also need to encourage people in our various communities who raise questions about the trial process to be respectful and appreciate the work of the people in that courtroom. We need to uphold the rule of law that is playing out on this very visible, highly charged, stage.

Please also commit to educating the people in your circles about the rule of law. Talk about your experiences as a lawyer, and share stories of how justice prevailed. Think about the reasons you went to law school, as this may reinvigorate your passion for your profession. Together let’s rebuild trust and confidence in this ideal we hold so dear, and without which our society would crumble.