The steel cage match called the Presidential campaign and the election is over. The people have spoken. The orderly transfer of power is under way—even as protests and cries of ‘He is not my president’ remind us that things are different. Deep, painful wounds remain that must be healed. Lawyers alone cannot repair them, of course. But they can—must-- look beyond profit-per partner and focus on a bigger bottom line: preservation of the rule of law. They are its guardians, and it is critical that all lawyers—regardless of political persuasion or even political apathy—assume this role individually or collectively.
Lawyers Face A Challenge And An Opportunity
I wrote last week about the damaging effects of the campaign on our institutions. It would be shortsighted blame our current mess entirely on the fractious campaign and its polarizing candidates. There are broader, more pervasive factors at play. Globalization, massive migration, and widespread redundancy and economic regression caused by technology and labor arbitrage has created a global anxiety—and political backlash-- against ‘the old dispensation’ that transcends national borders. The wave that began in the UK with ‘Brexit’ has hit our shores. And its impact may soon be felt across Europe and other parts of the world. The common thread—and grave threat posed is to the rule of law. This is not simply a UK or US problem, and lawyers everywhere should take note and ‘be governed accordingly.’
It’s not enough to say that lawyers should step up. Here are some areas where their expertise, training, and negotiating skills are especially needed.
Lawyers must work to restore public confidence in the election process. This is as critical to the rule of law as the peaceful post-election transfer of power. Claims of voter nullification and a ‘rigged’ process cannot persist. Lawyers must take the lead to restore public confidence in the fairness, transparency, and accessibility of the process to all eligible voters.
Lawyers must also zealously protect the media that serves a vital watchdog role in our society. It is essential that maintain reasonable access to the workings of government simply because their views do not align with a particular political party or individual. A strong, independent media is essential to governmental accountability and transparency. Lawyers will play a key role in this effort.
Social media is transforming the way we communicate. It is a potentially global megaphone that has no filter on the truth or accuracy of what it disseminates. Lawyers, trained in distinguishing ‘fact’ from ‘hearsay’ or ‘misinformation’ are essential actors in shaping the contours of social media and its impact upon elections, veracity, and a host of other elements in our collective decision-making process. Free speech must be preserved, but it must also not be a shield for those who pervert it to foster bigotry, violence, and misinformation designed to fuel persecution. Lawyers will be key players in this process.
Lawyers must also take the lead to ensure that The Bill of Rights is not compromised and that partisan politics do not have a chilling effect upon ‘inalienable rights.’ Lawyers—more than any profession—are equipped to serve this vital function and cannot shirk this seminal responsibility. They must ensure that individuals and institutions respect and honor the Constitution without which our democracy cannot be sustained. It’s a good time for all of us to reread the Constitution.
Ensuring that all citizens have access to legal representation is another key responsibility that lawyers cannot shirk. How can we call ourselves a society governed by the rule of law when the vast majority of our citizens cannot afford legal representation? How many individuals have had their lives upended because they could not afford legal representation? How many small businesses have failed because of this?
Conclusion
Millions of Americans are jittery about the future, and there are plenty of reasons why. A common thread is that people worry about the divide in our nation and both sides’ mistrust of the other. This goes beyond bipartisanship yielding to political gridlock. It speaks to a perception that several of the core characteristics that define us as Americans— free press, fair elections, a balance of power among the three branches of Government, and confidence in our justice system—are no longer assumed. Left unchecked, that will result in the erosion of the rule of law.
Most of what’s being written about the legal profession is its economics--delivery, models, winners and losers. That’s understandable as law is big business, and lawyers generally practice to earn a living. That is not to be trivialized. Still, lawyers face a bigger challenge today than navigating the shifting currents of their marketplace. They must take the lead to ensure that our rule of law is preserved. If they fail to do so, they—and the rest of us—might be out of business.
