“Who, Me? Yes, You! The Role of Business Lawyers in Advancing the Rule of Law” is part of a series on intersections between business law and the rule of law, and their importance for business lawyers, created by the American Bar Association Business Law Section’s Rule of Law Working Group. Read more articles in the series.
Advancing the rule of law should be every lawyer’s business, and it’s a lawyer’s ethical responsibility to do so as well. But too often, business lawyers may not see the connections between their work and the rule of law. “Who, me?” they may ask— “how could my corporate law practice possibly have a role in advancing the rule of law?”
I understand that question—and I appreciate where it comes from. For many years, I was a Wall Street litigator, as a partner and associate at two prominent New York and even global firms. My practice included defending cases around the country, conducting internal investigations around the country and sometimes around the world, and every other kind of big problem that a big enterprise might encounter where the law could be part of a productive resolution to a situation. And that wasn’t all. My practice also included, from the first day I began as a junior litigator in a large-firm litigation practice, the pro bono representation of individuals and entities—even the City of New York—that were unable to hire a firm like mine to represent them. Many had strong and viable claims. Others, perhaps not as much. But they all had a powerful, even urgent, need to have their voice heard in a courtroom, loudly and clearly and with the assistance of a lawyer.
Still, was that “rule of law” work?
After some twenty years in private practice and nearly as many on the bench in the United States Bankruptcy Court, I’m no longer in doubt as to the answer to that question—absolutely yes. And I’m no longer in doubt as to whether business lawyers have a role in advancing the rule of law. They do—or should I say, as a judge who sits in a court that hears matters concerning businesses, families, and individuals facing financial distress, we do. And if you are a business lawyer, you do, too.
Listen to your colleagues who are engaged in all kinds of representation—and listen closely. When senior business lawyers advise their clients on how to comply with disclosure requirements, they are advancing the rule of law. When they recommend best practices for meeting fiduciary duties, or complying with anti-money laundering regulations, or environmental rules and restrictions, they are advancing the rule of law. And when they fill that most challenging role of the trusted professional who gives the advice not to go down a particular path because it would not comply with the applicable legal standards or best practices, they are advancing the rule of law. Aspirationally, in their practices and in mentoring their colleagues, these senior and influential voices routinely share their experiences and perspectives, and they provide concrete examples of how business lawyers can meet their professional and ethical responsibilities to incorporate and influence the rule of law in their work.
Listen to your most junior colleagues, too. So many new lawyers come into the profession with the highest aspirations to make a difference. We need to learn from them and to remind them that their work can affect the rule of law, in both obvious and unanticipated ways. Every time they take on a pro bono matter, and let a poor person or microbusiness know that they, too, have an advocate, they advance the rule of law. And every time they bring their best professional effort to work that seems mundane, like document review for attorney-client privilege, or conforming a deal document, or sitting with a new client who just isn’t as organized as you wish they were, they also advance the rule of law. These are practical and real-world circumstances, and the impact on the rule of law is real. Maybe that’s not so clear when these tasks go smoothly. But imagine the damage that could occur if these smaller pieces of the rule of law mosaic fell apart. A mosaic with missing pieces just isn’t the same—and eventually, the picture that it creates will disappear.
So, what are some practical, real-world aspects of the rule of law in a business lawyer’s practice? Why should it be important to a business lawyer and their business clients, too? Here’s one reason: attention to the rule of law is an ethical obligation of all lawyers under the ethics rules. But what does that mean? The rule of law, as defined by the World Justice Project, is “a durable system of laws, institutions, norms, and community commitment” that delivers accountability, just law, open government, and impartial justice. Different organizations measure and study the rule of law in different ways, but most agree that it can provide constraints on government powers; minimize corruption; promote open government, fundamental rights, and order and security; advance regulatory information; and encourage civil and criminal justice.
The rule of law is also essential for businesses across the world. Why? The answer is simple: the business world requires stable, reliable, and predictable legal systems and laws, and the rule of law anchors such systems. And according to the World Justice Project, the presence (or absence) of the rule of law has a correlation with economic development throughout the world, as well as socio-political development.
So, by listening to our colleagues, both senior and junior, and recognizing these matters, are we done? Well, not quite. Some, including the World Justice Project, report a disturbing trend of the decline of the rule of law all over the world, including in the United States, even though people and business require the rule of law to sustain themselves, grow, and thrive.
In fact, according to the World Justice Project 2022 Rule of Law Index, for the fifth year in a row, more countries declined than improved in terms of the measure of the rule of law. To be sure, there are bright spots. According to the Index, in the United States, current areas of strength include civil justice that is free of corruption; government that is open; laws and government data that are publicized and publicly available; the right to information; the existence of complaint mechanisms; and effective systems of criminal investigation. But there are current areas of concern for the rule of law in the United States as well. These include confidence in the transition of power subject to the law; civic participation; fundamental rights; due process of the law and the rights of the accused; freedom of opinion and expression is effectively guaranteed; freedom of belief and religion is effectively guaranteed; civil justice is free of improper government influence; and criminal investigation system is effective. And sadly, there are some areas in which the rule of law in the United States has consistently faced significant challenges. These include equal treatment and the absence of discrimination; administrative proceedings that are conducted without unreasonable delay; accessible and affordable civil justice; and civil justice that is free of discrimination.
More generally, the rule of law is part of what defines us as a profession. It’s in our professional DNA. The American Bar Association Rules of Professional Conduct and various states’ rules of professional conduct point the profession in the direction of the rule of law. Business lawyers can promote and champion the rule of law.
Business lawyers can promote the rule of law through taking professional responsibility by adhering to ethical rules, laws, policies, and guidelines governing the legal profession and by helping clients uphold the rule of law. They also promote the rule of law through engaging in civic education such as supporting public education initiatives and through promoting rule of law principles through professional organizations, as well as encouraging engagement with the legal system across different sectors of society. Business lawyers can—and do—play a role in filling justice gaps.
So, what does this mean for business lawyers? “Who, me?” you may ask. Yes, you! It means many things. Listen—listen to the wise senior person down the hall, across the counsel table in the courtroom or the boardroom, on that Zoom screen. But don’t stop there—listen to the law student intern, the new lawyer, the midlevel colleague. And don’t just listen—share your own thoughts. Give yourself permission to remember your own aspirations to make a difference, and recognize that when you do that, you advance the rule of law, too. Look in the mirror—see a person whose job it is to advance the rule of law. And let’s get to work!
This article is related to a CLE program that took place during the ABA Business Law Section’s 2022 Hybrid Annual Meeting. To learn more about this topic, view the program as on-demand CLE, free for members.
Hon. Elizabeth S. Stong is a United States Bankruptcy Judge for the Eastern District of New York, sitting in Brooklyn.