Never before has it been so necessary for lawyers to speak out on the vital importance of: defending the rule of law, democracy, and the Constitution; protecting free and fair elections; and holding other lawyers accountable for violating their oath to uphold the Constitution. The purpose of this article is to address why existing case law is not a prohibition against engagement in these critical issues facing our democracy today.
Integrated bars can speak in defense of fundamental Constitutional principles, consistent with the Supreme Court’s decision in Keller v. California State Bar Association. Keller and case law interpreting it clearly establish that mandatory bars may speak out, and lobby, regarding issues that are “germane” to their core functions. The key question is whether the challenged expenditures are necessary for or reasonably related to either (i) regulating the legal profession or (ii) improving the quality of legal services available to the people of the state.
As analyzed in this article, cases vary in the extent to which they specifically address the central issues of (i) legal ethics and accountability, (ii) the rule of law, (iii) democracy, (iv) the Constitution, and (iv) free and fair elections. Yet there are compelling arguments that each of these concepts is germane. To the extent that case law on a topic is sparse, that may well be because state bars have not previously found it necessary to defend these fundamental precepts of our legal system. But the attacks on democracy today are unprecedented, and require a strong response from the legal profession.