The Declaration of Independence is an explanation for why the colonists wanted their own country, but it's mostly an indictment: a 27-count charging document against King George III for running a lawless government. “He has obstructed the Administration of Justice.” “He has made Judges dependent on his Will alone.” “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people.”
It shouldn't be a surprise that so many of the 56 signers of the Declaration were lawyers. Lawyers swear an oath to the truth, to good faith, and to ethical conduct. In this year of the Declaration's 250th anniversary, it's important to remind lawyers of their oaths and their duty to defend against lawless, unethical behavior. At a time when it seems that more lawyers than ever are breaking faith with their oaths, the Declaration provides a model for how lawyers should respond.
It sounds easy, but it’s not. In the face of repeated acts of dishonesty and bad faith from government lawyers and lawyers representing government officials, too many bar associations, law school deans, law firm leaders, and individual lawyers have avoided calling out this conduct. The common excuse is a desire to avoid being seen as taking sides in a political dispute. But these are not political disputes. These are lawyers, in public and in court, lying and misleading, often in service of illegal and unconstitutional ends.
For example, Rudy Giuliani, once a hero for his actions as mayor of New York City after 9/11, decided in 2021 to mislead a court, lie to the public, and participate in an illegal and unconstitutional scheme to overturn the results of the 2020 election. Other attorneys, including John Eastman and Kenneth Chesebro, promoted a false legal basis to overturn the election, and pressured the Vice President to exercise powers they knew he did not have. Lawyers Defending American Democracy (LDAD), where I am a board member, enlisted the nation's leading ethics lawyers to file complaints against each of these individuals for their conduct. Each has been disciplined: Giuliani and Chesebro disbarred in New York, Eastman disbarred in California.
LDAD has filed more than a dozen complaints, signed by thousands of lawyers and non-lawyers. Nearly all of these complaints have led to an investigation or discipline. But there are exceptions. In Florida, LDAD filed a complaint against then-Attorney General Pam Bondi, detailing a series of unethical and dishonest actions by Ms. Bondi. The complaint was supported by a team of renowned ethics attorneys and other professionals, including an LDAD board member who is a former Chief Justice of the Florida Supreme Court. Despite all this, the Florida Bar refused to even open an investigation because the AG was a federal constitutional office-holder, a position that lacked legal authority. The people who signed the Declaration would undoubtedly find this to be an absurd betrayal.
Lawyers have a special responsibility to act. An increasing number of lawyers are doing just that, at least judging by the thousands of attorneys who have signed onto LDAD's ethics complaints. Federal judges are acting, too. This year in Rhode Island, a Trump-appointed judge ruled that the government's traditional presumption of good faith “no longer holds” and referred the Justice Department lawyers before her to the court's disciplinary committee.
Ensuring that the bedrock principles of our system of government, including good faith, the truth, and the rule of law, are upheld requires constant vigilance, a clear-eyed view of right and wrong, and a dedication to holding those who breach these principles accountable. The signers of the Declaration envisioned a country founded on the rule of law, not the law of the ruler. They signed their names to it. All of us, especially lawyers, have a responsibility – and an opportunity – to do the same.
Evan Falchuk is a member of the board of Lawyers Defending American Democracy.
This series from Lawyers Defending American Democracy connects the words of the Declaration of Independence and the Constitution to current events that threaten democracy and the justice system. Each piece highlights the unique responsibility lawyers carry—through their oath, professional obligations, and roles in their communities—to help the public understand what’s at risk and to speak out when democratic principles are under threat. LDAD’s call to action is straightforward: as the Founders once did, we must recognize threats to constitutional values, demand accountability, and act to defend them.
