California State Bar "Statement on Recent Federal Executive Actions Threatening the Availability of Legal Counsel and the Rule of Law"

 

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The Board of Trustees of the California State Bar have approved and issued its "Statement on Recent Federal Executive Actions Threatening the Availability of Legal Counsel and the Rule of Law." They explained its scope, genesis and purpose this way to the members of the California Bar (in which I am a member):

As many of you are aware, in recent weeks, the federal government has issued executive orders targeting law firms based on their representation of clients and positions unpopular with the current administration. At its recent May 9, 2025, meeting, the Board of Trustees approved the release of a statement on such actions, which threaten the availability of legal counsel and the rule of law. The Board also authorized amicus participation in lawsuits challenging the executive orders. 

The Board of Trustees' full statement follows below.

It is a quite interesting example of its type. What makes it particularly interesting, at least with respect to the five fundamental principles, principles which one would be hard pressed to find many who would reject them, could as easily support  either side in the current tug of war between a President whose working style is euphemistically bombastic, on the one hand, and on the other a pool of certain members of the bench and bar (and their supporters) who would, in the service of their own ideological causes, exercise their own rights to the bombastic, that is to the naming, shaming, and sanctioning those who in their view oppose their own ideological orthodoxies' "red lines." It seems everyone is not only willing to climb their high horses, but all of them are more than ready to tilt at the windmills  that make them all, at the limits of their folly, a mockery of themselves and the Republic they purportedly serve (as well as of their own egos and projections of themselves into a society hardly eager for the  wonder of being projected upon).

But that is precisely the problem with any formulation in this context, or in any context where there is a contradiction between the dictates of orthodox normativity (especially where that orthodoxy is contested) and the willingness to concede an equal space to those who would undo it. None of this is meant as a defense of the actions of either the President, who would see his opponents jailed and ruined,  or of his political opponents, including those who would see the President jailed and ruined.  Not that either is particularly unusual in the history of the Republic, but both are inherently partisan and political--and when the partisan becomes inseparable from the larger normative structures, then contradiction becomes more problematic for both. 

The  path forward, then, might require a greater focus on boundaries rather than on grander statements of normative principles or more generalized directions against whom these principles ought to be applied. Those boundaries might start with the insight, also in the Statement, that every negative impact ("discourages or penalizes" standard) on the ability of attorneys by reason of their representation of certain clients or causes does raise serious concern about the ability of the bench and bar to fulfill their obligations. Negative impact (the quantum of adverse effect necessary to trigger the conclusion that a member of the bench or bar has been impeded from fulfilling their obligations requires  a more rigorous definition--and a definition that separates it from the consequences of clients and others exercising their rights of association and free expression especially relating to matters of norms and politics. But serious concern affects all members of the bench and bar representing all clients or presiding over all disputes. At the same time, individuals  also must be protected in their own rights of association; and in the performance, where it occurs, of political expression. On the one hand that creates a responsibility borne by all people and institutions to avoid actions that could or have the effect of negatively impacting the ability of bench and bar to fulfill their responsibilities. And it might be important to consider any distinction that might be made between the business of the law and lawyering, on the one hand (a lawyer does not have a constitutional or ethical right to run a successful business in free private markets--even markets for lawyer services), the the right  of the lawyer to vigorously represent their clients without impediment. That is a fine line--one that has troubled the profession since, famously, John Adams represented British solders who had fired on a crowd in 1770 and killed five colonial protestors (see here).

After the decision of the jury, there were a variety of angry responses in the newspapers, and the Boston Gazette in particular railed against John Adams. In addition, Adams said later that he lost half of his practice due to his defense of the British captain and soldiers, and it is clear from less biased sources that Adams’s practice definitely did suffer . But the venom remained words only, as there were no riots after the October and December trials. (here)

Nonetheless, while it may well be the prerogative of individuals and private institutions to both detest someone--lawyer, judge, official--and to do their best to oppose them (lawfully), avoid them, and to work against them (lawfully) in public, private, social, cultural, and other spaces, there is no prerogative to impede them from doing their jobs where others, also exercising their rights in social and market spaces, choose to hire them or to seek them out to resolve a dispute within systems created for that purpose. The first Amendment's rights to association, and to political expression protects all members of the political community, and none more than another--even lawyers, academics, judges, officials, and political figures. And that protection extends not just to one side but all sides; that is the lesson that appears to have been missed by this generation of purported thought (and other) leaders. Ecce homo.  

But the extent to which that framework ought to extend to public officials in their capacity as such raises more difficult questions. The difficulty lies in the obvious--the State may be different. The State might be understood as the mechanism for and the incarnation of solidarity among factions otherwise free to despise and work against each other--lawfully (and perhaps sometimes, if it suits their morals and politics and they are willing to pay the price the law exacts, through civil and criminal disobedience).  Nonetheless the State is both an institution of individuals with a human, all too human, duty, and also the incarnation of representative power detached from though manifested through the humans  through whom it operates. The State itself owes all of the people within its power a fundamental duty of neutrality and a fidelity to law. The first is easier than the second, especially if it is the law that is the object of dispute. Nonetheless the operation of the State through its officials--elected and appointed--is far more personal, and personality  is grounded not just in principles of neutrality but also of abuse. And yet, officials are humans. An official ought not to be forced to hire some one they despise or, where choice is possible, to choose someone they cannot work with.  Within limits. But what are those limits, beyond abuse and discrimination (at least with respect to those categories about which ?   

 And that is the problem; it is easy enough to go after a political figure who is polarizing--one does not have to read the California Bar Statement to read that into its text. But President Trump is not sui generis, as much as his political enemies would like to construct him as such a one--all he has managed to do is to make issues that have festered in the conceptual corners of our system now unavoidable. That becomes more obvious, and the exercise of generalized pieties becomes more complicated and harder to "solve," when one seeks to "Trump" a press organ or a Church, or other social, cultural, or political figures that one may be more fond of or whose views one shares but is equally despised by others. All of this becomes even more problematic when individuals leverage institutional authority to those ends, or appear to--and not just the President of the United States, but also State Attorneys general and local prosecutors, exercising prosecutorial discretion, etc. There are few innocents here especially when political, pecuniary, and altruistic motivations become hard to sort. At the same time,  no one, including officials in public and private institutions ought to be able to break the law with impunity--especially when they seek to take action against a detested lawyer or judge, even a detestable lawyer o¡pr judge (however one is permitted to judge those things. And no one ought to impede the exercise of a lawyer or judge's duty to the extent the law requires.  

Beyond that things get more complicated. One might think that the State's power to command social relations, including those in markets--and yet even here there is a substantial amount of negotiation, or perhaps better jut in the peculiar language of the jurist, a need to balance, competing rights, duties, expectations, customs, and desires for (coerced usually) reform. Read more carefully, that "conversation" is to some extent, exactly what the underlying foundational normative battle is quickly shaping up to be. It was a long time coming.  Nonetheless, shouting "rule of law" at a problem will neither solve it nor aid in its more rigorous conceptualization which, in any case, might be a better basis for attempting some sort of resolution.And conflating an individual with the office or profession that they practice is never a good place to start any analysis grounded in the protection of systems and not grounded in the conviction that professional status ought to confer personal benefit.

The Statement, like others on both sides of the conversation, does much to incite with generalities and the allure of the absolute, and does little to explore those complications which, in the end, are the heart of a very important matter. It is one thing to prance about doing some sort of ritualistic dance around an ideal and ordering premise that has been reduced to a"rule of law" idol and fetish--an inert calf of gold which in the hands of those who would use it (on both sides) becomes a weapon rather than a refuge. It is quite another to face the responsibilities of power for the preservation of the integrity of the institutions (individuals are quite another matter) through which high concepts like rule of law may be applied to everyday situations and from there to the buttressing of the legitimacy of the system in action.

To State Bar licensees and the public we serve:


The State Bar of California exists to protect the public through the licensing, regulation and discipline of attorneys; the advancement of the ethical and competent practice of law; and supporting efforts for greater access to, and inclusion in, the legal system. In carrying out its duties, the State Bar of California acts in accordance with certain fundamental principles that define the legal profession and are central to the State Bar’s mission: 

1. Attorneys have an ethical duty to provide competent and diligent representation to clients, regardless of how unpopular or controversial their causes may be. 

2. Attorneys must exercise independent professional judgment, free from external pressures or influences that might compromise their representation. 

3. Attorneys must not reject, based on personal considerations, the cause of the defenseless or oppressed.  

4. All attorneys swear an oath to uphold the United States and California Constitutions, and to faithfully discharge the duties of an attorney to the best of their knowledge and ability.

5. In both the federal and state legal systems, courts determine the meaning of the law, and all attorneys, including those in other branches of the government, have an obligation to comply with court orders.

These core principles, embodied in our Rules of Professional Conduct and the State Bar Act, are not merely aspirational—they are essential to the rule of law and the administration of justice.

When any action, regardless of its source, discourages or penalizes attorneys for representing certain clients or causes, it raises serious concerns about the ability of the legal profession to fulfill its obligations. The independence of the legal profession is a cornerstone of our justice system.

Recent actions of the current federal administration’s executive branch (the Administration) threaten these core principles. The Administration has taken actions against law firms, including through executive orders against certain law firms and negotiations that have resulted in agreements with others, based on those law firms’ representation of clients and positions unpopular with the Administration. Many of the representations criticized by the Administration are matters undertaken on a pro bono basis for indigent individuals, such as providing immigration legal services.

The Administration’s actions have included directions to government agencies to revoke law firm employees’ security clearances, limit access to federal buildings and employees, refrain from hiring law firm employees, and require federal contractors to disclose any business with targeted law firms.

Such actions directly imperil the ability of lawyers at these firms to competently represent their clients and have a chilling effect on the availability of competent legal counsel to represent clients unpopular with the Administration. This effect may be particularly harmful for those who lack economic means and rely on pro bono representation to access legal services. The threat to the legal system of these actions targeting law firms is such that United States District Court Judge Beryl Howell on May 2, 2025, permanently enjoined enforcement of an executive order issued against a law firm “to protect the independence of counsel to represent their clients vigorously and zealously, without fear of retribution from the government simply for doing the job of a lawyer.”

The State Bar reaffirms that all lawyers must be permitted to exercise their professional judgment and ethical duties without fear of reprisal. This position is not partisan but foundational to the advancement of ethical and competent practice of law and the preservation of the rule of law.

The State Bar encourages California attorneys, consistent with their oath to uphold the United States and California Constitutions, and to faithfully discharge their duties as attorneys, to speak out in support of the right to and availability of competent legal counsel to all and of the rule of law.

This statement is made on behalf of the State Bar of California, a state government agency. It is not intended to represent the views of any individual licensees of the State Bar of California.