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!