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January 29, 2024 YourABA | Ethics in View

A lawyer’s duty to defend the Constitution

By Teresa J. Schmid, J.D., MBA, LP. D, CAE, ABA Center for Professional Responsibility

The following contains purely informational, educational or technical material. The views expressed herein represent the opinions of the author and have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.

On Dec. 14, 2023, the American Bar Association presented a program, “Democracy in Peril,” as part of its Presidential Speaker Series. Participants included New York Times opinion columnist David French, former judge Michael J. Luttig of the 4th Circuit of the U.S. Court of Appeals and former Homeland Security Secretary Jeh Johnson. All three are members of the ABA’s Task Force for American Democracy, of which Luttig and Johnson are co-chairs. The charge to the task force is “to examine ways to ensure an enduring American democracy” and to present a report of its findings to the ABA House of Delegates at the 2024 Annual Meeting.

The speakers raised the alarm that the current social, political and economic environment has placed democracy itself at risk. Their conclusion: By reason of their oaths of office, lawyers have a duty to defend the Constitution and, by extension, democracy itself.

The speakers noted that denial of the results of 2020 election did not turn on alleged vagueness of the Constitution’s language; the language is clear, and the certification complied with its terms. The hostilities of Jan. 6, 2021, did not arise from a disagreement as to what the Constitution says but instead from rejection of the Constitution itself. Since the Constitution establishes a representative democracy, the core function of which is to effect a peaceful transition of power, an attack on a constitutionally valid election is an attack on the Constitution and the form of government it creates.

False allegations that an election was invalid undermines voters’ belief that they have a voice; they lose faith in elections and in the legitimacy of their elected representatives. The speakers observed that such allegations also embolden political actors to “behave badly” and to go to extremes, both to the far right and to the far left. The resulting environment of uncertainty and perceived disenfranchisement poses an existential threat to democracy itself.

Luttig observed that it is important for lawyers to speak “very precisely” about the Constitution. When lawyers take an oath of office, they commit themselves to defending the Constitution. Since the purpose of the Constitution was to establish the American democracy, it follows that the duty to defend the Constitution is a duty to defend the form of government it created. It is important that lawyers challenge false claims that the outcome of a constitutionally valid process has no effect. If a lawyer witnesses such claims and says nothing, he or she is complicit in the falsity. The duty to defend the Constitution is active, not passive. Above all, it is precise.

Teresa J. Schmid is the director of the American Bar Association Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct. She is licensed and active in Illinois, California and Oregon. 

The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.