Technically, Ted Cruz And Greg Abbott Should Be Disbarred

Today's blog appeared  on July 15, 2015  at http://talkingpointsmemo.com/cafe/ted-cruz-greg-abbott-should-be-disbarred

Technically, Ted Cruz And Greg Abbott Should Be Disbarred

In June, the Supreme Court ruled that the Constitution protects the right of same-sex couples to marry and that states are required to issue them marriage licenses. Yet many public officials have publicly encouraged people to break the law. Among them are attorneys, such as Texas governor Greg Abbott and U.S. Senator Ted Cruz. They may frame their opposition as standing up for what’s right. But according to the ethical rules of lawyers, public officials who are attorneys defying the Supreme Court by refusing to perform same-sex marriage ceremonies or encouraging others to do the same should be disbarred.

Article VI of the Constitution makes it the supreme law of the land. The Supreme Court gets the final say on what the Constitution means. The Court may be wrong, and on occasion it has been, such as with slavery and the separate-but-equal doctrine. Yet until it is overturned by constitutional amendment or it reverses itself, the Supreme Court’s rulings on the Constitution are binding precedent on all lower courts and public officials. Every lawyer and law student knows this.

Public officials are entitled to express disagreement with Supreme Court decisions, but they are not free to disregard them, or encourage others to do so because they are legally and ethically bound to obey them. They are in a different position from ordinary citizens when it comes to civil disobedience and defying the Supreme Court. Individual citizens may ignore the Supreme Court on matters of conscience, but at their own legal peril. Public officials do not have this luxury. Almost all public officials, including elected, appointed, and civil service across the country take an oath to uphold and defend the Constitution.

Refusing to follow a Supreme Court ruling as a public official, especially when one takes an oath to obey it–and even more so when one is entrusted to enforce the law–is illegal. That alone limits their ability to invoke conscience as an excuse to disobey. Now add to that an additional issue: What if the public official is an attorney?

The American Bar Association designed the Model Rules of Professional Conduct to define ethical duties of attorneys. State Supreme Courts have adopted versions of the Model Rules as binding upon attorneys who practice law in their jurisdictions. Attorneys are not free to ignore them–compliance is conditioned upon being licensed to practice law–and failure to obey could result in disbarment.

In the preamble, the Model Rules declare that lawyers must “demonstrate respect for the legal system and for those who serve it, including judges.” The Model Rules state that it is permissible to disagree with court decisions, but lawyers have a duty to uphold the legal process. This includes respect for, and compliance with, Supreme Court decisions. Model Rule 3.5 admonishes an attorney not to “engage in conduct intended to disrupt a tribunal.” Rule 8.4 declares that it is professional misconduct for attorneys to violate these rules, or to commit an illegal act that reflects adversely on their fitness to practice law. Rule 1.6 prohibits attorneys from using their legal skills to help others commit or plan a crime.

For Greg Abbott, Ted Cruz, and other attorneys who are public officials, their refusal or advocacy to others to refuse to perform same-sex marriages is both illegal and unprofessional conduct. Attorneys as public officials are legally and ethically bound to comply with the Supreme Court same-sex marriage ruling. Their refusal to do so means they should face disciplinary action for their behavior, and other attorneys who know of their contempt for the law are required to report them.

Counseling Justice: What Advice Could an Attorney have given to Martin Luther King, Jr. at the Edmund Pettus Bridge?

What should a lawyer have advised Martin Luther King, Jr. 50 years ago as he contemplated crossing the Edmund Pettus Bridge?  Posing this question as we witness the anniversary of this act of defiance and in the shadow of Ferguson, Missouri raise compelling questions not only about civil disobedience in America, but only about the connection between law and ethics and the role that attorneys have in advising their clients and in participating in the promotion of social justice.  I confess at the start I do not have all the answers, but the issues here are vexing.
    The connection between law and ethics and civil disobedience has deep roots.  There is Antigone’s burying of her brothers in defiance of the orders of Creon the King.  Socrates challenged Athenian democracy when it ordered him to stop philosophizing.  Jesus and early Christians confronted the Romans as they practiced their faith. St Augustine once proclaimed: “Lex iniusta non est lex”–an unjust law is no law at all.  Natural law believers contend that human law must be based on some natural laws or rules of justice, and thinkers ranging from St Thomas, Thomas Becket, to Lon Fuller have argued that there is an inner morality to the law.  At times human civil law is simply unjust, raising a compelling case for civil disobedience.
    American history is replete with cases of civil disobedience.  Colonists dumping tea into Boston Harbor was as much a political statement about independence as it was a protest against a tax they did not like.  Henry David Thoreau refused to pay his taxes, opting for jail as a protest against slavery and the fugitive slave laws.  And civil rights protestors and those opposed to the Vietnam War too defied laws they deemed unjust. 
    As philosophers John Rawls and Robert Dworkin  argued, the core of civil disobedience is disobeying those laws which you feel are unjust–not simply any law to make your point.  It made sense for Rosa Parks to refuse to sit at the back of the bus in that she was directly challenging the law that discriminated against her.  The Greensboro Four in 1960 sitting at a Woolworth’s lunch counter and demanding service as a protest against segregation laws also defied the law they wished to challenge.  Even King’s march across Edmund Pettus bridge was a legitimate challenge to segregation laws as its defiance was integrally connected to the racial discrimination they were challenging in 1965.  In all these cases breaking the law was meant to protest that law while at the same time highlighting a bigger cause. 
    The purpose of civil disobedience is to bring attention to the  injustice of the law with the goal being to bring about reform.  Because that is the goal, some contend civil disobedience should not be prosecuted.  Whether that is the case can be debated.  Will the civil disobedience be successful and is the cause is just are only a couple of issues to ask.  Will breaking the law send a sufficient message to the majority to change the laws, or will the civil disobedience lose part of its potency by knowledge that one is not risking prosecution, are tactical and political questions that do not lend themselves to simple answers.
    But what if King had come to an attorney in 1965 and asked whether he should break that law.  What should an attorney have done or said?  The contemporary ethical rules for lawyers known as the Rules of Professional Conduct were not in effect then, but assume they were, what do they permit?  The preamble admonishes attorneys to be zealous advocates for their clients while also recognizing that they have “a special responsibility for the quality of justice.”  One hopes that in advising a client one also promotes justice.  Moreover, Rules 1.16 and 3.3, as well as 1.6 collectively  and individually prohibit an attorney from assisting or advising a client to break the law.  Generally a lawyer’s first obligation is to counsel a client to conform to the law–to obey.  But lawyers may advise clients that a law may be unconstitutional but nonetheless also inform the client about the risks of challenging the law.  Similarly, a lawyer may advise a client contemplating civil disobedience about the consequences of disobeying the law and still represent the client afterwards.  Given this, there would have been no problem for an attorney advising King on his options, including what might happen if he crossed the bridge.
    But there are two additional issues here.  Should an attorney have told King to defy the law and march, and what about if the attorney marched with him?  These are tough matters of conscience and ethics.  On the one hand if the attorney thinks the segregation laws (or in this case an injunction) is unjust, should the lawyer counsel breaking the law?  One answer is that if the attorney truly believes the laws are simply unjust (but not illegal) it would be unethical from a lawyer’s ethics point of view to advise breaking the law.  More importantly, an attorney taking this position may not be acting as a zealous advocate for the client.  Such attorneys may be zealously advocating for a cause or they may be pressing their moral views upon a client, but they are not zealous advocates for their  clients.  But even if the moral views of the client and the attorney align, it may be the case that the attorney is no longer able to act primarily with the best interests of the client in mind–there may be a conflict of interest.  In the end, it is not about the attorney’s conscience when advising a client.  If an attorney believes that the law is unethical and wishes to civilly disobey, he or she may do so and cross the bridge, but  at that point one probably should no longer be advising King as an attorney.  The attorney is now a participant in the disobedience, not advising in the matter.  It may be difficult to cross the bridge and advise King at the same time.
    Conversely, is it ethical to advise clients to obey unjust laws?  Would it be wrong to advise disobeying laws connected with supporting an unjust society?  Should an attorney have advised Thoreau to pay his taxes?  For John Brown to raid Harper’s Ferry? Or today, would it be appropriate for an attorney to tell  protestors to block clinics because abortion is wrong?  Is it okay to advise illegal protests against Ferguson and racial discrimination in America?  No one says that lawyers should be indifferent justice; they should do their best to promote it.   But these issues raise a difficult problem of reconciling ethical rules that attorneys are supposed to follow with obedience to the law and ultimately the principles of a just society.  I am not sure what I would have done as  an attorney advising King in 1965.  I hope I would have gotten it right but it is not clear exactly what getting it right actually means.