The Rule of Law and Attorney Misconduct in Public Courts: A Less Discussed Type of Endangerment.

Some types of attorney misconduct in and through our public courts undermine the rule of law. Photo Courtesy Engage Projects Gallery Chicago.

Abstract

The Rule of Law is fundamentally compromised and harmed when attorneys engage in misconduct in and through the courts — particularly when that misconduct exploits vulnerable litigants or manipulates legal procedures for strategic improper gain. This article argues that such conduct creates a de facto dual-state legal system, one in which ethical parties operate under the proper constraints of fairness and legality, while unethical attorneys separately manipulate the process with impunity, out of the public eye. Drawing on the concept of the dual-state theory — originally used to describe authoritarian regimes that maintain a public-facing legal system while secretly deploying a separate system against disfavored individuals — the analysis in this article argues and begins to demonstrate how similar dynamics can emerge within ostensibly ethical and fair judicial systems. If courts fail to intervene when they are shown the facts of such misconduct, they enable a decay of the rule of law and are complicit in a parallel, dual-state legal order that governed not by the rule of law but by attorneys most willing to engage in misconduct. The Rule of Law, properly understood, is not preserved by mere formalism and mere recital as a platitude; rather, it requires active judicial action and resistance to internal corruption caused by attorney misconduct in and through the public courts. Without action by the courts themselves, attorney misconduct causes all conceptions of the Rule of Law to collapse into a façade — offered to some, denied to others, all with the pretense that it exists, when in fact the attorney misconduct has caused it to start to rot from the inside.

I. What Is the Rule of Law?

To understand how attorney misconduct in courts undermines the rule of law, we must first define the concept in its “normal” or widely accepted sense.

A. Core Elements of the Rule of Law

Most conceptions include:

1. Legality: Government and private actors are bound by and act in accordance with publicly promulgated laws.
2. Equality Before the Law: All persons are treated equally by the legal system.
3. Access to Justice: Individuals must have recourse to impartial courts.
4. Independent Judiciary: Courts must be fair, neutral, and not influenced by external pressures.
5. Procedural Fairness: Legal proceedings must be conducted transparently and by rules that guarantee due process.
6. Accountability: Violations of law must be subject to remedies and enforcement.

II. The Role of Lawyers in the Rule of Law

Lawyers serve as the interface between individuals and the legal system. Their fidelity to the rule of law in all its meanings — and their fidelity to ethical constraints — is essential to an overall meaning of the rule of law.

A. Lawyers as Officers of the Court

• Lawyers have a dual role: to advocate for their clients and to uphold the administration of justice.
• Courts rely on lawyers to present facts truthfully, argue lawfully, and respect judicial processes.

B. Gatekeeping and Integrity

• Lawyers often control access to litigation and judicial resources.
• Their conduct shapes both the efficiency and the fairness of legal proceedings.

III. How Misconduct by Lawyers in Court Undermines the Rule of Law

It is asserted that when lawyers engage in misconduct in or through the courts, this undermines the rule of law in all normal conceptions of that term, including by the following:

A. Undermining Legality and Predictability

• Legal rules lose meaning if officers of the court routinely manipulate, evade, or subvert them.
• Misconduct leads to decisions not based on the merits or law, but on deception, delay, or unfair advantage.

B. Eroding Equality Before the Law

• If lawyers use misconduct to secure favorable outcomes, those with more resources (or less scruples) gain disproportionate access to justice.
• Courts cease to be neutral arenas and become skewed in favor of the unscrupulous.

C. Breaking Public Trust in the Courts

• The rule of law depends on public confidence that courts are fair, rational, and incorruptible.
• Misconduct in the courtroom creates the appearance — and often the reality — that justice is for sale or manipulable.
• This is compounded when courts fail to sanction such misconduct.

D. Degrading Judicial Functioning

• Courts depend on accurate information, fair argumentation, and procedural order.
• Lawyer misconduct — such as hiding evidence, misleading courts, or abusing procedural tools — corrupts the judicial process itself.
• Judges are forced into roles of disciplinarian or fact-finder where advocacy should suffice, leading to systemic inefficiency and cynicism.

E. Institutionalizing Impunity

• If misconduct is pervasive and goes unchecked, it becomes normalized.
• This creates a two-tiered system: one where rules govern the powerless, and another where the powerful (or unethical, or both) manipulate the rules.
• At that point, the “rule of law” becomes more rhetorical than real.

IV. Contrast with Executive or Legislative Encroachments

The rule of law can be endangered not just by external attacks (e.g., an executive branch ignoring a judicial branch’s court orders), but also by internal decay and internal degradation. This distinction matters, because societies normally focus only on the first of the two types of endangerment.

A. Institutional Decay and Degradation from Within

• When courts are captured or manipulated from the inside by officers of the court, the threat is subtler but equally grave.
• External attacks can often be resisted or litigated, including because they are public and transparent; internal decay may go unnoticed or unchallenged until it is too late, because lawyers who are degrading the rule of law can almost always operate without any transparency to the public.

B. Lack of Political Accountability

• Attorneys are not elected and not always subject to public scrutiny.
• Their misconduct often hides behind procedural complexity, sealed documents, or professional deference.
• This makes the corruption of the rule of law harder to detect, harder to remedy — and easier to pretend away and look away from.

V. Illustrative Examples

To make this argument more concrete, consider just three of the most basic attorney misconduct examples:

1. Suppression of evidence by attorneys that distort fact-finding.
2. Misleading courts through false statements by attorneys.
3. Attorneys defying or stalling compliance with court orders.

Each example is not merely an ethical lapse or a close call where there can be legitimate debate; rather, each example is a fundamental corruption of fairness, transparency, and equality — each of which goes to the heart of the rule of law.

VI. Normative Implications

If lawyer misconduct in courts undermines the rule of law:

• Bar associations and courts should act to protect the rule of law.
• Disciplinary action must be more rigorous, timely, and transparent to the public.
• Procedural safeguards should focus not only on protecting parties but also preserving the integrity of the system and the integrity of the rule of law itself.

VII. Conclusion

The above is rooted in basic institutional theory: When lawyers engage in misconduct in or through courts, they erode the very framework they are sworn to uphold. The rule of law is not just about formal structures or platitudes — it is concrete: It is about how our structures of justice, fairness, equality, and transparency function in practice — how they function in the real world where real things, such as rights, are on the line. When everyday courtroom conduct departs from ethical and legal norms, it turns the all-powerful machinery of the public judicial branch into a tool of manipulation for the unethical attorney’s self-gain. That is not a peripheral problem impacting just the opposing party in the case; it is a systemic one — because it undermines the rule of law from within the legal system itself, unbeknownst to the public, to the detriment of the public.