The Critical Role of Legal Ethics in Preserving the Rule of Law

The rule of law as it exists in the United States carefully balances on the shoulders of two core promises that underpin the judicial system:

1. that counsel will be forthcoming and truthful in their advocacy;¹ and
2. that the judicial arbiters of disputes will remain fair and impartial, without regard to their personal beliefs.²

Neither promise comes without conflict. Advocates must rely upon their clients and their own investigation to keep them informed, even when the facts or the law are harmful to their client’s position. Judges must set aside their personal political, religious, and moral views to decide cases under the law. When either of the key promises slip, the delicate balance that is the “rule of law” begins to erode. In this highly polarized time with significant scrutiny of the courts, we are beginning to see what happens when both promises are broken at the same time.

While attorneys in private practice bear the same ethical duties as those who serve the public, prosecutors who represent the government are often held to a higher standard. As Justice Sutherland so aptly put it, a government attorney’s obligation “is not that it shall win a case, but that justice shall be done.”³ To that end, government attorneys often help raise the bar for private attorney compliance. Recently, however, many closely followed cases have seen the opposite result, with attorneys who represent the government shirking their duties and drawing the ire of courts across the country.

As one court recently explained, the perceived lack of candor by the government’s attorneys before it had led to “[a] loss of confidence in the Government lawyers who appear in this District. That is not just in the credibility of their presentations, but in the belief and understanding that lawyers for the Government are not just like other lawyers.”⁴

Likewise, in late January, a Minnesota federal judge asserted that the federal government had failed to comply with over 96 court orders, adding that “[t]his list should give pause to anyone—no matter his or her political beliefs—who cares about the rule of law.”⁵ Dozens of other judges around the country have made similar findings, chastising government attorneys for not complying with orders or being forthcoming.⁶ While there is often criticism of these efforts, with hundreds of courts reaching the same conclusion, there is no question that this is clear evidence of the deterioration of the duty of candor among those attorneys who appear to be more concerned about their clients’ opinions than their ethical obligations.

At the same time, when faced with a lack of candor, judges respond with sharper admonitions as one way to restore order. But that reaction, when it recurs across hundreds of cases concentrated in a single politically charged area of law,⁷ creates the appearance that the judiciary has become an adversary of the executive rather than a neutral arbiter of disputes between parties. And while the notion may seem implausible, even this appearance of partiality may run afoul of the judiciary’s obligations.

When these sharp admonitions from the bench consistently appear in orders addressing the same topic with the same political bent, it empowers the litigants (and sections of the public) to believe that justice is not neutral. These beliefs are often bolstered, correctly or not, by appellate court rulings scaling back the tone of district court rulings and orders often are used as support.⁸ This creates a deadlock, with one side believing that if an order is unfavorable, it is therefore partisan and it should not command deference. This reaction leads the other side to believe that further sharp-toned orders are the only way to restore balance. When the judiciary focuses exclusively on a highly politicized area of law in focusing their wrath, the second broken promise emerges from the appearance of partiality in the courts.⁹

Typically, where litigants do not comply with their duty, courts may act as a check on the attorneys, holding sanctions and contempt hearings or referring them to the local disciplinary board. The judges and the attorneys are not designed to be in opposition, lobbing harsh rhetoric at one another. That is at odds with the nature of the judicial system.

And yet, the two sides are destined to remain in a deadlock without concessions on each side. Indeed, “the district court has only the power to refer a person for criminal contempt, not the power to prosecute it.”¹⁰ In other words, courts can refer for criminal contempt but cannot prosecute it, meaning that the enforcement of the judiciary’s own orders depends upon impartial enforcement of those orders by the same executive branch that is either the subject of the orders or often accused of flouting court orders.

Historically, the only way to break a deadlock between two branches of government has been through political upheaval. For example, during the Saturday Night Massacre of 1973, on President Nixon’s orders, his then attorney general defied subpoenas issued by a court seeking the now infamous tapes. But the people revolted, Congress stepped in, and the executive ultimately deferred to the judiciary. This shift has not yet occurred in the present day. Instead, the executive has doubled down, relying on its own ethical body to police its behavior to evade the oversight of state bar ethics compliance agencies (while Congress remains deadlocked on even nonpolitical issues).¹¹

When the judges must step forward and question the veracity of the information provided by the attorneys before them, the system begins to erode. This is not how the system was designed to operate, nor is it conducive to its future success. The rule of law was never designed to be self-executing. It depends on participants—attorneys, judges, and litigants alike—to comply with the rules of engagement, including the ethical rules that apply to judges and attorneys.

The answer is not more rules. It is the acceptance and (when necessary) enforcement of existing ones, applied evenhandedly and without regard to which administration’s attorneys are before the court or which party’s judges are on the bench. State bars, Department of Justice leadership, appellate courts, and the private bar each have a role to play in applying that pressure—and the obligation to do so should not hinge on which party is in the majority. As such, to restore the rule of law, it seems a good place to start would be with the rules of ethics—which apply equally to all—and preserving the neutrality of the state ethics bars across the country. Or, put more simply, the bench needs to heighten its awareness of perceived partisanship. The bench should ensure it isn’t creating an unintentional sense of preference for one issue. At the same time, attorneys need to adopt stricter compliance with their own ethical principles, ensuring that they do not let the core tenets of the profession fall by the wayside simply to please a difficult (and potentially politically powerful) client.

Adrienne Scheffy is a litigator with the Denver office of Jennings Haug Keleher McLeod Waterfall, a full-service regional law firm that recently added a Denver office. She leads the firm’s employment law practice and advises clients on employment, litigation, and related business law matters – acs@jkwlawyers.com.

Coordinating Editor: Herrick Lidstone, hkl@jkwlawyers.com.

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1. Colo. RPC 3.3 (a) provides: “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]” ↩
2. The American Bar Association’s Model Code of Judicial Conduct requires judges to uphold and promote the independence, integrity, and impartiality of the judiciary, and to avoid both impropriety and the appearance of impropriety. Rule 1.2 further provides that a judge must “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.” These principles apply not only to a judge’s adjudicative functions but also to their administrative and supervisory responsibilities. ↩
3. Berger v. United States, 295 U.S. 78, 88 (1935). ↩
4. Cruz v. Mullin, No. 26-CV-1110-SJB, 2026 WL 1027441, at *5 (E.D.N.Y. Apr. 16, 2026). ↩
5. Silva et al., “Federal Judge Demands Answers From Top Minnesota Prosecutor in ‘Extraordinary’ Contempt Hearing,” NBC News (Mar. 3, 2026), https://www.nbcnews.com/news/us-news/minnesota-judge-federal-prosecutor-contempt-ice-immigration-rcna261583. ↩
6. See Cole, “Judges Are Regularly Threatening Contempt Charges Against the DOJ in Immigration Cases,” CNN (Feb. 10, 2026), https://www.cnn.com/2026/02/10/politics/judges-contempt-justice-department-minnesota. ↩
7. At the core of many of these rulings is a highly politicized issue: immigration. A review of recent cases shows that the majority of the piercing and sharp admonitions from judges were found in cases addressing immigration, not other highly debated areas of law. ↩
8. See Oliver, “Biden-Appointed Judge at Center of Repeated Clashes With Trump Administration Issues New Immigration Block,” Fox News (Apr. 9 2026), https://www.foxnews.com/politics/biden-appointed-judge-center-repeated-clashes-trump-admin-issues-new-immigration-block. See also https://www.foxnews.com/politics/obama-appointees-chicago-immigration-order-backfires-after-court-says-she-went-too-far. ↩
9. Silva, supra note 5 (asserting that “district court judges in Minnesota have abandoned any pretense of being impartial arbiters of the law and have sprinted past mere activism to straight partisanship and embarrassing theater.”). ↩
10. In re Trump, No. 25-5452, 2026 U.S. App. LEXIS 10539, at *21 n.11 (D.C.Cir. Apr. 14, 2026). ↩
11. Diaz, “DOJ Wants to Shield Its Lawyers From Outside Scrutiny. Critics Worry About Oversight,” NPR (Apr. 25, 2026), https://www.npr.org/2026/04/25/g-s1-118356/justice-department-ethics-rules-state-bar. ↩