Today’s Rule of Law crisis results largely from decades of gross neglect and even Rules violations by the legal profession’s supposed police, its Bar Enforcement Authorities. BEAs in virtually every jurisdiction have literally never enforced their professed Honor Code (Rule 8.3), and some have also failed to ever enforce the requirement that attorneys not make statements lacking a good faith basis (Rule 3.1). How can a profession claim to have an Honor Code it never enforces, and how is justice obtained if attorneys can with impunity start, escalate and/or prolong disputes with no good faith basis?

1993 warnings and 2003 requirements ignored: In 1993, Yale Law School Dean A. Kronman warned that “Every year produces … renewed doubts about the ability of the profession to police itself.”  In 2003, the ABA — in express response to public outcry from attorneys’ silence in the Enron scandal — exponentially expanded attorneys’ duties to disclose. Disclosure mandates previously limited to future bodily harm were expanded to harm that is financial and/or has already occurred. Yet BEAs in DC, VT, and elsewhere have largely ignored the warnings and expansions, sometimes to the point of dismissals that themselves lack any basis (thus violating Rule 3.1) yet are concealed from the public and even the Courts.

DC, VT, & CA. RTL focuses on DC because of its demonstrated violations and its heightened importance to democracy; VT because it has never enforced 8.3 or 3.1, and because its BEAs’ enforcement-avoiding decisions are kept secret not only from the public but even from Courts. RTL highlights CA for examples of steps that should be taken, because, following a scandal similar to VT’s of 2023, CA took three steps that RTL advocates for all jurisdictions that have failed to enforce 8.3 or 3.1: (1) investigated its BEAs and publicly disclosed a “shocking … culture of unethical and unacceptable behavior;” (2) enacted a uniquely strong 8.3 (specifying timing and dual-venues of reporting); and (3) appointed a non-Attorney to Chair the Bar’s oversight Board.

BEAs beg the age-old question, “Who Will Watch The Watchers?” These Emperors Wear No Clothes, and confronting that is required if we are to return to law and otherwise preserve our democracy.