When Lawyers Protest

Renee Knake Jefferson* June, 2026

Lawyer Nation: The Past, Present and Future of the American Legal Profession. By Ray Brescia. New York: New York University Press. 2024. Pp. vii, 241. $39.

Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret. By W. Bradley Wendel. New York: Oxford University Press. 2024. Pp. xix, 269. $37.95.

Introduction

“I’ve never seen a protest with this many people in suits.”¹ On May 1, 2025, more than ten thousand lawyers across the United States took to the streets, waving placards and pocket Constitutions.² They did so to protest the Trump Administration’s threats to “the foundation of America’s legal system,” including executive orders targeting law firms, calls to impeach judges, and defiance of court orders.³ The protests coincided with “Law Day,” established by another Republican administration—that of Dwight D. Eisenhower—on May 1, 1958, as a “day of national dedication to the principles of government under law.”⁴

The historic significance of these “May 1” protests cannot be overstated. As one speaker declared: “If lawyers are taking to the streets, it means something very serious and bad is happening.”⁵ Lawyers gathered outside courthouses and in public squares in more than fifty cities to recite the Pledge of Allegiance and reaffirm their oaths to “defend the Constitution and uphold the rule of law.”⁶

In downtown Manhattan at Foley Square, home to multiple New York City courthouses,⁷ people chanted: “The rule of law protects us all. Without it we will surely fall.”⁸ The New York Times described this “crowd of protesters” as “raucous as any demonstration in a politically vociferous city.”⁹ Speakers at the rally included Stuart Gerson, who served as an assistant attorney general and later as acting attorney general for presidents from both political parties. He “spoke about the importance of an independent, nonpartisan judicial branch.”¹⁰ Though these lawyer protests in New York (and throughout the nation) were peaceful and resulted in zero arrests, they were certainly unprecedented for Americans. When the media circulated photos of lawyers in suits protesting in Pakistan in 2007 over the dismissal of judges and the imposition of emergency rule, these images were unthinkable for the modern American legal profession.¹¹

Compare the “May 1” protests to the “Stop the Steal” protests four years earlier. On January 6, 2021, lawyers participated in a rally in Washington, D.C., that ended not peacefully but in violent bloodshed and death.¹² Rallying cries and lawyer strategizing encouraged agitators to storm the U.S. Capitol building, where five people died and hundreds were injured.¹³ Later, four police officers who defended the Capitol died by suicide.¹⁴ To this day, there is a lack of public consensus about whether the events leading to January 6 and the attack on the Capitol itself were legitimate protests or acts of insurrection.¹⁵ As a journalist for National Public Radio reflected: “[Y]ou saw debates play out in newsrooms, including our own. Are they protesters still? Are they insurrectionists? Are they rioters?”¹⁶ Even after congressional hearings and the eventual prosecution of many January 6 participants, some media outlets continued to characterize the event as “paling in comparison to the Black Lives Matter protests during the summer of 2020.”¹⁷ Prosecutors “shied away from labeling them ‘rioters.’ ”¹⁸

The juxtaposition of these events raises many uncertainties, especially surrounding the lawyers involved. What animates the “rule of law,” this idea that the “May 1” lawyers rallied by the hundreds to support? Do lawyers have an affirmative duty to engage in protest or other resistance efforts in order to preserve the rule of law? When does a lawyer’s role in protest further the rule of law, rather than undermine it? Can legal ethics rules and norms help cultivate the former and prevent the latter? How should a lawyer reconcile the “unpalatable choice between compromising their values by staying silent and facing professional risk by speaking out”¹⁹ when witnessing actions that undermine the rule of law? What additional guidance might be available to lawyers beyond codes of professional conduct?

Fortunately, two recent books help answer these questions. In Lawyer Nation: The Past, Present, and Future of the American Legal Profession, Raymond Brescia²⁰ recounts the historical development of lawyers as professionals and devotes an entire chapter to interrogating the role of lawyers in January 6. In Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret, W. Bradley Wendel²¹ also takes up the January 6 lawyers among his case studies designed to assess why lawyers represent unpopular clients. These case studies include John Adams’s decision to represent British soldiers in the Boston Massacre trial (Wendel, pp. 9–10), the law firm Mayer Brown’s withdrawal from representing the University of Hong Kong in the removal of a monument commemorating the Tiananmen Square prodemocracy demonstration (Wendel, p. 10), and law students’ boycotts of law firms over climate change (Wendel, pp. 135–40).

Though neither book is explicitly about protests, both offer important insights for the legal profession and the public about the role of lawyers and law students who engage in activism. The stories recounted in these books can be understood as what Wendel calls “public morality plays, providing resources for an ongoing conversation about the relationship between the legal profession and the society it is intended to serve” (Wendel, p. 267). This Book Review joins that conversation by deploying theories and conclusions from the authors to better understand the ethical obligations of lawyers who engage in protests and other activism.

By examining historical accounts and case studies from Lawyer Nation and Canceling Lawyers, this Review exposes the complex and competing issues at play when lawyers (and law students) protest. The Review also identifies a previously ignored fissure in the field of legal ethics: Professional conduct rules command lawyers to uphold the rule of law as officers of the legal system and public citizens, but they offer little pragmatic guidance on how to do so. In response to that gap, this Review offers constructive proposals for reform, mindful of protest as a mechanism for accountability and change in our democracy. The solution cannot be to prohibit lawyers from engaging in protests and similar “extralegal methods like shaming, shunning, or boycotting” even if some, as Wendel notes, find such activism from lawyers “to be a threat to the rule of law” (Wendel, p. 264). “Any decent legal system,” Wendel acknowledges, “must tolerate informal channels of protest and dissent” (Wendel, p. 264). Brescia says the legal profession is entering “a period of reflection—even soul-searching” (Brescia, p. 10). This Review places the ethical obligations of lawyers related to protest on that soul-searching agenda.

Part I of this Review situates Lawyer Nation and Canceling Lawyers within the context of lawyer and law student involvement in protests and sketches the present uncertainty within legal ethics rules on this topic. Part II delves into case studies from Brescia and Wendel that bear on the involvement of lawyers and law students in protests. These studies illustrate both the nuances of lawyers’ ethical obligations in this context and the need for clearer ethical frameworks. Part III turns to recommendations for reform in the legal ethics sphere, offering some opportunities to make professional conduct rules and norms more responsive to the ethical issues surrounding protests. This raises important questions under the First Amendment’s protection of speech and association, which I also address here. Building upon observations from Brescia and Wendel, this Review concludes that the rules and norms governing the practice of law should cultivate protest as part of a larger commitment to furthering democratic principles, while also protecting the institutions that preserve our republic. And in the absence of law reform, law schools and nonpartisan nonprofits can help support these goals.

I. Is Protest Professional Conduct?

Part I of this Review situates Lawyer Nation and Canceling Lawyers within the context of lawyer involvement in protests and the legal ethics rules implicated by lawyer protest activity. Doing so requires some background on the authors whose work is the subject of this Review, before turning to a short history of protest in the evolution of American democracy. Then, this discussion will explore what, if any, obligation lawyers have to engage in protests, especially those designed to preserve the rule of law. Existing legal ethics frameworks do not provide much guidance on that topic.

At the outset, it is important to consider both books through the lens of their authors. As I regularly tell my students, knowing the background of a scholar is essential to critically evaluating their message. Brescia’s views are no doubt informed by his own experience practicing law. Before becoming a professor, he engaged in a range of “broad impact work” with several nonprofit legal services organizations on behalf of low-income tenants, consumers, and low-wage workers in “mass actions,” as well as “class actions and test cases[] involving welfare recipients, the homeless, and prisoners and detainees with psychiatric disabilities.”²² As a scholar, he has written about “movement law”––that is, the way law can be shaped through social movements and their use of tools like “strikes, protests, petitions, and lawsuits.”²³ Wendel, trained as a lawyer and philosopher, draws from the “insights of philosophers about the nature of interpersonal morality, including the often-neglected topics of blame, blameworthiness, and the ethics of blame; and how blame relates, or does not relate, to permissibility and wrongfulness” (Wendel, p. viii). Importantly, he reminds us that not only does protest serve to advance causes ignored by formal governance processes like legislation, but “[i]nformal techniques for exercising power, such as boycotts and public shaming campaigns, can be seen as a protest against perceived unfairness and injustice in the formal legal system” (Wendel, p. 152). For both Brescia and Wendel, protests can drive accountability and social change.

A. Lawyers as Stewards of Protest

American democracy developed and grew stronger through activism and protests. Those protests were legitimized by lawyers in the courts and on the streets, beginning from the time of the American Revolution to the civil rights movement and beyond.²⁴ Lawyers catalyzed change, starting with the founding of our nation, by “intellectualizing and materializing social and political protest.”²⁵ They have continued to be at the heart of boycotts, demonstrations, sit-ins, and other efforts to drive social change ever since. Widely influential²⁶ protests like the Tea Party and Black Lives Matter movements featured lawyers in critical roles, both representing clients²⁷ and engaging directly in these efforts themselves.²⁸ Scholars emphasize a “strong public interest in protecting street protests” because such protests “serve as important vehicles for political change, compensating for limited access to electoral politics in particularly vulnerable and disempowered communities.”²⁹ Social protest helps to protect our democracy by serving as “an engine of important constitutional change in society.”³⁰

This history illustrates that protest is an essential element of American democracy, but so is fidelity to law. As U.S. Supreme Court Justice Anthony Kennedy wrote nearly three decades ago: “Freedom may be born in protest, but it survives in civility.”³¹ Protest and civility were embodied by the lawyers who gathered on May 1, wielding pocket Constitutions and renewing their oaths. Respect for this duality strikes at the core of legal ethics. Kennedy further explained:

Civility does not mean a lawyer’s arguments must be lacking in force, nor does it overlook the vital role played by the lawyer or the citizen who must protest injustice. The idea of protest is essential in our legal tradition. Protest often contains a plea society would rather not hear, but that does not mean it lacks civility. Inspired protest is protest against injustice, and injustice is itself gross incivility.³²

Sometimes, however, that balance is fundamentally disrupted. In 2021, the nation nearly collapsed under the chaos at the U.S. Capitol on January 6, and, in some instances, lawyers legitimized the events of that day.³³ In recent years, violence couched as protest has been used repeatedly to intimidate officials and undermine political debate.³⁴ Federal and state legislatures are increasingly considering and adopting legislation³⁵ that curbs the very activism that some view as legitimate protest (and, in turn, essential to a thriving democracy), just because others find it to be unsafe or threatening to the public.³⁶ These laws “are often so vague and overbroad as to threaten the constitutional rights of those who might be made criminals under them, an issue that should be of concern to those of all political stripes, from Black Lives Matter protesters to passionate pandemic-era Trump supporters and vaccination opponents.”³⁷ As former Littler Mendelson associate Zachary R. Duffly argued to rebut charges of disorderly conduct on federal property for his participation in a racial justice protest: “I think it is important for attorneys in particular to stand up to very egregious government actions. . . . I think it’s important for attorneys—given our line of work—to do more. Everyone has their own calculus to make. I stand by what I did.”³⁸ The charges against him were eventually dropped.³⁹

But behind the heated moments of any protest, whether peaceful or violent, there are lawyers. Demonstrations, rallies, marches, and even rebellions forge the path to the Constitution’s promises, with lawyers as advisors to and defenders of those engaged in resistance efforts. And as with our Founders, lawyers sometimes join the agitation themselves. At the same time, the legal profession claims civility as a foundational principle. Don’t just take Justice Kennedy’s word for it—nearly half of U.S. states require explicit civility oaths for lawyers, and all jurisdictions mandate oaths that address aspects of civility including respect and fairness.⁴⁰

Despite this, the American Bar Association Model Rules of Professional Conduct (Model Rules) contain few provisions explicitly addressing the ethical obligations of lawyers with respect to protesting. This is, perhaps, part of why Wendel says he finds “legal ethics such a fascinating area of applied moral philosophy” because of the frequency “of cases in which it is not simply, straightforwardly the case that a lawyer’s conduct is either permissible or wrongful” (Wendel, p. 48). Among the few provisions relevant to protest, Model Rule 1.2(d) prohibits a lawyer from counseling a client to engage, or assisting a client, “in conduct that the lawyer knows is criminal or fraudulent.”⁴¹ But the same rule allows a lawyer to “discuss the legal consequences of any proposed course of conduct with a client” and “counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”⁴² This latter guidance gave lawyers for figures such as Dr. Martin Luther King Jr., for example, room to counsel about civil disobedience and nonviolent resistance efforts, though the rule did not exist in this particular form at that time. Model Rule 1.2(b) provides that the “lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”⁴³ This provision gives cover to lawyers who field questions from clients about unpopular causes.

At the same time, the preamble to the Model Rules seems to encourage (if not require) that lawyers engage in protest as part of their duties as “an officer of the legal system and a public citizen.”⁴⁴ For example, the preamble states that “when necessary,” lawyers should “challenge the rectitude of official action.”⁴⁵ It also touts the lawyer’s role in advancing “the public’s understanding of and confidence in the rule of law and the justice system” as not only appropriate but necessary “because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”⁴⁶ The ethical obligations described in the preamble have led some to conclude that lawyers have an affirmative duty to protest.⁴⁷ Those who embrace this duty promote what one commentator calls “protest lawyering,” noting that lawyers as “gatekeepers of legal knowledge . . . are uniquely positioned to embed themselves within grassroots protest movements not just as providers of counseling and litigation services but as protestors themselves.”⁴⁸ This poses a dilemma for lawyers. Not only may they advise and defend clients engaged in protests, but they must also calibrate their own involvement in protests, armed only with minimal and vague guidelines.⁴⁹ It is a quagmire for lawyers and law students alike who engage in protests and, as a consequence, may face obstacles to employment or licensure.⁵⁰

In short, despite the fact that protests often help shape national dialogue and further movements to secure important rights, legal ethics rules offer surprisingly little guidance for lawyers who themselves engage in the activism. Not only are professional conduct codes sparse and vague on the subject of lawyer protest, but when a lawyer runs afoul of the few prohibitions that do exist, disciplinary authorities do not levy sanctions consistently, if at all.⁵¹ To the extent they do step in, disciplinary outcomes are inconsistent.⁵² The lack of meaningful ethics guidance for lawyers who advise about or engage in protest opens the door to a kind of advocacy that increasingly erodes civility and imperils the rule of law, whether measured by the quantity⁵³ or disruptiveness⁵⁴ of protests. It also risks the weaponization of legal ethics for political purposes, leaving lawyers vulnerable to discipline, including the risk of losing their license to practice law.

Conversely, when a lawyer engages in protest via client representation, the applicable rules are relatively clear. While we might debate whether the rules are adequate (and indeed Brescia and Wendel likely would come out on different sides of that debate), a lawyer is on notice about the outer limits on advising or assisting a client in protest activity. The relevant rules all bear on a lawyer’s speech. In addition to Model Rule 1.2 and the preamble, other rules demand truthfulness from lawyers in court and when representing clients, limit trial publicity, and prohibit frivolous litigation.⁵⁵ Courts have repeatedly upheld rules like these, even under challenge before the United States Supreme Court.⁵⁶ But still, none of these rules offer concrete guidance as to the specific circumstances surrounding protests.⁵⁷ On the opposite end, a lawyer may engage in protest as a private citizen with the same robust First Amendment political speech protections as any other individual.⁵⁸

The gray area, and the primary point of inquiry for this Review, is when a lawyer’s protest activity occurs under the umbrella of professional duties beyond client representation—what we will call the role of the lawyer as an officer of the legal system or as a public citizen. Sometimes this activity stems from client representation,⁵⁹ but more often it occurs wholly independently from engagement with a client.⁶⁰ To be clear, this gray area emerges largely when lawyers are not serving as advisors to or advocates for clients who engage in protest––though, to be sure, the lawyering that supports civil disobedience and other forms of public protest plays an important part in the evolution of American democracy and the protection of the rule of law.⁶¹ Here, however, I want to set aside lawyers’ use of the court system through their clients as a forum for protest⁶² and instead examine the ethical obligations surrounding lawyers themselves when they engage in protest as a mechanism for preserving the rule of law. Before taking on that task, however, we need to understand what this concept means.

B. Legal Ethics, Protest, and the Rule of Law

Despite this rich history of lawyer involvement in protest, foundational questions about the nature and boundaries of a lawyer’s ethical duties (both during protest and in general) remain contested. Neither Brescia nor Wendel would go so far as to enshrine an affirmative “duty to protest” explicitly in the professional conduct rules, though both acknowledge the role of protests generally in a democracy and the unique obligations of lawyers who advise clients or engage as activists in their own right. Each author claims the rule of law as central to their book’s thesis. For Wendel, the lawyer owes fidelity to the rule of law and accountability for client selection (Wendel, pp. 242, 245); for Brescia, the legal profession holds an institutional role to “defend democracy, promote the rule of law, advance civil rights within a multiracial community, further economic development within a market economy, and preserve individual liberties—all within an adversarial system of justice” (Brescia, p. 10). Understanding the settled and debated boundaries of the lawyer’s obligation to protect democracy by upholding the rule of law is essential to appreciating the tensions faced by lawyers who engage in protest. Both authors concede it is a difficult idea to define, and their books each do some work to further that mission.

Brescia and Wendel consider adherence to the rule of law a hallmark of American democracy. But what, precisely, does the rule of law mean? And what does it mean when lawyers resort to protest—to some, the antithesis of the rule of law—to protect it? Both authors reference the rule of law dozens of times before finally endeavoring to define the concept, with Brescia devoting more than four pages to that effort. That it takes him such a span of pages to do so illustrates how elusive the meaning of this concept can be and how user and context dependent its definition is.

Brescia’s “broadly defined” rule of law is shaped by the fact that “we are a nation of laws and not people,” an idea that he attributes to Aristotle (Brescia, p. 102). He offers a historical account of the evolution of the rule of law as a concept, harkening back to the colonial era when lawyers loyal to England “thought that rule of law meant fealty to the king” and revolutionary lawyers “believed despotism was a rule of men and not law” (Brescia, p. 102). Brescia relies upon the work of legal scholar Ronald Cass for a modern definition centered on four key elements: (1) “fidelity to rules” with (2) “principled predictability” that is (3) “embodied in valid authority” and (4) “external to individual government decisionmakers” (Brescia, p. 103). Brescia also looks to the work of another scholar, Paul Gowder, who “argues that the rule of law exists where there is regularity, publicity, and generality” (Brescia, p. 103). He also brings in the United Nations definition, which provides that the rule of law is a “principle of governance in which all persons, institutions[,] and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced[,] and independently adjudicated, and which are consistent with international human rights norms and standards” (Brescia, p. 103). Finally, Brescia distinguishes between “thick” rule of law, which “includes such additional ideals as respect for individual rights and equality before the law, which are, themselves, both central to the liberal democratic tradition and have deep roots in American democracy,” and “thin” rule of law, “which looks to formal, procedural justice alone” (Brescia, pp. 103–04).

Wendel takes a different approach. He focuses specifically on “respect for the rule of law and the legal system as important public values in a society in which people disagree about justice” (Wendel, p. 8). Rather than offering various definitions, Wendel instead acknowledges that the “rule of law is a much-debated concept in legal philosophy” and directs the reader to a list of authorities ranging from the late Supreme Court Justice Antonin Scalia to legal philosopher Jeremy Waldron (Wendel, p. 160 n.88). He goes on to explain that he sees the rule of law as “a virtue of societies that seek to constrain the exercise of raw power in favor of relatively fair procedures for allocating rights and duties to individuals and organizations” (Wendel, p. 117). Wendel’s conception of the rule of law facilitates a mutually respectful exchange among individuals with fundamentally opposed ideas.

For our purposes, we will adopt a combination of these approaches. In sum, respect for the rule of law is a foundational principle in American democracy, and it demands fidelity to publicly known law, accountability in process, and respect for individual rights and equality. Building from this understanding, we will assess when protest by lawyers undermines the rule of law and when, if ever, the rule of law may demand protest from lawyers.

Brescia and Wendel wrote their books in parallel, publishing a month apart in 2024, likely with the content of each book unbeknownst to the other author. So when they rely upon the same anecdotes or case studies to illustrate their conclusions, readers should pay particular attention. Those instances offer valuable analytical opportunities for comparative analysis because they illustrate the tensions that arise when lawyers themselves protest. Both authors devote a significant portion of their books to the lawyers involved in the “Stop the Steal” protests and the January 6 insurrection (Brescia, ch. 7; Wendel, pp. 178–79, 205–11, 215–16). We turn to that case study, along with one involving law students as protestors, drawn from Wendel’s book, in Part II.

II. Case Studies in Lawyer Protest

Part II delves into some case studies from Brescia and Wendel that illustrate the tensions inherent in lawyer and law student involvement in protests. Wendel catalogues too many examples and case studies to discuss in detail here, but this Part will explore his anecdotes that intersect with those Brescia uses and help discern the competing values at stake when lawyers engage in protests. Read together, the books serve as a field guide for appreciating and understanding the role of lawyers as advisors, advocates, and activists in protests.

A. Case Study #1: Protest or Riot?

Brescia and Wendel each analyze the actions of lawyers John Eastman and Rudy Giuliani in the “Stop the Steal” protest-turned-riot of January 6. Brescia devotes an entire chapter (“A Serpent in the Ear of the President”) to the events surrounding the “Stop the Steal” protest and storming of the Capitol on January 6 (Brescia, ch. 7). He calls it a “brazen effort to undermine the rule of law” with “lawyers at [the] center” of the crowd’s actions (Brescia, pp. 142–43). Wendel similarly devotes a substantial portion of a chapter (“Case Studies: McCarthyism or Legitimate Criticism? Canceling Government Lawyers”) to recounting the events (Wendel, ch. 7). Both authors categorize January 6 as an example of mob rule at its worst.⁶³ Using January 6 as a case study in legal ethics presents an opportunity to ask foundational questions about the values of the legal profession with respect to democratic institutions, with a rare glimpse into the inner workings of the minds of the lawyers involved. Memos, emails, and other formally documented discussion “provide[] insights into the thinking behind the arguments the loyalist lawyers were making and the ways in which other, responsible lawyers ended up pushing back against them” (Brescia, p. 144). In studying these primary sources carefully, he demonstrates “the ways in which we have to shore up our institutions, and aspects of the profession itself, to ensure we do not have another desperate challenge to American democracy and the rule of law” (Brescia, p. 144).

Both Eastman and Giuliani made appearances at the “‘March to Save America’ designed, purportedly, to ‘stop the steal’” of the 2020 election (Brescia, p. 142). Wendel sets the stage with an excerpt from Eastman’s speech:

And all we are demanding of Vice President Pence is this afternoon at 1:00 he let the legislators of the state look into this so we get to the bottom of it, and the American people know whether we have control of the direction of our government, or not. We no longer live in a self-governing republic if we can’t get the answer to this question.⁶⁴

Similarly, Brescia quotes Giuliani telling the crowd: “If we’re wrong, we will be made fools of, but if we’re right a lot of them will go to jail. Let’s have trial by combat,” after which a crowd marched to the Capitol.⁶⁵ But Eastman and Giuliani’s involvement was not limited to the protest rally itself. January 6 “was the culmination of a nearly two-month-long process to challenge the results of the 2020 election,” and this effort “not only had lawyers at its center, but” was also fueled by “a witch’s brew of dubious legal claims and utterly unsupported . . . factual assertions” (Brescia, pp. 142–43). Indeed, “the loyalist Trump lawyers and their arguments were inextricably intertwined with the violent riots on that day” (Brescia, p. 143). Wendel also notes that Eastman’s own legal memorandum “all but conceded that there was no legal basis for the vice president to refuse to certify the election results” (Wendel, p. 209). But Eastman justified this with his belief that the election had been “[s]tolen by a strategic Democrat plan to systematically flout existing election laws.”⁶⁶ A federal district court and respected conservative lawyers all “concluded that Eastman’s arguments were not a good faith interpretation of the Constitution and federal statutes.”⁶⁷

Contrast January 6 with the protests of the civil rights movement. The marches and sit-ins of the 1960s were driven by lawyers’ deliberate efforts to professionalize civil disobedience in socially acceptable ways in order to expand rights to achieve the Constitution’s promise of a “more perfect Union.”⁶⁸ The actions were radical because they deliberately defied laws on the books, yet they illustrated the inherent and undeniable inequality of those laws. As Dr. Martin Luther King Jr. observed in his 1965 speech: “[T]he road to freedom is now a highway because lawyers throughout the land, yesterday and today, have helped clear the obstructions, have helped eliminate roadblocks, by their selfless, courageous espousal of difficult and unpopular causes.”⁶⁹ One key difference between the lawyering behind January 6 and the lawyering behind the civil rights protests and boycotts, however, is an “acknowledgement—some social expression—of regret or reluctance” which Wendel sees in Dr. King’s Letter from Birmingham Jail but is notably absent from the January 6 lawyers (Wendel, p. 244–45).

Brescia and Wendel also acknowledge the lawyers who helped hold the line against the activism-turned-violence promoted by Eastman and Giuliani. They both quote the same line from an email sent to Eastman from Greg Jacob, then-chief counsel to Vice President Mike Pence, in the midst of the Capitol attack: “[T]hanks to your bullshit, we are now under siege” (Brescia, p. 150; Wendel, p. 208). Reflecting in an op-ed, Jacob concluded that “it is right to now inquire whether the outside attorneys who advised the highest office in the land on a matter of the gravest national importance grossly abused their credentials.”⁷⁰ He would eventually testify against Eastman when the California bar sought to revoke Eastman’s license.⁷¹ Several lawyers participating in the January 6 insurrection were criminally indicted, with three pleading guilty.⁷² Dozens faced discipline, with five suspended from practice or permanently disbarred.⁷³ But when issued years after the fact, discipline may be unlikely to dissuade future lawyers from similar conduct or remedy past harms, a concern that especially distresses Brescia (Brescia, p. 152).

Brescia and Wendel agree that the so-called activism by Eastman and Giuliani was an “egregious example of a disregard for law, facts, and, ultimately, the rule of law” (Brescia, p. 149). Whether their advice about and engagement in protest activity is “also unethical under the rules governing the practice of law,” however, is an open question (Brescia, p. 152). Ultimately, both lawyers lost their licenses to practice law in disciplinary proceedings, in a manner that according to Wendel “reflect[s] not ordinary partisan disagreement but something much deeper, relating to the rule of law and the norms necessary to sustain a constitutional democracy” (Wendel, p. 209). But Brescia still wonders: Are “the rules currently in place that might address such lapses, and the types of penalties available for their violation, calibrated to appropriately punish such conduct and deter it from happening in the future?” (Brescia, p. 152). Part III will take up that inquiry, following this second case study.

B. Case Study #2: Law Student Boycotts as Protest

Among Wendel’s many examples of lawyers representing unpopular clients and the threat of shaming or cancel culture, he includes a 2020 Harvard Law School student boycott of the law firm Paul Weiss, aimed at “stigmatiz[ing] the firm for its work in the fossil fuel industry and . . . pressuring [it] to drop ExxonMobil as a client” (Wendel, pp. 135–36). A second wave was organized by “Law Students for Climate Accountability,” a student group founded at Yale Law School (Wendel, p. 136). They declared a boycott against Gibson, Dunn & Crutcher in December 2021 for the firm’s multiple representations of clients who students argued were fueling climate change. Wendel’s discussion of the ethical motivations behind the law student protests sheds additional light on the questions explored in this Review about lawyers who engage directly in protest. As he notes, “[T]he students’ protests are part of a long history of criticism of lawyers for uncritically serving capitalism” (Wendel, p. 133). This sort of protest succeeded in 1985 when student activists against the apartheid regime in South Africa organized “boycotts aimed at drying up the pipeline of new associates,” which led Covington & Burling to drop a major client, South African Airways (Wendel, p. 136).

These law student protesters, according to Wendel, “attempt[ed] to associate themselves with a long tradition of boycotts against powerful antisocial actors” (Wendel, p. 137). For example, he explains that the “Montgomery bus boycott continues to serve as the moral touchstone for the use of a concerted withdrawal of cooperation as a protest of injustice and a tactic for social change” (Wendel, p. 137). This is because that boycott sparked a movement leading to a “total victory, including a Supreme Court decision holding the Montgomery segregation ordinance unconstitutional as well as unprecedented national and international visibility for the cause of racial equality” (Wendel, p. 138).

Even so, the Harvard and Yale students did not achieve similar success. Wendel concedes that Ivy League law students have considerable social and economic capital; under “any reasonable measure of social power, [these students] do not count as the weak” (Wendel, p. 138). Nevertheless, he asks the reader to “stop for a second and try to take seriously the students’ point: the planet is facing an existential crisis” (Wendel, p. 138). He suggests that “the students’ activism can be understood as a demand for accountability and an effort to influence the meaning attached to the decision by elite law school graduates to employ their talents in this way” (Wendel, p. 139). He calls this “cancel culture in a good sense” (Wendel, p. 139), where the goal of lawyers-to-be as participants in protest is accountability, which in this case was directed at “elite law firms, representing some of the most powerful and wealthy corporate clients in the world” (Wendel, p. 140).

Wendel recognizes that boycotts and other protests “are often intended as a way of accomplishing public policy objectives that were unattainable through the formal lawmaking process, perhaps because formal processes have been captured by powerful special interests” (Wendel, p. 147). He views protests, such as boycotts and cancel culture efforts, as mechanisms of accountability (Wendel, p. 150). Additionally, he explains that “[f]ormal law frequently permits or even constitutes substantive injustice” (Wendel, p. 150). In turn, protests become powerful tools “as the weapon[s] of the weak against the strong” (Wendel, p. 150).

But Wendel also articulates a criticism of law students’ efforts to persuade classmates against working at Paul Weiss or Gibson Dunn as being “the wrong means in pursuit of what, from their perspective, is the right objective” (Wendel, p. 148). This is because “whatever one might say about the ethical obligations of citizens of a political community, the duties of lawyers should be oriented primarily toward the legal system” (Wendel, p. 147). In other words, targeting other students instead of the legal establishment is a mistake. Wendel ultimately concludes that “informal social pressures” like the student boycotts rub up against the way lawyers “understandably respect the value of the rule of law” and that protests “are unruly in exactly the opposite way that legal processes are ‘ruly’ ” (Wendel, p. 150).

* * *

What can we learn from these case studies about when lawyers protest? Wendel cautions that the January 6 “episode” must be “understood correctly” or “the wrong lessons might be learned from it” (Wendel, p. 210). For example, a statement from a member of one of the student groups organizing fossil fuel protests considered the “nearly unanimous condemnation by lawyers of Rudy Giuliani as evidence that criticizing lawyers in moral terms can be an effective strategy to accomplish social change” (Wendel, p. 210). In that statement, the law student suggested that “it’s not clear why helping a would-be fascist attack our democracy is morally or ethically worse than helping corporate polluters condemn countless children like mine, born in the smoke and flames of the Anthropocene, to a future of climate catastrophe.”⁷⁴ Wendel, by contrast, believes that the calls for Giuliani’s disbarment were appropriately grounded in “his violation of applicable rules of professional conduct,” which was not the case for firms like Paul Weiss representing ExxonMobil (Wendel, p. 210).

Both Brescia and Wendel take comfort from the fact that in the wake of January 6, “the institutions of democracy and professional ethics” endured (Brescia, p. 143). But Brescia appears significantly more worried than Wendel that sufficient rules do not currently exist to deter lawyers from this sort of behavior in the future, and consequently, “this force—the notion that lawyers might act in ways that undermine the rule of law—is one the profession needs to check” (Brescia, p. 143). In Part III, this Review lays out an agenda for deploying those checks when lawyers protest.

III. The Legal Ethics of Protest

Part III turns to recommendations for the field of legal ethics when lawyers protest. Building on Brescia and Wendel’s observations, this Review concludes that the Model Rules and other laws and norms governing professional conduct should cultivate protest in furtherance of democratic principles but still retain mechanisms that protect against the perversion of the rule of law.

As explained in Part I, when a lawyer engages in protest activities on behalf of a client, several professional conduct rules impose limits on the advice and assistance allowed.⁷⁵ Recall that lawyers are prohibited under Model Rule 1.2(d) from directing a client to commit a crime or fraud and from assisting a client in such an endeavor.⁷⁶ Model Rule 2.1, however, permits a lawyer to offer advice not only about law but also “other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”⁷⁷ A lawyer cannot file frivolous litigation (Model Rule 3.1); offer false evidence or make a false statement of law or fact to a judge (Model Rule 3.3); or make prejudicial public statements about a pending case (Model Rule 3.6).⁷⁸ When representing a client, a lawyer is also prohibited by Model Rule 4.1 from making false statements of material facts or law to third parties.⁷⁹ And Model Rule 8.4 admonishes “conduct involving dishonesty, fraud, deceit or misrepresentation.”⁸⁰ New York’s version of the latter two rules led to Giuliani’s permanent disbarment,⁸¹ and similar rules in California have been used as a basis for Eastman’s permanent disbarment.⁸² They exemplify the consequences lawyers may face when protest activities violate professional ethics, including state bar discipline, career damage, and reputational harm.

The Model Rules also offer direction for lawyers when their clients cross legal limits. Importantly, Model Rule 1.16 mandates that lawyers withdraw from representation of a client if “the representation will result in violation of the Rules of Professional Conduct or other law” or “the client . . . seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud.”⁸³ That same rule also permits a lawyer to withdraw if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement,” among other grounds.⁸⁴ Wendel’s documentation of lawyers representing unpopular clients (for example, the firms who represented fossil fuel companies) illustrates the guidance of Model Rule 1.2(b), which makes clear that a lawyer’s choice to represent a client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”⁸⁵

But what of lawyers who protest outside of client representation? Wendel found the law student boycotts justifiable, even while he found the law firms’ representation of clients who may contribute to climate change equally justifiable (Wendel, p. 140). The students, of course, were not yet lawyers and thus not yet subject to the professional conduct rules, but Wendel’s exploration of their motives illuminates why lawyers may find protest to be a viable tool for social change. Much like Wendel’s law student boycotters, the “May 1” lawyers engaged in protest to further a broader mission––in that instance, upholding the rule of law. While the preamble to the Model Rules includes a call to promote confidence in the rule of law, there are no comparable guardrails in the Model Rules when lawyers themselves engage in protest to support the rule of law or other justice values outside the bounds of client representation. To fully appreciate this gap, it is helpful to organize and categorize the existing professional conduct rules as they would apply to protest activities when a lawyer functions as a client representative, as an officer of the legal system, a public citizen, and a private citizen. The Taxonomy of Lawyer Protest below identifies these roles and illustrates the void this Review aims to fill.

Table 1. Taxonomy of Lawyer Protest Under the Model Rules of Professional Conduct

The gap illustrated in the taxonomy chart includes instances such as when lawyers as officers of the legal system or as public citizens make false statements not in a court proceeding or on behalf of a client but as part of a political debate or in the media which, as Wendel notes, “raises challenging First Amendment issues” (Wendel, p. 196 n.67). Respected legal ethicists disagree about whether professional conduct rules should mandate discipline in these sorts of contexts.⁸⁶ The Model Rules offer no concrete guidance.

What, if anything, should be done to address this void? The perspectives of Brescia and Wendel offer a useful starting point to answer this question.

Where Brescia would likely endorse new or expanded rules to protect democracy when lawyers protest whether as officers of the legal system or as public or private citizens (Brescia, p. 153), Wendel would reserve the lawyer discipline system for only the most egregious, clear-cut violations of already-existing rules in the context of client representation—conduct that “warrants both legal and moral condemnation” (Wendel, pp. 208–09). Such conduct would include cases like that of Giuliani, who was disciplined “based on specific findings of false public statements . . . that violated Rules 4.1[] and 8.4(c)” (Wendel, p. 211). Giuliani’s statements were made while representing a client in pending litigation, which is likely why New York found them to be grounds for discipline. By contrast, former advisor to President Trump “Kellyanne Conway’s notorious appeal to ‘alternative facts’ ” that she regularly disseminated in the media went without bar discipline even after formal complaints (Wendel, p. 197 n.67).

Brescia comes out stridently in support of reforms to legal ethics rules. He “would prefer stronger rules, clearer guidance, and a robust enforcement regime” at least as it relates to a January 6-type protest/riot,⁸⁷ especially in the gray area where a lawyer acts as an officer of the legal system and a public citizen (Brescia, pp. 153–54). At minimum, he argues an “accounting” of the legal profession is necessary as it “will show that civic virtue alone is a slender reed on which to rely to deter future misconduct” (Brescia, p. 153). Many of the Model Rules, as Brescia puts it, implicitly have the goal of preserving the rule of law “[b]aked in to the[m]” (Brescia, p. 154). Brescia would strengthen that protection. For example, Brescia recommends amending Model Rule 8.4 to add an additional ground for misconduct: “It is a professional misconduct for a lawyer to engage in conduct that is knowingly designed to undermine the rule of law” (Brescia, pp. 156–57). He would also revise “rules of ethics, and their corollaries in rules of practice, like Rule 11 of the Federal Rules of Civil Procedure,” to differentiate minor violations from actions directed squarely at undermining the rule of law (Brescia, p. 214). Brescia cites King v. Whitmer,⁸⁸ one of the 2020 election challenge cases, where “the plaintiffs offered no evidence to support their claims” (Brescia, p. 155). He would incorporate into the Model Rules and Rule 11 the judge’s admonishment: “ ‘And this case was never about fraud—it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.’ . . . Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way.”⁸⁹ Brescia emphasizes the lack of gradation as to the severity of sanctions. He argues that “those drafting procedural rules should consider incorporating not just explicit prohibitions on actions designed to undermine the rule of law but also stiff penalties for those lawyers who engage in them” (Brescia, p. 156). Brescia would also favor reforms to provide lawyers “greater protections when they raise concerns that a planned course of action is improper or constitutes advocacy beyond the bounds of the law” (Brescia, p. 217).

Wendel, by contrast, cautions that reforming rules by “telling lawyers to act in the public interest or pursue justice” risks “transform[ing] professional regulation or theoretical legal ethics into politics by other means” (Wendel, p. 145). He prefers to “fight out contested policy issues . . . through representative institutions” rather than “requiring lawyers to discern what is just or in the public interest and act[ing] directly on that” (Wendel, p. 145). Wendel’s conclusions land him firmly in support of lawyers who advocate for unpopular clients, though he would prefer that they appreciate why others may be outraged by their representation and even feel some remorse when their actions, even if technically permissible under professional conduct rules, may harm others (Wendel, p. 250). He certainly would support a lawyer’s representation of a client who engages in protest.⁹⁰

Less clear is whether Wendel would extend this same support for lawyers who engage in such protest themselves if the activity compromises the lawyer’s fidelity to the law. At a minimum, he wants the lawyer/protester to consider that they may be “right” but at the same time “feel considerable discomfort or regret about what they chose to do” (Wendel, p. 49). He does find civil disobedience justifiable if it appeals “to the community’s shared conception of justice, as embodied in its laws” rather than “only to individual conscience” and observes that the “open nature and the willingness of those who engage in civil disobedience to accept punishment manifest respect for other members of the community” (Wendel, p. 245). Wendel “would not support an effort to impose professional discipline or even to direct intense social criticism at lawyers who pursued potentially meritorious election litigation in good faith on behalf of the Trump campaign or allied groups” (Wendel, p. 215). That said, he believes that the “shaming, shunning, ostracism, and exclusion from polite society that constitutes an appropriate blaming response to the conduct of Trump administration lawyers should be reserved for those like John Eastman, who exhibited the attitude of contempt for the rule of law and the constitutionally prescribed democratic process of certifying elections” (Wendel, p. 215). Wendel draws this line with an intention to provide a benchmark devoid of politics, acknowledging that the “risk is that if this standpoint is not, in fact, neutral and apolitical, it may be ‘weaponized’ and used as just another political tool among others to be used against one’s opponents” (Wendel, p. 215).

Returning to his case study of law students protesting firms over climate change, Wendel notes that the students are “explicitly using the boycott to bring about large-scale policy changes that have been stymied at the legislative level” (Wendel, p. 147). So, in Wendel’s world, this leaves “a deep question for political theory” about “whether a formal legal system is, or should be, the only means of coordinating action, stabilizing society, or working out resolutions to disagreement and conflict within a political community” (Wendel, p. 147). Ultimately, Wendel appears reluctant to recommend any reform to legal ethics rules, though he concedes that to the extent a lawyer’s involvement in protest includes aspects of civil disobedience, there must be “some acknowledgement—some social expression—of regret or reluctance” (Wendel, p. 244). “The political tradition of civil disobedience, as found for example in Martin Luther King, Jr.’s Letter from Birmingham Jail,” he explains, “emphasizes that in violating unjust laws one must also accept punishment, which acknowledges the legitimacy of the laws and legal order maintained by one’s fellow citizens” (Wendel, pp. 244–45). And even in the midst of assessing his case studies of lawyers involved in boycotts and shaming through theory, Wendel is also pragmatic: “It is no fun to endure dissenting speech and protests, but it comes with the territory for those who hold political power or public influence” (Wendel, p. 264). To that end, some role for legal ethics when lawyers protest seems warranted.

A number of democracy-preserving proposals for reform from other contexts deserve consideration here, especially because when lawyers protest, their public identities and professional obligations blur with their personal convictions. These include amendments to professional conduct rules, supplements to law school curriculums, and adjustments to the lawyer discipline process. Each is addressed briefly below.

Some scholars, including myself, advocate for stronger protections implemented through amendments to professional conduct rules, specifically tailored for preserving the rule of law and democracy.⁹¹ For example, the duty of candor in the courtroom mandated by Model Rule 3.3 could be explicitly extended to the court of public opinion in limited circumstances—namely, protests.⁹² This is, in essence, what disciplinary authorities did when disbarring Giuliani in New York and Washington, D.C., and Eastman in California, and it aligns with Brescia’s call for strengthening existing rules for deterrence purposes (Brescia, p. 153).

Margaret Tarkington has also proposed a new Model Rule 1.19, “Special Duties of Lawyers Who Advise or Assist Government Officials or Entities,” which would impose heightened duties on government lawyers “to uphold the integrity of both the constitutional system of the United States government and the governmental office or entity being advised or assisted.”⁹³ Her rule would require covered lawyers to have “a good faith basis in both law and fact that is non-frivolous and that supports the advice or assistance given” and to disclose to a government official or entity any “contrary authority controlling in the jurisdiction.”⁹⁴ A similar rule could be crafted to place these sorts of enhanced obligations on lawyers who advise clients about protest activities or engage as activists themselves. Robert M. Palumbos has advanced a proposal in this vein to address civil disobedience; he suggests that civil disobedience “be incorporated into the Model Rules as a defense to mitigate the effects of the charge that an attorney has violated her legal duties.”⁹⁵ To do so, he offers a four-part definition of what would be covered: “First, the act constituting civil disobedience must be public. . . . Second, the disobedience must be nonviolent. . . . Third, the attorney must offer an explanation of her defiance based on moral or religious conviction. . . . Finally, civil disobedience should exclude activities motivated primarily by material self-interest.”⁹⁶

To heed Wendel’s cautionary words, however, any reform must account for weaponization of ethics rules for improper advantage or abuse.⁹⁷ The First Amendment protects against the politicization of professional conduct rules––for example, as “seen with Communism in the 1940s and 1950s and with Southern civil rights attorneys in the 1960s.”⁹⁸ Brescia similarly makes clear that we must distinguish forms of protest that compromise the rule of law from legitimate endeavors “that have been the bread and butter of cause lawyers for over a century” (Brescia, p. 157). He shares Wendel’s concerns about the risk of weaponization and puts the responsibility on judges and disciplinary authorities to ensure that “appropriate forms of advocacy and creative claims, particularly those raised by marginalized or disfavored groups,” are not chilled (Brescia, p. 157).

We must also acknowledge the practical reality that the reforms advanced by Brescia and others are not widely embraced and appear unlikely to be adopted by the American Bar Association or individual jurisdictions in the immediate future.⁹⁹ More fruitful endeavors will likely be found in legal education and in the processing of lawyer discipline complaints. Proposals for law school curriculum reform relevant to lawyer protest, in particular for legal ethics courses, include calls for teaching about lawyer civility,¹⁰⁰ the preservation of democracy,¹⁰¹ and the role of lawyers in protests as a component of public citizenship.¹⁰² As for the lawyer discipline process, two existing avenues for processing lawyer discipline complaints could be expanded. First, Scott Cummings recommends that disciplinary authorities adopt “TRO-style” actions similar to a California rule permitting the State Bar Court to enter an order placing a lawyer on inactive status even before the conclusion of a full disciplinary hearing, if the court finds the lawyer “has caused or is causing substantial harm to . . . the public” and there is “a reasonable probability” of the bar’s success on the merits.¹⁰³ He also cites the New York rule allowing the bar “to suspend lawyers on ‘an interim basis . . . upon a finding by the court that the respondent has engaged in conduct immediately threatening the public interest.’ ”¹⁰⁴ Cummings’s proposal responds directly to Brescia’s concerns about the consequences of delays in election-related proceedings, which also manifest in the urgency of responding in a timely way to lawyer protests. Second, bipartisan or nonpartisan nonprofits like The 65 Project¹⁰⁵ “hold[] accountable the lawyers who bring fraudulent lawsuits seeking to overturn legitimate election results or who otherwise violate their professional responsibilities to undermine our democracy.”¹⁰⁶ As Wendel explains:

[T]hat organization is intentionally bipartisan and also concerned with lawyers who commit violations of professional conduct rules such as lying under oath, aiding and abetting crimes or fraud by clients, or filing frivolous lawsuits. One can look long and hard at the grievances filed by [T]he 65 Project for any against a lawyer who pursued factually and legally adequately grounded litigation. (Wendel, p. 215)

Efforts like The 65 Project and others could readily be expanded.

Conclusion

Lawyer Nation and Canceling Lawyers offer contrasting yet deeply instructive visions for the lawyer’s role in protests and activism—visions that embrace long-standing tensions within legal ethics and the evolving demands of lawyers in upholding the rule of law. Wendel emphasizes a more traditional professional role for lawyers, placing them as neutrals who prioritize fidelity to law and institutional integrity. He is skeptical of lawyer activism that blurs the line between professional conduct obligations when representing clients and personal moral or political agendas. Brescia supports a more integrated approach where lawyers can (and should) engage in activism, especially in the pursuit of social justice and civil rights. He sees lawyers as agents of social change who can combine their professional obligations with activism as long as this effort does not undermine democratic values.

The case studies of lawyer and law student protests highlighted in this Review animate a critical question in legal ethics: Can, and should, lawyers be activists? For Wendel, the answer is constrained by the professional norms that distinguish legal practice from political advocacy. In his view, direct lawyer participation in protests or political movements risks eroding the very legitimacy of the legal system by undermining the public perception of lawyers as upholders of the rule of law. He argues that the social good lawyers serve is not found in advancing particular moral causes but in ensuring fidelity to law and access to legal institutions. Wendel’s concern is that when lawyers abandon neutrality, they risk politicizing the profession and destabilizing the legal system’s perceived impartiality. In short, lawyers should not engage directly in protest as officers of the legal system or public citizens but only as advocates for their clients within the confines of existing professional conduct rules or in their individual capacity. Brescia, by contrast, is more welcoming to lawyers engaging directly in protests but would reform professional conduct rules to provide disciplinary authorities and the courts with enhanced tools for deterring protests targeted at undermining the foundational elements of democratic government and rule of law.

Both Brescia and Wendel would agree that the “May 1” lawyer protests easily fell within the bounds of legitimate protest under existing legal ethics rules and that the actions of Eastman and Giuliani on January 6 did not. Less clear, however, is where each author would ultimately draw the line on protests like the law student boycotts of law firms and other movements that fall in the “gray area.”¹⁰⁷ As new generations of lawyers confront urgent questions about climate change, democratic decline, immigrant rights, personal autonomy, racial and social justice, and more, the dichotomy between professionalism and protest becomes increasingly untenable. In response to those realities, Brescia and Wendel call on lawyers to reflect on the rule of law and revisit their role in protecting it. This Review answers their charge by exploring those ethical tensions and assessing relevant reforms.

* Professor of Law and Doherty Chair in Legal Ethics, University of Houston Law Center. I am grateful to Stephanie M. Gregoire, Alexis Kulik, and Katy Stein for excellent re-search assistance, and to participants in the Texas A&M University School of Law Legal Ethics Schmooze as well as the Cornell Law School Faculty Workshop for their helpful comments. Special thanks to Sabriya Imami and Lila Nazarian for their superb editorial assistance.