The Role of Legal Advisors in US Business Approval

Every lawyer should be concerned with advancing the rule of law, and it is also their ethical responsibility to do so. However, too often, business lawyers fail to recognize the connections between their profession and the rule of law. "Who, me?"I understand your question, and I realize where it came from. I was a Wall Street litigator for many years, working as a partner and associate at two well-known New York and even global businesses. My work involved defending cases across the country, conducting internal investigations across the country and occasionally around the world, and dealing with any other major issue that a large corporation would have in which the law could play a role in finding a productive solution. And it was not all. My practice also includes, from the moment I started as a junior litigator in a large-firm litigation practice, pro bono representation of persons and entities—including the City of New York—who could not afford to engage a firm like mine. Many had compelling and plausible claims. Others, possibly not as much. But they all had a strong, even frantic, want to have their voices heard in court, loudly and clearly, and with the help of a lawyer.

Still, did the "rule of law" work

After twenty years in private practice and nearly as many on the bench in the United States Bankruptcy Court, I can confidently answer that question: absolutely yes. And I'm no longer debating whether corporate attorneys can help advance the rule of law. They do—or should I say, as a judge sitting in a court that hears cases involving businesses, families, and individuals in financial hardship, we do. And if you're a corporate lawyer, you do as well.Listen carefully to your colleagues who are engaged in various forms of representation. When experienced corporate lawyers counsel clients on how to comply with disclosure rules, they advance the rule of law. They advance the rule of law by recommending best practices for meeting fiduciary duties, complying with anti-money laundering requirements, and adhering to environmental norms and constraints. And when they play the most difficult position of trusted professional, advising others not to take a particular course because it would violate applicable legal norms or best practices, they are advancing the rule of law. Aspirationally, in their practices and in mentoring their colleagues, these senior and influential voices routinely share their experiences and perspectives, as well as concrete examples of how business lawyers can meet their professional and ethical responsibilities to incorporate and influence the rule of law in their work.Listen to even your most junior coworkers. So many new lawyers enter the field with the greatest desire to make a difference. We must learn from them and warn them that their actions might have a direct and indirect impact on the rule of law. Every time they take on a pro bono case and inform a poor person or small business that they, too, have an advocate, they enhance the rule of law. And every time they devote their best professional effort to seemingly ordinary tasks, such as document review for attorney-client privilege, conforming a deal document, or sitting with a new client who isn't as organized as you'd like, they enhance the rule of law. These are practical and real-world circumstances, and their impact on the rule of law is significant. Maybe it's not so obvious when these activities go nicely. Consider the devastation that may result if these little elements of the rule of law mosaic broke apart.

A mosaic with missing pieces isn't the same—and the image it produces will fade away over time

So, what are some real-world applications of the rule of law in a corporate lawyer's practice? Why is it crucial to both a business lawyer and their clients? Here's one reason: all lawyers have an ethical commitment to uphold the rule of law, according to the ethics guidelines. But what does this mean? The World Justice Project defines the rule of law as "a durable system of laws, institutions, norms, and community commitment" that ensures accountability, just laws, open governance, and impartial justice. Different organizations measure and study the rule of law differently, but most agree that it can limit government power, reduce corruption, promote open government, fundamental rights, and order and security, advance regulatory information, and encourage civil and criminal justice.The rule of law is also important for businesses around the globe. Why? The answer is simple: the business world requires legal systems and rules that are stable, trustworthy, and predictable, and the rule of law serves as the foundation for such systems. According to the World Justice Project, the presence (or absence) of the rule of law correlates with global economic and sociopolitical growth.So, by listening to our colleagues, both senior and young, and acknowledging these issues, are we done? Well, not quite. Some, notably the World Justice Project, observe a troubling trend of declining rule of law around the world, including in the United States, despite the fact that people and businesses rely on the rule of law to survive, grow, and prosper.In reality, the World Justice Project 2022 Rule of Law Index shows that for the sixth year in a row, more countries fell than improved in terms of rule of law. To be sure, there are some bright spots. According to the Index, current areas of strength in the United States include corruption-free civil justice, open government, publicly available laws and government data, the right to information, the existence of complaint mechanisms, and effective criminal investigation systems.

However, there are some ongoing concerns about the rule of law in the United States

These include confidence in the law-governed transition of power; civic participation; fundamental rights; due process of the law and the rights of the accused; effective protection of freedom of opinion and expression; effective protection of freedom of belief and religion; civil justice free of improper government influence; and an effective criminal investigation system. Unfortunately, several sectors of the rule of law in the United States have constantly encountered substantial obstacles. These include equitable treatment and the absence of discrimination; administrative actions that are completed without unreasonable delay; accessible and cheap civil justice; and civil justice that is free of discrimination.More broadly, the rule of law is part of what distinguishes us as a profession. It is in our professional DNA. The American Bar Association Rules of Professional Conduct and various states’ rules of professional conduct point the profession in the direction of the rule of law. Business attorneys can promote and defend the rule of law.Business attorneys can support the rule of law by accepting professional responsibility and following the ethical standards, laws, policies, and guidelines that regulate the legal profession, as well as assisting clients in upholding the rule of law. They also promote the rule of law by participating in civic education, such as supporting public education projects, promoting rule of law concepts through professional organizations, and fostering involvement with the legal system in many areas of society. Business attorneys can and do help fill justice gaps.