Lawyer Discipline as Political “Resistance”: Separation of Powers, Federalism, and the Rule of Law
Michael S. McGinniss
Abstract
The legitimacy and integrity of lawyer disciplinary processes, and public and bar-member confidence in their fairness and justice, require they be as free and as protected as possible from political exploitation or ideological biases. Moreover, state constitutional separation of powers presents strong justifications for judicial restraint when courts are called upon to impose licensing discipline upon lawyers in elected constitutional offices, especially when they are exercising discretion on matters committed to their authority in those offices. Recent high-profile proceedings, such those pursued by the District of Columbia Bar against Jeffrey B. Clark, have raised serious concerns about local licensing jurisdictions intruding into the domain of federal executive power and compromising important federalism values that persist despite the traditional state prerogatives to regulate the practice of law.
In an era of increasing vulnerability of lawyer discipline processes to politically or ideologically driven “resistance” tactics—sometimes called “barfare”—procedural reforms adopted in several states and those proposed for the federal Department of Justice (“DOJ”) are appropriate in response to the harms and potential harms caused by these tactics. These reforms also strike the right balance in the separation of powers within states and preserve state licensing authority over lawyers while protecting the constitutionally supreme federal executive power exercised through the DOJ against state interference. In addition, some recent cases—such as the disbarment proceedings against John Eastman in California in representing President Donald J. Trump in the aftermath of the 2020 presidential election—implicate broader concerns about violation of lawyers’ freedoms in advice and public advocacy. In furtherance of rule-of-law principles, lawyer disciplinary authorities should exercise great restraint when invoking broadly worded professional conduct rules involving lawyers’ advice to and advocacy for government officeholders and in other politically charged contexts, and particularly when local precedents do not reflect those rules being similarly enforced in other cases.
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Author information:
Michael S. McGinniss
J. Philip Johnson Faculty Fellow & Professor of Law, University of North Dakota School of Law
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Recommended citation:
Michael S. McGinniss, Lawyer Discipline as Political “Resistance”: Separation of Powers, Federalism, and the Rule of Law, 2 Indep. L.J. 25 (2026)