“The first thing we do, let’s kill all the lawyers.”
Henry VI, Part 2, Act IV, Scene 2
As lawyers, we are central to maintaining the rule of law in society and, in turn, our basic freedoms. The inconvenience to would-be dictators of a class of professionals committed to values beyond personal gain is why Shakespearean bad guy Dick the Butcher wanted to “kill all the lawyers.” Lawyers’ commitment to the rule of law — a commitment kept through our exercise of independent professional judgment — is key to the survival of our legal system from one generation to the next.
The uniqueness of our role is reflected in several significant ways: Ours is the only profession mentioned in the U.S. Constitution;1 the Michigan Rules of Professional Conduct (like their counterparts in almost all other states) bar external ownership, control, or direction of our decision-making;2 and, unlike other professions, ours is self-regulating. Not only are we self-regulating, our state Constitution places our authority to regulate ourselves in the judicial branch, not the executive branch.3
While the term “professional independence” is bandied about a lot, its meaning is often far from self-evident. As one author has put it:
The term turns out to be elusive, in part, because it has multiple meanings; in part, because the various meanings are vague and not well elaborated; and, in part, because the various meanings seem to be inconsistent with each other or internally contradictory.4
Of particular relevance in times of political crisis, it has been stressed that “[a]n independent legal profession is a cornerstone of the rule of law. The independence of the bar from political retaliation and influences means that people are free to live their lives subject only to the law and . . . [l]awyers are free to assist people without fear of persecution or retribution.”5
The Michigan Rules of Professional Conduct refer to the concept multiple times, but it is not defined.6 Moreover, the notion of professional independence can appear to be at odds with a lawyer’s agency and fiduciary duties to their clients.7
In many respects, professional independence is properly understood as “independence from the pressures and influences of others who might compromise lawyers’ loyalty to clients.”8 It is, therefore, unsurprising that professional independence is intertwined with the rules regarding conflicts of interest.9
On a broader level, the idea of professional independence reflects the belief that “society is best served when lawyers are independent in the sense of ‘stand(ing) somewhat apart’ from the client, both to better serve the client and ‘to serve other, larger, and more diffuse interests than the client immediately recognizes.’”10 MRPC 2.1, which expressly allows lawyers to encourage clients to consider values beyond immediate self-interest, illustrates this belief.11 The apparent tension between a duty of zealous advocacy and consideration of broader interests is largely resolved by the fact that, in addition to being our clients’ advocates, we are also officers of the court and public citizens.12
Of the many ways to understand professional independence, one is through its application on a day-to-day basis — asking one’s client the hard questions the client would rather not address, giving a client candid advice they don’t want to hear, or being persistent in making a record for appellate review while litigating before an unsympathetic trial judge. At other times, though, it can be as significant as risking one’s job for doing what is right in the face of pressure to act otherwise.
Ultimately, the concept is perhaps best understood through historic examples. In 1735, Andrew Hamilton agreed to defend publisher John Peter Zenger for seditious libel after two other lawyers had been disbarred for challenging the trial judge’s authority.13 In doing so, Hamilton successfully argued — in defiance of the judge’s instruction to the jury — the enduring principle that truth is a defense to libel. In 1770, John Adams famously chose to represent British soldiers accused of murder in the Boston Massacre, making the point that, regardless of who was to govern the colonies, those in control had to do so by the rules.14
In 1953, during the time of the so-called Red Scare, Macomb County lawyer and, later, circuit court Judge Kenneth Sanborn risked his professional career to represent Air Force Lt. Milo Radulovich, who had been deemed a security risk and stripped of his commission because of his father’s and sister’s alleged communist sympathies despite no claim that he had ever acted improperly.15 The case gained national attention when Edward R. Murrow highlighted it on his popular See It Now television program. The resulting outcry led to reinstatement of Radulovich’s commission.16
In 1973, in what became known as the Saturday Night Massacre, Attorney General Elliott Richardson and Deputy Attorney General Donald Ruckelshaus, appointees of President Richard Nixon, resigned from their jobs rather than acquiesce to presidential overreach. Nixon had ordered them to fire Watergate Special Prosecutor Archibald Cox after Cox refused to drop a subpoena for White House tapes. As a result, the tapes eventually saw the light of day, a disclosure that was both the beginning of the end of Nixon’s presidency and a powerful reaffirmation of the importance of an independent bar.17
Regrettably, we have also seen the importance of professional independence through lawyers’ failures. Records released in the 1980s revealed that during the litigation of Korematsu v. United States,18 Solicitor General Charles Fahy “failed to tell the Court of relevant reports minimizing the danger posed by Japanese Americans living on the west coast.”19 Fahy’s silence — he acceded to the Army in the face of clear contradictory evidence — affected the lives of the approximately 120,000 Japanese Americans who were interned for the duration of the war. Many of those interned lost their homes and businesses, even though not one was ever found to have acted disloyally.20
In this moment, we are experiencing unprecedented threats to the profession. Lawyers’ and judges’ responses to these threats are al lowing us to observe first hand how deeply professional independence is linked to maintaining the rule of law. As U.S. District Judge Beryl Howell said in the course of striking down an executive order attacking Perkins Coie LLP:
No American President has ever before issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all Executive branch agencies but, in purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: “The first thing we do, let’s kill all the lawyers.”21
Striking down a similar executive order directed at Jenner & Block LLP, U.S. District Judge John D. Bates stressed the multiple ways professional independence is essential to maintaining a democracy:
That this order targets lawyers magnifies its threat to the Constitution in other ways, too. Lawyers and the firms they comprise are not, it goes without saying, immune from the legitimate exercise of state power. But neither is the Constitution blind to lawyers’ importance in upholding our democracy. Indeed, at least four constitutional amendments afford counsel-specific protection in view of the foundation[al] nature of the right to counsel. This is because [t]he right to sue and defend in the courts is the right conservative of all other rights, and lies at the foundation of orderly government. Our society has entrusted lawyers with something of a monopoly on the exercise of this foundational right—on translating real-world harm into courtroom argument. Sometimes they live up to that trust; sometimes they don’t. But in all events, their independence is essential lest they shrink into nothing more than parrots of the views of whatever group wields governmental power at the moment.22
That is, “In our constitutional order, few stars are as fixed as the principle that no official can prescribe what shall be orthodox in politics. And in our constitutional order, few actors are as central to fixing that star as lawyers.”23
Howell’s and Bates’s opinions were reiterated by U.S. District Judge Richard J. Leon in an opinion striking down a comparable executive order issued against WilmerHale:
The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this! Accordingly, they took pains to enshrine in the Constitution certain rights that would serve as the foundation for that independence. Little wonder that in the nearly 250 years since the Constitution was adopted no Executive Order has been issued challenging these fundamental rights. Now, however, several Executive Orders have been issued directly challenging these rights and that independence. One of these Orders is the subject of this case. For the reasons set forth below, I have concluded that this Order must be struck down in its entirety as unconstitutional. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers!24
The executive orders against Perkins Coie, Jenner & Block and WilmerHale are not isolated instances. Rather, they are of a piece with the Justice Department’s highly unusual intrusion on the prosecutorial independence of Southern District of New York U.S. Attorney Danielle Sassoon in connection with the Department’s corruption case against New York City Mayor Eric Adams. That intrusion eventually led Sassoon and a half dozen other Justice Department attorneys to resign rather than agree to dismiss the charges against Adams.25 The department’s stated reasons for dismissing the case were “explicitly political; [(acting Deputy Attorney General Emil)] Bove had argued that the investigation would prevent Mr. Adams from fully cooperating with Mr. Trump’s immigration crackdown.”26 A prosecutor has broad discretion to bring or dismiss a criminal case, but that decision must be based on the law and facts of the case, not on political considerations.
Sassoon’s letter to Attorney General Pam Bondi explained why she could not comply with Bove’s order, describing it as “inconsistent with my ability and duty to prosecute federal crimes without fear of favor and to advance good-faith arguments before the courts.”27 By refusing to go along with Bove, Sassoon and the others stood up for the principle that government lawyers represent the United States, not the president. In a startling response to Sassoon’s refusal, Bove told her “that the prosecutors who had worked on the case against Mr. Adams . . . would be investigated by the attorney general and the Justice Department’s internal investigative arm.”28 Bove also appears to have threatened collective punishment of lawyers in the Department’s Public Integrity Section unless one of them agreed to sign the government’s motion to dismiss.29
During the same timeframe, both Defense Secretary Peter Hegseth and the Equal Employment Opportunity Commission ([EEOC)] initiated actions to undermine lawyers’ independence. Hegseth summarily fired the Judge Advocate Generals of the Army, Navy and Air Force.30 In response, columnist David French wrote, “Dismissing JAG officers doesn’t change the rules, but it can degrade the quality of the legal advice that commanders receive. If military lawyers are afraid to provide good-faith advice for fear that it will anger the nation’s political leadership, then the chances that American forces will make a catastrophic mistake skyrocket.”31
For its part, the EEOC launched investigations of 20 major law firms, challenging their hiring practices going back to 2019 for claimed racial and gender discrimination based on a notion of unlawful discrimination that turns existing law on its head.32
The American Bar Association has also responded forcefully to governmental attacks on lawyers and their professional independence. In a March 3, 2025, statement, ABA President William R. Bay stated:
We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not. Words and actions matter. And the intimidating words and actions we have heard must end. They are designed to cow our country’s judges, our country’s courts and our legal profession. Consistent with the chief justice’s report, these efforts cannot be sanctioned or normalized.
There are clear choices facing our profession. We can choose to remain silent and allow these acts to continue or we can stand for the rule of law and the values we hold dear .... We acknowledge that there are risks to standing up and addressing these important issues. But if the ABA and lawyers do not speak, who will speak for the organized bar? Who will speak for the judiciary? Who will protect our system of justice? If we don’t speak now, when will we speak?33
In June 2025, the ABA filed suit against the president and numerous executive branch agencies. Citing well-settled First Amendment law prohibiting the government from making “threats aimed at punishing or suppressing disfavored speech” and from “subjecting individuals to ‘retaliatory actions’ after the fact for having engaged in protected speech,” the suit sought broad declaratory and injunctive relief against the administration’s attacks on lawyers and law firms.34
In a “Special Statement on Unprecedented Threats to Rule of Law” emailed to all members of the State Bar of Michigan following the issuance of the ABA’s March statement, the leaders of the State Bar echoed the ABA position. The Michigan Bar leaders stressed that “Our democracy depends on lawyers being able to provide representation to others as a means of ensuring that legal rights are properly asserted” and that a “strong and independent judiciary” is “able to decide cases based on the law and facts, rather than outside pressures. Efforts to undermine judicial independence — whether through threats to judicial security, calls for removal based on case outcomes, or actions that erode the public’s trust in the courts — pose risks to the proper functioning of our justice system.”35
Both the ABA statement and the State Bar leaders’ statement also note that judicial independence, like lawyers’ independence, is key to maintaining the rule of law in society. Bates underscored the significance of this interrelationship in his opinion in Jenner & Block:
Next, there is the interdependence of bench and bar. “An informed, independent judiciary presumes an informed, independent bar.” Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545 (2001). So limitations on lawyers’ speech must be examined with care, as such limitations threaten not only the lawyers and their clients but also the ability of a coequal branch of government to function. Cf. Penson, 488 U.S. at 82 (noting that a lawyer’s failure “deprived the court of the assistance of an advocate” of its own). Official attempts to “draw lines around” lawyers’ advocacy and thereby “exclude from litigation those arguments and theories [the President] finds unacceptable but which by their nature are within the province of the courts to consider” threaten a deep and irreparable rift in the constitutional order because they seek “to insulate the Government’s [acts] from judicial inquiry.” Legal Servs. Corp., 531 U.S. at 546. When the government draws legal scrutiny, its response must be to defend itself in court, not to intimidate those who would force it to do so.36
Bates’ comments recall Alexander Hamilton’s observation in The Federalist No. 78 that “[t]here is no liberty, if the power of judging be not separated from the legislative and executive powers ... the complete independence of the courts of justice is particularly essential in a limited constitution.”37 It is a truism that Hamilton’s observation has been repeatedly validated by lived experience.
It is, in fact, difficult to imagine judges committed to judicial independence if, prior to taking the bench, the principle of professional independence had not been ingrained in them as lawyers.
Ultimately, the concept of professional independence imposes on us as lawyers the sometimes heavy responsibility to know when to say “no” and when to do or say what is unpopular in service to what is ethical and just. In this sense, professional independence is what civil rights leader Bayard Rustin referred to as our duty to “speak the truth to power.”
Outside of the constitutional convention one day, Benjamin Franklin was asked, “Well, Doctor, what have we got, A Republic or a Monarchy?” Franklin famously replied, “a Republic, if you can keep it.”38 By its very nature, a democracy is inherently vulnerable; it is, therefore, entirely predictable that a democratic society will at some point in time experience an existential challenge. The Founders would almost certainly have been surprised that we have avoided such a crisis for 250 years. When such a crisis arises, however, because of our role in society, we as lawyers must each make a choice. As stressed in the ABA and State Bar leaders’ statements, we must decide whether to speak up or remain silent.
Threats to the rule of law do not arise in a vacuum. They are invariably the product of a particular combination of social, political, cultural, and economic conditions at a given moment in time. Each of us has agency to decide how we will respond, and our individual decisions to act or remain silent may well turn on our individual beliefs as to the overall fairness of the law. Maintaining the rule of law, therefore, may ultimately depend not just on our respective views of professional independence but also on whether a critical mass of us view the law as sufficiently responsive to people’s needs to be worth fighting to preserve.