As authoritarianism gains momentum globally, the rule-of-law ideal is increasingly compromised. Lawyers are confronting a wave of attacks, ranging from the persecution of human rights advocates and the restriction of criminal defenders to the suppression of corporate law firms, including some of the most prestigious ones worldwide. Recent actions by the U.S. government against elite law firms like Paul Weiss and Perkins Coie, along with the consequential deals struck by some firms, exemplify the daunting circumstances that lawyers encounter in today’s world.
In this context, Jedidiah Kroncke’s new article on legal complicity is particularly compelling. Written a year before Donald J. Trump’s return to power, Kroncke could not have anticipated the subsequent aggressive actions against U.S. law firms. His primary focus is the ethical dilemmas faced by American lawyers practicing abroad, especially in authoritarian regimes like Russia and China. He critically examines modernization theory, a prevalent late 20th-century view among law and development scholars that posits a connection between economic development and democratization or political liberalization. Nonetheless, the phenomena he observes and the arguments he presents are remarkably pertinent to today’s discussion of legal ethics in both democratic and authoritarian settings.
Kroncke opens his discussion with a classic proposition in legal ethics: the amorality of a lawyer’s civic virtue. He draws upon the theory of French sociologist Émile Durkheim, who viewed professions as distinct groups tasked with upholding public values within their work, shielded from the influence and control of market forces. This autonomy is maintained not by the state, but by the profession itself, through a set of collective norms. Within the common law tradition, there has been a longstanding argument that lawyers should self-regulate to preserve their independence. This self-regulation enables them to “inject liberal ideals and a special fidelity to the law into their practice without coercion by the state and without being beholden to raw commercialism.” (P. 9.) The amorality of legal ethics, as Kroncke highlights, is epitomized by Justice Oliver Wendell Holmes Jr.’s influential discussion of the “bad man” who “manipulates the law as an amoral technician, guided solely by his client’s objectives.” (Pp. 9-10.) This perspective has shaped the ethical framework of the legal profession for over a century and continues to exert considerable influence today.
In recent decades, two alternative perspectives on legal ethics have gained prominence. The first, advocated by legal historians like Jerold Auerbach and Richard Abel, challenges the idea of a liberal and altruistic legal practice within the American legal profession.1 They contend that the profession functions as a self-interested group, using its professional autonomy and market monopoly to boost the income and status of its members. This orientation has been further reinforced by the increasing commercialization of corporate legal practice in recent years. The second perspective, exemplified by the “empirical turn in Canadian legal ethics” (P. 18), advocates for the imposition of more substantial social responsibilities on Canadian lawyers.2 Similar appeals for enhanced social duties are also evident in other common law jurisdictions, including Australia, New Zealand, and the U.K.
In the era of globalization, legal ethics underwent another transformation, as Kroncke argues. American lawyers venturing abroad to support the expansion of the United States’s global economic influence became increasingly aligned with the law and development agenda, which is rooted in modernization theory. This agenda views legal reform as a pivotal tool for achieving development objectives and promoting the rule of law worldwide. For instance, in China, since its reform and opening up in the 1980s, American lawyers and firms have not only assisted their clients with investments and cross-border transactions but have also actively contributed to rule-of-law initiatives such as legal clinics, judicial training programs, and legislative reforms, all aimed at making Chinese governance more rules-based and democratic.
This is where the concept of legal complicity becomes relevant. After four decades, it is evident that China has evolved into a more rules-based society, yet its governance remains highly authoritarian. In other words, the development of a more mature and functional legal system has not led to democratization, at least not in the Western sense. On the contrary, as the Chinese state has grown more powerful and resourceful in its governing capabilities, foreign lawyers working in China have become less outspoken in their criticism of Chinese governance. For the Chinese government, lawyers are expected to act as market facilitators rather than champions of democracy. When Chinese human rights activists were arrested and persecuted, there was scarcely any response from international law firms in Beijing, Shanghai, or even Hong Kong.3 According to Kroncke, this silence is a clear indication of the complicity of these foreign lawyers, including Americans, in supporting authoritarianism.
Legal complicity is closely linked to another concept, legal hypocrisy, which Kroncke adopts from Ekow Yankah.4 Legal hypocrisy refers to situations where the legal system becomes a scarcely concealed instrument of power, thereby eroding the rule of law and exacerbating concerns about the fidelity of lawyers, who are increasingly driven by market imperatives. With the global surge in authoritarianism in recent years, legal hypocrisy has taken on various forms across the world, from legislation and constitutional amendments aimed at consolidating power in China to the manipulation of trade and immigration laws under the banner of “Make America Great Again.” Laws are increasingly utilized instrumentally for the pursuit of political power and national interests. In this new era of anti-globalization and democratic backsliding, international law firms and their lawyers are no longer united by “a collective understanding that we are heading towards a more just world.” (P. 36.) Instead, they might find themselves better suited to serving merely as “sanctifiers” of corporate transactions – a role identified by John Flood two decades ago during the peak of economic globalization.5
Kroncke views this development as an ethical dilemma for transnational lawyering, noting that for American lawyers, it represents “not just a loss of their special status at home, but also a loss of the special status they have enjoyed in the international world for most of modern history” (p. 40). However, the notion that American lawyers hold an exceptional global role as both market facilitators and champions of political liberalism has always been fraught with hypocrisy. Even during the height of globalization, elite corporate law firms primarily focused on facilitating capital investments and corporate transactions.6 The responsibility for advancing human rights and the rule of law fell to other lawyers, those who resisted the core principles of corporate law.
In other words, the argument of legal complicity does not fully recognize the substantial internal divide within the American legal profession, where commercial lawyering and political lawyering have long operated as separate spheres, both domestically and internationally. Indeed, much of the criticism directed at Paul Weiss for its recent dealings with the Trump administration stems from an unrealistic – and arguably hypocritical – expectation of elite corporate law firms: that they should serve not only as business champions but also as defenders of the rule of law. Personally, I have never subscribed to the latter part of this belief. Big Law firms may undertake pro bono work, but typically only when it does not conflict with their business interests.
Instead of accusing corporate law firms of complicity with authoritarianism, whether at home or abroad, it may be more impactful to channel resources and reinforce capacities in other areas of the legal profession, specifically among lawyers guided by distinct political ideals and ethical principles. Corporate lawyers, now entrenched within the global corporate elite alongside investment bankers, accountants, and business consultants, are unlikely to shift from their increasingly commercialized roles. Faced with the stark choice between business and the rule of law, it is hardly surprising that they put business first. Consequently, questioning their legal ethics seems like a futile dream of resistance.
- Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (1977). Richard L. Abel, American Lawyers (1989).
- Adam M. Dodek, Lawyering at the intersection of public law and legal ethics: Government lawyers and custodians of the rule of law, 33 Dalhousie L.J. 1 (2010).
- Hualing Fu, The July 9th (709) crackdown on human rights lawyers: Legal advocacy in an authoritarian state, 27 J. Contemporary China 554 (2018). Sida Liu and Terence C. Halliday, Criminal Defense in China: The Politics of Lawyers at Work (2016).
- Ekow N. Yankah, Legal hypocrisy, 32 Ratio Juris 2 (2019).
- John Flood, Lawyers as sanctifiers: The role of elite law firms in international business transactions, 14 Indiana J. of Global Leg. Stud. 35 (2007).
- Sida Liu and Hongqi Wu, The ecology of organizational growth: Chinese law firms in the age of globalization, 122 Am. J. Sociology 798 (2016). David B. Wilkins, David M. Trubek, and Bryon Fong. Globalization, lawyers, and emerging economies: the rise, transformation, and significance of the new corporate legal ecosystem in India, Brazil, and China, 61 Harvard Int’l L.J. 281 (2020).
