Lawyer Silence and the Rise of Authoritarianism

The authoritarian tactics counteracted by lawyers in earlier years involved police dogs and fire hoses turned on peaceful demonstrators, the murder of civil rights workers and even children attending church, and, in the case of Latin America, disappearance, torture and murder that made no claim to legal legitimacy. But what role should lawyers today play in protecting the rule of law in America and around the world, where efforts to undermine democracy are increasingly taking place within legal systems, as well as outside of them? 

Does silence from the legal profession amount to complicity? When, if ever, is a lawyer obligated to defend democracy by deploying legal skills in defense of democratic institutions? We have already seen lawyers at the center of efforts to undermine the rule of law and faith in our electoral system. Is there a line beyond which no lawyer should go? 

This program examines the role that lawyer silence and complicity played in the erosion of the rule of law in Germany during the 1930s, in Argentina and Chile during the 1970s, and in Hungary and other countries, including the US, in more recent years.  What lessons can the legal profession learn from those experiences as new generations of lawyers consider how best to confront today’s challenges to democratic norms?  What should be the role of bar associations, including the New York City Bar, in confronting these challenges?

Welcome and Closing: 
Marcy L. Kahn, Chair, Rule of Law Task Force

Introduction: 
Susan J. Kohlmann, President, New York City Bar Association

Speakers:  
Katarina Barley, Vice President of the European Parliament 
Juan Mendez, Professor of Law, American University School of Law, former Special Rapporteur on Torture, United Nations Human Rights Office of the High Commissioner
Kim Lane Scheppele, Professor of Sociology and International Affairs, Princeton School of Public and International Affairs 

Moderator:  
Diane Orentlicher, Professor of International Law, American University School of Law 

Sponsoring Committee:
Rule of Law Task Force, Marcy L. Kahn, Chair

Co-Sponsoring Committees:
Asian Affairs, Dih-Lin Wong, Chair
Communications and Media Law, Matthew Schafer, Chair
Council on International Affairs, Mark A. Meyer, Chair
Council on the Profession, Melissa Colón-Bosolet & Mary Lu Bilek, Co-Chairs
European Affairs, Jonathan Halpern, Chair
Federal Courts, Richard Hong, Chair
Foreign & Comparative Law, Richard H. Langan, II, Chair
International Human Rights, Ramya Jawahar Kudekallu, Chair
Independence of Lawyers & Judges Task Force, Christopher Pioch, Chair
Professional Ethics, David Keyko, Chair
Professional Responsibility, Aegis J. Frumento, Chair
Senior Lawyers, Diane Fener & Dr. Gertrude Pfaffenbach, Co-Chairs
United Nations, Catherine van Kampen, Sophia Murashkovsky & Ervin Nina, Co-Chairs
Vance Center for International Justice, Edwin Maynard, Chair

Related City Bar Reports:
City Bar Launches Election Protection Effort 

How Lawyers Can Protect Our Democracy

An Urgent Call to the Bar for Action to Protect Our Elections: Now, During the Midterms and Beyond

Historical Context, Current Challenges & Recommendations Regarding the Disqualification Clause

City Bar Supports Lofgren-Cheney Presidential Election Reform Act, Critical Electoral Count Act Reform

The Consent of the Governed: Enforcing Citizens’ Right to Vote

Statement of the New York City Bar Association Calling for the Removal of Donald J. Trump as President 

New York City Bar Association Condemns Today’s Events at U.S. Capitol, and Urges Congress to Proceed with Electoral College Certification 

New York City Bar Association Calls on American Lawyers to Support the Rule of Law 

Lawyers’ and Public Officials’ Obligations During the Presidential Transition Period

City Bar Statement on the Improper Use of Militarized Federal Law Enforcement Officers in Portland, Oregon

Lafayette Square Protests: Investigation Request

Human Rights and the Administration of Justice in Chile: Report of a Delegation of the Association of the Bar of the City of New York and the International Bar Association

Panelist and related articles and reports
Autocratic Legalism – by Kim Lane Scheppele

Still under threat: the independence of the judiciary and the rule of law in Hungary – IBA Human Rights Institute

Courting Controversy: the Impact of the Recent Reforms on the Independence of the Judiciary and the Rule of Law in Hungary – IBA Human Rights Institute

Does Hungary Offer a Glimpse of Our Authoritarian Future? – by Andrew Marantz, The New Yorker

The Rosenburg Files – The BMJ and the Nazi Era