Practicing Law in Lawless Time

Corporate legal professionals across the United States are grappling with a profound ethical challenge, as the perception of diminished federal enforcement against major corporations for serious offenses such as foreign bribery, environmental pollution, and consumer protection violations has taken root, particularly under the Trump administration. This perceived shift has introduced a complex dynamic into boardrooms and law firm discussions, prompting questions about the very essence of legal compliance and professional responsibility. Amidst this evolving landscape, Leo Strine Jr., a luminary in corporate law and governance, has issued a compelling call to the profession, urging a steadfast commitment to the rule of law despite external pressures.

A Shifting Legal Landscape for Corporate America

The premise that corporate clients might face reduced scrutiny for infractions that once drew significant federal attention has sent ripples through the legal community. Traditionally, corporate legal departments and their external counsel have navigated a complex web of regulations, with the understanding that robust enforcement mechanisms served as a primary deterrent against illicit corporate behavior. This framework underpinned compliance programs, risk assessments, and ethical guidelines. However, the period under consideration saw a discernible shift in regulatory posture, leading to a climate where the likelihood of criminal charges for major corporations, even for serious crimes, was perceived by some as significantly reduced. This perception has, in turn, fueled difficult conversations between clients and their legal advisors, raising fundamental questions about the rationale for rigorous adherence to laws when the threat of punitive action appears to recede.

The implications extend far beyond mere regulatory arbitrage. It touches upon the integrity of the legal system, the ethical obligations of lawyers, and the very fabric of corporate citizenship. As companies weigh competitive pressures against legal and ethical mandates, the role of their counsel becomes critically important in steering them through this unprecedented environment. It is within this context that Strine’s insights offer a vital compass for the profession.

The Clarion Call from Coronado: Leo Strine Jr.’s "Practicing Law in Lawless Time"

The urgency of this situation was powerfully articulated by Leo Strine Jr. in his recent address, "Practicing Law in Lawless Time," delivered as the prestigious David S. Ruder Lecture at the Securities Regulation Institute in Coronado, California, last month. Strine, a towering figure in American jurisprudence, brings immense authority to this discussion. He served with distinction as the Chief Justice of the Delaware Supreme Court from 2014 to 2019, presiding over a court that plays a pivotal role in shaping U.S. corporate law. Currently, he is of counsel at the esteemed firm of Wachtell, Lipton Rosen & Katz and a distinguished Fellow at the University of Pennsylvania Carey Law School. His unique vantage point, spanning both judicial and private practice, lends considerable weight to his observations regarding the challenges confronting corporate lawyers today.

The David S. Ruder Lecture series itself is named after a figure synonymous with integrity and scholarship in securities law. David S. Ruder, a former Chairman of the U.S. Securities and Exchange Commission (SEC) and a distinguished law professor, dedicated his career to upholding the principles of fair and transparent markets. That Strine delivered his stark warning within this respected forum underscores the gravity of his message.

Strine’s central thesis posits that the current threat to the rule of law is not confined to specific statutes. Instead, it casts a long shadow over a broad spectrum of legal protections, encompassing criminal law, antitrust regulations, and labor statutes, while also extending to critical areas such as consumer protection, environmental safeguards, human rights law, and provisions designed to ensure public integrity and responsible business conduct. He warned that "All the laws designed to secure our ability to thrive safely as free citizens of an American republic may now be perversely misused," highlighting a systemic vulnerability rather than isolated incidents.

Erosion of Enforcement: A Deeper Dive

The backdrop for Strine’s concerns is the observable shift in federal enforcement during the Trump administration. While every administration recalibrates enforcement priorities, critics argued that the degree of deregulation and the perceived de-emphasis on corporate criminal accountability under this specific administration were distinct. For instance, the Department of Justice (DOJ) during this period faced scrutiny for a perceived reduction in corporate criminal prosecutions and the imposition of fines, particularly in areas like Foreign Corrupt Practices Act (FCPA) violations and environmental crimes.

Environmental Protection Agency (EPA) enforcement actions, too, reportedly saw a decline, with fewer civil and criminal cases initiated and lower penalties imposed compared to previous administrations. This trend was often framed by the administration as fostering economic growth by reducing regulatory burdens, but it raised alarms among environmental groups and legal scholars concerned about the long-term impact on public health and natural resources. Similarly, consumer protection agencies and antitrust regulators faced challenges, with some critics alleging a less aggressive stance on corporate practices that could harm consumers or stifle competition.

Analyses from watchdog groups, academic institutions, and even some internal government reports frequently pointed to a discernible shift in federal enforcement priorities and outcomes during this period. For example, Public Citizen, a consumer advocacy organization, published reports detailing reductions in corporate penalties and prosecutions for a range of offenses. While the administration might have argued that its approach fostered economic dynamism, the prevailing sentiment in many legal circles was one of reduced deterrence, creating the "lawless time" scenario Strine described.

The Uncomfortable Questions: Clients and Counsel in a Permissive Environment

This perceived enforcement vacuum has led clients to pose deeply troubling questions to their corporate lawyers, challenging established norms of legal practice. Strine enumerated several such queries, revealing the ethical tightrope lawyers are forced to walk:

Client-Side Dilemmas:

• "Why should we worry about complying with the law as written when those charged with enforcing it have said they won’t?" This direct challenge questions the very incentive structure of compliance in an environment where enforcement is perceived as weak.
• "If we bring in [insert family member of an elected official] as a co-investor, can we tilt the regulatory process in our direction?" This question explicitly probes the boundaries of influence peddling and potential conflicts of interest, leveraging personal connections over merit.
• "Should we remind the proxy advisory firms that someone associated with our proposed transaction is close to [the administration of an elected official] and that its displeasure with them would grow if they recommended against our deal?" This scenario suggests using political affiliation to improperly influence independent advisory bodies.
• "Wouldn’t financing the transaction in part with a stable coin from a company affiliated with an elected official also be helpful in creating the right regulatory context for approval?" This illustrates a potentially corrupt use of novel financial instruments to curry favor.
• "Why is an antitrust agency asking us about our commitment to not discriminate against Black people, women, and others who have suffered de jure and de facto legal discrimination, and if we drop that commitment will it secure approval of our deal?" This insidious question highlights the potential for sacrificing social justice commitments in exchange for regulatory approval, reflecting a broader politicization of regulatory processes.
• "The [pick your favorite environmental statutes] require that we do the following things in siting, designing, constructing, and operating this new facility, but compliance has costs and why shouldn’t we just proceed without doing so because everyone knows that these laws are not being enforced?" This directly challenges the foundational purpose of environmental law, suggesting a willingness to bypass protective measures due to perceived impunity.

Counsel-Side Dilemmas:

These client queries inevitably lead to profound internal and external pressures on lawyers themselves:

• "We would have taken on this pro bono matter any other time, but if we do it right now, will government power target us for taking on a cause disfavored by [pick your elected official]?" This reveals the chilling effect on lawyers’ ability to provide pro bono services, a cornerstone of legal ethics, due to fear of political retaliation.
• "Should we allow our partners to sign on to amicus briefs in their personal capacity given the similar potential for blowback?" This extends the fear of retribution to individual lawyers expressing their views, potentially stifling free speech and academic freedom within the legal profession.
• "Our client is asking us to do something uncomfortable and not consistent with our prior view on the law, but aren’t all of our competitors in the same situation, and if we don’t do it, will we lose business to them?" This highlights the intense competitive pressure to compromise ethical standards, creating a "race to the bottom" scenario.
• "To what extent can we blind ourselves to concerning conduct by our client — such as what appears to be purposeful inducements to affiliates of key elected officials — designed to secure favorable governmental treatment, but for non-merit reasons, so long as we do not directly involve ourselves in it?" This question pushes the boundaries of complicity and the duty to investigate, suggesting a deliberate ignorance of potentially illicit activities.
• "If there is public disclosure of the fact that these affiliates were involved and on what basis, are we comfortable crafting an SEC filing that leaves out the controversial ‘why’ they were involved because that ‘why’ is arguably ‘immaterial’?" This probes the ethical limits of disclosure, particularly in SEC filings where materiality is paramount, hinting at a deliberate obfuscation of inconvenient truths.

The Enduring Debate: Lawyer-Citizen vs. Zealous Advocate

In confronting these dilemmas, Strine traces two competing conceptions of the lawyer’s role in society, advocating forcefully for one over the other.

The Traditional Lawyer-Citizen Model

This model, which Strine champions, is rooted in a high-minded view of the legal profession. It posits that lawyers, by virtue of their special privileges and their position as officers of the court, bear a corresponding duty to uphold the entire system of law. This responsibility transcends the immediate interests of a single client. Under this paradigm, a lawyer is not merely an advocate but a guardian of justice, bound to counsel clients toward full respect for both the letter and the spirit of the law. This involves guiding clients not only to avoid legal infractions but also to operate within the broader ethical and societal norms that underpin a functioning democracy. The "lawyer-citizen" is an integral part of the societal framework, dedicated to ensuring that the rule of law prevails.

The Zealous Advocate Model

In contrast, the "zealous advocate model" views lawyers primarily as professionals-for-hire, akin to any other service provider. While acknowledging that a lawyer cannot directly assist a client in committing a crime or fraud, this perspective often holds that it is permissible, or at least not a breach of professional conduct rules, for a lawyer to help a client engage in "illegal action that does not fit in these more serious categories." This model emphasizes aggressive representation of client interests within the bare minimum bounds of what is strictly forbidden, potentially pushing the envelope on what is considered ethical or in line with the spirit of the law. The focus here is on maximizing client advantage, often with less emphasis on the broader societal implications or the integrity of the legal system itself.

Strine unequivocally argues that the traditional lawyer-citizen model is the sounder approach, particularly for corporate lawyers. He stresses that lawyers possess "special privileges that rest on our acceptance of unique responsibilities to the rule of law." This responsibility is amplified for corporate lawyers, given the "existential" stakes involved when corporations, wielding vast influence, act lawlessly. For Strine, it is imperative that corporate lawyers and top corporate leaders collectively "stand their ground on a basic non-partisan proposition — we are a nation under law and the law should apply to everyone in an equal, non-discriminatory manner." This commitment forms the bedrock of a republican democracy and must be defended, regardless of shifting political winds or enforcement priorities.

Navigating the Ethical Quicksand: Strine’s "Yellow Flags" for Corporate Counsel

To assist lawyers and their clients in recognizing when they might be sliding into "legal, ethical and moral quicksand," Strine outlined a series of "forensic indicators" or "yellow flags" that should prompt "even greater professional caution." These practical guidelines serve as a robust framework for ethical decision-making in challenging times.

The Bipartisan Consensus Test:

• "Would the conduct have been considered illegal or improper under any administration of any party during the past two generations?" This asks lawyers to consider whether the proposed action would pass muster under a bipartisan consensus view of the law. If it would have been deemed illegal or improper historically, the follow-up question is crucial: "Is it only being considered now because of the perception that those currently entrusted with enforcing the law are not doing so, or will not do so against your particular client?" This flag directly addresses the core issue of a perceived enforcement vacuum.

The Concealment Indicator:

• "Does the proposed conduct involve the concealment of information, precisely because if that information would be disclosed, it would be considered controversial or potentially material to a regulator, a court, a stakeholder group with a legitimate interest in the matter, or the public?" This traditional "tell" of improper behavior highlights situations where transparency is deliberately avoided, suggesting an underlying impropriety that cannot withstand public scrutiny.

The Mirror Test and Consistency:

• "Is the conduct of a kind that you or even the client itself has in the past successfully argued was illegal or improper when engaged in by an adversary?" This challenges lawyers to examine their own past positions and consistency. If a firm or client has a "long-standing track record of believing that the proposed conduct was contrary to law and accepted commercial norms," a change in view requires a "good-faith and reasonable basis." This test forces introspection and intellectual honesty.

The Golden Rule of Ethics:

• "If the conduct your client is proposing to engage in were being done by the other side of a contested transaction, or was the product of counseling by a competitor law firm, what would you think of it?" Drawing on a long tradition of philosophical thinking from Jesus to Kant, this principle asks for universal applicability. If an adversary engaging in the same conduct would be deemed "objectionable and wrongful," especially if it disadvantaged the client or flouted public interest, then the implications for one’s own client’s actions must be carefully considered.

Non-Merit-Based Advantages:

• "The inclusion of co-investors, the provision of economic or other benefits to certain people, or the hiring of particular advisors, for reasons that have nothing to do with your client’s need for their capital, their business talent, or their merits-based expertise, but simply because doing so would help the client obtain an advantage in obtaining government approval or support for a legally impermissible reason." This flag points to "quizzical behavior" where the "obvious why" is that "something of personal benefit has been given to affiliates of those in power to ease the procurement of government action that should only be taken in compliance with law and for the benefit of the public." This speaks directly to potential corruption or undue influence.

The Gut Check:

• "You are well advised to listen when your guts are made queasy by proposed action or you come out of a meeting feeling like you want to take a shower." This catch-all indicator emphasizes the importance of a lawyer’s intuition and moral compass. While corporate and securities lawyers often resolve doubts in favor of the client, a visceral sense of discomfort usually signals that "your body is reminding you that your brain knows that something is happening that you do not feel proud to be a part of and for sound reasons." Listening to this internal warning can help lawyers provide sounder advice, limit client regret, and channel behavior toward lawful, high-integrity objectives.

Broader Implications for Corporate Governance and Public Trust

The implications of a perceived "lawless time" extend far beyond individual legal decisions. A sustained period of lax enforcement can fundamentally reshape corporate culture, potentially leading to a "race to the bottom" where companies that prioritize profit over compliance gain a competitive edge. This erosion of ethical standards can undermine public trust in both corporations and governmental institutions.

If corporations perceive that they can flout environmental regulations without consequence, the environmental health of communities suffers. If consumer protection laws are ignored, consumers are exploited. If foreign bribery is tolerated, the integrity of global markets is compromised, and American companies risk being outmaneuvered by less scrupulous competitors operating under different ethical codes.

Moreover, the absence of robust enforcement creates a challenging environment for ethical companies and their internal compliance departments. These entities might find it harder to justify the investment in comprehensive compliance programs if competitors are perceived to be cutting corners with impunity. Legal ethics experts often warn that such environments test the very foundations of professional responsibility, forcing lawyers to defend principles that might seem abstract against tangible competitive pressures. The long-term damage to corporate reputations, investor confidence, and the overall social license to operate could be severe.

Upholding the Rule of Law: A Call to Professional Courage

Despite the daunting challenges, Strine concludes his lecture on a note of tempered optimism and profound belief in the integrity of the legal profession. He acknowledges human imperfection, stating, "None of us will always be able to discern what is the right thing to do nor always have the courage to do it." However, he stresses that lapses are the "rare exception," not the rule, and must not be allowed to become more common through "atrophy that will come from a failure to exercise our moral muscle in this moment."

Strine points to the often-unseen work of corporate and securities lawyers who, on a daily basis, counsel clients to comply with the law, avoid "edgy law-skirting tactics," and listen to their "better angels." He highlights the "unfair conflict transactions that don’t happen, the initial, materially incomplete or misleading disclosure drafts that get corrected… and the product, workplace, or environmental safety shortcuts that are not taken" – all instances of averted harm that never make headlines. This unseen guidance, he argues, helps clients pursue profitable strategies through ethical means and fosters corporate cultures that respect stakeholders and societal laws.

In this "unprecedented, and hopefully fleeting moment," corporate legal advisors act as "important safeguards for the rule of law." Strine firmly asserts that the "uniquely difficult and unsavory pressures resulting from official departures from the principled adherence to the rule of law do not mean that the corporate and securities bar supports those departures nor that it is lightly bending to those pressures."

He issues a collective call to action: "It is critical that our profession acknowledge them openly and resolve to live up to our best traditions together." By collectively upholding law-respecting behavior, lawyers can reduce pressure on clients to stray from accepted legal and ethical norms. This collective effort, he contends, is a "genuine public service" that ensures corporations compete within society’s rules, contributing to genuine economic growth through innovation rather than "socially harmful externalities or concessions granted from elected officials and regulators for improper reasons, such as often happens in nations like Russia."

Strine’s powerful final statement resonates with patriotic fervor and a deep commitment to American ideals: "We are not Russia. We are way better than that. We are way stronger than that. We are the United States of America. A nation that competes on quality. A nation whose best attribute is a creedal commitment to the principled rule of law. A commitment that recognizes and celebrates the equality of each person before the law and where no person, regardless of office, is above the law."

He reminds the profession that corporations have been granted "citizenship of this nation under law on the explicit condition that they only do lawful business by lawful means." Therefore, "The law remains the law. No momentary officeholders can take that away from us. Because the law remains the law, so, therefore, does the duty of corporations to obey it."

In conclusion, Strine emphasizes the unique position of lawyers: "Those of us privileged to be their lawyers are uniquely positioned to make sure that American corporations honor their charters to society. Those of us privileged to be their lawyers are uniquely positioned to help our nation’s best traditions and fundamental premise survive this dangerous moment." His call to embrace the "citizen-lawyer" tradition is a powerful reminder of the solemn oaths taken by legal professionals and the profound duty they owe to their nation, their children, and their own consciences, especially "when our nation most needs our best."