‘I have not given a speech this year that doesn’t touch on the importance of the rule of law, our independent judiciary and our independent legal profession,’ says Michelle Behnke, who stepped into the role of American Bar Association (ABA) president last year.
‘I don’t think that most lawyers go into their office every day thinking that they had to actively defend and support these principles,’ she continues.
It has been an unprecedented year for the ABA. Last June, the association filed a suit to ‘halt government intimidation of lawyers and law firms,’ after US President Donald Trump earlier issued a slew of executive orders targeting a number of leading firms for their perceived political alliances.
The executive orders, which were issued between February and April, also took aim at firms’ diversity, equity, and inclusion (DEI) policies, and directly limited the business activities of those they targeted by terminating security clearances, severing government contracts, and limiting access to federal buildings.
While many firms struck controversial deals to rescind or avoid the orders, four – Perkins Coie, WilmerHale, Jenner & Block and Susman Godfrey – are in ongoing litigation against the US government, arguing the orders endanger the fundamental tenets of the adversarial justice system.
No bar to progress
Behnke has long been involved with the ABA, first joining as a member when she began her legal career and taking on her first leadership role as President of the State Bar of Wisconsin from 2004 to 2005.
At the time, she was a solo practitioner, focusing on real estate and estate planning. ‘I loved being a solo practitioner,’ she says. ‘You do everything from finding out how to generate clients and generate work, to doing the work to actually operating the practice itself.’
Behnke led her own practice from 1998 until 2024, when she moved to work at full-service Madison, Wisconsin-based firm Boardman Clark as a senior counsel, where she remains.
‘The idea is that everybody is entitled to representation’
While maintaining her successful private practice, Behnke also held a number of roles at the ABA, as treasurer from 2017 to 2020, and then as chair of the ABA Commission on Racial and Ethnic Diversity in the Profession, with earlier roles including a three-year stint on the association’s board of governors, as well as various committee and subcommittee chair roles.
On her decision to go into real estate law rather than litigation, Behnke says: ‘I had no stomach for it.’
She continues: ‘It wasn’t something I thought I was cut out for. The idea that somebody’s liberty was dependent on my ability to make a good argument was just more than I thought I could do on a daily basis and do well.’
Picking battles
While she may not have wanted to litigate in the courtroom herself, ensuring everyone, no matter their situation, has access to a fair and independent legal profession is the core principle that motivates her in her work as president of the ABA.
‘Our system is an adversarial system,’ she says. ‘It works best when you’ve got lawyers that are presenting each side. Lawyers having the ability to choose their clients or to represent various causes is really important. The idea is that everybody is entitled to representation.’
‘We felt it was necessary to file a suit against the administration’
As the country celebrates the 250th anniversary of the Declaration of Independence, the ABA is continuing with its intimidation suit against the Trump administration, after the Justice Department’s motion to dismiss was rejected at the beginning of April.
The ABA came to the decision to file the suit in ‘the quintessential way in which lawyers make decisions,’ says Behnke.
She explains: ‘We weighed both the pros and the cons and ultimately, we decided that it was important to stand up for our members, because if lawyers are being intimidated or punished for representing causes or people that the government doesn’t favor, our entire judicial system really suffers.’
‘It’s a very unusual step for the ABA, but we felt it was really necessary in order to support our system of government and our judicial system. We did not make this decision lightly.’
As she leads the ABA through one of the more turbulent periods in its nearly 150-year history, Behnke says she feels ‘fortunate to have my sleeves rolled up and to be supporting the profession and the rule of law at a really important moment.’
Back to the future
Many of the issues she and her peers were tackling when she first joined the association are those the group is still addressing today.
These include DEI, training the next cohort of younger lawyers and promoting wellness in the profession.
The association has made strides in fostering a more inclusive legal profession through initiatives like the ABA Diversity Centre, various committees and commissions and the ongoing work of the Commission on Racial and Ethnic Diversity in the Profession.
‘I am very proud of the work that we have done to make sure that we think about how to make our profession more inclusive, more welcoming, and that we value all of the experiences that different people bring to the practice of law, and we understand the importance of our profession being reflective of the people that we serve.’
‘The profession has an opportunity to lead in shaping the standards that emerge in technology. All change is not bad’
Newer areas occupying Behnke and the association include the rapid development and deployment of AI and how this is impacting the profession.
On this issue, Behnke states: ‘I believe the profession has an opportunity to lead in shaping the standards that emerge in technology. All change is not bad. We just have to figure out how to adapt.’
What is most important, she says, is to ‘hold on to the values that we know are really critical to the profession and critical to a sound justice system.’
As Behnke’s tenure comes to a close, she is still energised by the work the association does and what the future could bring: ‘One of the things that I learn – and keep learning – is that a group of lawyers who come together to try and solve a problem is a pretty amazing thing.’
