Bar Counsel

Officers of the Court

What does it mean?

We frequently hear the expression that lawyers are 'officers of the court.' The implication is that lawyers have special, ethical responsibilities as a result of this status and that failing to meet these responsibilities can result in the imposition of sanctions by the offended court or discipline by the state bar. Most Oregon lawyers are not 'officers of the court' in the sense of being employees of the Judicial Department or particular counties. Some may be if they serve as a court clerk, bailiff or other official in the Judicial Department. See ORS 1.025 (Duty of court and court officers to require performance of duties relating to administration of justice; enforcement of duty by mandamus). The statement that lawyers are as a general proposition 'officers of the court' is very ambiguous in meaning and gets in the way of understanding the source and scope of the ethical duties of lawyers. Cf. 37 Op Atty Gen 1251 (1976) ('This office [Oregon Attorney General] has recognized the limitations involved in characterizing an attorney as an 'officer of the court.' ')

Charles W. Wolfram in Modern Legal Ethics (West Pub. Co. 1986) indicates, at page 17, that the origins of the 'officer of the court' title are obscure, but appear to derive from the practice in older English courts that required a litigant to appear in court in the company of a court-appointed clerk in addition to a privately retained solicitor. Wolfram notes that the role of these court-appointed clerks appears to have been limited largely to that of collecting their fees. Wolfram notes that 'For the most part, the phrase [officer of the court] is merely suggestive of the close working relationship between judges and traditional court-room practitioners and today lacks much definitive significance in the law.' Modern Legal Ethics, supra, at 17.

The notion that as 'officers of the court' lawyers have special, ethical responsibilities is a difficult one to dispel. First, most lawyers and judges probably assume that the title 'officer of the court' must have some substantive legal meaning because ORS 9.010(1) says Oregon lawyers are 'officers of the court.' Second, 'officer of the court' suggests special status and privilege and most everyone doesn't mind having more status and privilege rather than less.

The state bar has in some sense helped perpetuate the notion that as 'officers of the court' lawyers have special ethical duties. The Oregon State Bar Statement of Professionalism states, in part, as follows: 'In our roles as officers of the court, as counselors, and as advocates, we aspire to a professional standard of conduct,' and, 'As officers of the court, we will promote the integrity, dignity, independent judgment, effectiveness, and efficiency of the legal profession.' Certainly, there is nothing wrong with aspiring to a professional standard of conduct or promoting the high ideals of integrity, dignity, independent judgment and the like. On the other hand, basing these aspirations on the status of lawyers as 'officers of the court' suggests this status requires such conduct.

ORS 9.250 requires new Oregon lawyers to take an oath of office upon admission to the practice of law in Oregon. ORS 9.250(2) provides that 'The applicant shall execute a written oath that in the practice of law the applicant will support the Constitution and laws of the United States and of this state, and be of faithful and honest demeanor in office.' I believe the office referred to in this statute is the office of attorney, not that of an officer of the court. The Oath of Office for Admission to the Practice of Law in Oregon states as follows: 'That I will faithfully and honestly conduct myself in the office of an attorney in the courts of the State of Oregon; that I will observe and abide by the Code of Professional Responsibility approved by the Supreme Court of the State of Oregon; and that I will support the Constitution and laws of the United States and of the State of Oregon.' Note the reference to 'the office of an attorney.'

As previously mentioned, ORS 9.010(1) states, in part, 'An attorney, admitted to practice in this state, is an officer of the court.' That such is stated in ORS Chapter 9 does not transform lawyers into officers of the court in any particular legal sense as no statute describes the duties of lawyers as 'officers of the court.'

In Oregon, lawyer disciplinary rules are adopted using a three-step process. The board of governors of the state bar is charged with the duty of formulating appropriate rules of professional conduct for bar members. Once formulated by the board, they must be submitted to the Oregon State Bar House of Delegates for approval. If approved by the House of Delegates, the rules are then submitted to the Oregon Supreme Court. If adopted by the Supreme Court, the board has the power to enforce the rules, which are binding on all members of the bar. See ORS 9.490(1).

Whatever can be said about the 'inherent power' of the Oregon Supreme Court to regulate the legal profession in this state (See ORS 9.529), it is well established that the legislature can also exercise its police power to impose regulations on the profession. ORS Chapter 9 contains several provisions that impose duties on lawyers on penalty of discipline. For example, ORS 9.527 states that the supreme court may disbar, suspend or reprimand a member of the bar for a variety of misdeeds including: 'wilfully disobey[ing] an order of a court requiring the member to do or forbear an act connected with the legal profession;' 'wilful deceit or misconduct in the legal profession;' and 'violat[ing] any of the provisions of the rules of professional conduct adopted pursuant to ORS 9.490.' No where in the statutory provisions governing the conduct of lawyers in ORS Chapter 9 is any statement of the duties of lawyers as 'officers of the court.'

Where does the foregoing leave us? Lawyers really aren't 'officers of the court' for purposes of being disciplined for violating rules of conduct specifically applicable to 'officers of the court.' I believe we should discontinue using the phrase as it suggests all lawyers are agents of the courts and judges and have ethical duties to the courts and judges as a result. Lawyers have many duties, but they arise from the exercise of the police and judicial powers of the state as conditions of their receiving licenses to practice law from the State of Oregon through the Oregon Supreme Court. See ORS 9.250. Various ethical duties do not spring forth by operation of law by use of the phrase 'officers of the court' in reference to lawyers. The Code of Professional Responsibility imposes a considerable number of ethical duties on lawyers, including duties to the courts and judges, but the code is the source of these duties, not the unadorned statutory pronouncement that Oregon lawyers are 'officers of the court.'

As noted by Professor Monroe Freedman in Understanding Lawyers' Ethics (Matthew Bender 1990), at page 16, 'Under the American adversary system, a trial is not 'conflictless,' because the [private] lawyer is not the agent or servant of the state. Rather, the lawyer is the client's 'champion against a hostile world' - the client's zealous advocate against the government itself.' Lawyers representing both public and private clients must obey the ethics rules imposed by law in representing them. The notion that they also have ethical duties to courts and judges as 'officers of the court' is erroneous and confusing. I believe that dropping our reliance on this catch phrase will help clarify the true role and ethical duties of lawyers. +