Officers of the Court
What does it mean?
By George A. Riemer
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
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.
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.
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
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
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.'
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).
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.'
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
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. +
ABOUT THE AUTHOR
George A. Riemer is deputy director and general counsel of the Oregon State Bar. He can be reached at (503) 620-0222, ext. 405 or by e-mail at email@example.com.
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