Oregon State Bar Bulletin January 2002

Legal Practice Tips: Officers of the Court
Another perspective
By Hon. Paul J. Libscomb & Jonathan Diehl

In his article, 'Officers of the Court' (August/September 2001, OSB Bulletin), OSB general counsel George A. Riemer argues that the term 'officers of the court' is merely a 'catch phrase,' which is 'very ambiguous in meaning' and is 'erroneous and confusing.' He goes so far as to suggest that '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.' Riemer suggests that lawyers do not have special ethical duties and responsibilities to the court, and further contends that the Code of Professional Responsibility is the real 'source' of lawyers' ethical duties, not their status as officers of the court.

We respectfully submit that George Riemer has inadvertently fallen into error. His view, although erroneous, is not altogether new. For example, a recent treatise describes a similar argument as follows:
It has been argued that this concept is a mere slogan, that the 'office' of an 'officer of the court' is single- mindedly to look to the interests of his client, ignoring all other concerns. In this view, a lawyer always serves the court by serving his client, relying on opposing 'officers' to counterbalance his presentation. The trouble with the exclusively client-centered approach is that it has no logical or moral stopping place. [Geoffrey C. Hazard, Jr., W. William Hodes, 1 The Law of Lawyering 29.2 (3d ed. 2001)]

The better view is that lawyers' status as officers of the court is both a primary source of their professional responsibilities and of their ethical duties as attorneys. Other ethical responsibilities, of course, flow directly from lawyers' professional relationships with their clients, but their role as officers of the court is clearly at least equally important as a source of lawyers' ethical responsibilities.

The U.S. Supreme Court itself has noted on more than one occasion that the very power of the courts to suspend or disbar attorneys derives from the lawyer's role as an officer of the court that granted admission. The Supreme Court has explained this relationship as follows:
As an officer of the court, a member of the bar enjoys singular powers that others do not possess; by virtue of admission, members of the bar share a kind of monopoly granted only to lawyers. Admission creates a license not only to advise and counsel clients but to appear in court and try cases; as an officer of the court, a lawyer can cause persons to drop their private affairs and be called as witnesses in court, and for depositions and other pretrial processes that, while subject to the ultimate control of the court, may be conducted outside courtrooms. The license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice. [In re Snyder, 472 U.S. 634, 644 (1985); see also ex parte Garland, 71 U.S. (4 Wall.) 333, 378-79 (1867)]

In Oregon, our legislature has explicitly designated lawyers as officers of the court by statute. ORS 9.010 provides in part: 'An attorney, admitted to practice in this state, is an officer of the court. . . .' Riemer argues that this legislative mandate has no practical effect because the statute does not go on to articulate any specific duties required of lawyers as officers of the court. The Oregon Supreme Court, however, has repeatedly found that their status as officers of the court imposes several specific duties on lawyers, as well as a more general responsibility to assist the court as necessary.

For example, in State v. Ogle, 297 Or. 84, 89, 682 P.2d 267 269 (1984), our supreme court stated that 'trial courts routinely require defense counsel to notify their clients of court appearance dates and defense counsel carry out this duty as officers and agents of the court.' The court clarified that '[w]hen an attorney notifies a client of a court date set for the client,' it is as an officer of the court, and 'not 'for the purpose of facilitating the rendition of professional legal services.' ' Id. (quoting OEC 503(2)). In State ex rel. Acocella, v. Allen, 288 Or. 175, 187, 604 P.2d 391, 398 (1979), our state supreme court elaborated that '[a]n attorney is an officer of the court and it would be a novelty to hold that a court could not appoint one of its officers to assist it in doing justice when it developed that the court could not do justice without the aid of such an officer.'
Other well-recognized duties of lawyers as officers of the court include:

Many, but not all, of a lawyer's responsibilities as an officer of the court have now been codified in the Oregon Code of Professional Responsibility as disciplinary rules, the violation of which is professional misconduct. But the Code of Professional Responsibility is a relatively recent modern invention. Courts and lawyers have been around for hundreds of years, and their professional relationships and ethical responsibilities developed gradually through the process of the common law. The recent codification of these professional responsibilities in the Code of Professional Responsibility does not transform the code into the source of those duties. In fact, the code's disciplinary rules set forth only the basest threshold of ethical conduct, the barest minimum which will avoid the threat of discipline.

Riemer's assertion that 'the code is the source of these [ethical] duties,' is somewhat akin to arguing that our criminal code is the source of our moral responsibilities as good citizens. Certainly as professionals we are normally expected to maintain higher ethical standards than those merely sufficient to avoid punishment.

The true source of our ethical responsibilities as attorneys is our proud common law heritage and its rich traditions. This heritage has allowed our professional duties to evolve as a natural outgrowth of our professional relationships with both our clients and our courts. Accordingly, attorneys' professional stature as 'officers of the court' remains an important and defining part of who we are today.

ABOUT THE AUTHOR
The Hon. Paul J. Lipscomb is presiding judge of the Marion County Circuit Court. Jonathan Diehl is a law clerk at the Marion County Circuit Court; he graduated from the Arizona State University College of Law in 2000 and is a member of the state bars of both Oregon and Arizona.

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