Still Not A Lawyer, Part 2 – Let’s Talk About The Oath

Welcome back to another bright and sunny day here on Lawyers & Liquor, where the coffee is as black as my twisted heart and the stress is as overbearing as your mother asking when you’re going to settle down and find a nice boy or girl to share the joy of your life with. I’m the matzo-loving litigator, the Boozy Barrister, and today we’re going to continue our discussion of all the things that have to happen after you pass the bar exam. That’s right, we have another day of celebrating the professional celibacy, or, if you’re caught up in the character and fitness portion of this whole mess, legal cuckolding that is the newly admitted baby lawyer. Be you the recent admission with the ink still drying on your license or the gritty old attorney slowly aging into irrelevance, we here at Lawyers & Liquor believe that you, too, deserve to be roundly lambasted and lectured about the poor life decisions you, personally, have made to lead you to this point.

You may recall that last time we discussed the simple fact that even with the board of bar examiners saying you are minimally competent to practice law on the basis of a few essay questions and filling in the right bubbles here and there, that doesn’t make you an attorney until you’re actually admittedto the practice of law. And, as we talked then, the admission to the practice of law is more than a mere formality, because it involved shit like the Character and Fitness examiners digging deep into your sordid little past of keg stands, requiring you to supplement anything their darkened little souls require. It’s a form of legal confession, except you don’t just think the person hearing your confession may be jerking off, you know they probably are, and there’s no penance for the past in the majority of cases. But whilst you wait for the cabal of legalistic proctologists of the profession to finish snapping on their rubber gloves and just getting elbow deep all up in your shit, there’s something else you can start considering on the assumption that everything will turn out okay, and that’s when are you going to take your oath and become a lawyer.

Because lawyers? We not only fucking swear, we are sworn as well.

What’s This Oath Shit?

Every attorney in the United States will swear some sort of oath of office when they pass the bar exam. For instance, in my jurisdiction my oath goes something like this:

I do solemnly swear that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity, as well as to the court as to the client, that I will use no falsehood, nor delay the cause of any person for lucre or malice. 

42 Pa.C.S.A.  Section 2522

While the concept of swearing oaths for lawyers may seem somewhat old-fashioned, and, indeed, many people will read it and say “Yeah, I swore an oath too back in elementary school to never use drugs.  It was in D.A.R.E. Now pass the fucking dutchie to the left hand side, bro,” the attorney oath is somewhat different.  See, lawyers are not just members of a profession, but we are, at least in my jurisdiction, admitted officers of the court. 

In fact, in the statutes that regulate the practice of law in my jurisdiction, there is not one place where the position of “attorney” is referred to as a job, a profession, a specialty, etc. It is, instead, consistently referred to as an “office,” much like that of your elected officials. Again, if we take a look at the Pennsylvania statutes regulating the representation of litigants in this Commonwealth, we see it actually specifically identified as an “office,” not a position or profession, in the terms of the law itself.

Persons admitted to the bar of the courts of this Commonwealth and to practice law pursuant to general rules shall thereby hold the office of attorney at law.

42 Pa. C.S.A. 2521

Attorneys are Not Subject To The Legislature – A.H. Garland, Oathbreaker

That’s a pretty good question, and while there are opinions out there that private attorneys are not “officers of the court” and are, instead, part of a profession focused on making a profit, such opinions ignore the fact that no less authority than the Supreme Court of the United States has had occasion to weigh in on the meaning in relation to sworn members of the bar.

In the fallout from the American Civil War, there were a number of laws passed not only with an eye at recovering from the rebellion of the southern states, but also in restricting the people that had participated in an armed insurrection from likewise participating in the administration of the government thereafter.  In 1865, this led to an act of Congress that explicitly prohibited anybody who had borne arms under the Confederacy from being admitted to the practice of law in any of the federal courts, and especially from practicing law before the Supreme Court of the United States, unless they could take an additional oath that they had never voluntarily borne arms against the United States nor voluntarily assisted others in doing so.  It’s like oaths all the way down on this one.

Given that in this time period in place, “lawyer” was a pretty common profession for the landed gentry of the south, the result of this prohibition was, in theory, a complete bar to practice for any of those people who had assisted in an armed rebellion.  Which brings us to A.H. Garland, Esquire, an attorney and insurrectionist who, though admitted to practice before SCOTUS in 1865, was thereafter a willing participant on the losing side of the conflict which arose from 1861-1865, and therefore, after 1865, barred from representing clients or otherwise taking any part in the determination of cases before any federal court as a result of the aforementioned act.

Which, you know, armed insurrection against a government that you’ve sworn an oath to defend the constitution of is probably grounds for disbarment in the first fucking place, so I can’t exactly say I’m in a horrible amount of disagreement.  If tomorrow I started proposing we overthrow the United States government then armed myself and raised an army to do so, I think the government and the bar would have some decent cause to doubt my dedication to the oaths and responsibilities I’ve already undertaken.  That’s just me talking, though. And, in 1866 the feeling in the country was already starting to swing back to welcoming the former confederates back into public life and professional life in the spirit of reconciliation and rebuilding.

Which may explain why, in 1866, when Garland sued for the right to be re-admitted to the bar of the Supreme Court, the court in a case entitled Ex Parte Garland, 71 U.S. 333 (1866), explicitly said “Naw, fuck that shit, he can start being a lawyer again regardless of what Congress says.”  While the basis for the determination was actually based in the longstanding principle of “no ex post facto” (or “You can’t punish someone for something that wasn’t a crime when they did it”), it dug into the definition of an attorney’s role and the role of the attorney’s oath of office in relation to the court system, and actually clarified the definition of an attorney as an “officer of the court.”

The profession of an attorney and counselor is not like an office created by an act of Congress, which depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution. Attorneys and counselors are not officers of the United States; they are not elected or appointed in the manner prescribed by the Constitution for the election and appointment of such officers. They are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character. . . The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counselors, and are entitled to appear as such and conduct causes therein. From its entry, the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded.

Ex Parte Garland, 71 U.S. at 378.

The attorney and counselor, being by the solemn judicial act of the court clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors and to argue causes is something more than a mere indulgence, revocable at the pleasure of the court or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court for moral or professional delinquency.

Id. at 379.

In short, when read in conjunction, it is clear that what is meant by “officer of the court” in the context of an attorney is that an attorney, once admitted and sworn to the practice of law, is now beholden to the court for the continued ability to practice law. We are, in essence, officers of the court in that we are admitted at the discretion of the court and only upon a showing of fitness and ability to practice law, what is in the modern time the Bar Exam and the Character and Fitness investigations. The court, not the Congress, bears the responsibility for not only the admission of the attorney, but also the supervision of such an attorney and to determine if the attorney retains, throughout their practice, the requisite skill, diligence, and ethical ability to remain in the practice of law.

In essence, then, the role of even a private attorney is not that of a “court officer,” but an office that is held upon oath and admission at the leisure and contingent upon the continued approval of the court to which we are admitted. Even then, however, once conferred we cannot be removed from our offices except for good cause, and only then after a hearing with sufficient evidence – something called disbarment – so long as we otherwise comport ourselves with the responsibilities and ethics of our offices. Further, even if we are to be removed from office, it cannot be because of an act of a legislature that does so, as we are not officers of the legislature or the government itself.  Our office is solely within the purview of the courts, and therefore our removal from the office must be a judicial, and not legislative, act!

Neat, huh?

What importance does the oath have?

It’s a vestigial pomp and circumstance that has become outdated and ineffective for everything but ceremonial purposes, for the most part.  So…it has really no practical importance.

The attorney oath is, essentially, a swearing of the attorney to the court that they will abide by those principles. These are statements made by an attorney to the court, which are affirmations of our duties and roles as counselors and…well, let’s just be honest here, submitting ourselves to the disciplinary authority to the court.  But at the same time, is it really necessary at this point in time to say “You must say these special magical words or otherwise you cannot become an attorney?” We already, by pure virtue of entry into the profession, submit to the disciplinary oversight of the court as well as become bound by the ethical duties and professional responsibilities mandated by our bar.  At what point does the oath become important in that? 

Because the oath, you little sacrilege supporters, is fucking everything when it comes to understanding the responsibility of the profession of practicing law.  It is the promise, not just to yourself and to the court, but to all of those that come into your office, that you will diligently serve the cause of your client and do so ethically and in accordance with the law.  It is a testimony to the court and to the profession that you will uphold and defend the constitution, and more than that, that you will not engage in disreputable conduct in the practice of law or abuse your position.  As Stephen C. O’neil stated in his paper “The History of the Lawyer’s Oath:”

This ceremonial pledge is an ancient tradition, signifying the importance of the profession and a lawyer’s obligation to the truth.

O’Neil, History of the Lawyer’s Oath, 5 Mass. Legal Hist. 91 (1999).

So the practical effect of the lawyer’s oath of office is?

I mean…it’s a really neat sounding saying, isn’t it? That’s pretty kickass, right?

In practicality, the oath of office has very little, if any, legal effect today other than to remind lawyers what they are swearing to do upon entry into the profession and placing a method of reminding attorneys of this as they are entering into the profession of a particular bar.  All of the violations of the oath that, at one time, may have been actionable have now been consumed by the modern Rules of Professional Conduct, and are part of the practice’s obligations independent of the oath itself.  The oath, which at one time historically served to bar the admission of an unfit attorney and, if they were admitted, to facilitate their removal from practice by showing they had entered into it under false pretenses or have flagrantly disregarded the responsibility of the office, is now nothing more than rote words that describe the office.  We intone them in a serious manner, aware that it is merely a procedural step to becoming lawyers.

But goddamn is that shit impressive sometimes.  And maybe that’s the importance of the oath of office – that in many areas you swear it before the court.  A judge administers it to you, dressed in the vestments of his or her office, and it is read into the official court record.  Another attorney stands by your side to move you for admission into the court, and you swear this oath before them.  In some places, it has even been turned into a formal ceremony before the state Supreme Court with a reception to follow afterwards, and is a really impressive deal.  I know when I went to my ceremonial swearing in, I was sworn in by a mentor who was a sitting state Supreme Court justice at the time.  It was a really impressive thing, even if I had already been admitted to the bar at that time.

Wait.  The Oath is PART of becoming a lawyer so how did…

Oh yeah, I had been sworn in like two months earlier, the day after I got my character and fitness clearance and bar admission letter.  In Pennsylvania, the requirement to be sworn to the state bar in court had been removed years ago and now only required that you swear the oath in front of an appropriate officer and have them sign a piece of paper saying you did so.  I guess the idea was to get the lawyers in as fast as possible.  And, at the time of my admission to the bar I was working in a car dealership.  So the day after my letter came in the mail with all the paperwork, I went in to the dealership early and was sworn in by the notary who ran the business office – certainly a first for that car dealership.

Then I went and sold a Ford Fiesta to someone.

A couple months later, well after I’d already started practicing, I went to a ceremonial swearing in, mostly for the free refreshments afterwards and in part for the picture of my mentor swearing me in.  But by that point I’d already been admitted to the bar for months and practicing law.  It was a whole thing.  A couple months later, though, I had to be admitted to the Federal Bar for my District, and that did require actually going into open court and swearing the oath for the federal courts to the judge with another lawyer by my side who moved for my admission.


Yeah. I know.  By the way, that Ford Fiesta? I sold that shit for full boat.  It was a nice month on that commission check.

Anything else?

Did you know that attorneys in Kentucky still have to swear in the oath they’ve never been in a duel?  That’s pretty kickass, right?

You should have led with that.

Probably.  But then we wouldn’t have gotten to talk about the cool fact that our modern attorney oaths are holdovers of the principle that we are officers of the court, admitted to the practice of law at the discretion of the judiciary and beholden to ethical and professional standards to maintain that ability to practice, would we?

This, by the way, is why lawyers can be convicted of crimes and not disbarred.  Our ability to practice rests with the court, not the legislature.  And committing some crimes may not be sufficient to call into question the honor and competence of a person as an attorney, even if they’re shitty outside of that.

Well, that’s all of my disjointed ramblings for this week.  I’ll see you Friday for Freaky Friday here on Lawyers & Liquor, and until then keep your asses wiped, you little skidmarks.