Oathiness

The Law Society of Upper Canada, which regulates Ontario lawyers, has just approved a new oath to be sworn by newly admitted lawyers.  The new oath extends to some 8 clauses, including a requirement that the lawyer shall "in all things" conduct herself "honestly and with integrity and civility."  I have my substantive concerns with the inclusion of civility as something a lawyer swears to do (and on civility as a professional objective in general: here). But the debate around this oath also provoked some thought on the whole issue of oath taking as significant (or not) in thinking about lawyer ethics.  What does an oath to "strictly observe and uphold the ethical standards that govern my profession" add to how a lawyer makes decisions?  It might create a culture in which ethical behaviour is viewed as more normatively significant.  It might, by adding the dimension of "promise keeping", add some heft to ethical obligations.  But I would have thought that the substantive moral obligations ultimately need to be sufficient in and of themselves.  If they are not, how does the oath help?  And if they are, the sworn oath becomes little more than an exclamation point on the existing obligations that bind lawyers.  And what about a conflict between the oath and the lawyer's subsequent assessment of what the ethical rules require of her?  Does/should an oath - e.g., of civility - temper the lawyer's assessment of what the rules would otherwise require?

An ironic (to me) footnote in all of this is that the report on the oath in Lawyer's Weekly (June 12, 2009, not available on line, unfortunately) mainly concerned itself with objections in the profession to lawyers and paralegals swearing the same oath.  Apparently sole practitioners and small firm lawyers in Southwestern Ontario "were vehemently opposed to having the same oaths for lawyers and paralegals, arguing that only lawyers are professionals who are called to the Bar".  What does that say about the role of oath taking?  Exclamation mark on professionalism or substantive alteration of ethical obligations?

Comments

[john steele]

Alice,

Do you recall the name of the professor who has written a series of law review articles on the history of lawyer oaths? I am trying to find her name but it's escaping me right now. I find the history fascinating. My general sense, perhaps incorrect, is that the oaths were far more significant when before codes and hence today oaths should be more ceremonial and less substantive.

As you may know, the story is often told that in California we took a lawyer's oath and dropped it into the State Bar Act -- which has caused all sorts of confusion over the decades. The mixing of centuries-old poetic rhetoric and modern regulatory text almost jumps off the page when you read Cal Bus & Prof Code section 6068. Our oath was a common one. It was the one that Field translated from French, I believe, and was appended to the Field Code, and from there was added to the ABA Canons as the lawyer oath.

[Monroe Freedman]

When I was sworn into the NY bar with several dozen others, the presiding judge had all of us swear that we had both read the NY Rules of Professional Responsibility and understood them. I might well have been the only one in the room, including the judges, who had actually read the rules, but I perjured myself, along with everyone else, in swearing that I understood them.

Interesting procedure, to start lawyers' membership in the bar with coerced perjury.

[Doug Richmond]

Prof. Carol Rice Andrews just published an article on lawyers' oaths in the last issue of the Georgetown Journal of Legal Ethics.

[john steele]

Doug,

Thanks. Prof Andrews is who I was thinking of.

[Brad Wendel]

I may only be agreeing with Alice's point that the underlying substantive obligations may be sufficient without the oath, but I have to confess a bit of puzzlement about oaths in general. Maybe it's a generational thing, but I've never found oath-taking to be a particularly solemn event, while more experienced lawyers are often quite impressed with oaths. I was giving a presentation once about teaching legal ethics, how hard it is to change the values of students (who after all are adults), etc., when a senior member of the audience shot up his hand and said, "Why don't you make 'em take an oath?" I replied, "huh?" and he repeated, "an OATH!" So I get that people take oaths seriously -- I just don't know why.

I'll hide behind authority for a moment and cite Kent Greenawalt's excellent book, Conflicts of Law and Morality, which makes a point I've always found persuasive: if we understand the obligating power of oaths along the lines of promissory obligations, then there are certain conditions that have to be met in order for the voluntary act (the oath or the promise) to create a genuine obligation. A promise or oath has to be voluntary in order to create obligations, and if admission to practice is conditioned upon taking an oath, then it seems that the oath is given under compulsion. (Supreme Court cases such as Wadmond confirm that taking an oath can be a condition for admission to practice.) As Greenawalt points out, the oath is not truly given under duress, since no one has to embark on a course of study leading to admission to practice law: "[T]he practice of a profession is a kind of privilege. One has ample warning what is expected when one embarks on training for it." Okay, but the key here seems to be "what is expected" -- that is, the reason we as a society expect lawyers to comply with certain obligations is that we have granted the legal profession the privilege of exercising certain powers, and in exchange we are entitled to expect that lawyers behave responsibly. In other words, the obligating force of professional ethical norms comes not from the oath but from something more like Rawlsian natural duties. Maybe I'm just repeating what Alice said, but I don't see how taking an oath adds to the duties of lawyers whose force can be understood in other ways.

At Doug's suggestion, I quickly looked at Prof. Rice's article in the GJLE. She rightly points out that oaths can have non-regulatory functions, such as reminding lawyers of the content of their obligations -- "to highlight and convey ethical concepts." That's reasonable enough if, as Prof. Rice points out, the text of oaths are comprehensible to new lawyers and the obligations imposed by the oath do not contradict obligations imposed elsewhere in the rules (as in the provision of the old ABA oath to support only just causes). If oaths have only a reminder function, however, it's hard to understand why people get so worked up about them. There are other ways to remind lawyers of their obligations, including CLE's and bar journal articles, yet hardly anyone argues for doing more of that stuff -- the literature about CLE's, for example, is mostly a critique of their ineffectiveness.

In the end, I remain puzzled by the view that oaths are meaningful.

[Monroe Freedman]

Someone more knowledgeable than I, Like Sam Levine or Russ Pierce, might have an interesting contribution to make about Kol Nidre and compelled oaths.