So Help Me God
| Publication year | 2019 |
| Pages | 56 |
November, 2019
Introduction
Lawyers are accorded a very special place in society. While often the subject of jokes and derision, lawyers are the first people called when clients encounter legal difficulties and need help. Only lawyers may represent clients in court and in a wide array of other settings, and lawyers and their clients are given the protection of their privileged communications.
But as obligations accompany rights, the privileges given to lawyers carry with them certain well-defined obligations. The very first obligation which every lawyer takes on is the oath of admission, a solemn promise to fulfill the very special duties and obligations imposed on lawyers in I exchange for the privilege of practicing this profession.
A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. . . . A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.[1]
The purpose of this article is to review the specific obligations undertaken by each lawyer in the oath of admission and to express the hope that each lawyer will review and renew the obligations undertaken in that oath.
A Special Privilege
As the Kansas Supreme Court has cogently stated, "The practice of law is a privilege rather than a right,"[2] and the holders of this privilege should carefully guard and maintain it. Other courts have uniformly so held. "The practice of law is a privilege and not a vested right."[3] Indeed, "The generous trust and broad confidence of the public ought to prompt the most scrupulous conduct in every professional relation" of a lawyer.[4]
As the Mississippi Supreme Court has succinctly noted:
The practice of law is a privilege, not a property right, and a revocable privilege at that." Mississippi State Bar v. Young, 509 So.2d 210, 219 (Miss. 1987) (citing Levi v. Mississippi State Bar, 436 So.2d 781, 786 (Miss. 1983).[5]
And the Oregon Supreme Court held nearly a century ago:
The right to engage in the practice of law is a privilege conferred or withheld, in accordance with the general policy of the state expressed by statutory enactment." In re Application of Jesse Crum, 103 Or. 296, 204 P. 948, 949 [1922]. Further, as said in 6 C.J. p. 569, § 11, "the right to practice law is not a natural or constitutional right, but is a privilege or franchise subject to the control of the legislature, and limited to persons of good moral character with special qualifications ascertained and certified as prescribed by law.[6]
Before being allowed to practice, a lawyer is required to complete specialized and advanced education,[7] meet standards for admission, including standards of moral character and mental and emotional fitness,[8] take and pass a rigorous examination,[9] and then take the oath.[10]
In order for an applicant to establish eligibility to sit for the bar examination in the State of Kansas, the applicant must comply with the educational requirements and prove that the applicant possesses the requisite good moral character and current mental and emotional fitness to engage in the active and continuous practice of law.[11]
Upon passing the bar examination, the lawyer must take the oath of admission in order to practice law, discussed in more detail below.
Then, once admitted to practice upon taking the oath, each lawyer is subject to the jurisdiction of the Kansas Supreme Court, which exercises authority over the lawyer,[12] including the power to discipline misconduct under the Kansas Rules of Professional Conduct (KRPC).[13]
The certificate of the lawyer's admission to practice is representative of the lawyer's qualifications and satisfaction of the foregoing requirements, and upon it "the public has a right to rely, and to presume its holder to be a person of integrity and honor."[14]
The public has a right to rely upon this court to maintain the integrity of the [legal] profession, to further the administration of justice, and ultimately to protect the clients of . . . lawyers. We have the responsibility to discipline lawyers whose conduct fails to meet the high standards that this court requires.[15]
The Lawyer's Oath of Admission
As noted, upon successful completion of the bar examination, every lawyer in the State of Kansas has taken the oath, set out (as amended over the years) in the form set out at Kansas Supreme Court Rule 720:
You do solemnly swear or affirm that you will support and bear true allegiance to the Constitution of the United States and the Constitution of the State of Kansas; that you will neither delay nor deny the rights of any person through malice, for lucre, or from any unworthy desire; that you will not knowingly foster or promote, or give your assent to any fraudulent, groundless or unjust suit; that you will neither do, nor consent to the doing of any falsehood in court; and that you will discharge your duties as an attorney and counselor of the Supreme Court and all other courts of the State of Kansas with fidelity both to the Court and to your cause, and to the best of your knowledge and ability. So help you God.[16]
Violation of this oath by an attorney represents misconduct and subjects the attorney to discipline.[17]
Regarding discipline of attorneys, Kansas Supreme Court Rule 201(a) (2017 Kan. S.Ct. R. 233) subjects "[a]ny attorney admitted to practice law in this state . . . to the jurisdiction of the Supreme Court and the authority hereinafter established by these Rules." Kansas Supreme Court Rule 202 (2017 Kan. S.Ct. R. 233) explains the scope of this court's disciplinary power by stating: "Acts or omissions by an attorney . . . which violate the attorney's oath of office or the disciplinary rules of the Supreme Court shall constitute misconduct and shall be grounds for discipline, whether or not the acts or omissions occurred in the course of an attorney client relationship."[18]
The power of the Court to disbar a lawyer for violation of this oath is an ancient one. In 1835, the Pennsylvania Supreme Court held:
It is not doubted that any breach of the official oath is a valid cause, for proceeding for the former [disbarment]; for the man who deliberately violates the sanctions of a lawful oath, proves himself to be unworthy of further confidence; society has no other hold on him. The most insignificant breach of the fidelity enjoined may, therefore, be visited with this measure.[19]
Consider these harsh words from the Kansas Supreme Court in discussing a lawyer's duties undertaken in his oath of admission:
To me the oath of an attorney means something....I have never had much patience with the attitude of an attorney who evidently has studied law for the purpose of seeing the extent to which he himself can evade it, or advise his clients to do so. Considering this case and the history of defendant's admission to the bar, which is well known to this court, I am convinced that the oath of an attorney does not mean much to him. Until it does he would better occupy his time at some other vocation.[20]
Indeed, the lawyer's oath of admission should be a talisman to guide the lawyer's conduct as a lawyer and as a citizen.
And neither do we consider it necessary to write a treatise on the subject of professional ethics and grounds for disbarment in this state. Those matters are, or should be, well known to every member of the profession. We know of no better guidepost or authority on the subject than the wording of the oath, G.S.1949, 7-122, Supreme Court Rule No. 41, require[d] of every Applicant for admission to the bar, and the Canons of Professional Ethics found at 164 Kan. XI.[21]
This article will explore each important clause of this oath with the hope that each lawyer will review the oath and renew a commitment to fulfill it.
"Solemnly swear or affirm"
One who undertakes an oath or affidavit does so with the knowledge that s/he is obligated to tell the truth.[22] Thus, while most lawyers excitedly view the oath as a mere formality -- the last step before officially becoming a lawyer -- the oath is in fact a serious one, not to be taken lightly.
All lawyers take an oath upon their admission to the bar. The oath is a solemn promise of competent and ethical conduct, which dates back to the beginnings of the legal profession. It is a venerable "tradition in both form and substance."[23]
Another court has observed:
An attorney's oath on admission puts him under the solemn obligation to delay no cause for lucre or malice. He is put under equally binding obligation faithfully to serve his clients to the best of his ability. That implies that he shall have an equipment of learning and ability that will enable him to serve clients as they reasonably expect to be served.[24]
"Support and bear true allegiance to the Constitution of the United States and the Constitution of the State of Kansas"
Supporting and defending the federal and state constitutions are central to a lawyer's obligations as the standard-bearer for justice, as they have been for many years.
But it may be asked, if an attorney is not an officer elected or appointed, within the meaning of said act, how is it that he is required to take the oaths to support the constitution of the United States and of this State? It is answered that by the 3rd section of chapter 164, Code of 1860, every attorney is required to take the oath of fidelity to the...
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