Human Rights and Lawyer's Oaths

• Author: Lauren E. Bartlett
• Position: Associate Clinical Professor of Law and Director of the Human Rights at Home Litigation Clinic at St. Louis University School of Law
• Pages: 411-467

Human Rights and Lawyer’s Oaths

LAUREN E. BARTLETT*

ABSTRACT

Each lawyer in the United States must take an oath to be licensed to practice

law. The first time a lawyer takes this oath is usually a momentous occasion in

their career, marked by ceremony and celebration. Yet, many lawyer’s oaths

today are unremarkable and irrelevant to modern law practice at best, and at

worst, inappropriate, discriminatory, and obsolete. Drawing on a fifty-state sur-

vey of lawyer’s oaths in the United States, this Article argues that it is past time

to update lawyer’s oaths in the United States and suggests drawing on human

rights to make lawyer’s oaths more accessible and impactful.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413

I. THE LAWYER’S OATH: A TOOL TO BUILD A DIGNIFIED,

RESPECTFUL AND INCLUSIVE LEGAL PROFESSION . . . . . . . . . . 415

A. OATHS CAN PROMOTE ETHICAL GUIDANCE AND MORAL

ASPIRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416

B. OATHS CAN EMPHASIZE THE LAWYER’S ROLE AS A

PUBLIC CITIZEN WITH DUTIES TOWARDS THE PUBLIC

GOOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418

C. OATHS AS “CONTRACTS” THAT BIND THE LAWYER’S

CONSCIENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418

D. LAWYER’S OATHS CAN PROMOTE UNIFORMITY IN THE

LEGAL PROFESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419

* Associate Clinical Professor of Law and Director of the Human Rights at Home Litigation Clinic at St.

Louis University School of Law. © 2023, Lauren E. Bartlett. Thank you to Chris Hegwood, Anezka Krobot,

Khala Turner, Kristopher Lowe, Desirae Bedford, and Elizabeth Davenport for research assistance, and to

Professors Yvette Liebesman and Jonathan E. Soeharno for providing helpful feedback. I would also like to

thank the participants at the January 2019 New Voices in Human Rights and International Law Session at

AALS in New Orleans, February 2021 faculty workshop for the University of Missouri-Kansas City School of

Law, and August 2022 International Legal Ethics Conference for helpful suggestions on earlier drafts of this

article.

411

E. LAWYER’S OATHS ARE AN EFFECTIVE GOAL SETTING

EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420

II. A BRIEF HISTORY OF LAWYER’S OATHS IN THE UNITED

STATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421

A. COLONIAL LAWYER’S OATHS . . . . . . . . . . . . . . . . . . . . . 422

B. OTHER EARLY LAWYER’S OATHS IN THE UNITED STATES 424

C. THE 1908 MODEL LAWYER’S OATH. . . . . . . . . . . . . . . . . . 427

D. CIVILITY AMENDMENTS TO LAWYER’S OATHS . . . . . . . . 429

E. PROMISING VS. SWEARING VS. AFFIRMING A LAWYER’S

OATH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431

III. PROCESS AND ENFORCEABILITY CONCERNS FOR

AMENDMENTS TO LAWYER’S OATHS IN THE UNITED STATES . 432

IV. HOW TO USE HUMAN RIGHTS NORMS TO UPDATE LAWYER’S

OATHS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435

V. PROPOSED HUMAN RIGHTS UPDATES TO LAWYER’S OATHS . . 439

A. PROPOSED AMENDMENTS TO THE OHIO LAWYER’S

OATH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440

B. PROPOSED AMENDMENTS TO THE MISSOURI LAWYER’S

OATH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441

C. PROPOSED AMENDMENTS TO THE CALIFORNIA

LAWYER’S OATH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442

D. PROPOSED MODEL HUMAN RIGHTS LAWYER’S OATH . . . 444

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445

APPENDIX A: LAWYER’S OATH CHART (FIFTY STATES AND

WASHINGTON, D.C.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446

412 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 36:411

“Updating the lawyer’s oath is good for lawyers.”

1

Press Release, W. Va. Sup. Ct. App., Supreme Court Announces Addition of Civility Pledge to the

Lawyer’s Oath (May 17, 2021), http://www.courtswv.gov/public-resources/press/releases/2021-releases/

may17b_21.pdf [https://perma.cc/U8WN-C4ZC] (quoting Justice Beth Walker).

INTRODUCTION

A lawyer’s oath is a formal promise to observe the ethical and other obligations

of the legal profession.

2

Each lawyer in the United States must swear or affirm a

lawyer’s oath to be admitted to practice law.

3

The lawyer’s oath was, at one time,

the principal source for ethical regulation of lawyers.

4

However, today, lawyer’s

oaths are only sometimes subject to enforcement.

5

Twenty-eight states and Washington, D.C. discipline for violation the lawyer’s oath. See infra App. A:

Lawyer’s Oaths Chart (Fifty states and Washington, D.C.). The American Bar Association’s Center for

Professional Responsibility has compiled a list of state-based professional responsibility resources, including links

to state rules of professional responsibility, ethics opinions, and more. Additional Legal Ethics and

Professional Responsibility Resources, CTR. FOR PRO. RESP., AM. BAR ASS’N, https://www.americanbar.org/

groups/professional_responsibility/resources/links_of_interest/ [https://perma.cc/5G8S-7UN9] (last visited

Mar. 3, 2023). The ABA list does not include links to the state lawyer’s oaths.

In many states, taking a law-

yer’s oath is merely a rite of passage, part of the ceremony marking the transition

to licensed attorney.

6

The language used in lawyer’s oaths varies greatly from state to state. Nearly

all, but not all, lawyer’s oaths include a pledge to uphold the U.S. Constitution, as

well as a pledge to uphold the applicable state constitution.

7

Only fourteen law-

yer’s oaths reference the rules of professional conduct.

8

Alaska, Arizona, Arkansas, Colorado, Georgia, Hawaii, Idaho, Missouri, Montana, Nevada, New

Mexico, Ohio, Oregon, Utah, and Washington’s lawyer’s oaths all include a pledge to uphold the applicable

state rules of professional conduct. See infra App. A; ALASKA BAR RULES R. 5 § 3 (ALASKA BAR ASS’N 2018);

ARIZ. SUP. CT. RULES R. 41(b) (ARIZ. SUP. CT. 2023); ARK. RULES GOVERNING ADMISSION TO THE BAR R. 7

(G) (ARK. SUP. CT. 2017); Oath of Admission, COLO. SUP. CT. OFF. OF ATT’Y REGUL. COUNS., https://

coloradosupremecourt.com/Current%20Lawyers/Oath.asp [https://perma.cc/BH9T-8HQQ] (last visited Mar.

3, 2023); GA. RULES GOVERNING ADMISSION TO THE PRAC. OF L. pt. B § 16 (GA. SUP. CT. 2022); HAW. SUP.

A handful of lawyer’s

1.

2. See GEOFFREY HAZARD & ANGELO DONDI, LEGAL ETHICS: A COMPARATIVE STUDY 60 (2004). The terms

“lawyer’s oath of office,” “oath of attorney,” and “oath of admission” are used interchangeably by different

states to describe the sworn or affirmed statement that a lawyer says upon admission to the bar of each state.

See Carol Rice Andrews, The Lawyer’s Oath: Both Ancient and Modern, 22 GEO. J. LEGAL ETHICS 3, 4 (2009).

For consistency purposes, this article refers to these type of oaths as “lawyer’s oaths.”

3. See Andrews, supra note 2, at 5.

4. HAZARD & DONDI, supra note 2, at 60; Andrews, supra note 2, at 50.

5.

6. Devon Bombassei, Child Abuse Disclosure by Lawyers: An “Agency-Capability” Approach, 14 WASH.

U. JURIS. REV. 1, 3, 16 (2021); Andrews, supra note 2, at 50 (“In whatever form, the oath continues to have

some regulatory and ethical functions but not to the degree that it once had. It no longer serves as the primary

statement of ethics standards for lawyers.”); HAZARD & DONDI, supra note 2, at 60.

7. The Connecticut, Maine, Massachusetts, and New Hampshire lawyer’s oaths do not include a pledge to

uphold the U.S. Constitution, while all other state lawyer’s oaths, including the lawyer’s oath for the District of

Columbia, do include such a pledge. See infra App. A; CONN. GEN. STAT. § 1-25 (2017); ME. STAT. tit. 4, § 806

(2023); MASS. GEN. LAWS ch. 221, § 38 (2022); N.H. REV. STAT. ANN. § 311:6 (2023); see also Mary

Elizabeth Basile, Loyalty Testing for Attorneys: When Is It Necessary and Who Should Decide?, 30 CARDOZO

L. REV. 1843, 1844 (2009) (discussing the history of pledges of allegiance in lawyer’s oaths and arguing that

those pledges underscore that lawyers are agents of the state and federal governments).

8.

2023] HUMAN RIGHTS AND LAWYER’S OATHS 413