Defining a Court Officer
The phrase "officer of the court" is a legal term that denotes someone—such as a lawyer or judge—who is authorised to act as a representative of the court’s authority. Typically, this represents a legal professional or court official whose duty it is to act in the interests of justice. Officers are thus beholden to no other authority than the court’s, and must operate with integrity at all times, abiding by the law of the land and the regulations set in place by their profession.
Lawyers may or may not act as officers of the court. It is legally possible for representatives to act outside of the court’s jurisdiction if, for example, a case is ongoing once jurisdiction has transferred to another location, or a representative from another state takes on the defence of an accused . A defence attorney who is acting on behalf of the court by virtue of a private mortgage bondsman contract is also not an officer of the court.
However, this does not apply to all lawyers, and most are considered officers of the court. Such officers behave respectfully in-person at all times, and communicate courteously and professionally. The main responsibility of a court officer is to ensure the proceedings of a case are conducted fairly, promptly and without bias.
It is not simply their role to represent the interests of their client, but rather the administration of justice as a whole. Their role goes beyond that of other professionals such as solicitors, as they have a duty that extends to the whole of the judicial system, and not just the court in which they are personnel.
Attorneys as Officers of the Court
The rules governing the professional conduct of attorneys reflect the position of special trust and responsibility that they occupy with respect to the courts. Attorneys are not engaged merely in the pursuit of their clients’ interests, but also for the advancement of justice, and to the vindication of lawful and peaceful processes. Many rules are aimed at the attorney’s relationship with judges, e.g. the duty of candor to the court (as discussed in section 3-310) and the conflicts of interests rules. More specific to the intent of this section is the recognition that attorneys "occupy a unique and crucial position in the legal process. As officers of the court, they play a vital role in the effective administration of our system of justice. To the public, they are the representatives of the law and the legal system. . . And to the legal system, they owe a duty of care at all times." J.R. McAuliffe, Attorney Disqualification: A Proposal for a Uniform Standard, 69 Notre Dame L. Rev. 182, 218 (1993). In short, attorneys play crucial roles as officers of the court and have corresponding duties to the court that go beyond those obligations specified elsewhere in the rules of professional conduct.
The History of Attorneys as Officers
The phrase "officer of the court" traces back to a 1595 English case known as R v. Cox. There, the Queen’s Bench division referenced a gag order against a witness during a trial where it said:
The court is, therefore, enabled to prevent a witness from giving evidence in any cause which concerns the king, and that upon his own peril … upon pain that it should be lawfull for the court to make such order, that the witness (in case he shall do any thing against the order of the court) shall suffer for his contempt in such manner as the justices shall think meet.
The phrase that lawyers (and other court officers) were an "ancient" and "high" calling was first cited in an 1889 Alabama case, Ex Parte McCardle, 87 U.S. 177 (1889). The 1893 In re Radin case (one of the earliest cases to discuss the role of lawyers as officers) affirmed that lawyers were among those who had an "obligation to assist the judges ‘in his efforts to administer the law.’" 91 A. 792. See also In re Chauncey, 42 N. Y. 165, 169 (1870) ("counsel learned in law are not suitors; they are the assistants of the court in the administration of justice.").
A letter authored by the American Bar Association in 1948 and addressed to then-Justice Felix Frankfurter specifically quoted a passage from the case, Ex Parte Radin, 283 U.S. 787 (1931):
The office of attorney at law at this day is ancient and high; older than written history; older than Roman law, older than the oldest of the ten tables; older than Athens, earlier even than Homer himself. It is no new thing, still less is it a thing of yesterday. . . . Its roots are planted deep in the common law and the very roots of the common law itself. (citations omitted)
The document went on to state that:
The lawyer-client relation is one of high professional responsibility. It is unique. Its manner of creation, its character, its stability, its duration, and the extent and importance of its duties and obligations have long been recognized by the courts.
Friedman then states that we can view the case as a "guarantee of freedom" for lawyers to challenge the State.
Responsibilities and Duties
As quasi-public officials, lawyers owe special duties to the court in which they practice. The American legal system — like its British progenitor — is founded on the premise that the courts must maintain the respect of the people if they are to function effectively. Because lawyers stand between their clients and the court, they must meet and conform to public expectations of their conduct.
The lawyer as officer of the court is expected to place the proper administration of justice ahead of all other considerations. Lawyers should never knowingly mislead or misinform the court. They are expected to avoid any act which could reasonably be construed as a personal disrespect to the judge or the court.
Lawyers have a duty to be truthful in their statements to the court and to others. Each lawyer has an obligation to disclose to the court legal authority in the controlling jurisdiction known to the lawyer and which the lawyer has not disclosed by opposing counsel. Because of the clandestine nature of much criminal activity, sometimes a lawyer must choose to disclose the truth in a public or knowing manner. For example, when a judge is lacking vital information which the lawyer possesses, the lawyer must weigh his or her duty to uphold the law and to be truthful against the duty to maintain the confidence of the client. Admittedly, this can be a difficult position. But it is one that each lawyer must be ready to confront rather than avoid.
Implications for Attorneys
The classification of lawyers as officers of the court influences how they conduct themselves in the professional arena. Much of the ongoing discourse on this topic underscores the connotation of the term in relation to ethical obligations. In essence, as an officer of the court, an attorney is entrusted with a heightened sense of responsibility in ensuring justice is carried out impartially and efficiently. While Blackstone argued that all lawyers should be subject to public office, which would render them publicly accountable and thus align with the officer of the court title, but even within the context of this traditional legal system, officers of the court were recognized as having greater responsibility than just simply training juries and drawing evidence from witnesses .
As far as implications are concerned for the modern-day lawyer-client or lawyer-adversary relationship, what the designation of officers of the court means, and the connotations it carries subsequently influences the conduct of attorneys. The appointment as an officer of the court largely dictates the responsibilities of an attorney towards all involved parties in any given legal proceeding, including clients, the presiding judge, jurors, witnesses, and other legal attorneys. The parameter of the ethical obligations of all attorneys practicing law in the U.S. is addressed under the Model Rules of Professional Conduct, which essentially delineates the sphere of responsibility and expectations of attorneys in practice.
Ethics and Malpractice
The role of a lawyer as an officer of the court is not only important because of the duties and responsibilities that accompany this title, but also because of the authority and esteem granted to lawyers as a result of it. Ethical Standards and Misconduct Examines the standards and expectations of lawyers and their conduct.
Ethical Standards
To the extent that lawyers cannot be held in contempt, they are certainly held to the ethical standards established by the states. It is the duty of every lawyer to obey the law and these standards. The ABA Model Rules of Professional Conduct establishes rules and standards for lawyers and it is the most commonly adopted standard for lawyers. For instance, in order to advance a client’s position, a lawyer cannot alter, destroy, or conceal a document or other evidence. Further, if a lawyer becomes aware that his or her client is using false evidence, perjury, or falsifying evidence or documents, the lawyer must try to persuade the client not to do so, then try to remedy the situation. If the client refuses to remedy the situation, the lawyer should disclose it to the court. These are examples of the responsibilities a lawyer has to the court as an officer, he is not an advocate without a sense of responsibility.
Misconduct
One misconduct that lawyers face is dishonesty or incompetence. The Model Rules provide that: A lawyer shall not knowingly make a false statement of material fact or law to a tribunal or conceal or attempt to conceal a material fact from the tribunal; A lawyer who is representing a client in an adjudicative matter and who comes to know of fraud by the client must take reasonable remedial measures. If the client refuses to rectify the situation, the lawyer shall disclose the facts to the tribunal. A lawyer is also expected to report misconduct of another lawyer as an officer of the court, and refrain from offering evidence he knows to be false. In addition, he is required to keep the confidences of the client.
Legal Perspective on Attorneys as Officers
"Of the role of lawyers as officer of the court, legal opinions and commentary abound. The Legal Profession Blog brought us a sample of what the National Conference of Bar Examiners proposed to test law students over in lawyers’ roles; lawyers’ and judges’ duties in this role was the subject of a 2014 Campbell Law Review article; and the American Bar Association’s Model Rules of Professional Conduct expressly state: "A lawyer is an officer of the legal system and a public citizen having special responsibility for the quality of justice." Preamble Comment 5, Rules of Prof’l Conduct. That makes it all the more perplexing trying to figure out the scope of "officer of the court" to which the Georgia Supreme Court referred in In the Matter of Faulkner, No. S22Y0202 (decided April 20, 2022). That opinion involved two cases consolidated into one disciplinary case. Case No. 11-022 a/k/a McKoon v. State Bar ("McKoon’s Case") involves many claims of purported ethical violations based on McKoon’s actions as serving as counsel for another Bar member, Gary Robb ("Robb’s Case") charged in Case No. 17-0966, and who is also subject to separate disciplinary charges, unmentioned in the Bar Ethics Inquiry Commission ("EIC") decision, but discussed in this article. In McKoon’s Case, the SCOTUS-McKoon ethics opinion states in pertinent part: "A part of this disciplinary case concerns an attempted ‘pro se’ representation in 2013-14 by McKoon of Gary Robb in his representation of an inmate named Walter Faulkner. McKoon and Robb are not partners. Nor did McKoon supervise Robb’s work on the matter. Nonetheless, this Court will deem the representation by McKoon of Robb to be that of a member of the State Bar of Georgia serving as counsel for another member of the State Bar of Georgia, and conclude that McKoon was obliged to ensure that the services he rendered, under the circumstances, fully and completely conformed to the Rules of Professional Conduct." (Emphasis added) "Pro se" in this context is latin for "on one’s own behalf" and acronym context for "self-representation." ("pro se" from Wikipedia) Two recent opinions are instructive. In Scotty v. State, 2016-MO-90, 2016 WL 209340, at *1 (Mo. Jan. 19, 2016), the Missouri Supreme Court held a criminal defense lawyer was ineffective in a murder case for failing to introduce evidence favorable to the defense. A psychiatric evaluation on sanity was conducted by Dr. Clyde Watson, and the prosecution’s expert, Dr. Dubuque, found that "[e]lectroconvulsive therapy . . .can markedly affect the memory and attention spans of patients," but that was not disclosed by the defense lawyer. In addition to finding ineffective assistance of counsel, in holding a new trial was required, the Court also noted "to the additional issues of whether [the lawyer] was an officer of the court, we note the following We recently considered the standards for assisting pro se defendants with requests for expert assistance in our decision in State ex rel. Nixon v. Jaynes, 60 S.W.3d 831 (Mo. banc 2001). There, we stated that a "pro se criminal defendant has no right to an expert at public expense in a criminal case. The decision to appoint an expert in such a case rests in the discretion of the trial court." … We went on to state that "[t]he defendant must demonstrate that the requested assistance is reasonably necessary to the proper presentation of his or her defense." … In Scott, a capital murder case, we observed that the trial court should appoint an expert and authorize fees to be paid if: (1) THERE IS A SUBSTANTIAL QUESTION AS TO THE ACCUSED’S ATTORNEY’S ABILITY TO PROVIDE ADEQUATE REPRESENTATION . (2) THE DEFENDANT DEMONSTRATES TO THE SATISFACTION OF THE COURT THAT THE REQUESTED ASSISTANCE IS REASONABLY NECESSARY TO THE PROPER PRESENTATION OF THE DEFENDANT’S DEFENSE. …" Scotty at *3. (Emphasis added.) The Comment to Rule 1.14 of the Rules of Professional Conduct for D.C. states that, "[a]lthough a lawyer is not a party, he or she is an officer of the court. He or she has a duty to the court overriding the lawyer’s personal interest in the case." The comments go on to discuss the obligations of the lawyer to the court. And, the Comment 5, Preamble to the Rules of Professional Conduct states, "A lawyer is an officer of the legal system and a public citizen having special responsibility for the quality of justice." Perhaps most importantly, this Comment also states that, "A lawyer’s responsibilities, with power, go hand in hand." (Emphasis added.) In the latest opinion, In re Conte, 980 A.2d 1116 (2009), the U.S. Supreme Court for the District of Columbia held that a two-year suspension for willfully neglecting his client’s case in a death penalty appeal was appropriate. In this opinion, the Court explained: "We have previously explained that a lawyer, in fulfilling his role as an officer of the court, "must resist the temptation to be an advocate at any cost, particularly where a client’s fate depends upon a lawyer for whom winning is everything." Wright v. Katz, 818 A.2d 1009, 1020 (D.C. 2003), (finding conduct in which a lawyer "overstepped his role as an officer of the court and adopted his client’s agenda as his own" to be "the very antithesis of the lawyer’s function"); see also In re Sampson, 629 A.2d 525, 532 (D.C. 1993) (imposing six-year suspension where attorney "elected to continue representing [his client] in the face of manifest conflict of interests and with apparent indifference to his client’s rights and best interests"). That is, "with great authority goes great responsibility." Wright, 818 A.2d at 1020 (quoting Cappetta v. Dist. of Columbia, 429 A.2d 149, 154 (D.C. 1981)). We agree with the Board that the charges against Conte warrant disbarment; the duration of suspension we ordered in Wright reasonably corresponds to the gravity of the violations." Simply put, "the mantle of lawyer" is heavy to be worn.
Conclusion – The Value of Accountability
It is the very basis of our legal system that our attorneys are officers of the court and held to the highest standards of conduct. It is the work of our courts, judges, and attorneys to enforce the laws of our nation, protect all of our rights, help us gain a fair resolution of conflicts, and do all of this with impartiality, fairness, and without bias. By this system, certain expectations are formed, from the clients to the courts and from the courts to the clients , that the attorneys representing those involved in a conflict are not in that position to gain for themselves or to bend the law and the system to their advantage. That every step in the process of dealing with a conflict follows the settled system, put there to keep the scales balanced. That the person entrusted with these concerns is working according to our laws and in service of our court, no matter who the client and without exception. That is the job of an officer of the court and the only way to ensure accountability and fairness.