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Law Practice

Nov. 24, 2020

Officer of the court

The lawyer’s job description is this: officer of the court. This is true without regard to whether the lawyer ever steps foot in the courthouse.

Civic Center Courthouse

Curtis E.A. Karnow

Judge, San Francisco County Superior Court

Civil Trials

Judge Karnow is current co-author of Weil & Brown et al., "California Practice Guide: Civil Procedure Before Trial" (Rutter 2017) and most recently, "Litigation in Practice" (2017).

Most lawyers, even those few who really do spend much of their time in trial, do not do most of their work in front of a judge. They do it in offices and conference rooms; and no judge is watching. Under one of the central rules of behavioral economics -- salience -- lawyers may be forgiven for thinking their job is primarily a function of their relationship with clients, and not the court. Most lawyers indeed never enter a courthouse, and clients are the sine qua non of a legal practice. But measuring the worth of something by its salience is a fallacy, and so is an unmitigated focus on clients. It is a mistake to think that "zealous" representation of the client is the lawyer's job description. It isn't.

The lawyer's job description is this: officer of the court. This is true without regard to whether the lawyer ever steps foot in the courthouse. Deposition reporters, guardians ad litem and receivers also are officers of the court, the central aspect of which is that they work in "the public interest." Serrano v. Stefan Merli Plastering Co., 52 Cal. 4th 1018, 1021 (2011); Cruz v. Superior Court, 121 Cal. App. 4th 646, 651 (2004); City of Sierra Madre v. SunTrust Mortg., Inc., 32 Cal. App. 5th 648 (2019).

Officers of the court are responsible for the "fair administration of justice." Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991); they are an "essential part of the machinery of justice," id. at 1072 (internal quotes omitted in both cites). Lawyers may sometimes feel they are torn between their duties as officers of the court and to "zealously" further clients' interests. Not true. These are not commensurate obligations (although they are consistent with each other).

Two points: First, the rules of professional conduct don't mention the word "zealous," and they haven't for at least the last 45 years. Courts, including the state bar court, do use the term, but it's not clear why. E.g., In re Marriage of Anka & Yeager, 31 Cal. App. 5th 1115, 1117 (2019) ("counsel's zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands"); In re Josiah Z., 36 Cal. 4th 664, 683 (2005) (citing ABA Model Rules Prof. Conduct 1.4(b)); In re Maloney, 00-O-14000 (Cal. Bar Ct. Jan. 14, 2005).

It may be a shorthand for the high obligations of loyalty, confidentiality, and skill that lawyers owe clients. Perhaps it's just familiar legalese for the ordinary sense denoting vigor and great enthusiasm. E.g., In re Marriage of Davenport, 194 Cal. App. 4th 1507, 1537 (2011) (zeal and vigor). Like a lot of legalese, it sounds special, but isn't.

Second: whatever one's duties to a client, zealous and otherwise, these are subject to overriding obligations as an officer of the court. That's the "paramount obligation" which is to the "orderly administration of justice." People v. Chong, 76 Cal. App. 4th 232, 243 (1999) (internal quotes omitted). Accord, Scott C. Moody, Inc. v. Staar Surgical Co., 195 Cal. App. 4th 1043, 1048 (2011). This paramount obligation is to the "judicial process," not the client. Finton Constr., Inc. v. Bidna & Keys, APLC, 238 Cal. App. 4th 200, 204 (2015). Lawyers can -- and sometimes have to -- fire the client. They can't get rid of the courts.

There are concomitants of this obligation which lawyers have to preserve the integrity of the judicial system. For example lawyers must be civil, and refrain from "scorched earth" tactics. In re Marriage of Davenport, 194 Cal. App. 4th at 1537; Lasalle v. Vogel, 36 Cal. App. 5th 127, 132 (2019). Lawyers must follow court orders unless and until an appellate court says otherwise. In re Matter of Genis, 11-O-18966 (Cal. Bar Ct. Mar. 13, 2015) ("Disobedience of a court order, whether as a legal representative or as a party, demonstrates a lapse of character and a disrespect for the legal system that directly relate to an attorney's fitness to practice law and serve as an officer of the court"). A recent case reviewed a lawyer's tactics: bullying, calling the other lawyer a liar without cause, hurtling insults, being disrespectful of a judicial officer -- all conscious tactics to further the client's interests. Zealous indeed. A contempt charge was affirmed, and the lawyer's identity forever blazoned in the light of the case name. Moore v. Superior Court of Orange County, 2020 WL 6707964 (Nov. 16, 2020).

There's another concomitant worth a last word, although I find it peculiar that I think it is necessary to emphasize it. That's the duty of candor. CRPC 3.3. Telling the truth is the basic rule; the rest is commentary.

Judges rely on lawyers to tell the truth all the time: about what a case says, whether they are free for a trial or hearing in the future, when they say they can amend a deficient complaint, if they have an obligation (whether work, medical, or family) that requires a continuance, offers of proof, and so on; trivial and material.

Everything collapses when judges can't trust counsel. Nothing is quite so awful as the moment one realizes a dissent was cited as a majority opinion, that critical language was elided from a quote, or that counsel is just making up facts. Suddenly the judge thinks, we don't both care about the law. One is no longer dealing with an officer of the court. Someone has lost his way.

There may be a short-term benefit to lying. The miscreant thinks so. But the tactic of short-term gains at the expense of the long term is doomed. It's ineffectual, and so actually defeats the client's interests. Deliberate ploys to frustrate discovery kill the case. J.W. v. Watchtower Bible and Tract Society of New York, Inc., 29 Cal. App. 5th 1142 (2018). Gamesmanship on obtaining a default results in three years of litigation and setting aside the default; the client paying all the while. Lasalle. Making stuff up in mediation may make it impossible to settle on a reasonable basis -- and the client then pays the price. Judges won't give you the benefit of the doubt. The client may pay for that too.

Like most ethical issues, it's all so obvious as one reads this in a moment of quiet. It's more difficult in the heat of the moment. Chief Justice John Roberts provides a memorable touchstone, observing that truly effective advocacy means "being fair to the case," being unafraid to overtly shoulder its weakness as to advocate its strength. Truthful lawyers are not only officers of the court; they also serve the client best.

In our quotidian lives we are circled by half-truths, conspiracy theories, rumors and worse. People and companies bluff and threaten. But there is one place we make safe from all this, and that is our courts. Like democracy itself, this preservation needs constant attention. This is the daily job of judges and lawyers, of the courts and the officers through which they work.

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