The role of lawyers as officers of the court

What does it mean to be an officer of the court? We repeat that phrase routinely. Often we use it to explain why an attorney should--or should not--behave a certain way, make affirmative representations or place information on the record in court. But what is the origin of that phrase, what are prime examples of what that means for us as practitioners, and why is it so important to understand all that it encompasses?

An officer and an advocate

Lawyers are not technically court "officers" in the sense that they are agents or employees of the court system. And unless they work for the government, they do not carry official badges--unless you count badges of honor in the form of bar cards. The designation of attorneys as advocates of truth and integrity fuels a contemporary definition of court "officers" that is both aspirational and literal; as our professional obligations exist in and out of the courtroom. This is reflected in several important professional rules of conduct that outline the parameters of what it means for a lawyer to be an officer of the court and provide guidance as to how to ethically fulfill these requirements considering our unique role within the justice system.

The idea of an attorney as an officer of the court is referenced right up front in rule 1.1, Purpose and Function of the Rules of Professional Conduct, which defines a lawyer in comment [5] as a "representative and advisor of clients, an officer of the legal system and a public citizen having special responsibilities for the quality of justice."

Yet one of the most frequently cited interpretations of the importance of an attorney being an officer of the court is honesty. What he or she represents on the record is what the judge or jury can take to the bank. Several professional rules and statutes reflect this reality.

A lawyer's word is the truth

Rule 3.3 Candor Toward the Tribunal, in paragraph (a) prohibits a lawyer from knowingly making a false statement of fact or law to a court, or failing to correct one already made. It also prohibits failing to disclose legal authority in the controlling jurisdiction that is known to be directly adverse to his or her case and not disclosed by opposing counsel, or knowingly misquoting a statute, decision, language or other authority. It also prohibits attorneys from offering evidence known to be false, and mandating correction and remedial measures if material evidence has already been offered. Rule 3.3 (b) is proactive in its mandate that a lawyer who knows someone who intends to engage in or has engaged in fraudulent or criminal conduct related to the proceeding
"shall take reasonable remedial measures" consistent with California Business and Professions Code section 6068 (e) and rule 1.6, both of which discuss client confidentiality.

Rule 4.1 Truthfulness in Statements to Others, continues the theme of attorney honesty, prohibiting a lawyer in the course of representing a client from knowingly making false statements of material fact or law to someone else, or failing to disclose material facts when necessary to avoid assisting a client in committing a crime or fraud--again, unless disclosure is prohibited by the same confidentiality rules referenced in rule 3.3: California Business and Professions Code section 6068 (e) and rule 1.6.

Rule 8.4 Misconduct, defines professional misconduct in paragraph (b) as including the commission of "a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects," in paragraph (c) as conduct involving fraud, deceit, dishonesty or misrepresentation that is reckless or intentional, and in paragraph (d) Rule 8.4 prohibits an attorney from engaging in conduct "prejudicial to the administration of justice."

Illustrating how seriously the California State Bar takes the duty of candor, in 2023 it adopted Rule 8.3 Reporting Professional Misconduct, which requires an attorney to inform the State Bar or a court of "credible evidence that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation," in addition to misappropriation of property or funds, when such behavior raises a substantial question of the attorney's "honesty, trustworthiness, or fitness as a lawyer in other respects."

An officer of the court is professional and polite

In addition to the duty of candor, an officer of the court practices courtesy and civility. This theme has dominated court decisions, civility guidelines, and could inspire future professional rules, whether aspirational or mandatory.

An attorney's duty of maintaining a level playing field is also reflected in several current rules. Rule 3.4 Fairness to Opposing Party and Counsel states in pertinent part that a lawyer shall not unlawfully obstruct access to evidence, unlawfully alter, destroy or conceal material with potential evidentiary value, or suppress evidence the lawyer has a legal obligation to produce or reveal. Yet Rule 3.4 goes farther, reflecting one of the challenging parts of proving a case in court, by prohibiting a lawyer from advising or causing someone to hide or leave the jurisdiction for the purpose of making them unavailable as a witness.

The rules also define and regulate appropriate contact with the court, jurors and others per Rule 3.5--Contact with Judges, Officials, Employees, and Jurors, to ensure a level playing field in terms of communication and influence. Rule 3.6 Trial Publicity prohibits a lawyer who is participating in or has participated in a matter from speaking out of court in a fashion that will be disseminated publicly that has a substantial likelihood of materially prejudicing an upcoming proceeding in the case. Rule 3.8 Special Responsibilities of a Prosecutor reflects the unique role of prosecutors and their professional duties in a criminal case.

Officers of the court are consistent and credible

Taken together, professional rules, codified statutes such as in the California Bar Act, and case law highlights the duty of an attorney as an officer of the court in all respects--whether or not he or she is practicing law. The role of an officer of the court is also one of collaboration and cooperation--working with the court, opposing counsel, and depending on the type of law, community partners to ensure equal access to justice and fairness to all.

Wendy L. Patrick is a former chair of COPRAC, former chair of the San Diego County Bar Association Legal Ethics Committee, and a veteran California attorney.