The Sacred Oath: an outdated pro forma rite?
by Sean L. Harrington
Great superstitious reverence was attached to the oath. Time had been, indeed, when the
act of swearing was considered more important than the matter sworn to. In the days of
trial by ordeal, a perjured
witness risked being struck down by heaven on the spot. Oaths originally were elaborate,
ceremonious to a degree. Each detail must be correctly repeated after the judge, and if
an oath-taker fumbled, it was because God impeded the perjured tongue.1
One day following his inauguration, this nation's newest
president retook the oath of office.
[News]
The reason is because "[T]he oath appears in the Constitution itself. And out of the
abundance of caution, because there was one word out of sequence, Chief Justice John
Roberts will administer the oath a second time," said White House lawyer, Greg Craig.
(Pete Souza/The White House via Getty Images)
A president is required by our Constitution to utter, "I do solemnly swear that I will
faithfully execute the office of president of the United States, and will to the best of
my ability, preserve, protect and defend the Constitution of the United States." The first,
time around, Roberts instead said: "that I will execute the office of president to the
United States faithfully."
At least two other presidents, Calvin Coolidge and Chester A. Arthur, were administered the Oath a second
time because of unusual circumstances the first time around.
Attorneys should reflect on the meaning and origin of the Oath, which has great
historical significance for the profession:
During the same year of 1607, the Commons asked Coke and the Chief Justice of King's Bench
for an opinion concerning the legality of the oath ex officio, as administered in
the ecclesiastical courts. Actually, all courts of Roman law procedure, including Chancery,
operated by this oath. Without it, judges could not proceed to that examination of the
defendant which was the hub of inquisitorial procedure.
Nobody objected to the oath in any courts but the ecclesiastical and for perfectly good
reason. In Chancery as in Star Chamber, defendants were shown the bill of charges against
them factual charges to which they swore guilty or not guilty and then proceeded upon
questioning under the oath. Such procedure was quick, efficient and far cheaper than the
tedious process by jury at common law. In consequence, the prerogative courts of Roman
law procedure were thronged with suitors who brought their cases voluntarily, to save time
and money. In days long gone by, when suits had been settled by compurgation and
oath-helpers, the inquisitorial oath had come as a great step forward; men welcomed a
chance to defend themselves by their own answers under oath. As long as such inquisition
concerned facts, it was equitable, by all odds the most practical way to get at truth.
2
In Louisiana a week ago, a Hearing Committee reviewed charges filed against Craig Hunter King,
a judge who, among other things, had been removed from office for lying under oath in
the disciplinary investigation. He was criminally charged with perjury and public salary
extortion and pled guilty to a reduced charge of conspiracy to commit public payroll fraud.
He was suspended as a result of the conviction and the Supreme Court denied his application
for reinstatement and
ruled that "necessary disciplinary
proceedings be instituted."
In the bar proceeding, King contended that the proceedings be dismissed for lack of jurisdiction
because the sanction of removal from office has already been imposed. The Committee
recommended
that jurisdiction be exercised in light of the Supreme Court directive that
the Committee found that the accused had lied under oath and was "evasive and unwilling
to accept responsibility for his perjury."
In Massachusetts --also about a week ago-- the
Massachusetts Supreme Judicial Court
en banc remanded a bar discipline matter to a single justice with direction to impose a
six-month suspension of an assistant district attorney, Fawn Balliro, who was found to have
testified falsely under oath at a trial where she had been the victim of a domestic assault.
The Court noted, "We have stated that 'an attorney who lies under oath engages in
"qualitatively different" misconduct from an attorney who makes false statements and presents
false evidence,'" and that "the presumptive sanction for lying under oath is a two-year
suspension . . . In more egregious circumstances, typically those involving aggravating
factors, an attorney's giving false testimony under oath can justify
disbarment."
The hearing committee concluded that Balliro's false statements to a prosecutor and her false
testimony under oath at trial violated Mass. R. Prof. C. 3.3(a)(1) (lawyer shall not
knowingly make false statement of material fact or law to tribunal); Mass. R. Prof. C. 3.3(a)
(4), (lawyer shall not knowingly offer evidence that lawyer knows to be false [with exceptions
not relevant here] ); Mass. R. Prof. C. 8.4(c), (professional misconduct for lawyer to engage
in conduct involving dishonesty, fraud, deceit, or misrepresentation); Mass. R. Prof. C.
8.4(d), (professional misconduct for lawyer to engage in conduct prejudicial to administration
of justice); and Mass. R. Prof. C. 8.4(h), (professional misconduct for lawyer to engage in
any other conduct that adversely reflects on fitness to practice law). The hearing committee
stated that while the Balliro's psychological state at the time of her false testimony was a
causal factor in giving such testimony, it did not so impair her that she was unable to form
the mental state --knowing falsity-- required for a violation of rules 3.3(a)(1) and (4), and
rule 8.4(c). Rather, the committee continued, the respondent made a conscious decision, based
on emotions, to give false testimony, and any impairment she suffered did not negate the
elements of her offenses under those rules and under rule 8.4(d) and (h).
And, last week in Minnesota, another attorney who testified falsely under oath at a
deposition was suspended for 90 days by that state's supreme court in a
per curiam
opinion. The Court observed:
Every attorney admitted to practice law in Minnesota must take the following oath:
You do swear that you will support the
Constitution of the United States and that of
the state of Minnesota, and will conduct yourself as an attorney and counselor at
law in an upright and courteous manner, to the best of your learning and ability,
with all good fidelity as well to the court as to the client, and that you will
use no falsehood or deceit, nor delay any person’s cause for lucre or malice. So
help you God.
Minn. Stat. § 358.07 (2008) (emphasis added). Building on the attorney oath, Minnesota
Rules of Professional Conduct 8.4(c) and (d) provide that “[i]t is professional misconduct
for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation; [or] (d) engage in conduct that is prejudicial to the administration
of justice.”
In rejecting the referee's recommendation of an indefinite suspension with leave to apply for
reinstatement within six months, the Court opined:
[W]e emphasize offering false testimony under oath is a serious offense. It is particularly
serious when the violation is committed by an attorney whose oath requires him or her not
only to exhibit personal honesty but also to uphold the integrity of the judicial system.
In Colorado, attorneys swear in by the following:
I DO SOLEMNLY SWEAR by the Everliving God (or
AFFIRM) that: I will support the Constitution of the
United States and the Constitution of the State of
Colorado; I will maintain the respect due to Courts
and judicial officers; I will employ only such means
as are consistent with truth and honor; I will treat
all persons whom I encounter through my practice of
law with fairness, courtesy, respect and honesty; I
will use my knowledge of the law for the betterment
of society and the improvement of the legal system;
I will never reject, from any consideration personal
to myself, the cause of the defenseless or
oppressed; I will at all times faithfully and
diligently adhere to the Colorado Rules of
Professional Conduct.
|
Yet, I have concluded (long ago) that, despite the foregoing examples, and despite Colorado agency protestations to the contrary
(e.g.,
here and
here), the
sacred Oath means very little:
A few months ago, I reported that a Denver attorney,
Madeline Wilson, made knowing misrepresentation of material
facts in disciplinary investigations and gave false testimony to a Texas court in October of 2008.
I filed
a complaint with the Colorado
Office of Attorney Deregulation Council and a
separate Complaint with the Texas State Bar Office of Thief
Disciplinary Counsel.
In
one
reply, the OARC argued on behalf of the attorney-perjurer, "Ms. Wilson stated that
she did not have her client's physical address. Ms. Ryan stated that she told Ms. Wilson her
mailing address.3 As you know from your own experience and the addresses you use,
physical address and mailing address can be different. Regardless of my opinion on this issue,
the appropriate forum for deciding whether Ms. Wilson lied to the Texas Bar Counsel is the
Texas Bar Counsel." [underline emphasis in the original].
In a
second response (concerning newly discovered evidence -- copies of Wilson's
emails that evidenced her knowledge of mother's physical location and, which
also established that Wilson had given false testimony under oath concerning
the giving of legal advice in Texas), the OARC declined to review the evidence
--posted to this site-- explaining "Due to concerns about computer viruses and
security issues, this office avoids accessing questionable or unsecure websites
. . . Although I understand your personal opinions about Ms. Wilson . . . I
disagree with your interpretation of the Colorado Rules of Professional Conduct."
Yet, the OARC had logged into this
site at least forty-five (45) times in 2007 and nine (9) times in 2008, including
once the very next day after that response was mailed.
(See Dec. 3, 2008 entry in the
News & Comment section for details).
Meanwhile, the Office of Thief Disciplinary Counsel of the Great State of Texas
responded to news (those
same newly discovered emails) that Wilson had lied during the
course of its two prior investigations, and that she had given false testimony
to a Texas court six months after the investigation was closed:
It has been determined that this is your fourth attempt to re-file your complaint
after your initial three grievances resulted in a dismissal. Please be advised that
this last complaint is being returned to you with this letter.
Needless to say, if one concedes the impossibility of reporting misconduct --Wilson's
perjured affidavit-- that will not have occurred until six months after the prior
complaint is disposed of, it's equally impossible that the report of the affidavit
constitutes a re-filing of the earlier complaint. Moreover, comment 1 to Tex. R.P.C.
8.01 --which I did not author-- provides, “it is a separate professional offense for
a lawyer to knowingly make a material misrepresentation or omission in connection with
a disciplinary investigation of the lawyers own conduct.”
But, in the world of attorney discipline, as in the Twilight Zone,
anything is possible -- or impossible.
You have entered the twilight zone
Beyond this world strange things are known
Use the key, unlock the door
See what your fate might have in store
Come explore your dreams creation
Enter this world of imagination
The simple and unavoidable conclusion is that attorneys in Colorado and Texas are
bound neither by the Oath of Admission nor the Rules of Professional Conduct.
__________________________
1 Catherin Drinker Bowen. 1957.
The lion and the throne: The life and times of
Sir Edward Coke. (London: Little, Brown & Co.) at 150-51.
2 Id. at 296-97.
3 Actually, the
deposition
transcript states:
Harrington Counsel: Has she been aware of where you have been since you moved to
Texas?
Deponent: Yes
Harrington Counsel: Have you told her where you lived?
Deponent: Yes