What should new lawyers be required to promise, as a condition of entry into the legal profession? This inquiry raises existential questions about what it means to practice law. It can also prompt questions about the appropriate reach of lawyer regulation. Lawyer oaths—which are used to elicit promises from new lawyers in North America—should not be seen as merely symbolic and ceremonial (although they are certainly both these things). Lawyer oaths also intersect with core legal ethics questions. Thus, what is included in these oaths deserves our attention.
In Human Rights and Lawyer’s Oaths, Lauren Bartlett takes a deep dive into lawyer oaths, resulting in a comprehensive historical account of lawyer oaths in the United States, as well as a novel proposal for a way forward. In short, Bartlett contends that lawyer oaths can be “useful as a tool to build a dignified, respectful, and inclusive legal profession” but in order to function as such, “the unremarkable, irrelevant, inappropriate, discriminatory, and obsolete language in lawyer’s oaths must be removed and replaced by ethical guidance and aspiration” (P. 415). Bartlett points to human rights norms, specifically, as an optimal touchpoint for better aligning lawyer oaths with our current times. One potential benefit, according to Bartlett, is that human rights norms can point lawyers to more aspirational ethical and moral ideals than can be found in professional conduct codes, which tend to focus on minimum standards. Insofar as human rights norms transcend country borders and legal practice is increasingly globalized, Bartlett also argues that “legal ethics—and lawyer’s oaths in particular—should not stand out as separate from human rights” (P. 437).
In Canada, we have lawyer oaths too. Recently, there have been legal challenges in one province, Alberta, to the requirement that new lawyers, among other things, take a mandatory oath of allegiance to King Charles. These challenges raise interesting issues of law, including constitutional questions as to whether the oath of allegiance violates constitutional guarantees to freedom of religion and equality.1 But, for me, these legal challenges have also triggered some more fundamental questions. Why have lawyer oaths in the first place? Are these oaths simply historical artifacts that we ought to jettison or is there something worth retaining here?
Bartlett’s article takes these questions head-on, beginning by reviewing existing justifications for lawyer oaths. These include the possibility that oaths can help imbue those entering the legal profession with stronger moral aspirations and a public service orientation, as well as provide a meaningful moment of commitment to one’s impending professional obligations. Bartlett also suggests her own additional justification: lawyer oaths can act as an effective goal-setting exercise. This framing creatively casts lawyer oaths as a moment of potential skills development. She observes that “[g]oal setting is an important part of strategic planning, an integral lawyering skill that every attorney must master” and taking an oath can reinforce such skills by providing new lawyers with the opportunity to set “professional and ethical goals to be met throughout their legal career” (Pp. 420-421).
Passing on “age-old traditions” has also been proffered as justification for lawyer oaths. The trouble with this line of argumentation, as Bartlett notes, is that much of the legal profession’s “traditions” are deeply exclusionary or otherwise archaic. Not all “legal traditions” are things that we want to pass on. In her article, Bartlett provides multiple examples of how outdated traditions and language can still be found in current lawyer oaths, such as Kentucky’s requirement that new lawyers pledge not to “duel,” the reference in the Supreme Court bar’s oath of admission to conducting oneself “uprightly,” and Oklahoma’s maintenance of a requirement that the oath be sworn to God (without also including an option to secularly affirm the oath). Bartlett further observes that some attempts to update lawyer oaths, including the addition of “civility” pledges, risk simply re-instantiating historical hierarchies under the guise of more modern language.
It is difficult to deny that lawyer oaths need a serious refresh after reading Bartlett’s thorough review. The outdated traditions and language she describes are all the more concerning when considered in conjunction with her observation that, in some states, lawyer oaths are relied upon to discipline lawyers.2 To move us forward, Bartlett suggests specific wording for a model human rights lawyer oath:
I promise to abide by the rules of professional conduct.
I will strive to treat all persons with dignity and respect at all times.
I promise to take action to ensure the full realization of human rights and fundamental freedoms for all. (P. 444.)
While this model oath deserves praise for its simplicity and clarity, there are some interesting questions, at least to me, about the third sentence referencing “human rights and fundamental freedoms.” Can this be an actionable and meaningful promise given the significant contestation (both social and legal) about how human rights and freedoms should be realized? How does promising to “ensure the full realization of human rights and fundamental freedoms for all” align with dominant conceptions of the lawyering role which center the pursuit of clients’ interests? Indeed, what conception of the lawyering role does underlie the giving of such a promise? Ought lawyer regulators be in the business of extracting pledges from new lawyers to promote and protect “human rights and fundamental freedoms”; in what way can this be seen as part of their mandate in regulating legal professionals? Each of these questions is worthy of serious consideration and could have been the subject of fruitful analysis. This is one area in which an otherwise thorough article might have benefited from some elaboration.
A different way forward is also presented in the piece. Along with proposing a model human rights lawyer oath, Bartlett puts forward examples of how oaths in three American jurisdictions (Ohio, Missouri, and California) could be updated with relatively minor changes in language. Bartlett’s suggested rewording includes a pledge to give “due consideration to safeguarding fair, equal, and meaningful access to justice for all” but does not reference “human rights and fundamental freedoms.” This raised another unanswered question for me: might referencing “access to justice” in lawyer’s oaths be more appropriate than pledges referring to “human rights”? Although “access to justice” is also a contested concept, it does seem more directly connected to lawyering and lawyer regulation than “human rights” while still providing a public interest, aspirational lodestar for new lawyers.
Outstanding questions aside, Bartlett did convince me – someone who was previously highly skeptical of the entire practice of new lawyer oaths – that there is likely something worth retaining here. Having a ritual that allows new lawyers to reflect on their professional obligations and ideals seems to be a very good and worthwhile thing, assuming we can get the language right. Even if one doesn’t fully agree with Bartlett’s thought-provoking proposal of turning to human rights norms as a way to modernize lawyer oaths, her article provides a helpful and needed prompt for further discussions about reforming this age-old regulatory ritual to meet the needs and demands of our time. I’ll be adding this article to my class syllabus next term and look forward to hearing from law students about what they think they should soon be promising as new additions to the legal profession!
- The claimants in these cases are lawyer applicants who, among other things, understand their belief systems to be inconsistent with pledging allegiance to a monarch. For an excellent summary of these legal challenges, see Anna Lund, “Alberta’s mandatory oath of allegiance is systemic discrimination” CBA National Magazine (March 8, 2023). See, also, Wirring v. Law Society of Alberta, 2023 ABKB 580.
- One example provided by Bartlett is In re Kalil’s Case, 773 A.2d 647 (N.H.2001) wherein “the New Hampshire Supreme Court suspended an attorney for three months for failing to honor a statement in the lawyer’s oath that promised that lawyers ‘will do no falsehood, nor consent that any be done in the court.’” (P. 434.)
