Thomas McDow’s annotated attorney’s oath

Posted Friday, April 29th, 2011 by Thomas McDow
Filed under Of Interest to Family Law Attorneys, Rules of Professional (Lawyer) Conduct, South Carolina Specific

From guest blogger, Thomas F. McDow of the Law Office of Thomas F. McDow in Rock Hill, South Carolina

Attorney’s Oath, Mandated by Rule 402(k), SCACR

I do solemnly swear (or affirm) that:

I am duly qualified, according to the Constitution of this State, to exercise the duties of the office to which I have been appointed, and that I will, to the best of my ability, discharge those duties and will preserve, protect and defend the Constitution of this State and of the United States;[1]

I will maintain the respect and courtesy due to courts of justice, judicial officers, and those who assist them;[2]

To my clients,[3] I pledge faithfulness,[4] competence,[5] diligence,[6] good judgment[7] and prompt communication;[8]

To opposing parties and their counsel,[9] I pledge fairness,[10] integrity, and civility,[11] not only in court, but also in all written and oral communications;[12]

I will not pursue or maintain any suit or proceeding which appears to me to be unjust nor maintain any defenses except those I believe to be honestly debatable under the law of the land, but this obligation shall not prevent me from defending a person charged with a crime;

I will employ for the purpose of maintaining the causes confided to me only such means as are consistent with trust and honor and the principles of professionalism, and will never seek to mislead an opposing party, the judge or jury by a false statement of fact or law;

I will respect and preserve inviolate the confidences of my clients, and will accept no compensation in connection with a client’s business except from the client or with the client’s knowledge and approval;

I will maintain the dignity of the legal system[13] and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;[14]

I will assist the defenseless or oppressed by ensuring that justice is available to all citizens[15] and will not delay any person’s cause for profit or malice;[16]

[So help me God.][17]

[1]Is this an affirmative active duty or a mere passive duty? How does this apply to solicitors and attorneys-general who constantly seek an erosions of rights guaranteed by the Bill of Rights? Is one who participates in corporate prayer at a governmental function violating his or her oath?

[2]The words “and courtesy” and “and those who assist them” were added after the 1968 version. What respect and courtesy are due to those who are rude, arrogant, and incompetent?

[3]This is new. Probably half of the lawyers fail the test of competency and almost all of us fail in diligence and proper communication. Good judgment is often lacking. In addition to punishing for violation of ethical rules, will the Supreme Court of South Carolina punish lawyers for violation of their oath of office?

[4]What is faithfulness? Client confidentiality is addressed in another paragraph. Does this just mean avoiding conflicts of interest?

[5]How do we measure competence? Is it sufficient to have passed the bar exam?  Is competence a relative or absolute term? What about lawyers who are competent in their areas of expertise but are appointed to represent clients outside their areas of expertise?

[6]What is diligence, not missing deadlines or getting work done at the first opportunity? Are repeated extensions of time, for example in an appellate case, a lack of diligence? What if the burden is on the adverse lawyer who is not exercising due diligence, does this create a duty to push the other lawyer?

[7]Is the test based on the present or is it based on hind sight? Frequently actions that appear rational at the time are seen as extremely poor judgment in hind sight. Is there an argument that almost every verdict is the result of poor judgment by the losing lawyer?

[8]The two most prevalent complaints of clients are that they are not kept informed and that their telephone calls are not returned. What is prompt communication? What delays are permissible for other cases and other clients?

[9]This is new.

[10]What is “fairness?” Judge Wilburn always said that fair has nothing to do with court; that the fair comes once a year and that is in October. Is it fair to seek a default against an incompetent attorney or one lacking in diligence? It is fair to assert adultery as a defense to a claim of alimony when the adulterous wife was physically abused by a drunken and philandering husband for twenty years?

[11]If Jesus Christ, who preached the ultimate civility of turning the other cheek (Luke 6:29), threw the money changers out of the temple (Matthew 21:12), are lawyers permitted to express anger at injustice and those who perpetrate it?

[12]Is there any room for humor? What about the light comment intended as humor that the humorless recipient finds insulting? Are certain words, such as outrageous and reprehensible, prohibited? Can one ever refer to a statement as a lie or the utterer as a liar? Can the prosecutor refer to the defendant charged with grand larceny as a thief?  Is everything acceptable so long as the closing on the letter is “With best personal regards”?

[13]This presupposes the dignity of the legal system. When I see unqualified judges and incompetent lawyers, I do not recognize much dignity to preserve. Is this a reaffirmation of the duty to report unethical conduct as required by Rule 407, SCACR, Rule 8.3?

[14]What does the phrase “unless required by the justice of the cause” modify?  Does it apply to maintaining the dignity of the legal system or does it only apply to advancing facts prejudicial to the honor or reputation of a party or witness?

[15]What does this duty entail? Representing everyone with a sad story who appears at the office or voting for candidates who pledge to improve the system? This is a practical impossibility. There are too many defenseless and oppressed persons and not enough lawyers. As a practical matter, lawyers reject many cases of clients who are able and willing to pay because the case is not economically viable. Many injustices do not involve large sums of money. It would frequently be easier and cheaper to pay the claim of the defenseless or oppressed rather than try to represent them. Lawyers have traditionally represented indigent criminal defendants pro bono but much of that duty has been absorbed by The State in the aftermath of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Appointments to criminal cases, post-conviction relief cases, and family court termination of parental rights cases are more than lawyers can handle, even if they were so inclined, which most are not.

[16]Previously this read “I will never reject, from any consideration personal to myself the cause of the defenseless or oppressed, or delay any man’s cause for lucre or malice.”

[17]Why is this in brackets? May the Supreme Court require one to take an oath to God without violating the oath to support the Constitutions of South Carolina and the United States?

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