Lawyers’ Oaths and Plain Language

Thanks to a post in the Legal Skills Blog, I was directed to a recent article [PDF] in the Michigan Bar Journal in which Professor Joseph Kimble parses the current lawyer’s oath and a plain language version promoted unsuccessfully a decade ago. There’s a helpful table in the article enabling you to compare “ancient and modern,” as it were, clause by clause. I won’t reproduce that here; I’ll only give you a few brief samples to give you the idea:

I do solemnly swear (or affirm):

For the privilege of joining the State Bar of Michigan, I promise:

I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;

I will pursue my client’s case with truth and honor; I will never mislead a judge or jury, and will never delay a case for money or malice;

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any cause for lucre or malice;

I will not, for personal reasons, reject the cause of the defenseless or oppressed;

I’ve tried to take a look at the various Canadian oaths, but it’s surprisingly difficult to find them online. (I’d appreciate help here from the real researchers.) I’ve managed to locate an online source for the Ontario (a.k.a. Upper Canada) version, which now combines the barrister’s and solicitor’s oaths into one [s.21(1) of By-Law 4, Law Society of Upper Canada – PDF – as of Oct. 2010]:

I accept the honour and privilege, duty and responsibility of practising law as a barrister and solicitor in the Province of Ontario. I shall protect and defend the rights and interests of such persons as may employ me. I shall conduct all cases faithfully and to the best of my ability. I shall neglect no one’s interest and shall faithfully serve and diligently represent the best interests of my client. I shall not refuse causes of complaint reasonably founded, nor shall I promote suits upon frivolous pretences. I shall not pervert the law to favour or prejudice any one, but in all things I shall conduct myself honestly and with integrity and civility. I shall seek to ensure access to justice and access to legal services. I shall seek to improve the administration of justice. I shall champion the rule of law and safeguard the rights and freedoms of all persons. I shall strictly observe and uphold the ethical standards that govern my profession. All this I do swear or affirm to observe and perform to the best of my knowledge and ability.

This is not obscure, but it’s also not as simple or direct as it might be. For one thing, it starts of with a whole lot of “X and Y” redundancies or near redundancies, which only perpetuates a bad tendency in law of the “null and void” sort. And oddly, for a new oath deliberately cast in somewhat old-fashioned language, it uses “I shall” where “I will” might have been preferable as indicating willingness, desire and intention in that same old-fashioned language.

With this as the desired verbal door into the profession, is it any wonder that some (many? most?) lawyers still have a hard time writing in plain English?

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Comments

  1. Alberta’s is here:

    http://www.lesaonline.org/samples/24_21_04_p1.pdf

    “That I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors according to the law.
    That I will as a Barrister and Solicitor conduct all causes and matters faithfully and to the best of my ability. I will not seek to destroy anyone’s property. I will not promote suits upon frivolous pretences. I will not pervert the law to favor or prejudice anyone, but in all things will conduct myself truly and with integrity. I
    will uphold and maintain the Sovereign’s interest and that of my fellow citizens according to the law in force in Alberta.”

  2. Thanks, Mike, for the Alberta oath.

    I’ve been pointed to the minutes of Convocation in 2008 of the Law Society of Upper Canada [PDF], where a revision to the oath was considered. There’s a particularly interesting history of the lawyer’s oath there as well.

  3. Does the law of Alberta include the law of Canada? Where there is a conflict, which takes precedence? Is there a heuristic in the firewall for this situation?

  4. For those who are inclined to conclude that comment #3 is just “Cheifetz being Cheifetz”, you’re right about me being me, but you’ve overlooked the “just”.

    Remember that we – even those of you in Alberta – live in a federal and not unitary state.

    Imagine a situation where an Alberta QB judge – trial judge for those of you who don’t (reasonably) know what QB means – acquits an accused who has been charged with some offence under the Criminal Code. The basis for the decision is that the alleged conduct is not contrary to the CC provision(s) and, even if it were, those provisions are unconstitutional. There are no contrary Alberta decisions. The issue hasn’t been considered by the Alberta Court of Appeal or the Supreme Court of Canada. Next, imagine that there is, concurrently, a contrary decision or three out of at least the courts of Ontario, whether trial or appellate.

    Also, let’s make the accused person a born-in-Alberta, card-carrying member of first the Social Credit, then the Reformers, then the Crappers, now the Conservatives, and full-time resident of the riding in Calgary which elected, to Parliament, that former resident of certain parts of Toronto.

    The federal gov’t – the party currently in power in Ottawa which asserts loyalty to the truth as revealed only to select few: hmmmm … sounds like Scientology, but we won’t go there have to go there – decides that it wishes to appeal the Alberta decision. The A.G for Canada whispers in the ear of the appropriate Deputy Minister etc and, in due course, the instructions filter down to the approach federal Crown office in Alberta.

    Can a lawyer who is a member of the Alberta bar argue the Crown’s brief. Isn’t that, literally, arguing against the law in force in Alberta? Not “uphold[ing] and maintain[ing] the Sovereign’s interest and that of my fellow citizens according to the law in force in Alberta”? Or, in this case, does the apparent interest of the Sovereign allowing the Alberta-called lawyer to argue against the interest of the acquitted Albertan – since the the fed gov’t in this case is expressing the “Sovereign’s interest”?

    Sometimes the consequences of plain language aren’t so plain, not the least because the situation to which the proponents wish to apply the “plain” language isn’t plain at all.

    Or, as Ricky once said to Lucy; “you’ve got some ‘splainin’ to do.”

  5. the “appropriate federal Crown office in Alberta”.

  6. I had no idea that love of the monarchy was so strong in Alberta. The Alberta wording is so strong I wonder if an Alberta lawyer risks treason if he or she were to join an anti-monarchist league!

    Shouldn’t we instead merely be agreeing to uphold the rule of law?

    One of my favourite courses in law school was the seminar by Professor Mark Weisberg at Queen’s Law that used White’s The Legal Imagination text to discuss how and why lawyers use language (and in part what it says about lawyers when they use the language that they do).

    The oath that lawyers are required to take at the start of their careers is particularly interesting, although I suspect most young lawyers are so thrilled to be called to the Bar after all of their studies that they are not likely to question the wording.

    I was uppity enough when I practiced to unilaterally change the jurat (a good legal word!) or “signing clause” at the end of affidavits from the standard “Sworn before me in the City of _________, in the Province of _________ this __ day of __________, 19__” to the more friendly “Signed[correction – Jan 28/11: Sworn] before me in Vancouver, British Columbia on March 2, 1989.” A small and perhaps trite example but I took my victories where I could.

    A more puzzling challenge was attempting to draft my own will and the problem of dealing with the legalese in most will precedents. What does one want one’s dying words to be? While I appreciate that a will is a legal document and does not need (and likely should not be) poetry written in iambic pentameter, it is in a way a very personal document, so there is a fine line between creating the legal effects that one intends to pass one’s property on death versus saying so in language that is not completely devoid of feelings.

  7. Ted,

    One’s choice, unfortunately, when writing law or about law, is too often between clarity and elegance. We should strive for clarity. We fail, often. Some might say “too often”.

    “We too often fail” is the – would have been the? – the more elegant way to phrase the point of the last two sentences. But is it clearer?

    I sometimes get the impression that the plain language adherents believe that language phrasing can be made as precise as mathematical phrasing. Maybe it is the case that that is possible in some languages for some concepts. English, however, is a remarkably flexible, powerful language. That flexibility and power, though, often exists at the expense of “exactness” – there’s probably a better word but I can’t think of it, now. The concept is “the ability to restrict or eliminate ambiguity” (Maybe German has the term. It tends to have single-word terms for almost everything, even if some are longer than complete English sentences.)

    David

  8. Good for you, Ted, for being thoughtful about meaning and tone. It’s the self-importance of the archaic language that bothers me, as much as the ambiguities and redundancies.

  9. As a lay litigant whose long legal battle has been largely about the use and abuse of language in law, I believe my lack of formal education may be more of an asset than a liability.

    At the outset I was confronted with a particular question about language whose importance I vastly underestimated. Serendipitously I received a pristine copy of David Mellinkoff’s “Legal Writing: Sense and Nonsense” that had been rescued from the municipal waste disposal system. I was particularly interested in what it said about legal terms of art and what Mellinkoff called “argot”. I suspected that “prima facie case” was an example of the latter and was surprised to find it not mentioned once in that book.

    Generally “prima facie” appears followed by “evidence”, “proof”, or “case”, but sometimes it appears alone. Always, it is italicized, which I presume signifies it isn’t English. It is remarkable how frequently these terms are still thrown about by lawyers, including judges, considering the clear warning articulated in “The Law of Evidence in Canada”.

    As I’ve said before, the history of the use of “prima facie case” in particular needs to be thoroughly examined. Then I believe the legal establishment would have to admit that talk of a “prima facie case standard” is absurd. And dangerous.

  10. I don’t think the better plain language advocates are as mechanistic as David C alleges. Excellent work was done in BC in the 1990s by the Plain Language Institute, which I think later died for lack of funds. Good sense is written by David Mellinkoff, to whom Chris B refers, and others.

    There is no single way to express something accurately, and sometimes conciseness is not the governing criterion. What annoys plain language advocates is some lawyers’ insistence that the archaic, duplicative and sometimes incoherent 18th century precedents are more ‘certain’ than text that says what it means. There are lots of examples of how plain language saves time and money and pleases judges more than archaisms.

    Avoiding ambiguity can be hard. Choosing the right degree of generality can be hard. Sometimes the difficulty is a matter of legal judgment and sometimes of stylistic judgment. Good lawyers are paid (often well) to have good judgment on both fronts.

    Ted, I would not have replaced the word ‘sworn’ by ‘signed’ in the jurat, but the rest is an improvement on the rather stuffy traditional format.

  11. Yikes! I think that was simply careless typing by me in Comment 6 above. I agree re the need for “Sworn” and am fairly certain that is what I would have done. I will edit Comment 6 to reflect that!

  12. John,

    Absent a statute stating that X means Y – we’ll assume that the text of Y is not ambiguous – our system works on precedent. What too many of the plain language advocates forget is that different parts of the profession function under different constraints. The “better” meaning of the text of a contract or other document isn’t an issue until there’s a dispute that call for the interpretation of that document. The unfortunate truth is that some of the archaic redundancies have a precise, settled, meaning. If you can’t guarantee that the plain language replacements mean precisely what their predecessors did, you might be creating a recipe for problems. At the least, you’re increasing the risk that some unsuspecting litigant will have to line the pockets of a litigator.

    I am not advocating retention of the forms, so that they will continue to rule us from their graves. Those who know me in practice know that I try to avoid traditional jargon as much as possible. I am saying that care has to be taken when moving from defined terms to putative replacements and people have to be warned of the risk.

    David

  13. David, I agree that the old precedents and forms have their use, though I would challenge the assertion that people really know what they mean and why, or that they are always actually meaningful. They tend to inspire archaic drafting styles in current use, because people think that’s what legal documents are supposed to sound like.

    But I know lawyers who hated word-processed standard form contracts replacing the old printed Dye & Durham or Newsome & Gilbert forms, because they had to read all the text and figure out why any changes had been made, while with the known printed forms they just had to see what had been stroked out or written in by hand.

    I believe that when one of the big banks – I think Scotia Bank – a decade or two ago rewrote all their consumer banking documents in plain language, it cost a ton of money for their lawyers to check all the new language to ensure that it covered all the legal basis of the old obscure ones.

    So switching to plain language has its challenges. I would suggest however that legal bodies, notably legal regulatory bodies, should use modern and plain language in oaths and suggested models (like the non-retention letters discussed by Dan Pinnington lately.)

  14. Benjamin Britton

    “Does the law of Alberta include the law of Canada? Where there is a conflict, which takes precedence? Is there a heuristic in the firewall for this situation?”

    Swearing allegiance to Her Majesty the Queen is the same as swearing allegiance to Canada and the supremacy of Canadian law, as embodied by the Sovereign. So yes, Canadian law trumps Alberta law even under this oath.