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: Slaw.ca

Lawyers? Oaths and Plain Language

By Simon Fodden

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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?

Full post as published by Slaw.ca on January 26, 2011 (boomark / email).