Buffalo Law Review
Agency, gatekeeper, officer of the court, client loyalty, duty of client loyalty
The law of agency has governed American lawyers since before the Revolution, but recent scholarship about legal ethics and professional role almost entirely ignores it. Most commentators would concede that attorneys are agents, but would quickly add that the lawyer is also an "officer of the court" who has obligations to seek justice. However, analysis of the phrase "officer of the court" reveals that it has surprisingly little content; it is mostly rhetoric, caused by self-love and self-promotion. What little content it has points to a role of the attorney as agent whose obligations to the court are almost identical to those owed by non-lawyers and almost entirely consistent with duties to clients. By largely ignoring agency law, and failing to throughly examine the attorney's role as an "officer of the court," commentators have mistakenly grounded wide ranging arguments that lawyers must seek "justice" because they are officers of the court who have a special obligation to seek justice. Lawyers do perform a screening or gate-keeping function for the courts, society, and clients. Allegations or responses that are without foundation may not be made. Courts, therefore, have some-assurance that complaints and defenses have some merit. However, non-lawyers are also prohibited from making claims or asserting defenses that are without merit, thus, lawyers do not have a special, or unique gate-keeping role. This article will demonstrate that agency law provides a sound framework for examining even the most vexing ethical and role issues. In particular, the role issues at the junction of zealous advocate and "officer of the court" are explored. In Part I, the concept "officer of the court" is examined to determine its content. The attempt by prominent commentators to ground a substantive duty to seek justice in the lawyer's role as an "officer of the court" is noted and then critically examined from a historical and modern perspective. The 19th century writers David Hoffman, and George Sharswood, considered the father of legal ethics, are scrutinized. Then, attorney as an "officer of the court" in medieval England, the Roman Empire, and Greece is briefly discussed. In Part II, agency law and the role of the lawyer as agent will be discussed. A short historical excursion to ancient Greece, Rome, and England will be taken to show the role of the lawyer as agent in those societies. We will discover that common to all three societies is a role in which an individual assists a party in legal proceedings at the party's direction. Finally, Part III, examines agency law to determine if it can provide content to the label "officer of the court." Also discussed in Part III is whether the lawyer's role within our adversary system should ever include a substantive duty to the court to seek justice that is inconsistent with the duty of client loyalty.
James A. Cohen,
Lawyer Role, Agency Law, and the Characterization Officer of the Court , 48 Buff. L. Rev. 349
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/296