Law society benchers have told an ad hoc committee to go back to the drawing board on the contentious task of revamping the lawyers’ oath of office.
Bencher Bob Aaron - who said he found the proposed oath “personally offensive” - told November Convocation that the proposed oath was irrelevant to solicitors.
“Where does it fit into the ‘rule of law,’ the ‘dignity of the court,’ when someone is about to take this oath and plans to spend his entire career, or her entire career, drafting wills, trusts, doing corporations, shareholder agreements, leases, real estate transactions . . . ?” asked Aaron. “There’s nothing in here about that. We completely ignored the half of this profession that are solicitors.”
Concerns regarding the new oath were part of a motion passed at the LSUC’s 2008 annual general meeting, held in May. The motion called for amendments to the law society’s bylaws to replace the term “licensee” with “lawyers” or “barristers and solicitors,” and asks that lawyers in good standing be called “members.”
The law society also received a letter regarding the oath in October 2007 from Rexdale Community Legal Clinic lawyer Karen Andrews. Her concerns included dismay the oath had been rewritten and lawyers and paralegals now swear essentially the same oath.
The oath was altered in April 2007, when the law society passed an omnibus motion amending its bylaws in preparation for the start of paralegal regulation on May 1, 2007.
The professional development and competence committee created the working group on the lawyers’ oath of office in April 2008. Benchers Heather Ross, Susan Hare, and Alan Silverstein were appointed to it. They are expected to come back to Convocation next month with another proposed oath.
Bencher Jack Braithwaite said the motion passed at the annual general meeting was directed toward restoring the traditional oath, and that the working group’s efforts to completely overhaul the oath would inevitably lead to criticism.
“At the end of the day, no matter how good or all-inclusive on the surface it may be, it still will not satisfy, I would suggest, the person who dropped this motion [at the AGM], and I would also suggest it will not satisfy the people in the community.”
Braithwaite said it may be necessary to go to the professions for consultation on the new oath, “and that’ll go on forever.”
In a general critique of the style of the proposed oath, Bencher Tom Heintzman said, “I find the new oath, as heroic as it may be, not as solid, not as dignified, not as clear, and not as directed to lawyers rather than the public at large.”
However, the working group got the support of paralegal Bencher Paul Dray, who said he would be happy to swear to the proposed oath. He said paralegals and lawyers have the same professional obligations, and should therefore swear the same oath.
“The good character of a paralegal is identical to that of a lawyer,” said Dray. “When it comes to my responsibility to the court . . . I have the same responsibilities as a lawyer. I have the same responsibility to clients as a lawyer has, I have the same confidentiality rules; I have the same trust rules.”
Treasurer Derry Millar backed Dray’s view.
“I think Mr. Dray makes a good point and I’d like to have the committee look at that,” Millar told Convocation.
The November report from the working group lists the concerns from Andrews and the AGM motion as follows: lawyers were against being considered a “class of licensee” rather than members; changes to the barristers’ oath are undesirable, and the changes don’t address lawyers’ obligation to guarantee access to justice; and that the lawyers’ oath must be “unique and distinct” from the paralegal oath.
The working group’s report points to the historical importance of the oath. It notes that the legal profession’s history can be traced back over 1,100 years, and that, “An official oath of office has always been required for admission to the practice of law since the recognition of the profession of law.”
The working group’s report further states, “The significance of the lawyer’s oath is that it stamps the lawyer as an officer of the state, with rights, powers, and duties as important as those of the judges of the courts themselves.”
The proposed oath was drafted to highlight the “essential principles” of lawyers’ ethical obligations, the working group noted, including “honour, good faith, integrity, honesty, fairness, courtesy, and civility,” according to the report. The working group also drafted the oath to “abandon negative, prohibitive, and prescriptive language in favour of an oath expressed to be in the first person.”