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Officers of the Court? Don't Be So Sure

By Tom Van Flein

We have always assumed that as attorneys we were also "officers of the court." At parties and special occasions, when asked what we did, many of us say in clipped military cadence, "Officer of the Court" followed by our seven digit bar number. For awhile it was trendy to have jackets embossed with "OOTC" on the back in the same style as "ATF" or "DEA." That trend waned somewhere around the whole Branch Davidian episode.

The belief that we really are officers of the court is not entirely unreasonable. It is mentioned in cases: "But attorneys are officers of the court, and they owe a duty of candor to the court." Tyler v. State, 2001 WL 1075170 p. 14 (Alaska App. 2001). It's in the Bar Rules. Bar Rule 9(a) provides that a "license to practice law in Alaska is a continuing proclamation . . . that the holder is fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and counselor, and to act as an officer of the courts."

No one ever really defined what it means to be an "officer of the court." Apparently there is no payment for being an "officer of the court." (The Bar Rag researcher checked). Nor do lawyers automatically get vested with the state retirement system for our work as "officers of the court."

The reason we don't get paid, don't get state retirement benefits, and no longer get a nifty jacket for being "officers of the court" is because, as regular lawyers, we are not really "officers of the court" in Alaska. In DeLisio v. Alaska Superior Court, 740 P.2d 437, 441 (Alaska 1987), the Alaska Supreme Court concluded that lawyers were akin to English barristers, who were not officers of the court:

The role of the English barrister, on the other hand, appears to have been similar to that of today's trial attorney. Barristers have never been treated as officers of the court . . .

The Delisio court distinguished olde English "attorneys" from olde English "barristers" noting that "English 'attorneys' were indeed treated as officers of the court, but the English 'attorney' resembled a court clerk whose primary functions were ministerial. The court had direct control over these officers and granted them important privileges, such as exemption from suit in another court, serving in the militia and being compelled to hold another office." Delisio 740 P.2d at 441. As regular American attorneys, we do not get these special privileges. "These privileges are not now available to the American attorney and have been unavailable for some time. The Indiana Supreme Court determined over a century ago that the role of attorneys in the United States is not comparable to that of English attorneys." Delisio, 740 P.2d at 441.

There it is, in black and white; we are not officers of the court. Even more depressing, we were again foiled by the Indiana Supreme Court. Isn't that the same court that ruled that attorneys could not wear Carhartts during opening argument? See In re Pig Farm Litigation, 555 N.W. 2d 555 (Ind. 1984). (But see the vigorous dissent, pointing out that "Carhartts are the uniform of the working person. Old fashioned notions of decorum must give way to freedom of expression").
Even more insulting, our profession has now been apparently deprived of "all its odious distinctions and peculiar emoluments" that we had centuries ago. DeLisio v. Alaska Superior Court, 740 P.2d 437, 441 (Alaska 1987). After years of law school and passing the bar examination, who wasn't looking forward to at least a few "odious distinctions" and perhaps one or two "peculiar emoluments"? I know of one or two peculiar emoluments that could come in handy once in awhile. The more peculiar the better, I always said.

Since the Delisio decision, the Alaska Supreme Court has made only one reference to the concept of "officer of the court," although it did so by quoting a case that preceded Delisio by 23 years. Disciplinary Matter Involving Triem, 929 P.2d 634, 640 (Alaska 1996) ("A disciplinary proceeding ... is . . . an exercise of the inherent power and jurisdiction of this court over attorneys as officers of the court) (quoting In re Mackay, 416 P.2d 823, 838 (Alaska 1964)).

The court of appeals continues to bring vitality to the idea, not quite ready to bury this anachronism next the robes, wigs and 500 word sentences of our legal ancestors. See Pinkerton v. State, 784 P.2d 671. 674 (Alaska App. 1989) ("The prosecutor is an officer of the court"); Miles v. State, 825 P.2d 904, 906 (Alaska App. 1992) ("In the future, to comply with the Cooksey/Oveson rule, the prosecuting attorney, as an officer of the court, must certify that the issue which the defendant proposes to appeal is dispositive").

But if lawyers are not really officers of the court, how do we reconcile the fact that court appointed psychologists were found to be officers of the court. In Lythgoe v. Guinn, 884 P.2d 1085, 1088 (Alaska 1994), the court stated that appointed psychologists are non-judicial persons fulfilling quasi-judicial functions and are classified as officers of the court with functions intimately related to the judicial process. And what about probation officers: probation officers are labeled "officers of the superior court" in AS 33.05.030. Perhaps, but the court in Smith v. State, Dept. of Corrections, 872 P.2d 1218, 1227 (Alaska 1994), reasoned that the "mere label 'officer of the court' does not necessarily make probation officers core members of the judicial branch of government."

I sense a pattern here. Lawyers, and maybe probation officers, are "officers of the court" for some purposes, like being candid with the court, but not when it comes to the good stuff like getting "peculiar emoluments." Well, they can take away those "odious distinctions" and the "peculiar emoluments" but they can't take away those nifty jackets or the pride that goes with them. And they can't stop us from saying, "Your Honor, as an officer of the court" as long as we immediately follow that with "sort of, but not really."

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