The Lawyer Is an Officer of the Court, Sui Generis

To find the most authoritative contours of the common-law meaning of “officer of the court,” I analyze instances of its use in the opinions of the U.S. Supreme Court. I find that while different aspects of its meaning are emphasized in different contexts, a fundamentally consistent definition is clearly identifiable. 

This observation is helpful in sorting out confusion in the literature about what it means for a lawyer to be an officer of the court. A lawyer is clearly an “officer of the court,” as is demonstrated by the Court’s use of the term in a variety of contexts. 

There are also other genres of officer of the court. For example, judicial officers exercise discretion to decide the common law, while administrative officers do not. The lawyer is neither of these. Instead, the lawyer exercises independent professional discretion in providing counsel to a client, within bounds set by the court. 

The lawyer is a special kind of officer, functioning not within the legislative or executive realms but the judicial, and then not as a judge or administrator, but in a unique sense. Accordingly, when the Court distinguishes a lawyer from a political officer or from an administrative or ministerial officer of the court, the Court does not divest the lawyer of her office, but simply indicates what kind of officer she is. 

For example, the Court notes that a prosecutor requires immunity from liability under 42 U.S.C. § 1983 when functioning “as ‘an officer of the court,’” so that she may exercise her professional judgment in performing her basic trial advocacy duties” independently of the threat of a retaliatory lawsuit from a criminal defendant. 

The Court thus identifies the prosecutor as an officer of the court with a basic duty to advocate for the State her advocacy duties inhere in her role as an officer of the court, and are distinguishable from other administrative duties she may have that are deemed functionally not to pertain to that role.

Her role as an officer of the court affords the prosecutor immunity to support her advocacy function which flows from and does not relieve her of her primary duty to uphold the law and protect the integrity of the judicial process.

In a contrasting example, the Court regards the public defender differently from the prosecutor in informative respects. In Ferri v. Ackerman the Court defines another contour of the lawyer’s role as an officer of the court: a lawyer appointed pursuant to the Criminal Justice Act by a federal court to represent an indigent criminal defendant was deemed not to be entitled to absolute immunity from a malpractice suit by the defendant.

Though both are federal officers, the pivotal difference between the prosecutor (who represents the state) and the public defender (who represents a client against the state) is that to perform her duties of representation as an officer of the court, the public defender must be able “to act independently of the Government and oppose it in adversary litigation.” 

The Court held that because the lawyer had been appointed to represent a party adverse to the state, the primary rationale for granting immunity to judges and prosecutors who need “the maximum ability to deal fearlessly and impartially with the public at large” did not apply to her: while immunity from liability to a criminal defendant “for certain claims arising out of the performance of their official duties” helps the judge and prosecutor perform their official functions, such immunity from suit by a client criminal defendant would not help appointed defense counsel perform her official function as a court officer entrusted with representing the accused.

By ignoring the bolded language, one could mistakenly read Ferri to state that defense counsel is not an officer of the court, and owes duties only to the undivided interests of her client. Instead even in this limit of representing the private criminal defendant against the public the Court maintains the lawyer’s foundational duty to the public as an officer of the court. 

Then, given that duty, her principal responsibility as a public defender is to represent criminal defendants against the state. In Dodson the Chief Justice peels the onion of the lawyer’s duties, which run first to the court that commissioned her as its officer, in turn to represent the accused client against the state and emphasizes that this duty-structure is independent of the lawyer’s source of compensation. 

This point has at least as much force when the client is not adverse to the state: the lawyer is an officer of the court who serves the court by representing a client before it, regardless of whether and how much the client pays the lawyer for the service of representation.

To the extent that the “standard conception” of the lawyer relies on the client’s payment for the lawyer’s legal services, the standard conception is insupportable. 

In Griffiths the Court makes a similar distinction in considering the Constitutionality of a state’s requiring citizenship for admission to its bar: though lawyers are officers of the court, they are not therefore political officers; thus, a bar applicant may be required to take the oath of office in good faith, but may not be required to be a citizen of the state.

The Griffiths Court opines that “the duty of the lawyer, subject to his role as an ‘officer of the court,’ is to further the interests of his clients by all lawful means, even when those interests are in conflict with the interests of the United States or of a State.”

This description of the lawyer is vulnerable to misinterpretation: a citation that elides or simply ignores the bolded language strips the lawyer of her primary professional identity as an officer of the court, rendering her merely an agent of her client.

Distinction between the officer of the court and the political officer may strengthen the independence and credibility of the judiciary by separating the judicial from the other branches of government: the affirmation that the lawyer is a court officer indicates that the lawyer clearly serves the state by assisting the judiciary in the administration of justice, though she does not directly determine state policy.

Chief Justice Burger’s view in Patterson v. General Motors Corp. recalls that of Justice Field in Ex parte Garland, which was influenced by Judge Selden’s analysis in In re Cooper. Cooper reviewed the history of those who represent clients before a court over several hundred years; Judge Selden noted that “attorneys [are] a class of public officers” and “not only officers of the court, but officers whose duties relate almost exclusively to proceedings of a judicial nature.” 

Thus, though distinctions between the officer of the court and other kinds of public officer have arisen in various contexts over time, they have not unmoored the lawyer from her role as an officer of the court in Supreme Court jurisprudence.

The contexts in which these distinctions have placed the most pressure on the lawyer’s role as a subject of the court are as in the context of the public defender adverse to the state those in which the lawyer’s ability to exercise her independent professional judgment most requires protection.

The Court noted that lawyers are officers of the court, but that a lawyer is not a conventional kind of officer. The Court emphasized that the lawyer is (also) engaged in a profession in which she makes her own decisions and runs her own business, to illustrate that lawyers need a space in which to exercise their professional judgment without fear of retribution from an unruly judge.

The Cammer Court was working very carefully to protect the lawyer’s ability to exercise her independent professional judgment from the judge’s power to hold the lawyer in contempt without due process; to protect lawyers from this kind of arbitrary exercise of judicial power, the Court distinguished lawyers as officers of the court from other kinds of court officers to whom the statute would apply.

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