History of Deceit

For example Edward Coke wrote:

“Before this statute . . . serjeaunts, apprentices, attorneys, clerks of the kings courts, and others did practice and put in use unlawful shifts and devices so cunningly contrived (and especially in the cases of great men) in deceit of the kings courts, as oftentimes the judges of the same were by such crafty and sinister shifts and practices invegled and beguiled, which was against the common law, and therefore this act was made in affirmance of the common law.”

See, Edward Coke, The Second Part of the Institutes of the Laws of England,  (1817), supra note 167, at Cap. XXIX. According to J.H. Baker, the statute was not limited in application to the offense of fraud upon the court. The statute was also used to address a lawyer’s breach of the duty of loyalty, including “ ‘ambidextry,’ the offence of taking fees from both sides, or for disclosing counsel to adversaries.” J.H. Baker, an Introduction To English Legal History 187 (1971).

The Kings Court at that time, procedurally punished a lawyer who engaged in deceit or collusion to “perpetual silence in the Courts” known as “Silencing”. See Doe, on the demise of Bennett v. Hale and Davis, (1850) 117 Eng. Rep. 423 (K.B.) 428; See, also R v. Visitors to the Inns of Court, ex p. Calder, [1994] Q.B. 1 at 10 (Eng.) (referring to procedure of silencing). This early form of “perpetual silence” in the courts presented an early form of legislative control over the practice of law. See, Carol Rice Andrews, Standards of Conduct for Lawyers: An 800-Year Revolution, 57 SMU L. REV. 1385, 1394 (2004) (“The first Statute of Westminster in 1275 [is] commonly described as the first formal regulation of English lawyers”). The statute actually stayed on the books until 1948, when it was repealed. R v. Visitors to the Inns of Court, ex p. Calder, [1994]Q.B 1.

In 1708, the Connecticut statute contained an attorney oath prohibiting an attorney from doing any “falsehood” in court and bringing a “false or unlawful suit. See, Andrews, supra note 179, at 1417.

In 1721, Delaware’s oath of office provided that if attorneys “misbehave[d] themselves” by engaging in deceit or some other conduct prohibited by the oath, “they shall suffer such penalties and suspensions as Attornies at Law in Great Britain are liable to in such cases.” See Josiah Henery Benton, The Lawyers Official Oath and Office 42 (1909); see also id. at 70-72 (listing 1791 New Hampshire statute containing oath of office with similar language).