The meaning of an oath — in pandemic times

In our recent book, “I Swear: The Meaning of an Oath” (Vandeplas Pub., 2019), we examined the conflicts that oath takers encounter, told through the prism of particular stories of individual lawyers, doctors, journalists, presidents, jurors, clergy, etc.

That book, though, was published a lifetime ago – in November 2019 – before the world changed and the oaths taken by some took on radically different dimensions. Today, we have heroes as never before.  Heroes who endanger themselves every single day while we stay at home (our service to the cause, as it were). Some of our heroes have taken an oath – doctors, nurses, law enforcement – and some of them are merely doing their jobs. Jobs, by the way, which are necessary to allow us to buy groceries and work from home.  And while the oath takers we discussed in I Swear did things which, in many cases, were incredibly imposing and life altering, we are now presented with those whose adherence literally puts them in harm’s way or even death’s doorstep.

But is it adherence to their oaths, their code of ethical conduct?  No oath requires someone to put their life in danger for their patient, their client, their penitent.  At least not literally. Hippocrates (and then Maimonides) articulated the gold standard for physicians. Treat your patient, do no harm, maintain confidences.

But so many health care professionals do so much more.  They go to overcrowded hospitals with insufficient protective gear. People from all over arrived in New York City to help its overburdened system. They are on the front lines witnessing, and fighting, the death and despair around them. Doctors make house calls, to make sure their youngest patients get the care (and vaccinations) they need.

The Wall Street Journal reports that Dr. Thomas Huggett of the Lawndale Christian Health Center took his surgical mask (and virtually nothing else to protect himself) and waded deep into the petri dish of a crowd of homeless people on Chicago’s West Side. The reason?  He and his team had converted a boutique hotel into a homeless shelter for those at risk of contracting COVID-19. In exchange for their agreement to stay in their rooms, Dr. Huggett offered them food and medicine. Oh, and one more thing – he would be staying at the hotel with them.

The clergy. Jesus told his disciples to “go into the world and preach the gospel to all creation.” (Gospel of Mark 16:15). And priests take an oath obligating themselves to their penitents.  But the oath does not require that the priest take his life in his hands. Still, The New York Times reported, As They Console Coronavirus’s Victims, Italy’s Priests Are Dying Too. As of April 11, more than 60 priests died in Italy alone, tending to those dying with this unrelenting, and contagious pandemic. Rev. Claudio Del Monte, the article describes, wore “disposable scrubs, a surgical mask covered with another mask, protective eyewear and a cap over his head. On his chest he had drawn a black cross with a felt pen.”

Rabbis don’t take an oath.  But – as with health care professionals who are not doctors – the oath is not always necessary for someone to act.  Rabbi Charles Rudansky, director of Jewish Services and Spiritual Care at MJHS Hospice in New York serves those in hospice care. Loved ones can’t visit; they can’t see their family member who is ill, likely dying, often of COVID.  They can’t hold hands, or lean over for a kiss. So Rabbi Rudansky visits for them and, as is sadly often the case, takes the patient to the finish line. He is a messenger of sorts, making sure that those who are ill know their families are thinking about them.  And he brings peace to the families – letting them know he has visited their loved ones. Consider the risk to himself while “doing God’s work.”

Not to ignore Yaakov Shereshevsky, an Orthodox Jew and nurse at NYU Langone who, along with so many others, does his duty while risking his life.  But Mr. Shereshevsky does something else – he administers the Viduy prayer to terminal patients and then, as he describes it “scrapes off the COVID” when he comes home each evening.

Similarly, lawyers take an oath, and have for ages.  But it never required that lawyers put themselves at risk to their own physical safety.  Imagine, physically meeting with a client, today, to counsel him when he has been arrested – when speaking over the telephone might risk confidentiality or being ineffective, given that often you need to see your client’s mannerisms and demeanor to properly assess their story.

We read about the conditions in prisons. Inmates are seeking compassionate release on a daily basis. The conditions simply don’t allow for social distancing, or for taking any measures recommended by the CDC. Inmates literally live on top of one another. In an action brought on behalf of vulnerable inmates who claimed their medical needs were not being met, lawyer Katie Rosenfeld of the Emery, Celli law firm in New York, a correctional health expert and an attorney from Federal Defenders of New York actually toured the Metropolitan Detention Center, putting their own lives at risk.

Not to mention Gary D. Sowards, a 70 year old attorney, and therefore at an age that presents a high risk for COVID, who has been self-quarantined in New York and represents Khalid Shaikh Mohammed (KSM). Mohammed is housed in Guantanamo awaiting trial as the mastermind of the 9/11 attacks. In order to speak with his client, Sowards, doing his duty as he sees it as a lawyer, has requested to be able to travel to Alexandria to speak with his client over a secure phone at the Pentagon which would, of course, require that he leave his self-quarantine. But beyond that, as The New York Times reports on May 2, if Sowards wanted to meet with his client at Guantanimo, he would first be required to spend 14 days in quarantine on the island. Sowards is doing his work, well beyond “his job” as it were, for perhaps the most unpopular defendant in America.

Although not required to do so by any oath, many journalists choose to risk their lives, particularly when embedded during a war. And there are those who live and work in countries where journalists may be considered “threats,” and coverage of the pandemic is no different. Photojournalists – to do their jobs – visit health centers, senior homes and other places where the virus rages.

Many of us, today, complain about the torment of our daily experience caused by the harsh restrictions, maybe incursions, on our lives. But we’re not going out of our way to encounter risk, as do these individuals. It may well be that those described above did take oaths, unlike the rest of us — but the oaths they took didn’t require some generalized duty to throw caution to the wind and risk their own lives and safety (and that of their families) in the process.   The heroes we speak of have ventured far beyond the call of duty — whether dictated by an oath, or required simply by “who they are.”

U.S. District Judge Douglas Woodlock, who sits in Massachusetts, was asked just last week to allow a fraudster who was serving a 6-year sentence to be placed in home confinement given COVID-19 health considerations.  The judge, who took his own judicial oath, posited whether to borrow an oath from the medical professional – “First, Do No Harm” – when considering the request. “Perhaps taking a different oath for a different profession . . . — first, do no harm — that’s the kind of approach that I’m taking or I’m thinking about as a way to deal with restraints on ordinary judicial evaluation that we now face.” While the judge has not yet ruled, he acknowledged the potential serious consequence of delay. In his public ruminating over this challenging case, Judge Woodlock’s remarks gave evidence to the concept of one’s oath being considered more expansively when hostile times require it.

The Greek tragedian Aeschylus said: It is not the oath that makes us believe the man, but the man the oath. Aeschylus limited his aphorism to the characteristic of “truth telling” by oath takers. Today, instead, we honor the committed professional whose idiosyncratic adherence to his or her duty, as perceived by them in hard times — in pandemic times — easily surpasses the narrow requirements of the oath itself.

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Dale J. Degenshein co-authored this article.

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Stroock in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” Dale J. Degenshein assists in preparing the articles on this blog.The opinions expressed in this article are not necessarily those of the Stroock firm or its lawyers.
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