Zadok Paper S95 Autumn 1998
Ethics and the Adversary System
by Ken J. Crispin

The Paper: Is the judicial adversary system comparable to Winston Churchill's appraisal of democracy: that it was "the worst form of Government except for all those other forms that have been tried from time to time"? Or, as Ken Crispin QC argues, have the archaic ethical foundations of the adversary system compromised the pursuit of justice and truth. After all, he says, we are "the only profession in which its practitioners regularly regard it as their ethical duty to harm the interests of others".

The Author: Ken Crispin QC, who was for 25 years a barrister, is currently a Judge of the Supreme Court and is Chairman of the ACT Law Reform Commission. This paper draws on his P.h.D. thesis, entitled "Ethics and the Advocate".

Introduction

It was Shakespeare who offered the immortal suggestion: "the first thing we do, let's kill all the lawyers!"1 That splendidly evocative exclamation expressed a sentiment that was to strike a responsive chord throughout the ages. It reflected a hostility born of a deep and abiding suspicion which seems to have pervaded succeeding generations and spanned cultural borders.2 David Melinkoff refers to it as the "hate the lawyer cult".3

Of course, it is true that the legal profession as a whole enjoys widespread respect within the community. But respect is by no means the universal response. Lawyers are derided as "shysters" or similar epithets,4 people prepared to sell a smorgasbord of dirty tricks to whoever can pay the highest fee. Those in other professions may be considered boring, lazy or incompetent but lawyers are more likely to be flagellated for their perceived greed and cynicism.5 The feeling is perhaps encapsulated in the principle espoused by the lawyer in the Wizard of Id that "every man is innocent until proven broke."6

There has also been recent concern among lawyers themselves. For example, Sol Linowitz has decried a "loss of humanity" in the practice of law7 while Anthony Kronman has warned that the American legal profession "stands in danger of losing its soul".8 Kronman identifies a failure of morale and points to growing doubts which lawyers are experiencing about the capacity of their professional lives to offer any real sense of fulfilment. There is a "spiritual crisis" that strikes at professional pride and reflects the demise of an "older set of values".9

In Kronman's view, the central problem is loss of what he describes as the ideal of the "lawyer statesman", a conception of the lawyer as a person of practical wisdom and judgment whose concern extends beyond the interests of clients to the public good.10 Australian lawyers may not experience the same level of disenchantment but it has been suggested that they do find themselves embattled by a recent emphasis on competitiveness which excludes the scope for frank advice and public responsibility.11

Sir Daryl Dawson has echoed Kronman's caution that the legal profession is in danger of losing its soul and attributed much of the blame to the Commonwealth Government's competition policy. Ideals of service have been supplanted by a commercial and entrepreneurial approach to the law and innovations such as advertising, class actions, contingency fees and multidisciplinary practices have created the risk of an environment in which making money is the predominant consideration.12

Sol Linowitz argues that there is a need for agreement on a "bedrock" of values because the public relies upon the courts and the legal profession to protect cherished rights.13 Unfortunately, even quite controversial ethical decisions seem to have evoked little discussion among lawyers about the underlying values.14 Propositions concerning the role of lawyers are frequently defended not by argument or analysis but simply by invoking the authority of some eminent figure of an earlier age.15 Yet there may have been substantial changes in social values during the intervening period and many of the views attributed to such people might now be seen as archaic or even morally indefensible.16

There have also been changes to the social fabric in which these standards have been formulated with such incidents of modern life as the electronic media, the virtual explosion of computer technology and developments in forensic science imposing new demands on the system of justice. Of course, in a pluralistic society there will always be divergent religious and philosophical principles but as David Luban points out there is frequently a surprising level of agreement as to the end product of moral judgements even if they are reached by different ethical routes.17 What underlying values should now guide the legal profession?

To: Christian influence and ambivalence