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

The hope of moral philosophy

Moral philosophy has made a number of attempts. Even before the dawn of Christendom, Plato had offered the ideal of the "just man"32 though, as James Fishkin has pointed out, conformity to such an ideal standard would have required moral "prescriptions for every aspect of life".33
At the turn of the century G.E. Moore defined moral duty as "that action which will cause more good to exist in the universe than any other possible altemative".34 In a similar vein, Peter Singer has contended that moral duty gives rise to an obligation to prevent that which is bad unless that would require the sacrifice of something of comparable moral significance.35 Others, while rejecting the strictness of such views, have postulated general obligations determinable by placing oneself in the shoes of others likely to be affected by one's acts or omissions.

The existence of such obligations has been supported by reference to the concept of 'Natural Law',36 John Rawls' argument based upon "original position"37, the viewpoint of the "sympathetic spectator"38 or the "Golden Rule".39 Thomas Nagel has offered a depersonalised version of the Golden Rule: "the requirement is that you love your neighbour as yourself, but only as much as you love yourself when you look at yourself from outside with fair detachment".40

It is generally more difficult to apply deontological models to public policy than to individuals. The underlying values are unlikely to be shared by all members of the community, subjective emphases like good character41 or sound motivation42 are not readily adaptable for entire communities, and while public policy may affirm values, it will normally involve objective goals. Furthermore, any system of justice involves coercion and in a pluralistic society the imposition of standards of behaviour on others may be more easily justified by reference to the good thereby derived. Indeed, Gabriele Bammer argues that a deontological approach actually "sets a presumption" against public policy initiatives designed to alleviate social problems.

(Bammer supports this contention by pointing to the deontological distinction between causing harm and merely permitting harm. The greater moral weight attached to the former means that a deontologist may be obliged to conclude that a social intervention is not ethically defensible if similar or even greater harm might thereby be avoided.) 43

On the other hand utilitarianism, an ethic based on the ideal of promoting the good, was initially proposed as a guide for public policy44 and is still most strenuously defended in that context.45 Hence, despite John Rawls' attempt to reintroduce a Kantian conception of justice, it seems reasonable to suggest that legal ethics should be shaped by the objective of serving the greater good.46 Sir Gerard Brennan has contended that the goal of the legal profession should be the public service of "obtaining of justice under the law".47

An American study in 1991 found that lawyers were the most depressed group among the 12,000 people surveyed.48 Linowitz notes that the head researcher thought it might be the result of operating in a "moral ambiguity". They might be "representing positions they may not like or believe in" he explains.49 Despite grandiose assertions about the pursuit of justice, law is the only profession in which its practitioners regularly regard it as their ethical duty to harm the interests of others. Marvin Frankel notes that in contrast to other professional groups, lawyers are seen as "professionals whose work is fighting".50 Kronman refers to the comparison between legal advocates and mediaeval champions and observes that arguments can also be weapons of violence.51

Furthermore, lawyers make no pretence of fighting only for truth or justice. In one case counsel may be attempting to prevent a severely injured person from recovering due compensation, in another attempting to raise technical defences to enable a trustee to prolong his misuse of the beneficiaries' money and in yet another attempting to ensure that a child molester goes free. There may be sound reasons why lawyers should take such cases but the fact remains that they spend as much time resisting as championing attempts to obtain results which, viewed objectively, are just. In doing so they may make allegations that they may not believe and support them by an array of forensic techniques. In this context it is easy to appreciate the sentiments encapsulated in the cynical question, "But isn't legal ethics an oxymoron?"52

Yet such behaviour does not occur because lawyers have no ethical standards. On the contrary, their standards of behaviour are mandated by the ethical principles to which they subscribe. Those principles are said to be an inevitable corollary of the standard conception of their duty which emphasises the representative nature of the role. Advocates present cases on behalf of others. The rights are those of the clients. Prima facie, at least, it is for the clients to make their own moral judgments concerning their own rights. The duty of the advocates is to pursue those rights diligently subject only to the procedural constraints recognised by the professional codes. Ultimately, it is for the courts to determine where truth and justice lie. To permit advocates to give way to their own moral qualms and concede advantages lawfully available to clients would be to impugn their moral autonomy and usurp their rights.

The profession has drawn some solace from duties to the court recognised by the professional codes and they do constitute an important affirmation of the moral autonomy of advocates, and demand certain standards of integrity and responsibility. However, while they impose significant constraints on the tactics that may be employed, they do not purport to negate or temper the duty to pursue the interests of clients. Indeed, they require zealous advocacy on their behalf. They may be considered analogous to a code of chivalry prescribing the rules of battle but leaving the basic duty of loyalty undisturbed by questions of who is right and who is wrong.

To: Role morality and the deceptive performance

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".