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

Role morality and the deceptive performance

The apparent incongruity of accepting ethical obligations which require otherwise immoral behaviour has been explained in terms of role morality. Parker explains the rationale in the following terms:

One thing seems tolerably clear: there are always going to be some circumstances when lawyers are required to behave in ways which seem to run counter to common morality. A theory which expresses this is called the theory of role morality. Lawyers have a role to play in a larger drama. If the drama is to be produced as intended then the lawyers cannot step outside the part allotted to them when they feel like it. If, therefore, the adversary system is better than a system where all individuals simply decide subjectively what is best in each separate instance, it is necessary that there be people who put the adversary system into operation and who set aside their private doubts.53
Many people would balk at this proposition. In the first place the analogy of a drama is distasteful.54 The very concern so often expressed about advocates is that they play parts.55 What they do and say is a performance calculated to deceive an unwary audience so that the case may be won whether that is a just result or not.

The admonition not to depart from the script lest the play not unfold as intended may suggest that lawyers prefer some ritualistic game of charades to the less interesting, and perhaps less remunerative, task of finding the truth and doing justice to the litigants. It evokes memories of John Stuart Mill's lamentation that "even instructed Englishmen" speak and act as if they regarded a trial "as a sort of game, partly of chance, partly of skill, in which the proper end to be aimed at is, not that the truth may be discovered, but that both parties may have fair play".56

Nonetheless, the principle is essentially defensible. The ends may not always justify the means but they do in some circumstances. For example, few would find it morally repugnant to cause pain if it were an unavoidable incident of dragging an injured person from a burning building. However, some qualifications should be imposed and I would suggest the following: (a) the value of the system must outweigh the harm caused by such conduct; (b) the role must be essential to the system; and (c) there must be no means of ameliorating the conduct without compromising the system to a degree involving greater harm or loss.

The first of these three criteria is, of course, largely dependent upon the virtues of the adversary system. In general terms the system may be said to serve the public interest by ascertaining truth, doing justice,57 maintaining rights, proving procedural safeguards, affirming public values and sublimating conflict. The importance of these things has rightly been accepted as paramount and there are strong arguments that all are dependent upon the advocates who provide the adversary element upon which the system depends.
However, it should not be forgotten that such lofty concepts as truth and justice were also relied upon as the justification for procedures that would now be decried as barbaric. In Australian courts one often hears judges speak of the "rich traditions of British justice" but any student of history is conscious that such rich traditions emerged from lugubrious beginnings.

To take but one example, few modern jurors would be heartened by the precedent of the cold water ordeal whereby the accused was bound and thrown into a river or pond.58 Other forms of ordeal and the emergence of trial by battle did little to ensure that justice always triumphed.59 The systems by which disputes were resolved were characterised by the use of power of one kind or another to force a given result. There are many who would suggest that the present adversary system is but the latest and most sophisticated step in such an inherently polluted process.

To take one notable example, Warren Burger, then Chief Justice of the Supreme Court of the United States, has predicted that for many disputes "trials run by the adversarial contest must in time go the way of the ancient trial by battle and blood". The present system, he maintains, is "too costly, too painful, too destructive, too inefficient for a truly civilised people".60 Yet, despite these misgivings, it is suggested that there are grounds for contending that the system does resolve conflicts and that it fulfils other important societal needs.

The second criterion is reasonably clear. Legal professional advocacy is now virtually essential to the maintenance of such a system. Even in the days of the redoubtable Dr Johnson it was suggested that few people were capable of conducting their own cases.61 Since then, the developing complexity of the law and the difficulty of the factual questions- including complex medical, scientific and commercial issues-has made it increasingly impracticable for the average member of the community to conduct major litigation without assistance from a professional advocate.62

The third criterion is more difficult. To demonstrate that there is a valid systemic need for litigants to have legal representation does not justify an ethical stance based upon a substantially undivided loyalty to clients. Even if one accepts without question the essential virtues of the adversary system, is it safe to assume that the techniques of advocacy are sufficiently curbed by the dictates of fairness and justice? Do they reveal or obscure the truth? Do they genuinely serve the interests of the community at large or merely the interests of the legal profession? Is the harm or injustice caused in individual cases really unavoidable without compromising the integrity of the system to an unacceptable degree? And in any event, are these issues which should fall to lawyers alone to determine or has the legal profession merely arrogated to itself, albeit by default, the right to set standards by which justice shall be dispensed to the whole society?63

To: The advocate's duty to the client and himself

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".