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

The advocate's duty to the client and himself

The standard conception of the advocates' duty is characterised by partisanship and zealous advocacy. In his famous defence of Queen Caroline, Lord Brougham said:

An advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the world-that client and none other. To save that client by all expedient means, to protect that client at all hazards and costs to all others and among others to himself, is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring on any other. Nay, separating even the duties of a patriot from those of an advocate and casting them if need be to the wind, he must go on reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client's protection.64

This statement has since been criticised but most of the critics merely add a caveat that the means employed must be honourable. Others have hinted at a duty to simultaneously pursue justice. For example, Lord Chief Justice Cockburn, asserted that it is the duty of an advocate "to the utmost of his power to seek to reconcile the interests he is bound to maintain and the duty it is incumbent on him to discharge with the eternal and immutable interests of truth and justice".65

Regrettably His Lordship did not pause to explain how such a reconciliation might be effected. In reality, the professional codes accept that advocates have duty to pursue the interests of their clients without regard for the interests of other people or, for that matter, society as a whole. The only constraints are to be found in rules which impose important duties to the court and offer some protection to witnesses and others involved in the litigation. The rules refer to the "administration of justice"66 and "the greater public interest"67 but such references do not reflect any duty to accord priority to truth or justice in particular cases. Of course, the client's interests will sometimes be served by settlement or mediation and there is nothing to prevent an advocate raising moral issues with the client.

In essence, however, the professional codes permit, indeed require, advocates to go on "reckless to the consequences" unless they run headlong into some rule which excludes the intended course. The advocate is permitted to employ whatever tactics may be conducive to the attainment of his client's goals so long as he is able to negotiate the rules as a slalom skier negotiates the chicanes.
In this area there seems to have been a striking failure to permit, let alone require, advocates to balance their professional duties to their clients against their duties as morally responsible human beings to avoid the infliction of unjustified harm.

In other areas of human endeavour, society has had to impose restrictions on the measures which may be employed in the defence of admittedly valid rights. Hence, ordinary citizens may not defend themselves from physical assault by the use of excessive force or protect their property by unlawful traps or even by fences which exceed the limitations imposed by relevant municipal regulations. The existing rules of legal professional ethics impose some comparable restraints.

However, the ordinary citizens may not treat the acceptance of such prohibitions as the end of the moral enquiry. They may have a partisan loyalty to those most dear to them but will still have to balance that partisanship against other ethical demands. Parents may have a bias in favour of their own children but not hesitate to have them stand up so that elderly or disabled people may sit down. They may fight zealously to protect them from intruders but must still employ no more violence than is proportionate to the threat. The professional codes reflect no similar requirements. In this context the analogy of the "hired gun" may seem distressingly appropriate. Advocates hire themselves to all corners and are willing to attack any of the client's adversaries so long as the fight is conducted according to the rules and may therefore be regarded as 'fair'.

To: Rethinking paradigms of duty

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".