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

Rethinking paradigms of duty

The most comprehensive assault on this standard conception of the advocate's duty has been mounted by William Simon who dismisses attempts to justify the behaviour of advocates by reference to their role as mere examples of "morality of the long run". He contends that the whole process subverts important values and encourages immoral acts by lawyers. Furthermore, advocates pursue their clients' rights without regard for moral considerations (clients tend to feel powerless and act on their advice unquestioningly), and they come to assume the role of "the bad man" and their moral autonomy is undermined. Simon would abandon the concept of professional ethics and insist that advocates apply their own standards of personal morality in what he terms "non-professional advocacy".68

Others, have protested that the systemic justifications for the standard conception of the advocate's duty overlook the fact that the law itself is shaped by the decisions which lawyers make and by the underlying values of the profession. Hence, it is contended, advocates should recognise that the public has an interest in litigation and seek to uphold principles of justice.

This approach, which Edward Jorstad describes as a "Niebuhrian" conception, would mean that the interests of clients would be pursued by invoking categories of approved behaviour.69 There have also been calls for a deontological approach based upon the premise that the propriety of behaviour is determined by the moral principles upon which it is based rather than the consequences which it is intended to produce. Where the application of different moral principles would require competing actions the conflict would be resolved by a lexicography of values with those deemed 'most just' being accorded priority.70

Yet another proposal, which David Luban describes as "moral activism", would accept the concept of role morality but maintain that the extent to which it may be invoked to justify otherwise immoral behaviour would be largely dependent upon the balance of wealth and power between the litigants. Hence, only minor deviations from the demands of common morality would be justified in civil cases between evenly matched litigants. But a more ruthless approach might be justified in criminal cases or civil cases in which the opposing litigant is a government bureaucracy or large company.71

Each of these conceptions can be supported by cogent arguments though, in each case, various theoretical and practical objections can also be raised. The scope of this paper does not permit an analysis of the competing merits but it may be observed that each formulation reflects an attempt to find an alternative to the perceived moral poverty of the standard conception. If society cannot prevent litigants from engaging in obfuscation, distortion and other chicanery, lawyers should not regard themselves as bound to assume the role of accomplices. As David Luban expresses it: "a willing accomplice in wrongdoing is a wrongdoer".72

To: A consequentialist model

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".