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

A consequentialist model

A consequentialist paradigm for legal ethics need not consist of a utilitarian quest for some simplistic conception of the greater good, such as the greatest number of just decisions or the greatest number of satisfied litigants. The concept is sufficiently wide to permit due consideration of the demands of role morality and other moral claims for partisanship and zealous advocacy.

In the context of legal professional advocacy, a suitable paradigm might involve acceptance of a number of propositions. First, the adversary system, for all its deficiencies, is a valid means of resolving disputes and pursuing truth and justice, albeit imperfectly. Its retention is warranted by the considerations discussed earlier. Secondly, if it is to be maintained, then lawyers must fulfil at least the minimum which their representative roles require. Thirdly, those roles require at least some measure of partisanship. Fourthly, if "common morality" is taken to focus only on the precise act in question and ignore systemic considerations then, as Parker concludes, there will always be circumstances in which lawyers are required to behave in ways which run counter to common morality. Hence, any search for a single, all embracing principle that would reconcile the claims of role morality and common morality is doomed to failure.73 Fifthly, the demands of role morality must nonetheless be tempered to some extent by those of common morality.

Such a conception would require some modification of the professional codes. They would generally accept the standard conception of the advocate's role but provide scope for greater personal discretion. Some rules could remain in absolute terms. For example, it would be difficult to imagine circumstances in which the rule requiring the disclosure of relevant previous decisions would be changed. Others would need to be redrafted as 'rebuttable presumptions' or 'prima facie duties' so that, while the general principle would be affirmed, lawyers would have a discretion to depart from it if confronted by a situation which they believed gave rise to an overriding ethical demand. It would rather depend upon the more pragmatic consideration that the harm caused by adherence to the general rule in the particular situation with which the lawyer is faced might outweigh the considerations which favour adherence to the rule.

To: Preserving morality and client loyalty

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".