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

Preserving morality and client loyalty

As David Wilkins puts it, the lawyer "must always decide what to do in light of the circumstances she confronts, not those the system designer imagined she would confront".74 The manner in which this discretion would be exercised would not be governed by some all embracing principle. Much of the absolutism evident in the writing of both supporters and opponents of the standard conception of the advocate's duty seems to be derived from the presupposition that there must be an ordinal ranking of values with one principle always assuming priority over another. In lieu of this approach, the exercise would involve what Christopher Stone describes as a "cardinal ranking of preferences".75

This involves weighing the degree of harm that might be caused by pursuing a particular course in a given situation and comparing it to the degree of benefit that might be derived.76 Hence, while the deontological paradigm suggested by Eberle might require an advocate to consider whether the moral value involved in the pursuit of the truth outweighed the distress caused by the aggressive cross-examination of a witness, the postulated consequentialist approach would require the advocate to weigh the likely forensic advantages to be gained by the contemplated cross-examination against the measure of distress likely to be caused.

At a superficial level this would involve, on the one hand, weighing the gravity of the case, the forensic importance of the witness's evidence and the extent to which the probative value (how much it serves the trial and affords proof of evidence) might be diminished by the approach contemplated and, on the other, the damaging nature of the allegations, the age, maturity and apparent emotional security of the witness and the likelihood of others such as the witness's family being hurt. The dominant moral issue would be the prevention of harm not reasonably justified by other considerations of at least comparable importance.

However, the exercise would be complicated by the need for a bias in favour of the client's interests deriving its legitimacy from the duty of loyalty implicit in the relationship and to the systemic considerations canvassed earlier. Again, this factor would be taken into account cardinally and the weight given to the bias would vary according to the circumstances. For example, the weight given to the duty of loyalty to the client would be far greater if the contemplated departure involved a serious breach of confidentiality than if it merely involved a refusal to ask a particular question which was relevant only as to the witness's credit. Yet, even serious breaches of confidentiality might be justified by the gravity of the harm that might otherwise ensue.

It may, of course, be protested that such a balancing exercise is too complex to be practicable. There are a number of answers to this proposition. First, while it may appear complex in the abstract, there are many circumstances in which the appropriate balance would be obvious. One need only consider the example of a lawyer asked to elicit evidence which is of little probative value in a civil claim knowing that the resultant publicity is likely to have quite ruinous consequences for some third party. Secondly, advocates work in a judicial system increasingly dependent upon discretions based on a complex range of principles and factual circumstances. Thirdly, the law already demands similar judgements even of citizens with no legal training or experience. For example, the law of self defence emphasises the need for proportionality of the response to the threat. True, the person assaulted is not obliged to take systemic considerations into account but there are other difficulties such as the lack of time for reflection. It seems not unreasonable to impose a comparable requirement of proportionality upon trained lawyers.77
It is true, of course, that it would involve a significant erosion of the virtues of certainty and enforceability. Indeed, in other areas such as administrative law in which there has been a widespread reliance upon non-judicial discretion there has been considerable disquiet about the consequences.78 K.C. Davis has sounded one of the more emphatic notes of caution: "Discretion is a tool when properly used: like an axe, it can be a weapon for mayhem or murder. In a government of men and laws, the portion that is government of men, like a malignant cancer, often tends to stifle the portion that is government of laws. Perhaps ninetenths of injustice in our legal system flows from discretion and perhaps onetenth from rules."79

Davis acknowledges that it is not always appropriate to maintain a tight control on the exercise of discretion and suggests that the optimum level of control depended on the extent of the discretion that is necessary in the circumstances.80 He proposes that discretions be controlled by three methods: "confining" by establishing their boundaries, "structuring" by providing guidelines or otherwise determining the manner in which they must be exercised within those boundaries,81 and "checking" by having another person review the decision of the first to reduce the risk of "arbitrariness".82 He also observes that rules have an important part to play both in confining and structuring discretions and that they may be useful even if they have only a limited structuring affect.83

Despite the perceived limitations of this analysis,84 it is contended that it offers a number of useful insights for the ethics of advocacy. On the one hand, it is neither necessary nor appropriate to remove any scope for individual discretion when the circumstances plainly require it. On the other, it is necessary that any such discretion be controlled. The three methods Davis proposes would be readily adaptable. The professional codes of conduct already confine the scope of discretion and it would be necessary only to extend the boundaries to permit greater flexibility. Such relaxation could be accompanied by the determination of guidelines and suggested examples of how discretion should be exercised in given circumstances. For example, one guideline might provide that, save in exceptional circumstances, lawyers should continue to act upon the assumption that the client's instructions were true. The professional bodies already have various committees charged with the maintenance of ethical standards and, in practice, there is usually no difficulty in obtaining a ruling.

When lawyers accept professional engagements they do not become disentitled to exercise any moral judgement. On the contrary, it is imperative that advocacy be carried out only by those who have a strong sense of personal responsibility for the implications of their behaviour. They may plead the causes of others but they remain members of the community, entrusted by that community, with great moral responsibility. They do owe a duty to their clients (and it is generally in the interests of the community that it be conscientiously fulfilled) but even that duty will sometimes be outweighed by competing moral claims which are entitled to priority in the circumstances.

In asserting their clients' autonomy lawyers must not sacrifice their own. Their representative role may make it appropriate for them to take steps on behalf of a client that they would not take on their own behalf. However, it will never be appropriate for a lawyer to embrace a standard which involves abdicating their own responsibility as a moral human being.

To: Endnotes

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".