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

End Notes

1 William Shakespeare, Henry VI, Part 11, Act IV, Scene 11. See also D.L. Kornstein, Kill all the Lawyers? Shakespeare's Legal Appeal, Princeton University Press, Princeton, 1994, (esp. Ch. 2, "The First Thing We Do").

2. Wilfred Prest suggests that this hostility to lawyers stretches far back into Western culture, though it seems to have burgeoned during the early 16th century. The Rise of the Barristers, Clarendon Press, Oxford, 1986, pp. 283-303.

3 David Melinkoff, Conscience of a Lawyer, West Publishing Co., St Paul, 1973, p. v.

4 Marvin Frankel cites "mouthpiece", "hired gun", "mercenary warrior" and "shyster" before offering his own formulation of "an all purpose, surrogate villain, doing everybody's dirty work-obstructing, perverting, distorting, blocking the high road to justice". Partisan Justice, Hill & Wang, New York, 1978 p. 3. See also Melinkoff, ibid., note 3, pp. 10------12.

5 See generally Melinkoff, op. cit., pp. 1-15.

6- Gary Hart & B. Parker, There's a Fly in my Swill, Fawcett Publications, Greenwich, 1973, pp. 3-15.

7 Sol Linowitz, The Betrayed Profession: Lawyering at the end of the Twentieth Century, Charles Scribner's Sons, New York, 1994, p. 9.

8 Anthony Kronman, The Lost Lawyer-Failing Ideals of the Legal Profession, Belknap Press, Harvard, 1993, p. 1.

9 ibid., p. 2.

10 ibid., pp. 3-16.

11 ibid., pp. 5-7.

12 Sir Daryl Dawson, Keynote address to the Australian Legal Convention, Brisbane, 27 September 1995, quoted in The Australian, 28 September 1995, p. 1.

13 Linowitz, op. cit., p. 237.

14 For example, David Luban has suggested that, even though many disagreed with Monroe Freedman's more controversial conclusions, they failed to come to terms with "the tangle of complicated theoretical claims" upon which they rested. Lawyers and Justice, An Ethical Study, Princeton University Press, Princeton, 1988, p. xxi. See also William H. Simon, 1978, "The Ideology of Advocacy, Procedural Justice and Professional Ethics", Wisconsin Law Review, pp. 29-31.

15 For an example of such uncritical reliance see J.E. Singleton KC, Conduct at the Bar and Some Problems of Advocacy, Sweet & Maxwell, London, 1961, esp. pp. 31-33.

16 For example, Lord Eldon's proposition that "the advocate lends his exertions to all, himself to none" is cited by several authors with the apparent expectation that his opinion on the topic should be accepted as conclusive. See, for example, Singleton, ibid., p. 33; and Mr Justice J. Phillips, Advocacy with Honour, Law Book Co, Sydney, 1985, p. 1. Yet Lord Eldon resisted proposals to abolish slavery, end imprisonment for mere civil debt and provide emancipation for Roman Catholics. It is said that he was so resistant to change that he wept while sitting on the woolsack when he learnt that the death penalty would no longer be available for petty larceny. His Lordship apparently thought that "an ordered universe was shivering into fragments". The Right Hon Earl of Birkenhead, Fourteen English Judges, Cassell & Co. Ltd, London, 1926, p. 237. He has, however, been defended for interceding to secure the Royal pardon for some offenders. C.H. Rolph, The Queen's Pardon, Cassell, London, 1978, pp. 25, 26.

17 David Luban, 1990, "Partnership, Betrayal and Autonomy in the LawyerClient Relationship: A Reply to Stephen Ellmann", Columbia Law Review, vol. 90, pp. 1004-23. He cites a review by C.S. Lewis of moral precepts from Jewish, Christian, Hindu, Babylonian, Old Norse, Egyptian, Chinese, Greek and Roman Sources to support his view of the universality of natural law. C.S. Lewis, The Abolition of Man, 1947, republished by Fount Paperbacks, London, 1978, pp. 95-121. More recently, Peter Singer has also commented on the striking degree of convergence among varying ethical traditions on the question of how people should live. "Afterword", A Companion to Ethics, Blackwell, Oxford, 1993, p. 543.

18 Romans 13:1-6.

19 J.H. Baker, An Introduction to English Legal History, 3rd Ed., Butterworths, London, 1990, p. 5.

20 ibid., p. 69. Sir Winston Churchill suggests that it was the forerunner of "the modern theory that the God of Battles will strengthen the arm of the righteous". History of the English Speaking Peoples, Dorset Press, New York, 1990, Book 1, p. 218.

21 E. Evans & L. Jack, Sources of English and Legal Constitutional History, Butterworths, Sydney, 1984, p. 182.

22 Though there were significant theological differences between the Augustinian and Thomist conceptions of law. H. McCoubrey, The Development of Natural Legal Theory, Croom Helm/Methuen, New York, 1987, pp. 39-60.

23 Melinkoff refers to Glanvil (12th century), Bracton (13th century), Fortescue and Littlejohn (15th century) and St Germain (16th century). op. cit., p. 145.

24 William Blackstone, Commentaries on the Laws of England, William Carey Jones (ed.), BancroftWhitney Co., San Francisco, 1916, pp. 41-43.

25 R v Williams (1797) 26 How. St. Tr. 653 at 668.

26 In re Masters & C. of the Bedford Charity (1818) 2 Swans 470 at 527.

27 Thomas Aquinas, Summa Theologica, Part 22 Question 71, Article 3.

28 St Christopher Germain, Doctor and Student, William Muchell (ed.), Robert Clarke & Co., Cincinnati, 1874 (first published in Latin in 1523).

29 John Cook, The Vindication of the Professors and the Profession of Law, Matthew Walbancke, London, 1646, p. 8.

30 Quoted by W.D. Oliver, 1941, in a letter to the Australian Law Journal, vol. 15, p. 216.

31 Though Anthony Kronman suggests that the idea of a calling survived (at least for a time) the religious beliefs upon which it was based. op. cit., p. 370.

32 Plato, The Republic, F.M. Cornford (trans.), Oxford University Press, Oxford, 1945, p. 139.

33 James Fishkin, The Limits of Obligation, Yale University Press, 1982, p. 23.

34 G.E. Moore, Principia Ethica, Cambridge University Press, 1903 (reprinted 1966), p. 148.

35 Peter Singer, Famine Affluence and Morality, Philosophy Ethics and Society, Fifth Series, Yale University Press, 1979, p. 33.

36 J. Simmons, Moral Principles and Political Obligations, Princeton University Press, Princeton, 1979, p. 13.

37 John Rawls, A Theory of Justice, Harvard University Press, Cambridge, 1971, pp. 17-22, 118-122.

38 ibid. pp. 183-192. See also Roderick Firth, 1952, "Ethical Absolution and the Ideal Observer", Philosophy and Phenomenological Research, vol., 12, p. 317.

39 J.L. Mackie, Ethics: Inventing Right and Wrong, Penguin, New York, 1977, Ch. 4. See also A. Gewirth, Reason and Morality, University of Chicago Press, Chicago, 1978.

40 Thomas Nagel, Moral Questions, Cambridge University Press, Cambridge, 1979, p. 126.

41 S. Wolf, 1982, "Moral Saints", Journal of Philosophy, vol. 79, p. 419; L. Kupperman, 1988, "Character and Ethical Theory" Midwest Studies in Philosophy, vol. 13, p. 115.

42 See, for example, M.C. D'Arcy, The Mind and Heart of Love, Faber & Faber, London, 1946.

43 Gabriele Bammer, Report and Recommendations of Stage 2, Feasibility Research into the Controlled Availability of Opioids, National Centre for Epidemiology and Population Health, Australian National University, Canberra, 1995, p. 32.

44 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, J. H. Burns and H.L.A. Hart (eds), Athlone Press, London, 1970 (originally published London, 1832); J.S. Mill, Utilitarianism, M. Warnock (ed.), Mill: Utilitarianism and Other Writings, Collins, Glasgow, 1962 (originally published London, 1863).

45 R.E. Goodin, "Utility and the Good", in A Companion to Ethics, Peter. Singer (ed.), Basil Blackwell, Oxford, 1993, pp. 241-8.

46 However, a deontological model has been proposed by D'Arnato and Eberle. See note 70.

47 The Hon Sir Gerard Brennan, "Ethics and Procedure", an unpublished paper presented to the conference of the Bar Association of Queensland, Noosa, Qld, 3 May 1992. Similar sentiments may be found in Shapero v Kentucky Bar Association [1988] 486 U.S. 488 at 489.

48 A. Hermann, "Depressing News for Lawyers", Chicago Sun Times, 13 September 1991.

49 Linowitz, op. cit., p. 242.

50 Marvin E. Frankel, Partisan Justice, Hill & Wang, New York, 1978, pp. 62,3.

51 Though they achieve their effect in a manner fundamentally different from other weapons in that they must ultimately persuade. Kronman, op. cit., p. 148. See also C.M. Cover, 1988, "Violence and the Word", Yale Law Journal, vol. 95, p. 1601.

52 Gee & Elkins, 1987, "Resistance to Legal Ethics", Journal of the Legal Profession, vol. 12, p. 29; quoted by J. Medina, in "Ethical Concerns in Civil Appellate Advocacy", 43 Southwestern Law Journal, vol. 43, p. 677.

53 S. Parker, "Cost of Legal Services and Litigation", Cost of Legal Services and Litigation, Discussion Paper No. 5, Senate Standing Committee on Legal and Constitutional Affairs, Feb. 1992, at 3.26.

54 Though the analogy is not an uncommon one. See, for example, A. Fortas, 1970, "Thurman Arnold and the Theatre of the Law", Yale Law Journal, vol. 79, p. 988; and M.S. Ball, 1975, "The Play's the Thing: An Unscientific Reflection on Courts under the Rubric of Theatre", Stanford Law Review, vol. 28, p. 81. Barristers have even been described as a special purpose arm of the theatrical profession. Christopher Evans, The Mighty Micro, Coronet, London, 1980, Ch. 9, "The Decline of the Professions", p. 114.

55 Sir Malcolm Hilberry has said that every great advocate is an actor. Unlike other actors, however, the advocate "creates the part he plays". Duty and Art in Advocacy, Sweet & Maxwell, London, 1959, p. 27.

56 Quoted by Jeremy Bentham, Rationale of Judicial Evidence, Specially applied to English practice, Vol. 5, Hunt & Clark, London, 1827, p. 318; See also Luban, op. cit., p. 227.

57 The perceived value of the adversary system in ascertaining truth and doing justice is encapsulated in a much quoted passage from a judgement of Lord Denning: "His [the judge's] object, above all, is to find out the truth, and to do justice according to law; and in the pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon LC who said in a notable passage that 'the truth is best discovered by powerful statements on both sides of the question'? . . . and Lord Green MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputation? If a judge, said Lord Greene, should himself conduct the examination of witnesses, 'he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict'." Jones v National Coal Board (1957) 2 QB 55 at 63. See also Ex parte Lloyd (1822) Montague's Reports 70n, per Lord Eldon at 72.

58 Baker, op. cit., p. 5. See also R. Bartlett, Trial by Fire and Water, Clarendon Press, Oxford, 1986.

59 Trial by Battle was not finally abolished until 1819. Ashford v Thornton (1818) 1 B & Ald 405; 59 George III Ch. 46 (1819); See also D. Pannick, Advocates, Oxford University Press, Oxford & New York, 1992, p. 9. As recently as 1985 a Scottish defendant sought trial by battle against the Lord Advocate on the basis that the statute abolished the procedure only in England. See, Baker, op. cit., p. 87.

60 Chief Justice W. E. Burger, 1984, "The State of Justice", American Bar Association Journal, vol. 70, pp. 626.

61 C. Biron, Sir, Said Dr Johnson, Folcroft Library, Folcroft, 1979, pp. 58,9.

62 In Deitrich v R (1992) 177 CLR 292 the High Court held that it was not satisfied that an unrepresented defendant facing a complex prosecution case could have had a fair trial.

63 William Simon criticises what he describes as "professionalism", which in this context refers to the assumption that questions of practice, procedure or professional ethics should always be determined by the profession collectively rather than by individuals or even by the wider community. "The Ideology of Advocacy: Procedural Justice and Professional Ethics", 1978, Wisconsin Law Review, pp.29ñ38. See also Tomasic, Lawyers and the Community, esp. "The Challenge to Professional Dominance", Allen & Unwin, Sydney, 1976, pp. 122-8; E. Friedson, Professional Dominance, Atherton Press, New York, 1970; Profession of Medicine: a study of the sociology of applied knowledge, Dodd, Mead & Co., New York, 1970, esp. p. 380.

64 The Trial of Queen Caroline, quoted by R.C. Teece QC, The Law and Conduct of the Legal Profession in New South Wales, second ed., Law Book Co., Sydney, 1971, p. 59.

65 Quoted by A. Lovat-Traser, Erskine, Cambridge Press (1932) p. 149. See also Teece QC, op. cit., pp. 59,60.

66 New South Wales Bar Association Rules, Preamble, rule 1.

67 ibid., rule 7.

68 Simon, op. cit.

69 E.E. Jorstad, 1990, "Litigation Ethics: A Niebuhrian View of the Adversarial Legal System", Yale Law Journal, vol., 90, p. 1089.

70 A. D'Arnato and E. Eberle, 1983, "Three Models of Legal Ethics" St Louis University Law Journal, vol. 27, pp. 761-72. See also E. Eberle, 1989, "Toward Moral Responsibility in Lawyering: Further Thoughts on the Deontological Model of Ethics", St Johns' Law Review, vol. pp. 1-12.

71 Luban, op. cit.

72 Luban suggests that this judgment may apply to lawyers in certain cases unless one takes the view that the standard conception of the advocate's role shields them from it. David Luban, "Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Eliman", 1990, Columbia Law Review, vol. 90, pp. 1004-25.

73 Christopher Stone has persuasively argued a case for moral pluralism in Earth and Other Ethics, Harper & Row, New York, 1987.

74 David B. Wilkins, 1970, "Legal Realism for Lawyers", Harvard Law Review, vol. 104, pp. 468-509.

75 C.D. Stone, Earth and Other Ethics, Harper & Row, New York, 1987, p. 143.

76 Stone offers the example of declining to plant a loquat tree in his backyard because his neighbour who objects to the fruit flies it would attract would be twice as "put out" as he would be pleased. He explains: "I can thus grasp that putting the new tree in my yard would be wrong. It is not just a matter of what I want versus what my neighbour wants, which would be a onetoone stand off. Because of the rough cardinal information available to me in those circumstances, I can make a more richly informed decision: the real balance of wants goes two-to-one." ibid.

77 This principle gained a foothold in the requirement that, in addresses, serious imputations against the character of third parties must not only be well founded and relevant but in "language no stronger than the needs of the case require". Rule 5.5 Australian Code. It has not been included in the New South Wales Bar Association Rules though there are some constraints on making serious allegations (rules 35-42).

78 See, for example, Sean Cooney, 1994, "The Codification of Migration Policy: Excess Rules? Part 1", Australian Journal of Administrative Law, vol. 3, pp. 121-32 .

79 K.C. Davis, "Discretionary Justice: A Preliminary Inquiry", Louisiana State University Press, Baton Rouge, 1969, p. 25.

80 ibid., pp. 3,4.

81 ibid., p. 97.

82 ibid., p. 142.

83 ibid., p. 103. He noted, however, that there are other effective means of structuring discretions including by the use of open plans, policy statements, findings, precedents and reasons, and by fair procedures. See generally Ch. iv.

84 Sean Cooney suggests that his concept of discretion fails to recognise the many variations in the nature and extent of discretionary powers, that Davis is too simplistic in confining his consideration to actual decisions without regard for the broader process, that he is wrong in contending that discretions are only justified when they are necessary and that his assumptions concerning the inconsistency of discretions with certain legal values such as justice are not necessarily valid. "The Codification of Migration Policy: Excess Rules? Part 1", 1994, Australian Journal of Administrative Law, vol.3, pp. 121, 133-9. See also R. Baldwin, & K. Hawkins, "Discretionary Justice: Davis Reconsidered", 1984, Public Law, p. 570; R. Dworkin, Taking Rights Seriously, Harvard Press, Cambridge, pp. 31-39; D.J. Galligan, Discretionary Powers: A Legal Study of Official Discretion, Oxford University Press, Oxford, 1986, esp. pp. 14-28.

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