The Obligations of Advocacy
Modern theories of ethics are still predicated on the lawyers’ role in constraining the state. The framework of the discussion was memorably provided in articles by Freedman and Noonan in the US in the 1970s.
Freedman thought that the clash of two ‘versions of the truth’ provided a natural defence against oppression that is absent in civil systems. George Bernard Shaw characterised this as ‘[t]he theory... that if you set two liars to exposing each other, eventually the truth will come out’.4 Freedman argued that the adversarial system was not perfect, but was better than any alternatives. The state has massive power and resources at its disposal. Because of the potential for abuse and corruption of the state apparatus, state interests ‘are not absolute, or even paramount’, and should be constrained.Freedman thought that the best way to prevent the state from overpowering the liberty of its subjects was to ensure that ’the defendant is at least afforded that one advocate, that ‘champion against a hostile world’, whose zealous allegiance is to him or her alone.5 For Freedman, the word zeal is freighted with significance. ‘Zealous advocacy’ is a bulwark against state oppression. Willingness to advance a client’s case despite public, governmental or professional disapproval is its bedrock.6 To Freedman, a trial must be treated as a battle, with ‘zealous advocacy’ the right of criminal defendants.7
In Freedman’s account, the independence of the legal profession, expressed in its alignment with individuals against the state, is the key to an effective state system of justice and a healthy democracy. He asserted that
there is only one way to keep the law “trustworthy”—only one way to keep the bureaucrats honest, and to make the law work, that is, by making sure that there is an independent
3 M Frankel, ‘The Search for the Truth: An Umpireal View’ (1975) 123 University of Pennsylvania Law Review 1024.
4 Quoted in MJ Saks, ‘Accuracy v. Advocacy: Expert Testimony Before the Bench’ (1987) Aug/Sept Technology Law Review 43.
5 ibid, at 48.
6 SL Jacobs, ‘Legal Advocacy in a Time of Plague’ (1993) 21 Journal of Law Medicine and Ethics 382.
7 MH Freedman, ‘Professional Responsibility of the Criminal Defence Lawyer’ (1966) 64 Michigan Law Review 1469.
Bar, prepared to challenge governmental action and to do so as zealously and effectively as possible.[3010]
Freedman controversially went further in his interpretation of ‘zeal’. He claimed that the role of the criminal defence advocate justified behaviour that almost everyone else considers unethical. Under the umbrella of zealous advocacy, he argued, defence advocates must discredit witnesses known to be telling the truth, allow perjured testimony and advise clients in a way that enables them to give perjured evidence. This, unfortunately, became the version of the standard conception of the lawyers’ role that later academics used as a basis for proposed alternatives.
An initial challenge to Freedman’s notion of zealous advocacy came from Noonan. He criticised Freedman’s conception of trials as ‘battles’.[3011] The advocate’s duty, Noonan suggested, is to assist the judge in making an impartial, wise and informed decision and to seek to establish the truth. Noonan believed that ‘the advocate plays his role well when zeal for his client’s cause promotes a wise and informed decision of the case’. Justice demands proper assessment of the facts, increasing the chance of correct verdicts and, where conviction results, a sentence proportionate to the crime.[3012]
The clash of views between Freedman and Noonan reflects different aspects of the advocate’s torn ethical allegiance to clients and to the courts. Each emphasises one commitment, arguably at the expense of the other. In reality, certainly in England and Wales, they are in a kind of balance.
A high watermark is the famous quotation from Henry Brougham, a leading advocate in Georgian England. Brougham represented the estranged wife of George IV during a messy and politically charged divorce.In the course of Brougham’s representation of the Queen he explained that
[a]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means, and expedients, and at all hazards and costs to other persons, and among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.[3013]
This has become a touchstone for the duty of partisanship. The 200 years since Brougham’s famous defence have seen containment of the kind of advocacy with which he would have been familiar. A significant transition occurred between 1820 and 1850. Infamous cases of counsel asserting their client’s innocence, while being aware of their guilt,[3014] led to the rule against expressing an opinion[3015] and misleading the court.[3016]
The English legal profession has never adopted the phrase ‘zealous advocacy’, although academic discussion usually proceeds as if it had. Dare, for example, recently proposed an obligation on advocates of ‘mere zeal’, diligence, rather than the ‘hyper zeal’ promoted by Freedman.15 The formal position in England and Wales has tended more towards Noonan’s theory of the purpose of the system than Freedman’s. The rules support Noonan’s interpretation of the advocate’s role. The Bar, however, adheres to neutrality as an organising principle of its ethics. The obligation of representation arises whether or not the advocate is sympathetic to the client and the client’s cause.16
III.