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Melbourne University Law Review |
ABBE SMITH[∗]
[The ethics of criminal defence lawyers and others who represent ‘unpopular clients’ is a largely unexplored area of legal scholarship in Australia. This article seeks to examine, from a comparative perspective, the motivations and ethical practices of these lawyers. Using interviews with Australian lawyers who represent the criminally accused, prisoners and asylum-seekers, as well as relevant ethical rules and commentary, the article identifies why lawyers undertake unpopular cases and, ultimately, what sustains them. Contrasting Australian legal practice with that in the US, the article discusses the sometimes competing professional obligations to court and client, truth and advocacy, public and profession. In a time of growing unease, the article offers new insights about how Australian lawyers see themselves and their work.]
[F]or the trial lawyer the unpopular cause is often a post of honor. Like other lawyers who try criminal cases, I have taken on many difficult cases for unpopular clients, not because of my own wishes, but because of the unwritten law that I might not refuse.
— Edward Bennett Williams, prominent American lawyer.[1]
No cause was too unpopular, or in some cases dangerous, for him to take on. He was a very brave, lion-hearted man.
— Former Victorian Chief Justice, John Harber Phillips, speaking of prominent Australian lawyer Frank Galbally, who died in 2005.[2]
[T]he worse the defendant, the more reason to represent them.
— Lex Lasry QC, prominent Australian lawyer.[3]
The perennial question for a criminal defence lawyer, and for a law professor who directs a criminal defence clinic, has been dubbed ‘The Question’ by Stanford law professor Barbara Babcock.[4] The Question, which may be posed by the genuinely perplexed as well as the already-decided detractor, usually at a cocktail party when the target of the query has a drink in hand and his or her guard down, is how can you represent people you know to be guilty?[5] The lawyer to whom The Question is directed has heard it many times before and, if gracious, will try not to appear bored or peeved. He or she might offer any number of standard replies — about the adversarial system requiring competent counsel on both sides, the critical role of the defence lawyer in ensuring access to justice, the importance of checking official power and so on.[6]
As Babcock has pointed out, The Question tends to refer not to the teenage shoplifter or birthday reveller who had one too many and was driving a bit ‘wobbly’. These are the wrongdoers who could be us, our children, or our parents.[7] Nor, of course, does it refer to the wrongly accused or convicted. The motivation for undertaking these sorts of cases is well understood.[8]
The Question refers instead to the representation of the truly unpopular: guilty criminals who have committed grave acts of violence or depravity.
Under Babcock’s construction — or, rather, deconstruction, to use the more popular pedagogic parlance — The Question is actually three different sub-questions, each of which requires its own answer:[9]
How can you represent the guilty (how can you reconcile the moral dilemmas that such work entails and work to get criminals off)?
How can you represent the guilty (why you, with your elite education and endless professional opportunities)?
How can you represent the guilty (how far would you go on behalf of such clients and are there lines you will not cross)?
There are no right answers to The Question or its related sub-questions. The sceptical will not be convinced no matter how thoughtful or artful the reply and no matter how little they themselves have previously considered the matter. And the answers should and do run the gamut of personality, philosophy and experience. They are inevitably personal and subjective. Everyone has their own reasons for doing the work.
Babcock does a masterful job of organising the motivations of defenders into categories: the ‘garbage collector’s reason’ (it is dirty work but someone has to do it); the ‘legalistic or positivist reason’ (truth cannot be known, guilt is a legal conclusion); the ‘political activist’s reason’ (most of those who commit crime have themselves suffered injustice and oppression); the ‘humanitarian’ or ‘social worker’s reason’ (most of those who commit crime are disadvantaged and ought to be treated with humanity and respect); and the ‘egotist’s reason’ (defence work is more interesting, challenging and rewarding than the ‘routine and repetitive work done by most lawyers, even those engaged in what passes for litigation in civil practice’).[10] However, in the end she throws up her hands and declares that there is a ‘peculiar mind-set, heart-set, soul-set’ to defenders.[11] Either you have the chops for the work or you do not.
There may be some truth to this. Some, like Babcock, strongly believe that there is a ‘defence lawyer personality’.[12] Still, I continue to search for answers, or, at least, ways of thinking that go beyond personality and might be useful in drawing law students and young lawyers to undertake the defence of the unpopular in these uncertain times.[13]
I am also interested in helping those who are engaged in indigent criminal defence, and other advocacy on behalf of unpopular clients, to be able to articulate what they do and why they do it. Finding the words — articulating a perspective, theory or paradigm[14] — might enable them not only to do the work, but to continue doing it when the going gets rough.
I will never forget the televised image of a federal court proceeding in Virginia shortly after September 11, 2001. A lawyer had been appointed to represent a Muslim man initially accused of obtaining a fraudulent identification card for another man. The lawyer had no apparent problem acting on behalf of this client in a routine immigration fraud case. When it became clear that the man was alleged to have been involved in the events of September 11, the lawyer became visibly distressed. He asked to withdraw, telling the judge that he could no longer represent his client.[15]
I am also mindful of the disappointing legacy of Gideon v Wainwright,[16] the case which guaranteed the right to counsel in the United States.[17] The promise of Gideon — that a person charged with a crime in the US will be well represented whether they are rich or poor — remains unmet.[18] Although there are institutional reasons for this — chiefly, the failure to adequately fund indigent criminal defence[19]
— there is also a shortage of committed, skilled and experienced indigent defenders, especially in certain areas of the country.[20]
More immediately, there is my experience with students. I have had the privilege to teach, supervise and mentor hundreds of students over the years. Even though these students voluntarily enrol in the criminal defence clinic, most are initially reluctant to engage in the defence of the guilty (which, as Babcock points out in her aptly titled article, is what criminal defence largely is).[21]
Even though the great majority of clinic students turn out to be excellent defenders — expending substantial time and energy to represent their indigent clients to the highest professional standards no matter what the clients have done in the past or what charges they presently face — most will not pursue a career in criminal defence.
There are reasons for this. Although they vary, the reasons hearken back to Babcock’s deconstruction of The Question. Most law students and young lawyers do not like the idea of devoting themselves — in light of their skills, talents and accomplishments — to criminals. Notwithstanding their firm belief in the right to counsel and the right to a fair trial, they are ambivalent about actually providing the level of advocacy allowed by law for clients whose conduct has been brutal or odious. They are concerned about truth and their duty as officers of the court, which they see as intertwined. It matters not that professional rules, codes and standards encourage zealous advocacy, the behaviour students find most unsettling. They often end their time in the clinic by expressing admiration for others who are able to do the work without misgivings, but conclude that it is not for them.
There is an upside and a downside to American lawyers having the discretion to decide which cases they will take and which they will refuse. The advantages are obvious: discretion enhances professional autonomy and allows lawyers to express their own moral and political values in the work they undertake;[22] lawyers can represent the clients they feel most suited to represent — temperamentally, philosophically or from the perspective of social or professional advancement — as a way of fashioning their professional identity;[23] and they can decline to represent clients or causes they find offensive, or which might require the lawyer to engage in tactics they find repugnant.[24]
The disadvantage of lawyerly discretion is that lawyers can choose not to represent those who need their representation most.[25] The vast majority of American lawyers have not followed in Edward Bennett Williams’ famous footsteps in representing the unpopular.[26]
For these lawyers, the ‘honour’ of defending the unpopular[27] is easily outweighed by other considerations.[28] The only lawyers who routinely represent the unpopular in the US are public defenders, who represent all indigents in need of their services.[29] There are a few noteworthy others who are willing to take on the most hated clients,[30] but the fact that they are noteworthy makes the point.[31]
The discretion permitted American lawyers may be a distinctly American phenomenon. Although the US legal system is very much in the British tradition, lawyers in the UK and other Commonwealth countries are not quite as unconstrained as their American counterparts in their choice of clients.[32] In Australia, for example, the decision whether to take a case (‘accept a brief’) is not a matter of an individual lawyer’s discretion, at least not for barristers in those jurisdictions where the profession is divided.[33]
Under the ‘cab rank’ rule, all barristers must take a case if it is within their area of expertise and they are available, in the same way that cab drivers must serve the next person in line.[34]
Still, the mere existence of a rule does not necessarily mean that lawyers abide by it.[35] Ethical rules and codes in the US encourage lawyers to take unpopular cases, but relatively few do so.[36]
The fact that Australian lawyers routinely take on these sorts of cases may be a reflection of the ascendancy of the cab rank rule in Australian lawyers’ ethics, but it might also reflect something deeper: an institutional ethos rather than a formal requirement.
This article adopts a comparative approach to explore the motivations and ethical practices of Australian lawyers who represent unpopular clients. There are many unpopular clients and causes — indeed, nearly every person to whom I mentioned this project had their own favourite whipping boy, from the greedy corporate giant to the steroid-abusing professional athlete. However, my enquiry focuses on lawyers who act for the criminally accused, prisoners and asylum-seekers. In conducting this exploration, I examined the ethical rules in Australia, reviewed commentary by practitioners and scholars, and interviewed more than two dozen Australian lawyers.[37]
Interestingly, the ethic of criminal defence lawyers — who, by definition, represent the ‘unpopular’ and who make up the greater part of the interviews I conducted — is a largely unexplored area of legal scholarship in Australia.[38]
This project was partially inspired by my curiosity about the impact of the cab rank rule on Australian lawyers, and how such a rule might operate in the US.[39] I also wondered: once a lawyer agrees to take on the cause of an unpopular client, how far is he or she willing to go? On paper, there is also less discretion here. Australian lawyers owe their primary duty to the court.[40]
A fealty to truth is at the heart of this duty. This is in contrast to American lawyers, for whom the client comes first — it is only through zealous advocacy of an individual client that a lawyer fulfils his or her duty to the court.[41]
Here too, I wondered whether the rules, and the different formulations of the lawyer’s role, are borne out in practice. Especially in heinous, high profile cases — the kind of cases that generate the greatest hostility — might the lawyer become more client-centred and less concerned with the duty to the court and to truth?
Conversely, I was also interested in the role the Bill of Rights plays in the American lawyering tradition, and whether the establishment of a comparable Bill of Rights in Australia might bring about a more client-centred ‘individual rights’ lawyering model, instead of the prevailing court-centred ‘fairness’ model.
Many similarities exist between the US and Australian legal systems. Both borrow heavily from the English common law tradition; both have adversarial rather than inquisitorial systems that place the burden of proof squarely on the prosecution; and the advocate plays an essential role in both systems. Because of these similarities, the differences between the two jurisdictions’ conceptions of the lawyer appear significant; they may go beyond rules and Bills of Rights. The differences may be cultural.
Still, it is worthwhile to consider the impact of lawyers’ ethics — the rules and codes and how they are interpreted[42]
— on the culture of advocacy. It could be that if the US had a system in which lawyers were professionally obligated to take difficult, unpopular cases, the limits on advocacy were clear, and lawyers regarded themselves primarily as officers of the court, then more law students and young lawyers might become criminal defence, prisoners’ rights and human rights lawyers. It might also be easier for these lawyers for the ‘unpopular’ to sustain a career. There might even be more support for such lawyers — at least at the Bar, if not in the wider community.[43]
If, on the other hand, the rules are only incidental to the different conceptions of lawyers’ professional role, it is still worthwhile to examine how Australian lawyers see themselves, their work and their profession. It could be that Babcock is right: either you are a champion of the unpopular or you are not. However, Australian lawyers might take a broader view of the work they do — something American lawyers could learn from.
This article relies heavily on the voices of Australian lawyers, many of whom have been representing the unpopular for more than 25 years.[44] Some of the lawyers are well-known; others are not. All of the lawyers with whom I spoke answered the questions posed thoughtfully and, it seemed to me, honestly.
The rest of the article is organised as follows: Part II discusses the primary motivations of Australian lawyers in representing the unpopular: professionalism, politics, personality and publicity; Part III examines the Australian lawyer’s duty to the court and fealty to ‘truth’; Part IV considers the Australian lawyer’s duty to the client and the limits on adversarial zeal; and Part V offers some parting thoughts.
The Australian lawyers interviewed express an intense identification with the legal profession. A deep and unwavering sense of professionalism, often eloquently expressed, is their chief motivation for representing unpopular clients. In contrast to Babcock’s ‘garbage collector’ motivation, these Australian lawyers see themselves as part of a vital and venerable profession, one that plays a key role in the functioning of law and society. As one lawyer declared: ‘I am part of an ancient and honourable profession.’[45] Another said simply: ‘I feel proud of the tradition of the Bar. … Being part of [it] is the greatest good I can do as a person.’[46]
The origin of the modern legal profession — in Australia and elsewhere — can be traced back to medieval society, when the church played a central role in education. For hundreds of years education was tied to ecclesiastical functions and priests were the main source and distributors of knowledge. Lawyers, like priests, were among the privileged few in medieval society who could read, write and accumulate knowledge. It was not until after the invention of the printing press in the 15th century that printed information became readily available to the masses and people learned to read.[47]
Although lawyers became increasingly secular after the 15th century, and are now associated more with universities than churches, the legal profession in many countries — if not so much in the US — still has a ‘mystical aura’.[48]
This is evident in its ceremonial functions, its dress (wig, gown, jabot and bib in many Commonwealth countries) and its monopoly over esoteric and sometimes impenetrable legal knowledge.
Meanwhile, the idea of law as a profession has long been accepted.[49]
Consistent with how most people define ‘profession’, the practice of law requires special training and skills, public service as a principal goal and self-regulation or autonomy.[50]
The legal profession — especially in those parts of Australia that maintain a divided legal profession and then especially for barristers — is an exclusive club of privilege and status.[51] Interestingly, notwithstanding the privilege that attends their professional status, most Australian lawyers appear to understand professionalism to entail professional obligation.
Every lawyer with whom I spoke expressed the view that representing the unpopular was simply part of the job. If one is a member of the legal profession, this is what one does. As one lawyer put it: ‘That’s my job, isn’t it?’[52] Another said: ‘It’s my job and it’s a necessary job because without it we would be a much different society, a totalitarian society.’[53]
Another said: ‘I’m here, it’s my job, I don’t need to be attached to the cause.’[54]
Another said simply: ‘We are obliged by the rules of our profession to take these cases.’[55]
Many expressed the belief that experienced and skilled lawyers have a special professional obligation to take on high profile, unpopular cases. One of the lawyers who represented Martin Bryant — the notorious Australian who was convicted of killing 35 people in Port Arthur, Tasmania in 1996 — was
matter-of-fact: ‘Somebody had to do it. Somebody competent. I like to think I’m competent. I [take] the view that if you’re a senior practitioner … you ought to take these kinds of cases’[56] A lawyer who handles mostly murder cases, but who recently represented a Muslim man in a highly publicised gang rape case, said: ‘It’s hard in good conscience not to take these cases. As you get more experienced you’re expected to take on more serious cases.’[57]
Another prominent lawyer who said he would be ‘delighted’ to take the brief of an alleged terrorist noted that they ‘shouldn’t get the junior lawyer.’[58]
One of the lawyers who represented Lindy and Michael Chamberlain in perhaps the most famous Australian case of all time — the early 1980s ‘dingo case’ — feels strongly that the best lawyers ought to take on the most serious and high profile cases: ‘The higher the profile of the case, the better the representation should be. This is so people can see the best defence, that this is what our system of justice means.’[59]
One criminal defence lawyer noted that his colleagues at the defence Bar — perhaps more than other lawyers — tend not to baulk at serious or unpopular cases: ‘The nature of the crime is rarely a consideration for most criminal lawyers. People who practise crime at the defence Bar are happy to be involved in all sorts of unpopular causes.’[60]
A criminal lawyer agreed: ‘Everyone gets represented by someone. This is how the defence Bar feels generally.’[61]
Another criminal lawyer said that, among criminal defence lawyers ‘there’s a bit of a buccaneering thing … a bit of swashbuckling. … The worse the crime it’s like “To hell with everyone, we’ll defend him and get him off.”’[62]
For most Australian lawyers, the obligation to take on unpopular cases goes beyond professional rules and standards, and is tied to the fundamental workings of the justice system. One barrister who works as a public defender tipped her hat to the cab rank rule, but said her commitment to representing the unpopular went beyond such a rule:
Obviously, the cab rank rule is very important. It’s important that you take cases on that basis rather than picking and choosing. But, I don’t take on [unpopular] cases because of the Bar rules. It’s more fundamental than that. I do it because of the fundamental belief that if we start picking and choosing who should be represented, and represented to the nth degree, then you’re not part of a system that guarantees justice across the boards.[63]
A long-time legal aid lawyer talked about the importance of criminal defence to the system, and not just to the client: ‘Ultimately, a good criminal defence system is in everyone’s interest. … [T]hings aren’t delayed unnecessarily. Issues are fairly raised. Police illegality gets jumped on. This is in the public’s interest.’[64]
Another experienced legal aid lawyer agreed that ‘[t]he criminal defence lawyer is an important part of the system … [and] helps to ensure the process is right and that everyone gets the rights to which they are entitled’.[65]
A leading defence lawyer said: ‘It’s important for society as a whole that people have proper and effective legal representation. There can be no fair trial without counsel when the accused wants counsel.’[66]
A prominent barrister talked about the right to good representation as an entitlement inextricably connected to the adversarial system: ‘People are entitled to be defended. They are entitled to be properly prosecuted and properly defended.’[67] Another lawyer known for taking on unpopular cases was even pithier: ‘For a robust court system, you need robust defence.’[68]
Several lawyers made the point that when lawyers fail to stand between the most undesirable clients and the power of the state the entire system is at risk. As one public defender said: ‘We can’t import into the system a subjective value judgement about which case is more worthy than another, who is more deserving. If this happens, the system — and our entire society, really — cannot be said to represent justice.’[69]
Another leading barrister said: ‘It is simply essential to the system that everyone, no matter how unpopular, gets a defence.’[70]
Many lawyers who represent unpopular clients believe that the very legitimacy of the legal system is reflected in how it treats the worst. As one prominent barrister stated:
The quality of the system is tested by how it treats the worst. … The worst, most revolting criminal or terrorist or whoever it happens to be, if you can get a fair trial for them then everyone else is guaranteed a good run. But if the system starts taking short cuts because somebody is so bad, then it’s the system that’s coming apart.[71]
Another barrister known for high profile criminal cases said: ‘Defence lawyers stand between the state and a single citizen when the state has endless resources. You must bravely do your best or you’re letting the system down.’[72]
A public defender said: ‘You have to keep the system honest, whether for the worst type of child murderer or an Aboriginal woman who kills her husband because he’s been beating her for years.’[73]
A long-time legal aid lawyer described a high profile double-murder case in which she represented a man who, together with another man, was alleged to have had sex with two prostitutes before tying them up and throwing them into crocodile-infested waters. People approached the lawyer and remarked upon what a dreadful case it was. However, she understood the importance of standing up for those whom everyone else reviles: ‘You believe you’re fighting the good fight’.[74]
A lawyer who has done more prosecution than defence work nevertheless felt strongly that excellent lawyers ought to represent the most unpopular defendants: ‘If the most unpopular defendants do not have the very best representation we might as well do away with lawyers altogether and let the courts decide it. There would be no one standing between the executive and individuals.’[75]
A legal aid lawyer who has also been in the private Bar[76] made the same point, but with self-deprecating humour:
Why represent clients that others loath? Sometimes I think it comes from my deeply indecisive nature. I don’t know whether someone is guilty or not. In 99 per cent of cases they say they are not guilty. As a lawyer, I say okay, that’s the system; you’re entitled to put this case. It’s all the more important when you have a deeply unpopular client. It’s more important to get the jury to put aside their prejudices. We don’t know things. That’s why we have a system designed not to find out the truth but to find out whether the Crown has proved its case.[77]
Another prominent lawyer made a similar point about lawyers ‘knowing’ that their clients are guilty:
People say you know. But everyone who has done any amount of trial work has had the mortifying experience of thinking you know what’s true and you find out that what the client has told you is true, and you were bloody wrong about your assumed knowledge of his guilt. … [This experience] makes it easier to suspend judgment. We have a system. The jury decides. I don’t.[78]
One criminal defence lawyer agreed, noting that ‘first impressions can be totally wrong.’[79]
He told a story about a client who had been accused of rape. With a wry warm-heartedness common to criminal lawyers, he described his client as an ‘idiot’ who ‘looked like a rapist’ with his ‘big bulging eyes’ and who acted like one with his ‘secretive’ and ‘strange’ manner. The complainant, on the other hand, was ‘compelling.’ When she testified at the committal hearing, she was ‘brave and snivelling’ as she offered up the awful details of the crime. She was later exposed as a liar by a purportedly corroborating witness — her soon-to-be former boyfriend. The complainant’s plan had been to extort money from the accused, but the boyfriend began to fear that he would be accused next.[80]
Several lawyers argued that the advocate who represents unpopular clients plays an important role not only in the legal system but also in society. One lawyer referred to the independence of counsel and a strong criminal defence Bar as ‘the last defence of freedom against the state … and the threat of despotism.’[81]
Another stated: ‘Society is judged by how it treats its most marginal members. This includes those charged with heinous offences. If they are not properly represented and are wrongly convicted it is a sad reflection on society’s sense of justice.’[82]
Another said: ‘You act for disadvantaged people because it’s the edge of the wedge. If not them, who’s next?’[83] Still another simply said: ‘It’s good when people in extreme situations are looked after.’[84]
Even lawyers who were motivated more by politics than by professionalism, or who held a critical or leftist perspective on law and society, expressed admiration for the core values of the profession. One long-time advocate for poor and indigenous people, the criminally accused and, most recently, prisoners, acknowledged the influence of the Australian legal profession on her own representation of unpopular clients:
Probably it is something deeper in me. … Yet, I do believe that everyone is entitled to representation. We have a good legal system in terms of its philosophy. It doesn’t always work, but its tenets are important. The same basic rights apply to everyone whether they are accused of murder, rape, treason, or terrorism. As a lawyer you take this on as a responsibility.[85]
Another legal aid lawyer said:
Law is such a broad and diverse practice. Not all of it is attractive. Being a lawyer is not necessarily attractive. But, the system is designed to ensure a fair trial for people, and my job is to make sure that actually happens. This is what I do everyday. It’s a good idea. It’s a good societal goal.[86]
A left-leaning lawyer representing several young men accused of being part of an Islamic terrorist cell explained his idea of professional obligation in the face of serious and terrible crime:
I’m a barrister. … I am compelled to act for these people, all things being equal. … The cab rank rule coincides with my own view of [the] professional role, and I have never sought to evade it. … It’s not necessarily fun. I don’t do it for the challenge. Literally a lot of cases I take I’d rather not do. But if someone asks me to do it I will.[87]
Although some cases can be gruelling for even the most dyed-in-the-wool defence lawyer, not a single barrister indicated that he or she would ever refuse a case based on the nature of the crime. One lawyer spoke for all when he said: ‘I would not refuse a case on ideological grounds. Everyone is entitled to a defence. It’s my obligation as a barrister to represent the client.’[88]
Another long-time criminal defence lawyer, when asked whether there was any category of case she would not take — an alleged terrorist, a member of the Mafia or a sex offender — said: ‘Absolutely no problem. … Even if a police officer came in, I’d represent them.’[89]
One lawyer admitted that it was not always easy to discharge his professional obligation, but that he does his duty nonetheless: ‘I confess there are particular types of crimes that I prefer not to do — cases involving children, including child killing. I have kids of my own. … But, you can’t reject a case because you don’t like the crime or the criminal.’[90]
Another agreed: ‘I don’t do many child sex abuse cases, but I wouldn’t turn them down.’[91]
Lawyers who are not at the private Bar — and, hence, who are not bound by the cab rank rule — do find occasion to assert their right to refuse cases on whatever grounds they choose, as in the US model. One lawyer who has his own firm used to take paedophilia cases, but now turns them down: ‘I’ve done it all — child sexual abuse, rape — but I’ve had enough. I have two young daughters.’[92]
One legal aid lawyer struggled hard to represent the accused in a vicious rape case involving multiple attacks but found she could not carry out her obligation: ‘My judgement was skewed. I started to empathise with the complainant. … I struggled with it. It was upsetting to me that I would ever hand a case back.’[93]
Another legal aid lawyer has never turned down a case, but recently came close:
It was a fellow charged with a murder. It wasn’t so much the nature of the case. It was the nature of the client. I might have been feeling a bit tired or something. … We could have briefed the case to someone else. But this was an exception. People here take cases — whatever comes to them — subject to availability and workload.[94]
One lawyer with his own firm said: ‘I believe I have a professional duty to take on [serious, unpopular] cases most of the time. I seldom turn down a case. But if I don’t want to do a case I won’t.’[95]
Another lawyer with his own practice never turns down rape, murder or child abuse cases, but will not act for current or former police officers,[96] white-collar defendants, or ‘entrepreneurial drug dealers.’[97]
Yet, even among those lawyers who were not bound by the cab rank rule, it was rare for someone to say that they would refuse a case out of distaste, discomfort, or ideology.[98]
One barrister and solicitor working at a legal aid office said:
I don’t think consciously about the cab rank rule. … But, on the other hand you don’t pick and choose. … The only time you can’t do a case is when you have an ethical dilemma … or if you can’t represent the [client] to the best of your ability. A case involving public outcry shouldn’t affect how I act on behalf of another.[99]
Another legal aid lawyer talked about the ‘greater desire to make sure that someone made unpopular in the press gets a fair trial’, with or without a cab rank rule.[100]
Yet another said that if you believe in everyone having a right to a fair trial, you should not refuse cases, whether the cab rank rule applies or not:
If you are interested in the process or the right to a fair trial you shouldn’t be in the business of making up your mind about guilt or innocence or the worthiness of the client. You can’t just pick and choose. I take my judgement home. I do my part and it’s up to the jury to determine guilt or innocence. You’re there to represent the client in the best way you can.[101]
Not a single lawyer said that they would refuse a client who was alleged to have committed an act of terrorism.[102] Yet, this willingness to take on even the most repugnant cases is not necessarily the same as eagerness or ‘swagger’.[103]
One prominent lawyer spoke candidly about the tension between his personal feelings and professional duty in representing alleged terrorists post-September 11 and Bali:
There’s a dilemma. I’ve watched how extremists conduct themselves and I find it appalling. Muslim automatism I find revolting. I watched the second plane hit the World Trade Center live — with the people in the buildings having to choose whether to jump or burn. I get irritated by the hatred and antagonism of these clients. It’s not the client; I don’t especially want to help these people. It’s my belief in the system. … I want to ensure a fair trial [in which] the pressure is on the system not to take shortcuts. The pressure is significant but unspoken in terrorism cases — especially since 9/11, Bali, and London.[104]
One barrister who was willing to represent alleged terrorists offered a qualification:
I would have a doubt if they weren’t receiving a real trial. If it were someone in David Hicks’ situation at Guantanamo — where the lawyers are being used as pawns or puppets — then I wouldn’t do it. But, if there was a faint chance of a fair hearing then I would do it.’[105]
A legal aid lawyer said she would be ‘happy to represent an alleged terrorist’, but expressed reservations about the intensive scrutiny of lawyers who take on such cases:
The anti-terrorism legislation provides that if you want to act for these people you have to pass through levels of security. … The Government gets to vet their opposition in high profile supposed terrorist cases. … Aside from this, I wouldn’t mind. But my mum wouldn’t be happy.[106]
Several lawyers spoke about the sense of professionalism that enables them to put aside personal feelings, value judgements and misgivings that inevitably accompany a particularly nasty case. As one lawyer put it:
As soon as you’re into a case there’s none of that value judgement. It’s about being analytical, logical, and objective. Regardless of how personally it affects you. And it must do in some cases. But, it’s interesting to see people in this profession put feelings aside and demonstrate passion and commitment no matter who the client is or what they have been alleged to have done.[107]
A couple of lawyers expressed a vague concern about safety. As one lawyer said: ‘I’d take a terrorist case. It’s my job. There’s no reason to knock that case back. But if I had a safety concern I might not take the case. It’s a job and my family would come above it. But I have never had such concerns.’[108] Another lawyer, noting that as of November 2005, two of Saddam Hussein’s lawyers have been assassinated, said that his commitment to law and to justice would not compel him to put himself in physical peril: ‘I would not go where I’d be in danger.’[109]
Although most of the lawyers interviewed believe in the cab rank rule and felt that it has had a positive impact on Australian legal ethics and their own sense of professionalism,[110] not everyone agreed. One lawyer remarked: ‘I’m not a great believer in the cab rank rule. I take cases because there are principles to be argued about … legal principles and social principles.’[111]
Another said: ‘I have my own moral code.’[112]
Yet another said:
I don’t think my motivation comes from the cab rank rule. We have one [in Queensland] — but I don’t know that it’s applied 100 per cent. … I think it comes from my social values. You just have to take on some of the hard cases with indigent clients and unpopular clients. … You can kill yourself on Legal Aid [cases] — but you have to do these cases, you just do. … Everyone has the right to be defended no matter what they’ve been accused of. I really believe that.[113]
One of the problems is that the cab rank rule is too often seen as a ‘theory’ or ‘principle’ and is fairly easy to evade. One lawyer was dismissive: ‘Cab rank is a theory. I don’t subscribe to it.’[114]
Another lawyer who likes the theory nonetheless acknowledged that ‘if you feel you can’t do it you can turn it back.’[115]
Another lawyer said: ‘Cab rank is much honoured in principle, but not always in practice.’[116]
Another lawyer referred to the cab rank rule as a ‘principle’ only and ‘people can find excuses — they’re busy or can’t afford it.’[117]
One prominent barrister, who believes that unpopular clients ought to be well represented, was not convinced that he always needed to be the one providing that representation. Among the things he considered in agreeing to take a case was ‘how much angst it will cost me. … If you’re offered a high profile case you want, it’s easy’, he said. But ‘a high profile case that takes you away from home for … long periods of time [is another matter]’. The barrister noted: ‘you know you’ve made the wrong choice when your four-year-old lies down between you and the door and refuses to budge, crying that he does not want you to go away yet again.’[118]
A lawyer who admires the cab rank rule pointed out that ‘fancy pants law firms with Persian rugs don’t represent everyone. The rule can be easily evaded.’[119]
A prominent barrister who approves of the cab rank rule has had his share of unpopular cases, and has never sought to evade the rule, nevertheless admits that he feels he can ‘pick and choose cases’ now that he is a bit older and ‘not working as hard.’[120]
Consistent with the notion of professionalism is the obligation to work hard no matter who the client is or what the client has done.[121]
One criminal lawyer described her work ethic on behalf of the criminally accused even when she knew her client was guilty:
I couldn’t live with myself if I didn’t give a thousand per cent even for the guilty. … I try as hard no matter whether it is a losing case or one I should win. I couldn’t live with myself if I didn’t. … I’m awful to be around when I’m in trial. I lie awake at night worrying about whether I gave everything in my ability to a case. You just have to do it right.[122]
Another defence lawyer had a similar approach: ‘The only thing I feel guilty about is my own incompetence or whether I am working hard enough. It is never about who I represent. I have trouble sleeping worrying about doing my job better.’[123]
Another defence lawyer talked about working day and night on a ‘particularly savage murder case’, where the prosecution’s evidence was overwhelming but the client was ‘adamant that he didn’t do it.’[124]
The fact that it was a losing battle and it was likely that the client was guilty had ‘absolutely no effect’ on the way she tried the case:
We fought it really hard. By the end of my address we convinced ourselves that we had a chance. We originally thought the jury would be out for an hour. When they were out for three days we started to get our hopes up. When they came back and convicted, the solicitor I was working with cried. She thought we had won it.[125]
One career legal aid lawyer talked about visiting her client in prison for a grisly murder case where the evidence was overwhelming and the client had made a confession ‘to help his mate’. She visited every weekend for over two months to work with him so that he would be able to tell his story effectively. ‘He was wonderful on the witness stand’.[126]
The same lawyer feels strongly that the poor deserve the same quality representation as the rich. ‘My philosophy is people deserve a fair trial no matter what they’ve done and no matter how poor they are. Poor people are entitled to the same quality of representation as anyone else.’[127]
A political lawyer described a ‘horrific case’ involving the abduction, torture, rape and murder of two schoolgirls by a client who was ‘psychotic and had not one redeeming feature about him’:
The families were grieving terribly. The judge and jury were visibly upset when the co-defendant recounted the last moments of the girls’ lives. A defence lawyer even had to leave the courtroom. And the defendant just sat there with a bland expression on his face. … He was the most unrepentant bastard of a client I ever had. … When he was convicted and received a sentence of ‘life never to be released’ I didn’t lose a moment’s sleep. I thought justice had been served. … But, we did an appeal pro bono for him all the way to the High Court. There was a legal issue about acting in concert, an important legal principle that needed to be pursued.[128]
Very few Australian lawyers with whom I talked expressed any sort of reluctance to undertake the case of an odious or unpopular client. Indeed, many lawyers spoke as if the burden of explanation was on a lawyer who would refuse such a case. One lawyer put it strongly: ‘When I take on an unpopular case I am doing my job, my duty. We have certain ethical obligations. We are not to judge our clients. That’s for judges. Lawyers represent clients.’[129]
Another said:
How can you not represent unpopular clients if you have a system that is supposed to be about justice and people getting a fair trial? If you can’t do that for people judged to be ‘evil’ then the system is corrupt. The system must protect the rights of all, or you can’t guarantee it for anyone.[130]
Another said: ‘There’s nothing worse than a lawyer who lets his personal feelings get in the way. … I would never turn down a brief on behalf of an unpopular client. God strike me down if I did.’[131]
Perhaps this nearly universal embrace of professionalism is unsurprising in view of the Australian tradition of the Bar’s ‘objectivity’ and ‘independence’[132]
and the conception of Australian lawyers as officers of the court first and foremost.[133]
As G E Dal Pont, scholar of Australian and New Zealand legal ethics has observed: ‘The administration of justice depends, and the court relies, on the faithful exercise by counsel of independent judgment in the conduct and management of the case.’[134]
Legal ethics rules reflect this same tradition. Although each jurisdiction in Australia has its own set of ethical rules, there is movement towards the adoption of a uniform national code based on the Law Council of Australia’s Model Rules of Professional Conduct and Practice (2002) (‘Australian Model Conduct Rules’).[135] The Australian Model Conduct Rules emphasise the ‘privilege’ of practising law and the attendant professional obligations, at the heart of which is maintaining the proper functioning of the system:
A practitioner is endowed by law with considerable privileges, including exclusive entitlement to appear in some courts and tribunals, exclusive entitlement to conduct some transactions and draw some documents, and special protection against disclosure of client confidences. These privileges require that the community has confidence that a practitioner must at all times be fit to enjoy those privileges. A practitioner ought also to act in ways which uphold the system of administration of justice in relation to which those privileges are conferred.[136]
In keeping with this emphasis on the lawyer’s role in relation to the system (rather than in relation to the individuals they represent), relatively few Australian lawyers talked about the individual client as a motivating factor. Even when explicitly asked about a desire to ‘help people’ in their time of trouble, only a handful of lawyers seemed primarily motivated by altruism. One public defender said:
I think it’s both. To a large extent, my concerns are systemic. I believe in making sure the protections are in place because the integrity of the system is at stake. Equally, I believe you can assist people. Not in all cases. … At the very least, you can make sure people who have never had a voice will have one.[137]
Another lawyer replied: ‘Helping people? It’s not my biggest motivation. But I like the fact that what I do helps people.’[138]
However, a few lawyers do regard themselves as part of a ‘helping’ profession,[139]
using their expertise to assist people who lack the means to help themselves. One lawyer left commercial practice because ‘the chase for the dollar … left [him] empty’ and ‘the interest in helping people wasn’t there.’[140]
He went overseas for a year, and came home determined to find work that he cared about:
Being able to be an advocate for young people, homeless people, people with intellectual disability or psychiatric illness — giving them a voice, empowering them, trying to make a change for them — these were things I wanted to do.[141]
He took a job at Fitzroy Legal Service, the first community-based legal services office in Australia, because, more than anything else, he wanted to ‘help people’:
I had enthusiasm if not experience. I was naïve. I wanted to help people even though I didn’t really know the issues. … 25 years ago Fitzroy Legal Service wasn’t in the neighbourhood it’s in now. It was close to public housing high rises. Police were treating people badly at the time — people who came from countries where the police were instruments of torture and torment. … For a long time people were too afraid to speak out about what was happening. If the Government made a decision they didn’t want to rock the boat. … But people who were scared could come to us.[142]
A lawyer who works with prisoners is also motivated by a desire to help those most in need, no matter what they may have done to end up in prison: ‘They need your help’.[143]
In keeping with Babcock’s ‘social worker’ or ‘humanitarian’ motivation, this lawyer spoke of the everyday hardships and horrors of prison life, and the importance of reaching out to the unfortunates behind bars: ‘There is a lack of humanity in prisons; someone has to show some humanity. I want to help people. To people in prison the lawyer is a lifeline’.[144]
A criminal defence lawyer said:
Everyone needs help sometimes. … When people say: ‘how can you represent scum like that?’, I say: ‘let me tell you a bit about the person you’re calling scum. Then they change their view.’ I think every being has a redeeming quality. Maybe that’s a defence point of view.[145]
Another criminal defence lawyer felt similarly: ‘People don’t think ‘these people’ don’t deserve a lawyer. They don’t like the conduct. But, I always wanted to help. Most of the people I represented early in my career were drug affected or came from disadvantaged backgrounds.’[146]
One prominent barrister said: ‘When it comes down to it, the law is all about people. … Except when you’re prosecuting, in the main you’re trying to help people.’[147]
Still, there was relatively little conversation about helping clients. One not especially altruistic defence lawyer — by his own admission — remarked sardonically: ‘Every so often you feel like you really do help people, which is a good feeling.’[148]
For some Australian lawyers, representing unpopular clients is an expression of political or philosophical commitment along the lines of Babcock’s ‘political activist’ motivation. In addition to professional duty, these lawyers represent the unpopular to further social justice and redress inequality or oppression. Even lawyers not primarily motivated by politics can end up ‘taking sides’ in the politically charged atmosphere that sometimes accompanies these cases.[149]
One lawyer has an ‘overtly political firm’ on the industrial outskirts of Melbourne, where many of his clients live.[150]
The location was a ‘philosophical, ideological decision’, he says. ‘It’s political and social justice issues that … drive me.’ His representation of the unpopular — trade unionists and poor criminal defendants — is motivated more by ‘conscience and principle’ than by legal ethics.[151] Regarding the criminally accused, he states: ‘When you look at people in the criminal justice system, they are the most marginalised and disadvantaged. They need robust representation.’[152]
A lawyer who would ‘not hesitate to represent alleged terrorists’, and who has been acting for these clients since the very first arrests under Australia’s anti-terrorism laws, acknowledged a political motivation:
There has always been an ideological or social dimension to my work. … How long is a piece of string? This is my personality, my outlook on life — my political and ethical view of the world. I’m much the same person I was when I was a law student and active in political causes. … In addition to acting for alleged terrorists, I have also been involved politically in trying to moderate draconian anti-terrorism legislation.[153]
The same lawyer said he became a criminal lawyer both out of intellectual interest[154] and his ‘deep sense’ that there was a need to ‘even up the balance.’[155]
This lawyer saw that there were clear sides in the criminal process, with one side, the prosecution, having all the power. He wanted to advocate for those on the other side of that power:
I see the criminal process as weighted in favour of the police and prosecution and making it difficult for people who stand accused. An important part of my self-identity is making sure the system is fair and balanced and making sure no injustice occurs.[156]
A career legal aid lawyer talked about her ‘strong social conscience’ and the impact of late 1960s and early 1970s activism on her life choices:
I was in university in the seventies. My family had a strong social conscience. I took [the subjects] Poverty Law and Aboriginals and the Law, and was always interested in working in these areas. … I was interested in prisoners’ rights and looking after people others hate. … People are people; they’re human beings. There’s always something to be said for people. They are stupid or silly usually, not bad.[157]
When asked what motivated him to represent the poor accused, another long-time legal aid lawyer referred to the ‘social justice answer’ and the ‘interest in my career answer’:[158]
One of the reasons to be at legal aid is you can effect systemic changes. We try to make sure that a policy under consideration actually works. For example, the new anti-terrorist legislation. … This is a good reason to be a lawyer. You can exercise — or at least hope to exercise — some influence on the policy direction of society.[159]
A career poverty and prisoners’ rights lawyer dismissed the idea that Australian legal ethics or the cab rank rule played any sort of role in her lifelong representation of the unpopular. She declared: ‘Legal ethics plays no role [as a motivating factor for representing the unpopular]. It was just not in my head.’[160]
When asked why she represented the unpopular, she responded with a single word: ‘Injustice’. She explained:
When I see injustice I get fired up about it. The injustice is compounded by the category of being called ‘unpopular’. … Someone in society sets up these rules — some are in the ‘in crowd’ and some are in the ‘out crowd’. It seems so arbitrary. … I supposed of course it’s to perpetuate power.[161]
The same lawyer is motivated not by the ideal of the neutral, independent barrister taking the next case in line, but by the need for a ‘last port of call for clients who have no money for a lawyer and can’t even get legal aid.’[162] She is moved to act by the routine abuse of power against the vulnerable:
Prisoners are in an incredibly vulnerable position. The physical power against them is extreme — just the fact of being locked up. When you see close up the arbitrary nature of how rules are dished out it’s hard not to act. Prison guards sometimes seem to be the worst of humanity. One prison guard wanted a job as a dog handler but he couldn’t get one so he became a prison guard. … You can make or break a person in prison.[163]
Another career poverty lawyer offered an understated comment about doing the work out of principle:
I do it because it’s important to do. It’s not just because someone has to do it — that’s superficial. I don’t go out of my way to talk about why I do this kind of work — I don’t want to be evangelical — but it is more important to represent people who need good quality advocacy than to represent a large commercial firm.[164]
The same lawyer traces her commitment to representing the poor and unpopular back to anti-Vietnam War activism: ‘A lot of it goes back to the Vietnam War. I was active as a high school student — I joined an organisation called Resistance.’[165]
A somewhat younger career legal aid lawyer expressed a similar deep-seated commitment to representing the unpopular and disadvantaged, a commitment which she regards as both political and moral: ‘My political and moral philosophy drive me. I take on these cases because of my broader political beliefs about democracy and the role of the state against the individual. These beliefs make me feel ethically obliged.’[166]
She was originally motivated to become a legal aid lawyer because of her ‘left-leaning politics’, an ‘interest in social justice issues’ and ‘not wanting to make a million dollars.’[167] She explained: ‘I wanted to help the poor, disadvantaged, and abused … the underprivileged and disenfranchised. … I believed — and I still believe — in [people’s] right to a fair trial whether they are rich or not.’[168]
A lawyer who represents asylum-seekers points to ‘moral principle’ as his chief motivation.[169]
Although he is a barrister, the cab rank rule had little to do with his decision to take on these cases. Instead, he acted because he ‘saw the need’ in the face of a ‘skewed and unequal … immoral and corrupt’ system that ‘puts up barriers to prevent claims.’[170]
With asylum cases, the government has taken away peoples’ rights. … It corrupts the basic values of the legal system — of giving people a fair go. This is what motivates me. I take pro bono cases because that’s important to me. Even though the chances of success are slim. … I want to keep the system honest and keep them accountable. … There is a higher principle that motivates me.[171]
The same lawyer explained that asylum cases are ‘intense’: ‘People are desperate to get out — they have been beaten, tortured by police or government … they have been displaced, have lost family.’ The work is also intrinsically political.[172] The lawyer acknowledged that these cases are also difficult to win. Still, he persists: ‘I’ll advise a client not to proceed if there are no grounds. But if there is a one per cent or two per cent chance, I’ll do it.’[173]
Several lawyers referred to their immigrant ancestry as a motivation for representing unpopular and disadvantaged clients. They feel a connection with their largely poor and working-class clients and see their work as part of a larger struggle for social justice. One lawyer stated: ‘It’s a matter of background. My parents were immigrants. They’re from Cyprus and Ireland and the Ukraine. There were lots of kids and they worked really hard.’[174]
A career legal aid lawyer said: ‘I was born in Italy. I grew up in the western suburbs of Melbourne surrounded by disadvantage.’[175]
Another legal aid lawyer pointed to her family’s departure from Scotland during the ‘Thatcher years’, and her ‘strong sense of class’ which she felt early on: ‘Empathy with people with a working class background comes easily for me.’[176]
A lawyer of Italian ancestry talked about the discrimination his parents faced as a motivation for assisting others in similar shoes: ‘Coming from an immigrant, non-English speaking family, I knew how my parents were treated. But people didn’t do anything until it was too late. … I wanted to give people a voice. … This is why I wanted to do law.’[177]
A prisoners’ rights lawyer who has had a range of other public interest and poverty law jobs said:
I come from a Scandinavian family, where justice was something we lived, not just talked about. I was taught to always be aware of other peoples’ perspective[s], and to recognise that no one is better than anyone else. This was a deep-seated philosophical position I never questioned.[178]
Other lawyers spoke of the connection between being Jewish and advocating for the unpopular and the underdog. One explained:
I’m Jewish. My family came from the Holocaust. My father came here after the war with nothing. His whole family was killed in the Holocaust. My Jewish background champions the unpopular, the underdog, the discriminated against, the ostracised, the exploited. I am more inclined to act for these.[179]
Another said: ‘Look, I’m Jewish. I grew up in Israel. … It is part of the Jewish social justice tradition that we all like to think of ourselves as making some kind of difference.’[180]
One criminal lawyer came to the Bar as a ‘left-winger’, eager to ‘make a difference … [and] do work that involved looking after the underdog.’[181]
He felt a special ‘affinity for young blokes in trouble’, a group with whom he had worked prior to becoming a lawyer.[182]
One lawyer who did not fit neatly into the ‘political lawyer’ mould — he specifically disavowed an ‘ideological drive’ and stated that he had ‘never voted Labor’[183]
— was nonetheless motivated more by (political) philosophy and ‘principle’ than by ethics or professionalism:
I do refugee work because it cries out to be done. I was deeply offended by the way this country was treating refugees. I wanted to make amends for the country and try to make things better for them. It was the simple fact of locking up innocent people indefinitely that hit me like a thunderbolt. … I saw a Holocaust documentary after taking on the Tampa case. There was a Berlin lawyer talking about Germany in the mid-1930s. He said they passed a law locking up innocent people, and that, in itself, is a terrible crime. I thought it was just plain wrong to hold innocent people on the deck of a ship in the tropics. … The law was grossly stacked against the people I represented.[184]
Many of the lawyers who are motivated by politics or ideology also seemed to genuinely like their clients.[185]
This was especially so for lawyers representing poor people, prisoners, Aborigines and refugees. They spoke of their clients with affection and understanding. As one lawyer said: ‘I like people. I’ve met Aboriginal drunks, seriously disabled people, sex offenders — and they all have something going for them. You don’t dismiss people out of hand because they don’t measure up, don’t fit, don’t look right.’[186]
My favourite rendering of the personality of lawyers who defend the unpopular — in particular, criminal defence lawyers — comes from the director of an American criminal defence organisation. She calls criminal defence lawyers a ‘breed unto themselves’ and describes them as ‘profane, argumentative, insecure, [and] eccentric’.[187] She lists the following as ‘identifying characteristics’:
1) They are mostly Italian, Jewish, or Irish males. 2) There are females as well, but not many, and they, too, are mostly Italian, Jewish, or Irish. 3) The males are often quite short. Cheap sidewalk analysis indicates that, as children, they were forced to fight for their honor among bigger, stronger classmates, thus becoming ‘defensive.’ 4) Surprisingly, many of them will admit to a very upscale education, often Ivy League or something like William & Mary or Stanford. 5) They can’t complete a sentence that doesn’t include the F-word, and the more frequently and creatively it’s used, the more effectively they feel they’ve communicated (eg, ‘I ordered a f—ing tuna salad on wheat, and that flea-brained f— brought me a ham and cheese on pumper-f—ing-nickel’). 6) They’re often ill at ease with people who are not themselves criminal defense lawyers. 7) They cry in public if the subject has to do with justice or the death penalty.[188]
Their aberrations include:
1) They dress outrageously, usually in blue jeans and T-shirts that say unprintable things. When they must dress for court, however, they have the best ties anywhere (men) or the most expensive dresses and jewelry (women). 2) They wear their hair too long (men) or skirts too short (women). 3) They never plan ahead. Ever. 4) They abuse substances and are sexually promiscuous well into their 30s. After that they mellow somewhat, but the profanity never goes away. 5) Oddly, they make loving parents.[189]
One Australian defence lawyer laughed out loud when I shared this description with her. She insisted on having a copy.[190]
Another lawyer suggested there was a prototypical Australian (or at least Melburnian) criminal defence lawyer: ‘Look, I fit the profile: Catholic, Collingwood-supporting, Labor voting.’[191]
A number of lawyers — especially public defenders and legal aid lawyers — felt that personality played a role in their inclination to represent unpopular clients and causes. One public defender remarked: ‘There is a sort of public defender personality type or types. We do regard ourselves as different from prosecutors. We have a different personality: more tolerant, more accepting, less ruthlessly ambitious’.[192]
A legal aid lawyer described the lawyers in her office as ‘generally egocentric’, ‘quite tough’ and with a ‘big personality’.[193]
A former public defender talked about the ‘irreverence and humour’ of criminal defenders, notwithstanding the seriousness of their work.[194]
A career legal aid lawyer talked about the ‘young, committed’ lawyers who approach their cases with ‘enthusiasm’ and have ‘energy to burn’.[195]
A former public defender talked about the ‘stack of people [at the public defender office] who are really dedicated to the task of defending people’, but who also ‘don’t take themselves too seriously.’[196]
Several lawyers at the private Bar also pointed to personality as a factor in their choice of work. Many talked about being drawn to defending the unpopular early on,[197] and noted that it suited their competitive spirit.[198]
As one prominent barrister said when asked whether he felt compelled to accept unpopular cases as a matter of Australian legal ethics: ‘Yes, but [it’s] also my own personality. Unfortunately it’s a blood sport. I enjoy it. I love it.’[199]
A lawyer who specialises in criminal defence and Children’s Court cases readily pointed to personality as a factor: ‘Personality is probably the most important thing’.[200]
She saw herself as hard-wired to champion the unpopular, probably from birth: ‘I’m Irish Catholic. Anti-authoritarianism is in our mother’s milk.’[201]
She recognised the makings of a criminal lawyer from her earliest school days: ‘Early reports noted that I could not stop talking in class. I was a malcontent. I was opinionated. I was always at the back of the bus making smart comments.’[202]
A strain of anti-authoritarianism was evident in many of the lawyers interviewed. One prominent defence lawyer declared: ‘I don’t like judges.’[203]
Another regards prosecutors as ‘sanctimonious goody-two-shoes.’[204]
Yet another eschewed prosecution altogether, saying: ‘There’s no heart beat to it.’[205]
Several lawyers described themselves as naturally non-judgemental and able to relate to even the worst offenders. As one lawyer said: ‘I can be completely dispassionate and non-judgmental. I’ve always known that about myself. … I can talk about things with people no matter what they may have done.’[206]
A long-time indigent criminal defence lawyer noted that she ‘can see people as people even though they’ve done some dreadful things.’[207]
A prominent political lawyer said: ‘We don’t moralise. We don’t make judgements about our clients’ behaviour.’[208]
Another lawyer believes that, whatever else draws you to the work, you ought to be interested in people and stories:
If you’re not one of life’s voyeurs don’t come to the Bar. I’m fascinated by people. You hear incredible stories — heroic stories, terrible stories, stories about people behaving well and behaving badly. To a certain extent you stand back and watch. There’s a vicarious fascination. … There is no foolishness that men won’t engage in for sex or money. Women are close behind.[209]
Other lawyers agreed about the love of a good story, and the importance of uncovering it. One lawyer talked about his representation of a client accused of raping and murdering a six-year-old girl while her mother was asleep in another room. It was a particularly vicious case by a client who had committed other such crimes. ‘He was a hard bloke to like’, said the lawyer:
On the other hand, I came to quite like him. … Everyone has a story. He had a story to tell. He had gone clean for a while, found a girlfriend, really straightened himself out. … There’s a serious question in the case about police methods in obtaining a confession. We have a fair chance to win it on appeal. Still, I would never take a case just because there’s an interesting appellate issue. Usually, it’s the human interest story that gets my attention.[210]
Several lawyers noted that practising law on behalf of the unpopular — especially criminal defence — was a good fit for them intellectually. One criminal lawyer said: ‘I’ve always been interested in crime … it is intellectually stimulating … I like grappling with criminal law concepts … I like the hardball ways that the rules of evidence can be used … [and] I like the process of advocacy’.[211]
A long-time legal aid lawyer described criminal law as ‘intellectually interesting, challenging’: ‘I like the challenge’ she said. ‘There’s always an angle in the roundabout. … And, it’s never boring.’[212]
Another legal aid lawyer said: ‘Criminal law is … intellectually stimulating, more so than any other law.’[213]
A former public defender, who still does mostly criminal law, said: ‘Crime cases are the most interesting. The personalities are intriguing.’[214]
The idea of a defence lawyer personality clearly transcends nationality and fashion — wigs and robes notwithstanding. Apparently, there is a short skirt or fabulous tie under that robe.
Although Australians are said to be excessively self-effacing and singularly disinclined to trumpet their successes, some lawyers were candid about the added attraction of celebrity and publicity in defending the unpopular. It could be that lawyers — especially in an age of seemingly endless, and (at least in America) often televised, celebrity court cases — are a cultural aberration. It could also be that notoriety is part of the adrenaline rush of defending the unpopular, in keeping with what Babcock calls the ‘egotist’s’ motivation.
As one prominent barrister put it: ‘Three things make a good case: will it be interesting, will it make me rich, will it make me famous? You need two of the three. … A hot, interesting case — most would jump at it.’[215]
Another barrister acknowledged: ‘I enjoy the attention. Unpopular clients get the most attention.’[216]
One of the lawyers who represented Lindy and Michael Chamberlain referred to both the ‘challenge’ and ‘celebrity’ of the case, and said it was ‘unthinkable that you wouldn’t take it.’[217]
He felt fortunate to be involved in the Chamberlain case: ‘As a criminal lawyer, this was the biggest bandwagon to come past my door. … You want to be part of the biggest criminal case to date. You can’t help but want to be part of it.’[218] He noted that ‘[o]ther members of the Bar were envious.’[219] He called the case ‘utterly stimulating.’[220]
A legal aid lawyer who said he was not particularly moved by the press-worthiness of a case noted that the private Bar might feel otherwise: ‘Most members of the private Bar would jump at a serious and difficult case’, he said. ‘It creates publicity. Publicity is a draw.’[221]
In the United States, the central duty of the lawyer is to ‘further the interests of … clients by all lawful means.’[222] The professional identity of American lawyers is built on this fundamental duty to clients and American law schools — especially through clinical legal education — teach about the importance of being ‘client-centred’.[223]
It is through ‘zealous representation’ of individual clients that the American lawyer serves the court and ensures the proper administration of justice.[224]
As it is stated in the Preamble to the US Model Rules: ‘when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done.’[225]
Conversely, in Australia, the lawyer’s ‘overriding duty’ — under existing rules, law, and commentary — is not to the client, but to the court.[226]
As the Preamble to the Australian Model Bar Rules states: ‘The administration of justice is best served by reserving the practice of law to those who owe their paramount duty to the administration of justice.’[227] The Australian Model Conduct Rules, which have been adopted in most jurisdictions, state: ‘Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law.’[228] Similarly, the NSW Barristers’ Rules require barristers to ‘exercise their forensic judgements and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients.’[229]
In other words, for Australian lawyers, when there is tension between their duty to the client and duty to the court, the latter must prevail. In the famous words of Lord Reid in Rondel v Worsley:
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court.[230]
It is not that American lawyers have no duty to the court. Indeed, the American lawyer, like his or her Australian counterpart, plays several sometimes competing roles: ‘representative of clients’, ‘officer of the legal system’ and ‘public citizen having special responsibility for the quality of justice.’[231] However, when the various responsibilities are in conflict, the American lawyer must
exercise … sensitive professional and moral judgment guided by … the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.[232]
Although the American lawyer, like the Australian lawyer, ‘play[s] a vital role in the preservation of society’,[233] the American lawyer fulfils this role through adversarial advocacy. Although they, like the Australian lawyer, have certain special obligations to the court, there is much more lawyerly discretion in the interpretation of these obligations.[234]
The focus remains on serving the client by every lawful means.
An essential part of the Australian lawyer’s overriding duty to the court is the obligation to never ‘mislead’ the court,[235] which often translates into adherence to ‘truth’. This fealty to truth — unusual by American standards[236] — is best seen in Australian Model Conduct Rules r 15.2, which describes the duties of lawyers whose criminal clients confess guilt but wish to plead ‘not guilty’ and proceed to trial.[237]
The lawyer in this scenario has two choices: he or she may ‘cease to act if there is enough time for another practitioner to take over the case properly before the hearing and the client does not insist on the practitioner continuing to appear for the client;’[238] or, the lawyer may continue to act for the client, but under certain conditions.[239] In cases where the lawyer continues to act for the client, the lawyer:[240]
This is strikingly different from American criminal defence. In the US, there is no prohibition against putting forth an affirmative defence for a client who acknowledges guilt but asserts his or her right to trial; indeed, there is great scope in putting forward defences whether or not they are based in fact or are in ‘good faith’.[241]
There is no prohibition against cross-examining witnesses ‘known’ to be telling the truth. There is no prohibition against arguing that witnesses known to be telling the truth are incredible. Indeed, it is the standard view that, whether or not the client is actually innocent, ‘[e]ffective trial advocacy requires that the attorney’s every word, action, and attitude be consistent with the conclusion that his client is innocent.’[242]
A story by a former Washington, DC public defender illustrates this difference. The defender, who worked for several years in one of the top public defender offices in the country, was appointed to represent a man who was charged with three separate acts of sexual assault and burglary.[243] In the case that first went to trial — an alleged attack on a young woman in an affluent Washington apartment building — the defendant was found two blocks from the scene of the assault, bleeding from his arm where the victim had cut him with a piece of glass. Because there was no chance of convincing the jury that this was a case of misidentification, the defender argued that his client may have been guilty of simple assault and unlawful entry — misdemeanours which carried far less time — but not rape and burglary. The defence’s case depended on convincing the jury that the defendant had mistakenly believed that the complainant was ‘coming on’ to the defendant and, based on this belief, had approached her: ‘One thing led to another, things got out of hand, and the next thing you know my client was running down the block with his arm slashed.’[244]
The defender’s account says nothing about the client’s version of events or his ‘instructions’. It is evident that the lawyer came up with a defence theory based on the evidence and/or lack of evidence. The defender acknowledges that he thought the defence was ‘unlikely to succeed … but it was the only one we had.’[245]
In the course of the trial, the defender subjected the complainant to a ‘lengthy and probing cross-examination’, cross-examining her ‘as aggressively as [he] could without generating a backlash of sympathy.’[246] Apparently, the complainant did not help her own cause. She ‘came across as cold, even contemptuous, condescending, and uncooperative’ and ‘the jury was apparently willing to suspend disbelief’ and consider the scenario he had proposed.[247] Following lengthy closing arguments — with the defender asserting ‘understandable misunderstanding’ and the prosecutor ridiculing it — the jury convicted the defendant of the misdemeanour charges only, finding the defendant not guilty of rape. Instead of 30 years, the defendant now faced a maximum of a year and a half.[248]
Although the defender took no joy in this case,[249] he had no ethical qualms whatsoever. He went on to ‘beat’ the second case and worked out a favourable plea in the third.[250]
In contrast, an Australian lawyer said: ‘I wouldn’t say a witness was lying if I knew otherwise. … I can’t put any evidence or inference to the court that is false.’[251]
Another lawyer said: ‘I would not for any purpose put forward a positive statement of innocence [in the face of knowledge to the contrary]. That would be a lie.’[252]
One Australian lawyer, who felt constrained in what he could do on behalf of a guilty client, felt similarly constrained in what he could do on behalf of an innocent one. He would not act for an innocent client who wanted to plead guilty to cultivating marijuana in order to ‘take the rap for her partner.’[253]
‘That would be misleading the court’, he said.[254]
When asked whether the lawyer had a responsibility to advance the client’s autonomous interests — to the client in this scenario, it was apparently more important to protect a loved one than to save herself — the lawyer said: ‘The woman is trying to protect someone, and I won’t go to court to lie for a client.’[255]
To try to uncover the differences in the professional orientation of American and Australian lawyers — to see whether the rules have been incorporated into the legal culture — I asked the Australian lawyers interviewed to take part in an exercise I employ with students in Georgetown’s criminal defence clinic. On the first day of the clinic’s orientation programme, during a session on ‘criminal defence perspective’, I write four concepts on the board: ‘Truth’, ‘Justice’, ‘Fairness/Equality’ and ‘Client Interest’. I ask the students to rank the concepts in order of importance as they embark on the representation of the indigent accused.[256] Then, we discuss the students’ answers.
The goal of the exercise is to encourage students to understand the central criminal defence ethic in the US, namely, pursuing the client’s interest. A New York public defender articulated this ethic in a 1971 Life article regarded as a classic in the annals of criminal defence:
Criminal law to the defense lawyer does not mean equity or fairness or proper punishment or vengeance. It means getting everything he can for his client. … Justice is a luxury enjoyed by the district attorney. He alone is sworn ‘to see that justice is done.’ The defense lawyer … finds himself most often working for the guilty and for a judicial system based upon the sound but paradoxical principle that the guilty must be freed to protect the innocent.[257]
Although the other concepts sound much more appealing to many students — young, idealistic students tend to care about justice, fairness and equality, and truth — these are aspirations, not ethical mandates. This is why there is a clear ‘right answer’ to the exercise: the central ethical obligation of the American lawyer is to pursue the client’s interest. The only other right answer in an exercise that is intended to provoke discussion — students often feel strongly about the righteousness of their own motivations — is that truth should come in last. Truth can be important — good defence lawyers should do their best to uncover it, especially in cases of factual innocence — but the adversarial system is about proof, not truth.[258]
Indeed, if criminal defence most often involves defending the guilty,[259]
then truth is often directly at odds with the client’s interest.
Most American lawyers — especially criminal defence lawyers — would without hesitation put client interest first and truth last.[260]
For the Australian lawyers interviewed, the right answer was not so clear.[261] The one apparent area of agreement between American and Australian lawyers engaged in advocacy is that truth is not the chief concern. Most Australian lawyers put truth last. On the other hand, a few Australian lawyers — more than I would have expected given the sample — ranked truth first or second. They explained the high ranking by pointing to the strict prohibition against misleading the court.
Nonetheless, first place votes were fairly evenly divided among justice, fairness/equality and client interest. Some lawyers expressed the view that if the system worked justly and fairly, it would ultimately serve the client.[262]
Others said that client interest was most important. Interestingly, a significant number of Australian lawyers put client interest third or fourth.
It is clear, however, that duty to the court and to truth is part of the professional identity of Australian lawyers.
One prominent barrister spoke for nearly all when he said: ‘When there is tension between being my client’s advocate and being an officer of the court, I resolve it in one way: my duty is to the court.’[263]
One barrister suggested that duty to the court and duty to the truth are inextricably connected: ‘It all comes down to the truth. If a matter should be brought to the attention of the court I’ll do it. … I won’t tell a lie for a client.’[264]
Another said: ‘I never mislead the court. I have a duty to the court. You’re in a partnership with the court as a barrister. If lawyers lie the whole system breaks down.’[265]
When asked, even politically motivated lawyers directly replied that duty to the court and to truth come first. One prominent defence lawyer immediately stated: ‘My duty is first and foremost to the court.’[266]
A legal aid lawyer said: ‘I see myself as an officer of the court first. … Where there is tension, you honour your duty to the court first. Clients have to understand this — or they can sack you.’[267]
Another legal aid lawyer said:
Your primary obligation is clear: you are an officer of the court whether you like it or not. Your first duty is to the court. You have to act on your client’s instructions or in their interest while not breaching your obligations to the court.[268]
A defence lawyer with an explicitly political practice said: ‘Your first duty is as an officer of the court and you must behave scrupulously.’[269]
On the other hand, some lawyers do not experience much tension between duty to the court and duty to client. A long-time poverty and prisoners’ rights lawyer said: ‘I never feel a great deal of conflict. You can reconcile the two roles quite readily.’[270]
Another lawyer said:
In essence [any tension] has to be resolved in favour of your ethical duty to the court. But there are ways of doing this. You must explain to the client the things you can’t do and the things you can. Rarely have I ever reached an impasse.[271]
Another said:
I’m fairly firm that the officer of the court role comes first. My duty to the court is more important than my duty to the client — but I can’t think of a case where the two have been in real conflict. … I tell a client I won’t put absolute nonsense to the court, I won’t put rubbish. … It makes the client look bad.[272]
Some lawyers regard their role as officers of the court not only as an ethical matter but also as a way of best serving their clients. As one public defender said: ‘With judges here, one’s credibility is important. If the judge knows you and knows they can trust you, it benefits the client.’[273]
A criminal lawyer said: ‘You get one reputation. You want to be known [to be] as straight as possible.’[274]
Another criminal lawyer said: ‘I preserve my credibility. I won’t compromise my client’s interests but I won’t take an untenable position.’[275]
Yet another said: ‘In the long run, the more honest and straightforward the court sees me, the better it is for my clients.’[276]
A younger lawyer said:
At the end of the day maybe it’s a fear of reprisal. I won’t be a practitioner known by the bench or my peers to be lying to the court. It would be a great professional and personal embarrassment to be seen as dishonest by my colleagues.[277]
Others believed they could honour their relationship to the court without undercutting their relationship to the client, and that any tension could be resolved through straightforward client counselling. As one public defender said:
We have strong guidelines in our relation to the court … not to mislead the court either directly or indirectly. I would try to explain to my client the limits of my representation. If my client told me to suggest to a victim that he didn’t do it when he had instructed me that he did, I would explain what I could and could not do. … If necessary, I would withdraw.[278]
A legal services lawyer said:
I believe in being up front with clients. If a client comes up with a stupid story or a lie, I would tell them this is crap and I won’t do it. I would talk a client out of it. I’m careful to educate the client along the way to make sure they understand the system.[279]
A prominent barrister said: ‘Sometimes I say to a client “this is bullshit and I’m not going to present it”. They usually cave.’[280]
One criminal lawyer has a clear sense of the lines she would not cross for a client — and she has no difficulty informing the client of these lines:
I will discuss with a client how I will run the case. If the client doesn’t like what I say he can get another lawyer. I would never get excited enough about the case to break any boundaries. This tends to mean misrepresenting by omission or inappropriate gloss. … I wouldn’t do it.[281]
One career legal aid lawyer said: ‘I can usually work it out.’[282]
With regard to prospective perjury, she said: ‘I’d give my advice — that they won’t be believed and they’ll be worse off. I’d put it in writing. I’d withdraw only if I believed my client was going to lie to the court and it was obvious and blatant. I would need to know.’[283]
I don’t get myself into a situation where there is tension. … You’re allowed to have your own personal views about crime and punishment. But it’s my job to get my client off entirely … or to get a convicted client the minimum sentence. … It doesn’t worry me. The Crown carries a heavy burden of proof: beyond all reasonable doubt. … If the Crown fails to prove its case so be it.[284]
One prominent defence lawyer employs a specific tactic that reflects his dual role as officer of the court and client advocate: ‘I tell my client that my duty is to the court first, and second to you. I say to my client, “before you tell me what you are about to tell me, understand that my first duty is to the court”.’[285]
In this way, the client is warned against saying certain things that might put the lawyer in an untenable position. Another lawyer agreed: ‘It’s best to iron that stuff out in the beginning.’[286]
One lawyer was sceptical about her fellow lawyers’ regard for the truth when it comes to advocacy:
I think lawyers are kidding themselves when they say they care about truth. If someone has one drop of Aboriginal blood, I’ll milk it in court for what it’s worth. I will play on female stuff. I will use stereotypes as part of advocacy. … I know I’m not alone in this.[287]
Notwithstanding their primary duty to the court, Australian defence lawyers seem to model themselves after the same Englishman as American lawyers: Lord Henry Peter Brougham. Lord Brougham’s famous declaration during his representation of the Queen Caroline in 1821 has been the standard for zealous representation for nearly 200 years:
an 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, amongst 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 the consequences, though it should be his unhappy fate to involve his country in confusion.[288]
Lord Brougham was defending Queen Caroline against charges of adultery, a crime of which she was almost certainly guilty as she and the King had been leading separate lives since the birth of their daughter some years before. If convicted, Queen Caroline would be divorced from the King and stripped of Her Majesty’s title, something she did not want.[289] In his opening statement at the Queen’s trial, Lord Brougham delivered a fearsome threat — that he would do what he had to do as an advocate, no matter the consequences to Crown or country. As Lord Brougham explained in his autobiography, this threat was ‘neither more nor less than impeaching the King’s own title, by proving that he had forfeited the crown.’[290] The ground for the King’s forfeiture of the throne was that ‘[h]e had married a Roman Catholic (Mrs Fitzherbert) [his mistress] while heir-apparent’, and such a marriage was ‘declared by the Act of Settlement to be a forfeiture of the crown, “as if he were naturally dead.”’[291] Therefore, to drive his threat home, Lord Brougham had prefaced it by saying that, if the case should reach a point at which an attack on the King were justified to protect the Queen, then he would not ‘hesitate one moment in the fearless discharge of [that] paramount duty.’[292]
Some Australian lawyers use the same language in describing their duty to their client. As one lawyer said: ‘The client’s interest is paramount. That’s what your job is — within the confines of your ethical duty and the law. … As long as you conform to the law you should put the client first.’[293]
A public defender said: ‘The primary, paramount concern for a defence lawyer is the client’s interests.’[294]
A legal aid lawyer said: ‘If you’re an ethical defence lawyer you put your client’s interest first.’[295]
Another legal aid lawyer agreed: ‘You should do everything you can for the client within the confines of the law.’[296]
Some lawyers described the lawyer’s duty as an advocate as providing a voice for those incapable of standing up for themselves in a court of law. As one prominent lawyer said: ‘The advocate is saying what the client would say if the client had the legal training and experience.’[297]
Another lawyer said: ‘I put forward the client’s case because he isn’t capable.’[298]
Another said: ‘Lawyers represent clients. That’s why I listen to the client’s instructions.’[299]
Whether they call it ‘robust’ or ‘zealous’ advocacy, most Australian lawyers say it is their obligation to fight hard for their clients no matter the charge or the weight of the evidence and they readily fulfil this obligation. One lawyer, when asked whether she wants to win ugly, distasteful cases to the same degree as a more ordinary ones, said: ‘Yes … My job is to win the case. I got someone off for rape and then he killed someone and I got him off for that, too. Then I represented him civilly’.[300] Another lawyer talked about a child sex abuse case, even though he had said only minutes before that these cases were unpleasant for him:
I can remember some child sex assault case I was anxious to win and which I fought tooth and nail. My own personal feelings about what the outcome ought to [be should] influence the case much less than any other factor. I have been successful in establishing a way of operating where I suspend belief and judgment.[301]
Another lawyer said he wanted to win these sorts of cases most of all: ‘You want to win more than in an ordinary case. It’s like [when] you’re in a fight and being held down, you fight extra hard to get up. You’re more willing to fight the good fight.’[302]
When asked about the American notion of zeal, a legal aid lawyer said: ‘I agree. I don’t think there’s a difference. As long as you observe your duty to the court not to mislead the court, and you’re not putting up anything you know to be untruthful. It’s not to win at any cost.’[303]
Another legal aid lawyer agreed that defence lawyers should try to win by all lawful means ‘provided you’re not compromising your primary duties to the court.’[304]
She elaborated: ‘You can’t mislead the court and you can’t run defences you know to not be true. Aside from these you’re trying to win.’[305]
One lawyer believes in ‘using the law to the nth degree’ and ‘push[ing] the boundaries, especially in asylum cases.’[306]
Although this lawyer was unequivocal about his obligation to ‘never misstate the client’s factual circumstances or evidence’,[307] when pressed, he agreed that there was some ‘give’ to this standard: ‘If a client tells me something I will put that forward. I’ll creatively interpret the law but not the facts. On the other hand, I would explore the facts with the client. I wouldn’t put words in the mouth of the client; that’s quite unethical.’[308] He admitted that ‘some questions I wouldn’t ask to avoid conflict of interest.’[309]
Sometimes you have to do things you might not want to do in the name of zealous advocacy. A public defender talked about cross-examining sympathetic witnesses:
Sometimes you must cross-examine a witness for whom the examination will be emotionally detrimental … As a defence lawyer you have to embark on an emotional cross regardless of the consequences. The interests of your client are your paramount concern.[310]
When asked about the view of some American lawyers that zealous advocacy within the bounds of law means getting as close to ‘the line’ as possible without crossing it, one lawyer responded: ‘I couldn’t agree more. You run with the ball until the bell rings.’[311]
Another lawyer said: ‘I agree. I would think this is what any good Australian lawyer would do. … I believe in the tradition of confident, assertive advocacy.’[312]
Another lawyer said: ‘if ethics allow it then you should go to the line.’[313]
A public defender agreed that zealous advocacy on behalf of clients is essential, but offered a cautionary note:
I think it’s very important to be a client’s champion, to present every possible argument … in an articulate way … to demonstrate passion and commitment no matter who the client is. … Even if it’s a very strong prosecution case, you don’t simply go through the motions. If what you mean by getting close to the line is being well-prepared and arguing passionately and strongly then I’m in agreement. If it implies doing something that isn’t completely above board or compromises the defence lawyer’s integrity, then no. The defence keeping the system honest will not be achieved if the defence lawyer doesn’t behave with integrity.[314]
One lawyer suggested there might be times when she would cross the line: ‘If something is unfair and unjust occasionally you might have to take a stance and put your career on the line for it. Here, I’m a bit more political. I’m not just a dispassionate lawyer doing a job.’[315]
When asked about famed American lawyer Alan M Dershowitz’s view of criminal defence ethics — what a defence lawyer ‘may do, he must do’ in order to defend the client[316] — one prominent Australian lawyer chuckled and said: ‘I absolutely agree with that. What you may do as a lawyer you must do.’[317]
Still, this same lawyer went on to explain that, notwithstanding the obligation of zealous advocacy, the Australian lawyer’s ‘first duty is to the Court, and our secondary duty is to the client.’[318]
Some Australian lawyers — a noteworthy minority — worried about ‘excessive zeal.’[319] Some of this worry is tactical — an overly aggressive style does not always make for effective advocacy. Yet, a concern about adversarial excess also suggests a stronger allegiance to court than client. In the US, judges are typically concerned about excessive zeal or ‘civility’,[320] not lawyers.
One lawyer who seemed more concerned about tactics than ethics said: ‘Zealousness per se is not always best … Sometimes softly, softly is better.’[321]
Another expressed a broad view: ‘I think too much zeal is not a good thing in litigation — and perhaps in other aspects of life.’[322]
Yet another voiced a concern about pushing the bounds of ethics:
I see zealous defence lawyers who are sometimes overzealous as walking the fine line between what is right and wrong. I would take a conservative view. I wouldn’t want to push the bounds so that I was misrepresenting to the court. I don’t have a minute’s patience for that kind of attitude.[323]
Some lawyers specifically disavow the idea that Australian lawyers should ‘push the envelope’, or get close to the line of lawful conduct, in the name of zealous or robust advocacy. ‘We see our role not as pushing the envelope,’ said one career defender. ‘There is an obligation not to mislead the court. This is an absolute rule. We would not want to put on our resume that we believed in pushing the envelope.’[324]
Several lawyers believe there is a ‘significant cultural difference’ between Australian and American lawyers, and suggested that Australian lawyers do not approach legal practice with the ‘same degree of intensity or zealotry’ as their American counterparts.[325]
One legal aid lawyer explained that, in contrast to the American notion of zealous advocacy, ‘it’s not that I will try “every lawful means to get my clients off.” There may be lawyers who take that attitude. But the chief idea is to make sure that the client gets a fair trial and is not convicted wrongly.’[326]
A prominent political lawyer shared this view: ‘I would think we don’t have that [same] robust attitude here [as in America] … because your first duty is as an officer of the court.’[327]
Another prominent lawyer who both defends and prosecutes said: ‘We don’t practise like the Americans. We don’t have to get into our client’s skin.’[328]
Several lawyers expressed reluctance to sign on to the American notion of ‘warm zeal’,[329] preferring the slightly more muted ‘doing one’s best for a client’ or ‘making sure the client gets a fair trial.’ As one lawyer said: ‘Representing the client to the best of your ability is how [you conduct the defence of an unpopular client]. … I’ve tried equally hard for unpopular clients as your ordinary Joe.’[330]
Another lawyer said: ‘I’m just doing my job to the best of my ability.’[331]
Still another said:
I do the best I can for my client, to the extent I’m able to. I cannot be unethical and I cannot break the law. I don’t think of going up to the ‘line’. There isn’t a line. It’s not that simple. There are times when you should be aggressive and times when that’s not the best tactic. It depends. As long as it’s legal you must do the best for your client.[332]
A legal aid lawyer saw his duty to the client as ensuring fairness as opposed to doing everything within the bounds of law to get the client ‘off’:
I am satisfied that we have a system that requires a fair trial and this is where you shoot. It’s not that I will try every lawful means to get my client off. There may be lawyers who take that attitude. But the chief idea is to make sure that person gets a fair trial and is not convicted wrongly. Some private lawyers might say no, your client is paying you to win …[333]
The Dershowitz approach — what a lawyer may do, he or she must do[334]
— was also disavowed by several Australian lawyers. Although there was unanimity about the lack of discretion in accepting unpopular cases, several lawyers suggested there was discretion as to how one defends such cases. As one defence lawyer said: ‘We have a choice as barristers as to how we represent clients.’[335]
The same lawyer voiced concern about unmitigated zeal on behalf of individual clients: ‘Client interest — meaning I’ll do anything for the client — is the problem I have with commercial law. … Client interest is too individual. Justice for your client is important — so long as it’s based on fairness and truth.’[336]
Yet, the same lawyer, and quite a few others, indicated that, as an advocate, he ‘would do everything allowed by law’, including ‘exploit[ing] prejudice on behalf of a client.’[337]
He saw this as a ‘tactical deci