Ethics and misleading the court ... Representing the guilty ... Moral standards ... Whatever it takes ... From columnist Evan Whitton ... Justinian's Archive, September 22, 2004
Marsden: rock solid
Fabled Sydney solicitor John Robert (Madge) Marsden, 62, has again raised a haunting question: is client-based ethics perhaps a county in south-east England?
In a memoir which sounds like the Popeye rap number, I Yam What I Yam, he records his distress at being ethically obliged to get Ivan Milat off rape charges in 1974.
"Then I put to her something that has haunted me to his day ... I suggested that her sexuality may have had something to do with what had occurred with Ivan Milat. Crying and under stress, she ended up agreeing - and in that moment I knew we had won ... we had put into their [jurors'] minds that the sex may indeed have been consensual ... I am not proud of my conduct that day, but ... I had to act according to the ethics of the profession ... I had a job to do and I did it."
Madge is ethically rock solid. Professor Monroe Freedman, of Hofstra University, New York, says in Lawyers' Ethics in an Adversary System (Bobbs-Merrill, 1975) that even if a client privately admits he is guilty of rape (which Milat presumably did not), his lawyer is still ethically obliged to let him go in the box and falsely deny it on oath, and to back up that lie by cross-examining the girl about her sex life to falsely suggest she consented.
The dilemma is that the legal ethics invented by lawyers are hopelessly self-contradictory. Lawyers are not supposed to mislead the court, but they claim a "sacred duty" to do whatever it takes to get the best possible result for the client.
If the client is in the wrong, the best result is to win the case; it he is a criminal, the best result is to get him off. Both results necessarily mislead the court and pervert justice.
The sacred duty sprang fully armed from the hugely fertile brain of Henry Brougham (1778-1868). He also invented The Edinburgh Review (1802), London University (1828), a single-steed, four-wheel conveyance (1829), and Cannes (1834).
In 1820, he informed the House of Lords:
"An advocate, by the sacred duty which he owes his client ... must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other [e.g. the seven backpackers later deprived of their lives by Milat]. Nay, separating even the duties of a patriot from those of an advocate and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client's protection."
That sounds good, if a little overripe, but Lord Brougham (as he became when he slid his posterior on to the Woolsack in 1830) later admitted it was code for blackmail, which is the crime of theft by extortion.
Brougham was telling George IV, who "looked more like an elephant than a man", that unless he dropped his divorce action against Queen Caroline, Brougham would reveal that he had secretly married a Catholic, Mrs Maria Fitzherbert.
Mrs Fitzherbert: upset to the Act of Settlement
Since the Act of Settlement (1701) said a king who married a Catholic must be treated "as if he were naturally dead", the disclosure would inevitably rob His Most Sacred Majesty of the crown, the palaces, and the money. That was an offer George could not refuse.
Ethics and morals are said to be synonymous, and journalism's truth-based ethics surprisingly oblige the despised reptiles to hew to a higher moral standard than the herpetoids.
Confirming Brougham's "whatever it takes" concept, UCLA law professor Murray Schwartz wrote in The Professionalism and Accountability of Lawyers (California Law Review, 1978):
"When acting as an advocate for a client, a lawyer ... is neither legally, professionally, nor morally accountable for the means used or the ends achieved ..."
Stuart Littlemore could thus be properly severe on reporters' ethics, or lack of them, in the nine years (1989-98) he wrote and presented Media Watch, and ethically proper in asserting to Channel 7 viewers in 1995:
"... you really feel you've done something when you get the guilty off. Anyone can get an innocent person off; I mean, they shouldn't be on trial. But the guilty - that's the challenge."
There is, of course, much more to be said on both sides of this debate, but for the moment is seems that ethics may after all be the home of the succulent Colchester oyster.