Ethics lessons from history
Professional ethics has moved on quite a lot over the last 100 years, but the first four duties of an advocate have been around for a very long time. One case that had a particularly strong effect on the thorny question of what a barrister should do if their client tells them they are guilty but asks them to put forward a positive case was the case of Courvoisier. Nowadays, a barrister would declare that he was "professionally embarrassed" and would withdraw, but in the 1840's no such concept existed, although this case led to the development of that concept, following the Bar Council's investigation into the conduct of this case. William Ballantine’s “Some Experiences of a barristers life” gave the following account of the trial of Courvoisier:
" SHORTLY before Mr. Phillipps left the Bar his name became associated with the Courvoisier trial, which for many reasons interested me, and some of the circumstances of which may, I think, equally interest my readers.
In 1840, Lord William Russell was found murdered at his house, No. 14 Park Lane. London was in a state of excitement. The age of the nobleman, his great historic name and position in society, all combined to aggravate the horror naturally excited by such an event. The circumstances clearly pointed to domestic treachery; and Courvoisier, his confidential valet, was apprehended, and, on June 18 following, was put upon his trial, charged with the murder. The occasion might, from the appearance the Old Bailey presented, have been thought one of the most festive character. The court was crowded with ladies dressed up to the eyes, and furnished with lorgnettes, fans; and bouquets; the sheriffs and under-sheriffs, excited and perspiring, were rushing here and there, offering them what they deemed to be delicate attentions. A royal duke honoured the exhibition with his presence, and, upon the occasion of a witness giving a particular answer to a question from counsel, showed his approval by saying "Hear, hear."
Sir Nicholas Tindal, the presiding judge, was so hemmed in by the extensive draperies of the surrounding ladies that he had scarcely room to move, and looked disgusted at the indecency of the spectacle; and I may here say that the scenes still occasionally presented upon celebrated trials at the Old Bailey do little credit to the officials who encourage them. Mr. Baron Parke, to whom I shall hereafter allude, was associated with the Chief Justice upon the trial. Mr. Adolphus led for the prosecution, and in opening it made allusions, scarcely in good taste, to the fact of the accused being a foreigner, giving Mr Phillipps, who defended him, an opportunity for a display of eloquent protest. The trial lasted for three days; and the proceedings upon the first two were scarcely conclusive enough to have secured the conviction. Upon the third day, when I came into the robing-room in the morning, I found Mr Phillipps there, evidently very much agitated. I learned afterwards that some new evidence of an important character had come to the knowledge of the prosecution and been communicated to him.
A considerable quantity of plate had disappeared from Lord William's house, and it was discovered that immediately after the murder it had been deposited by Courvoisier, with some people in the neighbourhood of Leicester Square. This circumstance had been disclosed on the previous evening. Courvoisier, to whom it was made known, requested an interview with his counsel, which was very properly accorded, and upon this occasion he admitted the correctness of the statement as to the discovery.
He did not, as was generally supposed and asserted at the time, avow that he had committed the murder, although doubtless what he did own was very stringent evidence of the fact; and the communication was certainly made, not for the purpose of admitting his guilt, but merely to prepare his counsel to deal with the evidence.
The course pursued by Mr Phillipps showed the inherent weakness of his character. It was peculiarly a situation for self-reliance and sound judgement. He was bound to continue the defence; although no doubt his mode of conducting it could not but be materially affected by the new circumstances. Mr Phillipps, however, adopted a line that was wholly inexcusable. He sought an interview with Mr. Baron Parke-,who, it must be remembered, although not the presiding judge, was assisting at the trial-communicated to him the confession of his client, and asked his advice. This conduct placed the judge in a most painful position, and was grievously unjust to the accused. It is probable that if Baron Parke had not been taken by surprise, he would have declined to express any opinion. I happen, however, to know that, having learned that the prisoner did not intend to relieve his counsel from the defence, the learned baron said that of course he must go on with it. And, if he gave any advice at all, this was the only advice he could give, and ought to have been patent to the inquirer; and certainly no censure can be too severe upon the conduct of Phillipps, who, when assailed for his management of the case, violated the confidence that his interview with Baron Parke demanded, and endeavoured to excuse himself by saying he had acted under that learned judge's advice.
I heard Philipps's speech: it was extremely eloquent. He made the most of some indiscretions in his opponent's opening, but he was overweighted by the facts ; and certainly, since I have been at the bar, juries have not shown themselves apt to be carried away by flowers of rhetoric. Many of those used by him in this speech were not only in bad taste, whatever might have been the circumstances, but upon this occasion they were utterly unjustifiable. I have refreshed my memory of some of them from a most useful and admirably arranged work of a Mr. Irving, called "Annals of our Time," and from his work I extract the following specimens: "Supposing him to be guilty of the murder, which is known to Almighty God alone"; '' I hope for the sake of his eternal soul that he is innocent.." Such expressions from the mouth of an advocate possessing the knowledge that Phillipps did at the time he used them were not only offensive to good taste, but scarcely escaped conveying a positive falsehood.
It is of the essence of advocacy that counsel should under no circumstances convey his own belief, or use expressions calculated to do so, and the only excuse that I can find for Phillipps is from the knowledge that he always composed his important speeches before he delivered them, and that up to the morning of the last day he believed that Courvoisier was innocent. But whilst this may redeem him from the imputation of conveying a falsehood, it does not excuse the language in which he indulged.
There is not, I think, any ground for saying that he endeavoured to fix guilt by unworthy means upon a servant girl. It may be said that in every case where it is acknowledged that an offence has been committed the defence of the client must be founded upon the assumption that some one else is guilty; but, excepting those expressions to which I have alluded, and which do not point to any one in particular, I cannot recall anything that went beyond the bounds of legitimate advocacy; and I am sure that whatever his faults of taste and judgement, he would not have been capable of so grave a crime.
He felt very bitterly the comments made upon him by the press. I think they went beyond what his conduct deserved, but, as I have been obliged to admit, he certainly laid himself open to very grave censure. I suppose few counsel have defended more accused persons than myself, and must allow that innocence was not the characteristic feature of the majority of my clients; but I cannot remember any case in which I received an unqualified admission of guilt. The utmost that approached to it was a mild suggestion that if the evidence was too strong for me to obtain an acquittal, it was hoped that I would save my client from transportation."
Lord MacMillan, in his book Law and Other Things, wrote a chapter on the Ethics of Advocacy, which includes a very useful description of the Bar Council investigation of this case, and subsequent guidance which you can read here and also his description of the duties of an advocate which he identified as follows:
"In the discharge of his office the advocate has a duty to his client, a duty to his opponent, a duty to the court, a duty to himself, and a duty to the State."
He did add that balancing all of those requirements could be quite difficult!
The Cab Rank rule
Every barrister is taught the cab rank rule, which has been one of the core obligations of a barrister since it was established as rule of Court on the 27th May 1532, by the Court of Session. The rule ran:
"No advocate without very good cause shall refuse to act for any person tendering a reasonable fee under pain of deprivation of his office of advocate".
So the cab rank rule is very old indeed, and this rule of court has been one of the most enduring duties of an advocate.
According to MacMillan "as a distinguished judge put it, an advocate is in the position of a cab-man on the rank bound to answer the first hail" A position (with some caveats) that was true back in 1532 and is still true today.
Lord Denning summarised the duty of the advocate to the court and how it balances with the cab rank rule as follows:
"An advocate is a minister for Justice equally with the judge...No one but the advocate can address the judge unless it be a litigant in person. This carries with it a corresponding responsibility. A barrister cannot pick and choose clients. A barrister is bound to accept a brief for any man who comes before the courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend him to the end, provided a proper fee is paid...An advocate must accept the brief and do all he honourably can on behalf of his client. I say "all he honourably can" because his duty is not only to his client. An advocate has a duty to the court which is paramount. It is a mistake to suppose that an advocate is the mouthpiece of his client to say what he wants; or his tool to do as he directs. An advocate is none of these things. An advocate owes an allegiance to a higher cause. It is the cause of justice and truth. An advocate must not knowingly conceal the truth, nor unjustly make a charge of fraud, without evidence to support it. An advocate must produce all the relevant authorities, even those that are against him. An advocate must see that his client discloses, if ordered, the relevant documents, even those that are fatal to the case. An advocate must disregard the most specific client instructions, if they conflict with the advocates duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If an advocate breaks it, the advocate is offending against the rules of the profession and is subject to its discipline. But an advocate cannot be sued in a court of law."
This can be summed up as the old adage that "An advocate must prosecute, not persucute", which means that an advocate must act fairly.
Giving your opinion
Historically, this has been a no, and even now it is something that is not done.
Sargeant Shee, when defending the poisoner Palmer, got carried away and said to the jury:
"I begin Palmers defence and say in all sincerity that I have an entire conviction of his innocence".
The judge, rather squashingly, directed the jury as follows:
"I most strongly recommend to you that you should attend to everything that Seargeant Shee said to you with the exception of his own private opinion. It is my duty to tell you that opinion ought not to be any ingredient of your verdict.
It is the duty of the advocate to press his argument on the jury, not his opinion."
Even Erskine, good as he was, lost his head slightly in the trial of Tom Paine, which is the same trial where he gave his "Independence of the Bar" speech. At one point in the trial he said " I will now lay aside the role of the advocate and address you as a man" which earned him this sharp rebuke from the judge:
"You will do nothing of the sort. The only right and licence you have to appear in this court is as an advocate."
So basically, giving your opinion is a no.
Ethics lessons from history - acting with honesty and integrity.
In the 1856 Bar training book "The Advocate - his training, practice, rights and duties" it was actively spelled out what honesty and dishonesty entailed. I have reproduced that guidance, simply because it still looks relevant today.
In the Advocate, honesty was defined as:
It means fair dealing in every transaction, public or private ; truthfulness of speech; frankness of deportment ; readiness to HEAR ALL SIDES of every question, and to judge all men-foes as well as friends-those who differ from us, as well as those who agree with us-by the same standard, meting out to them the same measure of charity in the construction of their motives, their words and acts.
Dishonest conduct was said to include the following:
- If you profess what you do not believe,
- assent without conviction,
- assume what you do not feel,
- help to deprive a neighbour of his good name by circulating scandal,
- are overreaching in your dealings,
- seek your ends by any means,
- sacrifice your independence for patronage,
- prostrate yourself before the powerful,
- take mean advantages of those in your power,
- exact from your dependents more than you would claim from your equals,
- stand strictly upon legal rights without regard to the equity of your demands;
in brief, if in any manner you do to your neighbour otherwise than as you would that he should do unto you, you are as guilty of dishonesty as if you had picked his pocket.
This is the unfailing test by which you can always try the honesty and propriety of any proceeding. Question yourself thus:-" Were we to change places, how should I consider that he ought to act towards me?" As the answer is, so act. Then seldom, indeed, will you err.
The Advocate also advised Bar students to:
- Act in accordance with the tenets of your faith/morality
- Treat others as you would like to be treated
- Have self respect
- Be self reliant
- Be yourself
- Be genuine in your words, actions and deeds.
- Be in command of your temper
- Have the moral courage to do and say whatever you deem to be right
"Sometimes an advocate is required to defy power, to tell truths that bring upon him the enmity of the influential and the alienation of friendship. Sometimes he stands alone to defend an unpopular cause, with the consciouness that the feelings of his audience are arrayed against him, and that he has to fight their prejudices before he can obtain even a fair hearing for his arguments. Only a high moral courage can sustain an advocate through the difficulties of such a position."
Failing to act with independence and integrity
There are some cases that break your heart, and which also demonstrate how a barrister should never act. The trial of Robert Emmett was one such trial.
Robert Emmet (4 March 1778 – 20 September 1803) was an Irish Republican, and Irish nationalist patriot, orator and rebel leader. After leading an abortive rebellion against British rule in 1803 he was captured, tried and executed for high treason against the British king George III of Great Britain and Ireland. Under ordinary circumstances John Philpot Curran - one of the great barristers of history- would have taken the case on. But his daughter, Sarah Curran, was secretly engaged to Robert Emmett. Curran was furious when he discovered the match, and disowned his daughter. He also refused to represent Emmett at the trial. In this trial, Erskine was acting for the Crown, and the UK government was keen to make an example of Emmett. The Crown's case was weak, but the Crown repaired the weaknesses in its case by secretly buying the assistance of Emmet's defence barrister, Leonard McNally, for £200 and a pension. McNally called no witnesses for the defence, so the position of the Crown was not contested at all. But McNally's assistant Peter Burrowes could not be bought and he pleaded the case as best he could. On 19 September, Emmet was found guilty of high treason, following Erskines closing speech.41.12 KB
Never sell out your client for money or political favour. Ever.
Following his guilty verdict, which he clearly knew was inevitable, Robert Emmett gave a speech which you can find here. This powerful speech, which has reverberated throughout history, included the following lines regarding a potential French invasion:
"I should advise you to meet them on the beach with a sword in one hand and a torch in the other ; I would meet them with all the destructive fury of war, and I would animate my countrymen to immolate them in their boats,· before they had contaminated the soil of my country. If they succeeded in landing, and if forced to retire before superior discipline, I would dispute every inch of ground, burn every blade of grass, and the last entrenchment of liberty should be my grave. What I could not do myself, if I should fall, I should leave as a last charge to my countrymen to accomplish, because I should feel conscious that life any more than death is unprofitable when a foreign nation holds my country in subjection."
If that speech seems familiar, it is because Winston Churchill used it as a base for his "We shall fight on the beaches" speech.
Emmett was hung, drawn and quartered and then beheaded following his death. Sarah Curran married Captain Henry Sturgeon in 1805, two years after Emmetts death. They lived in Haiti, where he was stationed. Sarah Curran died of TB in 1808, five years after Emmetts death, which she probably caught from visiting Robert Emmett in prison.
Other cases dealing with maintaining your independence as an advocate
Maintaining your independence also means treating all witnesses equally. Ballantine, in the divorce case of Morduant v Morduant rather failed to do this.
Ballantine served as Counsel for Sir Charles Mordaunt in the then notorious divorce case against his wife. Lady Mordaunt, who, much younger than her husband, informed him that he was not the father of her child. She admitted to him that she had committed adultery with a number of men, including the Prince of Wales, 'often, and in open day.'
It became clear that because of these revelations that the Prince of Wales would have to be summoned to court to give evidence in the case. Although he could be subpoenaed, he could not be forced to give evidence; Queen Victoria, his mother, advised him not to attend the court. However, the Prince agreed to attend the court, and to be questioned. After delicate questioning by Lady Mordaunt's counsel, the Prince denied that 'any improper familiarity or criminal act' had taken place between himself and Lady Mordaunt. It was generally believed that by stating this the Prince had perjured himself. You can read the examination of the Prince of Wales here6.76 MB.
Ballantine, as counsel for Lord Mordaunt, the plaintiff, was entitled to cross-examine the Prince of Wales, and was renowned for his abilities as a cross-examiner. Instead, in an attempt to save the Prince from any embarrassment, he declared that he had no questions for His Royal Highness, thus saving the Prince's honour. However, Ballantine lost the case because he had failed to convince the jury that Lady Mordaunt was guilty. In your view, did he fail to maintain his independence as an advocate here? And in doing so, did he act in his client's best interests?