Nick (Mr Loophole) Freeman (seen here) is a Manchester lawyer who got rich getting the rich off speeding and drink-driving offences.
His latest wrinkle, “alcohol halitosis” from a small amount of wine might throw the breathalyser out of whack, sadly did not save model Patrice Bourret.
The Guardian asked Mr Freeman last January how he squared his conscience with getting two clients off three times on technicalities. He replied: “Morally, I can’t, but ethically, I can.”
But morals and ethics are the same. The answer underlines the terrible burden of self-deception the adversary system and its ethics impose on practitioners.
* * *
It is two years since we last looked at the devilishly tricky subject of ethics (Justinian, September 22, 2004). This peek draws partly on an article I wrote for the Winter 2006 issue of Living Ethics, the organ of Sydney’s St James Ethics Centre.
I think what’s new is that lawyers who practise adversarial ethics – and those adversely affected by their advocacy – are victims of the petitio principii fallacy. Thus:
Law professor Murray Schwartz, of UCLA, 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 … It might be argued that the law cannot convert an immoral act into a moral one … by simple fiat. Or more fundamentally, the lawyer’s non-accountability might be illusory if it depends upon the morality of the adversary system, and if that system is immoral … the justification for the … principle of non-accountability … would disappear.”
In Lawyers and Justice: An Ethical Study (Princeton UP 1988), law professor David Luban (pic), of Georgetown, offered a possible justification for “zealous” – i.e. immoral, if necessary – advocacy.
“Unless zealous representation could be justified by relating it to some larger social good, the lawyer’s role would be morally impossible. That larger social good is supposed to be the cluster of values – procedural justice and the defense of rights – that are associated with the adversary system.”
Aristotle (384-322 BC) invented the syllogism: major premise, minor premise, conclusion. If the major premise is wrong, the conclusion is invalid. Common lawyers might state the ethics syllogism like this:
Major Premise. The adversary system is the best system of justice. (Or, less ambitiously, the adversary system delivers procedural justice.)
Minor premise. The system demands “zealous” advocacy.
Conclusion. Immoral advocacy is ethically OK.
Justice Potter Stewart (1915-85) said in Tehan v Shott (US Supreme Court, January 19, 1966): “the basic purpose of a trial is the determination of truth.”
In any test of the major premise, truth is thus a basic consideration. But there are difficulties. Which truth – real or procedural? In the adversary system, procedural truth is an oxymoron: more than half the guilty get off.
And Francis Bacon (seen here), later a famously corrupt Chancery judge, observed in 1597: “What is truth? said jesting Pilate, and would not stay for an answer.”
Some lawyers, like some literary academics, insist we cannot know what truth is, but Russell Fox QC says the public know that truth is reality.
Justice Fox, now 85, resigned from the Federal. Court in 1989 and spent 11 years working on a book, Justice in the 21st Century (Cavendish 2000). His definition of justice is thus the product of much thought and research.
He said – I’m summarising – justice is fairness, fairness is truth, truth is reality, and the search for truth gives a system its essential moral dimension, otherwise the winner is merely the better Mr Loophole.
The adversary system does not search for real truth. It is thus not a system of justice at all, let alone the best. Nor is it a moral system, and procedural justice is another oxymoron.
Since the major premise of our ethics syllogism is false, the conclusion is false: immoral advocacy is NOT ethically OK.
Adversarial ethics are thus based on what Aristotle (seen here) called the petitio principii fallacy, also known as begging the question and reasoning in a circle. The title of the Living Ethics piece seems fair and accurate: Immoral ethics in an immoral system.
We know from Professor Luban that English-speaking lawyers have been using adversarial ethics to excuse the crimes they commit, including conspiracy to murder, with and for clients, at least since 1743.
In two-and-a-half centuries, how many million lawyer crimes could that be? A change in ethics based on judge Fox’s definition of justice is clearly urgent. Otherwise, an observation last year by Adrian Evans, associate law professor at Monash, will remain the norm. He said:
“A lawyer without ethics is like a psychopath with a machine gun.”