The Honest Lawyer PDF

Preview

Summary

THE HONEST LAWYERby THE RIGHT HON’BLE LORD DENNINGSUBJECT: Legal Profession, Professions & Ethics United Kingdom [1983] 2 CLJ 174If you should travel through the towns and villages of England, you wi1l find many quaint inn signs. One will strike you more than others. It is an old inn called ...

Description

THE HONEST LAWYER by THE RIGHT HON’BLE LORD DENNING SUBJECT: Legal Profession, Professions & Ethics United Kingdom [1983] 2 CLJ 174 If you should travel through the towns and villages of England, you wi1l find many quaint inn signs. One will strike you more than others. It is an old inn called "The Honest Lawyer".1 If you think that is a tribute to the character of English lawyers, you will be mistaken. The figure on the sign is dressed in a blue frock coat, but he carries his head in his hand. The sign is a piece of gentle fun. It means that there are no honest lawyers left. The only honest one had his head off. Benjamin Franklin made like fun too. "God works wonders now and then; Behold a lawyer and an honest man!" There are some, however, who do not merely poke fun at lawyers but roundly condemn them as a dishonest set of rogues, devoid of all principle and scruple. Dean Swift, the greatest English satirist, in his celebrated Gulliver’s Travels, said that lawyers aee a "society of men bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black and black is white, according as they are paid." In short, they distort truth for gain. There is some excuse for Dean Swift’s outburst. He had lost a case at law and he blamed it on his lawyer. He was not the first litigant to do this, but none has ever made a more bitter indictment of lawyers than he. If it were true, then every lawyer would deserve to hold his head in his hands: because if there is one thing more important than any other in a lawyer it is that he should be honest. He must be honest with his client. He must be honest with his opponent. He must be honest with the Court. Above all he must be honest with himself. It is a pity that lawyers are not more conscious of the importance of their part in the administration of justice: for, if they were, they would surely be less disposed to abuse their powers and their privileges. William Temple, our great Archbishop of Canterbury, put the position of lawyers in its true perspective when he took the Christian precept of love and related it to justice. "Love," he said, "Finds its primary expression through justice, which means in practice that each side should state its case as strongly as it can, before the most impartial tribunal available, with determination to accept the award of the tribunal. At least that puts the two parties on a level and is to that extent in accordance with the command ‘Thou shalt love thy neighbour as thyself’." Just apply those words to the Courts of law. "Each side should state its case as strongly as it can" - that is the part of the advocate. "Before the most impartial tribunal available" - that is the part of the Judge. "With determination to accept the award of the tribunal" - that is the part of the ordinary man. Lord Eldon, a great Lord Chancellor, expressed the same

thought when he said that "truth is best discovered by powerful statements on both sides of the question2.’’ THE FIRST CHARGE - THAT THEY ABUSE THEIR PRIVILEGE Accepting then that the lawyer’s function is to state his client’s case as strongly as he can, the law grants him full freedom to exercise this function without fear. He is given the cloak of an absolute privilege. He may use the most abusive language about others, he may be actuated by malice and ill-will, and yet he cannot be made subject to a libel action. This absolute privilege carries with it a special responsibility to see that it is not abused. This brings me to the first charge against lawyers; that they abuse the freedom of speech which is given to them. Instances of abuse are numerous in the old books. When Francis Bacon prosecuted the Earl of Essex - who had befriended him he used all his great powers to blacken his character gratuitously. So much so that Lord Macaulay was moved to ask "whether it be right that a man should, with a wig on his head and a band round his neck, do for a guinea what, without those appendages, he would think it wicked and infamous to do for an empire." The conduct of the Bar at that time was indeed deplorable. Just consider how the great Sir Edward Coke - when he was Attorney-General - addressed the courteous Sir Walter Raleigh who you remember threw his cloak across the muddy ground for Her Majesty Queen Elizabeth I to walk upon. When Sir Walter Raleigh was on trial for his life. Sir Edward Coke spoke thus to him: "Thou art a scurvy fellow; thy name is hateful to all the Realm of England for thy pride, I will now make it appear to the world that there never existed on the face of the earth a viler viper than thou art." History has disproved Coke’s words. The name of Sir Walter Raleigh stands high in the ranks of honourable men. Later, when Sir Robert Sawyer, the Attorney-General, prosecuted one Sir Thomas Armstrong for his part in the Rye House plot, he demanded his execution without trial - and claimed that, as an outlaw, he had no right to a trial. Judge Jeffreys (one of the servient Judges of James II) upheld the submission. When Sir Thomas Armstrong asked for a trial - "I ask," he said, "only the benefit of the law" - Judge Jeffreys said: "By the grace of God you shall have it. Mr. Sheriff, see that the execution be done on Friday next. There is the benefit of the law for you." The conduct of prosecuting Counsel, Sir Robert Sawyer, roused the House of Commons to indignation. If the liberty of speech claimed by advocates meant the liberty of haranguing men to death, it was high time that the nation should rise up to exterminate the whole face of lawyers. These examples from the past can be matched, if my information is correct, from the conduct of some prosecutions in recent times. In the trial of Hauptmann, the public prosecutor in his closing speech to the jury described the accused man as "That animal, that desperate character, burglar, murderer Hauptmann." In a Texas case the prosecutor told the jury "The will and wish of every law abiding citizen wants a verdict of death." The jury gave the desired verdict but it was reversed on appeal. Such language by prosecuting Counsel is not in keeping with the traditions

of the Bar and it is sternly condemned by the Canons of the American Bar Association which declare that "the primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done." DUTY TO BE FAIR In England today every Counsel who is instructed for the prosecution knows how essential it is to be fair. The country expects it. The Judges require it. He must not press for a conviction. If he knows of a point in favour of the prisoner, he must bring it out. He must state the facts quite dispassionately, whether they tell in favour of a severe sentence or otherwise. No Counsel would dream of doing otherwise. I remember well a case I tried where an army officer had shot his wife dead. The defence was that the crime was not murder but manslaughter because she had provoked him beyond endurance. The only provocation, however, was by words alone. She had nagged him and abused him to distraction. In law it was not sufficient. It had been held that words can never be sufficient provocation to reduce a crime from murder to manslaughter. The evidence of her intolerable behaviour was so strong, however, that Counsel for the prosecution very fairly did not press the charge of murder and the jury found him guilty of manslaughter only. Furthermore no Counsel is allowed to suggest to the Judge what the sentence should be. That is for the Judge alone. No Counsel must attempt by advocacy to influence the Court towards a more severe sentence: though hie may, and often does, draw the attention of the Judge to any mitigating circumstances which may induce a lesser sentence. If Counsel for the accused should ask the Judge not to inflict a prison sentence but to bind him over to be of good behaviour, Counsel for the prosecution must not get up and say that he opposes it. Likewise with the right of cross-examation, Counsel for the prosecution must exercise it in a moderate and restrained manner, not in any way browbeating the man who is on trial. In particular he is not allowed to bring up things in the accused’s past history which are to his discredit, unless the accused man exposes himself to it - as he sometimes may - by casting imputations on the character of the witness for the prosecution. But even so, Counselor the prosecution will not bring out the man’s previous convictions except when it is fair to do so, and he will always warn the prisoner’s Counsel beforehand so as to give him the opportunity to avoid it. The reason is that tradition demands that he should act, not as an advocate to condemn the accused, but as a minister of justice to see that he is fairly treated. So much for criminal cases. I have spoken of them first because they are, I think, the most important cases with which lawyers have to deal. Lest there should be any tendency to underrate them, I would call to witness one of the foremost English Judges of the present century, the great Lord Atkin. In a letter which he wrote to me on 7 March 1944, when I was first appointed, he said "I sometimes say to a new Judge, don’t forget that the most important and often the most difficult part of the work is the criminal work." In these circumstances I am sorry to find that in some countries the criminal lawyer - I mean of course the lawyer who takes criminal work is

looked at rather askance, as if it was work which an honest lawyer would not touch. This is a pity. All those who engage in criminal work should so conduct themselves that the reproach is not deserved. Now when you come to civil cases you will find that the same standards apply. The absolute privilege must not be abused here either. Let me give some instances which occur every day. If Counsel is instructed to make a charge of fraud, he will not do so unless he is first satisfied that there is evidence to support the charge. It is not for him to say whether the evidence should be believed or not - that is for the Judge - but he must have material before him, which, if believed, will establish fraud. The reason is that a charge of fraud is so serious a matter for the person accused of it, that fairness demands that it should not be made unless there is material to warrant it. And this does not apply to fraud only. It is a general rule that Counsel should not open a disputed fact unless he is in a position to support it by evidence. CROSS-EXAMINATION So also with cross-examination in civil cases, it must not be used merely for the purpose of blackening the witness’s character. If you are trying to show that a woman is not telling the truth, you can ask her if she was not convicted on a specific occasion for false pretences: but you cannot ask her if she did not give birth to an illegitimate child. Mr. F.E. Smith, K.C. (afterwards Lord Birkenhead) did this once and was severely rebuked by the Judge for doing it.3 THE SECOND CHARGE - THAT THEY DISTORT THE TRUTH Let me now come to the second charge against lawyers: That they distort the truth for gain. It is natural for laymen to accuse the lawyers of this: because, after all is said and done, the lawyer is the paid mouthpiece of his client, paid to win the case for his client if he can. Will he not then do everything in his power to win, even to go so far as to keep back things that may hurt his client’s interests? Was it not Lord Brougham at the trial of Queen Caroline who put it thus: An advocate by the sacred duty of his connection with his client knows in the discharge of his office but one person in the world - that client and no other. To save that client at all hazard and costs to others is the highest and most unquestioned of his duties. This contention cannot be accepted in its entirety by any honest lawyer. He has a duty to his client no doubt: but he has also a duty to the court which I take in to mean a duty to the cause of justice itself. He must never suppress or distort the truth. This essential qualification was never better expressed than it was in 1864 by Lord Chief Justice Cockburn: An advocate must be fearless in carrying out the interest of his client: but I couple that with this qualification and this restriction that the arms which he wields are to be the arms of the warrior and not of the assassin. It is his duty to strive to accomplish the interests of his clients per fas, but

not per nefas: it is his duty to the utmost of his power to seek to reconcile the interests he is bound to maintain, and the duty it is incumbent upon him to discharge with the eternal and immutable interests of truth and justice. Lord Brougham was present on that occasion and nodded his assent - when he was 86 years old! MOUTHPIECE OF THE CLIENT The layman is well aware of this conflict between a lawyer’s duty to his client and his duty to the cause of justice. So much so that he is prone to pose the moral question: How can a barrister consistently urge a jury to find a man not guilty when the barrister himself must know that the man is guilty? The answer to that question is that the barrister is not to set himself up as a Judge of his client’s case. He is only the mouthpiece of the client to put the case before the jury. No matter how improbable or incredible - or even impossible - it may seem for his client’s case to succeed, he must put it before the jury for them to judge. The limit is only reached when he actually knows, by the man’s own admission to him, that he is guilty. If the barrister gets to know this before the trial starts - and nevertheless the man is determined to plead not guilty - then the barrister should withdraw from the case and ask him to retain another advocate who is not embarrassed by this knowledge. A barrister must not put forward a case which he knows to be false or assert as a fact that which he knows to be untrue. Dr. Samuel Johnson put it succinctly when he said: A lawyer is not to tell what he knows to be a lie; he is not to produce what he knows to be a false deed; but he is not to usurp the province of the jury and the Judge and determine what shall be the effect of evidence - what shall be the result of legal argument. A difficult question arises when the barrister gets to know during the trial itself that his client is guilty. If he then publicly announces his withdrawal from the case, it may seriously prejudice his client. It may therefore be his duty to his client to stay in the case; but his conduct of the case must be regulated by the higher duty not to be a party to a lie. He must not, therefore, assert that his client is innocent, for he knows him to be guilty. He must not suggest that the witnesses for the prosecution are telling untruths, for he knows then to be telling the truth. He must not put his client into the witness-box to tell lie. All he can do is to urge that the prosecution have not proved their case; for even the worst criminal is entitled to require the case to be proved against him.

DUTY OF PROSECUTING COUNSEL The duty of Counsel to see that justice is done is, however, best shown by what is expected of prosecuting counsel. If he knows of a credible witness who can speak of facts which go to show the prisoner’s innocence, he must himself call that witness. Moreover, if he knows of a material witness who can speak of relevant matters, but whose credibility is in doubt, then although he

need not call him himself, he must tell the prisoner’s Counsel about him so that he can call him. This was illustrated in a case a few years ago. The London County Council used to have their ambulances repaired by some garage proprietors. When repairs were needed, a note was sent to the garage with the vehicle, specifying the necessary repairs. Now it so happened that a clerk of the garage altered this note so as to make it appear that many more vehicles were done than had in fact been done. In consequence the London County Council had paid much more to the garage proprietors than they ought to have done. The garage proprietors were prosecuted for fraud, and the question arose as to who should call the clerk who altered the note. The prosecution did not call him because they did not regard him as a credible witness: but they told the defending lawyers about him. They also did not call him. Neither the prosecution nor the defence called him. The garage proprietors were convicted and they appealed on the ground that the prosecution ought to have called him. Lord Goddard, the Lord Chief Justice, said that it was understandable that the prosecution should not themselves call him, but it was, he said, "the duty of the prosecution to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence." The prosecution had done that, and the defence had not chosen to call him. So the garage proprietors were rightly convicted. It is interesting to find that the American Bar Association expects the same high standard. The Canon of Professional Ethics declares that the "Suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible." YOU MUST TELL THE TRUTH Take next the sort of question which a barrister is asked every day. A man who is about to give evidence says: "If I am asked such and such a question, what shall I say?" The only proper answer is: "You must tell the truth, whether it hurts your case or not." I have been asked that question by a man charged with murder. My answer was the same: "You must tell the truth whatever the consequences." It is one of the cardinal rules of the English Bar that Counsel must not suggest to witnesses what their evidence ought to be. The reason is that it is an unfortunate failing of litigants that they are very apt to alter their account of the facts so as to help them win their case. If Counsel were to pander to this failing, they would be acting contrary to the interests of truth and justice. Again, in civil case a party may have kept a diary or notes which hurt his case. When an order for discovery is made against him, he frequently says to his Counsel: "Why should I show these to the other side? They are my own private documents." The only proper answer of Counsel is: Although the documents may hurt your case, you must not keep them back: everything must be put before the Court to enable it to do justice." Sometimes it happens that at the very last moment before the trial, the client suddenly puts a document into the hands of Counsel which ought to have been disclosed. The duty of Counsel is forthwith to show it to the other side even though it hurts his own case.

So also when points of law arise, it is the duty of Counsel to inform the Court, not only of the cases in his favour but also of those against him. Even if the opposing counsel has not found them, he must himself cite them in pursuance of his duty to see that justice is done. All these rules are well established, but cases on the borderline often arise. A little while ago Counsel called a man to give evidence who was at the time serving a prison sentence. He had been permitted to come to the Court in his ordinary civilian clothes; and the warders who had brought him were in plain clothes and remained discreetly in the background. Counsel who called him knew, of course, that he came from prison but did not disclose it to the Court. On the contrary, he asked the man: "Do you live at 96 Church Road, Stoneygate, Leicester?" to which the witness replied, "Yes." The Judge accepted his evidence; but after thetrial the other side found out all about the man. He was serving a sentence of six months’ imprisonment for being drunk in charge of a car; and a doctor had given evidence at his trial that he was in the early stages of general paralysis of the insane. The unsuccessful party applied for a new trial; but the Court of Appeal felt that it could not grant it, because Counsel had no intention to mislead the Court. He had acted honestly. Nevertheless Lord Justice Singleton was clearlyof opinion that Counsel ought to have disclosed to the Court the fact that the witness was brought from prison. He said that "proceedings in Court should be above suspicion and each party should be able to feel that he has had a fair deal.4 The line i...