620 1000Ethics,Zealous Advocacy,and the Criminal Defense AttorneyApart from being flattered, I am grateful to have been invited to address this distinguished gathering because it has caused me to focus on issues of ethics and morality that are daily companions of a practicing lawyer.We are instructed by our codes of professional responsibility and told by professors, legal scholars, and mentors that we lawyers, as guardians of the law, play a vital role in the preservation of society, that we have an obligation to adhere to the highest standards of ethical and moral conduct, and that in our words and deeds we must promote respect for the law and our profession. We must deal candidly with ...view middle of the document...
Lord Brougham let it be known that in the queen's defense he would prove that the king himself was guilty of adultery and had secretly married a Catholic, thus putting at risk his title to the throne. His tactics outraged many who felt he went beyond the bounds of ethical advocacy. He justified his conduct as follows:"[A]n 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 personsÉ. 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 consequences, though it should be his unhappy fate to involve his country in confusion."A very strong case can be made that while Lord Brougham's rhetoric was excessive, his actions on behalf of his client were appropriate. I am told that some years after the case was concluded, Lord Brougham attended a dinner at which the most respected Chief Justice Cockburn was speaker. Looking disapprovingly at Brougham, Cockburn stated that while it was appropriate to be a zealous advocate, a lawyer should not be an "assassin."How do we, in our adversary system, reconcile our roles as officer of the court, role model, and public citizen with that of the zealous advocate? I think we can all agree that the defense attorney's obligation is to repre 1000 sent a client even if it means that the truth is undermined in a particular case. Defense attorneys are entitled to put the prosecution case to the test, and a defendant has a constitutional right to have his lawyer do so.Sometimes, in our legal system, the truth must be sacrificed for more important principles.Our society has decided that a defendant must be free to be fully candid with his or her lawyer without suffering any consequences and that guilt is to be decided in the courtroom and not in the lawyer's office. Sometimes the public unfairly criticizes us for seeking the acquittal of one we believe to be guilty or vigorously representing one whose innocence is not clear. This is particularly true when the crime is heinous.Unfortunately, the public, by and large, believes that as officers of the court our only goal should be the truth. The Bill of Rights and in particular the Fourth Amendment prohibition against unreasonable searches and seizures often are obstacles to reaching the truth. Sometimes, in our legal system, the truth must be sacrificed for more important principles.Also, let us not forget that we allow, and the courts condone, the police to engage in deception and ruse by lying to suspects about the evidence against them in the hope that they will confess their guilt. Is it appropriate for one who is an officer of the court to present a false defense or to present evidence which supports such falsity? Is it appropriate for us to use every stratagem or device in...
