An email wends its way from the Antipodes, courtesy of Evan Whitton, following my Born Liars column of a few weeks back. In the column I had hypothesised, taking the musings of a US lawyer to their logical conclusion, whether one of the functions of a lawyer is to lie, not merely on behalf of clients, but in toto, given the corrosive disingenuousness of so much in legal life. I had been given cause to reflect on this thanks to a chance encounter with Charles P. Curtis’s 1951 essay entitled "The Ethics of Advocacy," but it turns out that Whitton, an eminent Australian journalist, has plenty of ammunition with which to annihilate those who might spring to the law’s defence.
"By way of analogy with the reptiles (reps) of the press," says Whitton, "I sometimes refer to lawyers as the herpetoids (herps) of the law." Whitton has spent much time amassing evidence for his trenchant views, thanks to a career that has seen him work as Chief Reporter and European Correspondent for the Sydney Morning Herald as well as editor of The National Times. He has also won the Walkley Award for National Journalism five times and been Journalist of the Year in 1983. He now edits the online legal journal Justinian, but has written a number of books that should be required reading for all law students.
Perhaps the most striking is Serial Liars: How Lawyers Get The Money. I say that this should be read by students, but, in fact, it should be read by everyone involved in the law. It is too easy to bemoan the loss of idealism once one enters practice, and easier still to abandon any hope of ever reacquiring one’s principles, but to give up is to write the script for the cynic’s charter. Although there are those in the legal profession who are not "herps," Serial Liars should be read by lawyers of every variety because it will make them ask: have I sold out? And if I have, do I care? And beyond that: is the present system about justice, or is it about money?
Whitton’s preface begins with a quote from US ethics professor Arthur Applbaum. "Lawyers might accurately be described as serial liars because they repeatedly try to induce others to believe in the truth of propositions, or in the validity of arguments, that they believe to be false," says Applbaum. Whitton then goes on to summarise his core argument: "The European [investigative judicial] process is controlled by trained judges and is largely about truth; the Anglo-American process is controlled by trained lawyers and is largely about money."
I will return to debate over the merits of the adversarial, as opposed to investigative, judicial system another time. For now, let us assume that the adversarial system is ripe for analysis per se, and, with lawyerly fidelity, cleave ourselves to its munificent breast rather than wandering into the byways of those pesky European jurisdictions whose raison d’etre is a search for objective truth. Could it be true, as law professor Charles Wolfram wrote in "Modern Legal Ethics" in 1986, that "[The lawyer’s role is] institutionally schizophrenic… a lawyer’s objective within the system is to achieve a result favourable to the lawyer’s client, possibly despite justice, the law and the facts"?
Any honest lawyer knows that this is, indeed, the truth. The gradations of complicity involved range from the de minimis to the profound, but sometimes there is nothing better than a sledgehammer to crack a nut, so let us consider the case of Sydney lawyer John Marsden, referred to in Serial Liars.
Marsden was tasked with defending Ivan Milat on rape charges in 1974. The case raised an ethical point beloved at undergraduate level: is it correct to cross-examine for the purpose of discrediting the reliability or credibility of an adverse witness whom you know to be telling the truth? The idealists in the midst of their law degrees will ponder this and, if they do not instinctually answer "No," will usually find their way there by way of reliance on an embryonic, if naive, sense of "justice." But, of course, in legal practice the answer is "Yes." The net effect of professional ethics in action is, in fact, that a lawyer is entitled to let his client go into the witness box and face the prosecution, to see if it makes its case. But doing so – putting the prosecution to proof – can mean that in so serious a matter as an alleged rape, a lawyer might end up substantiating an accused’s lie by cross-examining the victim about her sex life to allege that she consented.
As Marsden himself said in his book, I Am What I Am: "Then I put something [to Milat’s alleged victim] that has haunted me to this day… I suggested that her sexuality might 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 [the 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." As Whitton notes, Milat was later found guilty of murdering seven backpackers in circumstances similar to those of the alleged rape in 1974.
Lawyers, institutionally schizophrenic? Liars? Herpetoids? Or are Whitton and yours truly barking up the wrong tree? Tell me it ain’t so…