Lawyers' Christian Fellowship

What Ethics?

This paper raises questions about the ethical implications membership of a profession which purports to serve the public interest by the pursuit of justice but imposes obligations upon its members to adopt a partisan approach to the interests of their clients without regard for the merits of their causes.

Public cynicism about lawyers

It was Shakespeare who offered the immortal suggestion: 'the first thing we do, lets kill all the lawyers!" ⁽¹⁾ That splendidly evocative exclamation expressed a sentiment that was to strike a responsive chord throughout the ages. It reflected a hostility born of a deep and abiding suspicion which seems to have pervaded succeeding generations and spanned cultural borders. ⁽²⁾ David Melinkoff refers to it as the 'hate-the-lawyer cult. ⁽³⁾ Of course, it is true that the legal profession as a whole enjoys widespread respect within the community but respect is by no means the universal response. ⁽⁴⁾ Lawyers are derided as 'shysters or similar epithets ⁽⁵⁾, people prepared to sell a smorgasbord of dirty tricks to whoever can pay the highest fee. Those in other professions may be considered boring lazy or incompetent but lawyers are more likely to be flagellated for their perceived greed and cynicism.. ⁽⁶⁾ The feeling is perhaps encapsulated in the principle espoused by the lawyer in the Wizard of Id that 'every man is innocent until proven broke. ⁽⁷⁾

A crisis of values in the legal profession?

There have also been many expressions of concern from lawyers themselves. For example, Sol Linowitz has decried a 'loss of humanity in the practice of law ⁽⁸⁾ whilst Anthony Kronman has warned that the American legal profession 'stands in danger of losing its soul. ⁽⁹⁾ Kronman identifies a failure of morale and points to growing doubts which lawyers are experiencing about the capacity of their professional lives to offer any real sense of fulfillment. There is a 'spiritual crisis that strikes at professional pride and reflects the demise of an 'older set of values. ⁽¹⁰⁾  In Kronman's view, the central problem is loss of what he describes as the ideal of the 'lawyer statesman, a conception of the lawyer as a person of practical wisdom and judgement whose concern extends beyond the interests of clients to the public good. ⁽¹¹⁾ Ian Johnstone does not believe that Australian lawyers generally experience the same level of disenchantment ⁽¹²⁾ But suggests that they do find themselves embattled by a recent emphasis on competitiveness which excludes the scope for frank advice and public responsibility. ⁽¹³⁾ These expressions of disquiet reflect a common concern about values.

A question of values

Sol Linowitz argues that some agreement of a 'bedrock of values is needed because the public relies upon the courts and the legal profession to protect cherished rights. ⁽¹⁴⁾Unfortunately, even quite controversial ethical decisions seem to have evoked little discussion among lawyers about the underlying values. ⁽¹⁵⁾ Propositions concerning the role of lawyers are frequently defended not by argument or analysis but simply by invoking the authority of some eminent figure of an earlier age. ⁽¹⁶⁾ Yet there may have been substantial changes in social values during the intervening period and statements attributed to such people on issues of law and justice might now be seen as archaic or even morally indefensible. ⁽¹⁷⁾

Why then should their statements about the duties of advocacy be treated as binding pronouncements? There have also been changes to the social fabric in which these standards have been formulated with such incidents of modern life as the electronic media, the virtual explosion of computer technology and developments in forensic science imposing new demands on the system of justice.

Of course, in a pluralistic society there will always be dispute about religion and philosophical principles but as David Luban points out there is frequently a surprising level of agreement as to the end product of moral judgements even if they are reached by different ethical routes. ⁽¹⁸⁾ What are the underlying values which now guide the legal profession?

Christian influences

In earlier years such questions were readily answered. Legal ethics like legal principles were based largely on biblical precepts. St Paul had invested secular authorities with the role of being Gods agents of punishment. ⁽¹⁹⁾ The oath was important because it exposed perjurers to divine punishment whilst proof by ordeal involved an appeal by the participating priests for God to reveal the truth.. ⁽²⁰⁾ Similarly, the Norman innovation of trial by battle was based upon the assumption that God would determine the judgment. ⁽²¹⁾ The peine forte et dure was also seen in terms of its religious implications. For example, a report of the case against the hapless Robert le Ewer in 1322 notes that even if the accused was pressed to death this was 'healthy for the soul provided he bore it with resignation. ⁽²²⁾The newly emerging system of justice based upon trial by jury naturally absorbed this religious ethos.

The Christian Church fathers, notably St Augustine of Hippo and St Thomas Aquinas, had a significant impact on naturalist legal theory stressing that temporal law, or 'lex humana as Aquinas described it, is subordinate to the eternal law of God.. ⁽²³⁾ The earliest English lawyers were also churchmen and the early writings on the common law all had a strong religious flavour. ⁽²⁴⁾ Blackstone, in his famed commentaries, conceded the supremacy of 'divine law. ⁽²⁵⁾ Lawyers were enjoined to find their professional duty within the context of Christian morality. Even the renowned Erskine, in the course of prosecuting the publishers of Paines 'Age of Reason, was heard to say that: 'The people of England are a religious people and, with the blessing of God, so far as it is in my power, I will lend my aid to keep them so. ⁽²⁶⁾ Lord Eldon went further, actually proclaiming that 'Christianity is part of the law of England. ⁽²⁷⁾

The concept of role morality became increasingly difficult to accommodate within existing dogma and advocates were exhorted to follow proper moral standards. St Thomas Aquinas had written that an advocate who defended an unjust cause unknowingly 'is excused according to the measure in which ignorance is excusable but that he who knowingly defended an unjust cause 'sins grievously. ⁽²⁸⁾ St Germain cautioned that an advocate 'may give no counsel (saving his oath) neither against the law of God nor the law of reason ⁽²⁹⁾whilst John Cook added the necessary sanction: 'to speak well in a bad cause is but to goe to Hell...' ⁽³⁰⁾ Others, like Thomas Arnold plainly concluded that advocacy was simply an immoral calling. In 1840 he wrote to a former pupil who had obviously flirted with a legal career:

'Your letter gave me such a deep and lively pleasure that I could scarcely restrain my joy within decent bounds, for to see any man whom I thoroughly value delivered from the snare of the Law as a profession is, with me, a matter of the most earnest rejoicing.. . . so 1 should rejoice in your escape whilst it is yet time, and following the righthand path to any pure and Christian calling which, to my mind, that of an advocate, according to the common practice of the Bar, cannot be, and I think that scarcely any practice could make it such. . . . for advocacy does seem to me inconsistent with the strong perception of truth and to be absolutely intolerable, unless the mind sits loose, as it were, from any conclusions, and merely loves the exercise of making anything wear the semblance of truth which it chooses for the time being to patronise. ⁽³¹⁾

Despite such abjurations barristers remained acutely conscious of the Christian mores of the times and their speeches reflected an acceptance of the fact that all involved in the legal process were ultimately accountable to God. Of course, individual lawyers may still be guided by religious conviction but in a modern pluralistic society biblical authority no longer determines the formulation of ethical standards by the profession as a whole. ⁽³²⁾ What then is to fill the void?

Moral philosophy

Moral philosophy has made a number of attempts. Even before the dawn of Christendom, Plato had offered the ideal of the 'just man ⁽³³⁾ though, as James Fishkin has pointed out, conformity to such an ideal standard would have required moral 'prescriptions for every aspect of life. ⁽³⁴⁾ At the turn of the century G. E. Moore defined moral duty as 'that action which will cause more good to exist in the universe than any other possible alternative. ⁽³⁵⁾In a similar vein, Peter Singer has contended that moral duty gives rise to an obligation to prevent that which is bad unless that would require the sacrifice of something of comparable moral significance. ⁽³⁶⁾ Others, whilst rejecting the strictness of such views, have postulated general obligations determinable by placing oneself in the shoes of others likely to be affected by ones acts or omissions. The existence of such obligations has been supported by reference to the concept of 'Natural Law ⁽³⁷⁾, John Rawls argument based upon 'original position ⁽³⁸⁾, the viewpoint of the 'sympathetic spectator ⁽³⁹⁾ or the 'Golden Rule. ⁽⁴⁰⁾ Thomas Nagel has offered a depersonalised version of the Golden Rule: '.. . the requirement is that you love your neighbour as yourself, but only as much as you love yourself when you look at yourself from outside with fair detachment. ⁽⁴¹⁾

It is generally more difficult to apply deontological models to public policy than to individuals. The underlying values are unlikely to be shared by all members of the community, subjective emphases like good character ⁽⁴²⁾ or sound motivation ⁽⁴³⁾ are not readily adaptible for entire communities and whilst public policy may affirm values it will normally involve objective goals. Furthermore, any system of justice involves coercion and in a pluralistic society the imposition of standards of behaviour on others may be more easily justified by reference to the good thereby derived. Indeed, Gabriele Bammer argues that a deontological approach actually 'sets a presumption against against public policy initiatives designed to alleviate social problems. ⁽⁴⁴⁾ On the other hand utilitarianism, an ethic based on the ideal of promoting the good, was initially proposed as a guide for public policy ⁽⁴⁵⁾ and is still most strenuously defended in that context. ⁽⁴⁶⁾ Hence, despite John Rawls attempt to reintroduce a Kantian conception of justice, it seems reasonable to suggest that legal ethics should be shaped by a utilitarian objective of serving the greater good. ⁽⁴⁷⁾ Sir Gerard Brennan has contended that the goal of the legal profession should be the public service in 'obtaining of justice under the law. ⁽⁴⁸⁾

A problem of moral ambivalence

A study by John Hopkins University researchers in 1991 found that lawyers were the most depressed group among the 12,000 people surveyed. ⁽⁴⁹⁾ Linowitz notes that the head researcher thought it might be the result of operating in a 'moral ambiguity. They might be 'representing positions they may not like or believe in he explains. ⁽⁵⁰⁾ Despite grandiose assertions about the pursuit of justice under the law, law is the only profession in which its practitioners regularly regard it as their ethical duty to harm the interests of others. Marvin Frankel notes in contrast to other professional groups, lawyers are seen as 'professionals whose work is fighting. ⁽⁵¹⁾ Kronman refers to the comparison between legal advocates and mediaeval champions and observes that arguments can also be weapons of violence. ⁽⁵²⁾Furthermore, lawyers do not make any pretence of fighting only for truth or justice. In one case counsel may be attempting to prevent a severely injured person from recovering due compensation, in another attempting to raise technical defences to enable a trustee to prolong his misuse of the beneficiaries money and in yet another attempting to ensure that a child molester goes free. There may be sound reasons why lawyers should take such cases but the fact remains that they spend as much time resisting as championing attempts to obtain results which, viewed objectively, are just. In doing so they may make allegations that they may not believe and support them by an array of forensic techniques. In this context it is easy to appreciate the sentiments encapsulated in the cynical question, 'But isn't legal ethics an oxymoron? ⁽⁵³⁾

Yet such behaviour does not occur because lawyers have no ethical standards. On the contrary, their standards of behaviour are mandated by the ethical principles to which they subscribe. Those principles are said to be an inevitable corollary of the standard conception of their duty which emphasises the representative nature of the role. Advocates present cases on behalf of others. The rights are those of the clients. Hence, it is for the clients to make the moral judgements concerning them. The duty of the advocates is to pursue them diligently subject only to the certain procedural constraints recognised by the professional codes. Ultimately, it is for the courts to determine where truth and justice lie. To permit advocates to give way to their own moral qualms and concede advantages lawfully available to clients would be to impugn their moral autonomy and usurp their rights. Worse, it would breach an obligation of a fiduciary nature, like a bank officer responding to the moral demands of the poor with money deposited by trusting customers. How can such moral ambivalence be reconciled?

The profession has drawn some solace from duties to the court recognised by the professional codes and they do constitute an important affirmation of the moral autonomy of advocates and demand certain standards of integrity and responsibility. However, whilst they impose significant constraints on the tactics that may be employed, they do not purport to negate, or temper the duty to pursue the interests of clients. They may be considered analagous to a code of chivalry prescribing the rules of battle but leaving the basic duty of loyalty unquestioned.

Role morality

The apparent incongruity of accepting ethical obligations which require otherwise immoral behaviour has been explained in terms of role morality. Parker explains the rationale in the following terms:

'One thing seems tolerably clear: there are always going to be some circumstances when lawyers are required to behave in ways which seem to run counter to common morality. A theory which expresses this is called the theory of role morality. Lawyers have a role to play in a larger drama. If the drama is to be produced as intended then the lawyers cannot step outside the part allotted to them when they feel like it. If, therefore, the adversary system is better than a system where all individuals simply decide subjectively what is best in each separate instance, it is necessary that there be people who put the adversary system into operation and who set aside their private doubts. ⁽⁵⁴⁾

Many people would baulk at this proposition. In the first place the analogy of a drama is distasteful. ⁽⁵⁵⁾ The very concern so often expressed about advocates is that they play parts. ⁽⁵⁶⁾ What they do and say is a performance calculated to deceive an unwary audience so that the case may be won whether that is a just result or not. The admonition not to depart from the script lest the play not unfold as intended may suggest that lawyers prefer some ritualistic game of charades to the less interesting, and perhaps less remunerative, task of finding the truth and doing justice to the litigants. It evokes memories of John Stuart Mills lamentation that 'even instructed Englishmen speak and act as if they regarded a trial 'as a sort of game, partly of chance, partly of skill, in which the proper end to be aimed at is, not that the truth may be discovered, but that both parties may have fair play.' ⁽⁵⁷⁾

Nonetheless, the principle is essentially defensible. The ends may not always justify the means but they do in some circumstances. For example, few would find it morally repugnant to cause pain if it were an unavoidable incident of dragging an injured person from a burning building. However, some qualifications should be imposed, namely:

• the value of the system must outweigh the harm caused by such conduct;

• the role must be essential to the system; and

• there must be no means of ameliorating the conduct without compromising the system to an unacceptable degree.

The first of these three criteria is, of course, largely dependent upon the virtues of the adversary system. In general terms the system may be said to serve the public interest by facilitating truth and justice, ⁽⁵⁸⁾ maintaining rights, providing a ritual which affirms important values and sublimating conflict. The importance of these things has rightly been accepted as paramount but it should not be forgotten that such lofty concepts as truth and justice were also relied upon as the justification for procedures that would now be decried as barbaric. In Australian courts one often hears judges speak of the 'rich traditions of British justice but any student of history is conscious that such rich traditions emerged from lugubrious beginnings. To take but one example, few modern jurors would be heartened by the precedent of the cold water ordeal whereby the accused was bound and thrown into a river or pond. ⁽⁵⁹⁾ Other forms of ordeal and the emergence of trial by battle did little to ensure that justice always triumphed. ⁽⁶⁰⁾ The systems by which disputes were resolved were characterised by the use of power of one kind or another to force a given result. There are many who would suggest that the present adversary system is but the latest and most sophisticated step in such an inherently polluted process. To take one notable example, Warren Burger, then Chief Justice of the Supreme Court of the United States, has predicted that for many disputes 'trials run by the adversarial contest must in time go the way of the ancient trial by battle and blood. The present system, he maintains, is 'too costly, too painful, too destructive, too inefficient for a truly civilised people.' ⁽⁶¹⁾ Yet, despite these misgivings, it is contended that there are grounds for contending that the system does resolve conflicts and that it fulfils other important societal needs.

The second criterion is reasonably clear. Legal professional advocacy is now virtually essential to the maintenance of such a system. Even in the days of the redoubtable Dr Johnson it was suggested that few people were capable of conducting their own cases. ⁽⁶²⁾Since then the developing complexity of the law and the difficulty of the factual questions, including complex medical, scientific and commercial issues, has made it increasingly impracticable for the average member of the community to conduct major litigation without assistance from a professional advocate. ⁽⁶³⁾

The third criterion is more difficult. To demonstrate that there is a valid systemic need for litigants to have legal representation does not justify an ethical stance based upon a substantially undivided loyalty to clients. Even if one accepts without question the essential virtues of the adversary system, is it safe to assume that the techniques of advocacy are sufficiently curbed by the dictates of fairness and justice? Do they reveal or obscure the truth? Do they genuinely serve the interests of the community at large or merely the interests of the legal profession? Is the harm or injustice caused in individual cases really unavoidable without compromising the integrity of the system to an unacceptable degree? And in any event are these issues which should fall to lawyers alone to determine or has the legal profession merely arrogated to itself, albeit by default, the right to set standards by which justice shall be dispensed to the whole society? ⁽⁶⁴⁾

The most striking feature of the ethical standards accepted by banisters and solicitors alike is that they accept, at least implicitly, that as advocates they have duty to pursue the interests of their clients without regard for the interests of other people or, for that matter society as a whole, subject only to the particular limitations imposed by the various rules. Those rules impose important duties to the court and offer some protection to witnesses and others involved in the litigation. The rules refer to the 'administration of justice ⁽⁶⁵⁾ and 'the greater public interest ⁽⁶⁶⁾ but such references do not reflect or give rise to any duty to accord priority to truth or justice in particular cases. In essence, the view that the advocates primary duty is to the client has carried the day. They permit, indeed require, the advocate to go on 'reckless to the consequences unless he runs headlong into some rule imposed because a court or one of the professional bodies happened to forsee the harm that might be done if such a constraint were not imposed. The advocate is permitted to employ whatever tactics may be conducive to the attainment of his clients goals so long as he is able to negotiate the rules as a slalom skier negotiates the chicanes. There are significant moral justifications for embracing some measure of partisanship but acceptance of a duty of unequivocal loyalty, qualified only by duties to the court and proscriptions on dishonest or otherwise improper forensic behaviour, constitutes an inadequate approach to ethical standards.

In this area there seems to have been a striking failure to permit, let alone require, advocates to balance their professional duties to their clients against their duties as morally responsible human beings to avoid the infliction of unjustified harm. The legal profession has accepted a series of tightly limited rules which imposes certain duties to the court, prohibits dishonest and improper tactics but generally acknowledges that advocates should otherwise pursue the interests of their clients no matter how adverse the consequences may be for others. In other areas of human endeavour society has had to impose restrictions on the measures which may be employed in the defence of admittedly valid rights. Hence, ordinary citizens may not defend themselves from physical assault by the use of excessive force or protect their property by unlawful traps or even by fences which exceed the limitations imposed by relevant municipal regulations. The existing rules of legal professional ethics impose some comparable restraints. However, the ordinary citizens may not treat the acceptance of such prohibitions as the end of the moral enquiry. They may have a partisan loyalty to those most dear to them but will still have to balance that partisanship against other ethical demands. Parents may have a bias in favour of their own children but not hesitate to have them stand up so that elderly or disabled people who have a greater need may sit down. They may fight zealously to protect them from intruders but must still accept an obligation to employ no more violence than is proportionate to the threat. The professional codes reflect no similar requirements. In this context the analogy of the 'hired gun referred to by Parker, Abel and others may seem distressingly appropriate. Advocates hire themselves to all corners and are willing to attack any of the clients adversaries so long as the fight is conducted according to the rules and may therefore be regarded as 'fair.

Alternative paradigms of duty

The most comprehensive assault on this standard conception ot the advocates duty has been mounted by William Simon who dismisses attempts to justify the behaviour of advocates by reference to their role as mere examples of 'morality of the long run and contends that the whole process subverts important values, encourages immoral acts by lawyers and creates an environment within which the moral autonomy of litigants will be undermined. Simon would abandon the concept of professional ethics and insist that advocates apply their own standards of personal morality in what he terms 'non professional advocacy. ⁽⁶⁷⁾ Others, have protested that the systemic justifications for the standard conception of the advocates duty overlook the fact that the law is itself shaped by the decisions which lawyers make and by the underlying values of the profession. Hence, it is contended, advocates should recognise that the public has an interest in litigation and seek to uphold principles of justice. This approach, which Edward Jorstad describes as a 'Niebuhrian conception, would mean that the interests of clients would be pursued by invoking categories of approved behaviour. ⁽⁶⁸⁾ There have also been calls for a deontological approach based upon the premise that the propriety of behaviour is determined by the moral principles upon which it is based rather than the consequences which it is intended to produce. Where the application of different moral principles would require competing actions the conflict would be resolved by a lexicography of values with those deemed 'most just being accorded priority. ⁽⁶⁹⁾ Yet another proposal, which David Luban describes as 'moral activism, would accept the concept of role morality but maintain that the extent to which it may be invoked to justify otherwise immoral behaviour would be largely dependent upon the balance of wealth and power between the litigants. Hence, only minor deviations from the demands of common morality would be justified in civil cases between evenly matched litigants but a more ruthless approach might be justified in criminal cases or civil cases in which the opposing litigant is a government bureaucracy or large company. ⁽⁷⁰⁾

Each of these conceptions can be supported by cogent arguments though, in each case, various theoretical and practical objections can also be raised. The scope of this paper does not permit an analysis of the competing merits but it may be observed that each formulation reflects an attempt to find an alternative to the perceived moral poverty of the standard conception. The general feeling seems to be that society may be unable to prevent litigants from engaging in obfuscation, distortion and other chicanery but lawyers should not regard themselves as bound to assume the role of accomplices. As David Luban expresses it: 'a willing accomplice in wrong-doing is a wrongdoer. ⁽⁷¹⁾

A consequentialist model

A consequentialist paradigm for legal ethics need not consist of a utilitarian quest for some simplistic conception of the greater good such as the greatest number of just decisions or the greatest number of satisfied litigants. The concept is sufficiently wide to permit due consideration of the demands of role morality and other moral claims for partisanship and zealous advocacy. In the context of legal professional advocacy, a suitable paradigm might involve acceptance of a number of propositions. First, the adversary system, for all its deficiencies, is a valid means of resolving disputes and pursuing truth and justice albeit imperfectly. Its retention is warranted by the considerations discussed earlier. Secondly, if it is to be maintained then lawyers must fulfil at least the minimum which their representative roles require. Thirdly, those roles require at least some measure of partisanship. Fourthly, if 'common morality is taken to focus only on the precise act in question and ignore systemic considerations then, as Parker concludes, there will always be circumstances in which lawyers are required to behave in ways which run counter to common morality. Hence, any search for a single all embracing principle that would reconcile the claims of role morality and common morality is doomed to failure. ⁽⁷²⁾ Fifthly, the demands of role morality must nonetheless be tempered to some extent by those of common morality.

Such a conception would require modification of the professional codes. They would generally accept the standard conception of the advocates role but provide scope for greater personal discretion. Some rules could remain in absolute terms. For example it would be difficult to imagine circumstances in which the rule requiring disclosure of relevant authorities. Others would need to be redrafted as 'rebuttable presumptions of 'prima facie duties so that whilst the general principle would be affirmed lawyers would have a discretion to depart from it if confronted by a situation which they believed gave rise to an overriding ethical demand. It would rather depend upon the more pragmatic consideration that the harm caused by adherence to the general rule in the particular situation with which the lawyer is faced might outweigh the considerations which favour adherence to the rule.

As David Wilkins puts it, the lawyer 'must always decide what to do in light of the circumstances she confronts, not those the system designer imagined she would confront. ⁽⁷³⁾The manner in which this discretion would be exercised would not be governed by some all embracing principle. Much of the absolutism evident in the writing of both supporters and opponents of the standard conception of the advocates duty seems to be derived from the presupposition that there must be an ordinal ranking of values with one principle always assuming priority over another. In lieu of this approach, the exercise would involve what Christopher Stone describes as a 'cardinal ranking of preferences. ⁽⁷⁴⁾ This involves weighing the degree of harm that might be caused by pursuing a particular course in a given situation and comparing it to the degree of benefit that might be derived. ⁽⁷⁵⁾Hence, whilst the deontological paradigm suggested by Eberle might require an advocate to consider whether the moral value involved in the pursuit of the truth outweighed the distress caused by the aggressive cross-examination of a witness, the consequentialist approach postulated would require the advocate to weigh the likely forensic advantages to be gained by the contemplated cross-examination against the measure of distress likely to be caused. At a superficial level this would involve, on the one hand, weighing the gravity of the case, the forensic importance of the witness evidence and the extent to which the probative value might be diminished by the approach contemplated and, on the other, the damaging nature of the allegations, the age, maturity and apparent emotional security of the witness and the likelihood of others, such as the witness family being hurt. The dominant moral issue would be the prevention of harm not reasonably justified by other considerations of at least comparable importance.

However the exercise would be complicated by the need for a bias in favour of the clients interests deriving its legitimacy from the duty of loyalty implicit in the relationship and to the systemic considerations canvassed earlier. Again, this factor would be taken into account cardinally and the weight given to the bias would vary according to the circumstances. For example, the weight given to the duty of loyalty to the client would be far greater if the contemplated departure involved a serious breach of confidentiality than if it merely involved a refusal to ask a particular question which was relevant only as to the witness credit. Yet, even serious breaches of confidentiality might be justified by the gravity of the harm that might otherwise ensue.

It may, of course, be protested that such a balancing exercise is too complex to be practicable. There are a number of answers to this proposition. Firstly, whilst it may appear complex in the abstract there are many circumstances in which the appropriate balance would be obvious. One need only consider the example of a lawyer asked to elicit evidence which is of little probative value in a civil claim knowing that the resultant publicity is likely to have quite ruinous consequences for some third party. Secondly, advocates work in a judicial system increasingly dependent upon discretions based on a complex range of principles and factual circumstances. Thirdly, the law already demands similar judgements even of citizens with no legal training or experience. For example, the law of self defence emphasises the need for proportionality of the response to the threat. True, the person assaulted is not obliged to take systemic considerations into account but there are other difficulties such as the lack of time for reflection. It seems not unreasonable to impose a comparable requirement of proportionality upon trained lawyers. ⁽⁷⁶⁾

It is true, of course, that it would involve a significant erosion of the virtues of certainty and enforceability. Indeed, in other areas such as administrative law in which there has been a widespread reliance upon non judicial discretion there has been considerable disquiet about the consequences. ⁽⁷⁷⁾

K.C.Davis has sounded one of the more emphatic notes of caution:

Discretion is a tool when properly used: like an axe, it can be a weapon for mayhem or murder. In a government of men and laws, the portion that is government of men, like a malignant cancer, often tends to stifle the portion that isgovernment of laws. Perhaps nine-tenths of injustice in our legal system flows from discretion and perhaps one-tenth from rules. ⁽⁷⁸⁾

Davis acknowledges that it is not always appropriate to maintain a tight control on the exercise of discretion and suggests that the optimum level of control depended on the extent of the discretion that is necessary in the circumstances. ⁽⁷⁹⁾ He proposes that discretions be controlled by three methods: 'confining by establishing their boundaries, 'structuring by providing guidelines or otherwise determining the manner in which they must be exercised within those boundaries, ⁽⁸⁰⁾ and 'checking by having another person review the decision of the first to reduce the risk of 'arbitrariness. ⁽⁸¹⁾ He also observes that rules have an important part to play both in confining and structuring discretions and that they may be useful even if they have only a limited structuring affect. ⁽⁸²⁾

Despite the perceived limitations of this analysis, ⁽⁸³⁾it is contended that it offers a number of useful insights for the ethics of advocacy. On the one hand, it is neither necessary nor appropriate to remove any scope for individual discretion when the circumstances plainly require it. On the other, it is necessary that any such discretion be controlled. The three methods Davis proposes would be readily adaptable. The professional codes of conduct already confine the scope of discretion and it would be necessary only to extend the boundaries to permit greater flexibility. Such relaxation could be accompanied by the determination of guidelines and suggested examples of how discretion should be exercised in given circumstances. For example, one guideline might provide that, save in exceptional circumstances, lawyers should continue to act upon the assumption that the clients instructions were true. The professional bodies already have various committees charged with the maintenance of ethical standards and, in practice, there is usually no difficulty in obtaining a ruling.

A case study

The Ford Pinto trial ⁽⁸⁴⁾ which left the American public scandalised at the moral standards of car manufacturers also raised serious questions for lawyers. During the 1970s there were a series of cases over deaths and serious injuries sustained as a result of accidents in which Pinto sedans burst into flames. Subsequent publicity suggested that ford engineers had known that if the cars were struck from behind at or above 25 miles per hour the petrol tanks were likely to be pierced by bolts enabling petrol to leak out. Any spark thrown up by metal parts scraping on the roadway or other incidents of the collision would cause the petrol to explode thereby immolating the vehicles occupants. The problem could have been overcome by a variety of modifications but each was rejected on the grounds that they were too expensive and in the case of sedans would have reduced the effective size of the boot. ⁽⁸⁵⁾ Ford resisted government proposals for fuel tank safety standards for a number of years and actually carried out an analysis which determined that it would be cheaper to incur the financial costs of the legal claims arising from the resultant deaths and injuries than modify the cars to prevent them. From a lawyers point of view disturbing aspects of the revelations was that attorneys employed in Fords legal department had long known of the danger posed by these cars, ⁽⁸⁶⁾ some 12.5 million of which had been sold, ⁽⁸⁷⁾yet remained silent.

Of course, as Luban points out, motor vehicle manufacturers constantly compromise between safety and expense. It could also be contended that the financial analysis merely amounted to an actuarial study akin to that which might be taken by a life assurance company anxious to ensure that premiums would exceed payouts. Consequently, it did not reveal a callous indifference to death and suffering but simply a realistic appraisal demanded by normal business prudence. Furthermore, the vehicles met relevant government requirements during each year of manufacture and Ford would no doubt have argued that the public depended upon the government rather than private companies to determine accepted safety standards. Yet none of these arguments justified Fords conduct. First, the problem did not arise merely because some additional safety feature which could have avoided the dangers normally inherent in vehicles of that type was too expensive. It was caused by a design fault ⁽⁸⁸⁾ for which Ford was responsible. Secondly, potential purchasers were never warned of the danger. In any event, it is inescapable that many people died as a result of a danger which Ford had created. Why then did the lawyers remain silent whilst people were incinerated?

There are a number of possibilities including the risk of jeopardising their careers or apprehension about the possibility of an action for defamation. However, it is probable that many believed that they simply had no right to reveal information which was the property of their client who in this case was also their employer. Some may even have concluded that it would be a futile exercise since the company would have been able to obtain an injunction to restrain further disclosure. ⁽⁸⁹⁾ Whatever the explanations, this unfortunate saga starkly reveals the inadequacy of an ethical code which demands secrecy no matter how strong the grounds for disclosure. Luban suggests that the prevailing ethical rules might not have prevented disclosure because even in the most stringent formulations they are 'absolute only regarding past events. ⁽⁹⁰⁾ That is a comforting thought but it seems to depend upon an unduly benevolent construction of the rules. In any event, neither the common law nor the Australian professional codes provide an answer to problems of this kind. Indeed, barristers are enjoined to advise and represent clients 'uninfluenced by any personal view of the client or the clients activities. ⁽⁹¹⁾

Afterword

When lawyers accept professional engagements they do not become disentitled to exercise any moral judgement. On the contrary, it is imperative that advocacy be carried out only by those who have a strong sense of personal responsibility for the implications of their behaviour. They may plead the causes of others but they remain members of the community entrusted by that community with great moral responsibility. They do owe a duty to their clients and it is generally in the interests of the community that it be conscientiously fulfilled but even that duty will sometimes be outweighed by competing moral claims which are entitled to priority in the circumstances. In asserting their clients autonomy they must not sacrifice their own. Their representative role may make it appropriate for them to take steps on behalf of a client that they would not take on their own behalf but it will never be appropriate to embrace a standard which involves abdicating their own responsibility as a moral human being.

K. J. Crispin QC

2 September 1995


Endnotes

1. Henry VI. Part 11, Act IV, Scene 11. See also Kornstein, D. J., Kill all the Lawyers? Shakespeares Legal Appeal, Princeton University Press, Princeton. N. J., 1994, esp chapter 2. 'The First Thing We Do.

2. Wilfred Prest suggests that this hostility to lawyers stretch far back into western culture though it seems to have burgeoned during the early 16th century. Prest. W.R., The Rise of the Barristers, Clarendon Press, Oxford, 1986, at 283 - 303.

3. Melinkoff, D., Conscience of a Lawyer, West Publishing Co., St Paul, Minn., 1973, at v

4. A Morgan poll published in Time magazine 24 May, 1993 revealed that only 32% of those polled thought that Australian lawyers had 'high or 'very high standards of ethics and honesty. The accompanying article elicited a retaliatory attack on journalists: Elliott, P., 'Who Judges the Journalists?, Victorian Bar News, Winter, 1993, at 38. By April, 1994 the figure had dropped to 30% Canberra Times 18 April, 1994, at 1. On the other hand, a study conducted in 1975 revealed that most clients were extremely satisfied with the quality of the legal services provided: Tomasic, R., Lawyers and the Community, Sydney, Allen & Unwin, 1976, at 132-3.

5. Marvin Frankel cites 'mouthpiece, 'hired gun, 'mercenary warrior and 'shyster before offering his own formulation of 'an all purpose, surrogate villain, doing everybodys dirty work -obstructing, perverting, distorting, blocking the high road to justice. See Frankel, M., 'Partisan Justice' Hill & Wang, New York, 1978 at 3. See also Melinkoff. D.. supra note 3 at 10-2.

6. See generally Melinkoff, D., op cit note 3, Introduction, 1-15.

7. Hart, J., & Parker, B., There's a Fly in my Swill, Fawcett Publications, Greenwich, 1973, at 3.15.

8. Linowitz, S. M., The Betrayed Profession, Lawyering at the end of the Twentieth Century, Charles Scribners Sons, New York, 1994., at 9.

9. Kronman, A. T., The Lost lawyer - Failing Ideals of the Legal Profession, Belknap Press, Harvard, 1993, at 1.

10. Supra, at 2.

11. Supra, at 3-16.

12. Supra, at 4

13. Supra, at 5-7.

14. Linowitz, S. M., op cit, note 8, at 237

15. For example, David Luban has suggested that even though many disagreed with Monroe Freedman's more controversial conclusions they failed to come to terms with 'the tangle of complicated theoretical claims upon which they rested. Luban, D., Lawyers and Justice, An Ethical Study, Princeton University Press,Princeton, 1988, at xxi. See also Simon, W.H., Simon,W.H., 'The Ideology of Advocacy, Procedural Justice and Professional Ethics, (1978) Wisconsin Law Review, 29, at 31.

16. For an example of such uncritical reliance see Singleton KC, J. E., Conduct at the Bar and Some Problems of Advocacy, Sweet & Maxwell, London, 1961 esp at 31 -33.

17. For example, Lord Eldons proposition that '(t)he advocate lends his exertions to all, himself to none is cited by several authors with the apparent expectation that his opinion on the topic should be accepted as conclusive. See, for example, Singleton KC., J. E., Conduct at the Bar and Some Problems of Advocacy, supra, at 33; and Phillips, Mr Justice J, Advocacy with Honour, Sydney, Law Book Co, 1985 at 1. Yet Lord Eldon resisted proposals to abolish slavery, end imprisonment for mere civil debt and provide emancipation for Roman Catholics. It is said that he was so resistant to change that he wept whilst sitting on the woolsack when he learnt that the death penalty would no longer be available for petty larceny, His Lordship apparently thought that 'an ordered universe was shivering into fragments. Birkenhead, The Right Hon Earl of, Fourteen English Judges, Cassell & Co Ltd. London, 1926, at 237. He has, however, been defended for interceding to secure the Royal pardon for some offenders. Roiph, C. H., The Queens Pardon, Cassell, London, 1978, at 25-6.

18. Luban, D., 'Partnership, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellmann, (1990) 90 Columbia L. Rev. 1004, at 1023. He cites a review by CS. Lewis of moral precepts from Jewish, Christian, Hindu, Babylonian, Old Norse, Egyptian, Chinese, Greek and Roman Sources to support his view of the universality of natural law. Lewis, CS., The Abolition of Man, 1947, republished by Fount Paperbacks, London., 1978, at 95-121. More recently, Peter Singer has also commented on the striking degree of convergence amongst varvng ethical traditions on the question of how people should live: Singer. P., Afterword, A Companion to Ethics, Basil Blackwell, Oxford, 1993, 543 at 543.

19. The Holy Bible: The Epistle of Paul to the Romans Chapter 13 verses1-6

20. Baker, J.H., An Introduction to English Legal History, 3rd Ed., Butterworths, London, 1990, at 5.

21. Baker, J.H., An Introduction to English Legal History, supra, at 69. Sir Winston Churchill suggests that it was the forerunner of 'the modern theory that the God of Battles will strengthen the arm of the righteous. Churchill, Sir W., A History of the English Speaking Peoples, Dorset press, New York, 1990, Book1 at 218.

22. Evans E & Jack, I., Sources of English and Legal Constitutional History, Butterworths, Sydney, 1984, at 182.

23. Though there were significant theological differences between the Augustinian and Thomist conceptions of law. McCoubrey, H., The Development of Natural Legal Theory, Croom Helm in assoc with Methuen, New York, 1987, at 39-60.

24. Melinkoff refers to Glanvil (12th century), Bracton (13th century), Fortescue and Littlejohn (15th century) and St Germain (16th century): Melinkoff, D., Conscience of a Lawyer, West Publishing Co., Los Angeles, 1973, at 145.

25. Blackstone, William, Commentaries on the Laws of England, William Carey Jones Ed, San Fransisco, Bancroft- Whitney Co, 1916, at 41-43.

26. R v Williams (1797) 26 How. St. Tr. 653 at 668

27. In re Masters & C. of the Bedford Charity (1818) 2 Swans 470 at 527.

28. St Thomas Aquinas. Summa Theologica, Part 2-2 Question 71, Article 3.

29. St Germain, Christopher, Doctor and Student, William Muchell, Ed. Cincinatti, Robert Clarke & Co., 1874 ( First published in Latin in 1523).

30. Cook, J., The Vindication of the Professors and the Profession of Law, London, Matthew Walbancke. 1646 at 8.

31. Quoted in 15 ALJ at 216.

32. Though Anthony Kronman suggests that the idea of a calling survived, at least for a time, the religious beliefs upon which it was based: Kronman, A. T., The Lost Lawyer, Belknap Press, Cambridge, Mass., 1993 at 370.

33. Plato, The Republic, F. M. Cornford translation, Oxford University Press, Oxford, 1945, at 139 et seq.

34. Fishkin, James S., The Limits of Obligation, Yale University Press, 1982, at 23.

35. Moore, G.E., Principia Ethica, Cambridge Unviersity Press, 1903 (reprinted 1966), at 148.

36. Singer, P., Famine Affluence and Morality, Philosophy Ethics and Society, Fifth Series, Yale University Press. 1979, at 33.

37. Simmons, J., Moral Principles and Political Obligations, Princeton University Press. 1979, at 13.

38. Rawls, J., A Theory of Justice, Harvard University Press, Cambridge, Mass., 1971, at 17-22 &118-122.

39. Rawls, J., supra, at 183-192. See also Firth, Roderick, 'Ethical Absolution and the Ideal Observer', Philosophv and Phenomenological Research 12, 1952, at 317.

40. Mackie, J., Ethics: Inventing Right and Wrong, Penguin, New York, 1977, Chapter 4. See also Gewirth, A., Reason and Morality, University of Chicago Press, Chicago, 1978.

41. Nagel, T., Moral Questions, Cambridge University Press, Cambridge, 1979, at 126.

42. Wolf, S., 'Moral Saints, 79 Journal of Philosophy, (1982) 419; Kupperman, J., 'Character and Ethical Theory 13 Midwest Studies in Philosophy, (1988) 115.

43. See, for example, DArcy, MC., The Mind and Heart of Love, Faber & Faber, London, 1946.

44. She supports this contention by pointing to the deontological distinction between causing harm and merely permitting harm. The greater moral weight attached to the former means that a deontologist may be obliged to conclude that a social intervention is not ethically defensible if similar or even greater harm might thereby be avoided. Bammer, G., Report and Recommendations of Stage 2, Feasibility Research into the Controlled Availability of Opioids, National Centre for Epidemiology and Population Health, Australian National University, Canberra, 1995 at 32.

45. Bentham J., An Introduction to the Principles of Morals and Legislation, (originally published London, 1832) ed J. H. Burns and H.L.A. Hart, Athlone Press, London, 1970; Mill J. S., Utilitarianism, (originally published London, 1863) now in M. Warnock ed., Mill: Utilitarianism and Other Writings, Collins, Glasgow, 1962.

46. Goodin, R.E., 'Utility and the Good, in A Companion to Ethics', ed by P. Singer, Basil Blackwell, Oxford. 1993, 241 at 248.

47. However a deontological model proposed by DAmato and Eberle. See note 69.

48. Brennan, The Hon Sir G., 'Ethics and Procedure, Brennan, Hon Sir G., 'Ethics and Procedure', an unpublished paper presented to the conference of the Bar Association of Queensland, Noosa Qld, 3 May 1992. Similar sentiments may be found in Shapero v Kentucky Bar Association [19881 486 U.S. 488 at 489.

49. Hermann, A., 'Depressing News for Lawyers', Chicago-Sun Times, 13 September 1991.

50. Linowitz, S. M., op cit, note 8, at 242.

51. Marvin E. Frankel, Partisan Justice, Hill & Wang, New York, 1978 at 62-3.

52. Though they achieve their effect in a manner fundamentally different from other weapons in that they must ultimately persuade. Kronman, A. T., op cit, note 9, at 148. See also Cover, C. M., 'Violence and the Word (1986) 95 Yale Law Journal, 1601.

53. Gee & Elkins, 'Resistance to Legal Ethics', (1987) 12 J.Legal Prof., 29 at 29 quoted by J.Medina, in Ethical Concerns in Civil Appellate Advocacy', 43 Southwestern L. J. 677 at 677

54. Parker, S., 'Cost of Legal Services and Litigation', Parker, S, Cost of Legal services and Litigation, Discussion Paper No 5, Senate Standing Committee on Legal and Constitutional Affairs, Feb 1992, at 3.26.

55. Though the analogy is not an uncommon one. See, for example, Fortas, A., 'Thurman Arnold and the Theatre of the Law' (1970) 79 Yale L. J. 1988 & Ball, M. S., 'The Plays the Thing: An Unscientific Reflection on Courts under the Rubric of Theatre' (1975) 28 Stan. L. Rev. 81. Barristers have even been described as a special purpose arm of the theatrical profession. Evans. Christopher, The Mightv Micro, Coronet, London, 1980, Ch 9. The Decline of the Professions, at 114.

56. Sir Malcolm Hilberry has said that every great advocate is an actor. Unlike other actors, however, the advocate 'creates the part he plays. Hilberry, The Rt Hon Sir Malcolm. Duty and Art in Advocacy, Sweet & Maxwell, London, 1959, at 27.

57. Quoted by Jeremy Bentham, Rationale of Judicial Evidence, Specially applied to English practice, Vol 5, London, Hunt & Clark, 1827 at 318; See also Luban, D., Lawyers and Justice: An Ethical Study, op cit note 82, at 227.

58. The perceived value of the adversary system in ascertaining truth and doing justice is capsulated in a much quoted passage from a judgment of Lord Denning:

"His (the judges) object, above all, is to find out the truth, and to do justice according to law; and in the pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon LC who said in a notable passage that 'the truth is best discovered by powerful statements on both sides of the question?.. .and Lord Green MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputation? If a judge, said Lord Greene, should himself conduct the examination of witnesses, 'he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict. Jones v National Coal Board (1957) 2 QB 55 at 63. See also Ex parte Lloyd (1822) Montagues Reports 70n, per Lord Eldon at 72.

59. Baker J.H., An Introduction to English Legal History, op cit, note 20, at 5. See also Bartlett, R., Trial by Fire and Water, Clarendon Press, Oxford, 1986.

60. Trial by Battle was not finally abolished until 1819: Ashford v Thornton (1818) 1 B & Aid 405;59 George III ch 46 (1819); See also Pannick, D., Advocates, Oxford University Press, Oxford & New York, 1992, at 9. As recently as 1985 a Scottish defendant sought trial by battle against the Lord Advocate on the basis that the statute abolished the procedure only in England. See Baker, J.H., An Introduction to English Legal History, supra, at 87 note 10.

61. Burger, Chief Justice W. E., 'The State of Justice', (1984) 70 American Bar Association Journal, 62 at 66.

62. Biron, C., Sir, said Dr Johnson, Folcroft Library, Folcroft Pa., 1979, at 58-9.

63. In Deitrich v R (1992) 177 C.L.R. 292 the High Court held that it was not satisfied that an unrepresented defendant facing a complex prosecution case could have had a fair trial.

64. William Simon criticises what he describes as 'professionalism which in this context refers to the assumption that questions of practice, procedure or professional ethics should always be determined by the profession collectively rather than by individuals or even by the wider community. Simon, William H., The Ideology of Advocacy: Procedural Justice and Professional Ethics (1978), Wisconsin Law Review, 29 at 38. See also Tomasic, R., Lawyers and the Community, op cit, note 4, esp 'The Challenge to Professional Dominance at 122-8; Friedson, E., Professional Dominance, Atherton Press, New York, 1970 and Profession of Medicine: a study of the sociology of applied knowledge, Dodd, Mead & Co., New York, 1970 esp at 380.

65. New South Wales Bar Association Rules, Preamble, rule 1.

66. Supra, rule 7.

67. Simon, W.H., op cit, note 15.

68. Jorstad, E.E., 'Litigation Ethics: A Niebuhrian View of the Adversarial Legal System, (1990) 90 Yale L.J.1089.

69. DAmato, A. & Eberle, E., 'Three Models of Legal Ethics (1983) 21 St Louis U.L.J. 1 761 at 772.See also Eberle, E., 'Toward Moral Responsibility in Lawyering: Further Thoughts on the Deontological Model of Ethics (1989) 64 St Johns Law Review, 1, at 12.

70. Luban, D., op cit. note 15.

71. Luban suggests that this judgment may apply to lawyers in certain cases unless one takes the view that the standard conception of the advocates role shields them from it. David Luban,'Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellman', 90 Columbia L. Rev. 1004 at 1025.

72. Christopher Stone has persuasively argued for moral pluralism in Earth and Other Ethics, Harper & Row, New York, 1987.

73. Wilkins, D.B., 'Legal Realism for Lawyers', op cit, note 65, at 508-9**.

74. Stone, C. D., Earth and Other Ethics, Harper & Row, New York, 1987, 143.

75. Stone offers the example of declining to plant a loquat tree in his backyard because his neighbour who objects to the fruit flies it would attract would be twice as 'put out as he would be pleased. He explains: 'I can thus grasp that putting the new tree in my yard would be wrong. It is not just a matter of what I want versus what my neighbour wants, which would be a one-to-one standoff. Because of the rough cardinal information available to me in those circumstances, I can make a more richly informed decision: the real balance of wants goes two-to-one. Ibid.

76. This principle gained a foothold in the requirement that in addresses serious imputations against the character of third parties must not only be well founded and relevant but in 'language no stronger than the needs of the case require. Rule 5.5 Australian Code. It has not been included in the N. S. W. Bar Association Rules though there are some constraints on making serious allegations (rules 35 - 42).

77. See, for example, Cooney, Sean, 'The Codification of Migration Policy: Excess Rules? - Part 1, 1994, 3 A.J.A. L. 121 at 132 et seq.

78. Davis, K. C., 'Discretionary Justice: A Preliminary Inquiry'. Louisiana State University Press, Baton Rouge, 1969, 25.

79. Supra, at 3-4.

80. Supra, at 97.

81. Supra, at 142.

82. Supra, at 103. He noted, however, that there are other effective means of structuring discretions including by the use of open plans, policy statements, findings, precedents and reasons and by fair procedures. See generally Chap IV.

83. Sean Coonev suggests that his concept of discretion fails to recognise the many variations in the nature and extent in of discretionary powers, that Davis is too simplistic in confining his consideration to actual decisions without regard for the broader process, that he is wrong in contending that discretions are only justified when they are necessary and that his assumptions concerning the inconsistency of discretions with certain legal values such as justice are not necessarily valid. Cooney, S., 'The Codification of Migration Policy: Excess Rules? - Part 1, 1994, 3 A. I A. L. 121 at 133-9. See also Baldwin, R., & Hawkins, K., 'Discretionary Justice: Davis Reconsidered, 1984, Public Law, 570; Dworkin, R, Taking Rights Seriously, Harvard Press, Cambridge Mass., 31-39 & Galligan. D.J., Discretionary Powers: A Legal Study of Official Discretion, Oxford University Press, Oxford, 1986 esp 14-28.

84. The trial which began on 7 Jan 1980 and resulted in acquittals is unreported. However, extensive accounts of the proceedings may be found in Strobel, P., Reckless Homicide? Ford's Pinto Trial, And Books, South Bend, 1980 and Cullen, F. T., Maakestad, W. J., Cavender, G., Corporate Crime under Attack, The Ford Pinto Case and Beyond, Anderson Publishing Co., Cincinatti, 1987.

85. Internal company documents revealed that Ford had crash tested the Pinto at a top secret site more than forty times and that every test at a speed in excess of 25 m.p.h. without special structural modifications resulted in a ruptured fuel tank: Cullen, F. T., Maakestad, W. J.,Cavender, G., Corporate Crime under Attack, The Ford Pinto Case and Beyond, supra, at 161.

86. Luban quotes from an interview of a former Ford executive, Harley Cropp on 10th June, 1987:

Luban, D., Lawyers and Justice: An Ethical Study, op cit, note 56, at 210. The analysis which is reproduced by Cullen, Maakestad and Cavender assumed average damages of $200,000 per death and $67,000 per serious injury. The comparison thus facilitated was:

Deaths and injuries: 180 x $200,000 + 180 x $67,000 = $ 49.5 million

Cost of modifying the Ford Pinto: 12.5 million x $11 = $137.5 million.

Cullen, F. T., Maakestad, W. J., Cavender, G., Corporate Crime under Attack, The Ford Pinto Case and Beyond, supra, at 162.

87. Chicago Tribune, 14^th October 1979, 1.

88. Luban, D., Lawyers and Justice: An Ethical Study, op cit, note 15 at 212.

89. See, for example, Lord Ashburton v Pape (1913) 2 Ch 469.

90. Luban, D., Lawyers and Justice: An Ethical Study, op cit, note 15 at 214.

91. Rule 16, N.S.W. Bar Association Rules, rule 3.3 (a) Australian Approved Code of Conduct.