Tim Dare: Lawyers' burden gives all a fair go

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Responsibility of defenders like Greg King to take on unpopular clients vital in upholding function of law

Greg King's death is a reminder of the pressure on lawyers defending clients whose actions they may consider immoral. Photo / Mark Mitchell
Greg King's death is a reminder of the pressure on lawyers defending clients whose actions they may consider immoral. Photo / Mark Mitchell

Greg King's death is a tragic illustration of one of the burdens of the "standard conception" of the lawyer's role, a conception which at least occasionally requires lawyers to defend clients and causes for which neither they nor others have much sympathy - and to bear the psychological costs of doing so.

The conception consists of three principles. The principle of partisanship requires lawyers to give complete priority to their client's interests. The principle of neutrality says that lawyers cannot pick and choose their clients - other than for reasons such as expertise and workload - and cannot calibrate their efforts according to their own view of the client's cause. Whether clients have legal rights - to plead provocation, for instance - is up to the legislature and the courts, not lawyers. The third principle, non-accountability, is a consequence of the first two: if lawyers must give priority to the interests of clients they do not choose and if they cannot calibrate their efforts according to their own views of those clients or their causes, then they should not be held accountable for the clients or the cause.

The conception does not require or allow lawyers to pursue unlawful advantages for their clients but the law often allows citizens to pursue interests that seem immoral. Should someone who acknowledges that they have savagely killed a young woman be allowed to claim that they were provoked by her wish to end their relationship? Many of us thought no, but when Clayton Weatherston was on trial the law said yes, and so the standard conception required his lawyers to put the defence.

It is easy to see how the conception imposes significant ethical and psychological burdens on lawyers. We all tolerate things we wish were otherwise. Lawyers may be required to zealously bring them about. Of course, the principle of nonaccountability says that lawyers should not be held accountable for the interests the legal system allows clients to pursue but Greg King shows that even lawyers occasionally find it hard to draw this line.

Some have responded by calling for the standard conception to be abandoned in favour of alternatives that allow lawyers to bring their own moral sensibilities to play in their professional roles.

But we should resist such proposals. It is not an accident that law and morality occasionally come apart. Modern communities are marked by a diversity of views about how we should live. Decent, clever, reasonable people disagree about issues such as euthanasia, same-sex marriage, whether the state should retain ownership of infrastructure assets, and what a fair taxation system looks like. In such cases we need a way of going on despite our ineliminable disagreements. The law allows us to do so, settling what we are legally entitled to do while leaving the underlying moral issues untouched. Inevitably the law will fail to satisfy all the reasonable moral views to be found in pluralist communities.

(We should not conclude from these disagreements that there is no moral truth about these matters. There may be, and I may be confident I know what it is, but if I can see that reasonable people disagree with me and I am unable or unwilling to force them to adopt my view, I have reason to respect the law - and if the law doesn't satisfy me, to campaign to have it changed).

This view of law leads naturally to the standard conception. Typically, we need assistance to access the rights granted by the law. If lawyers were to decide who had access to what rights - perhaps by refusing to represent unpopular clients, or by advocating for their own moral views - they would thwart the vital mediating role of law. I need to know that someone will help me get the benefits of my legal rights even if those rights are unpopular. (If this troubles you, think not about Weatherston but about Arthur Allen Thomas or David Bain).

Does this mean there is nothing to be done for lawyers like Greg King who bear the psychological burdens of the standard conception? We might hope that convincing both lawyers and the rest of us that they are performing a vital and morally significant role, one which makes communities such as ours possible, could make a difference. Lawyers should take pride and satisfaction in performing a role that is vital to us all.

- NZ Herald

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