THE HONEST LAWYER by THE RIGHT HONBLE 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 Gullivers 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 Swifts 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 lawyers function is to state his clients 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 Cokes 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 accuseds 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, Counsefor the prosecution will not bring out the mans previous convictions except when it is fair to do so, and he will always warn the prisoners 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, dont 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 witnesss 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 clients 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 lawyers 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 clients 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 clients 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 mans 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 prisoners 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 prisoners 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 is, however, a very fine one; for it is no part of the duty of Counsel to disclose to the court the bad character of his witnesses. He is not the judge of their credibility and is entitled to put his witnesses before the court for what they are worth, and to leave it to the other side to cross-examine them and destroy their credit. That this rule may Sometimes lead to dissatisfaction is shown by the case of Mrs. Braddock, a member of Parliament, who was said by a newspaper to have "danced a jig" across the floor of the House. She brought a libel action, and the most important witness for the newspaper was a reporter who said he had seen the incident. He was believed and the newspaper won. He had, however, unknown to the plaintiff, been many times convicted of stealing and other offences involing dishonesty. If the Court had known about his record, he might have been disbelieved, but the Court of Appeal felt that it could not order a new trial.5

THE THIRD CHARGE - THAT THEY RUN UP COSTS Let me now come to the third charge against lawyers: that they are more concerned with their fees than with the interests of their clients: that they will advise their clients to go to law when they know or ought to know he had best stay out of it: and that they run up costs in legal procedure and technicalities which could well be done away with. This is a charge made as early as 1386 when Chaucer said of his man of law that "there was nowhere anyone so good as he at feathering his own nest". Lord Bacon about 1600 said that the common people likened the Courts of Justice to a bush, whereunto, while the sheep flies for defence in weather, he is sure to lose part of his fleece. The condition of affairs in the early 19th century was exposed by Charles Dickens in Bleak House. He described how the various solicitors in the cause of Jarndyce v. Jarndyce, who made a fortune out of it, were ranged "in a line with bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters reports, mountains of costly nonsense filed before them ... There they were in the long matted well of the court, but you might look in vain for truth at the bottom of it." "This," said Dickens " "is the Court of Chancery which gives to monied might the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brains and breaks the heart that there is not an honourable man among its practitioners, who would not give - who does not often give the warning Suffer any wrong that can be done you, rather than come here!" Things are not so bad now: but there are still complaints of the cost of litigation. A strong committee has recently sat for six years in an effort to reduce the costs, but still they remain high. The legal profession is probably not to blame. Lawyers often say that justice, as we require it, cannot be done on the cheap. And every honest lawyer advises his client not to go to law unless he must. Lord Justice Singleton has put it this way: "No one but a lunatic goes to law unless he is compelled to do so - unless there is at stake his life, or his reputation, or his wealth, or his honour, or one of those important things for the sake of which a man must think it worthwhile to litigate." There is, moreoever, a high tradition that a barrister must give of his best to his client without any thought of his private gain. If his opinion is sought, he must not let his views be influenced by the thought that, if he advises a fight, he will earn fees in the course of it. He must state the chances of success or failure without regard to his own position. In the past this tradition was supported by enlightened self-interest; because it increased his standing and reputation but with the coming of legal aid it needs strong reinforcement. THE FIRST VIRTUE - COMMAND OF LANGUAGE I have now done with the things which a lawyer must avoid. Let me come to the things which he must do. He must have a command of the English language so as to put his clients case clearly and strongly before the Judge. I put this first because the very reason for employing an advocate

is that he should present the case in the best possible light, and to do this he must have a command of the language in which he speaks. The key to the correct presentation of a case is at the outset to state the point at issue and then to recount the facts simply and in good order, keeping to what matters and omitting the rest. It is surprising how many advocates fail to observe those simple rules. Perhaps I may remind you of the famous rebuke which Mr. Justice Maule once made to Counsel who was blundering along in haphazard fashion: Mr. Smith, but do you not think that by introducing a little order into your narrative, you might possibly render yourself a trifle more intelligible? It may be my fault that I cannot follow you - I know that my brain is getting old and dilapidated; but I should like to stipulate for some sort of order. There are plenty of them. There is the chronological, the botanical, the metaphysical, the geographical, even the alphabetical order would be better than no order at all.6 The good advocate will therefore present his case simply and in good order, but he will attune his words to the tribunal before whom he appears. He will not expose himself to the kind of thing which is described by Mr. Justice Hilbery in his book on the Duty and Art in Advocacy. "A Counsel, much given to emotional rhetoric, began to open a case before Mr. Justice Swift who was sitting alone. He had not gone far before he was giving full rein to his oratory. Mr. Justice Swift tapped on his desk Mr. Blank, he said, there is no jury. Then came the appropriate apology, and the Counsel began again, and again was soon indulging in rolling periods and highly flowered declamation. For some time the Judge suffered it, then there came again the tap of the pencil on the desk. Usher, he said, switch on the light over the jury box - Mr. Blank does not believe me. That shows the danger of becoming too emotional and picturesque in language. I may remind you of the fate which befell Edmund Burke when he dramatically threw a dagger on the floor of the House of Cominons. A cynical opponent arose at once and said the honourable Member has given us a knife, will he not produce the fork as well? " THE SECOND VIRTUE - COURAGE The second quality which becomes a lawyer is courage. Every Counsel for an accused man must spare no effort to defend him, no matter how much public opinion is against the man, no matter how distasteful is the task, no matter how inconvenient to himself, and no matter how small a fee. He must make "the most of every flaw and every gap in the net which seems to be closing round the unhappy man". He must say anything on his behalf that can properly be said. If he is instructed in a civil case which clashes with the defence of a prisoner in a criminal case then he must return the brief in the civil case. The law of England regards the liberty of the individual so highly that the defence of any man accused of serious crime must be put first. Perhaps the most striking example of this position is the conduct of Thomas Erskine when he was retained for the defence of Tom Paine. Tom Paine had written a book called the Rights of Man which contained some offensive remarks about William III and George I and was prosecuted for seditious libel. Erskine personally would not have approved the book in the least - very few people in England

did - but the matter was to be tried in the court in which Erskine practised as a barrister and he felt it was his duty to defend the party accused to the best of his ability. So he accepted the retainer. Great pressure was put on him to refuse the brief. Lord Loughborough went out of his way to meet him as he was walking home and said: "Erskine, you must not take Paines brief." Erskine replied: "But I have been retained and I will take it." He did take it and when he came to address the jury he used these memorable words: "I will forever, at all hazards, assert the dignity, independence and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will, or will not, stand between the Crown and the subject arraigned in the court where he daily sits to practise - from that moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or the defence, he assumes the character of the Judge; nay, he assumes it before the hour of judgment; and, in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scales against the accused, in whose favour the benevolent principle of English law makes all presumption, and which commands the very Judge to be his Counsel." The jury found Paine guilty: but Erskine was made to suffer for accepting the brief. He lost his office as Attorney General to the Prince of Wales. Nevertheless, the Prince of Wales afterwards made amends by appointing him Chancellor. So the principle was vindicated: and it has repeatedly been applied ever since. A good instance occurred during the war of 1939-45, when spies, or "fifth columnists" as they were called, were particularly odious to the people at large. Nevertheless, no member of the Bar refused to appear for them. They were often represented by Counsel of the greatest distinction, some of whom have since become Judges. THE DEAN OF ST. ASAPH The duty of Counsel to defend a man may sometimes bring him into conflict with the Bench. When this happens, tradition demands that he must, while showing every courtesy to the Bench, nevertheless take every legitimate point on behalf of his client. Here again Erskine has shown the way. It was in a celebrated case against a clergyman, the Dean of St. Asaph, who had published a pamphlet on the principles of government; and found himself indicted for seditious libel in consequence of it. Erskine was instructed to defend the Dean at the Shropshire Assizes in the summer of 1784. The Judge was a very great Judge, Buller, J, who knew Erskine well. Indeed Erskine had been his pupil. Now it so happened that at that time the Judges had a wrong notion of the law of libel. They held that the question of libel or no libel was for the Judge and not for the jury; and the only question for the jury was whether the pamphlet was published. This state of the law made it difficult for Erskine to defend the Dean, but he was so successful with, the jury that, despite the Judges direction, they did not give a simple verdict of guilty. The foreman said: "We find him guilty of publishing only." The Judge was not prepared to accept that verdict and said to the jury: "You must explain that, one way or the other." But Erskine then took the bold and unusual course of himself asking the jury: "Is the word only to stand as part of the

verdict?" The foreman said: "Certainly". This dialogue then took place between Erskine and the Judge: Erskine: "I insist that the verdict shall be recorded." Buller, J: "Then the verdict must be misunderstood: let me understand the jury." Erskine: "The jury do understand their verdict." Buller, J. Sir, I will not be interrupted." Erskine: "Istand here as an advocate for a brother citizen, and I desire that the word only mdy be recorded." Buller J: "Sit down, Sir. Remember your duty, or I shall be obliged to proceed in another manner" (which was a broad hint that he would be obliged to commit him for contempt, but Erskine replied). Erskine: "Your Lordship may proceed in what manner lie thinks fit: I know my duty as well as your Lordship knows yours. I shall not alter my conduct." The Judge gave in. He did not commit Erskine and eventually the verdict was entered in the form: "Guilty of publishing, but whether a libel or not we do not find." Afterwards, on a hearing before Lord Mansfield in London, the pamphlet was held to be no libel and the Dean was acquitted. Furthermore, there was such an outcry about the state of the law as the Judges supposed it to be, that Parliament in 1792, in Foxs Libel Act, declared that the Judges were wrong, and that the question of libel or no libel was for the jury and not for the Judge. Parliament said that the law had always been so, despite what the Judges had said about it. This was one of the great steps in establishing the freedom of the press in England, and it was largely due to the conduct of Erskine in the case of the Dean of St. Asaph. MODERN INSTANCES May I give a modern illustration of how well this tradition of courage is still maintained. A man named William Cooper Hobbs brought a libel action against a number of newspapers who had published his life history. Serjeant Sullivan, K.C., appeared for him, but when Hobbs went into the witness box he was so effectively cross-examined by Mr. Norman Birkett, K.C., that the jury sent a message to the Lord Chief Justice (Lord Hewart), who was trying the case. They said they had heard sufficient of the case and wanted to find for the defendant newspapers. At that Serjeant Sullivan rose and said, "Before that result is arrived at, my Lord, I would insist upon addressing the jury." The Lord Chief Justice: "You would insist, would you? That is a strange phrase to use to me." Serjeant Sullivan: "I would conceive that I am entitled to insist upon addressing the jury." The Lord Chief Justice: "Please do not use the word Insist ... Are you entitled to address the jury when tile jury have said upon the evidence of the plaintiff himself they are satisfied that he ought not to recover?" Serjeant Sullivan: "I most respectfully submit that I am so entitled. I am entitled to point out on the evidence of the plaintiff, according to the rule of law, that there is

nothing to disentitle the plaintiff from recovering substantial damages." The Lord Chief Justice: "I hear you say that. Mr. Norman Birkett what do you say?" Now Mr. Norman Birkett was a great advocate who was ever mindful of the traditions of the Bar. He realised that Serjeant Sullivan was right. He took no objection to his addressing the jury; and the Serjeant did so, but he did not win the case in that court. He won it in the Court of Appeal. They ordered a new trial and eventually the newspapers settled the claim. The last instance that I would give on this question was when Counsel had to defend a man who had a case which the Judge thought impossible but who nevertheless asserted his innocence. It was at the Winchester Assizes, when a young sailor was charged with murder. He was said to have strangled a woman on Southampton Common. His Counsel saw him in the prison on the evening before the trial. He was dirty and unkempt and told his story. It was that the woman had slapped his face and said bitter things to him. He lost his temper and, to stop her talking, put his hands round her mouth and throat; but she had a weak chest and suddenly died. It was not a very strong defence. It is difficult to say that a slap on the face is sufficient provocation to reduce murder to manslaughter. Nevertheless his Counsel felt it his duty to put it forward. He told the man to smarten himself up a bit before the next day. He did so. When he was brought into the dock for his trial, he was as smart and nice a young sailor as you could ever wish to see. The Judge did not think much of the defence. When Counsel asked the sailor whether his ship had not been torpedoed under him three times, the Judge intervened: "Many a sailor has had his ship torpedoed under him, and he doesnt go and strangle a woman." When Counsel put the defence of provocation to the jury, the Judge said he would rule that it was not open to the jury to find that there was sufficient provocation to reduce the offence to manslaughter. Despite this ruling, Counsel felt it his duty to put it before the jury. He put it to them that it was for them to say whether the sailor was guilty of murder or only manslaughter. But the Judge directed the jury that he could see nothing to justify them in finding a verdict of manslaughter and that they must find a verdict of murder or nothing. Now Hampshire juries have never been too subservient to the Judges, never since Judge Jeffreys day - and the jury, inflat contradiction of the Judges direction, found the sailor guilty only of manslaughter. The Judge was very angry. He turned to the jury and said to them: "Get out of the box. You are not fit to be there. You have been false to your oaths." They went but they had done their duty. The Judge had to accept their verdict. He had indeed gone too far. As the jury left the Court, they were heard to say: "The Judge was biased." An English jury will not tolerate unfairness. The Judge sentenced the man to fourteen years penal servitude. Counsel suggested to his client that, as he was only found guilty of manslaughter, he might perhaps wish to consider an appeal against the sentence. But he decided against appealing.

THE THIRD VIRTUE - COURTESY The third quality, of which I would speak, is courtesy. The lawyer must not only treat the Judge with courtesy that goes without saying - but he must also treat his opponent with courtesy and the witnesses too. Good policy itself commends this. Many cases have been won by courtesy and lost by rudeness. It is also good manners. It is particularly true of the Bar as of all professions, "manners makyth man." This tradition of courtesy is, however, not one that can be enforced by the court itself. It is enforced by the simple fact that anyone who offends against it forfeits the good will of his fellows; and that is a thing that no one would willingly do. If you should try to force courtesy on to others, you would certainly fail. That is shown by a case from India when a man who was conducting his case in person was opposed by a member of the Bar. The barrister suggested that the man was not being quite frank with the Court, at which he retorted: "I do not keep anything back at all. My fault is that I disclose everything, unlike members of the Bar, who are in the habit of not doing so, and misleading the Court." The barrister was so offended by this accusation that he applied to commit the litigant for contempt of Court. The Court in India held that it was a contempt and committed the man to prison for eight days and fined him 1,000 rupees. But the Privy Council reversed this decision. It was, they said, the sort of tactless and intemperate statement which is not infrequently made in the course of argument and not only by litigants in person. It would have been more consonant with the dignity of the Bar to have ignored such a foolish remark, instead of making a mountain out of a molehill.7 You will remember the story of the attorney who could not attend personally to a case and asked a colleague to do the case for him; but left him a note saying: "No case. Abuse other sides attorney." I do not say that abuse of any kind is to be encouraged. It plainly should not. But it is not by itself contempt of court. In order that words or actions in face of the court should be contempt, they must be such as would interfere or tend to interfere with the course of justice. Discourtesy by members of the Bar is not unknown; but it is never treated as a contempt. Quite recently in a divorce case in Africa, a Judge announcedthat he would give his decision the next morning; whereupon one Counsel asked if he might be excused from attending as he had to be elsewhere. The Judge agreed to this; whereupon the other Counsel promptly asked if he could be excused also. The Judge thought this was going a little too far. He could not give his decision with no one there. So he refused to excuse either of the barristers; and when the first one did not attend, he fined him 10 for contempt of Court. The Privy Council reversed the decision with the remark: "Not every act of discourtesy to the court by counsel amounts to contempt."But it may amount to unprofessional conduct for which a barrister may be brought before his Benchers.8 DISCIPLINARY MEASURES It is, I am glad to say, rare that disciplinary measure, have to be taken against members of the Bar: but the Inns of Court exercise a control over them which is founded on custom and tradition and not on any statute or regulation. The Benchers have power to suspend a barrister from practising and even to disbar him. There is an appeal to the Judges of the High Court. Let me

illustrate this from recent instances. A few years ago a barrister in a public speech accused the Lord Chief Justice of being harsh towards accused persons. This is what he said "The public are entitled to think anyone who holds high judicial office will be a model of courtesy, fairness and impartiality. I cannot express the universal consensus of legal opinion about the manner in which the Lord Chief Justice now conducts criminal trials - I cannot say anything about that." The barrister was charged before his Benchers on the ground that in making the speech he was imputing that the universal consensus of legal opinion is that the Lord Chief Justice conducts criminal trials improperly. He was suspended from practice for four months. Only a year or two ago a barrister made a strange mistake. He was appearing in a dispute between a husband and wife before a Master in Chambers. As it appeared that there would be an acute conflict of evidence, the Master at the beginning of the proceedings, ordered the witnesses out of Court. The case lasted for two or three days and a shorthand note was taken of the evidence. The barrister showed the transcript to some of the witnesses who had been ordered out of Court. This was held to be unprofessional conduct because it was an indirect was of disobeying the order of the Master. The barrister was suspended from practising for six months. It is very necessary that the traditions of the Bar should always be maintained on the highest level. Barristers have been given by our law great privileges. Unlike other professional men, they cannot be sued for negligence. It their advice is wrong, even if it be due to the grossest ignorance, they have nothing to fear. If their statements in court are defamatory and malicious, still they cannot be sued. They are protected by an absolute privilege. These privileges can only be granted in the confidence that they will not be abused; and I am glad to say that they rarely are abused. This brings me to the end of my discourse, and I would leave you this reflection upon it. When you consider the qualities which become a lawyer, it is a matter for pride that throughout our great profession there are so many who have earned and deserved the respect of the people. They are distinguished by their fairness, their honesty, their courage and their courtesy. The temptations which beset them are many but they resist the eviI and do the good. May they ever continue to do so! Endnotes: 1. There is such an inn sign at Kings Lynn and another at Folkestone. 2. Ex p. Lloyd [1822] Montagues Reports, p. 70, note. 3. See "Duty and Art in Advocacy" by Mr. Justice Hilbery, p. 20. 4. Tombling v. Universal Bulb Co. [1951] 2 TLR 289 at 296. 5. Braddock v. Tillotsons Newspaper Ltd. [1950] IKB 47; [1949] 2 All ER 306. 6. Quoted in "Advocacy" by Lord Justice Birkett, p. 19. 7. Quoted in "Advocacy" by Lord Justice Birkett, p. 19. 8. Parashuran Detaram Shamhasani v. King Emperor [1945] AC 264.