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Lord Pannick advanced two key reasons that justified the advocate’s role, indeed duty, to defend even the worst clients. First,
“[t]he role of the advocate is to ensure that when judges and juries come to make up their minds, they are assisted in their dif- ficult task by having the competing argu- ments on each side put before them as pow- erfully as possible.” Second, “the rule of law requires that the State does not send people to prison; the State does not impose civil li- abilities to pay damages; and the State does not decide [any] dispute without giving the person concerned the opportunity to be heard, whether or not it makes any differ- ence to the results.”
But while a fair process values the right to be heard as essential, very few people are able to plead effectively in their own defense. That is why “there needs to be a profession – us, a profession of advocates – to ensure that their points are put as effectively as possible. These principles need to be articulated from time to time because criticisms of counsel for performing their job continue to be made by people who ought to know better, at least in the United Kingdom.”
“One other example, William Kuntsler, the radical attorney best known, I think nowadays, for acting for the defense in the Chicago Seven tri- al in 1969, was reported as saying, “I’m not a lawyer for hire; I only defend those I love.” Well, that’s not the principle of advocacy, which I and most counsel, apply. If I had confined my advocacy to those cli- ents I loved, I would’ve been unemployed for large parts of each year.”
Lord Pannick, with deep erudition and sparkling humour, illustrated his thesis by referring to a number of great advocates and judges, and even a cartoonist:
“A role model, it always seems to me, for the advocate is the defense attorney. In Jack Ziegler’s New Yorker cartoon in 2008, an attorney stands up in court next to his client, a whale, and tells the judge, “Ob- jection, Your Honor, alleged killer whale.” The function of the advo- cate, as Justice Felix Frankfurter explained in 1955, is not to enlarge the intellectual horizon. Their task is to seduce, to seize the mind, for a predetermined aid; not to explore paths to truth. And this is an ancient principle. Two thousand years ago, here in Rome, Cicero boasted in his defense of [a client] that his speech had thrown dust in the eyes of the jury; that was his boast.”
“The skills of some eminent lawyers have highlighted this moral equiv- alence of advocacy, moral ambivalence of advocacy. It was said of Ru- fus Choate in 1859 that because of his courtroom skills, thieves asked about his health before they began to steal. More recently, the Cali- fornia defense attorney, Leslie Abramson, was described by one of her clients, a contract killer, as so good that ‘for a while there, she even had me believing I didn’t do it.’”
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