Page 35 - ACTL_Win23

Yet Lord Pannick acknowledged that there must be limits to what the advocate is entitled to do in defense of his or her client:
“We must not mislead the court, for example, by misrepre- senting what a witness has said or by concealing binding au- thorities. There is a fine but important line between moving the court or trying to move the court in the direction of our clients’ interests and impermissibly misleading the judge or jury. If, as has been alleged, one of the defense counsel in the O.J. Simpson murder trial replaced on the defendant’s bed- side table a nude photograph of the defendant’s girlfriend with a photograph of the defendant’s elderly mother, fully clothed, when the judge and jury came to view the house, that was a clear case of misleading the court.
“You must not abuse your role as an advocate, for example, by making statements or asking questions merely to insult, to humiliate, or to annoy a witness or any other person. And you must speak and act respectfully towards the court and towards your op- ponents, however great the provocation and often it will be very great.
“There are important limits to what counsel may say on behalf of the client. A North Carolina attorney understandably faced disciplinary charges in 2015 for his comments in pleadings to the state supreme court about the court of appeals judges. This was his pleading: ‘Had I known the level of intellectual functioning and maturity of this panel in advance, I would have come prepared with a colouring book with big pretty pictures to illustrate my points.’”
While there are some limits on the advocate’s duty to his or her client, the advocate’s job is to speak for clients, however unpopular they may be or reprehensible their conduct may because:
“Once you start to reject clients associated in controver- sial views of conduct, people will assume that any client you do represent has your approval and you will then be judged by the clientele that you keep and unpopular litigants will find it much more difficult to obtain com- petent representation.
“There’s no professional duty to like an obnoxious client or to maintain other than a professional contact with them. After the great Edward Marshall Hall secured an acquittal in London for a defendant accused of disrep- utable conduct earlier in the 20th century, the client asked to shake his hand. Marshall Hall refused: ‘No, that is not included in the brief fee.’”
As Lord Pannick so artfully demonstrated, while some may denounce the advocate who represents unpopular people and controversial causes, we should instead cel- ebrate the role of the advocate. For the role of advocate “confers great privileges and it imposes great responsibili- ties; it is a role vital to the rule of law.”
Guy J. Pratte Toronto, ON
WINTER 2023
JOURNAL 34