Honesty in advocacy

You must be scrupulously, meticulously honest at all times. Nothing else is as important. Eloquence, cleverness, and wit are all useful, but employed by the dishonest advocate they are revolting tricks, utterly inimical to justice.

And the temptations to dishonesty are manifold for an advocate.

Take a simple example. Your client is charged with rape. The defence is consent. You might well believe he is falsely accused. When giving evidence he suddenly says, for the first time, that the woman had said something that might suggest she was willing to consent: “you have beautiful eyes, come back to my place for coffee” or some such. Nothing along those lines had been said in his defence statement, the formal document which was served weeks before the trial, setting out his defence. Not surprisingly the prosecutor has spotted this, and he suggests that this part of his evidence is a recently made up embellishment. Your client is squirming, trying to explain why it is not.

There are really only two possibilities: either his lawyers had been told but had carelessly omitted to put that important detail into the defence statement (a perfectly plausible scenario); or the defendant had not told them and the prosecution may well be onto something.

Only the defence legal team can know which it is. If the truth is that they have made an error the defence barrister will lean over and have a quiet word with the prosecutor:

“He did actually say that to me when we first met, and the reason it is not in the defence statement is because I stupidly forgot to put it there.”

If that is said, nine prosecutors out of ten will accept defence counsel’s assurance as true and will unreservedly withdraw his suggestion of recent invention.

On the other hand the prosecution point may be a good one and the reason the detail was not mentioned in the defence statement is that the defendant had not told his lawyers before. Now, the temptation for the dishonest lawyer is to lean over and lie; to say the defendant had in fact mentioned the detail before and the explanation is the lawyer’s mistake. If he does so, again the chances are high that his assurance will be accepted, and the prosecutor will abandon the point.

But the trial will then have become a travesty and justice corrupted.

In just the same way huge trust is placed in the prosecuting advocate. For example if he comes across information that might assist the defence, he must reveal its existence immediately. Sometimes this may lead to an otherwise strong case falling apart. But the alternative, that a prosecutor should cynically conceal a helpful document from a defendant is far worse. That would turn a prosecution into a persecution.

So never, ever succumb to the temptation to be dishonest. Never bend the truth, never mislead, never trick. If you do, then you will correspond to the stereotype of the cynical and dishonest lawyer that the public, quite rightly, despises. What is more, once you are discovered, even if you are not drummed out of the profession as you should be, your reputation will lie in ruins.

And in fact a reputation for honesty is a huge asset. If your opponents and judges once begin to doubt your honesty you will find it far harder to get what you want.  Quite understandably nothing will be taken on trust, you will have to prove everything. Nobody will believe what you say. And that, for an advocate, is a considerable handicap.

One thought on “Honesty in advocacy”

  1. I’ve had to deal with dishonest prosecution barristers and dishonest solicitors.
    I think they’re dishonest because they overestimate their own intellect in relation to that of others’ and try to cover up their mistakes in case work with lies – most of the Liars also have unresolved psychological problems so they cannot bear to ask their client if they are lying; and they cannot bear to think that they have genuinely been misled by malicious clients. this is frequently the situation for nhs & social care whistleblowers who have to defend actually protecting the patients from the malicious prosecutors. It hurts their pride to ‘lose’ a trial because they have fragile egos that distract them from the whole point of the legal profession – to find out the truth.

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