Stranded between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice
Nagorcka, Felicity, Stanton, Michael, Wilson, Michael J., Melbourne University Law Review
[In an era of commonality and convergence among different legal systems, the study of comparative legal ethics is important in determining how we assess the merits of developments in our own legal system and profession. The contrast between legal ethics in the adversarial and inquisitorial systems of justice provides an illumination of the differing telos of each system. Whilst there is a significant degree of overlap in the ethical issues confronted by legal practitioners in each system, important differences, particularly in the criminal sphere, reveal very different ethical pressures on advocates. In confronting the danger of 'non-accountable partisanship', the common law practitioner should be aware of the merits and pitfalls of each system, lest calls for reform overlook the foundational differences between the systems themselves.]
CONTENTS I Introduction A Legal Ethics B A Clash of Systems? II Criminal Procedure A French Criminal Procedure 1 Investigation, Committal Proceedings and Pre-Trial Procedure 2 The Trial Stage 3 The Civil Party 4 Evidence 5 Decision-Making B Philosophical Foundations of Inquisitorial and Adversarial Systems of Criminal Justice C Ethical Implications for Criminal Law Practitioners 1 Criminal Defence Counsel 2 Prosecutors III Civil Litigation in the Adversarial and Inquisitorial Systems A Broader Aspects of Dispute Resolution IV Conclusion
We will not at present inquire ... 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; whether it be right that, not merely believing but knowing a statement to be true, he should do all that can be done by sophistry, by rhetoric, by solemn asseveration, by indignant exclamation, by gesture, by play of features, by terrifying one honest witness, by perplexing another, to cause a jury to think that statement false. (1)
This article examines criminal and civil procedure in the inquisitorial and adversarial legal systems, in order to contrast both the abstract ethical foundations of those systems and the concrete responsibilities of those who practise within them. Whilst there is a significant degree of commonality between the two systems with regard to ethical considerations and concerns, particularly in civil matters, each presents distinctive ethical issues to the legal practitioner. We conclude that the adversarial system necessitates unambiguous and prominent ethical rules for legal professionals. This need is a direct product of what David Luban describes as the danger of 'non-accountable partisanship' and the consequent marginalisation of the ethical duty to the court. (2) In contrast, we argue that legal ethics in civil law countries are based on a different conception of the role and responsibility of the lawyer, whereby independence from both court and client is fundamental. The independence of legal practitioners from their clients in civil systems, and indeed the role of judges in such systems, cause ethical concerns to arise that are different from those commonly identified in the adversarial system.
After establishing the philosophical premises of this article, we consider criminal procedure in civil law countries, focusing primarily on the French experience. We outline the process of a French criminal trial, examine the ethical issues arising from this process and contrast the role of the French avocat with that of an Australian criminal law barrister. We then examine the similarities and differences between the process of civil litigation in each system, where commonalities are more readily evident. Finally, we conclude that whilst there is not as stark a clash between the systems as is sometimes assumed, Australian lawyers should not ignore the different approaches to legal ethics adopted in civil law countries. …