(Excerpts from “The Great Power at the Bar and Bench” [1972], N. Birkettt, 430-431)
We in England have an unwritten law—the unwritten law is frequently much more powerful than the written—that every counsel, whoever he may be, has no right to decline any brief that may be offered to him except for good and sufficient reason. In my own practice at the English Bar, I have frequently had to undertake murder cases of the greatest complexity and difficulty, not because I wanted to but because of the unwritten law that I could not refuse them. It was Lord Erskine, perhaps the greatest advocate who ever trod Westminster Hall, the great Erskine, when he undertook the defense of Tom Paine—and you may read it in the State Trials—was the subject of the fiercest criticism by political parties in England because he undertook that defense. And on that memorable occasion in Westminster Hall, Erskine laid down the first rule with regard to the English advocate. "When the day comes", said Erskine in the course of that magnificent defence, "that the advocate in England is permitted to choose whom he will and whom he will not defend, and becomes not the advocate but the judge in the cause, at that moment the liberties of the citizens of England are at an end".
And that quality, the result of the unwritten law that the advocate trained in the law to defend the citizen, shall be available to the citizen, is one reason why the lawyer in England is unpopular. Why, it is said, does the lawyer affect views in which he does not believe? He puts forward to the Court submissions which lie may or may not think sound, but that is the role of the advocate. What the public will never understand is that the man who stands there to plead is not pleading his own view. He may be putting forward a view of which he profoundly disapproves; but he is putting forward, for the client, the view of the client.
We had a famous case in England of an advocate appearing for a prisoner, who in the midst of an impassioned speech to the Court stopped and said: "Now, Milord, I will lay aside the role of the advocate and I will assume the role of the man". And Milord upon the bench said:
"You have no right to do any such thing. The only title by which you may be heard in this Court is that you speak as an advocate."
And the great Lord Brougham in his famous defense of Queen Caroline carried the doctrine to an extreme length when he asserted before the Court that the duty of a counsel to his client was so deep and so strong that it in fact over-rode his duty to his country. That is a proposition to which, I am quite sure, you of the Bar would not agree; but it is an illustration of the length to which the doctrine of the advocate speaking for the client may go.
And when you find great prose writers like Swift saying of advocates that they are men bred in the art of proving "that white is black and black is white, according as they are paid", it is because of the great virtue of the advocate that he is there to present the view of the client. And it leads me to say this further thing: Because of that duty, because of that responsibility, there are certain qualities of the advocate about which I hope you will allow me to say a word or two tonight.
Just let me say before I do it, that I don't pretend for one moment to give anybody advice about advocacy. I expect there are plenty of people who now hear me speak who are quite as competent to talk about the elements of advocacy as I am, but it is a subject on which we are all interested and therefore, perhaps, with humility and with deference, you will allow me to make a few observations about it.
