Martha Costello QC from Silk is a member of a profession that is defined by the adversarial system. Her primary allegiance is to the law as it directs her to the principles of partisanship. Although you may not always agree with the way she runs her cases, Martha prompts us to consider our own legal ethics and the way we would approach similar matters…
She willingly embraces the founding principles of our legal systems; passionately believing that every person is innocent until proven guilty and that justice must not only be done but also be seen to be done. She demonstrates to us the ethical importance of these principles.
She somewhat submits to the ‘cab rank’ theory in accepting any brief which her clerk thinks appropriate, and conducts herself on the basis that she is not held professionally or morally accountable for the moral standings of her clients and the instructions they give to her.
Martha maintains a neutrality not only in her acceptance of clients but also in the conduct of their defence, despite any conflict which may exist between the client’s morals, what is expected of her as Counsel and her own morals.
But that is not to say that she has never felt uncomfortable – she has been inclined to protest to her clerk regarding the allocation of a case; in particular a sexual assault case in circumstances where she feels the system unfairly treats the complainants. During the same trial, she zealously defends her client’s position by attacking the complainant in court, which was a tactic she was personally against.
Martha’s commitment to the aggressive and single-minded pursuit of the client’s objectives is not something all law students would agree with, but the example illustrates the difficulties many advocates can face in reconciling their professional obligations with their personal ethics. It also demonstrates how important maintaining the faith of clients is for the survival of the adversarial system.
Yet Martha has waivered in her sole allegiance to her client. For example, in a matter where she was acting for the Crown and her opponent was not fighting for his client’s objectives to the standard that she would have, in a rare moment of moral activism, she essentially threw the case.
Even if you don’t agree with her ethics, Martha’s ability to put her personal feelings aside when required and to use them when she knows it will benefit her client best is something to be appreciated and respected – and maybe even to learn from.
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