![handle is hein.journals/lethics13 and id is 1 raw text is:
Editorial
Duncan Webb and Christine Parker
This issue of Legal Ethics has a decidedly practical focus. A frequent criticism of academic
discourse on ethics is that it can appear to have little to do with real lawyers' day-to-day lives.
It is therefore important that a journal of this nature be a forum for scholarship in 'applied'
legal ethics as well as fostering endeavour at the forefront of the meta-ethical and political
theory that underpins legal ethics. Perhaps the most difficult task is to show that the two are
not only linked but in fact interdependent.
The tension between the role of the lawyer as an assistant of the court and their wider
obligations to their client and the 'administration of justice' is brought into stark relief by
the article by Pam Stewart and Maxine Evers concerning the emerging obligation on a lawyer
to certify 'reasonable prospects of success' in litigation. The idea of a lawyer as a screen or
filter of undeserving actions fits very poorly with what is widely called the 'standard
conception' of lawyers' obligations to their clients.
Such impositions reflect the growing frustration of adjudicators with claims that are
baseless and sometimes an abuse of process. Traditionally, frivolous or hopeless actions have
been discouraged by adverse costs orders against the litigant, or in serious cases against the
advocate. However, the threshold has generally been very high. In one case the Privy Council,
in rejecting the proposition that it was improper for counsel to assist in bringing a case
knowing that it was hopeless, stated:1
As a general rule litigants have a right to have their cases presented to the Court and to instruct
legal practitioners to present them on their behalf ... the public interest requires that the doors
of the Court remain open. And on the whole it is in the public interest that litigants who insist on
bringing their cases to Court should be represented by legal practitioners, however hopeless their
cases may appear.
It appears from the Stewart/Evers article that this is no longer the case in Australia and that
successive legislative interventions are requiring lawyers to increasingly subdue their efforts
where the litigant has limited prospects of success. One of the real difficulties for such an
approach is that sometimes it is in the wider interests of justice to bring a case even though
it not only has limited prospects of success, but is in fact doomed to fail. Such a tradition
dates back to the trial and conviction of Thomas Paine for sedition.
Stewart and Evers traverse a number of court decisions on the legislative provisions that
they identify. One of the common threads appears to be an inherent suspicion on the part
1 Harley vMcDonald [2002] 1 NZLR 1, [67].](ViewImageLocal?handle=hein.journals/lethics13&div=1&collection=&method=preview&ext=.png&size=3)
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