A colleague, perhaps seeking to make me, as an Anglophile, feel a tad more comfortable with our insupportable form of government in this state, passes along the following e-mail exchange:

Brad
    I pass along a conversation with a constitutional law expert on whom I rely frequently. I thought you’d find the ideas about our system of government interesting. (I’ve turned the notes around so you can read them in order.)

1. I ask whether there is some line, some standard that prevents attorneys from making outrageous statements to the court like the one the Legislature’s attorneys made when they DENIED that the one-county laws I wrote about in today’s column were one-county laws in violation of the constitution.

2. I get this elaboration of an earlier oral answer:

Cindi, this quote is taken from State v. Wright, 271 SC 534, 248 SE 2d 490 (1978).It somewhat summarizes what you were asking about.

Even if a defense is not recognized at the time of trial, an attorney will not violate the Code by asserting it if his position “(can be supported) by a good faith argument for an extension, modification, or reversal of the law.” Disciplinary Rule 7-102(A)(2). To understand the requirement this rule places on attorneys, one must understand the words “good faith.” It is made clear by Ethical Consideration 7-4 that an attorney’s personal belief that a defense will fail is no evidence of bad faith:

The advocate may urge any permissible construction of the law favorable to his client, without regard to his professional opinion as to the likelihood that the construction will ultimately prevail. His conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous.

Bad faith has been found in cases of repeated, groundless vengeance suits, In re Sarelas, 50 Ill.2d 87, 277 N.E.2d 313 (1971), or deliberate, knowing misrepresentations to the state of law. In re Clark, 96 Idaho 889, 539 P.2d 242 (1975). The spirit of these cases is that to prove lack of good faith, one must prove some sort of evil intent. There is absolutely no evidence that defense counsel had such intent. The transcript makes clear counsel’s good intent to do the best job he could for his client:

3. My response:
Thanks for sending that. Pretty high bar, particularly when you’re living in the Legislative State, where judges, in order to become judges, must swear an oath to assume that everything the Legislature does is constitutional. (I exaggerate only slightly.)

— Cindi

4. My expert responds:

I agree. Incidentally, my theory is that except perhaps at the appellate court level, the judiciary is in many ways simply an extension of the General Assembly. I think more often than not trial courts approach a matter much as a legislative committee would. What is fair here? What is "equitable"? What interests are involved? Who are the lawyers? This goes back to the time of legislative supremacy in England.

5. I respond:
Why am I not surprised that our system of justice would parallel a system borne of legislative supremacy?

6. My expert responds:

We are today and always have been more heavily influenced by British institutions than any other of the original thirteen colonies. The governor and the constitutional officers were appointees of the legislature until the end of the Civil War. This therefore was more in line with a parliamentary system. While we purport to accept separation of powers, it remains even today within the context of legislative supremacy.

Consider thyself edified.