The idea of zealous advocacy, which is evolving in the modern era, has been around for just over 200 years.
The concept is thought to have originated with a British barrister, Henry Lord Brougham. In 1820, he represented Queen Caroline who, at the time, was charged with adultery. As part of his defense, Lord Brougham threatened to disclose the secret marriage of Queen Caroline’s husband, King George IV.
The notion of exposing the king was beyond scandalous, but Lord Brougham saw no problem with it, famously proclaiming:
An advocate by the sacred duty which he owes his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means—to protect that client at all hazards and costs to all others, and among others to himself—is the highest and most unquestioned of his duties; and he must not regard the alarm—the suffering—the torment—the destruction—which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate should unhappily be to involve his country in confusion for his client’s protection.
As the first American codes of ethics were drafted in the ensuing decades, this quote is thought to have been the forebearer of the canons requiring a duty of “zealous representation” by a lawyer.
In fact, the comments to ABA Model Rule of Professional Responsibility 1.3 still require “zeal in advocacy.”
Many state codes of professional conduct, however, have completely removed the word “zeal” and instead require a simple duty of diligence.
So, what’s the problem with zealous advocacy today? Perhaps the more important question is whether zealous representation is still required at all. And if so, what does it mean? This article will explore those concepts.
What’s wrong with zeal?
Lawyers are a competitive bunch. Every day, they’re competing to sign clients, win court cases, and negotiate favorable deals.
This leads many lawyers to practice with the mantra of “winning at all costs.”
The problem with this ideal is that it can quickly turn zealous representation into overzealous representation. In fact, in removing the concept of zeal from its rules of professional conduct, the State of Ohio reasoned that “‘zeal’ is often invoked as an excuse for unprofessional behavior.”
This sort of overzealous representation comes in many forms, but usually involves a lawyer whose conduct straddles the line between ethical and unethical.
It might be the practice of producing 300,000 documents when only 35 are responsive to document requests – solely for the purpose of burying information harmful to the client’s case.
Or when a corporate attorney practices can-do lawyering – essentially giving advice that the client wants to hear rather than advice reflecting the most realistic potential legal outcomes.
Or when a defense attorney gets into a physical altercation with an investigator for the District Attorney’s office.
Or when an attorney simply makes threats of physical violence against an opponent.
While these kinds of tactics may not violate the letter of any of the model rules, they certainly do a disservice to clients, litigants, courts, and the practice as a whole. Perhaps not surprisingly, through the years, many lawyers have become a little too zealous so that the boundaries between ethical and unethical became a little too blurred.
In the words of one commentator, “the legal profession is the last bastion of unfettered, unapologetic nastiness, proudly flying the flag of zealous client representation.”
As a direct or indirect consequence of this sort of slippery-slope lawyering, states started removing the requirement of “zeal” from their professional conduct codes.
Has zealous representation really disappeared as a duty?
As noted above, many states like California have removed the phrase “zeal” from its Code of Professional Conduct, opting instead for the aforementioned duty of diligence.
Nonetheless, California courts seem to believe in the concept of zeal. In fact, that state’s Supreme Court has recognized that “[z]ealous advocacy in pursuit of convictions forms an essential part of the prosecutor’s proper duties.”
There’s no reason to believe other types of lawyers should act with any lesser standard of advocacy.
Other states, like Arizona, have gone one step farther.
Not only did that state remove “zeal” from its code of professional conduct, it has also enacted other rules demanding respectful conduct from attorneys. For example, Arizona Ethics Rule 4.4 requires that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden any other person.”
Most other states fall somewhere in the middle.
So, what does all this mean for the practice of law today?
How to zealously represent clients in modern practice
Ultimately, modern legal practice seems to demand zealous, yet highly ethical, representation.
Perhaps the Preamble to the ABA’s Model Rules of Professional Conduct describes the modern duty best. It says that a lawyer has an obligation to “zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”
Stated another way, “be a great lawyer for your clients without being a jerk.” Seems like an easy enough mandate, don’t you think?