Oregon State Bar Bulletin — JULY 2005

Bar Counsel
WHITHER ZEAL?
Defining ‘zealous representation’
By Sylvia Stevens

The 1908 ABA Canons of Professional Ethics required lawyers to pursue their client’s objectives with "warm zeal." The 1969 ABA Code of Professional Responsibility (adopted in Oregon in 1970) exhorted us to represent clients "zealously within the bounds of law."1

The ABA Model Rules of Professional Conduct take a decidedly different view. No rule requires zealous representation. Rather, the emphasis is on competent and diligent representation. The term "zeal" appears in the preamble, both times in reference to litigation,2 and in the comment to Model Rule 1.3. The rule itself requires that a lawyer act with reasonable diligence and promptness in representing a client. Comment (1) explains that "(a) lawyer must also act with commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf." That suggestion is at the same time diluted by the next sentence: "A lawyer is not bound, however, to press for every advantage that might be realized for a client."

The Oregon RPCs arguably require even less. Unlike Model Rule 1.3, which requires a lawyer to act with reasonable diligence and promptness, Oregon RPC 1.3 retains the language of former DR 6-101(A) and prohibits a lawyer only from neglecting a legal matter entrusted to the lawyer." Moreover, because the Oregon RPCs have no preamble or comment, they are devoid of any reference to zeal or zealous representation.

It certainly appears that we can no longer be disciplined for failing to provide zealous representation. Does this mean that lawyers no longer have a duty of zealous representation? I think not.

The concept of zealous representation has a long tradition in the profession. I suspect, if asked to describe in one word the primary responsibility of lawyers, most of us would say it is zealousness. I also believe that our clients expect us to provide zealous representation. There are other clues that also suggest zealousness is not a historical relic, and that even the Model Rules recognize the its continuing validity. "The Rules do not…exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law." Scope (16). In the same vein, one well-known commentator has observed that despite the differences in language, "the ethical obligation was implicit under the Code…and the obligation is confirmed and put more directly in Model Rule 1.3."3 Apparently, however, we are to derive by interpretation that which is not expressed clearly in the rules.

How did we come to this point of having such a tepid standard of zeal? Some critics suggest that the Model Rules were crafted in the late 1970s and 1980s to improve the image of the profession.4 Given the public perception of lawyers in response to the perceived and real abuses of the legal system uncovered by Operation Greylord and Watergate, that view is not so far-fetched. There were, nevertheless, other, more widely accepted reasons for drawing back from the express commitment to zeal.5

For one thing, despite the clear prohibition in the rules about exceeding the bounds of law or the rules themselves, there was concern that "zeal"6 might be misinterpreted to mean zealotry,7 which would excuse unethical or otherwise improper conduct carried out in the name of furthering a client’s interests. Even within the bounds of law, it is argued, client loyalty cannot justify fanatic or extremist behavior. Another objection to the term "zeal" is that it can be misunderstood as requiring a personal emotional involvement with a client’s cause instead of an objective and independent professional commitment. Finally, it is not clear how zealousness applies in so-called nonadversarial situations, such as office advice and transactional work.

Our emphasis on professionalism and civility in recent years has focused on courtesy, fairness and fair dealing. We have tended to characterize professionalism as the opposite of zealous representation. At the same time, clients expect a lawyer to provide more than technical competence and diligence. They want an advocate or counselor who cares about their success. Every study of client attitudes about lawyers reveals that clients don’t gauge the value of lawyers by how they dress, by the décor in their office or even by whether they prevail on the client’s behalf; they value us by the extent to which we care about their legal matters and how we manifest that concern. Stated another way, people don’t care how much you know until they know how much you care.

A lawyer need not identify with or even agree with a client’s goals in order to be a zealous advocate. The lawyer-client relationship is one of agency in which two different and independent people have a unity of interest. Just as an agent is not required to do anything and everything a principal requests, the role of agent is not inconsistent with the role of advisor. Too much identification with the client may cause the lawyer to be a zealot instead of zealous. In fact, the professional ideal is a lawyer who disagrees fundamentally with the client but who can nevertheless provide independent advice and pursue the client’s objectives with eagerness, diligence and a degree of passion for the cause. At the other end of the spectrum is the lawyer who is dismissive of the client’s objectives, whose personal dislike for the client or the client’s aims causes the lawyer to act half-heartedly.

The fact that even a virtue taken too far can become a fault, that unchecked zeal might become zealotry, doesn’t mean that zeal is bad – or that we should abandon it as a professional norm. What, then, is the lawyer’s duty of zealous representation? I offer a two-part definition. First, there must be partisanship, in the sense of caring that the client prevails in whatever is at stake, combined with emotional energy and commitment to the representation. Second, there must be a degree of independence, which allows for dispassionate judgment to prevent losing sight of legal and ethical boundaries as well as the risks of contemplated actions.

In a nutshell, zealousness means doing your best and being dogged in pursuit of the client’s aims within the bounds of the law and the ethical rules. It is compatible with civility and courtesy and, in my humble opinion, the highest manifestation of professionalism.

Endnotes

1. This phrase was Canon 7 of the ABA Model Code, which became the title of Disciplinary Rule 7 in the Oregon Code of Professional Responsibility. The title of DR 7-101(A) was "Representing a Client Zealously." The language of the actual rule did not mention zeal, however, and was cast in negative and passive terms: a lawyer was not to intentionally "fail to seek the lawful objectives of a client through reasonably available means permitted by law and these disciplinary rules." This was further tempered in Oregon by language clarifying that a lawyer did not violate DR 7-101(A) by "avoiding offensive tactics" or by treating others with "courtesy and consideration."

2. "As advocate, a lawyer zealously asserts the client’s position…" Preamble cmt. (2). "…(W)hen an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is begin done." Preamble cmt. (8).

3. G. Hazard & W. Hodes, The Law of Lawyering, Third Edition, (Aspen Publishing: 2001), §6.2.

4. See, e.g., M. Freedman, Understanding Lawyers’ Ethics, (Matthew Bender: 1990) at pp. 5-6.

5. G. Hazard & W. Hodes, supra.

6. According to Webster Illustrated Encyclopedic Dictionary, (Tormont Publications: 1990), zeal is synonymous with passion: "enthusiastic and diligent devotion…fervent adherence…ardent commitment."

7. Zealotry is "excessive zeal, fanaticism." Webster’s, supra.

© 2005 Sylvia Stevens

ABOUT THE AUTHOR
Sylvia Stevens is OSB assistant general counsel and administrator of the Client Security Fund. She can be reached at (503) 620-0222 or (800) 452-8260, ext. 359, or sstevens@ osbar.org.


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