Webster’s Dictionary defines “zeal” as “eagerness and ardent interest in pursuit of something.” Zeal has initiated much debate among legal professionals. What does it mean to be a zealous advocate? Is zealous advocacy even permissible in today’s practice of law?
This article discusses the expectation among clients that their attorneys serve as their zealous advocates, and will present a common scenario under which zealous advocacy could be invoked as an excuse for scorched-earth litigation and personal attacks. It will also offer a framework for the application of zeal in legal advocacy, as well as reasons why clients and the legal profession are best served only when zealous legal advocacy co-exists with civility and professionalism.
How Much is that Doggie in the Window?
Every lawyer has heard from a client or potential client one time or another: “I want a lawyer who is a bulldog,” but what does this mean? Is the client expressing a desire for an attorney who imparts a “win-at-all-costs” tactic, and who will chew up and spit out the opponent using any means necessary? Or is the client instead simply asking for an attorney who will ardently work to present the case with a results-oriented approach?
Consider the following hypothetical: The Smith family is in the business of developing and building single-family homes. The homes are of unparalleled quality and style. The family patriarch started the business more 35 years ago. Over the years, the Smiths have earned a reputation for being honest, straight-dealing businesspersons who treat others fairly and with respect. Now, each of the four children work alongside their father and their families depend on the business.
As with many other homebuilders, the family business was hit hard by the recent recession. In order to save their most valuable project from foreclosure, the Smiths entered into an “early repayment agreement” with a group of individuals who had purchased the $11 million note that encumbered the Smith’s project from Community Bank.
Under the early repayment agreement, the Smiths agreed to hire the note purchasers’ sister business to create conservation easements and sell tax credits that were attendant to the easements. If the Smiths could achieve $8 million in tax credits and home sales from the project within one year, the note purchasers would forgive the balance of the $11 million note and the personal guaranties made by Mr. Smith.
The early repayment agreement went terribly awry. The Smiths were angry and felt duped. In hindsight, the Smiths perceived that the note purchasers purposely thwarted them from performance under the early repayment agreement and believed that the note purchasers had planned to grab the collateral and run the housing project all along. They viewed the note purchasers as perpetrators whose dishonesty was going to ruin the family business. As a result, the Smiths wanted blood, and then they wanted justice. They said they wanted a “pitbull lawyer”—someone who would really “stick it to” the other side.
Lawyers face scenarios such as this one every day and it is up to attorneys to show clients that “pitbull” lawyer tactics are not acceptable in the legal profession and that instead, the lawyer who imparts zeal by being an ardent advocate, while maintaining civility and professionalism, is most effective. Thus, the question becomes: What is the template for the zealous, civil advocate?
A Template for the Zealous, Civil Advocate
Zealous, civil advocacy begins with a study of the ABA Model Rules of Professional Conduct. It bears noting that the ABA Model Rules of Professional Conduct no longer contain the word “zeal.” ABA Model Rule 1.3 previously read, “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” [1] The ABA Model Rules of Professional Conduct adopted in 1983 removed the word “zeal,” and Rule 1.3 now states that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” The comments to ABA Model Rule 1.3 do reference zeal, and define the confines where zeal should be employed,
A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. [2]
Despite its removal from the text of Rule 1.3, “zeal” is also utilized in the ABA Model Rules of Professional Conduct Preamble and Scope at paragraph 9. The confines of zealous advocacy are specifically stated and provide helpful guidance on zealous advocacy. Paragraph 9 states:
Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation 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. [3]
As set forth by the above commentary, zeal is appropriate for a lawyer to employ, and as posed by the hypothetical scenario, clients want zeal from their lawyers. However, lawyers must draw the line and refrain from uncivil, unprofessional tactics. Lawyers must employ courtesy to one another and to all others who are involved in the legal system.
This is especially true given that unfair and unproductive win-at-all-costs tactics are not helpful, and are not generally rewarded by the courts. For example, consider Chevron Chemical Co. v. Deloitte & Touche [4] wherein the trial court found that Deloitte’s counsel obstructed discovery, violated court orders, misinformed opposing counsel about the availability of a witness and made unfounded accusations at opposing counsel. As a result of such behavior, the court found that “entry of judgment as a sanction for Deloitte’s unprofessional, aggravated, persistent, and contemptuous disregard of the orders of the court is appropriate.” [5]
Also consider In re South Beach Community Hospital, wherein one attorney said to a bankruptcy judge presiding in the U.S. Bankruptcy Court for the Southern District of Florida, “I suggest with respect, your honor, that you’re a few French fries short of a Happy Meal in terms of what is likely to take place.” [6]
As a result of the attorney’s conduct, the bankruptcy court issued a show cause order as to why an order admitting him to practice before the tribunal pro hac vice should not be revoked. In the end, the attorney’s lack of respect to the court resulted in removal from his post as head of the bankruptcy department of his firm, as well as the added requirement from his firm of performing 200 hours of pro bono legal services. The bankruptcy court also required the attorney to take a professionalism class. [7] Surely, this was not the sort of zealous advocacy that the client hired its attorney to perform. Lawyers who fail to employ professionalism and civility do not serve their clients or their profession well. “The administration of justice…is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful and efficient manner.” [8]
As for the Smiths, their attorney knew that despite the anger and hurt that the Smiths felt toward the note purchasers, high legal costs and time spent in hostile battles, criticism and attack would not be helpful. They needed resolution, as they would get much more satisfaction from returning to their business of building homes rather than sitting in courtrooms and depositions.
During counsels’ first meeting they agreed that “this is our clients’ fight, not ours.” From that moment on, as part and parcel to the zealous advocacy from both sides of the aisle, both sets of counsel treated one another with respect and civility. In the end, the attorneys’ ability to be zealous, civil advocates for their clients served everyone well. The attorneys helped their clients reach a settlement, resulting in a savings of hundreds of thousands of dollars in legal costs, and months of time that would otherwise been spent in litigation. The Smiths are now building houses once again, and the note purchasers received final payment on their investment.
The lesson learned? Ardent representation combined with civility and courtesy won, and generally wins the day for everyone.
1. Model Rules of Prof’l Conduct R. 1.3 (emphasis added).
2. Model Rules of Prof’l Conduct R. 1.3 cmt.
3. Model Rules of Prof’l Conduct (Preamble).
4. Chevron Chemical Co. v. Deloitte & Touche, 501 N.W.2d 15 (Wis. 1993)
5. Id. at 22.
6. Goldberg v. Mount Sinai Medical Center of Greater Miami Inc. (In re South Beach Community Hospital), Adversary Proceeding No. 07-1210, Order Discharging Show Cause Order (Paper Number 47).
7. Id.
8. See Standards For Professional Conduct within the Seventh Federal Judicial Circuit at Preamble.