It’s Time to Get Rid of the “Z” Words
By John Conlon Managing Attorney – Eastern Regions SAFECO Insurance Companies 1 Although lacking scientific research on this point, I nevertheless am convinced that there is a causal connection between incivility in the legal profession and zealous advocacy. All too often those who engage in acts of incivility give their ethical duty of “zealous advocacy” on behalf of the client as an excuse for everything from simple rudeness to outrageously offensive behavior at depositions and even in the courtrooms. Sadly, among all too many attorneys today, zealous advocacy is not viewed so much as an ethical responsibility as it is a weapon to use to club opponents.
What Do the Rules Say about Zeal? Once upon a time, all attorneys were required to be good zealots on behalf of their clients. The duty of “zealous advocacy” to a client can be traced back to a requirement in Canon 17 of the 1908 edition of the ABA Canons of Professional Ethics. This requirement of zealous advocacy was later incorporated into the Model Code of Professional Responsibility that was adopted in 1969. 2
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The views expressed in this article are those of the author and do not necessarily represent the views of SAFECO Insurance Companies. 2 Model Code of Professional Responsibility (1986) at pp. 63 & 72.
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The Model Code was replaced by the Model Rules of Professional Conduct adopted by the ABA House of Delegates in September 1983. 3 The duty of zealousness found in the various parts of the Code was specifically replaced by Model Rule 1.3 that requires a lawyer only to “act with reasonable diligence and promptness in representing a client.” 4
Lest there be any doubt that the old standard of zeal was in fact being replaced, the Comments to Rule 1.3 in the Annotated Model Rules comparing the Model Rules to the Model Code succinctly state that “Rule 1.3 substitutes reasonable diligence and promptness for zeal.” 5 As if to put an exclamation point on this, the Comments to Rule 1.3 also cite to a Minnesota Appeals Court opinion that “a trial lawyer cannot be a zealot.” 6
The adoption of a new standard of “reasonableness” in the Model Rules specifically meant to replace the standard of “zeal” in the old Model Code should have put an end to any notion that an attorney has a present day ethical duty to be a zealous advocate on behalf of a client. Unfortunately, the drafters of the Model Rules failed to seal the deal.
The Preamble to the Model Rules provides that “(a)s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system” and also that “a lawyer can
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The Model Rules have been adopted by 41 states although a number of states still have them under consideration for adoption. Most all of the states that have adopted the Model Rules adopted them as approved by the ABA House of Delegates. However, with regard to Rule 1.3, MA and DC have added the requirement of “zealousness” to the standards of “reasonable diligence” and “promptness.” 4 Annotated Model Rules of Professional Conduct (3rd ed. 1996) at p. 25.
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Id. at p. 26. Id. citing State v. Richardson, 514 N.W.2d, 573 (Minn. Ct. App. 1994).
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be a zealous advocate on behalf of a client.” 7 To add even further confusion to the matter, another Comment to Rule 1.3 provides that attorneys should “act with zeal.” 8
It should be noted that the Model Rules specifically provide that the Preamble and the Comments “do not add obligations to the Rules.” 9 Strictly speaking, then, attorneys today are under no actual ethical obligation pursuant to the Model Rules to be “zealous advocates.”
What’s Wrong with Zeal? When you stop to consider the matter, it is not logical to believe that an attorney can adhere both to an ethical standard of “reasonableness” and an ethical standard of “zealousness” at the same time. Only in giving strained interpretations or relying upon secondary meanings can the two terms be made compatible.
There is also something else at work here. The meaning of words often change over time. For instance, the word “cool” or the term “far out” did not have the same meanings at the turn of the last century as they do today. Similarly, the words “zeal” or “zealous” mean something different today than they did in 1908.
Ask most people today how they would define a “zealous” person and they will likely respond that a zealous person is probably a religious fanatic or worse still, something
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Id., at p. xv. Id. at p. 24. Id. at p. xvi.
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akin to a terrorist. Indeed, Black’s defines zealot as “a word commonly taken in a bad sense, as denoting . . . a fanatic” while Webster’s gives “crank, fanatic, or bigot” as synonyms for the word.
Hopefully, few in the general public would consider attorneys to be cranks, fanatics, or bigots (although many who are reading this article will likely think of some attorneys they have encountered who actually do fit one or more of these descriptions). So, it is hard to understand why so many attorneys today continue to blissfully proclaim to all that will listen that they are “zealous advocates” when the term “zealous” is understood by the general public today to describe someone who is something like a crackpot.
If honest about it, most lawyers would agree that zealous advocacy as it is practiced by many in the legal profession today has simply become an excuse for over the top advocacy. Not only is it a likely cause of much of the incivility in the profession, but it can also to cause attorneys to run afoul of their other ethical obligations. By professional rules adopted in all jurisdictions, attorneys owe ethical obligations to others including the courts, opposing counsel, other parties, the profession, and to the public at large. It is highly unlikely, if not impossible, for an attorney who is a self-described zealot on behalf of a client to adequately discharge the attorney’s mandatory ethical duties to others.
Let’s Fix the Rule. In retrospect, it would have been better had the drafters of the Model Rules eliminated the use of the “z” words or found other descriptive words such as “eagerness” or
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“enthusiastically” to use in their place. Leaving in words that previously had an entirely different meaning or connotation in the old Model Code was simply a mistake that needs to be corrected.
An opportunity to correct this problem lies with the Ethics 2000 Commission. The Commission is currently reviewing the Model Rules to recommend necessary changes to them. While the Commission’s current draft of Model Rule 1.3 leaves the Rule unchanged, it unfortunately also leaves the “z” words in place in both the Preamble and the Comments to Rule 1.3. Hopefully, the Commission will reconsider its actions and take out the “z” words or find more appropriate substitute words. Absent action on the part of the Commission to remove the ‘z’ words from the Model Rules, the ABA House of Delegates would have an opportunity to do this once the Commission’s final recommendations on changes to the Model Rules reach the floor of the House.
Lawyers are supposed to be problem solvers. If so, we have an opportunity to take a modest step that would help solve one of the biggest problems facing the profession today. If the “z” words were removed from the Model Rules, it would remove a favorite excuse used by those who practice over the top advocacy. Additionally, the elimination of the “z” words from lawyers’ descriptions of themselves could not but help improve their image with the public.
Let’s face it, it’s time to get rid of the “z” words.
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