The term "zealous" can imply an aggressive, unyielding approach to advocacy, which may lead to ethical gray areas. Lawyers might feel pressured to push the boundaries of ethical behavior in pursuit of their client's interests, potentially compromising integrity and fairness. This is the result of misinterpretation and misuse of the word. The on-paper definition of the word "zealous" is "to show great energy and/or enthusiasm in pursuit of a cause or objective". This seems appropriate when applying it to the attorney-client relationship. Yet, over time the word has evolved for some to mean overly aggressive or unethical behavior, as long as it benefits the client. "Zeal" has been used as an excuse to manipulate evidence, intimidate witnesses, and commit other ethical violations.
An example can be found in the case Heslin v. Jones. On December 14, 2012, a tragic shooting at Sandy Hook Elementary School in Newtown, Connecticut, resulted in the deaths of 26 people, including 20 children. Families of the victims filed defamation lawsuits in Texas against Alex Jones and Owen Shroyer of InfoWars, who had claimed the shooting was a hoax. In responding to the complaints, Jones and his attorneys abused "zealous" strategies. They failed to comply in numerous ways with discovery orders and persistently obstructed the discovery process.
"Zealous" advocacy must include a balance between a lawyer's duty to the court, opposing counsel, and the legal system. Lawyers must ensure their actions do not undermine the administration of justice. This can be found in the Model Rules of Professional Conduct. Rule 1.3 of the Model Rules of Professional Conduct emphasizes that a lawyer should act with "reasonable diligence and promptness" in representing a client. While "zealous" advocacy is encouraged, it must be balanced with other ethical obligations, such as honesty and respect for the legal system.
Perhaps the focus should shift from "zealousness" to "reasonable diligence" as cited in the Rules. The term "zealous" can contribute to a negative public perception of lawyers as combative and unethical. This perception can damage the overall image of the legal profession and destroy public trust. Legal organizations and bar associations often emphasize the importance of professionalism and ethical behavior over aggressiveness. The shift in language reflects a broader effort to enhance the profession's standards and reputation.
In my field of family law, the term "zealous" is particularly inappropriate. Most family law cases involve minor children. Their welfare must be considered when lawyers make decisions on how to represent their adult clients.
ReplyDeleteIn most cases, children do not have independent legal representation and depend on their parents, and their parents' attorneys, to look out for their welfare - or at least not take actions or advocate for results that are clearly contrary to their welfare.
I had a particularly nasty child custody dispute where opposing counsel, who did mostly plaintiffs PI work and only occasional family law cases, insisted on calling the parties' 12-year-old child to the witness stand to testify against his father who was fighting for custody of his 9-year-old younger brother. By this time, due to parental alienation, the father's relationship with the 12-year-old was already destroyed to the point that asking for custody of him would have been futile.
No responsible family law attorney would ever ask a minor child to testify in open court against a parent, even if it could be argued that "zealous" representation justified it. The judge agreed and refused to allow the 12-year-old to testify. In my state, as in most states, the judge is permitted (and often required) to meet with children privately in chambers to assess their reasonable custodial preference. That is the mechanism for children to have "their say" in custody cases. Or in rare circumstances, the court may appoint guardian ad litem (GAL) to represent the child's interests.
I wish the term "zealous" would be removed from the ethical rules. It doesn't mean what it seems to. Zealous in ordinary language means actions taken by a zealot. We don't need zealot attorneys, particularly not in the 50% of cases in the court system that are family law cases.
When I started law school, there was already a movement away from the traditional “zealous” advocacy model in lawyering. This shift was particularly evident in various areas of law, where a more balanced, less combative approach was encouraged. However, when it comes to criminal cases, I believe that lawyers need to go beyond simply being “reasonable.”
ReplyDeleteIn criminal law, the stakes are incredibly high—people's lives and liberties are on the line. The consequences of a case can affect not only the accused but also their families and communities. Therefore, I think it's essential for defense attorneys to advocate with zeal and passion, ensuring that every possible defense is explored and every constitutional right is protected.
Similarly, prosecutors have a duty to seek justice rather than merely securing convictions. This means they must be diligent and fair, ensuring that they pursue cases based on evidence and not on personal biases or public pressure.
In essence, while moving towards a more measured and reasonable approach in law is beneficial in many contexts, criminal law requires a blend of fervent advocacy and ethical responsibility to truly serve justice.
When it comes to advocacy I always remember the phrase "Be careful you do not become the monsters you fight". Yes, I will absolutely advocate for my client but I will not stoop to being impossible to work with opposing counsel and become the very thing I despise. As Scalia (who I normally am not a big fan of) once said: "We fight ideas, not people". If you can't fight with good legal argument and have to resort to Ad Hominem attacks and procedural chicanery then maybe this isn't the career for you and you should look into MMA.
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ReplyDeleteHi Jaeda,
The idea of “zealous" advocacy is definitely something that has weighed on my mind since starting law school. II can definitely see how it could, at least sometimes, be interpreted as a green light for unethical behavior. I certainly think that the “zealousness” needs to be balanced with the need for honesty and integrity; that seems crucial. Shifting the focus to "reasonable diligence," as highlighted in the Model Rules of Professional Conduct, seems like a smart move to uphold ethical standards while still advocating effectively for clients. This change in terminology could help improve the public perception of lawyers and reinforce the importance of ethical practice.